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. Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153

[5] Applying largely uncontested legal principles established by the Supreme Court of Canada to the factual record, a factual record that is also largely not contested, I conclude that most of the flaws asserted against the Board’s process and findings are without merit. However, the Board made one critical error. The Board unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic. The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations. As a result, the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest.

(Check for commentary on CanLII Connects)

2. R. v. McCaw, 2018 ONSC 3464

[76] In my view, the weight of these four authorities supports the position taken by the applicant. If a judge of this Court finds that a provision of a statue is unconstitutional, by virtue of s. 52 of the Constitution Act and Ferguson, that provision is invalid for all future cases – it is “off the books.” Coming to this conclusion does not require a consideration of judicial comity. In my view, the question of judicial comity has no relevance to the issue before me.

[77] Accordingly, it follows that if a judge of this Court has already declared s. 33.1 of the Criminal Code as unconstitutional then s. 33.1 has effectively been removed from the Criminal Code and I am bound by that decision. If the applicant’s interpretation of Dunn is correct, then by virtue of that decision, as of its release in 1999, s. 33.1 of the Criminal Code was of no force and effect in the province of Ontario, and that remains the case unless and until that decision is overturned, or I suppose my decision to find that I am bound by Dunn is overturned by a higher court.

(Check for commentary on CanLII Connects)

3. Palumbo v. Quercia, 2018 ONSC 5034

[62] Soliciting business from former clients may be considered unfair depending upon the circumstances, including the circumstances of departure of the fiduciary. The restrictions on soliciting clients of the corporation placed upon a fiduciary who is unfairly terminated by the corporation will not be as strict as those applicable to a fiduciary who leaves voluntarily to pursue that prospect. In all cases, the burden of establishing unfair competition, including solicitation, falls upon the party asserting it.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Cardinal c. Bonnaud, 2018 QCCA 1357

[45] Si j’hésite à exclure, de manière générale, toute preuve de polygraphe en matière civile, c’est simplement qu’il m’apparaît difficile de juger de la fiabilité de cette technologie, contestée tant en jurisprudence qu’en doctrine, alors que le rapport est incomplet et que l’expert n’a pas été entendu. Mais je conviens, qu’à l’heure actuelle, une telle preuve est peu ou pas utile.

(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.