Mask Use and Court Reopening in Manitoba Courts

A new notice from all court levels has been issued stating that “mask use will no longer be required in court facilities effective Monday, May 16, 2022. Masks may continue to be worn, unless requested otherwise by a presiding judge in the context of a hearing.

Unlimited access to the courts by members of the public will resume on Monday, June
27th, at which time there will no longer be any COVID-19 related restrictions in place.”

See the full notice here and previous COVID-19 related notices on the courts website.

Great Library History – part 3

Manitoba Law Library – A story of change pt. 3

“It’s been here for 100 years, and it will be here 100 more. Just like the law.” – Martin Jandavs, Facility Manager, Law Courts Building Complex

During his tenure as Facility Manager, Martin Jandavs has seen the Great Library and the Old Law Courts Building through some of its biggest changes. I was initially curious about the period of renovation in the 1980s when Library staff were working from a temporary office in the new Law Courts Building at 408 York. The renovations were extensive and resulted in significant architectural changes to the building.

A view of the Great Library prior to the renovation in the 1980s. The cork floor seen in this picture was replaced with carpet during the renovation. (source: Cameron Harvey – The Law Society of Manitoba 1877-1977)

In the library, the staircase leading up to the second floor was added during the renovation in the 1980s. Prior to this, the spiral staircase on the far side of the Great Library was the only staircase and passed through to the floors below. There used to be two old clocks on either side of the mezzanine overlooking the main floor. When the new staircase was installed the second clock was removed and placed in the attic (accessible through the library archives room), where it remains. The building has been refitted for electrical, plumbing, and computer/technology infrastructure. As Martin said to me, it’s a solid building but it has changed.

By way of example, the Government of Manitoba used to operate its own workshop and renovations department. The department employed in-house plumbers, carpenters, and electricians. The workshop, referred to as the “Vine” location, was located at Vine Street and Whyte Avenue in the Weston neighborhood. When the renovations on the Great Library began in 1985, all of the furniture was labelled and brought to the workshop to be refinished. The labelling system was used to ensure that the furniture returned to its proper location, and the burgundy leather chairs in the library still have their labels.

Martin told me about two Hungarian carpenters, “real craftsmen”, who worked on the big round table in the Great Library. The table wouldn’t fit through the library entrance and so it had to be cut in half to be removed from the building. The two carpenters refurbished it, sanding it down and refinishing the wood. I hadn’t realized that the round top of the table was designed to rotate, a feature preserved by the carpenters.

We talked about the trend towards employing contract labour and the eventual shuttering of the Vine Street workshop. About how the history of a building can be lost when contract work replaces permanent staff. Those craftsmen, who knew these buildings inside and out because they had worked here for 30, 40 years, they were like a living historical record. I told Martin about how I felt similarly about the print documents from the library being replaced by digital documents. It’s easier to lose some of the historical record because of the ephemerality of the digital documents. Martin told me how he used to get out the big technical drawings of the building to use for reference because he preferred them, as opposed to the version on his computer. He is also a fan of the giant 1957 Canadian atlas just inside the front entrance of the library.

I asked him what he thought people would be surprised to know about the building, and he spoke about his staff that keep the building looking so great. Having a dedicated staff working behind the scenes who have specialized knowledge of the building and pay attention to the details are an important part of what makes the building so special. These details we might take for granted – the polish of the custom furniture, the emptying of my trash can every night. And just like the people who keep the building alive, the building animates the people that inhabit it.

In a sense, the Law Courts Building is a living thing. It literally contracts and expands with the weather, it houses all of the constituent parts and people that bring it alive, and has gone through periods of renewal and decay. Similarly, the law is a living thing – it responds to changes in our environment, it expands and evolves, and it also undergoes stages of decay and rebirth. As David R. Johnson says, “The law is an organism rather than a mechanism. It is alive.”

The life of the Great Library and the Law Courts Building is far from over, indeed it may still only be in its youth. My season at the library is coming to a close, but I take the knowledge I gained here with me. In my own small way, I take a piece of the library with me and a piece of its history.

I’m grateful to have been able to come to work here every day and to have gotten to know the building a little bit better. And I’m also now a part of its living history.

Part 1

Part 2

eLex May 2022

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
Discipline DigestsCriminal Law 
New Library ResourcesFamily Law 
 Book ReviewsLabour and Employment Law 

News


In the News

Office of the Superintendent of Financial Institutions Canada released its 2022-2025 Strategic Plan.

