The year in review: developments in Canadian law in 2009-2010. (2024)

Abstract

This article provides an introduction to the Year-in-Review projectat the University of Toronto Faculty of Law Review. In the first foursections, it describes the project's origins, scope, methodologyand goals, focusing in particular on the criteria used to determinewhether to include a case in the project's compendium. Thisdiscussion includes the exciting announcement of the new onlinecomponent of the Year-in-Review, which aims to provide the legalcommunity with timely summaries of significant cases from across thecountry. In the fifth section of the article, the authors summarisethree of the most interesting cases to come out of the May 2009 to March2010 review period, and situate them within the project frameworkdiscussed in the first four sections of the article.

Resume

Cet article sert d'introduction au projet << Bilan del'annee >> de la Revue de droit de l'Universite deToronto. Les quatre premieres sections decrivent l'origine,l'etendue, la methodologie et les objectifs du projet ets'attardent sur les criteres utilises pour determiner si le recueildu projet doit inclure un arret. La discussion comprend egalementl'annonce de la nouvelle composante Web du << Bilan del'annee >>, qui offre a la communaute juridique, en tempsopportuns, des resumes d'arrets canadiens importants. Dans lacinquieme section de l'article, l'auteur resume trois desarrets les plus interessants decides entre mai 2009 et mars 2010 et lessitue dans le cadre defini des quatre premieres sections del'article.

 I ORIGINS AND DEVELOPMENT II SCOPE, SIGNIFICANCE, AND USES Scope Significance Goals and AudienceIII SIGNIFICANT CASES R. v. Kematch Van Breda v. Village Resorts Limited Victoria (City) v. Adams IV CONCLUSION

I ORIGINS AND DEVELOPMENT

The Year-in-Review Project (YiR) is a project undertaken by theUniversity of Toronto Faculty of Law Review that began in 2008 with thegoal of producing a yearly article that would review the significantjudgments of Canadian appellate courts. (1) In 2009, we sought to givethe project an added component by bringing it online. For the 2008article, a large effort was expended to read every decision released bythe courts of appeal. We saw an opportunity to provide a greater serviceto the legal community with the 2009 effort. The goal of YiR became toprovide a timely summary on our website of significant cases decided bymost of the Canadian appellate courts (the Federal Court of Appeal andthe provincial and territorial courts of appeal, excepting the QuebecCourt of Appeal). Cases are indexed by area of law as well as by dateand court. Each short summary focuses solely on the significant aspectsof the case and does so without editorial comments. In so doing, westrive to provide students, practitioners, judges, and academics with asuccinct summary of how the law is developing across our country. Thisdatabase is free and can be accessed through a link on the mainUniversity of Toronto Faculty of Law Review website.

The main portion of this article is divided into two sections: PartII "Scope, Significance and Uses" and Part III"Significant Cases". In Part II, we address the scope of theproject, our conception of "significance", and the intendeduses of YiR. Much thought was given to what courts we would include inthe scope of the project, and this decision is explored in the firstsection of Part Il of this article. The next section of Part Il isdevoted to a discussion of how we determined which cases to include inthe project's compendium. We developed a system in which cases tobe included were labelled as "significant". We acknowledgethat "significance" is a loaded term when applied to case law.The distinction between what is labelled "significant" andnot, however, is critical to the YiR mission statement: Theproject's goal is to present out readers with a narrow band of thethousands of judgments released annually that we believe have thepotential to affect the state of Canadian law. Thus, the definition of"significance" used for the purpose of the project is specificto the goals of the project itself. In the third section of Part II, wedetail the possible uses of the YiR site by different members of thelegal community, including students, practitioners, academics, and thejudiciary, 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 weround to be significant from the past year. While these summaries arelonger and more in-depth than the summaries that can be found on ourwebsite, we have included this Part to help demonstrate our conceptionsof "significance" and scope. We hope that readers not onlyfind these cases interesting, but also that they serve as exemplars ofwhat can be found in the online database. We encourage readers toconsider how digestible summaries of cases of this nature--whenpresented in a timely manner in a public database--may be valuable tothe various members of the legal community.

II SCOPE, SIGNIFICANCE, AND USES

Scope

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

YiR's focus on the courts of appeal is not only due to theprecedential nature of the decisions but also to the size of theirdockets. The sheer number of cases heard by the courts of appeal make itunfeasible for an individual lawyer to read and identify significantcases, even for a given subject area. In 2007, the courts of appealcovered by YiR heard 3,885 cases. This figure is actually on the lowerend of what has been heard in recent years; between 2000 and 2007 thesame courts annually heard an average of 4,399 cases. In 2007, the Courtof Appeal for Ontario itself heard 1,679 cases. (3) Many of these caseswill have little effect on the development of Canadian law. This can bepartly traced to the accessibility of the courts of appeal to litigants,particularly through the wide availability of rights of appeal. (4) Amajority of cases do not deal with complicated issues of law. As such,there is utility to a database that may identify the few potentiallyprecedent-setting decisions amongst the many.

