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Upcoming CPD: Your Legal Research Toolkit: How the Manitoba Law Library Can Help September 24, 2020 12:00 noon – 1:00 p.m. (webinar) Details and Registration
Court Notices & Practice Directions
State of Emergency and Public Health Orders All COVID-19 Notices and Practice Directions are available here.
Commissions of Inquiry by Stephen Goudge & Heather MacIvor, “Co-authored by the former Commissioner of the Public Inquiry into Pediatric Forensic Pathology, this book explores the powers and procedures of federal and provincial Commissions of Inquiry and their impact on our daily lives.”
Legal and Legislative Drafting – 2nd ed. by J. Paul Salembier, “This title tackles the challenge of drafting complex legal and legislative documents. This book goes far beyond simply discussing the principles; it provides readers with a step-by-step guide that helps them put those principles into action.”
The Canadian Law of Mortgages – 3rdEdition by Joseph E. Roach, “The third edition of this book, cited numerous times by the court in every major Canadian jurisdiction, fully updates you on the law of mortgages in Canadian common law jurisdictions. Author Joseph Roach delves into problems and questions that real estate practitioners tackle on a daily basis.”
Substantive Law
Administrative Law
Ewanek v. Winnipeg (City of) et al., 2020 MBQB 98: Application for judicial review of a decision of the City of Winnipeg Appeal Committee concerning a zoning variance. The property to be rezoned is next door to the applicant. Appeal Committee had previously turned down the application in 2017. Appeal provision for this committee is on a question of law. Standard of review will be correctness. Other issues raised are reviewed under reasonableness. Application dismissed.
Katherine Hardie. Deference after the Trilogy: What is the Impact of a “Culture of Justification”? 33 Can. J. Admin. L & Prac. 145. (WLNC – request a copy).
This article looks at the meaning of the reasonableness standard post-trilogy and, in particular, the differences between the majority’s approach and that of the minority, as well as the impact of a “culture of justification” on the reasonableness standard.
Civil Litigation
Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19: Appeal of certification for class action on the basis of whether the plaintiffs` claims disclose a reasonable cause of action. Plaintiffs are relying on waiver of tort, breach of contract and unjust enrichment, seeking a gains-based award. Plaintiffs claim that VLTs are inherently dangerous and deceptive. NLSC and NLCA both certified the action; SCC allowed the appeal.
From the headnotes:
Held (Wagner C.J. and Karakatsanis, Martin and Kasirer JJ. dissenting in part): The appeals should be allowed, the certification order set aside and the plaintiffs’ statement of claim struck in its entirety.Per Abella, Moldaver, Côté, Brown and Rowe JJ. : Each claim that the plaintiffs have pleaded is bound to fail because it discloses no reasonable cause of action.
Salt Canada Inc. v. Baker, 2020 FCA 127: Appeal of a judgment from the Federal Court for an order directing the Commissioner of Patents to vary the records to reflect a new owner of a particular patent. FCC stated it did not have jurisdiction, believing this to be an issue of contractual interpretation; FCA disagreed. Analysis of s.52 of the Patent Act as well as comparisons to other statutes.
The Rural Municipality of MacDonald v. Zettler et al., 2020 MBQB 108: Motion by plaintiff for summary judgment granting relief with a permanent injunction against the defendants. Long history of litigation between the parties concerning use of property as a landscaping business. Includes analysis of s. 180 of The Planning Act. Also includes an order re remediation of the property. Summary judgment granted.
Buhr v. Buhr, 2020 MBQB 107: Motion to dismiss action due to delay. Events occurred in July 2010, statement of claim was filed in 2012, examinations for discovery began and ended in September 2016. Defendants submit action must be dismissed pursuant to Queen’s Bench Rule 24.02(1) (long delay rule) or 24.01(1) (presumption of significant prejudice). Bock, J. provides analysis under both circumstances in dismissing the plaintiff’s action.
Fougere v. Rural Municipality of Lac du Bonnet et al., 2020 MBQB 102: Action seeking financial compensation over sale of property in a tax sale proceedings. Two actions combined by consent: action against the RM and action against the lawyer acting on her behalf. Both actions dismissed.
Ladco Company Limited v. The City of Winnipeg, 2020 MBQB 101: Applications for judicial review of City of Winnipeg’s Impact Fee By-law (127/2016) and a related resolution. Issues: Are the by-law and resolution ultra vires; whether the by-law creates an indirect tax or whether it imposes a fee. Starting point for analysis of standard of review is reasonableness. Significant analysis of the difference between an indirect tax and a regulatory fee. Edmond, J. finds for the applicants.
Bibeau et al. v. Chartier et al.,2020 MBQB 100: Request to reconsider a decision. Extraordinary circumstances must be present as set out in Abraham v. Wingate Properties Ltd., (1985 MBCA). Motion to reconsider dismissed.
Jones v. Roller, 2020 MBQB 97: Action in defamation. This is a motion to seeking further portions of the Statement of Claim struck. Some portions struck; plaintiff is given 20 days to provide additional particulars in other areas.
Silpit Industries Co. Ltd. v. Rady et al., 2020 MBQB 96: Appeal by applicant of arbitration award. Parties have right of appeal on question of law alone. Issue is over legal fees that were added into the award. Both parties referred to SCC decision of Teal Cedar Products Ltd. v. British Columbia. Application dismissed.
