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. MDS Inc. v. Factory Mutual Insurance Company, 2021 ONCA 594

[96] The trial judge relied on the American decision in MRI Healthcare to conclude that the resulting loss of use constituted resulting physical damage. That case, however, does not support the proposition that economic loss should be covered under an exception to an exclusion for resulting physical damage. On the contrary, the court concluded that there is no resulting physical damage to be covered where the detrimental impact is “unaccompanied by a distinct, demonstrable, physical alteration of the property”: at p. 779, citing Couch on Insurance. As such, although the leak resulted in the shutdown, the shutdown itself is not resulting physical damage. To read in coverage for “loss of use” distorts the plain language of the Policy and is out of step with the above case law.

(Check for commentary on CanLII Connects)

2. Patkaciunas v. Economical Mutual Insurance Company, 2021 ONSC 5945

[11] Both parties relied upon the Supreme Court of Canada’s decision in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (CanLII), [2015] 3 SCR 801. Green involved a nunc pro tunc order (literally “now for then”) in the context of a limitation period that turned not on the commencement of a proceeding but by the completion of a required step in the proceeding after it was commenced. Green and cases that follow it must be treated with some caution because the circumstances in that case are quite different from the ones presented here. In Green and all of the cases following it, the limitation period required the plaintiff to do a thing within a period of time that the plaintiff failed to do for various reasons. Here the plaintiffs did the very thing required and did all that was necessary to accomplish it within the time prescribed. I do not read Green as establishing a “red line” rule that is applicable in all cases and in all circumstances regardless of whether the circumstance was ever considered in a prior case. That may be how statutes are construed; it is not how the common law is developed.

(Check for commentary on CanLII Connects)

3. Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 4521

[57] In this case, s. 33.1 of the EBR dispensed with the posting requirements in Part II of the EBR with respect to the Schedule 6 amendments by deeming Part II not to apply to those amendments. As Sullivan has explained, a deeming clause creates a legal fiction. She states (at §4.106), “Although a sovereign legislature cannot change reality, it can declare that for legal purposes reality is to be considered different from what it was or is.” Accordingly, the Minister of the Environment acted lawfully when he failed to post the proposed changes to the EAA on the ERO, as he was not legally required to do so, given the enactment of s. 33.1 of the EBR.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Leng, 2021 QCCDPHA 37:

[77] Le Conseil doit également tenir compte de l’arrêt de la Cour d’appel dans Tremblay c. Dionne[35], qui souligne que les éléments essentiels d’un chef d’une plainte disciplinaire ne sont pas définis par son libellé, mais par les dispositions du code de déontologie ou des règlements auxquels le professionnel aurait contrevenu. Le Conseil devra, par conséquent, décider de la culpabilité ou de l’acquittement de l’intimé en fonction de chacune des dispositions invoquées.

(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.