Out decision to exclude the Supreme Court from our database stemsfrom different considerations. Almost every decision produced by theSupreme Court is significant. This is in part due to the legislativeframework that governs how appeals arrive at the Court: For most cases,the requirement to receive leave to appeal is a signalling mechanismthat, at least in the opinion of the judges, the case raises asignificant issue. Indeed, the test for leave to appeal, whether anissue is of "public importance", speaks in terms ofsignificance. (5) In the limited instances where there is a right ofappeal, the circ*mstances that create such a right speak to thecases' significance; for example, a reference by the GovernorGeneral-in-Council, (6) litigation between a provincial government andthe federal government, (7) or, in the case of an indictable offence, anappeal "on any question of law on which a judge of the court ofappeal dissents". (8) In addition, the number of decisions releasedin any given year is small relative to the courts of appeal. Thesefactors make the sorting function of YiR superfluous. Moreover, becauseof its prominence and the jurisprudential weight of its decisions therealready exists timely commentary on the decisions of the Supreme Courtthat 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 hOtfor reasons of principle but, rather, for practical reasons. The QuebecCourt of Appeal is no less important than any other court of appeal andit has a sizable docket. (10) While the University of Toronto Faculty ofLaw Review is a bilingual and bijural publication, the infancy of thisproject, and the lingual and juridical nature of the University ofToronto Faculty of Law, have led us to determine that the project can bemost successful at this point by limiting itself to the English commonlaw courts. We hope that in the future the scope of the project caninclude the Quebec Court of Appeal, perhaps through an arrangement witha fellow law school.

Significance

The idea of "significance" is at the heart of the raisond'etre of YiR. The mandate of our project is to identify andsummarize the "significant" cases released by the courts ofappeal in order to assist out readers in identifying, among thethousands of cases that are decided each year, the ones that have thepotential to change the development of the law. We recognize thatsignificance is inherently subjective and contextual. Taking this intoaccount, we based our conception of significance around two centraltenets. First, we broadly defined a "significant" case as onethat has the potential to affect the state of law in either the provincefrom which it originated or Canada as a whole. This definition ispremised on the goal of the YiR project, which, as stated above, is toidentify those appellate court cases that will affect the state ofCanadian law. Second, we erred on the side of significance whencharacterizing a case: If there was a reasonable argument that a casewas significant, we treated it as such.

In the terms of our definition, most cases released by the courtsof appeal within the scope of YiR are not significant. When this articlewas written, less than nine per cent of cases reviewed werecharacterized as significant. Many of the remaining cases were decisionsthat 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 thelaw from its former incarnation. This category includes decisions thatfind a law, or a provision thereof, to be unconstitutional, either unders. 52(1) of the Charter of Rights and Freedoms (11) or on federalismgrounds. (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 investigativedetentions could violate a detainee's s. 8 Charter rights if thepurpose of the detention was to determine whether a crime had beencommitted (a "suspected offence") as opposed to whether thedetainee was linked to a recent crime that was known to the police. InYeh, however, the majority of the Court held that, on a properinterpretation of the law, investigative detentions can be lawfully usedfor suspected offences.

A case is also significant if it develops the law by refining legalprinciples to deal with new situations or if it applies the law in anovel or unexpected fashion. (16) This category includes the classiccases that form the basis of the common law legal system by allowing itto evolve and change. (17) Palkowski v. Ivancic fits well in thiscategory, dealing directly with the substance of the open courtprinciple. (18) The Court of Appeal for Ontario split on the question ofwhether the motion judge violated the open court principle by hearing amotion in her anteroom and by pre-drafting an endorsem*nt that shemodified after discussion with counsel. Justice MacFarland, writing forthe majority, held that, while motions must be held in a public place, ajudge's anteroom may qualify. Any place where judicial business isconducted is presumed to be open to the public unless there is evidenceof exclusion. Moreover, while the motion judge's endorsem*nt wasprepared in advance, she modified it based on counsels' comments,which was sufficient to meet the principles of natural justice. JusticeJuriansz disagreed with the majority's interpretation that themotion was held in public simply because the public was not excluded. Heheld that "open to the public" must mean a forum where thepublic understands it is free to enter without specifically requestingadmission. The principle is vital both to the common law and todemocratic society, and it operates not simply for the litigants butalso for the public. He warned that interpreting the open courtprinciple so broadly might allow administrative tribunals and otherpublic institutions to decrease the transparency of theirdecision-making.