Jerred Kiss. The Newest Member of the Family: A Comment on Leitch v. Novac. (2020) 64 C.C.L.T. (4th) 297 (WLNC – request a copy). The economic torts are in a “state of flux.”1 While the Supreme Court of Canada brought much needed clarity to the unlawful means tort in Bram Enterprises Ltd. v. A.I. Enterprises Ltd., questions concerning the nature and scope of the other economic torts — such as inducing breach of contract, unlawful means conspiracy, and intimidation — continue. Leitch v. Novac, 2020 ONCA 257.
Constitutional Law
Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21: Companion case to 2020 SCC 20. Issue of whether confidential Cabinet documents can form part of the record on a review, pursuant to Bodner v. Alberta. SCC (9:0) allowed the appeal in part; and the motion judge’s declaration modified such that only the discussion of government-wide implications in the Attorney General’s report and the communications plan be included in the record.
British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20: Similar to above. Appeal allowed and master’s order for production of Cabinet submissions quashed.
Reference re Genetic Non‑Discrimination Act,2020 SCC 17: Reference by the Government of Quebec on the constitutionality of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, with respect to whether these provisions were ultra vires to the jurisdiction of Parliament over criminal law. Quebec Court of Appeal held that ss. 1 to 7 exceeded Parliament’s authority over criminal law. The Canadian Coalition for Genetic Fairness appealed to SCC as of right. Appeal allowed, 5-4: per Karakatsanis J. (Abella, Martin JJ. concurring); per Moldaver J. (concurring) (Côté J., concurring); per Kasirer J. (dissenting) (Wagner C.J.C., Brown, Rowe JJ. concurring).
Criminal Law
R. v. Thanabalasingham,2020 SCC 18: Appeal by Crown of stay of proceedings in a second degree murder case due to delay. Charges were laid before release of R. v. Jordan. Delay was calculated to be around 45 months; appeal dismissed, delivered by The Court.
R. v. Bernier, 2020 MBCA 74: Application for leave to appeal a summary conviction appeal challenging the legality of the photo radar legislation. Applicant argued that s.229 of The Highway Traffic Act violated his presumption of innocence. Tests to be applied: 1) whether the appeal meets the test for permitting a second level appeal; and 2) whether there is an arguable case that this meets the test for an appellate court to reconsider a prior decision of the Court (para 8). Application granted.
R. v. Williams, 2020 MBCA 72: Appeal of a jury conviction for manslaughter for failing to provide the necessities of life for a child asserting that the trial judge erred in instructing the jury. He also seeks leave to appeal his sentence. Child’s mother was convicted in her death. A witness testified that the accused was present when the mother abused the child. Jury instructions are reviewed on a standard of adequacy, not perfection. Leave for appeal of sentence granted; discussion of fitness of sentence includes reference to R. v. Friesen, 2020 SCC 9. Both appeals dismissed.
R. v. McKay, 2020 MBQB 106: Sentencing decision for guilty plea for manslaughter. Two reports prepared: Probation Services Pre-Sentence Report and a Gladue Report. Accused was diagnosed with partial Fetal Alcohol Syndrome at 24 months. Factors taken into consideration include what would best benefit and protect the community as well as provide the best prospects of rehabilitation.
R. v. Morrissette,2020 MBQB 90: Not guilty plea to possession of a firearm. Evidence to be analyzed in accordance with the principles of R. v. W.(D.). Firearm and three shotgun shells were on the floor of the backseat of a stolen vehicle, near where the accused was sitting. Accused is convicted.
R. v. Bigl, 2020 MBPC 29: Application to seek leave to cross-examine police officer who swore the affidavit granting a search warrant for the accused’s home, as well as an application deeming the search a warrantless search. Analysis of the legal test for issuance of a warrant. Applications dismissed.
R. Solomon, L. MacLeod, E. Dumschat. The Shifting Focus of Canadian Impaired Driving Enforcement: The Increased Role of Provincial and Territorial Administrative Sanctions. 25 Can. Crim. L. Rev. 25 (2020) (WLNC – request a copy). Federal criminal charges and prosecutions have historically played the dominant role in efforts to deter impaired driving. However, the processing of these charges has become an exceedingly technical, time-consuming and uncertain venture, prompting a shift in Canadian impaired driving enforcement. Provincial administrative sanctions are increasingly being used not only to augment, but also instead of federal criminal charges.
Family Law
Bloomfield v. Halfyard, 2020 MBCA 73: Appeal of order re joint custody. In 2015, judge had granted joint custody with primary care and control to the father, and specified times of care and control to the mother. Mother appeals dismissal of various motions, including a motion for contempt. Appeal dismissed with costs of $500 to the father.
Anderson v. Bernhard, 2020 MBCA 71: Appeal of order dismissing a motion to vary a consent order. Issues raised included spousal support and arrears owing. Appeal dismissed.
Kamer v. Ptashnik, 2020 MBCA 70: Appeal of final order after a trial, as well as a motion to introduce fresh evidence. Litigation had been ongoing since 2008. Most arguments founded on allegations of procedural unfairness and bias. Cameron, J.A. emphasized the importance of deference owed to the trial judge. Appeal dismissed.
