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The year in review: developments in Canadian law in 2009-2010.


This article provides an introduction to the Year-in-Review project at the University of Toronto Faculty of Law Review. In the first four sections, it describes the project's origins, scope, methodology and goals, focusing in particular on the criteria used to determine whether to include a case in the project's compendium. This discussion includes the exciting announcement of the new online component of the Year-in-Review, which aims to provide the legal community with timely summaries of significant cases from across the country. In the fifth section of the article, the authors summarise three of the most interesting cases to come out of the May 2009 to March 2010 review period, and situate them within the project framework discussed in the first four sections of the article.


Cet article sert d'introduction au projet << Bilan de l'annee >> de la Revue de droit de l'Universite de Toronto. Les quatre premieres sections decrivent l'origine, l'etendue, la methodologie et les objectifs du projet et s'attardent sur les criteres utilises pour determiner si le recueil du projet doit inclure un arret. La discussion comprend egalement l'annonce de la nouvelle composante Web du << Bilan de l'annee >>, qui offre a la communaute juridique, en temps opportuns, des resumes d'arrets canadiens importants. Dans la cinquieme section de l'article, l'auteur resume trois des arrets les plus interessants decides entre mai 2009 et mars 2010 et les situe dans le cadre defini des quatre premieres sections de l'article.
    Goals and Audience
    R. v. Kematch
    Van Breda v. Village Resorts Limited
    Victoria (City) v. Adams


The Year-in-Review Project (YiR) is a project undertaken by the University of Toronto Faculty of Law Review that began in 2008 with the goal of producing a yearly article that would review the significant judgments of Canadian appellate courts. (1) In 2009, we sought to give the project an added component by bringing it online. For the 2008 article, a large effort was expended to read every decision released by the courts of appeal. We saw an opportunity to provide a greater service to the legal community with the 2009 effort. The goal of YiR became to provide a timely summary on our website of significant cases decided by most of the Canadian appellate courts (the Federal Court of Appeal and the provincial and territorial courts of appeal, excepting the Quebec Court of Appeal). Cases are indexed by area of law as well as by date and court. Each short summary focuses solely on the significant aspects of the case and does so without editorial comments. In so doing, we strive to provide students, practitioners, judges, and academics with a succinct summary of how the law is developing across our country. This database is free and can be accessed through a link on the main University of Toronto Faculty of Law Review website.

The main portion of this article is divided into two sections: Part II "Scope, Significance and Uses" and Part III "Significant Cases". In Part II, we address the scope of the project, our conception of "significance", and the intended uses of YiR. Much thought was given to what courts we would include in the scope of the project, and this decision is explored in the first section of Part Il of this article. The next section of Part Il is devoted to a discussion of how we determined which cases to include in the project's compendium. We developed a system in which cases to be included were labelled as "significant". We acknowledge that "significance" is a loaded term when applied to case law. The distinction between what is labelled "significant" and not, however, is critical to the YiR mission statement: The project's goal is to present out readers with a narrow band of the thousands of judgments released annually that we believe have the potential to affect the state of Canadian law. Thus, the definition of "significance" used for the purpose of the project is specific to the goals of the project itself. In the third section of Part II, we detail the possible uses of the YiR site by different members of the legal community, including students, practitioners, academics, and the judiciary, as well as the students who work on the project itself.

In Part III, we provide a summary of a few of the cases that we round to be significant from the past year. While these summaries are longer and more in-depth than the summaries that can be found on our website, we have included this Part to help demonstrate our conceptions of "significance" and scope. We hope that readers not only find these cases interesting, but also that they serve as exemplars of what can be found in the online database. We encourage readers to consider how digestible summaries of cases of this nature--when presented in a timely manner in a public database--may be valuable to the various members of the legal community.



YiR aims to comprehensively report on all the "significant" decisions issued by the Federal Court of Appeal and the provincial and territorial courts of appeal, save the Quebec Court of Appeal? Out decision to focus on the courts of appeal was informed by two main factors: the clear importance of the jurisprudence produced by the courts of appeal and the plethora of analysis and commentary produced on the judgments of the Supreme Court.

YiR's focus on the courts of appeal is not only due to the precedential nature of the decisions but also to the size of their dockets. The sheer number of cases heard by the courts of appeal make it unfeasible for an individual lawyer to read and identify significant cases, even for a given subject area. In 2007, the courts of appeal covered by YiR heard 3,885 cases. This figure is actually on the lower end of what has been heard in recent years; between 2000 and 2007 the same courts annually heard an average of 4,399 cases. In 2007, the Court of Appeal for Ontario itself heard 1,679 cases. (3) Many of these cases will have little effect on the development of Canadian law. This can be partly traced to the accessibility of the courts of appeal to litigants, particularly through the wide availability of rights of appeal. (4) A majority of cases do not deal with complicated issues of law. As such, there is utility to a database that may identify the few potentially precedent-setting decisions amongst the many.

Out decision to exclude the Supreme Court from our database stems from different considerations. Almost every decision produced by the Supreme Court is significant. This is in part due to the legislative framework that governs how appeals arrive at the Court: For most cases, the requirement to receive leave to appeal is a signalling mechanism that, at least in the opinion of the judges, the case raises a significant issue. Indeed, the test for leave to appeal, whether an issue is of "public importance", speaks in terms of significance. (5) In the limited instances where there is a right of appeal, the circumstances that create such a right speak to the cases' significance; for example, a reference by the Governor General-in-Council, (6) litigation between a provincial government and the federal government, (7) or, in the case of an indictable offence, an appeal "on any question of law on which a judge of the court of appeal dissents". (8) In addition, the number of decisions released in any given year is small relative to the courts of appeal. These factors make the sorting function of YiR superfluous. Moreover, because of its prominence and the jurisprudential weight of its decisions there already exists timely commentary on the decisions of the Supreme Court that is available to the public. (9)

In contrast to out decision to exclude the Supreme Court of Canada, the Quebec Court of Appeal has been excluded from the YiR project hOt for reasons of principle but, rather, for practical reasons. The Quebec Court of Appeal is no less important than any other court of appeal and it has a sizable docket. (10) While the University of Toronto Faculty of Law Review is a bilingual and bijural publication, the infancy of this project, and the lingual and juridical nature of the University of Toronto Faculty of Law, have led us to determine that the project can be most successful at this point by limiting itself to the English common law courts. We hope that in the future the scope of the project can include the Quebec Court of Appeal, perhaps through an arrangement with a fellow law school.


The idea of "significance" is at the heart of the raison d'etre of YiR. The mandate of our project is to identify and summarize the "significant" cases released by the courts of appeal in order to assist out readers in identifying, among the thousands of cases that are decided each year, the ones that have the potential to change the development of the law. We recognize that significance is inherently subjective and contextual. Taking this into account, we based our conception of significance around two central tenets. First, we broadly defined a "significant" case as one that has the potential to affect the state of law in either the province from which it originated or Canada as a whole. This definition is premised on the goal of the YiR project, which, as stated above, is to identify those appellate court cases that will affect the state of Canadian law. Second, we erred on the side of significance when characterizing a case: If there was a reasonable argument that a case was significant, we treated it as such.

In the terms of our definition, most cases released by the courts of appeal within the scope of YiR are not significant. When this article was written, less than nine per cent of cases reviewed were characterized as significant. Many of the remaining cases were decisions that largely addressed the facts of a case or the process at the trial, or which applied settled law.