Similar principles of significance apply to cases that deal withthe application of an un-interpreted statutory provision or that refinehow statutory provisions are to be applied. (19) Some decisions canaffect the practice of a whole area of law such as in the case ofWorkers' Compensation Board v. British Columbia (Human RightsTribunal). (20) The Court of Appeal for British Columbia considered ss.25(2) and 27(1)(f) of the Human Rights Code (British Columbia), whichgrant the Human Rights Tribunal the discretion to defer dealing with acomplaint that has also been filed with another body and the discretionto dismiss a hearing that has already been dealt with by a proceeding inanother body. (21) Justice Frankel interpreted these provisions asgranting the Human Rights Tribunal discretion to proceed with a case ornot; while common law doctrines such as res judicata and abuse ofprocess should be taken into account, the decision is a discretionaryone and these doctrines are not determinative. Other cases interpretstatutory provisions that have narrower applications; nonetheless, thesedecisions can have significant consequences for those who are governedby the legislation. (22)

The above criteria address decisions that, subject to beingoverturned, definitively change the future interpretation of the law.There are other cases, however, which may not have an immediate impacton the law but which may have interesting theoretical implications andmay shape the development of the law in the future. Many of thesejudgments undertake a lengthy discussion of the legal issues surroundingthe case but then decline, based on the circ*mstances of the case beforethem, 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 adangerous offender. A dual status offender is someone who is subject toboth a sentence of imprisonment for one offence and a custodialdisposition resulting from a finding of not criminally responsible onaccount of mental disorder (NCRMD) for a separate offence. The superiorcourt has jurisdiction with respect to the sentence of imprisonment,while the Ontario Review Board has jurisdiction with respect to thecustodial disposition. The question for the Court of Appeal for Ontariowas whether, in a situation where the accused is a dual status offender,the concurrent jurisdiction of the Ontario Review Board should influencea judge's residual discretion in designating someone as a dangerousoffender.

Under Part XXIV of the Criminal Code, a judge has the discretionnot to declare someone a dangerous offender even if all of the statutoryrequirements for such a declaration have been met. Justice Watt reasonedthat, on the one hand, although the provisions dealing with those foundNCRMD and the provisions relating to dangerous offenders both have astheir object the protection of the public, they should not influenceeach 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 sentencingdictate that persons only be declared dangerous offenders when lessrestrictive means by which to protect the public are unavailable. Itshould not matter where those potentially less restrictive means arefound--in particular, that they may be found in the jurisdiction of theReview Board over those found NCRMD (the Review Board must determinethat offenders determined to be NCRMD no longer pose a risk to thepublic before they can be released). Justice Watt does not resolve thistension, holding instead that Bedard's violent past and highprobability of violent recidivism made the trial judge's declaringhim a dangerous offender appropriate regardless of the jurisdiction ofthe Review Board. The Court of Appeal thus clearly set out an importantissue and identified the key principles involved, but ultimately decidedthe case without resolving it.

Also deemed significant are cases with a powerful dissent on alegal issue. Such dissents play a variety of roles in our legal system.(26) Some dissents act prophetically by exposing different approaches tothe law, several of which have been adopted by later majorities. (27)Other dissents spark dialogue between academics, practitioners, thejudiciary, and, in some cases, between legislatures and the courts. (28)A powerful dissent on the law also reveals that the legal issue wascontentious, or at least it was not settled until the decision washanded down, and thus serves to highlight the significance of thejudgment as a whole. An example of such a dissent can be found inNattrass v. Weber. (29) The majority of the Court of Appeal for Albertaapplied the Supreme Court's test in ter Neuzen v. Korn (30) fordetermining the standard of care in medical negligence cases. The testrelies partly on the physician's specialty to determine thestandard of care. In dissent, Sulyma J.A. agreed that the standard ofcare for a physician is generally that of the practice expected in hisor her specialty. She held, however, that this element of ter Neuzendoes not apply when a doctor prescribes medication. Instead, she heldthat a physician has the same duty to understand and follow the effectsof 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 isadministered, interpreted, or the manner in which it is conceived.Although the cases selected may never in fact have that effect, it isbecause of the potential that they possess to do so that we believe thatout 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 lawstudents participating in the project. One of our goals is for theproject to provide an educational opportunity to the small army of lawstudents required to make it successful. Student-run law reviews havealways had a significant pedagogic component. (31) The YiR component ofthe University of Toronto Faculty of Law Review is no different. Itprovides an opportunity for students to practice their legal writing(and reading) skills, and it exposes them to modern case law in avariety of areas of law. Many law school courses simply do not have timeto address modern cases that are passing before the courts. Spendingtime with contemporary decisions is an important link between theclassroom and what is currently happening in the legal world.

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

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

Above all, we believe that the law is inherently interesting andthat many in the legal community share our view. Through the YiRproject's database, lawyers can follow the ways in which the law ischanging and evolving, not only in specific areas in which they study orpractice, but also in any area of law that piques their curiosity. Thenext Part presents a cross section of a few of the significant casesthat were decided last year. They serve as examples of the types ofcases and information available on the website, and, we believe, alsoexemplify how interesting and engaging law can be.

III SIGNIFICANT CASES

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

R. v. Kematch

Application for leave to appeal was discontinued.