Replace “Interns” with “Articling Students”. 5 Tips from a Law School Librarian for Assigning Research Projects to Interns by Matthew Flyntz, in the ABA Journal.
“As a law school reference librarian, I field a lot of questions from law students working at internships, externships and summer jobs. Over the years, I’ve seen some recurring issues with the research assignments given to law students, and I thought it might be helpful to discuss some of them here.”

Sarah Nixon. Two Visions of Reconciliation. (2022) 27 Appeal 42
“Reconciliation has become a popular and contentious term in Canadian politics, media, jurisprudence, and legal education. In this paper, I explore what is at stake in our approach to reconciliation by contrasting two prevailing forms. First is a form pursued in Canadian jurisprudence which I refer to as “reconciliation to Crown sovereignty.” !e second is a form advocated by numerous scholars and Indigenous leaders which I call “reconciliation as treaty.”


Court Notices & Practice Directions

All COVID-19 related Notices and Practice Directions are available here.

Court of Queen’s Bench

Notice – April 12, 2022 – Amendments to the Court of Queen’s Bench Rules

Provincial Court

Notice – Resumption of JJP Dockets in the communities of Cross Lake, Gods Lake Narrows, Nelson House, Norway House, Oxford House, Shamattawa and Split Lake (April 19, 2022)


Discipline Digests

The Law Society of Manitoba v. Fiorino, 2022 MBLS 3

New Library Resources

New in Print

Employment Law during a Pandemic, Sean J. O’Donnell, LL.B.

“Developed in response to the pandemic, this handy resource acts as a one-stop reference for employment lawyers, litigators, in-house counsel and other human resources professionals who are charged with dealing with the employment law issues that have arisen during and as a result of the COVID-19 crisis. Author O’Donnell, an experienced employment lawyer, is particularly well-positioned to offer general guidelines and best practices for addressing those issues, as well as to provide insight into the relevant legislation and case law related to COVID-19. Featuring case studies based on the COVID-19 outbreak, this text includes answers to the most pressing employment- and pandemic-related questions that lawyers and other professionals are grappling with at this time.”

Annotated Firearms Act & Related Legislation, 5th Edition, Jonathan Keene Brunet, Solomon Friedman, Fady Mansour

“This comprehensive guide to firearms legislation in Canada provides you with a fully annotated version of the Firearms Act, Part III and other related sections of the Criminal Code, and relevant provisions of the National Defence Act and the Youth Criminal Justice Act.”

New eResources

Will Week April 2022

Will Week is a week-long series of free public events to bring awareness to the importance of wills and estate planning. Seminars start Tuesday April 26, 2022. Visit the Library’s events calendar for session and registration information.

The event is a collaboration between the Manitoba Bar Association, The Winnipeg Foundation and the Public Guardian and Trustee. To learn more about Will Week, visit the Winnipeg Foundation website.

Visit our virtual book display here to see all the print and digital resources the library has to offer.

Journals Update

New articles from the following journals are now available for Law Society members upon request.

  • Canadian Family Law Quarterly
  • Intellectual Property Journal
  • Journal of Parliamentary and Political Law
  • McGill Law Journal
  • National Journal of Constitutional Law
  • Ottawa Law Review

For a pdf copy of these or other legal journal articles email us at library@lawsociety.mb.ca.


Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 1. This title is available in e-book format to LSM members as part of Emond Publications’ Criminal Law Series,

Search and Seizure. By Nader Hasan et al. Toronto: Emond, 2021. xxix, 729 p. Includes table of cases and index. ISBN 978-1-77255-635-3 (softcover) $159.00.

“The common law and case consideration reveal that search and seizure are pivotal elements of the criminal justice system. The foreword notes that these concepts are at the heart of that system. The authors, who bring academic, Crown counsel, and defence experience to this project, have assembled an impressive amount of pertinent detail for examination”

“Throughout this publication, the authors have incorporated many highlighted areas, titled Practice Points, that are designed to appeal to those who will be using this resource as a tool for court. Accordingly, this publication has considerable value for those learning about the state of search and seizure in Canada. It is also an asset for the practicing lawyer seeking to stay abreast of case law in this complex area.”