The clearest example of a significant case is one that changes the law from its former incarnation. This category includes decisions that find a law, or a provision thereof, to be unconstitutional, either under s. 52(1) of the Charter of Rights and Freedoms (11) or on federalism grounds. (12) Equally included are cases that overturn prior decisions, especially when they do so explicitly. (13) For example, in R. v. Yeh, (14) the Saskatchewan Court of Appeal revised its previous holding in R. v. Nguyen. (15) In Nguyen, the Court had held that investigative detentions could violate a detainee's s. 8 Charter rights if the purpose of the detention was to determine whether a crime had been committed (a "suspected offence") as opposed to whether the detainee was linked to a recent crime that was known to the police. In Yeh, however, the majority of the Court held that, on a proper interpretation of the law, investigative detentions can be lawfully used for suspected offences.

A case is also significant if it develops the law by refining legal principles to deal with new situations or if it applies the law in a novel or unexpected fashion. (16) This category includes the classic cases that form the basis of the common law legal system by allowing it to evolve and change. (17) Palkowski v. Ivancic fits well in this category, dealing directly with the substance of the open court principle. (18) The Court of Appeal for Ontario split on the question of whether the motion judge violated the open court principle by hearing a motion in her anteroom and by pre-drafting an endorsement that she modified after discussion with counsel. Justice MacFarland, writing for the majority, held that, while motions must be held in a public place, a judge's anteroom may qualify. Any place where judicial business is conducted is presumed to be open to the public unless there is evidence of exclusion. Moreover, while the motion judge's endorsement was prepared in advance, she modified it based on counsels' comments, which was sufficient to meet the principles of natural justice. Justice Juriansz disagreed with the majority's interpretation that the motion was held in public simply because the public was not excluded. He held that "open to the public" must mean a forum where the public understands it is free to enter without specifically requesting admission. The principle is vital both to the common law and to democratic society, and it operates not simply for the litigants but also for the public. He warned that interpreting the open court principle so broadly might allow administrative tribunals and other public institutions to decrease the transparency of their decision-making.

Similar principles of significance apply to cases that deal with the application of an un-interpreted statutory provision or that refine how statutory provisions are to be applied. (19) Some decisions can affect the practice of a whole area of law such as in the case of Workers' Compensation Board v. British Columbia (Human Rights Tribunal). (20) The Court of Appeal for British Columbia considered ss. 25(2) and 27(1)(f) of the Human Rights Code (British Columbia), which grant the Human Rights Tribunal the discretion to defer dealing with a complaint that has also been filed with another body and the discretion to dismiss a hearing that has already been dealt with by a proceeding in another body. (21) Justice Frankel interpreted these provisions as granting the Human Rights Tribunal discretion to proceed with a case or not; while common law doctrines such as res judicata and abuse of process should be taken into account, the decision is a discretionary one and these doctrines are not determinative. Other cases interpret statutory provisions that have narrower applications; nonetheless, these decisions can have significant consequences for those who are governed by the legislation. (22)

The above criteria address decisions that, subject to being overturned, definitively change the future interpretation of the law. There are other cases, however, which may not have an immediate impact on the law but which may have interesting theoretical implications and may shape the development of the law in the future. Many of these judgments undertake a lengthy discussion of the legal issues surrounding the case but then decline, based on the circumstances of the case before them, to fully decide the issue. (23) A good example of this is R. v. Bedard, (24) which involved a dual status offender who was designated a dangerous offender. A dual status offender is someone who is subject to both a sentence of imprisonment for one offence and a custodial disposition resulting from a finding of not criminally responsible on account of mental disorder (NCRMD) for a separate offence. The superior court has jurisdiction with respect to the sentence of imprisonment, while the Ontario Review Board has jurisdiction with respect to the custodial disposition. The question for the Court of Appeal for Ontario was whether, in a situation where the accused is a dual status offender, the concurrent jurisdiction of the Ontario Review Board should influence a judge's residual discretion in designating someone as a dangerous offender.

Under Part XXIV of the Criminal Code, a judge has the discretion not to declare someone a dangerous offender even if all of the statutory requirements for such a declaration have been met. Justice Watt reasoned that, on the one hand, although the provisions dealing with those found NCRMD and the provisions relating to dangerous offenders both have as their object the protection of the public, they should not influence each other:
   A scheme that manages persons who are not criminally responsible
   for their conduct should have nothing to say about whether a
   person, criminally responsible for his or her conduct and meeting
   the requirement for designation as a dangerous offender, should
   nonetheless not be so classified. (25)

On the other hand, he reasoned that the principles of sentencing dictate that persons only be declared dangerous offenders when less restrictive means by which to protect the public are unavailable. It should not matter where those potentially less restrictive means are found--in particular, that they may be found in the jurisdiction of the Review Board over those found NCRMD (the Review Board must determine that offenders determined to be NCRMD no longer pose a risk to the public before they can be released). Justice Watt does not resolve this tension, holding instead that Bedard's violent past and high probability of violent recidivism made the trial judge's declaring him a dangerous offender appropriate regardless of the jurisdiction of the Review Board. The Court of Appeal thus clearly set out an important issue and identified the key principles involved, but ultimately decided the case without resolving it.

Also deemed significant are cases with a powerful dissent on a legal issue. Such dissents play a variety of roles in our legal system. (26) Some dissents act prophetically by exposing different approaches to the law, several of which have been adopted by later majorities. (27) Other dissents spark dialogue between academics, practitioners, the judiciary, and, in some cases, between legislatures and the courts. (28) A powerful dissent on the law also reveals that the legal issue was contentious, or at least it was not settled until the decision was handed down, and thus serves to highlight the significance of the judgment as a whole. An example of such a dissent can be found in Nattrass v. Weber. (29) The majority of the Court of Appeal for Alberta applied the Supreme Court's test in ter Neuzen v. Korn (30) for determining the standard of care in medical negligence cases. The test relies partly on the physician's specialty to determine the standard of care. In dissent, Sulyma J.A. agreed that the standard of care for a physician is generally that of the practice expected in his or her specialty. She held, however, that this element of ter Neuzen does not apply when a doctor prescribes medication. Instead, she held that a physician has the same duty to understand and follow the effects of a drug irrespective of his or her specialty.

What brings these cases together under a single label of "significant" is their potential to alter the way the law is administered, interpreted, or the manner in which it is conceived. Although the cases selected may never in fact have that effect, it is because of the potential that they possess to do so that we believe that out readers, be they practitioners or judges, students or academics, will find our database both useful and interesting.

Goals and Audience

We hope YiR proves useful to our readers as well as to the law students participating in the project. One of our goals is for the project to provide an educational opportunity to the small army of law students required to make it successful. Student-run law reviews have always had a significant pedagogic component. (31) The YiR component of the University of Toronto Faculty of Law Review is no different. It provides an opportunity for students to practice their legal writing (and reading) skills, and it exposes them to modern case law in a variety of areas of law. Many law school courses simply do not have time to address modern cases that are passing before the courts. Spending time with contemporary decisions is an important link between the classroom and what is currently happening in the legal world.

Along with providing educational opportunities to law students, the YiR database seeks to be useful to the general legal public--for keeping up-to-date, for research, or just for interest. For law students, new to the legal world, the database can be a useful tool to discover what issues are before the appellate courts and how the courts are deciding them, outside of the narrower scope of the more-publicized cases before the Supreme Court. Students looking for interesting cases about which to write case comments could easily navigate to their chosen area of law to find a significant case that recently was decided by a court of appeal. Drafters of moot problems could find a recent significant case that allows for an interesting examination of legal issues that have yet to be determined by the Supreme Court.

Academics could use the database to follow cases in their chosen fields across Canada. While a professor may stay abreast of all of the court of appeal decisions in his or her own province, the YiR project's system provides a mechanism to spot trends as they develop throughout the country. The same holds for practitioners, especially those with a larger scope of practice, who seek to remain aware of ways in which the law is developing.

