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. Patry v Kingston (City), 2019 CanLII 11788 (ON LPAT)

[72] Counsel for the Appellant has submitted that because her client filed the appeal in her absence without the benefit of legal advice, he should be granted latitude to gain “access to justice”, and ensure that a legitimate appeal and access to the system is not barred as a result of failing to meet technical requirements. The Tribunal would respond to this submission by repeating the accepted approach of tribunals and courts that although self-represented litigants may be granted some degree of accommodation or latitude for their circumstances, this will never excuse a litigant from compliance with the law and statutory requirements which shall be equally applied to all litigants and parties. Administrative tribunals are not being “technical” or “overly rigid”, as the Appellant submits in this Motion, when they are requiring substantive compliance and the application of the statute. The Tribunal may have some degree of flexibility in the application of its own Rules. No such flexibility exists in relation to the mandatory requirements of the Act.

(Check for commentary on CanLII Connects)

2. Cengic v. Castro, 2020 ONSC 986 (CanLII)

[6] In my view, the Rules of Professional Conduct of the Law Society of Ontario provide the path to the proper outcome of this motion. While the lawyers’ ethical rules are not binding on the court, the same issues arise at common law. See: Todd Family Holdings Inc. v Gardiner, 2015 ONSC 6590 (CanLII) at paras. 11 to 13; Konstan v. Berkovits, 2019 ONSC 3063 (CanLII), at paras. 9 to 14.

[7] Rule 3.7-1 of the Rules of Professional Conduct provides:

3.7-1 A lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client.

(Check for commentary on CanLII Connects)

3. Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010

168 Moreover, the other aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. This point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in Sparrow. First, aboriginal title encompasses within it a right to choose to what ends a piece of land can be put. The aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Médecins vétérinaires (Ordre professionnel des) c. Fortin, 2020 QCCDMV 1 (CanLII)

[25] L’analyse des éléments objectifs et subjectifs et du contexte dans lequel le professionnel commet l’infraction permet de s’assurer que la sanction retenue respecte le critère de l’intérêt public.

[26] Parmi les facteurs objectifs à considérer se retrouvent la gravité de la faute, le préjudice découlant des gestes reprochés au professionnel et subi par le public, le lien de l’infraction avec l’exercice de la profession, le fait que cette faute constitue un geste isolé ou répétitif et la gradation des sanctions face à l’existence d’antécédents disciplinaires.

(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.