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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. Lavallee et al. v. Isak, 2021 ONSC 6661

[34] To succeed on a defence of justification, a defendant is required to adduce evidence showing that the statement was substantially true. The burden is on the defendant to prove substantial truth of the “sting” or main thrust, of the defamation: Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 107-108.

[35] For a defendant to rely on the defence of fair comment, they must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, although it may include references of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express the opinion of the defendant on the proved facts; and (e) even if the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice: Grant, at para. 31.

(Check for commentary on CanLII Connects)

2. Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII), [2015] 3 SCR 909

[1] Abella J. — The Immigration and Refugee Protection Act[1] consists of a number of moving parts intended to work together to ensure a fair and humane immigration system for Canada. One of those parts is refugee policy. Under s. 25(1) of the Act, the Minister has a discretion to exempt foreign nationals from the Act’s requirements if the exemption is justified by humanitarian and compassionate considerations, including the best interests of any child directly affected. The issue in this appeal is whether a decision to deny relief under s. 25(1) to a 17-year-old applicant was a reasonable exercise of the humanitarian and compassionate discretion. In my respectful view, it was not.

(Check for commentary on CanLII Connects)

3. Nelson (City) v. Marchi, 2021 SCC 41

[1] Under Canadian tort law, there is no doubt that governments may sometimes be held liable for damage caused by their negligence in the same way as private defendants. At the same time, the law of negligence must account for the unique role of public authorities in governing society in the public interest. Public bodies set priorities and balance competing interests with finite resources. They make difficult public policy choices that impact people differently and sometimes cause harm to private parties. This is an inevitable aspect of the business of governing. Accountability for that harm is found in the ballot box, not the courts. Courts are not institutionally designed to review polycentric government decisions, and public bodies must be shielded to some extent from the chilling effect of the threat of private lawsuits.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Hubert c. Procureur général du Québec, 2021 QCCA 1527

[38] Il faut se garder de se demander si le Conseil exécutif a bien fait de réclamer la démission de l’appelant ou si certains reproches justifiaient que sa nomination soit remise en cause. Là n’est pas la question et, encore une fois, il en va de l’indépendance des juges administratifs au Québec. La destitution de l’appelant comme régisseur à la Régie du logement ne pouvait intervenir qu’à la suite d’une recommandation du Conseil de la justice administrative, après la tenue d’une enquête[6]. J’ajouterais aussi qu’il apparaît du dossier que n’eût été le battage médiatique, le gouvernement n’aurait pas menacé l’appelant de le destituer.

(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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