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. Erik v McDonald, 2019 ABCA 217

[149] Courts should strive to fashion legal principles that promote positive community values – good relations between neighbors, increased property values[85] and attractive landscape features – and discourage negative community values – bad relations between neighbors, diminished property values and unattractive landscape features.

[150] Granting access to the entire surface of a water body clearly encourages positive community values and discourages negative community values. It accords each of them equal rights and responsibilities. “This rule … seeks to promote the greatest beneficial use by each [riparian owner] with a minimum harm to other owners”.[86]

(Check for commentary on CanLII Connects)

2. Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010

168 Moreover, the other aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. This point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in Sparrow. First, aboriginal title encompasses within it a right to choose to what ends a piece of land can be put. The aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

(Check for commentary on CanLII Connects)

3. A.C. v. L.L., 2021 ONSC 6530

[16] All of these cases are based on the same underlying premise: the government and public health authorities are in a better position than the courts to consider the health risks to children in attending in-person school.

[17] Thus, as a general proposition, if in-person schooling is available, the presumption is that it is in the best interests of the child. The parent requesting virtual schooling has the onus of presenting expert evidence that virtual learning is in the best interest of the particular child.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Phuong Vu, 2021 QCCDPHA 48

[134] Pour ordonner un arrêt des procédures, l’abus de procédure doit avoir compromis l’équité de l’audience ou avoir causé un préjudice important à une partie au point de déconsidérer l’administration de la justice[32].

[135] Le fardeau de la preuve repose sur l’intimée. Il lui appartient de démontrer au Conseil que les abus allégués lui causent un préjudice irrémédiable ou d’une telle ampleur qu’ils heurtent le sens de la justice ou la déconsidèrent rendant ainsi le procès inéquitable[33].

(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.