Above all, we believe that the law is inherently interesting and that many in the legal community share our view. Through the YiR project's database, lawyers can follow the ways in which the law is changing and evolving, not only in specific areas in which they study or practice, but also in any area of law that piques their curiosity. The next Part presents a cross section of a few of the significant cases that were decided last year. They serve as examples of the types of cases and information available on the website, and, we believe, also exemplify how interesting and engaging law can be.


These summaries are intended to give the reader a complete overview of the issues and reasons for judgment in each of the cases discussed. We chose these cases because we think that they are particularly illustrative of the kinds of significant cases on which the YiR project focuses. They are therefore much longer and more in-depth than the summaries of these cases that can be found in the online database. The online summaries are generally 500 to 800 words long.

R. v. Kematch

Application for leave to appeal was discontinued.


In R. v. Kematch, (32) Monnin J.A., writing for the Manitoba Court of Appeal, develops the definition of "unlawful confinement" in s. 279(2) of the Criminal Code by finding that a purely psychological form of control can be sufficient to create the requisite physical constraint on a person's liberty. While the previous case law relied upon by the Court can be read as moving in this direction, the facts of this case go beyond what had previously been considered.


Kematch and her common-law husband, McKay, were convicted of first-degree murder for the death of Kematch's twelve-year-old daughter, Phoenix. The autopsy revealed the cause of death to be multiple non-accidental traumas, and also revealed that Phoenix had been the victim of repeated abuse over a period of at least several months. The Crown alleged that, in addition to the murder of the child, Kematch and McKay had unlawfully confined the child in the house, often in the basement, in the months prior to her death.

The facts established that Phoenix had been required by the two accused to spend almost all of her time in the basement of the house. The basement was dirty, with ripped furniture, rat feces and garbage. On some occasions there was a small barrier in place, but, for the most part, there were no physical impediments to the child leaving the basement and she was not in any way locked in. Phoenix's confinement, then, could only have been achieved through psychological means, such as fear, intimidation, and threats.

It was this issue that was at the heart of the appeal--namely, whether confinement through psychological means falls within the ambit of s. 279(2) of the Criminal Code.

The Prior Case Law

The three most significant cases considered by the Court of Appeal were R. v. Gratton, (33) R. v. Pritchard, (34) and R. v. E.B. (35)

The accused primarily relied upon Gratton in arguing that unlawful confinement under s. 279(2) requires an element of physical constraint and that purely psychological constraint is insufficient. In that case, the accused had broken into the house where his ex-girlfriend and her two daughters lived, smashed the telephone and other objects, punched several holes in the wall, and pointed a loaded shotgun at all three while demanding that they stay in the bedroom and answer his questions. He eventually calmed down and was later arrested and charged with unlawful confinement under then s. 247(2).

Justice Cory (then a Justice of the Court of Appeal for Ontario) dismissed the appeal from conviction, ultimately finding that the Crown's case was overwhelming and the jury could not possibly have come to any other conclusion. He cited the following definition of unlawful confinement: (36)
   Without attempting to define the interpretative limits of the term,
   I have concluded that a total physical restraint, contrary to the
   wishes of the person restrained, but to which the victim submits
   unwillingly, thereby depriving the person of his or her liberty to
   more from one place to another, is required in order to constitute
   forcible or unlawful confinement. Such confinement need not be by
   way of physical application of bindings. (37)

Justice Cory adopted this definition, subject to removal of the word 'total', as there was no support for this requirement in the language of s. 247(2). In applying it to the case at bar, he reasoned as follows:
   If for any significant period of time [the victim] was physically
   restrained contrary to her wishes so that she could not move about
   from place to place, then there was a confinement within the
   meaning of the section. (38)

On this basis, he concluded as follows:
   The presence and display of a shotgun and shells in [the victim's]
   residence when there were two children present must have had the
   affect of threatening her, overwhelming any resistance and
   confining her to the premises. (39)

While Cory J.A. rejected the argument that unlawful confinement could only be effected by physically binding someone, he nevertheless concluded that physical restraint of the person was necessary. In this regard, he concluded that holding someone at gunpoint physically restrained him or her by depriving him or her of the ability to move at his or her own liberty.

In Pritchard, the appellant had been found guilty of first-degree murder based on his having confined the victim for some time before killing her. She had a large quantity of marijuana and Pritchard went to her house in order to steal it. The Crown's theory was that he forced her to tell him where it was hidden and then, at gunpoint, made her transport it in several trips to his truck. The issue before the Court was whether complete physical restraint of the victim was required to establish unlawful confinement.

In finding that it was not, Binnie J., writing for the Court, said as follows:
   The authorities establish that if for any significant period of
   time [the victim] was coercively restrained or directed contrary to
   her wishes, so that she could not move about according to her own
   inclination and desire, there was unlawful confinement... (40)

He further noted that in order to make out unlawful confinement, there must be a
   continuing illegal domination of the victim that provides the
   accused with a position of power which he or she chooses to exploit
   to murder the victim. (41)

On the basis of this approach, he concluded that there was ample evidence in the case for the jury to conclude that Pritchard had unlawfully confined the victim prior to murdering her.

In E.B., there was no weapon involved but the case clearly involved physical restraint. The accused were the grandparents of the two victims and had been charged with falling to provide the necessities of life and with unlawful confinement. In reviewing the elements of unlawful confinement, Watt J., as he then was, noted as follows:
   The external circumstances of the offence of unlawful confinement
   consist of the confining of another person. In ordinary usage,
   "confinement" means the state or condition of being confined,
   restriction or limitation. To confine another person is to keep
   that person in a place, within or to limits, or a defined area, to
   restrict or secure that person. In other words, confinement
   generally consists of restraining another person's liberty, though
   not necessarily the other person's ability to escape.

   Under section 279(2) of the Criminal Code, an unlawful confinement
   also consists of restricting the victim's liberty, but not his or
   her ability to escape. The restriction need not be to a particular
   place or involve total physical restraint. (42) [Emphasis in

On the facts, he found that the accused had repeatedly locked the victims in their bedroom for extended periods of time. He therefore concluded the grandparents were guilty of unlawful confinement:
   Unlawful confinement requires physical restraint contrary to the
   wishes of the victim.

   At the risk of offering a penetrating glimpse into the
   self-evident, to lock someone in a room for hours, without means of
   exit, is to confine them. The occupant is restricted to the room.
   He or she cannot get out, cannot move about from one place to
   another, according to his or her wishes. (43) [Emphasis in

In all three of these earlier cases, the courts' analyses of the elements of unlawful confinement suggest that the facts in Kematch, where the victim was arguably physically restrained through purely psychological means, may support a charge of unlawful confinement under s. 279(2). In both Gratton and Pritchard, it was held that physical restraint of the victim was required in order to make out unlawful confinement, but that restraint need not be by way of physical bindings. In both cases, the restraint was effected by holding the victims at gunpoint, with the implicit or explicit threat of death or serious injury should they fall to comply.

But while these cases do involve physical restraint by means of a threat, they are arguably quite different from the facts in Kematch. Restraint effected by general threats alone, and without any form of physical impediment or binding, appears distinguishable from the prospect of immediate harm that is created by someone making threats while holding a loaded gun.

Similarly, in E.B., Watt J. held that the restraint need not involve total physical restraint, just a restriction on liberty, and the ability to escape need not be restricted. On the facts of that case, however, the physical restraint was clear, as the victims were actually locked in their room with no ability to leave.

Against the backdrop of these cases, the Manitoba Court of Appeal considered how to deal with a situation in which a child is threatened with unspecified harm should she leave the basement, but at no time is she physically confined to the basement.

