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. Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518

[15] The Divisional Court accepted that an adjudicator’s discussion of a draft decision with colleagues does not in and of itself breach the rules of natural justice. It relied on Khan v. College of Physicians & Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641 (C.A.), for the principle that some “outside” influence on reason writing is permissible and accepted. However, the court emphasized that the institutional consultation procedure must be designed to safeguard a decision-maker’s ability to independently decide the facts and the law. It relied on Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4 (CanLII), [2001] 1 S.C.R. 221, at para. 29, for the propositions that the consultation procedure cannot be imposed by a superior level of authority, consultation must be limited to questions of policy and law, and decision-makers must remain free to decide independently even on questions of policy and law.

(Check for commentary on CanLII Connects)

2. R. v. Goldfinch, 2019 SCC 38

[119] Where sexual activity evidence is concerned, the failure to identify the explicit link between the evidence and specific facts or issues relating to the accused’s defence can result in twin-myth reasoning slipping into the courtroom in the guise of “context”. For example, there is a risk that sexual activity evidence may be used, whether consciously or not, to “contextualize” a complainant’s testimony that she did not consent to the sexual activity in question through twin-myth reasoning: because the complainant consented in the past (the “context”), it is more likely that she consented this time as well. This is, of course, precisely the sort of stereotypical reasoning s. 276(1) sought to banish from the courtroom. Yet without a clear and precise identification of the specific purpose for which sexual activity evidence is sought to be introduced, this sort of reasoning can all too easily infiltrate the courtroom through the Trojan horse of “context”.

(Check for commentary on CanLII Connects)

3. Al-Khouri v. Hawari, 2019 ONSC 3681

[11] Rule 50.05(2) recognizes that in certain circumstances, the person at the Pre-Trial may not have sufficient authority to resolve the case, or to make decisions required to address the considerations of Rule 50.06. To accommodate circumstances just like those in this case, Rule 50.05(2), by the use of the word “shall”, requires that where an insurer sends a claims representative to the Pre-Trial and the claims representative, having considered the discussions at the Pre-Trial, thinks that a settlement should be pursued or that a decision is required to give effect to any of the other considerations in Rule 50.06, the person to provide that authority is readily available, in short order, by telephone.

[12] Neither the claims examiner’s nor defence counsel’s representations in this Pre-Trial satisfied me that the claims examiner in the room was an effective decision-maker, or that there was an effective decision-maker phone-ready to make decisions about settlement. Further, counsel’s representations to me did not satisfy me that anybody could make a decision on settlement without reporting to the oversight committee.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Haccoun c. Simon, 2019 QCCS 1943

[87] En effet, comme on le sait, cette obligation est tributaire des circonstances de chaque dossier. La jurisprudence soumise par Me Simon sur cette question illustre bien comment un cocontractant peut ne pas toujours savoir ce que son partenaire recherche dans une transaction, et c’est pour cette raison que ce dernier a l’obligation de se renseigner lui-même.

(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.