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. Saeed, 2016 SCC 24

[1] The common law power of search incident to arrest is an ancient and venerable power. For centuries, it has proved to be an invaluable tool in the hands of the police. Perhaps more than any other search power, it is used by the police on a daily basis to detect, prevent, and solve crimes. This case is no exception. By the same token, it is an extraordinary power. Searches incident to arrest are performed without prior judicial authorization, and they inevitably intrude on an individual’s privacy interests. That, too, is the case here.

[2] The appellant, Ali Hassan Saeed, was convicted of sexual assault causing bodily harm and unlawful touching for a sexual purpose. At his trial, the Crown introduced evidence showing that the complainant’s DNA was found on Mr. Saeed’s penis within several hours of the assault. Police obtained this evidence through a warrantless penile swab, conducted at the police station following Mr. Saeed’s arrest.

(Check for commentary on CanLII Connects)

2. Dimopoulos v Mustafa, 2016 ONSC 4119

[34] Whether or not the court ultimately agreed with the defendant’s assessment is immaterial to the court’s assessment of the defendant’s bona fides approach to the mediation. The mediation brief reflected a meaningful participation in the process by the defendant. Even if a settlement of the claim was not forthcoming, it enabled the plaintiff to obtain an understanding of the defendant’s position and the reasons for that position. That outcome, while obviously not optimal for the plaintiff, was nonetheless meaningful as it allowed the plaintiff to review his risks and trial strategy and approach. The defendant came to the mediation and explained the reasons for which it concluded that the claim would not succeed. Accordingly, I am unable to agree with the plaintiff’s contention that the defendant’s conduct in the mediation was contrary to the requirements of s.258.6 of the Insurance Act, such that it ought to attract punitive cost sanctions against the defendant.

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3. Berky v Cruz, 2016 ONSC 4067

[2] While I have considerable sympathy for the plaintiffs’ position and understand their intense feelings of disappointment in what they perceive to be Mr. Cruz’ failure to keep his word of honour to fix the numerous issues they raised regarding the quality of construction, I have concluded that the greater part of the plaintiffs’ claim relates to conditions of completion of the sale and are not warranties that survived completion. The plaintiffs have unfortunately failed to prove before me the terms of any warranties that survived completion with two very small exceptions. Oral undertakings of the sort alleged in this case may be binding in honour but cannot re-write the written terms of the agreement between the parties. The plaintiffs have also satisfied me that their claims to the $10,000 holdback amount far exceed the amount of the holdback and they are entitled to the immediate payment out of court of the holdback.

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The most-consulted French-language decision was Québec (Ville de) c. Cogeco inc., 2016 QCCS 2838

[11] La Ville soutient notamment que Bouchard a laissé faussement entendre qu’il y aurait eu des cas de corruption à Québec et que la proportion de 70% avancée devant la Commission par l’ingénieur Mathieu représente la proportion collusionnaire de l’ensemble de tous les contrats octroyés par la Ville, sans distinction, insinuant ainsi que les fonctionnaires de la Ville auraient fait preuve d’aveuglement volontaire:

(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.