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. Ruston v. Keddco MFG. (2011) Ltd., 2019 ONCA 125

[18] It does not follow from the fact that this is the same conduct which the trial judge referred to in making the aggravated damages award that an award of punitive damages amounted to either double recovery or double punishment. That is because aggravated damages aim to compensate a plaintiff for heightened damages caused by the breach of the employer’s duty of good faith and fair dealing in the manner of dismissal, while punitive damages seek to punish and denunciate inappropriate or unfair conduct. There can be no question that the appellant’s conduct, and particularly that of Ms. Hawkins, rose to the level of conduct deserving of denunciation for all the reasons cited by the trial judge. The trial judge was alive to the concerns about double compensation, and to the need to consider the entire compensatory package as a whole.

(Check for commentary on CanLII Connects)

2. Sabadash v. State Farm et al., 2019 ONSC 1121

[39] The highlighted sentence appears to suggest that the accident in issue must be sufficient in itself to have caused the impairment: that it must be “the cause” as opposed to “a necessary cause”. To the extent that the Director’s Delegate’s reasons suggest that the plaintiff must prove on a balance of probabilities that the accident alone could have caused the impairment, he was incorrect.

[40] The Director’s Delegate was also incorrect in holding at paragraph 24 of his reasons that: “I believe that, pursuant to Clements, the primary causation test is the ‘but for’ test. Even if it is appropriate to apply the ‘material contribution to risk’ test as discussed in Clements, the plaintiff or insured still has to pass the ‘but for’ test”. In light of the statement in Clements at paras. 13-15 that “but for” and “material contribution to risk of injury” are alternatives, “but for” need not be proven in a “material contribution to risk” case.

(Check for commentary on CanLII Connects)

3. Bowman et al. v. Her Majesty the Queen, 2019 ONSC 1064

[38] Government cannot be required by the court to make or continue to fund an expenditure, as the distribution of government funds is a political not a judicial function: See Re Metropolitan General Hospital and Minister of Health (1979), 1979 CanLII 2058 (ON SC), 25 O.R. (2d) 699 (H.C.), at paras. 10-13.

[39] Moreover, the fact that funds were provided in the past does not mean government must continue to offer the same level of service nor does the decision to reduce or eliminate funding alone, create enforceable rights: See St. Joseph Island Hospital Assn. (c.o.b. Matthews Memorial Hospital Assn.) v. Plummer Memorial Public Hospital, [1996] O.J. No. 4663 (C.J. (Gen. Div.)), at paras. 39-40.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Prévost-Masson c. Trust Général du Canada, [2001] 3 RCS 882, 2001 CSC 87

[25] Par ailleurs, au sens strict du terme, le concept de solidarité passive ne s’applique pas. L’article 1106 C.c.B.C. porte sur la responsabilité délictuelle et ne vise pas directement la situation juridique où deux dettes portant sur une même somme d’argent proviennent de deux sources distinctes. L’appelante soutient que le seul concept qui tiendrait compte correctement de la situation serait celui de l’obligation in solidum. Un auteur français, F. Chabas, souligne bien les distinctions, parfois délicates, qui existent entre les concepts d’obligations solidaires, indivisibles et in solidum. Ce dernier concept vise à aménager la coexistence de plusieurs dettes portant sur un même tout.

(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.