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. Matchee, 2019 ABCA 251

[31] One way of understanding s 718.2(e) and Gladue is as a partial remedy for the systemic discrimination suffered by aboriginal people which has led to their overrepresentation in the criminal justice system. The remedy requires sentencing judges to recognize these systemic factors and that they can play a part in offending behaviour. The sentencing judge is required to consider the individual circumstances of the aboriginal offender in this context, with a view to achieving a sentence that is commensurate with the offender’s moral blameworthiness. This approach ensures that systemic factors do not unconsciously lead to further discrimination in sentencing: Ipeelee at paras 67-69

(Check for commentary on CanLII Connects)

2. Hengeveld v. The Personal Insurance Company, 2019 ONCA 497

[37] In my view, the agency situation described in Adams is also present in this case. Here, the Personal Insurance pleadings make clear that the retainer of the lawyers included taking steps, on behalf of the Hengevelds, to preserve evidence, and that the lawyers’ dealings with Personal Insurance — what they did and failed to do — were dealings undertaken on the Hengevelds’ behalf. Personal Insurance specifically pleads the scope of the lawyers’ agency as embracing the lawyers’ alleged negligent conduct. There is no pleaded negligence arising from acts outside of the lawyers’ retainer. Personal Insurance itself attributes the lawyers’ conduct to the Hengevelds by alleging that the Hengevelds were negligent in making and failing to make arrangements about the Hyundai’s preservation and inspection: arrangements they allege were actually made by the lawyers on the Hengevelds’ behalves. Nor have the Hengevelds distanced themselves from responsibility for, or the consequences of, any negligence on the part of their counsel: Macchi (C.A.), at para. 1.

(Check for commentary on CanLII Connects)

3. Ball v Mcaulay, 2019 ONSC 3775

[56] Given that there is only one applicable statute that governs the discipline of employees for actions taken during a legal strike, we are of the view that this is one of those very rare true questions of jurisdiction that raises the issue of whether the Tribunal had authority to address the complaints in the first place: See Dunsmuir, at para. 59 and Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 (CanLII), 111 OR (3d) 561 at para. 56. The standard of review of a question of true jurisdiction is correctness. The Supreme Court has made it clear that administrative bodies must be correct in their determination as to the scope of their delegated authority because jurisdictional questions are fundamentally tied to both the maintenance of legislative supremacy and the rule of law: See Crevier v. Quebec (A.G.), 1981 CanLII 30 (SCC), [1981] 2 SCR 220 at pp. 236-237.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Babin, 2019 CanLII 53742 (QC CDOPQ)

[59] Elle déplore que lorsque que Mme A.T. s’est présentée à la pharmacie le 9 mai 2018 pour recevoir sa seconde dose, il n’y ait pas eu de questions de base pour savoir comment s’étaient déroulées les heures précédentes afin de s’assurer que le début du traitement convenait bien à la patiente, ce qui aurait sans doute permis de réaliser qu’une erreur avait été commise.

[60] L’avocate de la syndique adjointe souligne que l’absence de conséquences n’est pas un facteur atténuant, mais que la présence de conséquences comme en l’espèce est un facteur aggravant.

(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.