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. Roth, 2020 BCCA 240 (CanLII)

[142] Failing to conduct a critical assessment of testimonial weaknesses that could undermine the Crown’s evidentiary foundation on an essential element of the offence can be indicative of uneven scrutiny: Mehari at para. 34; Willis at para. 44. In my view, that is what happened here. There were significant inconsistencies and contradictions involving the complainant’s evidence that the trial judge did not appear to consider, or, if she did consider them, there is no indication that she resolved them in a substantively meaningful way. Once combined with the speculative reasoning in assessing the appellant’s credibility, and the judge’s unfortunate reliance on improper cross‑examination, the overall effect is sufficient to displace the high deference afforded to credibility findings.

(Check for commentary on CanLII Connects)

2. City Wide Towing and Recovery Service Ltd v Poole, 2020 ABCA 305 (CanLII)

[30] However, in determining whether a strong prima facie case is made out, the Court must also consider the enforceability of the restrictive covenants in question: Renfrew at para 9. In the present case, the chambers judge noted that the enforceability of the restrictive covenants was “[t]he crux of this matter”: AR, F2/28.

[31] Restrictive covenants that are unreasonably broad will not be enforced: Elsley v J.G. Collins Insurance Agencies Ltd., 1978 CanLII 7 (SCC), [1978] 2 SCR 916 at 923-924 [Elsley]. Relying on Elsley, the chambers judge recognized that the restrictive covenants must be reasonable in their temporal, geographic, and business scope: AR, F3/34-F4/3. She found their scope reasonable in all three respects: AR, F4/22-F5/13.

(Check for commentary on CanLII Connects)

3. Zinati v. Spence, 2020 ONSC 5231 (CanLII)

[27] In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:

a. It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Purdy c. Haslam, 2020 QCCS 2178 (CanLII)

[81] En effet, comme le souligne l’expert, il faut examiner la situation « en fonction d’autres critères, en particulier la répartition proportionnelle, le cadastre rénové de 2015 et l’occupation exercée sur les lieux jusqu’à cette limite ou au-delà de cette limite ».

[82] Sur le plan pratique, il ressort de l’exercice qu’il aurait de toute évidence été plus simple de focaliser sur le problème de la ligne entre les propriétés des deux parties à partir de l’information la plus importante à ce sujet, soit le fait que les deux propriétés proviennent d’un auteur commun qui les a vendues le même jour.

(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.

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