The Court of Appeal's Decision

Justice Monnin discussed the cases considered above. He referred specifically to Binnie J.'s reasons in Pritchard, where he said that unlawful confinement would be established if the victim were "coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire." (44) Justice Monnin also emphasised the decision of Watt J. in E.B., in which he reasoned that unlawful confinement involves "restricting the victim's liberty but not his or her ability to escape. The restriction need not be to a particular place or involve total physical restraint." (45) On the basis of these cases he concluded that actual physical or coercive restraint of the victim is required, but that it can be effected, depending on the circumstances, by psychological means. (46)

Justice Monnin clearly stated that the victim was not subject to physical restraints in the form of bindings, and also that she was not physically prevented from leaving the basement. She was, however, regularly banished to the basement and forbidden to leave, under threat from her abusive father. This, he argued, constituted physical restraint effected by non-physical means--namely, fear and intimidation. In reaching this conclusion, Monnin J.A. repeatedly emphasised that the victim in this case was only rive years old. Agreeing with the Crown's position, he found as follows:
   [T]he need for a physical component wanes when dealing with a young
   child especially where, as in this case, there is a history of
   domination over an extended period of time, clearly accompanied by
   a dramatic psychological component. (47)

Justice Monnin therefore dismissed the appeal from the convictions for first-degree murder. In doing so, he developed the law of unlawful confinement by applying the principles established in previous cases to a set of facts that were arguably different in principle from those that had been considered before. In previous cases, unlawful confinement had been round without the application of physical force, but it had been in the context of an immediate threat of grievous bodily harm, demonstrated by a loaded gun. In this case, Monnin J.A. finds that a command to stay in a particular place, enforced by a threat of future harm should it be disobeyed, is sufficient to constitute unlawful confinement. What may limit the future application of this reasoning, however, is the role that the age and vulnerability of the particular victim played in this case. It is not clear that the same principle could be applied to a mature adult who was not found to be under the psychological domination of the accused.

The case is significant for two inter-related reasons. First, it applies the established case law on the definition of unlawful confinement to a new set of facts. In many cases, the application of the law to novel facts will not be significant; indeed, most cases involve novel facts in one way or another. But, in this case, the facts are such that to apply the law to them is to extend the law, thereby creating the decision's second level of significance. In holding that the victim in Kematch was unlawfully confined within the meaning of the Criminal Code, Monnin J.A. necessarily develops the definition of unlawful confinement and the circumstances that can give rise to the charge. As noted, there are considerations in this case that may mean it is interpreted narrowly in the future, but even this limited application is an extension from the previous state of the law, and the potential for a more far-reaching effect cannot be ignored.

Van Breda v. Village Resorts Limited

An application for leave to appeal to the Supreme Court of Canada was granted on July 8, 2010, and a notice of appeal was filed August 30, 2010.


In Van Breda v. Village Resorts Limited, (48) a unanimous five-member panel of the Court of Appeal for Ontario reconsidered the test for assumption of jurisdiction over foreign defendants that had previously been set out in Muscutt v. Courcelles. (49) The Court refined and simplified the analysis by creating a presumption of a necessary and substantial connection when certain conditions in Rule 17.02 of the Rules of Civil Procedure (50) are met, and by reorganizing the list of relevant factors in terms of their relative importance. The judgment actually addressed two separate appeals, but the discussion of the law is the same for both and, for simplicity, this review will deal only with the facts of Van Breda. (51)


In June 2003, Van Breda and Berg, who lived in Toronto, went to the SuperClubs Breezes Jibacoa resort in Cuba. This resort was managed by Club Resorts Ltd. ("CRL") on behalf of a Cuban owner. Berg was a professional squash player and the trip was organised through a company that arranged for athletic instructors to stay at resorts free of charge in exchange for giving several hours of instruction each day they were there. The company had an ongoing relationship with CRL. Van Breda and Berg picked SuperClubs on the basis of the booking company's website and brochures for the resort that they got from Ontario travel agents. The reservation was confirmed by the booking company, using SuperClubs' letterhead.

While at the resort, Van Breda decided to use a chin-up bar that was set up on the beach. When she did so, the apparatus collapsed, she fell to the ground, and it landed on top of her. Van Breda was rendered paraplegic as a result. The respondents commenced an action for personal injury and punitive damages, among other things, against CRL. The motion judge found that there was a real and substantial connection between Ontario and the resort and that it could not be said, in relation to forum non conveniens, that Cuba was a clearly more appropriate jurisdiction. He therefore refused to dismiss or stay the action against CRL.

Prior Case Law

As noted above, the Court in Van Breda considered whether to modify the test it had set out in Muscutt. In that case, the Court determined the appropriateness of assuming jurisdiction on the basis of eight factors:

1. The connection between the forum and the plaintiff's claim;

2. The connection between the forum and the defendant;

3. Unfairness to the defendant in assuming jurisdiction;

4. Unfairness to the plaintiff in not assuming jurisdiction;

5. The involvement of other parties to the suit;

6. The court's willingness to recognise and enforce an extra-provincial judgment rendered on the same jurisdictional basis;

7. Whether the case is interprovincial or international in nature; and

8. Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere. (52)

These factors were not intended to provide a strict formula, but rather to provide a list of relevant considerations that could be applied flexibly to the facts of a given case. No one factor was to be determinative and all were to be weighed together. In Van Breda, the Court noted that a number of developments subsequent to the Muscutt decision made it appropriate to reconsider the issue of assumption of jurisdiction, and potentially to revise the test. (53)

The first of these subsequent developments was the fact that the several appeals considered in Muscutt all dealt with cases where jurisdiction had been assumed on the basis that damages suffered in Ontario gave rise to the requisite connection. Muscutt had, however, been taken to have much wider application, and the list of factors that it set out had been used to assess all cases involving the assumption of jurisdiction. The Court held that the resulting body of case law put it in a good position to assess the impact of the Muscutt decision. (54)

Second, there were significant developments in the jurisprudence since Muscutt. These included two Supreme Court of Canada decisions (55) dealing with assumption of jurisdiction on the basis of damages suffered and with the enforcement of foreign judgments, as well as consideration of Muscutt by appellate courts in other jurisdictions. While the decision had generally been followed, the Court noted that it had not escaped criticism. (56)

Third, the Uniform Law Conference of Canada had developed a model Court Jurisdiction and Proceedings Transfer Act ("CJPTA") designed to establish uniform rules for all Canadian courts with regard to establishing jurisdiction over proceedings. The CJPTA had been statutorily adopted in Saskatchewan, Yukon, Nova Scotia and British Columbia. (57)

Fourth, the concept of "forum of necessity" had emerged as an independent doctrine allowing the assumption of jurisdiction, in the absence of a real and substantial connection, where there was no other forum in which the plaintiff could reasonably seek relief. (58) And, finally, there was extensive academic consideration of the Muscutt decision, providing assessments from experts in the field that the Court held could and should be taken into account. (59)

Against the backdrop of these considerations, the Court turned to an analysis of the Muscutt decision and the proper approach to be taken on the issue of assumption of jurisdiction.

The Court of Appeal's Decision

Justice Sharpe, who wrote the decision in Muscutt, also wrote for the Court in Van Breda. In re-assessing the previous decision, he took a significantly different approach to the eight factors noted above. The new test is designed to make the decisions concerning the assumption of jurisdiction both easier and more predictable, by providing guidance on the relationship between the factors and their relative weight.

