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. Waksdale v. Swegon North America Inc., 2020 ONCA 391 (CanLII)

[10] We do not give effect to that submission. An employment agreement must be interpreted as a whole and not on a piecemeal basis. The correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA. Recognizing the power imbalance between employees and employers, as well as the remedial protections offered by the ESA, courts should focus on whether the employer has, in restricting an employee’s common law rights on termination, violated the employee’s ESA rights. While courts will permit an employer to enforce a rights-restricting contract, they will not enforce termination provisions that are in whole or in part illegal. In conducting this analysis, it is irrelevant whether the termination provisions are found in one place in the agreement or separated, or whether the provisions are by their terms otherwise linked. Here the motion judge erred because he failed to read the termination provisions as a whole and instead applied a piecemeal approach without regard to their combined effect.

(Check for commentary on CanLII Connects)

2. R. v. Zora, 2020 SCC 14 (CanLII)

[1] When individuals are charged with a crime, they are presumed innocent and have the right not to be denied reasonable bail without just cause. Most accused are not held in custody between the date of the charge and the time of trial because the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) and the Canadian Charter of Rights and Freedoms (“Charter”) typically require that accused be released on what is known as “bail”.[1] Accused who are not released from custody by the police will be brought before a justice of the peace or a judge (“judicial official”)[2] for a bail hearing. For most crimes, the default form of bail is to release accused persons based on an undertaking to attend trial, without any conditions restricting their activities or actions (s. 515(1) of the Code). However, conditions of release can be imposed if the Crown satisfies the judicial official that particular restrictions are required to secure the accused’s attendance in court, ensure the protection or safety of the public, or maintain confidence in the administration of justice (s. 515(10); R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at paras. 21, 34 and 67(j)).

(Check for commentary on CanLII Connects)

3. Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 (CanLII), [2019] 2 FCR 3

[201] I respectfully disagree. As this Court noted in Gitxaala at paragraph 125, the Governor in Council is required to consider any deficiency in the report submitted to it. The decision of the Governor in Council is then subject to review by this Court under section 55 of the National Energy Board Act. The Court must be satisfied that the decision of the Governor in Council is lawful, reasonable and constitutionally valid. If the decision of the Governor in Council is based upon a materially flawed report the decision may be set aside on that basis. Put another way, under the legislation the Governor in Council can act only if it has a “report” before it; a materially deficient report, such as one that falls short of legislative standards, is not such a report. In this context the Board’s report may be reviewed to ensure that it was a “report” that the Governor in Council could rely upon. The report is not immune from review by this Court and the Supreme Court.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Boulet, 2020 QCCDPHA 26 (CanLII)

[106] À la lumière des enseignements de la Cour suprême, des arrêts de la Cour d’appel, notamment l’affaire Binet[42], et des jugements du Tribunal des professions[43], le Conseil n’a pas à rechercher si la recommandation conjointe apparaît déraisonnable et la comparer avec ce qu’il pourrait considérer approprié à la lumière des précédents. Il n’a pas davantage à rechercher si les périodes de radiation proposées sont trop sévères ou trop clémentes. Il doit plutôt rechercher si cette recommandation est contraire à l’intérêt public ou déconsidère l’administration de la justice.

(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.