Introduction

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

Facts

Kematch and her common-law husband, McKay, were convicted offirst-degree murder for the death of Kematch's twelve-year-olddaughter, Phoenix. The autopsy revealed the cause of death to bemultiple non-accidental traumas, and also revealed that Phoenix had beenthe victim of repeated abuse over a period of at least several months.The Crown alleged that, in addition to the murder of the child, Kematchand McKay had unlawfully confined the child in the house, often in thebasem*nt, in the months prior to her death.

The facts established that Phoenix had been required by the twoaccused to spend almost all of her time in the basem*nt of the house.The basem*nt was dirty, with ripped furniture, rat feces and garbage. Onsome occasions there was a small barrier in place, but, for the mostpart, there were no physical impediments to the child leaving thebasem*nt and she was not in any way locked in. Phoenix'sconfinement, then, could only have been achieved through psychologicalmeans, 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 ambitof s. 279(2) of the Criminal Code.

The Prior Case Law

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

The accused primarily relied upon Gratton in arguing that unlawfulconfinement under s. 279(2) requires an element of physical constraintand that purely psychological constraint is insufficient. In that case,the accused had broken into the house where his ex-girlfriend and hertwo daughters lived, smashed the telephone and other objects, punchedseveral holes in the wall, and pointed a loaded shotgun at all threewhile demanding that they stay in the bedroom and answer his questions.He eventually calmed down and was later arrested and charged withunlawful 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 theCrown's case was overwhelming and the jury could not possibly havecome to any other conclusion. He cited the following definition ofunlawful 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 theword 'total', as there was no support for this requirement inthe language of s. 247(2). In applying it to the case at bar, hereasoned 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 confinementcould only be effected by physically binding someone, he neverthelessconcluded that physical restraint of the person was necessary. In thisregard, he concluded that holding someone at gunpoint physicallyrestrained him or her by depriving him or her of the ability to move athis or her own liberty.

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

In finding that it was not, Binnie J., writing for the Court, saidas 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 ampleevidence in the case for the jury to conclude that Pritchard hadunlawfully confined the victim prior to murdering her.

In E.B., there was no weapon involved but the case clearly involvedphysical restraint. The accused were the grandparents of the two victimsand had been charged with falling to provide the necessities of life andwith unlawful confinement. In reviewing the elements of unlawfulconfinement, Watt J., as he then was, noted as follows:

 The external circ*mstances 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 original]

On the facts, he found that the accused had repeatedly locked thevictims in their bedroom for extended periods of time. He thereforeconcluded 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 original.]

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

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

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

Against the backdrop of these cases, the Manitoba Court of Appealconsidered how to deal with a situation in which a child is threatenedwith unspecified harm should she leave the basem*nt, but at no time isshe physically confined to the basem*nt.

The Court of Appeal's Decision

Justice Monnin discussed the cases considered above. He referredspecifically to Binnie J.'s reasons in Pritchard, where he saidthat unlawful confinement would be established if the victim were"coercively restrained or directed contrary to her wishes, so thatshe could not move about according to her own inclination anddesire." (44) Justice Monnin also emphasised the decision of WattJ. in E.B., in which he reasoned that unlawful confinement involves"restricting the victim's liberty but not his or her abilityto escape. The restriction need not be to a particular place or involvetotal physical restraint." (45) On the basis of these cases heconcluded that actual physical or coercive restraint of the victim isrequired, but that it can be effected, depending on the circ*mstances,by psychological means. (46)

Justice Monnin clearly stated that the victim was not subject tophysical restraints in the form of bindings, and also that she was notphysically prevented from leaving the basem*nt. She was, however,regularly banished to the basem*nt and forbidden to leave, under threatfrom her abusive father. This, he argued, constituted physical restrainteffected by non-physical means--namely, fear and intimidation. Inreaching this conclusion, Monnin J.A. repeatedly emphasised that thevictim in this case was only rive years old. Agreeing with theCrown'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 convictionsfor first-degree murder. In doing so, he developed the law of unlawfulconfinement by applying the principles established in previous cases toa set of facts that were arguably different in principle from those thathad been considered before. In previous cases, unlawful confinement hadbeen round without the application of physical force, but it had been inthe context of an immediate threat of grievous bodily harm, demonstratedby a loaded gun. In this case, Monnin J.A. finds that a command to stayin a particular place, enforced by a threat of future harm should it bedisobeyed, is sufficient to constitute unlawful confinement. What maylimit the future application of this reasoning, however, is the rolethat the age and vulnerability of the particular victim played in thiscase. It is not clear that the same principle could be applied to amature adult who was not found to be under the psychological dominationof the accused.

The case is significant for two inter-related reasons. First, itapplies the established case law on the definition of unlawfulconfinement to a new set of facts. In many cases, the application of thelaw to novel facts will not be significant; indeed, most cases involvenovel facts in one way or another. But, in this case, the facts are suchthat to apply the law to them is to extend the law, thereby creating thedecision's second level of significance. In holding that the victimin Kematch was unlawfully confined within the meaning of the CriminalCode, Monnin J.A. necessarily develops the definition of unlawfulconfinement and the circ*mstances that can give rise to the charge. Asnoted, there are considerations in this case that may mean it isinterpreted narrowly in the future, but even this limited application isan extension from the previous state of the law, and the potential for amore far-reaching effect cannot be ignored.