Tunmer v. Tunmer, 2020 MBQB 112: Petition for divorce, spousal and child support, division of property and matter of contempt. Respondent (husband) filed incomplete financial disclosure and has been delinquent at following previous orders. Detailed analysis of the finding of contempt leading to the imposition of a significant financial penalty and a custodial sentence of one day imprisonment. Support and property matters also dealt with.
Muense v. Muense, 2020 MBQB 105: Application under The Hague Abduction Convention. Father requests the return of two young children to Germany. Both parties are German citizens, mother is a Canadian permanent resident. During the marriage the parties moved back and forth between Germany and Canada. Father consented to mother’s return to Canada for an extended visit but thought they would return. Mother claims visit was always a permanent stay. Original filing came right at the start of the COVID-19 lockdown. Analysis of “habitual residence” as well as whether the mother’s removal of the children was “wrongful”. MacPhail, J. finds that Germany is the habitual residence. Analysis of s.13 of Convention is based on credibility of evidence submitted by the parties. Application is dismissed.
Michif CFS v. C.L.H. and W.J.B., 2020 MBQB 99: Agency seeking a 6 month temporary order for child of C.L.H. and W.J.B. Agency had requested a hearing in June 2019 to determine if child was in need of protection; this was granted. After several adjournments, trial was finally held in May 2020. Detailed discussion of ability of parents to properly care for child, including reports from several experts. Court determined child is to be returned to his parents within three months, potentially with support from the Agency.
Shelley, Katherine Tess. “The Exclusion Trap for Women Refugee Claimants who Escape Domestic Violence with Children.” Osgoode Hall Law Journal 55.3 (2018) : 756-790. Women who escape domestic violence with their children are being denied refugee status in Canada on the grounds that, by fleeing with their children, they have committed the crime of child abduction. Article 1(F)(b) of the 1951 Refugee Convention, which has been imported into Canadian law, specifies that individuals who have committed serious, non-political crimes are excluded from the protections associated with being a legal refugee. Consequently, women who travel to Canada with their children risk the denial of their refugee claims solely because they chose not to abandon their children in an abusive or potentially dangerous situation.
Funded by the Law Foundation of Ontario Access to Justice Fund, this informative report shares knowledge with respect to both the crisis of Indigenous over-incarceration in Saskatchewan and the justice system’s response.
… CanLII now has more than 2,290 pieces of content relating to COVID-19, which include at least 2,000 cases and 150 pieces of legislation. CanLII continues to update its collection as documents are made available by courts and tribunals. …
Emond Publications Criminal Law Series – several titles are already been updated. This e-book series is available to all Law Society members. Sign in to the Members Portal, click on “Library Resources” at the bottom of the left-hand navigation pane and then select the series. All 15 titles are written from the point of view of prosecution and defence.
Substantive Law
Administrative Law
3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103: Appeal of CRTC findings on Notice of Violation (NOV) that appellant had committed four violations of CASL and the resulting fines. Appellant also asserted that CASL is unconstitutional. Parties agreed that CRTC has the jurisdiction to determine the constitutional question. Standard of review is correctness on the constitutional question, and standard of palpable and overriding error on NOV. Appeal dismissed.
Entertainment Software Assoc. v. Society Composers, 2020 FCA 100: Issue of the appropriateness of a tariff on music from a streaming service. Analysis of s. 2.4(1.1) as added by the Copyright Modernization Act, S.C. 2012, c.20. Discussion of Vavilov and its effect on setting the standard of review for administrative decisions. FCA determined that the Copyright Board’s interpretation of s. 2.4(1.1) cannot stand. Appropriate remedy is to quash the decision and grant costs to the applicants.
The College of Pharmacists v. Jorgenson, 2020 MBQB 88: Request for summary judgment in claim for a permanent injunction and damages over defamation. Defendant published a variety of statements claiming the plaintiffs were responsible for the deaths of several Indigenous people in Northern Manitoba. Defendant did not provide any evidence backing up his assertions. Summary judgment is granted, along with significant costs.
Qualico Developments (Winnipeg) Ltd. v. Winnipeg (City of) et al., 2020 MBQB 87: Application for judicial review and an order of mandamus to amend the 2019 assessment and tax rolls of the applicant. Applicant sold a strip of property to the city, resulting in an amendment to the assessment of the property’s value. Applicant did not appeal future assessments, relying on the carry forward principle. Applicant was assessed on higher value. Standard of review is reasonableness, not correctness. Application granted.
Bankruptcy Law
Civil Litigation
Uber Technologies Inc. v. Heller, 2020 SCC 16 : Respondent started a class proceeding in Ontario for violations of employment standards législation. Appellant brought motion to stay the class based on the arbitration clause. Motion judge stayed the proceeding, holding that the arbitration agreement’s validity had to be determined by arbitration. ONCA allowed the appeal. Many issues to resolve : Is the arbitration clause unconscionable? Is there an inequality of bargaining power? Does the Ontario International Commercial Arbitration Act apply or the Arbitration Act? Is there an issue of accessibility? Appeal dismissed : per Wagner C.J. and Abella, Moldaver, Karakatsanis, Rowe, Martin and Kasirer JJ; Côté J. dissenting.
