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. Hecimovic, 2014 BCCA 483

[50] The trial judge expressly dealt with, and dismissed, the Crown’s theory that the respondent drove in a deliberately dangerous manner, within the meaning of s. 249(1)(a) of the Criminal Code. The question on this appeal is whether the trial judge erred in law in the manner in which she addressed what remained of the Crown’s case: that the driving was such a marked departure from the standard expected as to establish mens rea on an objective basis by inference and attribution, and that the respondent’s own evidence did not support an exculpatory defence.

(Check for commentary on CanLII Connects)

2. Markovic v Richards et al., 2015 ONSC 6983

[7] While it is clearly the plaintiff’s prerogative to obtain ATE insurance, I do not accept that such premium should be reimbursed by the defendants as a compensable disbursement. Such disbursements have not, as far as I am aware, ever been entertained in Canada and have certainly not been the subject of legislative reform as was the case in the UK. I can think of no policy reason that such should be compensated as a taxable disbursement. Existence of the policy may well provide comfort to the plaintiff, it is however an expense that is entirely discretionary, does nothing to advance the litigation, and may in fact even act as a disincentive to thoughtful, well-reasoned resolution of claims. I do not think it fair and reasonable that an insurer be expected to cover the disbursement for this payment of premiums. Moreover, as I understand it, ATE insurance is offered by DAS Canada, a full service legal expense insurer that is recognized by the Canadian Bar Association. DAS provides legal expense coverage that can be purchased by individuals who need to pursue legal action, covering disbursements and adversary costs in the event of an unsuccessful case. It appears that the premium is only payable if the case is successful.

(Check for commentary on CanLII Connects)

3. McCallum-Boxe v Sony, 2015 ONSC 6896

[13] It must be obvious to anyone who gives this even a moment’s thought, that this type of settlement-driven legal fees arrangement in class action litigation is fundamentally and profoundly unacceptable. It provides all the wrong incentives. The MLG arrangement discourages maximum commitment on behalf of the class because even if class counsel should win at trial, they will not be entitled to any compensation, whether from the recovery (no such agreement is in place) or via the plaintiff’s claim for costs (no costs can be awarded because the representative plaintiff has no liability to pay legal expenses.[5]) The MLG arrangement encourages only a minimal commitment on behalf of the class leading to sub-optimal settlements negotiated by class counsel who are primarily interested in recovering a generous legal fees payment.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Garbeau c. Montréal (Ville de), 2015 QCCS 5246

[5] Il n’existe pas de droit constitutionnel général et absolu de manifester sur un chemin public sans aucun encadrement législatif ou réglementaire. En effet, l’accès à la voie publique pour exercer le droit constitutionnel de manifester doit s’harmoniser autant que possible avec les fonctions habituelles de ce lieu.

[6] Dans le présent dossier, le débat porte sur la question de la constitutionnalité de l’article 500.1 du Code de la sécurité routière (« CSR »)[1]. La question se soulève à la suite du dépôt d’accusations contre plusieurs personnes présentes à une manifestation dénonçant la brutalité policière le 15 mars 2011. On leur reproche une contravention à l’article 500.1.

(Check for commentary on CanLII Connects)

* 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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