Van Breda v. Village Resorts Limited

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

Introduction

In Van Breda v. Village Resorts Limited, (48) a unanimousfive-member panel of the Court of Appeal for Ontario reconsidered thetest for assumption of jurisdiction over foreign defendants that hadpreviously been set out in Muscutt v. Courcelles. (49) The Court refinedand simplified the analysis by creating a presumption of a necessary andsubstantial connection when certain conditions in Rule 17.02 of theRules of Civil Procedure (50) are met, and by reorganizing the list ofrelevant factors in terms of their relative importance. The judgmentactually addressed two separate appeals, but the discussion of the lawis the same for both and, for simplicity, this review will deal onlywith the facts of Van Breda. (51)

Facts

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

While at the resort, Van Breda decided to use a chin-up bar thatwas set up on the beach. When she did so, the apparatus collapsed, shefell to the ground, and it landed on top of her. Van Breda was renderedparaplegic as a result. The respondents commenced an action for personalinjury and punitive damages, among other things, against CRL. The motionjudge found that there was a real and substantial connection betweenOntario and the resort and that it could not be said, in relation toforum non conveniens, that Cuba was a clearly more appropriatejurisdiction. He therefore refused to dismiss or stay the action againstCRL.

Prior Case Law

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

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 anextra-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 andenforcement prevailing elsewhere. (52)

These factors were not intended to provide a strict formula, butrather to provide a list of relevant considerations that could beapplied flexibly to the facts of a given case. No one factor was to bedeterminative and all were to be weighed together. In Van Breda, theCourt noted that a number of developments subsequent to the Muscuttdecision made it appropriate to reconsider the issue of assumption ofjurisdiction, and potentially to revise the test. (53)

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

Second, there were significant developments in the jurisprudencesince Muscutt. These included two Supreme Court of Canada decisions (55)dealing with assumption of jurisdiction on the basis of damages sufferedand with the enforcement of foreign judgments, as well as considerationof Muscutt by appellate courts in other jurisdictions. While thedecision had generally been followed, the Court noted that it had notescaped criticism. (56)

Third, the Uniform Law Conference of Canada had developed a modelCourt Jurisdiction and Proceedings Transfer Act ("CJPTA")designed to establish uniform rules for all Canadian courts with regardto establishing jurisdiction over proceedings. The CJPTA had beenstatutorily adopted in Saskatchewan, Yukon, Nova Scotia and BritishColumbia. (57)

Fourth, the concept of "forum of necessity" had emergedas an independent doctrine allowing the assumption of jurisdiction, inthe absence of a real and substantial connection, where there was noother forum in which the plaintiff could reasonably seek relief. (58)And, finally, there was extensive academic consideration of the Muscuttdecision, providing assessments from experts in the field that the Courtheld could and should be taken into account. (59)

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

The Court of Appeal's Decision

Justice Sharpe, who wrote the decision in Muscutt, also wrote forthe Court in Van Breda. In re-assessing the previous decision, he took asignificantly different approach to the eight factors noted above. Thenew test is designed to make the decisions concerning the assumption ofjurisdiction both easier and more predictable, by providing guidance onthe relationship between the factors and their relative weight.

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

Justice Sharpe excluded Rule 17.02(h) from the presumptive effectfor two reasons. First, virtually all cases since Muscutt in which areal and substantial connection had not been found involved Subrule17.02(h), while very few cases involving other factors had been foundnot to give rise to such a connection. Second, the fact that s. 10 ofthe CJPTA does not include damages suffered within the jurisdiction inits presumptive list suggests that this was not a factor that had gainedwidespread acceptance. (63) He did not give presumptive effect toSubrule 17.02(o) because it also was not included in the CJPTA, andbecause the generous scope of Rule 5 concerning the joinder of partiesmeant that the fact that a foreign defendant is a necessary or properparty is not a reliable indicator of a real and substantial connection.(64)

Justice Sharpe was careful to specify that the factors in Rule17.02 create presumptions, not rigid requirements. It will remain opento the plaintiff to argue that there is a real and substantialconnection even if the case does not fall under one of the categories,and it will similarly be open to the defendant to rebut the presumptioncreated by one of the factors and argue that there is no such connectionin the particular case. (65)

