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. Ram, 2015 ONCJ 200

[1] A judge commencing a trial knows little or nothing about the case and relies on counsel to present evidence and submissions. This essential aspect of our adversarial system means it is inappropriate, not to mention difficult, for the judge to second guess the conduct of counsel during the trial. In fact, a good judge will keep an open mind and a closed mouth until it is time for a ruling or verdict. The judge should do so even where, as here, counsel too often appeared unprepared. Appearances can be deceiving and premature comments by the judge can undermine a client’s confidence in counsel. In this case, my ongoing concern about the conduct of Defence counsel crystallized at the end of the trial and shed new light back onto it. From this perspective, I concluded that a mistrial must be declared because of the failure of Defence counsel to discharge his duties to the client and the Court. To explain this it will be necessary to quote at some length from the transcript of proceedings.

2. Zurich Insurance Company v. Chubb Insurance Company of Canada, 2014 ONCA 400

[37] In the earlier cases, the rationale for applying the Regulation in cases of “purported” or “represented” coverage was that the applicant chose the insurance company based on a non-arbitrary belief that the insurance company provided coverage on the relevant vehicle. This is the crux of the nexus test. If the claimant’s non-arbitrary but mistaken belief is a basis for requiring the insurance company to pay benefits in cases of “purported” or “represented” coverage, I see no reason to treat claimants differently if their non-arbitrary beliefs are based on information other than a false representation. In my view, it would be best to allow adjudicators to continue to consider whether there is some connection between the parties as set out in the familiar and established nexus test. I now turn to the application of that test.

3. Statesman Master Builders Inc. v Bennett Jones LLP, 2015 ABCA 142

[26] In cases where the bright line rule does not apply, the court must then ask whether the concurrent representation of clients creates a substantial risk that the lawyer’s representation of the client would be materially and adversely affected. In such a case, the onus falls on the client claiming a breach of the duty of loyalty to establish, on a balance of probabilities, the existence of a conflict: McKercher at para 38.

The most-consulted French-language decision was R. c. Corbeil, 2015 QCCQ 2704

[50] À moins que les circonstances l’exigent et le justifient, il convient de mentionner que l’arrestation faite par un citoyen ne doit pas être encouragée dans notre société. Il est préférable d’envisager d’autres solutions que de procéder soi-même à l’arrestation d’une personne qui commet un acte criminel afin d’éviter des confrontations physiques pouvant entraîner des conséquences malheureuses.

* 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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