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13: Minority language education rights. Analysis of s. 23 of The Charter and its remedial purpose. Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: Appeal allowed in part; Brown and Rowe JJ. dissenting in part.
Winnipeg Condominium Corporation 479 v. 520 Portage Avenue Ltd et al, 2020 MBCA 66: Appeal of decision of application judge transferring ownership of parking area from the developer to the condominium corporation. Developer retained ownership of parking area as a unit, then leased it to the corporation. Purchasers of condominiums thought it was part of the common elements. Intervenor held three registered mortgages against the parking unit. Appellant (Developer) believed matter should proceed by trial, not application. Appeal dismissed.
Samborski Environmental Ltd. v. The Government of Manitoba et al, 2020 MBCA 63: Motion for an extension of time to file and serve a notice of appeal. Issue of whether an environmental license allowing a composting operation on the property was valid or not. Detailed analysis of s. 90(1)(a) of The Court of Queen’s Bench Act concerning when leave to appeal is required for a consent order. Motion granted.
Rebillard v. Winnipeg (Police Service) et al, 2020 MBCA 59: Appeal of dismissal of lawsuit alleging false arrest, false imprisonment and malicious prosecution. Plaintiff had history of animosity with her neighbour. WPS obtained warrant for her arrest; Crown later stayed all charges. Appeal centred on whether defendants had grounds to arrest and charge her; trial judge erred in evidentiary rulings; and trial judge failed to assist her as a self-represented litigant. Appeal dismissed, except for order for throwaway costs, which were allowed.
Sagkeeng v. Government of Manitoba et al., 2020 MBQB 83: Applicant alleges that the respondents breached the duty to consult and accommodate in respect of a project permitting construction on traditional and ancestral territory. Minister of Sustainable Development had issued a license to Manitoba Hydro permitting the construction pursuant to s.12 of The Environment Act. Applicant is seeking judicial review of the minister’s licensing decision. Explanation of the duty to consult as well as a detailed review of the facts. Application dismissed.
Weremy v. The Government of Manitoba, 2020 MBQB 85: Action for class action certification relating to allegations of physical and sexual abuse of the residents of the Manitoba Developmental Centre (MDC). Detailed analysis of all the issues under s.4 of The Class Proceedings Act, Certification of a Class Proceeding. Claim is certified.
Corporate & Commercial Law
Canada v. Cameco Corporation, 2020 FCA 112: Appeal of decision of Tax Court on the issue of s.247(2)(b) and (d) of the Income Tax Act. The decision of the Tax Court reversed the Minister’s allocation of the profit of a foreign subsidiary of a Canadian corporation to the parent Canadian corporation. Main focus was the application of the transfer price rules in s.247. Appeal dismissed.
Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108: Order on intervenors. Six parties have moved to intervene in this appeal. In a no-nonsense order, Stratas, J.A. sets out the terms for the parties. First, they are collected into groups based on broadly similar submissions. Each group is allowed to submit one memorandum of fact and law. They cannot add to the evidentiary record. Oral submissions will be determined by the panel hearing the appeal.
Zohar Levy and Nicholas Carmichael. Covid-19 as a Force Majeure, and Other Contractual Considerations. Business Law Reports (2020), 2 B.L.R. (6th) 32 (WLNC – request a copy).
Teresa Scassa, Amy Salyzyn, Jena McGill, Suzanne Bouclin. Developing Privacy Best Practices for Direct-to-Public Legal Apps: Observations and Lessons Learned, (2020) 18 Can. J. L. & Tech. 1 (WLNC – request a copy).
Alexi N. Wood and Jennifer Saville. Tort of Harassment: Crying Out for a Remedy, (2020) 38 Adv J. No. 4, 26 – 28 (LAQL – request a copy).
Criminal Law
R. v. Zora, 2020 SCC 14: Whether mens rea for offence of failure to comply with conditions of undertaking is to be assessed on a subjective or objective standard. Appellant was charged under s. 145(3) of the Criminal Code for breaching his curfew and breaching his condition to answer the door. Analysis of subjective and objective mens rea. Appeal allowed; new trial ordered. Decision delivered by Martin, J.
R. v. Li, 2020 SCC 12: Companion case to R. v. Ahmad, 2020 SCC 11. No entrapment this time. Guilty plea entered, matter remitted for sentencing. Oral decision of the Court.
R v. Dhaliwal, 2020 MBCA 65: Appeal of sentence after conviction for fraud and forgery. Accused is a citizen of India and permanent resident of Canada. Based on his sentence he suffered collateral immigration consequences. Counsel should have brought this to the attention of the judge, however, it is also the judge’s duty to take this into consideration. Sentence was varied to six months less a day, with the restitution remaining.
R. v. J.A.W.,2020 MBCA 62: Appeal of conviction and sentence for sexual assault. Accused based appeal on a misapprehension of the evidence by the trial judge. Court noted that it must be careful to not retry the case. “An evaluation of testimony may only be interfered with where it cannot be supported by any reasonable view of the evidence” (para. 13). Appeals dismissed.
R. v. Singh et al, 2020 MBCA 61: Appeals of convictions and sentences for sexual assault. Main focus of appeal is that the trial judge misapprehended the DNA evidence. CA found that trial judge took into account the limitations of the forensic evidence. Both appeals dismissed.