Justice Sharpe, following s. 10 of the CJPTA, established a list of factors that, if satisfied, give rise to a presumption of a real and substantial connection. Specifically, he gave this presumptive effect to each of the subrules enumerated in Rule 17.02, (60) with the exception of 17.02(h) ("damages"), and 17.02(o) ("necessary or proper party"). (61) He made this change for several reasons: (1) it was intended to bring the law in Ontario into line with the CJPTA and the laws of other provinces; (2) there was some support from the jurisprudence for looking at the rules for service ex juris in order to determine real and substantial connection, and the Court in Muscutt said they provide a guide as to when jurisdiction will be assumed; and (3) it would, at least to some degree, reduce the uncertainty and cost surrounding litigation over jurisdiction. (62)

Justice Sharpe excluded Rule 17.02(h) from the presumptive effect for two reasons. First, virtually all cases since Muscutt in which a real and substantial connection had not been found involved Subrule 17.02(h), while very few cases involving other factors had been found not to give rise to such a connection. Second, the fact that s. 10 of the CJPTA does not include damages suffered within the jurisdiction in its presumptive list suggests that this was not a factor that had gained widespread acceptance. (63) He did not give presumptive effect to Subrule 17.02(o) because it also was not included in the CJPTA, and because the generous scope of Rule 5 concerning the joinder of parties meant that the fact that a foreign defendant is a necessary or proper party is not a reliable indicator of a real and substantial connection. (64)

Justice Sharpe was careful to specify that the factors in Rule 17.02 create presumptions, not rigid requirements. It will remain open to the plaintiff to argue that there is a real and substantial connection even if the case does not fall under one of the categories, and it will similarly be open to the defendant to rebut the presumption created by one of the factors and argue that there is no such connection in the particular case. (65)

The second key change Van Breda makes to the Muscutt approach is to reorganise and prioritise the eight factors that were at the centre of the previous test. The first two considerations, the connection between the forum and the plaintiff's claire and the connection between the forum and the defendant, are collapsed into one and made the guiding principle of the test. (66) The core analysis now concerns the connection between forum, the plaintiff's claire, and the defendant, with the other factors serving as analytical tools to assist the court in determining this issue. The consideration of the plaintiff's claim remains the same as under Muscutt. Consideration of the defendant's connection focuses on things done by the defendant within the jurisdiction. Justice Sharpe put the test this way:
   Where a defendant could reasonably foresee that its conduct would
   cause harm within the forum by putting a product into the normal
   channels of trade and knows, or ought to know, that the product
   would be used in the forum and that if defective could harm a
   consumer in the forum, jurisdiction may be assumed. (67)

Turning to the remaining factors, Sharpe J.A. collapsed the third and fourth into a single fairness inquiry, considering both the plaintiff and defendant at the same time. Again, this fairness consideration is not freestanding, but rather is a tool to assist in determining the core issue of connection outlined above. (68) Specifically, unfairness to the plaintiff is not an independent factor capable of overcoming a lack of real and substantial connection; such a situation might fall within the scope of the doctrine of "forum of necessity" that has emerged since Muscutt was decided. In exceptional cases, the need to ensure access to justice will justify the assumption of jurisdiction, even where no real and substantial connection exists. Justice Sharpe specified, however, that this should be seen as an exception to the real and substantial connection test, rather than an element of it. (69)

The sixth factor from Muscutt, the court's willingness to recognise and enforce an extraprovincial judgment rendered on the same basis, is also no longer an independent consideration. It is, rather, a general and overarching principle disciplining the courts' assumption of jurisdiction. Justice Sharpe put it this way:
   If a court holds that there is a real and substantial connection
   sufficient to justify asserting jurisdiction against a foreign
   defendant, it thereby holds that there would be a real and
   substantial connection sufficient to require recognition and
   enforcement of a foreign judgment against an Ontario defendant
   rendered on the same basis. (70)

The other three Muscutt factors, involvement of other parties, whether the case is interprovincial or international in nature, and comity and the standards of jurisdiction prevailing elsewhere, remain relevant considerations, but only to the assessment of the core issue. Each is now only to be used as a tool to assist in determining the degree of connection between the forum, the plaintiff's claim, and the defendant, and not as an independent indicator of a real and substantial connection. (71)

Finally, Sharpe J.A. reaffirmed the distinction between jurisdiction simpliciter and forum non conveniens: the forum non conveniens factors have no bearing on real and substantial connection, and, therefore, they are considered only once it has been determined that there is such a connection and jurisdiction simpliciter has been established. (72)

Applying these principles to the facts of Van Breda, Sharpe J.A. concluded that there was a real and substantial connection in this case between the forum, Van Breda's claim, and CRL. The contract with the booking company was entered into in Ontario, it could be inferred that the company was acting as CRL's agent, and the contract was made directly with CRL. Based on Subrule 17.02(f)(i), a real and substantial connection was presumptively established. CRL was unable to rebut this presumption. Moreover, Ontario would be willing to recognise and enforce an extraprovincial judgment rendered on the same basis. There was no reason to exercise the court's discretion to stay the action on the basis of forum non conveniens. The appeal was dismissed.

The Court in Van Breda revises the test for assumption of jurisdiction over foreign defendants by Ontario courts, from both a theoretical and practical perspective. On the theoretical side, the inquiry is refocused on the first factor under Muscutt: the connection between forum, the plaintiff's claim, and the defendant. The other factors now serve as analytical tools to assist the court in determining this issue, rather than as freestanding considerations. From a practical perspective, the creation of presumptions based on the Rules, and the consolidation of several of the Muscutt factors, should make decisions concerning the assumption of jurisdiction both easier and more predictable.

The significance of such a case is obvious, though its true impact may not become apparent until i t has been applied in the lower courts. As noted, the decision departs from the established precedent in Muscutt by reorganising and streamlining the test. The purpose of these changes was to bring greater theoretical clarity and cohesion to the test, as well as to make it easier to apply in practice. The decision's success with respect to the former can be readily assessed, but it may be some time before it becomes clear whether the modified approach does indeed create greater certainty in this area of the law.

Victoria (City) v. Adams

Leave to appeal from this decision has not been sought.


In Victoria (City) v. Adams, (73) the Court of Appeal for British Columbia considered the constitutionality of bylaws enacted by the City of Victoria that prohibited the erection of temporary shelters in public places. The Court dismissed the appeal, holding that the bylaws, combined with the fact of a lack of adequate alternative shelter, violated the s. 7 rights of homeless people in the City.

Facts and Decision Below

A group of 70 homeless people set up a "tent city" in a public park in Victoria (the "City"). Relying on its Parks Regulation Bylaw and its Streets and Traffic Bylaw (the "Bylaws"), the City sought an injunction to remove the tent city from the park. The injunction was granted and the tent city was cleared on October 28, 2005. In 2007, the City applied for a permanent injunction and sought a declaration that the respondents' use of the park contravened the Bylaws in various ways. After several procedural issues were resolved, the case eventually went to trial and the constitutional arguments were restricted to ss. 7 and 12 of the Charter, though the trial judge found it necessary to deal only with s. 7.

The Bylaws prohibited the erection of temporary shelters, which in practice was a prohibition on any form of supported overhead shelter, such as a tent or tarp tied between two trees. The Bylaws did not, however, prohibit people from sleeping in parks, nor from protecting themselves while they did so. Individual non-structural covers that were removed once the person was awake did not breach the Bylaws. The narrow constitutional question was therefore whether
   ... when homeless people are not prohibited from sleeping in public
   parks, and the number of homeless people exceeds the number of
   available shelter beds, a bylaw that prohibits homeless people from
   erecting any form of temporary overhead shelter at night ...
   violates their constitutional rights to life, liberty and security
   of the person under s. 7 of the Canadian Charter of Rights and
   Freedoms? (74)

The trial judge reviewed evidence concerning the circumstances of homeless people in Victoria and expert evidence on the effects of homelessness on the physical and mental health of homeless people, including the health risks of sleeping outdoors. She made several findings of fact, including that (1) hundreds of homeless people in the City have no option but to sleep outside as there are not enough shelter spaces to accommodate them; (2) the Bylaws do not prohibit sleeping in public spaces, only the erecting of any form of overhead protection, even on a temporary basis; (3) exposure to the elements without adequate protection is associated with significant health risks, including hypothermia; and (4) some form of overhead protection is part of what is necessary for adequate protection from the elements.

