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Even More Desktop Content for LSM Members

If you’re a member of the Law Society of Manitoba, there is now even more content available for you behind the Member’s Portal. Under “Library Resources”, in addition to Heinonline.org, and Rangefindr.ca, we’ve added full Irwin Law collection, including the series, “Essentials of Canadian Law“.

Now you can have seamless access to authoritative secondary sources no matter where you live. However, you will have to remember your LSM username and password.

If you have any trouble accessing the site, please contact us at the Great Library.

 

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Legislative Update – New Proclamations

The Government of Manitoba has issued the following proclamations:

The Legislative Security Act (whole act),  S.M. 2017, c. 17. In force effective October 7, 2017.

This Act deals with security in the legislative precinct, which is the area that covers the Legislative Building and the grounds around the Legislative Building.

The Speaker of the Assembly has ultimate responsibility for security for the Legislative Assembly. The Speaker and the Minister of Justice are to enter into an arrangement respecting the provision of security in the legislative precinct. This arrangement must establish a process for selecting a director of legislative security. The director of legislative security is responsible for providing direction to legislative security officers who will provide security services in the legislative precinct.

Security officers may screen people entering the Legislative Building for weapons. A person who is not authorized to possess a weapon in the Legislative Building may be denied entry and have their weapon seized. Security officers may evict a person from the legislative precinct if the person engages in conduct that threatens safety in the legislative precinct or interferes with the operation of the Assembly.

Amendments are made to The Drivers and Vehicles Act to authorize the Registrar of Motor Vehicles to disclose certain vehicle licensing records to a legislative security officer.

A consequential amendment is made to The Legislative Assembly Management Commission Act.

The Fatality Inquiries Amendment Act (whole act), S.M. 2017, c. 15. In force effective November 1, 2017.

The Fatality Inquiries Act requires the reporting of sudden or unexpected deaths and deaths that occur in specified circumstances. An inquiry must be conducted into all reported deaths. A medical examiner must conduct an investigation into a death if the inquiry raises questions about the manner or cause of death. The chief medical examiner may arrange for a judicial inquest to be held to examine the circumstances of a death and make recommendations to prevent deaths in the future.

Inquiries and investigations

This Act clarifies the roles of investigators and medical examiners; specifies who has responsibility for taking control of a  body that is the subject of an inquiry; and authorizes inquiries into deaths of Manitoba residents that occur outside Manitoba.

Inquests

Amendments in this Act clarify when an inquest into a death is to be held. An inquest must be held if a person died as the result of the use of force by a peace officer. There is a presumption that an inquest is to be held if a person dies while in custody or while residing in specified provincial facilities. However, an inquest is not required in such cases if the death was due to natural causes and was not preventable or if there was no connection between the death and the supervision or care provided to the deceased. The chief medical examiner is not required to arrange for an inquest in specified situations.

The manner in which an inquest is called is updated. The amendments clarify the roles of the judge presiding at an inquest and counsel for the inquest. The ability of the Minister of Justice to call an inquest or have an active role in relation to matters under the Act is removed.

Act updated

Several provisions are rewritten or reorganized to improve readability. Outdated provisions are repealed. Consequential amendments are made to The Vital Statistics Act.

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Call for Comments: Updating the Administration of Small Estates

On September 7, 2017, the Manitoba Law Reform Commission released a consultation report on Updating the Administration of Small Estates in Manitoba. The Commission would like to hear your thoughts and comments on this report.

Please submit your comments in writing by email, fax or regular mail to:

The Manitoba Law Reform Commission
Phone: (204) 945-2896 | Fax: (204) 948-2184
432-405 Broadway
Winnipeg, Manitoba R3C 3L6
Email: mail@manitobalawreform.ca

Deadline: October 30, 2017.

 

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MBCA on Privacy vs Child Protection

The Manitoba Court of Appeal recently ruled on the right of a child protection agency to request the personal information associated with a subscriber to an IP address.

Child and Family All Nations Coordinated Response Network (ANCR) was contacted by the Winnipeg Police Service (WPS) in February, 2016 who were in turn, informed by Interpol that a convicted sex offender in the United Kingdom may have had contact with someone they believed to be a child in 2012. ANCR asked Shaw Communications to identify the owner of the IP address. Shaw refused without a court order.

The application was first taken up with a Master, who did not have jurisdiction to hear an application as opposed to a motion, and then it went to a judge, who dismissed it, concluding that she did not have the jurisdiction to make the order either.

This decision is significant for its analysis of the interpretation of a statute.

[18] ANCR brought its application pursuant to the QB Rules for a determination of rights based upon the interpretation of the CFS Act and regulations. Rule 14.05(2)(c)(iv) of the QB Rules allows for the determination of rights that depend on the interpretation of any document referred to in the rule, in this case, a statute. The rule does not create jurisdiction, but provides a means to determine the nature and extent, if any,
of jurisdiction that already exists.

Steel, J.A. dismissed the application based on the documentation and evidence, while noting that the child protection agency did indeed have the jurisdiction to make such a request. Also of significance are Beard, J.A.’s concurring reasons.

ANCR v. Shaw Communications Inc. , 2017 MBCA 92

 

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A Sign of the Times

[Guest post by Karen Dyck, Executive Director of the Manitoba Law Foundation. Previously published on Slaw.ca.]

A new Practice Direction from Manitoba’s Court of Queen’s Bench reflects increasing acceptance of the fact that litigants without lawyers are no longer an anomaly in civil litigation. The notice sets out that contested motions and applications involving at least one self-representing litigant must be set for a case management conference before a contested hearing takes place. This is already the norm for contested motions in the Family Division of the Court of Queen’s Bench, regardless whether there is a self-represented party, but is new in the Civil Division.

Other than the procedural change, two specific aspects of the Practice Direction stand out:

  1. The rationale for the change in practice is stated as being “To reflect the obligation of a judge to ensure that a self-represented litigant has the opportunity to meaningfully participate in the hearing and has a reasonable opportunity to present his or her case to the best of his or her ability.”
  2. In addition to ensuring that the matter is ready to proceed to a contested hearing, the case management judge is specifically tasked “…to explain the process and to otherwise advise the self-represented litigant what may be expected.”

While the obligation on the judge isn’t new, this statement makes clear the importance of ensuring that litigants without lawyers are able to meaningfully participate in the legal action, whether as plaintiffs or respondents, and further that they have the opportunity to present their position and evidence to the best of their individual ability. This acknowledges both their right to be in the courtroom, representing themselves, as well as the fact that each self-representing litigant comes to the courtroom with varying degrees of ability to present their case.

One effect of this Direction will be to ease the burden on all involved. By placing the responsibility upon the case management judge for explaining the process and otherwise advising the self-represented litigant on what to expect, the hearing judge will be supported in balancing “… the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality.” (Child and Family Services of Winnipeg v. J.A. et al., 2004 MBCA 184 at para. 32). This also has the effect of making clear that it is not the responsibility of the lawyer opposite a self-representing litigant to explain the process to the opposing party. And finally, it creates a “safe space” for the self-representing litigant to inform themselves on process and ask questions about what is expected of them in a contested hearing.

While adding another step in the process may in some cases increase costs, if used effectively, these conferences may result in fewer requests for adjournment, more efficient contested hearings and more effective advocacy on the part of the self-representing litigant. That seems like a win-win result all around.