Fair Use/Fair Dealings Week Feb 26-Mar 2

A logo with an interlocking circle on the left and text on the right in two shades of blue that says "Fair Dealing Week".

Next week is Fair Use/Fair Dealings Week, a week to inform, educate, and celebrate the concepts of Fair Use (United States) and Fair Dealings (Canada) as well as in other countries.

As described by fairuseweek.org,

Fair use and fair dealing are essential limitations and exceptions to copyright, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. Fair use and fair dealing are flexible doctrines, allowing copyright to adapt to new technologies. These doctrines facilitate balance in copyright law, promoting further progress and accommodating freedom of speech and expression.

As copyright, fair dealing, and education are some of the core values of Canadian libraries, the Great Library hopes this can be a week to help inform users about fair dealing and how it intersects with clients, and promote a better understanding of copyright law and intellectual property as well. The issue has been litigated in Federal Court as recently as last July, between York University and Access Copyright, the collective which collects royalties on behalf of its authors.

Next week we will be putting up a display in the library, as well as including e-resources that members of the Law Society can access online. Stay tuned!

 

BCSC on Prepaid Cards

A recent decision out of British Columbia drew attention to a novel situation: are prepaid cash cards issued by a financial institution deposit accounts?

All Trans Financial Services Credit Union Limited sold prepaid Visa and Mastercards to customers, who could then use the payment cards wherever Visa and Mastercard were accepted. When the Financial Institutions Commission (FIC) investigated, they determined that this was an unauthorized deposit business, contrary to s.81 of the Financial Institutions Act. The FIC  ordered All Trans to cease selling these prepaid cards within 30 days of the release of the order. All Trans appealed to the BCSC, where the order was overturned.

This decision is currently under appeal. As noted in commentary by Robert Dawkins and D. Ross McGowan of Borden Ladner Gervais: Prepaid Cards: Deposit Accounts? Or Something Else?

…  The decision on appeal may have a significant impact on financial institutions seeking to use creative FinTech approaches to expand their reach and service offerings, as well as FinTech start-ups.  Careful consideration to program design is critical to ensure that issuers and program managers structure their card products to meet the regulatory needs for their specific goals.

Other commentary:

Deposit Accounts – Payment Cards (The Lawyers Daily)

 

Notice to the Profession

The Manitoba Court of Queen’s Bench has issued a notice of amendments to the QB Rules which will come into force on April 1,  2018:

RE: AMENDMENTS TO COURT OF QUEEN’S BENCH RULES

The following amendments regarding service, proof of service and default in cases involving the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention) will come into force on April 1, 2018.

The objectives of the amendments are to clarify the Rules respecting service (including substituted service, dispensation with service and validation and proof of service) and noting default, and granting and setting aside of default judgment, in cases where service is required under the Hague Service Convention.

The full text of these Rule amendments (M.R. No. 11/2018) can be viewed here.

Case Summary – Homestead Rights

[3] …  Do joint tenants who are spouses have homestead rights?  At what point can a homestead cease being a homestead?  Do homestead rights continue after the untimely death of one of the spouses even though the spouses were separated and had engaged in a course of dealing sufficient to make it clear that they intended their property to be divided equally?

These are the issues defined by Dunlop, J. in Siwak v. Siwak, 2018 MBQB 9. The parties were married and had purchased a home in joint tenancy. They were separated and in the middle of dividing their assets when Mrs. Siwak died. A previous decision (2016 MBQB 61) had severed the property into a tenancy in common. Mrs. Siwak’s estate is seeking partition and sale of the property in order to distribute the assets to her beneficiaries. Mr. Siwak claims he has established an estate for life flowing from his initial homestead rights.

[28]      Even though Mr. Siwak and Mrs. Siwak lived separate and apart for almost one year and nine months before Mrs. Siwak died and despite the fact that they engaged in a course of dealing sufficient to sever the joint tenancy, it is clear that on a strict reading of the Act, Mr. Siwak had homestead rights at the time of Mrs. Siwak’s passing.  One of the primary goals of homestead legislation is to provide a surviving spouse with a life estate in a homestead.  Upon the death of Mrs. Siwak, Mr. Siwak realized a life estate in the property.

 

Manitoba eLaw – New Edition – Criminal Law

The February 2018 edition, Update No. 86, has just been released.

In This Issue

  • Indeterminate Sentences Constitutional: SCC
  • Ensuring Juries are Properly Instructed: MBCA
  • Photo Lineup Identification Evidence: MBCA
  • Role of Exceptional Circumstances in Sentencing “Limited and Rare”: MBCA
  • 45 Months’ Delay Unreasonable: MBQB
  • Recent Sentencing Decisions
  • Provincial Court Notice and Form
  • Recommended Reading
  • Criminal Justice Conference: CBA