On the basis of these factual findings, the trial judge held that there was a serious risk of harm to the health of the homeless, and that this harm stemmed from the state action in prohibiting temporary shelters. This violated the s. 7 rights of homeless people and was not in accordance with the principles of fundamental justice because the Bylaws were overbroad and arbitrary. Finally, the Bylaws could not be saved under s. 1 because, while the preservation of parks was an important objective and the Bylaws were rationally connected to it, they were not minimally impairing and the deleterious effects outweighed the salutary ones.

The Court of Appeal's Decision

The Court of Appeal set out the grounds of appeal as follows, and dealt with each in turn:

(a) Did the trial judge err in finding that the Bylaw provisions in question violate s. 7 of the Charter?

(i) Is there sufficient state action to engage s. 7 of the Charter?

(ii) Is the state action the cause of the deprivation?

(iii) Does the order grant a positive benefit to the respondents?

(iv) Is the claim about property rights?

(v) Is there an interference with life, liberty and security of the person?

(vi) Did the trial judge err in the interpretation and application of the principles of arbitrariness and overbreadth?

(b) Did the trial judge err by failing to hold that the Bylaws are saved by s. 1 as they are a reasonable limit that is demonstrably justified in a free and democratic society?

(c) Did the trial judge err in ordering the remedy she did? (75)

Section 7

With respect to whether there was sufficient state action to engage s. 7, the Court of Appeal upheld the trial judge's conclusion that there was. Citing the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), (76) and Gosselin v. Quebec (AG), (77) the Court noted that s. 7 has been interpreted to extend beyond the sphere of criminal law to encompass any state action that directly engages the justice system and its administration, which refers to the state's conduct in enforcing and securing compliance with the law. (78) The Bylaws prohibited certain conduct and provided sanctions for their breach. The Court therefore concluded that they constituted state action that directly engaged the justice system and were sufficient to fall within the scope of s. 7. (79) With respect to whether the state action so found was the cause of the deprivation, the Court again upheld the trial judge's conclusion that it was. The City argued that the requirement that the deprivation be caused by state action was not met in this case because the Bylaws were not the cause of the respondents' state of homelessness and insecurity. It maintained that s. 7 is not engaged when the result of the state action is merely that the claimant remains in a state of insecurity. To support this position, the City relied on the comments of Bastarache J. in Gosselin that the state action must "in and of itself" deprive the claimant of his or her s. 7 rights. (80)

The Court of Appeal rejected these arguments for a number of reasons. First, Bastarache J.'s comments were not accepted by the majority in Gosselin, and, regardless, were made in the context of a positive rights claire with respect to the lack of state action, rather than being an attempt to develop a general test for causation. Moreover, in other Supreme Court of Canada cases in which the state action was not the sole cause of the deprivation, such as R. v. Morgentaler, (81) and Rodriquez v. British Columbia (AG), (82) the causation requirement was nevertheless found to be satisfied. (83) The Court therefore upheld the trial judge's conclusion that the Bylaws were the cause of the deprivation suffered by the respondents. (84)

The Court next considered whether the order below granted a positive right to the respondents. The City argued that because the order was based on the lack of adequate shelter beds, it effectively granted a right to adequate alternatives to sleeping in public spaces, by imposing on the city an obligation either to provide shelter spaces or to make parks and other public spaces available for camping. (85) The Court rejected this argument on the basis that, while the factual finding of insufficient shelter spaces was key to the analysis, the finding did not turn the respondents' claire, or the trial judge's order, into a claim or right to shelter. The Court held that the decision below did not impose positive obligations on the City to provide adequate alternative shelter, nor to take "any positive steps to address the issue of homelessness". (86) While some positive action by the City, such as the regulation of overnight use of public parks, would likely be necessary as a practical matter, the decision only required the City to refrain from legislating in such a way as to breach the s. 7 rights of the homeless. (87) The Court stated that the kind of responsive action that would likely be necessary is a feature of all Charter cases and not one that involves the court in adjudicating positive rights.

Turning to the next ground of appeal, the Court quickly concluded that the trial judge was correct in holding that the respondent's claire did not involve a property right. The right asserted was the right to provide oneself with rudimentary shelter in a place in which the City acknowledged people could sleep already. It was not a right to camp in public parks, but rather a right to be free of a state-imposed prohibition on sheltering oneself. (88)

The Court then considered whether the Bylaws constituted an interference with the life, liberty, or security of the respondents, and concluded that they interfered with all three. With respect to life and security of the person, the Court relied on two key and uncontested factual findings of the trial judge: Homeless people in Victoria must sleep in public places because of the lack of adequate alternative shelter; and there are serious health risks from sleeping outside without overhead shelter. Combined, these facts entailed that the Bylaw prohibiting the erection of temporary shelters violated the s. 7 guarantees of life and security of the person. (89)

With respect to the respondents' liberty interests, the Court rejected the argument that the trial judge's analysis was inconsistent because she found that homeless people had no choice but to sleep outside, and also that the creation of temporary shelter is a fundamental personal choice falling within the scope of s. 7. The Court referred to the decision of the Court of Appeal for Ontario in R. v. Parker, (90) in which Rosenberg J.A. held that a prohibition on the use of marijuana to treat epilepsy was a serious intrusion into a fundamental personal choice and fell within the scope of s. 7. (91) Based on this decision, the Court concluded that, like those suffering from illness, the situation in which homeless people in Victoria found themselves was not one of their choosing, but, like the choice of treatment in Parker, that did not mean that their decision respecting shelter was not one of fundamental personal importance. (92)

Under the remaining ground of appeal under s. 7, the principles of fundamental justice, the Court considered both overbreadth and arbitrariness. The City argued that the trial judge erred in applying the test for overbreadth as set out in R. v. Heywood, (93) namely, whether the means chosen are necessary to achieve the state objective. Instead, the City submitted that the correct test was that set out in R v. Clay, (94) requiring "gross disproportionality" between the means chosen and the objective. (95) The Court rejected the City's argument, agreeing with the respondents that the Supreme Court returned to the Heywood test for overbreadth in R. v. Demers. (96,97) The Court also found no error in the trial judge's application of the principle to this case, concluding that there were a number of other less restrictive alternatives open to the City to achieve its goal of preserving urban parks, including requiring shelters to be taken down each morning or prohibiting sleeping in certain sensitive park areas. (98)

With respect to arbitrariness, the Court concluded that while the trial judge applied the correct test, she erred in holding that the Bylaws in this case were arbitrary. The test for arbitrariness is whether the measure at issue "bears no real relation to the legislative goal" it is intended to advance. (99) In this case, the City described the objective of the Bylaws as "maintaining the environmental, recreational and social benefits of urban parks." (100) The City offered evidence of the harm that would be caused by overuse of the parks in support of its position that restrictions on use were rationally connected to the stated objective. The respondents' position was that there was no evidence that any of these problems were specifically connected to the prohibition against the use of temporary shelters. The City's evidence of the events and damage caused at the park in this case, as well as the evidence of urban camping more generally, however, provided at least some evidence that people would congregate in parks if the absolute prohibition on the erection of overhead shelter were lifted. (101) Although the City overshot its objective by enacting an absolute ban on temporary shelter, and the Bylaws were therefore overbroad, they were not arbitrary in the sense described in Chaoulli v. Quebec (AG). (102,103)

Section 1

Turning to the section 1 analysis, the Court considered the four factors set out in R. v. Oakes (104): (1) a sufficiently important legislative objective; (2) a rational connection between the impugned provisions and the objective; (3) minimal impairment of the right or freedom in question; and (4) proportionality between the deleterious effects of the limitation and its purpose. (105) The Court concluded that neither the third nor fourth factor was satisfied in this case. The prohibition went further than was necessary to achieve the legislative goal of the preservation of parks and was therefore not minimally impairing. Moreover, the serious health risks faced by homeless people as a result of the ban were not outweighed by the Bylaws' salutary effects. (106)


The remaining ground of appeal concerned the remedy ordered by the trial judge. She applied s. 52(1) of the Constitution and declared the impugned portions of the Bylaws of no force or effect. The appellants argued that this was an error as what was really at issue was not the Bylaws themselves but rather their application to certain individuals. Thus, the City argued that the Court should address the situation on a case-by-case basis, if and when someone was prosecuted, and grant constitutional exemptions where appropriate. (107) This would be done under s. 24(1) of the Charter.