Events

Step into the Estate Plan for a Complex Family

Zoom Video Conference
May 24, 2022
12:00 PM – 01:30 PM

The panel, comprised of members of the Society of Trust and Estate Practitioners (“STEP”), will work through a case study featuring a blended family, and discuss spousal agreements and family property claims, structuring an inheritance for a disabled beneficiary, the impact of a beneficiary’s U.S. residency, the use of insurance to supplement or implement an estate plan, the impact of a change in the testator’s domicile, and the importance of an interdisciplinary approach to estate planning.  

PANELISTS: 
Tricia Carver, CPA-CA, CFP, TEP, Insurance Advisor, National Bank Insurance
Christa Walkden, CPA(ND), MST, TEP, CPA-CA, Director – Tax and Estate Planning, The Asper Family
Mariska Loeppky, B. Comm (Hons.), CPA, CA, TEP, CFP, Director, Tax and Estate Planning, IG Wealth Management
Harmanjit Mavi, JD/MBA, TEP, Wills and Estates Lawyer, MLT Aikins LLP
Krista Clendenning, JD, TEP, Wills and Estates Lawyer, Tradition Law LLP
MODERATOR: 
Daniel Watts, JD, TEP, Estate and Trust Consultant, Assante Wealth Management

Please RSVP (PRE-REGISTRATION IS REQUIRED) to the Manitoba Bar Association online at www.cbapd.org. The link to join the meeting will be sent the morning of the meeting.

Substantive Law


Administrative Law

Canada (Attorney General) v. Robinson, 2022 FCA 59: Issue of whether the holder of an inshore fishing license must personally carry out the activities authorized by the licence. Licence holder can apply for permission to substitute another person if they are medically unable to perform the activity, subject to a five-year limit. The department had allowed respondent permission to extend the substitution for longer than five years, but gave notice that 2016 would be the last year. FCA ruled on whether the trial judge adopted the correct standard of review, and then, whether he applied it correctly. Appeal dismissed. (Further comment noted below.)

A Maze in Corn Inc. v. Manitoba Emergency Measures Organization et al, 2022 MBCA 38: Application seeks leave to appeal a decision of the Manitoba Disaster Assistance Appeal Board. Decisions are only allowed with leave of the Court of Appeal and only on a question of law. Applicant raises four grounds of appeal. Leave to appeal granted on the issue of compensable economic loss.

Mark Mancini. The Sunday Evening Administrative Review, Issue #37, April 10, 2022. Comment on Canada (Attorney General) v. Robinson, 2022 FCA 59.


Civil Litigation

McDonald v. Bialowas et al, 2022 MBCA 39: Appeal of decision (2021 MBQB 161) dismissing claim for a declaration that a door in the appellant’s building is governed by, required and compliant with the 1941 National Building Code. Appeal dismissed.

Nguyen v. Winnipeg (City of), 2022 MBCA 33: Issue of whether a judgment was an interlocutory order which requires leave to appeal or if it was a final order, allowing an appeal as of right. Analysis of the difference between the two, in a slip and fall case. Steel, J.A. finds the City is allowed to appeal as of right.

Wilde et al v. The Rural Municipality of Taché et al, 2022 MBCA 31: Appeal of dismissal of application to extend time to commence an action against the respondents for defects in the design and construction of their residence. CA determined that application judge correctly determined that the appellants ought to have known there were foundation problems several years prior to acting on it. Appeal dismissed. 

Group III Diversified Inc v Winnipeg (City of), 2022 MBCA 30: Appeal of order assessing compensation in an expropriation case. Land Value Appraisal Commission (LVAC) assessed compensation of $177,057.75; appellant was seeking $5,749,000. Pfuetzner, J.A. determined reasons from LVAC were deficient such that they did not allow for appellate review. Matter sent back to LVAC for a new hearing in accordance with guidance provided in these reasons.

Winnipeg Condominium Corporation 479 v. Frohlinger, 2022 MBCA 29: Appeal of decision discharging a mortgage held by the appellant against the title to a parking unit. Discussion of development where parties are in a non-arms-length relationship. Court found no reviewable error of fact or law; appeal dismissed.

The City of Winnipeg v. 3177751 Manitoba Ltd., 2022 MBQB 85: Defendant seeks an order disqualifying a law firm (Taylor McCaffrey LLP) from acting for the City of Winnipeg on an expropriation hearing. Defendant claims firm is in a conflict of interest because it had acted for the defendant and some of its affiliates over the last 20 years. Examination of the law of conflict of interest in the legal profession and discussion of “bright line rule”. Motion dismissed.

