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A round-up of the Canadian Bar Review

Here’s a quick peek at the latest from legal scholarship on emerging issues in law.

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Vicarious liability: Should Quebec embrace the common law approach?

Nikolas De Stefano of McGill University takes a comparative look at vicarious liability, in the employment context, in Canadian common law and Quebec’s civil law traditions. According to his findings, the law of vicarious liability for intentional and criminal wrongdoing in Quebec aims to address the same policy concerns as the vicarious liability regime in place elsewhere in Canada, which is more risk-based. But the author argues that the latter approach in defining the scope of a wrongdoer’s employment is more effective in fairly allocating liability and in ensuring deterrence:

Quebec’s approach, which reflects a jurisprudential trend which started in 1920 in Curley and culminated with the 1998 judgment in Le Havre, however, is notable for its conspicuous absence of overt policy discussion.

As a result of the test typically employed in Quebec, courts have had difficulty responding to certain forms of intentional wrongdoing in a meaningful and principled manner. Therefore, the policy concerns of deterrence and fairness—which underscore vicarious liability—are underserved by Quebec’s law. In addition, the difficulties in applying a strict “benefit of the employer” test in cases of intentional torts have resulted in confusing and unpredictable constructions of what constitutes a benefit as well as certain liability blind spots.

De Stefano notes a minor trend in Quebec where some courts “have explicitly endorsed” Supreme Court of Canada’s 1999 ruling in Bazley, hoping that a “change may already be—albeit incrementally—underway.”

Innocence compensation

How successful are plaintiffs who bring actions for negligent investigation against police officers who have accused them of a crime? Surprisingly, they have a better than one in four chance, according to Myles Frederick McLellan, of Algoma University. McLellan reminds us that the law does require perfection from police in conducting their investigations — only that they act reasonably. And yet, “[n]otwithstanding the generous operation of the standard of care that favours the police in many judicial decisions, the qualitative analysis shows that this tort can be proven with evidence that shows a simple mistake,” he writes.

Intoxication: Defining incapacity to consent

In her latest article, Elaine Craig of the Schulich School of Law examines how the law of sexual assault in Canada addresses cases involving intoxicated complainants. A review of the caselaw, she concludes, reveals that the evidentiary threshold to establish incapacity is too high. What’s more, the legal standard to which that evidence is applied is too low:

A trial judge’s task in a case involving an intoxicated complainant is unenviable and made harder by the lack of guidance courts have received from Parliament. Toxicology evidence is often unavailable or inconclusive. The legal precedents by which they are bound articulate a legal standard which encourages judges to rely on unconsciousness as the evidentiary proxy. But the failure to find that severely intoxicated women—women who cannot walk properly, who have vomited on themselves, or are confused as to their whereabouts and what happened—lack capacity may also stem in part from a refusal to recognize that engaging in sex with someone in this condition is sufficiently reprehensible such that it should be criminally prohibited.

Because courts are unlikely to find that a complainant lacked capacity to consent unless she was unconscious during the sexual activity, Craig argues in favour of providing trial judges with a more demanding legal standard so that they give “more weight to evidence of severe intoxication short of unconsciousness.”

Lessons in unjust enrichment

The recent Supreme Court of Canada ruling in Moore v Sweet has reshaped the modern Canadian law of unjust enrichment and restitution for the better, writes John D. McCamus of Osgoode Hall. The case turned on whether a woman should be enriched by the proceeds of the life insurance policy of her deceased spouse at the expense of his previous ex, who continued paying the policy premium, unaware that she had been replaced as beneficiary. McCamus mostly praises the decision and draws several lessons from it, most notably that “Justice Coté, for the majority, reaffirmed the generally accepted view that where the existing law —the existing categories of relief —are applicable, they should be applied, but that the general principle can be relied upon to “develop [the law] in a flexible way as required to meet changing perceptions of justice.”

Judicial independence a judge’s place of residence

A provincial law requiring executive consent to transfer a judge from one judicial district to another is unconstitutional. That’s the conclusion reached by John P. McEvoy and John C. Kleefeld of the University of New Brunswick who examine judicial independence in the context of “place of residence” – and more specifically the province’s Judicature Act. Judicial residence, the authors explain, is where a judge resides as opposed where she may sit on occasion by assignment, and that can complicate matters from a judicial independence perspective, particularly when a judge is transferred from one judicial district to another. Only Quebec and NB require the consent of both the chief justice and the provincial executive concerning judicial transfers.

Le partage des compétences en temps de cris sanitaire

Même si certains considèrent le fédéralisme et son partage des compétences comme étant un modèle inefficace pour gérer une crise comme la pandémie actuelle, David Robitaille de l’Université d’Ottawa conclut que le fédéralisme canadien semble « favoriser une décentralisation harmonieuse et un juste équilibre entre des compétences fédérales et provinciales, dans l’intérêt du bien commun des citoyens. En effets, les principes du fédéralisme continuent de s’appliquer en période d’urgence sanitaire. Mais la COVID-19 a soulevé de nouvelles questions quant à savoir quel ordre ou les deux peuvent légiférer et réglementer sur des questions telles que la quarantaine et les frontières interprovinciales. Dans son analyse, Robitaille explore les arguments qui pourraient être soutenus au soutien des compétences fédérales et provinciales. Il s’intéresse aussi au pouvoir fédéral d’adopter des lois en temps de crise qui pourrait écarter temporairement ce partage des compétences.