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. Lifechoice Ltd. v Adams, 2019 CanLII 28274 (AB ESU)

[28] Like most commissioned salespeople, the Respondent’s income was dependent in whole or in part on her sales success. The fact an individual is paid commission does not remove him or her from the definition of “employee” under the Code. There must be some indicia of entrepreneurial activity on the part of the individual to establish an independent contractor arrangement. In the present case, there is no evidence of entrepreneurial activity. The Respondent did not purchase or own the products she sold; her chance of profit/risk of loss were totally dependent on her sales efforts for the Appellant; she was not responsible for the management of the Appellant’s business; and her work was undertaken under the name of the Appellant, not her own business. The Respondent was restricted to selling only the Appellant’s line of products.

(Check for commentary on CanLII Connects)

2. Kosoian v. Société de transport de Montréal, 2019 SCC 59

[50] Under Quebec civil law, it is not enough to show that a police officer’s conduct was unlawful. The obligation resting on the officer remains an obligation of means, even where compliance with the law is in issue. To obtain reparation, the plaintiff must first establish the existence of fault within the meaning of art. 1457 C.C.Q., that is, a departure from the conduct of a reasonable police officer in the same circumstances. This is not to say that the general rules of civil liability are lax. As I will explain below, the standard of conduct expected of police officers is justifiably high: a police officer who acts unlawfully cannot easily escape civil liability by relying on his or her ignorance or misunderstanding of the law.

(Check for commentary on CanLII Connects)

3. Douez v. Facebook, Inc., 2017 SCC 33

[1] Forum selection clauses purport to oust the jurisdiction of otherwise competent courts in favour of a foreign jurisdiction. To balance contractual freedom with the public good in having local courts adjudicate certain claims, courts have developed a test to determine whether such clauses should be enforced. This test has mostly been applied in commercial contexts, where forum selection clauses are generally enforced to hold sophisticated parties to their bargain, absent exceptional circumstances. This appeal requires the Court to apply this test in a consumer context.

[2] Deborah Douez is a resident of British Columbia and a member of the social network Facebook.com. She claims that Facebook, Inc. infringed her privacy rights and those of more than 1.8 million British Columbians, contrary to the Privacy Act of that province. Facebook is seeking to have the action stayed on the basis of the forum selection clause contained in its terms of use, which every user must click to accept in order to use its social network.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Commission des droits de la personne et des droits de la jeunesse (Gabriel et autres) c. Ward, 2016 QCTDP 18

[130] En matière de diffamation, les tribunaux ont dégagé une série de critères qui permettent de déterminer si l’atteinte à la réputation d’une personne est justifiée par la liberté d’expression. La véracité des propos et l’intérêt public sont des facteurs pertinents[72]. Le contexte dans lequel les propos ont été prononcés, le ton employé, l’identité de l’auteur des propos et celle de la victime le sont également. Le Tribunal estime que ces critères sont aussi utiles au moment de déterminer si une atteinte discriminatoire au droit à la sauvegarde de la réputation, au respect de l’honneur et à la sauvegarde de la dignité est justifiée par la liberté d’expression.

(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.