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. Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555

[74] The whole point of s. 137.1 is to prevent a plaintiff from inflicting substantial costs on defendants in order to chill their participation in expressions on matter of public interest. Without the stay under s. 137.1 (5), the full panoply of expensive procedural steps under the Rules of Civil Procedure would remain open to a plaintiff who knows that an anti-SLAPP motion is being scheduled in Civil Practice Court. An interpretation allowing that outcome risks frustrating the intention of s. 137.1.

(Check for commentary on CanLII Connects)

2. R. v. Friesen, 2020 SCC 9

[26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.

(Check for commentary on CanLII Connects)

3. Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] 2 SCR 257

[148] Interjurisdictional immunity — premised on a notion that regulatory environments can be divided into watertight jurisdictional compartments — is often at odds with modern reality. Increasingly, as our society becomes more complex, effective regulation requires cooperation between interlocking federal and provincial schemes. The two levels of government possess differing tools, capacities, and expertise, and the more flexible double aspect and paramountcy doctrines are alive to this reality: under these doctrines, jurisdictional cooperation is encouraged up until the point when actual conflict arises and must be resolved. Interjurisdictional immunity, by contrast, may thwart such productive cooperation. In the case of forests on Aboriginal title land, courts would have to scrutinize provincial forestry legislation to ensure that it did not impair the core of federal jurisdiction over “Indians” and would also have to scrutinize any federal legislation to ensure that it did not impair the core of the province’s power to manage the forests. It would be no answer that, as in this case, both levels of government agree that the laws at issue should remain in force.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Noël, 2021 QCCDPHA 38

[30] De plus, selon la plus haute Cour du pays, quand le juge du procès se demande si la sévérité d’une peine recommandée conjointement irait à l’encontre de l’intérêt public, il doit être conscient de l’inégalité du rapport de force qu’il peut y avoir entre le ministère public et la défense, surtout lorsque l’accusé n’est pas représenté par avocat ou est détenu au moment de la détermination de la peine. Ces facteurs peuvent atténuer l’intérêt qu’a le public dans la certitude et justifier l’imposition d’une peine plus clémente dans des circonstances limitées.

(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.