The second key change Van Breda makes to the Muscutt approach is toreorganise and prioritise the eight factors that were at the centre ofthe previous test. The first two considerations, the connection betweenthe forum and the plaintiff's claire and the connection between theforum and the defendant, are collapsed into one and made the guidingprinciple of the test. (66) The core analysis now concerns theconnection between forum, the plaintiff's claire, and thedefendant, with the other factors serving as analytical tools to assistthe court in determining this issue. The consideration of theplaintiff's claim remains the same as under Muscutt. Considerationof the defendant's connection focuses on things done by thedefendant 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 thirdand fourth into a single fairness inquiry, considering both theplaintiff and defendant at the same time. Again, this fairnessconsideration is not freestanding, but rather is a tool to assist indetermining the core issue of connection outlined above. (68)Specifically, unfairness to the plaintiff is not an independent factorcapable of overcoming a lack of real and substantial connection; such asituation might fall within the scope of the doctrine of "forum ofnecessity" that has emerged since Muscutt was decided. Inexceptional cases, the need to ensure access to justice will justify theassumption of jurisdiction, even where no real and substantialconnection exists. Justice Sharpe specified, however, that this shouldbe 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 torecognise and enforce an extraprovincial judgment rendered on the samebasis, is also no longer an independent consideration. It is, rather, ageneral 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, andcomity and the standards of jurisdiction prevailing elsewhere, remainrelevant considerations, but only to the assessment of the core issue.Each is now only to be used as a tool to assist in determining thedegree of connection between the forum, the plaintiff's claim, andthe defendant, and not as an independent indicator of a real andsubstantial connection. (71)

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

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

The Court in Van Breda revises the test for assumption ofjurisdiction over foreign defendants by Ontario courts, from both atheoretical and practical perspective. On the theoretical side, theinquiry is refocused on the first factor under Muscutt: the connectionbetween forum, the plaintiff's claim, and the defendant. The otherfactors now serve as analytical tools to assist the court in determiningthis issue, rather than as freestanding considerations. From a practicalperspective, the creation of presumptions based on the Rules, and theconsolidation of several of the Muscutt factors, should make decisionsconcerning the assumption of jurisdiction both easier and morepredictable.

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

Victoria (City) v. Adams

Leave to appeal from this decision has not been sought.

Introduction

In Victoria (City) v. Adams, (73) the Court of Appeal for BritishColumbia considered the constitutionality of bylaws enacted by the Cityof Victoria that prohibited the erection of temporary shelters in publicplaces. 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 apublic park in Victoria (the "City"). Relying on its ParksRegulation Bylaw and its Streets and Traffic Bylaw (the"Bylaws"), the City sought an injunction to remove the tentcity from the park. The injunction was granted and the tent city wascleared on October 28, 2005. In 2007, the City applied for a permanentinjunction and sought a declaration that the respondents' use ofthe park contravened the Bylaws in various ways. After severalprocedural issues were resolved, the case eventually went to trial andthe constitutional arguments were restricted to ss. 7 and 12 of theCharter, though the trial judge found it necessary to deal only with s.7.

The Bylaws prohibited the erection of temporary shelters, which inpractice 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 protectingthemselves while they did so. Individual non-structural covers that wereremoved once the person was awake did not breach the Bylaws. The narrowconstitutional 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 circ*mstances ofhomeless people in Victoria and expert evidence on the effects ofhomelessness on the physical and mental health of homeless people,including the health risks of sleeping outdoors. She made severalfindings of fact, including that (1) hundreds of homeless people in theCity have no option but to sleep outside as there are not enough shelterspaces to accommodate them; (2) the Bylaws do not prohibit sleeping inpublic spaces, only the erecting of any form of overhead protection,even on a temporary basis; (3) exposure to the elements without adequateprotection is associated with significant health risks, includinghypothermia; and (4) some form of overhead protection is part of what isnecessary for adequate protection from the elements.

On the basis of these factual findings, the trial judge held thatthere was a serious risk of harm to the health of the homeless, and thatthis harm stemmed from the state action in prohibiting temporaryshelters. This violated the s. 7 rights of homeless people and was notin accordance with the principles of fundamental justice because theBylaws were overbroad and arbitrary. Finally, the Bylaws could not besaved under s. 1 because, while the preservation of parks was animportant objective and the Bylaws were rationally connected to it, theywere not minimally impairing and the deleterious effects outweighed thesalutary ones.

The Court of Appeal's Decision

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

(a) Did the trial judge err in finding that the Bylaw provisions inquestion 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 theperson?

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

(b) Did the trial judge err by failing to hold that the Bylaws aresaved by s. 1 as they are a reasonable limit that is demonstrablyjustified 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 engages. 7, the Court of Appeal upheld the trial judge's conclusion thatthere was. Citing the Supreme Court of Canada in Blencoe v. BritishColumbia (Human Rights Commission), (76) and Gosselin v. Quebec (AG),(77) the Court noted that s. 7 has been interpreted to extend beyond thesphere of criminal law to encompass any state action that directlyengages the justice system and its administration, which refers to thestate's conduct in enforcing and securing compliance with the law.(78) The Bylaws prohibited certain conduct and provided sanctions fortheir breach. The Court therefore concluded that they constituted stateaction that directly engaged the justice system and were sufficient tofall within the scope of s. 7. (79) With respect to whether the stateaction so found was the cause of the deprivation, the Court again upheldthe trial judge's conclusion that it was. The City argued that therequirement that the deprivation be caused by state action was not metin this case because the Bylaws were not the cause of therespondents' state of homelessness and insecurity. It maintainedthat s. 7 is not engaged when the result of the state action is merelythat the claimant remains in a state of insecurity. To support thisposition, the City relied on the comments of Bastarache J. in Gosselinthat the state action must "in and of itself" deprive theclaimant of his or her s. 7 rights. (80)

