Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R. v. Armitage, 2015 ONCJ 64

[2] Before I get to this, I would like to make two short comments. First of all, I want to say something about the style of this decision. For those who have read some of my past judgments, the reader may notice a change. For Jesse Armitage, I have tried to say what I wanted to say in very plain language. I believe that this is very important for judges to do in every decision. However, judges often do not do a good job of this. I would describe myself as one of the worst sinners. As lawyers first and then judges, we get used to using words that are long and complicated. This only muddies the message we are trying to say. That message is very important when it comes to passing a sentence on an offender. That the message is clear is even more important in the Gladue courtroom.

[3] I say this because in the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand. Their voices are heard by the judges. And they must also know that we have heard them. I believe that the accused persons who have been in this court have had good experiences in this. This is something that they have come to appreciate. This is something they have a right to expect.

2. Malton v Attia, 2015 ABQB 135

[85] Here I set out the conduct I would have expected from a reasonably competent and diligent lawyer on a file of the nature of the Maltons’ file. That is the standard of conduct required to avoid liability in negligence. I also on several points state what I would have expected from a good lawyer, which is a somewhat higher standard than that of a reasonably competent lawyer. While striving to be a good lawyer is important to one’s practice, it is the standard of a reasonably competent and diligent lawyer that applies to Attia. Herein, when I refer to a reasonably competent lawyer, or simply a competent lawyer, I mean a reasonably competent and diligent lawyer.

[86] A litigation lawyer, in general, is responsible for advising his client about the nature of the potential litigation and about the various options for bringing the litigation to a close. If the matter cannot be resolved, that lawyer is responsible for the conduct of the litigation, on instructions from his client, through to the end of trial.

3. Freedman v. Cooper, 2015 ONSC 1373

[29] It seems that Ms. Freedman is of the view that she needs court approval to remove the tree because she and her agents would be committing an offence under s. 10(3) of the Forestry Act if she used the permit for the tree’s removal, which was issued by the City of Toronto. This view is based on the circumstance that under s. 10(3) of the Act, the consent of both Ms. Freedman and Mr. Cooper is apparently required for any removal of the tree.

[30] I disagree. I read s. 10(3) of the Forestry Act as simply not applying to the owners of the boundary tree. The owners remain liable one to another in accordance with the common law. In my opinion, s. 10(3) of the Forestry Act simply does not apply in the circumstances of this case.

The most-consulted French-language decision was Aliments Breton (Canada) inc. c. Oracle Corporation Canada inc., 2015 QCCA 336

[39] La juge a conclu qu’Oracle n’a pas commis de faute déterminante dans l’exécution de son mandat. Elle s’est aussi dite d’avis que l’échec du projet était plutôt dû à l’absence d’efforts de Breton. Elle a constaté son retrait unilatéral de la convention qu’elle estime précipité et injustifié. Parmi les déterminations de la juge ayant conduit à ces conclusions, Breton ne réussit pas à identifier d’erreur manifeste et déterminante susceptible d’emporter la réformation de son jugement.

[40] Cela suffit pour trancher le sort du pourvoi en défaveur de l’appelante, y compris sa contestation de la réclamation de l’intimée. Les autres moyens d’appel notamment ceux portant sur la question de l’évaluation des dommages sont, en conséquence, devenus théoriques.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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