R. v. Bonni, 2020 MBCA 64: Appeal of sexual assault conviction. Accused argues four errors: judge applied a higher level of scrutiny of the evidence of the defence; he misapprehended the evidence; that he improperly considered the accused’s prior relationship with the complainant; and he should not have allowed the Crown to call rebuttal evidence. Appeal dismissed.
R. v. Brar, 2020 MBCA 58: Appeal from conviction of sexual assault on grounds that trial judge erred in dismissing his motion for a stay under s.11(b) of the Charter. Argument for stay was conducted after trial, going against court recommendations (but with consensus of counsel). Judge issued a 28 page endorsement with reasons for dismissing motion. Monnin, J.A. issued comment on inappropriateness of such a long endorsement (paras 41-45). Appeal dismissed.
R. v. McLeod, 2020 MBQB 80: Appeal of conviction for assaulting a peace officer engaged in the execution of her duties. Accused argues First Nation safety officer was not acting as a peace officer in law when the assault took place, therefore he should be just convicted of the included offence of assault. Explanation of the three sources of authority for the statutory scheme governing First Nation safety officers. As issue is a question of law, standard of review is correctness. Appeal dismissed.
Tim Quigley. R. v. Friesen: Sentencing Guidance from the Supreme Court of Canada (2020), 62 C.R. (7th) 77 (WLNC – request a copy).
The primary role of our highest court is, of course, to act as the court of last resort in deciding individual cases. The Court, however, also plays an influential role by providing guidance to lower courts. It does not always accept this role in a comprehensive manner but it certainly has in R. v. Friesen. To state the ratio decidendi of the case would be relatively simple: The Manitoba Court of Appeal erred in finding that the sentencing judge in a case of sexual interference against a young child had erred in principle. However, it is much more likely that Friesen will become authority for the proposition that sentences for sexual offences against children must increase. That is certainly a prominent part of the message delivered by the Court. At the same time, though, the Court seized the opportunity to re-state or to re-formulate several other principles that should govern the sentencing process.
Rowan Kunitz. At the Mercy of the Court: Canadian Sentencing Principles and the Concept of Mercy. (2020) 25 Can. Crim. L. Rev. 1 (WLNC – request a copy).
Understood via its sentencing versus pardon, administrative, or constitutional lenses, mercy remains understudied in Canada’s courtroom context. This has resulted in a gap between Mercy’s theoretical underpinnings and its courtroom application. This gap is rooted in mercy’s theoretical and historical definitions, corrective versus sentencing understandings, and limited Canadian focused legal scholarship.
Family Law
Smederovac v Eichkorn, 2020 MBCA 57: Appeal of order for child support and order for costs after a two day trial. Trial was focused on determination of income. Appeal over judge ordering an amount of child support over and above the set-off amount in a shared custody regime. Standard of review re child support is highly deferential; analysis of s.9 of the Guidelines. Appeal allowed; trial judge erred in ordering an increased set-off amount without explaining how she arrived at that figure. Parties still have some issues to be settled, so matter is sent back to Family Division. Costs are reassessed.
Peters v. Peters, 2020 MBQB 94: Motion to vary final order, allowing termination of spousal support, retroactive reduction in child support and remission of arrears of child and spousal support. Threshold requirement of a material change in circumstances has been met. Respondent’s financial disclosure is inadequate; Petitioner requests income be impugned to him. Thomson, J. grants reduction of annual income for support purposes but not to the level the respondent requested.
Dueck v. Dueck, 2020 MBQB 89: Motion by father to increase his periods of care and control. Father is on probation from assaulting mother, and is not allowed to have direct contact with her. Mother has agreed to an Interim Order on care and control to facilitate father’s access. Father seeks shared care and control. Mother is not opposed to the care and control schedule but opposes shared care and control. Interim Order is granted allowing father a little more time with the child.
Nicholas Bala. Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act. (2020) 39 CFLQ 45 (WLNC – request a copy).
Since the Report of the Special Parliamentary Committee in 1998, it has been widely acknowledged that the parenting provisions of Canada’s Divorce Act were in need of reform. After a couple of unsuccessful efforts to enact reforms in the early years of this century, in May 2018 the Liberal government introduced Bill C-78, proposing significant changes to the law governing post-divorce parenting. The Bill had widespread support from family lawyers, judges, and scholars, as well as mediators, and mental health professionals. There was, however, controversy about some parts of Bill C-78 at the Parliamentary Hearings, and minor amendments were made as a result of the Committee process.
Labour & Employment
The Portage la Prairie Teachers’ Association v. The Portage la Prairie School Division, 2020 MBQB 93: Application for an order quashing the award of an arbitration panel determining that a directive that teachers remain in school and available until 4:00 p.m., whether they have been assigned duties after the end of the instructional day at 3:20 p.m. Panel concluded that the directive was fair and reasonable. Neither the collective agreement nor legislation governs the directive. Award upheld, application dismissed.
Manitoba Federation of Labour et al v. The Government of Manitoba, 2020 MBQB 92: Argument over whether The Public Services Sustainability Act, S.M. 2017 c. 24, violates the Plaintiffs’ right to freedom of association. The Act was passed in 2017 but has not yet been proclaimed. McKelvey, J. issued a 288 page decision that ultimately decided in the plaintiffs’ favour.
