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. Newell v. Sax, 2018 ONSC 4517

[1] The Applicant moves pursuant to section 6(9) of the Solicitors Act and Rule 54.09 to oppose confirmation of the Report and Certificate of Assessment Officer A. Palmer dated October 6, 2017…

(…)

[24] I note that counsel for the Respondent addresses the issue of ‘importance’ in several paragraphs toward the beginning of his written costs submissions. Under the headings “The importance of the issues” and “The conduct of the parties”, Respondent’s counsel states:

The issues were extremely important to the Solicitor but the same cannot be said for the Client since the Client did not even bother to show up at the assessment hearing to give evidence or to complain and no reason for the failure to show was ever given. Obviously, the matter could not be deemed to be that important to the Client.

The failure of the Client to appear on a proceeding that she instituted should be considered as being inappropriate. Even if the Client had nothing to say, she should have been present in the proceedings to show her interest and confirm that importance of the process to her…

[25] I cannot overstate how oblivious that submission appears to be. A person in her 90’s has rights, just like a more robust person, even if she does not make the kind of personal appearances that she might have done at an earlier age. To assume that a person at that stage of her life is indicating anything untoward, or that she somehow attaches minimal importance to a proceeding by hiring a lawyer and having him appear in her place, is to display a blindness for the human condition.

2. R. v. Tannhauser, 2018 BCPC 183

[1] [Defendant] is charged with using an electronic device while driving a vehicle on August 17, 2017 contrary to section 214.2(1) of the Motor Vehicle Act.

[2] His defence is that he was not using the device within the meaning of the legislation as its use was neutralized by a disabling device installed by his national employer on its phone it had provided to [Defendant] for his use while he was engaged in his employment.

(…)

[16] The issue then is not whether [Defendant] was holding the device but whether it was in a position in which it may be used.

[17] The answer to that question is whether a cell phone with software that purportedly disables the phone when in a vehicle it is in is in motion constitutes ‘in a position in which it may be used’.

(…)

[49] (…) I find on a balance of probabilities that the device could not be used on the basis the software prevented it from being used and I acquit him of the charge that he used the cell phone.

3. R. v. CPR, Jackson and McClelland, 2018 BCPC 181

[1] Following the derailment of a freight train at Lac-Mégantic, Québec in July 2013, Transport Canada issued an Emergency Directive relating to railway operating practices respecting the securement of railway equipment. The Emergency Directive specified the number of handbrakes to be applied to unattended railway equipment, based on the grade of the rail line and the weight of the train. In addition, the Emergency Directive called for additional physical securement measures when railway equipment was left unattended on a main track. The Emergency Directive applied to all Railway companies operating in Canada, including the Canadian Pacific Railway Company (CPR).

[2] Early in the morning on February 15, 2015, the crew of CPR Train 401 left 58 railcars unattended on the main track at the Greely staging point, east of Revelstoke. The 58 railcars were left without handbrakes or additional physical securement measures. Only emergency brakes were applied.

[3] Among the 58 railcars were two cars containing ammonium nitrate. Ammonium nitrate is a potentially explosive substance, and a substance deleterious to fish.

[4] The grade from Greely to Revelstoke is almost all downhill.

(…)

[6] The [Defendants] now stand charged with two counts of unlawfully contravening the Emergency Directive, thereby committing an offence contrary to section 41 (2.1) of the Railway Safety Act, RSC 1985, c. 32 (4th Supp.) (the “Act”).

The most-consulted French-language decision was St-Lin-Laurentides (Ville de) c. Blais, 2015 QCCM 36:

[1] En furetant dans le forum de discussion ouvert Spotted St-Lin Facebook, un agent de la paix lisait les propos lancés par les divers intervenants sur des sujets variés quand il relève une insulte à son égard. L’auteur du message a reçu de l’agent une contravention de stationnement quelque temps auparavant et ventile sa frustration en écrivant que l’agent Doré est un épais … et conclut … tellement une face à fesser dedans lui en plus!

[2] Un constat d’infraction lui fut signifié par la poste lui reprochant d’avoir contrevenu à l’article 18 du règlement municipal 298-2009 de Ville de St-Lin-Laurentides le 20 mars 2014 qui édicte que nul ne peut, par ses paroles, actes ou gestes, insulter, injurier ou provoquer tout agent de la paix ou tout fonctionnaire dans l’exercice de ses fonctions.

(…)

[16] Puisque le Tribunal retient qu’en l’espèce, au moment de la publication les propos disgracieux, ils n’étaient pas adressés à l’agent de la paix mais lancés à la volée en référence à l’agent et que ce dernier n’était pas dans l’exercice de ses fonctions bien que son intervention ait été le prétexte aux représailles du défendeur.

* 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.