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

The Court next considered whether the order below granted apositive right to the respondents. The City argued that because theorder was based on the lack of adequate shelter beds, it effectivelygranted a right to adequate alternatives to sleeping in public spaces,by imposing on the city an obligation either to provide shelter spacesor to make parks and other public spaces available for camping. (85) TheCourt rejected this argument on the basis that, while the factualfinding of insufficient shelter spaces was key to the analysis, thefinding did not turn the respondents' claire, or the trialjudge's order, into a claim or right to shelter. The Court heldthat the decision below did not impose positive obligations on the Cityto provide adequate alternative shelter, nor to take "any positivesteps to address the issue of homelessness". (86) While somepositive action by the City, such as the regulation of overnight use ofpublic parks, would likely be necessary as a practical matter, thedecision only required the City to refrain from legislating in such away as to breach the s. 7 rights of the homeless. (87) The Court statedthat the kind of responsive action that would likely be necessary is afeature of all Charter cases and not one that involves the court inadjudicating positive rights.

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

The Court then considered whether the Bylaws constituted aninterference with the life, liberty, or security of the respondents, andconcluded that they interfered with all three. With respect to life andsecurity of the person, the Court relied on two key and uncontestedfactual findings of the trial judge: Homeless people in Victoria mustsleep in public places because of the lack of adequate alternativeshelter; and there are serious health risks from sleeping outsidewithout overhead shelter. Combined, these facts entailed that the Bylawprohibiting the erection of temporary shelters violated the s. 7guarantees of life and security of the person. (89)

With respect to the respondents' liberty interests, the Courtrejected the argument that the trial judge's analysis wasinconsistent because she found that homeless people had no choice but tosleep outside, and also that the creation of temporary shelter is afundamental personal choice falling within the scope of s. 7. The Courtreferred 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 useof marijuana to treat epilepsy was a serious intrusion into afundamental personal choice and fell within the scope of s. 7. (91)Based on this decision, the Court concluded that, like those sufferingfrom illness, the situation in which homeless people in Victoria foundthemselves was not one of their choosing, but, like the choice oftreatment in Parker, that did not mean that their decision respectingshelter was not one of fundamental personal importance. (92)

Under the remaining ground of appeal under s. 7, the principles offundamental justice, the Court considered both overbreadth andarbitrariness. The City argued that the trial judge erred in applyingthe 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 Rv. Clay, (94) requiring "gross disproportionality" between themeans chosen and the objective. (95) The Court rejected the City'sargument, agreeing with the respondents that the Supreme Court returnedto the Heywood test for overbreadth in R. v. Demers. (96,97) The Courtalso found no error in the trial judge's application of theprinciple to this case, concluding that there were a number of otherless restrictive alternatives open to the City to achieve its goal ofpreserving urban parks, including requiring shelters to be taken downeach morning or prohibiting sleeping in certain sensitive park areas.(98)

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

Section 1

Turning to the section 1 analysis, the Court considered the fourfactors set out in R. v. Oakes (104): (1) a sufficiently importantlegislative objective; (2) a rational connection between the impugnedprovisions and the objective; (3) minimal impairment of the right orfreedom in question; and (4) proportionality between the deleteriouseffects of the limitation and its purpose. (105) The Court concludedthat neither the third nor fourth factor was satisfied in this case. Theprohibition went further than was necessary to achieve the legislativegoal of the preservation of parks and was therefore not minimallyimpairing. Moreover, the serious health risks faced by homeless peopleas a result of the ban were not outweighed by the Bylaws' salutaryeffects. (106)

Remedy

The remaining ground of appeal concerned the remedy ordered by thetrial judge. She applied s. 52(1) of the Constitution and declared theimpugned portions of the Bylaws of no force or effect. The appellantsargued that this was an error as what was really at issue was not theBylaws themselves but rather their application to certain individuals.Thus, the City argued that the Court should address the situation on acase-by-case basis, if and when someone was prosecuted, and grantconstitutional exemptions where appropriate. (107) This would be doneunder 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 differencebetween 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 Canadaconcluded that, where laws are found to be inconsistent with theCharter, it is not appropriate to allow them to stand subject todiscretionary case-by-case remedies under s. 24(1). The uncertainty andunpredictability resulting from such an approach would pose a seriouschallenge to the rule of law. (110)