The Court cited the decision of the Supreme Court of Canada in R. v. Ferguson, (108) in which McLachlin C.J.C. discussed the difference between the remedies under s. 24 and s. 52:
   It thus becomes apparent that ss. 52(1) and 24(1) serve different
   remedial purposes. Section 52(1) provides a remedy for laws that
   violate Charter rights either in purpose or in effect. Section
   24(1), by contrast, provides a remedy for government acts that
   violate Charter rights. It provides a personal remedy against
   unconstitutional government action ... (109) [Emphasis in original]

The Court went on to note that the Chief Justice of Canada concluded that, where laws are found to be inconsistent with the Charter, it is not appropriate to allow them to stand subject to discretionary case-by-case remedies under s. 24(1). The uncertainty and unpredictability resulting from such an approach would pose a serious challenge to the rule of law. (110)

The Court also agreed with the trial judge that the remedy suggested by the appellants would place an undue burden on the homeless, who would not be in a position to defend multiple prosecutions on complex factual and constitutional grounds. Furthermore, the case-by-case approach would allow the City to enforce the by-laws, for example by removing shelters, without ever actually bringing a prosecution. This would effectively shield City action from constitutional review. (111)

The Court agreed with the City, however, that the trial judge erred in striking down all the impugned Bylaws. Citing Lamer C.J.C. in Schachter v. Canada, (112) the Court noted that it is not appropriate to strike down portions of legislation which are neither themselves unconstitutional nor intimately connected to portions that are. (113) In order to realize as much of the legislative intention as possible, only ss. 14(1)(d) and 16(1) of the Parks Regulation Bylaw needed to be declared invalid. (114) Given the peculiar nature of the finding and the potential that the Parks Regulation Bylaw may survive constitutional scrutiny should the situation in Victoria change with respect to the availability of shelter, the Court stated that the City may apply to the Superior Court for a termination of the declaration if it could demonstrate that the circumstances that made the Parks Regulation Bylaw unconstitutional have ceased to exist. (115)

This case falls squarely within our first category of "significance"--cases that change the law by overturning established precedents or finding statutory provisions unconstitutional. What is particularly interesting about the decision, however, is the reasoning employed by the Court and the conclusions it reaches as a result. In finding a bylaw that prohibits the erection of temporary shelter unconstitutional, the Court develops the approach to determining whether the requisite connection exists between the state action and the infringement. Moreover, the bylaw is not found to be unconstitutional in and of itself, but rather only in conjunction with the fact of an insufficient number of shelter spaces in the City. Because of this circumstance-dependent holding, the Court concludes that the City may seek to have the declaration of invalidity terminated in the future if it can show that the facts on the ground have changed. Thus, not only is the decision significant because it strikes down a law, but also because both the reasoning adopted by the Court and the remedy it fashions are novel.


This article has provided readers with an introduction to the Year-in-Review project by explaining its scope, methodology, and goals. In particular, it was the authors' intention to show that the new online database is a tool that will be useful and interesting to all members of the legal community, from students to academics to practitioners. With each passing year, the body of case law covered by the project, and made available online, will grow, making it an increasingly useful tool for tracking jurisprudential developments across the country. While the case summaries in the previous section were intended to be an in-depth review of the decisions, those in the database are focused and succinct. It is hoped that they strike the right balance between informing the reader about the key issue or issues in a case, while remaining useful as an overview for those trying to determine whether or not a case is of interest to them. We invite you to visit the website and search the database, and we hope you find it to be a useful tool.

(1) "Year in Review: Developments in Canadian Law in 2008" (2009) 67(2) U.T. Fac. L. Rev. 359.

(2) The scope of the project therefore includes the Federal Court of Appeal, the Court of Appeal for British Columbia, the Court of Appeal of Alberta, the Manitoba Court of Appeal, the Court of Appeal for Ontario, the Supreme Court of Newfoundland and Labrador (Court of Appeal), the Court of Appeal of New Brunswick, the Nova Scotia Court of Appeal, the Prince Edward Island Court of Appeal, the Court of Appeal for Yukon Territory, the Court of Appeal for the Northwest Territories, and the Ntmvavut Court of Appeal.

(3) All figures from Michael H. Lubetsky and Joshua A. Krane, "Appealing Outcomes: A Study of the Overturn Rate of Canada's Appellate Courts" (2009) 47 Osgoode Hall L.J. 131 at 145.

(4) In criminal cases dealing with indictable offences, the accused and the Crown have the right to appeal a conviction or an acquittal, respectively, on a question of law alone: see Criminal Code, R.S.C. 1985, c. C-46, s. 675(1)(a)(i) [Criminal Code]. In civil cases, the right to appeal is often unrelated to the ground of appeal. For example, in Ontario, there is a right to appeal for all civil cases that deal with more than $50,000: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b); see also Court of Appeal Act, R.S.B.C. 1996, c. 77, s. 6; Judicature Act, R.S.N.S. 1989, c. 240, s. 38(1).

(5) Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1).

(6) Supreme Court Act, ibid., s. 53.

(7) Ibid.. s. 35.1.

(8) Criminal Code, supra note 4, ss. 691(1)(a), and 693(1)(a).

(9) See e.g. The Court (

(10) For example, in 2007 the Quebec Court of Appeal heard 1028 cases: see Lubetsky and Krane, supra note 3 at 145.

(11) Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, ss. 7 and 24(2).

(12) See e.g. Victoria v. Adams, 2009 BCCA 563, intra.

(13) E.g. Nathanson, Schachter & Thompson v. Immet Mining Corp., 2009 BCCA 385, 310 D.L.R. (4th) 634, 76 C.P.C. (6th) 254; Van Breda v. Village Resorts Limited, 2010 ONCA 84, infra.

(14) 2009 SKCA 112, 248 C.C.C. (3d) 125,198 C.R.R. (2d) 50 [Yeh].

(15) 2008 SKCA 160, 240 C.C.C (3d) 39, 63 C.R. (6th) 24 [Nguyen].

(16) E.g. Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, 312 D.L.R. (4th) 70, 98 O.R. (3d) 210, R. v. Peters, 2010 ONCA 30,250 C.C.C. (3d) 277; R. v. White. 2009 BCCA 513, 248 C.C.C (3d) 499, 71 C.R. (6th) 266; and R. v. Kematch, 2010 MBCA 18, infra.

(17) See e.g. Erie Sand and Gravel Limited v. Tri-B Actes Inc., 2009 ONCA 709, 312 D.L.R. (4th) 111, 63 B.L.R. (4th) 161; DeJesus v. Sharif, 2010 BCCA 121; Pett v. Pett, 2009 BCCA 232, 93 B.C.L.R (4th) 300.

