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

• Author: Law, Matthew

Abstract

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.

Resume

Cet article sert d'introduction au projet > 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 >, 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.

I ORIGINS AND DEVELOPMENT II SCOPE, SIGNIFICANCE, AND USES Scope Significance Goals and Audience III 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 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.

II SCOPE, SIGNIFICANCE, AND USES

Scope

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.

Significance

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...