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

The Court agreed with the City, however, that the trial judge erredin striking down all the impugned Bylaws. Citing Lamer C.J.C. inSchachter v. Canada, (112) the Court noted that it is not appropriate tostrike down portions of legislation which are neither themselvesunconstitutional nor intimately connected to portions that are. (113) Inorder to realize as much of the legislative intention as possible, onlyss. 14(1)(d) and 16(1) of the Parks Regulation Bylaw needed to bedeclared invalid. (114) Given the peculiar nature of the finding and thepotential that the Parks Regulation Bylaw may survive constitutionalscrutiny should the situation in Victoria change with respect to theavailability of shelter, the Court stated that the City may apply to theSuperior Court for a termination of the declaration if it coulddemonstrate that the circ*mstances that made the Parks Regulation Bylawunconstitutional have ceased to exist. (115)

This case falls squarely within our first category of"significance"--cases that change the law by overturningestablished precedents or finding statutory provisions unconstitutional.What is particularly interesting about the decision, however, is thereasoning employed by the Court and the conclusions it reaches as aresult. In finding a bylaw that prohibits the erection of temporaryshelter unconstitutional, the Court develops the approach to determiningwhether the requisite connection exists between the state action and theinfringement. Moreover, the bylaw is not found to be unconstitutional inand of itself, but rather only in conjunction with the fact of aninsufficient number of shelter spaces in the City. Because of thiscirc*mstance-dependent holding, the Court concludes that the City mayseek to have the declaration of invalidity terminated in the future ifit can show that the facts on the ground have changed. Thus, not only isthe decision significant because it strikes down a law, but also becauseboth the reasoning adopted by the Court and the remedy it fashions arenovel.

IV CONCLUSION

This article has provided readers with an introduction to theYear-in-Review project by explaining its scope, methodology, and goals.In particular, it was the authors' intention to show that the newonline database is a tool that will be useful and interesting to allmembers of the legal community, from students to academics topractitioners. With each passing year, the body of case law covered bythe project, and made available online, will grow, making it anincreasingly useful tool for tracking jurisprudential developmentsacross the country. While the case summaries in the previous sectionwere intended to be an in-depth review of the decisions, those in thedatabase are focused and succinct. It is hoped that they strike theright balance between informing the reader about the key issue or issuesin a case, while remaining useful as an overview for those trying todetermine whether or not a case is of interest to them. We invite you tovisit the website and search the database, and we hope you find it to bea useful tool.

(1) "Year in Review: Developments in Canadian Law in2008" (2009) 67(2) U.T. Fac. L. Rev. 359.

(2) The scope of the project therefore includes the Federal Courtof Appeal, the Court of Appeal for British Columbia, the Court of Appealof Alberta, the Manitoba Court of Appeal, the Court of Appeal forOntario, the Supreme Court of Newfoundland and Labrador (Court ofAppeal), the Court of Appeal of New Brunswick, the Nova Scotia Court ofAppeal, the Prince Edward Island Court of Appeal, the Court of Appealfor 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'sAppellate Courts" (2009) 47 Osgoode Hall L.J. 131 at 145.

(4) In criminal cases dealing with indictable offences, the accusedand 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, theright 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 dealwith 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 (http://www.thecourt.ca/).

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

(11) Canadian Charter of Rights and Freedoms, Part 1 of theConstitution 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 MiningCorp., 2009 BCCA 385, 310 D.L.R. (4th) 634, 76 C.P.C. (6th) 254; VanBreda 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 RetirementSystem, 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, 76C.P.C. (6th) 204.

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

(20) Workers' Compensation Board z: British Columbia (HumanRights 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, 2010ONCA 87, 315 D.L.R. (4th) 632, 98 O.R. (3d) 561; College of Opticians ofBritish 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, "TheDissenting Decision: Voice of the Future" (2000) 38 Osgoode HallL.J. 495. See also W.J. Brennan Jr., "In Defense of Dissents"(Mather O. Tobriner Memorial Lecture) in H. Clark, Justice Brennan. TheGreat 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[ (LaskinC.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, 477A.R. 292.

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

(31) See Cameron Stracher, "Reading, Writing, and Citing: inPraise of Law Reviews" (2007) NYL Sch. L. Rev. 52 at 349; JamesLindgren, "Student Editing: Using Education To Move BeyondStruggle" (1994) 70 chi.-Kent L.Rev. 95 at 97; Roger C. Cramton,"'The Most Remarkable Institution': The American LawReview" (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), 53C.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 ONCA84.

(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, setout the circ*mstances 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.

MATTHEW LAW AND JEREMY OPOLSKY **

* The authors would like to thank all the students who worked onthe Year-in-Review project; however, special thanks are due to AbtinAminzadeh Dezfuli, Alysson Whitlam, Brauna Doidge, Cameron Funnell, EricZadro, Julia Wilkes, Padraic Ryan, Rosita Lee and Sinziana RuxandraTugulea, whose help and support as the project's Articles Editorswere crucial to its success.

** Matthew Law and Jeremy Opolsky were both third-year students atthe University of Toronto Faculty of Law at the time of this writing.