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. Jarvis, 2017 ONCA 778

[103] Both the trial judge and the parties describe the expectation of privacy as an expectation that the teacher would not breach their relationship of trust by surreptitiously recording them without their consent. I agree with the respondent that this articulation conflates the two concepts of privacy and surreptitious recording, which are two separate requirements of the offence. It also relates them to the concept of lack of consent, which is not a specific requirement of the offence, but which is captured by the fact that the observation or video must be done surreptitiously.

(Check for commentary on CanLII Connects)

2. R. v. H.E., 2017 ONSC 4277

[17] However in such circumstances where the complainant had lived in Canada since 1989, did not make any complaint until the parties had a dispute involving access, where the complainant continued to have sex with the accused from the time of the alleged incident in 2002 until January 1, 2013 a period of approximately 11 years, I am not satisfied that the Crown has met its burden of proving beyond a reasonable doubt based on all of the evidence that the accused had the required mens rea to have sexually assaulted the complainant in 2002.

(Check for commentary on CanLII Connects)

3. The Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Limited, et al., 2014 ONSC 5831

[3] I have found it impossible to articulate a helpful overview of this trial. Sitting atop the evidence here is like scaling a very, very high mountain only to find that, when one reaches the summit, one is too far from everything to see anything. The best that I can do is say that the core of the case is the allegation that the individual defendants and their accountant knowingly made fraudulent misrepresentations and withheld information, such that the plaintiff overpaid for the hearing clinic. General damages are sought. It is further alleged that the defendants intentionally committed certain acts (said to be acts of bad faith and improper conduct bordering upon fraud) that impeded the transfer of assets, constituting breach of contract, and thereby caused the plaintiff to suffer specific financial losses.

[4] E-mails, hundreds of them, along with letters and other documents, proved to be the most reliable evidence. Without them, the truth would have been unattainable, leaving me at the mercy of witnesses and desperately self-interested litigants attempting to recall events today that took place in 2006. There are inherent evidentiary problems in asking witnesses to tell of such events. Sincerely believed memories that are innocently incorrect become more problematic for the court than do intentional lies.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Médecins (Ordre professionnel des) c. Minca, 2017 CanLII 62822 (QC CDCM)

[63] En l’espèce, Dre Minca consulte les renseignements concernant la dame pour ses fins personnelles. Non seulement Dre Minca accède au Dossier Santé Québec de la dame mais en plus, elle utilise les informations qu’il y contient pour la retracer et se rendre à son chevet. Au surplus, elle divulgue à une amie l’endroit où se trouve la dame, ce qui est d’autant plus grave.
[64] Dre Minca met ainsi la dame à risque. En effet, au moyen du privilège qui lui est octroyé comme intervenante autorisée à accéder au Dossier Santé Québec, elle ouvre une brèche dans le bouclier mis en place par le système de santé pour protéger la dame de son mari qui l’aurait violentée.

(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.