UNIFOR and its Local 100 v. Canadian National Railway, 2020 MBQB 91: Application for judicial review of an arbitration decision. Employee was involved in a near-miss accident, and was tested for drugs and alcohol as per CNR policy. Oral fluid sample tested positive for marihuana and cocaine; employee was terminated. Several issues discussed: standard of review; breach of duty of procedural fairness; misapprehension of evidence; failure to apply the collective agreement and the employer’s policy in determining the employee’s responsibility. Application denied.
Gaucher v. Manitoba Public Insurance Corporation, 2020 MBQB 84: Claim for wrongful dismissal. Plaintiff claims defendant had no cause to terminate her without notice; defendant claims she was terminated for just cause. Issues include cannabis in the workplace before legalization, condoning a subordinate’s illegal conduct, losing trust of the employer. Defendant is successful. Perlmutter, A.C.J.Q.B includes damages he would have assessed if plaintiff had been successful.
Sarah Marsden. “Who Bears the Burden of Enforcement: The Regulation of Workers and
Employers in Canada’s Migrant Work Programs” (2019) 22:1 C.L.E.L.J. 1. (Available on HeinOnline).
Wills, Trusts & Estates
John E.S. Poyser. Annotation: Geluch v. Geluch Estate. (2020) 55 E.T.R. (4th) 133 (WLNC – requst a copy).
The decision in Geluch Estate is interesting for three different reasons. First, dealing with capacity, the decision is a rare example of a court expressly addressing the analytical framework applicable to a combination of inter vivos and testamentary instruments intertwined into a single estate plan. Second, dealing with knowledge and approval, the court struck down a residue clause contained in a will based on the so-called “doctrine of righteousness.” Third, dealing with remedy, the court struck down the residue clause but allowed the remaining clauses in the will, including bequests, to go to probate, effectively severing the bad from the good.
Trotter, Gary T. The Law of Bail in Canada, 3rd ed. All aspects of judicial interim release from all jurisdictions in Canada.
Substantive Law
Administrative Law
Canada (Attorney General) v. Poirier, 2020 FCA 98. Appeal from Appeal Division of the Social Security Tribunal. Respondent applied for disability pension under CPP but was denied by General Division which determined that he had residual work capacity, but his attempts to find alternative work weren’t serious. Appeal division concluded the General Division made an error of fact and reversed the decision. For judicial review, the standard of review is reasonableness. Locke, J.A. allowed the appeal and remitted it for reconsideration by a differently-constituted panel of the Appeal Division.
Jhanji v. The Law Society of Manitoba, 2020 MBCA 48. Applicant was suspended from the practice of law pending completion of disciplinary proceedings. Court of Queen’s Bench judge dismissed his appeal of the interim suspension. Applicant now appeals that appeal. Applicant has not shown any basis to intervene in the discretionary decision of the Complaints Investigation Committee. Appeal dismissed.
Stadler v. Director, St Boniface/St Vital, 2020 MBCA 46. Does requiring a disabled recipient of income assistance to apply for CPP retirement benefits early (age 60) pursuant to s.12.1(2) of Manitoba Assistance Regulation infringe on his equality rights under s.15 of The Charter? Appellant original appealed to the Social Services Appeal Board which determined it did not have the jurisdiction to hear the Charter arguments. In 2017 this court determined that it did (2017 MBCA 108). A new panel of the Board upheld the decision, and the appellant appealed again. Appeal allowed.
Alejandro Gonzalez, The Evolution of the Duty to Consult: A Framework for Improving Consultations, Negotiations, and Reconciliation, 2020 10-1 Western Journal of Legal Studies 1, 2020 CanLIIDocs 680, retrieved on 2020-06-04.
Alice Woolley and Amy Salyzyn, Protecting the Public Interest: Law Society Decision-Making After Trinity Western University, 2019 97-1 Canadian Bar Review 70, 2019 CanLIIDocs 1599, retrieved on 2020-06-04.
Bankruptcy Law
9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10. Appeal from Quebec of an ongoing proceeding instituted under the Companies Creditors Arrangement Act. Two decisions by the supervising judge are at issue: whether a supervising judge has the discretion to bar a creditor from voting on a plan of arrangement where they determine that the creditor is acting for an improper purpose; and whether the supervising judge can approve litigation funding as interim financing. Analysis of s.11 of the CCAA. Appeal allowed, supervising judge’s order reinstated. SCC determined that the Court of Appeal failed to treat the supervising judge’s decisions with the appropriate degree of deference. Joint reasons for judgment: Wagner C.J. and Moldaver J. (Abella, Karakatsanis, Côté, Rowe and Kasirer JJ. concurring).
Bannerman Lumber Ltd. et al. v. Goodman, 2020 MBQB 76. Application for a declaration under s. 178(1) of the BIA that a debt should survive discharge of bankruptcy. The specific provision states that an order of discharge does not release the bankrupt from any debt or liability resulting from obtaining property or services under false pretences. “An issue of importance in the present case is the degree of knowledge required to establish deceit.” (para. 10). Applicants are successful.
Tyler McNaughton. Case Comment – Re Brennan. Canadian Bankruptcy Reports (Articles) (2020) 77 C.B.R. (6th) 20 (WLNC, request a copy). (2019 ONSC 4712).
