There’s been a lot of new developments on the litigation front since the last update in December. Highlights from Issue No. 84, February 2018:
- Modified Test for Mandatory Interlocutory Injunction: SCC
- Public Interest Standing and Supplementing Reasons: SCC
- No Realistic Chance of Success: MBCA/MBQB
- Careless Smoking Negligent: MBQB
- Recent Flood Claims
- Further Amendments to Court of Queen’s Bench Rules
- Court of Queen’s Bench Practice Direction
- Facilitating the Management of Multi-jurisdictional Class Actions: CBA
- Recommended Reading
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.
Deposit Accounts – Payment Cards (The Lawyers Daily)
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.
 … 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.
 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.
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