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. Plange, 2018 ONSC 1657

[38] In my view, to sentence this offender, one without any prior criminal antecedents, to a penitentiary term would shock the conscience of the community. Not all lies are cast from the same mold and of the same gravity. Further such falsehoods may catch a more than insubstantial number of otherwise law abiding people. It would put a chill in the hearts of people who may have fudged financial numbers a bit in order to qualify for a loan or a line of credit. While there may be nothing wrong in criminalizing such conduct, to send someone to jail for two years is so excessive it would outrage the standards of decency

(Check for commentary on CanLII Connects)

2. Mawhinney v Scobie, 2019 ABCA 76

[59] While the case management judge was not satisfied that suspicious circumstances had been established by the applicant, he was prepared to permit her to adduce such evidence without triggering the no contest clause on the basis of an exception expressly in the no contest clause. (The no contest clause is reproduced below in paragraph 61.)

[60] In short, having been alerted to the possibility that the testamentary instrument might have been executed in suspicious circumstances, the court considered itself obligated to look into the matter. As a consequence, the case management judge ordered a hearing to determine, not whether the will was valid, but whether there were sufficient suspicious circumstances to trigger the need for the validity of the will to be proven in solemn form

(Check for commentary on CanLII Connects)

3. Salomon v. Matte‑Thompson, 2019 SCC 14

[203] The trial judge had to draw a line somewhere. And she came to the conclusion that the fraud was the only true cause — and therefore that Mr. Salomon’s recommendation of Triglobal and Mr. Papadopoulos was not a logical, direct and immediate cause — of the losses. By the time the respondents invested in Focus, they had formed their own opinion on their financial advisors’ competence and probity which was not dependent on Mr. Salomon’s initial recommendation or his subsequent reassurances. Contrary to the suggestion made by the Court of Appeal and by my colleague, this is not tantamount to saying that the fraud itself constituted a novus actus interveniens. Rather, it is the result of the trial judge’s careful examination of the sequence of events that led to the injury. Although one may disagree with her assessment, the fact remains that a direct causal link must be broken at some point. Otherwise, any lawyer who makes a wrongful referral would become an insurer of the recommended professionals’ services for years to come — with no end in sight. I am not suggesting that a referring lawyer will never be liable for a recommended professional’s faults. In the instant case, for instance, the outcome might have been different if the respondents had not over time developed their own independent relationship with their financial advisors. Put simply, this depends on the circumstances, and no hard and fast rule can be stated. In the instant case, the trial judge was in the best position to assess causation, and she found that the only true cause was the fraud. I see no ground for interfering with that finding.

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The most-consulted French-language decision was Imperial Tobacco Canada ltée c. Conseil québécois sur le tabac et la santé, 2019 QCCA 358

[658] En conclusion de ce chapitre et à l’instar du juge de première instance, la Cour conclut que, pendant toute la période litigieuse, les appelantes ont failli au devoir de renseigner les usagers et futurs usagers des dangers et risques de la cigarette. Elles sont donc, a priori, responsables du préjudice que cause chez les membres du groupe la matérialisation de ce défaut de sécurité du bien qu’elles ont fabriqué. N’ayant pas réussi à prouver que les membres des groupes, aux dates pertinentes, connaissaient ce défaut ou étaient en mesure de le connaître ou de prévoir le préjudice, elles ne peuvent faire valoir le moyen d’exonération de l’article 1473 al. 1 C.c.Q., moyen que reconnaissait le droit antérieur et qui trouve son équivalent dans les règles de l’article 53 L.p.c.

[659] Il reste maintenant à voir si, comme elles le prétendent, elles peuvent néanmoins repousser cette responsabilité en établissant une faille au chapitre de la causalité.

(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.