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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. Pourshian v. Walt Disney Company, 2021 ONSC 4840 (CanLII)

[48] In my view, these are pleading issues that are not properly addressed on a jurisdiction motion. As held by the Court of Appeal in Rothmans, at para. 106, “the motion judge is not required to subject the pleadings to the scrutiny applicable on a rule 21 motion”. In this case, the plaintiff makes a claim against the defendants for copyright infringement. It is not the proper role of the court in the context of a jurisdiction motion to analyze the finer points of the pleading to determine whether it discloses a cause of action for copyright infringement or whether the claim meets all necessary pleading requirements for a claim for copyright infringement. Rather, as held in Rothmans, again at para. 106, “[s]o long as a statement of claim advances the core elements of a cause of action known to law and appears capable of being amended to cure any pleadings deficiencies such that the claim will have at least some prospect of success, the issue for the motion judge is whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to permit an Ontario court to assume jurisdiction”. Accordingly, the task in this context is to assess the connection between the claim against the defendants and Ontario not the sufficiency of the pleading. If the court has jurisdiction over the claim, the defendants may have good arguments on a motion to strike parts of the claim on the grounds identified above (in which case the court would also consider whether amendments should be permitted). The defendants may also have good defences to the plaintiff’s claim. However, a jurisdiction motion is not the context in which to address these issues. At this point, the focus of the court is on the key threshold issue of whether the claim against the defendants is sufficiently connected to Ontario to warrant taking jurisdiction.

(Check for commentary on CanLII Connects)

2. Feeney v Her Majesty the Queen in the Right of Alberta, 2021 ABCA 255 (CanLII)

[20] If the Court finds that the litigant has persistently engaged in one or more of the types of behaviour listed in s 23(2), it may issue a vexatious litigant order (as set out in s 23.1) but it does not have to. Vexatious litigant orders should only be made when other procedural techniques would be inadequate and the offensive conduct is persistent: Lymer v Johnson, 2020 ABCA 167 at para 85.

[21] If vexatious litigant orders are to be made, the restrictions should be focussed on the particular litigant, proportional to the problematic conduct and no wider than is necessary: Lymer v Johnson at para 85. The Court should consider whether case management orders can resolve the issues.

(Check for commentary on CanLII Connects)

3. Idris v Mohamed, 2021 ABQB 529 (CanLII)

[10] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(s) in question are “apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1, at paras 22, 24. Only restricted forms of evidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited, 2019 ABQB 347 at paras 24-48 [Ubah #2]. There are exceptions to that rule. For example, the Court may examine other documents in the same proceeding that are related to the suspect filing (Ubah #2 at para 35), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed (Ubah #2 at para 45).

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. D’Amours, 2021 QCCDPHA 32 (CanLII)

[75] Sans être lié par les recommandations conjointes sur sanction, le Conseil n’a pas à décider de la sévérité ou de la clémence de la sanction proposée conjointement[20]. Quoique la sanction qui aurait pu être imposée à l’issue de l’audition soit pertinente, le Conseil ne doit pas commencer son analyse par une comparaison entre cette sanction et la recommandation conjointe[21]. Il doit plutôt le faire avec le fondement de la recommandation conjointe, incluant les bénéfices importants de cette dernière pour l’administration de la justice, afin de déterminer s’il y a quelque chose, autre que la durée de la radiation, de l’amende ou de la sanction, qui engage l’intérêt public au sens large ou déconsidère l’administration de la justice[22].

(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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