Civil Litigation
Albo v The Winnipeg Free Press et al, 2020 MBCA 50. Appeal regarding contractual interpretation. Parties negotiated a contract for consultation leading to the defendant publishing a series of articles. Opportunity arose to compile the articles into a book. Plaintiff was unaware and sued for royalties. Analysis of “good faith performance of the contract” (para 43). Appeal dismissed.
Green v University of Winnipeg, 2020 MBCA 49. Applicant seeks leave to appeal an order declaring him a vexatious litigant. Leave denied.
Linda R. Rothstein. Inside the Woodshed: Preparing the Direct Examination of a Key Witness in a Civil Trial, 38 Adv. J. No. 4, 20-22 (Spring 2020) (LAQL – request a copy).
Carla L. Maclean, Lynn Smith & Itiel E. Dror. Experts on Trial: Unearthing Bias in Scientific Evidence, (2020) 53 U.B.C. L. Rev. 101 – 139 (LAQL – request a copy).
Corporate & Commercial Law
Laliberté v. Canada, 2020 FCA 97. Appeal of whether a trip to the International Space Station is a shareholder benefit versus a stunt-type promotional event. Minister of National Revenue (MNR) assessed the appellant with a shareholder benefit equal to the cost of the trip. Tax Court ordered that the appellant be reassessed based on a shareholder benefit equal to 90% of the cost of the trip. Appeal dismissed.
Roofmart Ontario Inc. v. Canada (National Revenue),2020 FCA 85. Appeal of order under the “unnamed persons requirement” (UPR) of the ITA and ETA. MNR was investigating compliance in the residential construction industry. Studies have estimated that as much as 20% of residential construction is unreported. CRA identified the appellant as the subject of a UPR due to the size of its business, its clientele and its location. Appellant raised three objections: that the application is ultra vires; the Federal Court erred in its application of the statutory criteria; and the Court applied the incorrect burden of proof. Appeal dismissed.
State Industries Ltd. et al. v. Summers Equipment Inc. et al.,2020 MBQB 77. Defendants are seeking the setting aside of an Anton Piller Order (APO) authorized in September 2018. The plaintiffs claim the defendants breached the implied terms of their employment agreements. Onus is on defendants to satisfy the court that the APO should be set aside on the basis that the plaintiffs failed to comply with their duty of candor and disclosure. Analysis of the evidence presented to grant the APO along with the counter-argument. Bond, J. determined that order should not be set aside.
Nygard International Partnership v. Canadian Broadcasting Corporation et al.,Nygard International Partnership v. Prowse, Nygard International Partnership v. Neal, 2020 MBQB 71. Three motions to dismiss for delay, in accordance with Queen’s Bench Rules 24.01 and 24.02. Summary of the principles to review in determining if the delay is unreasonable or not is set out in para. 18. Master Clearwater found mixed results.
R. v. Ahmad,2020 SCC 11. Two appeals combined on the application of the law of entrapment. In each appeal police received an unsubstantiated tip that a particular phone number was used in a drug operation. Police officers called the numbers and requested drugs and arranged meetings with the person who answered. At trial, both accused argued that the charges should be stayed on the basis of entrapment. SCC held that appeal by A. should be dismissed; appeal by W. should be allowed. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. Dissenting on W.: Wagner, C.J., Moldaver, Côté, and Rowe JJ.
R. v. Neepin, 2020 MBCA 55. Appeal of manslaughter sentence. At issue is whether the trial judge erred in principle in findings of fact, how he addressed the accused’s the moral culpability in light of these factors and the Gladue factors, and whether the sentence is harsh and excessive. Appeal allowed and sentence reduced to seven years.
R. v. Nelson, 2020 MBCA 53. Appeal of convictions for aggravated assault, robbery with a firearm, and three weapons offences. The victim in this instance was unable to identify the accused but a witness did and gave a videotaped statement. The witness did not show up for trial until she was detained on a material witness warrant. The witness declined to review her statement and could not recall some details while testifying. Key issue at trial was whether there was proof beyond a reasonable doubt of the identity of the attackers. Issue on appeal is whether the trial judge erred in allowing the witness to testify after reviewing her prior statement. Appeal dismissed.
R. v. K.N.D.W., 2020 MBCA 52. Crown appeal against sentence. Accused was convicted of sexual assault and sentenced to two years less a day. Crown argues that the sentencing judge erred by underemphasizing the brutal nature of the sexual assault and the risk posed by the accused given his prior record, and failing to take into account the traumatic impact on the children. Appeal allowed, sentence increased to five years.
R. v. Thompsett, 2020 MBCA 47. Accused seeks leave to appeal his sentence and a restitution order. Accused breached his judicial interim release by leaving a residential treatment program on the day he arrived. He asserts the sentencing judge erred in principle by considering the breach conviction as an aggravating factor. On reconsideration of restitution order, fresh evidence showed the amount should be varied as requested, with Crown consenting. Leave to appeal allowed, appeal from sentence dismissed.
R. v. Miles, 2020 MBCA 45. Accused appeals conviction for second degree murder on the basis that the verdict was unreasonable. He argues that the trial judge erred in assessing the evidence of a key witness, erred in the application of the law regarding inferences and post-offence conduct, and erred in the finding that the accused’s intoxication did not negate the intent to commit murder. Appeal dismissed.