(18) Palkowski v Ivancic, 2009 ONCA 705, 312 D.L.R. (4th) 329, 76 C.P.C. (6th) 204.

(19) R. v. Ausland, 2010 ABCA 17; Griffin v. Dell Canada Inc., 2010 ONCA 29; Shortridge-Tsuchiya v. Tsuchiya, 2010 BCCA 61.

(20) Workers' Compensation Board z: British Columbia (Human Rights Tribunal), 2010 BCCA 77, 316 D.L.R. (4th) 648, 2 B.C.L.R. (5th) 274.

(21) Human Rights Code, R.S.B.C. 1996, c. 210.

(22) See e.g. Leering z: College of Chiropractors of Ontario, 2010 ONCA 87, 315 D.L.R. (4th) 632, 98 O.R. (3d) 561; College of Opticians of British Columbia v. Coastal Contacts Inc., 2009 BCCA 459, 98 B.C.L.R. (4th) 53, [2009] B.C.J. No. 2099.

(23) See e.g. Taub v. Investment Dealers Association of Canada, 2009 ONCA 628, 311 D.L.R. (4th) 389, 98 O.R. (3d) 169; R. v. Bedard, 2009 ONCA 678 [Bedard].

(24) Ibid.

(25) Bedard, ibid. at para. 111.

(26) The Honourable Claire L'Heureux-Dube, "The Dissenting Decision: Voice of the Future" (2000) 38 Osgoode Hall L.J. 495. See also W.J. Brennan Jr., "In Defense of Dissents" (Mather O. Tobriner Memorial Lecture) in H. Clark, Justice Brennan. The Great Conciliator (Secaucus, N.J.: Birch Lane Press, 1995).

(27) See e.g. Olmstead v. United States, 277 U.S. 438 (Brandeis J. dissenting); Murdoch v. Murdoch, [1975] 1 S.C.R. 423 [Murdoch[ (Laskin C.J.C. dissenting).

(28) L'Heureux Dube, supra note 26 at 512.

(29) Nattrass v. Weber, 2010 ABCA 64, 316 D.L.R. (4th) 666, 477 A.R. 292.

(30) [1995] 3 S.C.R. 674, 11 B.C.L.R. (3d) 201.

(31) See Cameron Stracher, "Reading, Writing, and Citing: in Praise of Law Reviews" (2007) NYL Sch. L. Rev. 52 at 349; James Lindgren, "Student Editing: Using Education To Move Beyond Struggle" (1994) 70 chi.-Kent L.Rev. 95 at 97; Roger C. Cramton, "'The Most Remarkable Institution': The American Law Review" (1986) 35 J. Legal Educ. 1 at 7.

(32) 2010 MBCA 18 [Kematch].

(33) (1985), 18 C.C.C. (3d) 462 (Ont. C.A.) [Gratton].

(34) 2008 SCC 59, [2008] 3 S.C.R. 195 [Prichard].

(35) [2006] O.J. No. 1864 (Sup. Ct.) [E.B.].

(36) The definition comes from R. v. Dollan and Newstead (1980), 53 C.C.C. (2d) 146.

(37) Gratton, supra note 33 at 473.

(38) Ibid. at475.

(39) Ibid. at 476.

(40) Pritchard, supra note 34 at para. 24.

(41) Ibid. at para. 33.

(42) E.B., supra note 35 at paras. 115-16.

(43) E.B., ibid. at paras. 525-26.

(44) Kematch, supra note 32 at para. 37.

(45) Kematch, ibid. at para. 88.

(46) Ibid. at para. 89.

(47) Ibid. at para. 99.

(48) 2010 ONCA 84 [Van Breda].

(49) (2002), 60 O.R. (3d) 20 (C.A.) [Muscutt].

(50) R.R.O. 1990, Reg. 194 [Rules].

(51) The other appeal was Charron v. Club Resorts Ltd., 2010 ONCA 84.

(52) Muscutt, supra note 49 at paras. 75-76.

(53) Van Breda, supra note 48 at para. 50.

(54) Ibid. at para. 51.

(55) Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205; Beals v. Saldhana, [2003] 3 S.C.R. 416.

(56) Van Breda, supra note 48 at para. 52.

(57) Van Breda, ibid. at para. 53.

(58) Ibid. at para. 54.

(59) Ibid. at para. 55.

(60) The subrules to Rule 17.02 of the Rules, supra note 52, set out the circumstances in which a party may be served outside Ontario, that is, they concern service ex juris.

(61) Van Breda, supra note 48 at para. 72.

(62) Ibid. at paras. 74-77.

(63) Ibid. at para. 78.

(64) Van Breda, ibid. at para. 79.

(65) Ibid. at para. 80.

(66) Ibid. at para. 84.

(67) Ibid. at para. 89.

(68) Ibid. at paras. 97-98.

(69) Ibid. at paras. 99-100.

(70) Van Breda, ibid. at para. 103.

(71) Ibid. at paras. 102 and 104-108.

(72) Ibid. at paras. 81-82.

(73) 2009 BCCA 563 [Victoria].

(74) Ibid. at para. 1.

(75) Victoria, ibid. at para. 58.

(76) 2000 SCC44.

(77) 2002 SCC 84 [Gosselin].

(78) Victoria, supra note 73 at para. 83.

(79) Ibid. at para. 85.

(80) Ibid. at para. 86.

(81) [1988] 1 S.C.R. 30 at 164

(82) [1993] 3 S.C.R. 519.

(83) Victoria, supra note 73 at para. 87.

(84) Ibid. at para. 89.

(85) Victoria, ibid. at para. 90.

(86) Ibid. at para. 95.

(87) Ibid. at para. 96.

(88) Ibid. at para. 98-101.

(89) Ibid. at para. 103.

(90) (2000), 49 O.R. (3d) 481.

(91) Victoria, supra note 73 at para. 106.

(92) Victoria, ibid. at para. 107.

(93) [1994] 3 S.C.R. 761 [Heywood].

(94) 2003 SCC 75 [Clay].

(95) Victoria, supra note 73 at paras. 112-13.

(96) 2004 SCC46.

(97) Victoria, supra note 73 at paras. 114-15.

(98) Ibid. at para. 116.

(99) Ibid. at para. 122.

(100) Ibid. at para. 122.

(101) Ibid. at para. 122.

(102) 2005 SCC 35.

(103) Victoria, supra note 73 at para. 123.

(104) [1986] 1 S.C.R. 103.

(105) Victoria, supra note 73 at para. 127.

(106) Ibid. at para. 127.

(107) Ibid. at para. 138.

(108) 2008 SCC 6.

(109) Victoria, supra note 73 at para. 141.

(110) Ibid. at paras. 142-43.

(111) Victoria, ibid. at paras. 146-47.

(112) [1992] 2 S.C.R. 679.

(113) Victoria, supra note 73 at para. 158.

(114) Ibid. at para. 159.

(115) Ibid. at para. 165.


* The authors would like to thank all the students who worked on the Year-in-Review project; however, special thanks are due to Abtin Aminzadeh Dezfuli, Alysson Whitlam, Brauna Doidge, Cameron Funnell, Eric Zadro, Julia Wilkes, Padraic Ryan, Rosita Lee and Sinziana Ruxandra Tugulea, whose help and support as the project's Articles Editors were crucial to its success.

** Matthew Law and Jeremy Opolsky were both third-year students at the University of Toronto Faculty of Law at the time of this writing.
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Author:Law, Matthew; Opolsky, Jeremy
Publication:University of Toronto Faculty of Law Review
Date:Mar 22, 2010
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