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. Toronto Star v. AG Ontario, 2018 ONSC 2586

[14] The Supreme Court of Canada has stated that “[a]ll law and law‑makers that touch the people must conform to [the Charter]. Tribunals and commissions charged with deciding legal issues are no exception.”[17] What needs to be determined is the effect of FIPPA in this regard. Do its substantive terms that weigh access to documents against privacy protection, and its procedural regime by which documents are requested, vetted, and withheld or produced, conform with or undermine the requirement of openness? As the English Court of Appeal has said in its inimitable way, “The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed?”[18]

(Check for commentary on CanLII Connects)

2. Alberta v Suncor Inc, 2017 ABCA 221

[53] The chambers judge erred in finding that the dominant purpose of the internal investigation was in contemplation of litigation and therefore every document “created and/or collected” during the investigation is clothed with legal privilege. Suncor cannot, simply by having legal counsel declare that an investigation has commenced, throw a blanket over all materials “created and/or collected during the internal investigation” so as to clothe them with solicitor-client or litigation privilege. Where a workplace accident has occurred, and the employer has statutory duties under sections 18 and 19 of the OHSA and simultaneously undertakes an internal investigation, claiming legal privilege over all materials derived as part of that investigation, an inquiry is properly directed to a referee under Rule 6.45 to determine the dominant purpose for the creation of each document or bundle of like documents in order to assess the claims of legal privilege.

(Check for commentary on CanLII Connects)

3. R. v. Forcillo, 2018 ONCA 402

[110] The evidence at trial clearly established that use-of-force scenarios triggered the stress response in police officers. This point was clearly made in the evidence of Deputy Chief Federico and Dr. Miller, as well as the evidence of the appellant’s partner, Constable Fleckeisen. Dr. Miller testified about the physiological responses to stress, including cardiovascular activity and cortisol secretion. Dr. Andersen’s recent study confirms this.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Construction Polaris inc. c. Hydro-Québec, 2018 QCCS 1652

[4] Sommairement, Polaris affirme que dès le début des travaux en juillet 2010 et jusqu’à la fin de ceux-ci en novembre 2011, elle a été confrontée à de nombreux problèmes et changements relativement à l’étendue des travaux et aux conditions d’exécution qui ont pour effet de lui faire encourir des coûts supplémentaires fort considérables. Déjà, au 28 février 2011, à environ mi-chemin de l’exécution du Contrat, Polaris subissait des dépassements de coûts de l’ordre de 18 M$ mettant l’entreprise financièrement en péril.

(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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