Re DNA Warrant for Malcolm, 2020 MBPC 23. Reasons for the need of a police officer to swear an information to obtain a DNA warrant before a provincial court judge. Reconsideration of decision of Judge Pollack from 2010 (Winnipeg (City) Police Service (Re)). Krahn, A.C.P.J. determines it is acceptable for police officers to submit their informations to obtain DNA warrants sworn before a commissioner for oaths.
R v Jachetta, 2020 MBPC 21. Decision on legal test to stand fitness for trial. Accused had been disbarred for misappropriation of trust funds and then charged by police with criminal breach of trust, fraud, false pretences and theft. “For accused to be fit, he must possess the ability to engage with the trial process in a meaningful way” (para 35). Krahn, A.C.P.J. finds he is unfit to stand trial.
Paul L. Moreau. COVID-19 and the Tertiary Ground.“This article examines the considerations of Canadian jurists of the impact of the pandemic on decisions of judicial interim release.” 2020 CanLIIDocs 676
Adelina Iftene and Jocelyn Downie. End-of-Life Care for Federally Incarcerated Individuals in Canada, 2020 14-1 McGill Journal of Law and Health 1, 2020 CanLIIDocs 551, retrieved on 2020-06-04.
Family Law
Usman v Usman, 2020 MBCA 54. Appeal of two orders made by chambers judge regarding the division of property acquired during the marriage. Appellant was found in contempt of the first order (Everett order) and given an extension to comply with it. When the matter came up again, he had still not complied with it (Dueck order) so respondent was given carriage to sell the property. Appellant has continued to refuse to cooperate. Appeal dismissed, costs to the respondent and appellant was ordered to pay costs to the court because he did not include a copy of reasons from one judge for his appeal book.
CFS Western Manitoba v. C.J.P. et al.,2020 MBQB 74. Children had been placed with grandparents and great-grandparents under temporary orders. Issue is whether children, being returned to mother, need to continue to be in need of protection. Onus is on Agency to prove children are still in need of protection. Order is based on the best interests of the children. Abel, J. also comments on use of judicial resources in resolving this matter, and effect of COVID-19.
Gray v. Gray,2020 MBQB 69. Father seeks order on issues related to property, interim child support including a contribution towards special or extraordinary expenses; mother seeks interim spousal support and a no contact or communication order. Father has primary care and control of children. Trial on the issues is set for end of November 2020. Some issues determined on summary judgment.
Cory Giordano. Family Law: Stays; Child-Custody & Access. CanLII Connects. Case Comment: Jonzon v. Yuill, 2020 ABCA 219
Kathleen Hammond. Relationally Speaking: The Implications of Treating Embryos as Property in a Canadian Context, (2019) 32 Can. J. Fam. L. 323 – 386. (LAQL – request a copy).
Labour & Employment
Lairenjam v. Unifor National Council 4000, 2020 FCA 96. Complaint with Canada Industrial Relations Board alleging Union had breached its duty of fair representation. Applicant lost his job when Ministry of Transportation issued a ticket for failing to maintain his truck in a safe operating condition. Union declined to support his grievance because he already had four Step 3 discipline assessments. CIRB dismissed the complaint, then six months later the applicant asked for reconsideration due to new developments. CIRB declined to review; this is a an application for judicial review. Standard of review is reasonableness. Review dismissed.
Brandon (City) et al. v. Brandon Professional Firefights’/Paramedics’ Association,2020 MBQB 73. Application for order quashing an arbitrator’s award regarding banked overtime. Standard of review is reasonableness as articulated in Vavilov. City argued that arbitrator exceeded her jurisdiction and erred by imposing a split onus on the issue; Union argued that while it, as the grievor, bore the legal onus of proof, the arbitrator properly imposed a shifting evidential burden of proof (para 11 and 12). Application is dismissed and the award upheld.
Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government of Manitoba, The Honourable Scott Fielding, 2020 MBQB 68. Application for an order of mandamus to appoint an arbitration board to settle matters respecting the collective agreement renewal. Keyser, J. concluded that MGEU is entitled to the mandamus relief.
Wills, Trusts & Estates
Durand v. Durand et al., 2020 MBQB 70. Application by widow of deceased to remove one co-executor, due to a conflict of interest, and replace him with another. The estate is a farm corporation. Widow is dependent on payments from the spousal trust to supplement her pension. All other beneficiaries support mother’s application. Application granted.
Estates, Trusts and Pensions Journal, (2020) Vol. 39, No. 3. (Request a copy).
Manitoba has done a fantastic job at reducing the spread of COVID-19. At the Great Library, we’re happy to welcome you back to in person visits – with some restrictions.
In order to follow public health orders, we will restrict access to lawyers and the judiciary only, and only when staff are present. At this time staff will be available from 8:30 – 12:00 and 1:30 – 4:00 Monday through Friday. We ask that you call us when you reach the door and we will let you in. Please keep your visits to 30 minutes or less.
We continue to be available by email at library@lawsociety.mb.ca. If you require print materials, you can request them by phone or email, and we will collect them for you. You can pick them up at the security entrance on Kennedy, and return them there as well.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
Printing and Photocopying
If you need to use the library’s printing and photocopying services you will need to create an account. See us at the front desk for assistance.
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