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. Frampton, 2021 ONSC 5733

[14] Finally, I am aware that in many contexts, accommodations are made for unvaccinated persons. For instance, a student may nonetheless attend school even though they are unvaccinated as a result of medical or conscience-based reasons. This approach is the result of a cost-benefit analysis. It is thought that keeping every kid in school, even with medical limitations, is beneficial. Likewise, we see value in allowing people to enjoy their own views in respect to science and medicine. Those values are benefits deemed to outweigh the downside – the risk that certain diseases will manifest themselves. In my view, however, using this sort of reasoning in the Covid-19 context is apples to oranges thinking. With a relatively small cohort of students unvaccinated, the risk of an outbreak of diphtheria, rubella, polio and the like is exceedingly low. Those illnesses have effectively been run out of town such that accommodating the unvaccinated is largely inconsequential. The same cannot be presently said for Covid-19 which is now endemic and spreading in a significant and uncontrolled manner. It continues to qualify as a global pandemic and is causing substantial harm. As a result, in my judgment, the cost-benefit analysis breaks the other way when it comes to Covid-19 vaccination and jury duty. Any upside in accommodating an unvaccinated juror is outweighed by the downside of exposing the remaining jurors to risk of physical harm as we try to make this fourth wave the last one.

(Check for commentary on CanLII Connects)

2. Amalgamated Transit Union, Local 113 v Toronto Transit Commisson, 2021 CanLII 77723 (ON LA)

Given the use of both the term “operator” and the term “service” in the collective agreement and the use of the term operator in the job description, I determine that these words have different meanings. I agree with the fundamental interpretive presumption referred to in the Petro Canada Lubricants case supra which states that:

“all words must be given meaning with the same word having the same meaning wherever it is used, and different words have different meanings.”

In short, if Appendix E-27 was meant to limit the contracting out to operators as the TTC suggests, the parties could have used that term, which was commonly used in the collective agreement. The TTC’s evidence provides no explanation why the term “operator” which features so prominently in the collective agreement was not used in Appendix E-27 if the parties wanted to limit the contracting out to operators only or what if anything is the relationship between the term service and the term operator and particularly whether those terms are considered to be synonymous by the parties, which does not appear to be the case. Accordingly I determine that Appendix E-27 does not limit the contracting out to operators only.

(Check for commentary on CanLII Connects)

3. R. v. Anderson, 2021 NSCA 62

[118] The “method” employed for sentencing African Nova Scotian offenders should carefully consider the systemic and background factors detailed in an IRCA. It may amount to an error of law for a sentencing judge to ignore or fail to inquire into these factors. A judge does not have to be satisfied a causal link has been established “between the systemic and background factors and commission of the offence…” These principles parallel the requirements in law established by the Supreme Court of Canada in relation to Gladue factors in the sentencing of Indigenous offenders.[59] As with Indigenous offenders, while an African Nova Scotian offender can decide not to request an IRCA, a sentencing judge cannot preclude comparable information being offered, or fail to consider an offender’s background and circumstances in relation to the systemic factors of racism and marginalization. To do so may amount to an error of law.[60]

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Minier, 2021 QCCDPHA 36

[51] En somme, le fait que l’activité qui consiste à évaluer la thérapie médicamenteuse et à en assurer son usage approprié relève directement du champ d’exercice du pharmacien confère inévitablement un niveau de gravité élevé à l’infraction présentement à l’étude.

[52] En d’autres mots, qui d’autre que le pharmacien est plus en mesure de s’assurer de la conformité de la thérapie médicamenteuse d’un patient?

[53] Cette question met en évidence le caractère fondamental de l’obligation de surveillance du pharmacien relativement à la thérapie médicamenteuse d’un patient et incidemment la gravité d’une faute professionnelle comme celle admise par l’intimée.

(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.