Winnipeg (City) v. Caspian Projects Inc. et al., 2022 MBQB 81: Resolution of payment of $327,200 found to be a civil bribe. Joyal, C.J.Q.B. determined that it should be treated as damages for breach of trust, payable to the City. Analysis includes caselaw re damages in an amount equivalent to the bribe.

3065448 Manitoba Ltd. v. Bolay, 2022 MBQB 65: Contract dispute. Issue over quality of work as well as length of time to complete the project. Abel, J. determined time was not of the essence, so the lack of a guaranteed completion date was not enough of a factor to allow the plaintiffs to issue a stop-work order. Deficiency in workmanship was repairable, and defendant was willing and able to repair it. Corporation entitled to damages of 75% of the contract, since it had completed 75% of the work; Bolay entitled to damages for repairs recommended by expert report of $21,200.

Merchant Law Group v. Champagne, 2022 MBQB 64: Appeal of small claims court officer’s decision requiring appellant to pay respondent fees, disbursements and costs for legal services in a family law matter on the basis of quantum meruit. Counsel of record moved to withdraw but the family division justice refused the motion, even though the appellant advised that she would be representing herself. No formal contract or retainer drawn up between the parties. Toews, J. finds the hearing officer’s determination constitutes an error of law. Appeal allowed to the extent that the amount of the order be reduced by 70%, roughly the amount of work completed after the appellant’s termination of the relationship.

The Rural Municipality of Macdonald v. Samborski, 2022 MBQB 54: Hearing over penalty for contempt. Defendant refused to obey an interim injunction restraining them from composting on a property, in violation of a municipal by-law. Penalty codified under Queen’s Bench Rule 60.10. Analysis of caselaw on fines for contempt. Suche, J. found a reasonable fine was $5,000 for the defendant Leonard Samborski, $10,000 for Samborski Environmental and $40,000 for costs in favour of the R.M.

J-Kap v. City of Winnipeg, 2022 MBQB 49: Plaintiff sued City of Winnipeg in negligence by issuing a deficient building permit. Plaintiff purchased a house in need of repair and submitted an application with construction drawings that included a new foundation to replace the existing foundation. Building permit allowed for the construction of an addition to the rear of the building but no foundation work. Credibility of plaintiff at issue. City is successful.

Michael Ilg. Markets, Autonomy, & Mistake: The Judicial Control of Standard Form Contracts in a Cyber Age. (2022) 37 B.F.L.R. 229 (WLNC – request a copy).

This article addresses the growth of electronic standard form agreements involving consumers and considers the implications for general principles of contract law. In answer to the potential abuse of electronic standard agreements by technology companies, the Supreme Court of Canada, in Heller v. Uber, significantly expanded the equitable doctrine of unconscionability. 

Paul Ivanoff and Ethan McCarthy. Contract Termination: Considerations in Terminating for Default or for Convenience. 2021 J. Can. C. Construction Law 61. (WLNC – request a copy)

Parties enter into construction contracts with a common goal of building a successful project. Yet industry participants know all too well that hurdles can be encountered during project execution which will challenge the relationship between contracting parties. Many hurdles can be resolved amicably through the mechanisms provided in the contract. However, in certain instances, an owner or contractor may be so dissatisfied with the other party’s performance of their contractual obligations that they may view the relationship as unsalvageable and seek to bring it to an end by terminating the construction contract for default.


Criminal Law

R. v. Dussault, 2022 SCC 16: Issue of accused’s right to counsel before police questioning (s. 10(b) of the Charter). Did police provide accused with a reasonable opportunity to consult counsel, and were they required to provide him with a further opportunity to consult counsel before interrogating him. Appeal dismissed. Per Moldaver J. (Wagner C.J. and Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3] For reasons that I will explain, in the unique circumstances of this case, I am satisfied that the police were required to provide Mr. Dussault with a further opportunity to consult counsel before questioning him. My reasons for reaching that conclusion, however, differ from those of the Court of Appeal. In my opinion, there were objectively observable indicators that the police conduct in this case had the effect of undermining the legal advice that the lawyer provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide Mr. Dussault with a second opportunity to consult counsel. They failed to do so and thereby breached his s. 10(b) rights. I would dismiss the appeal.

R. v. J.D., 2022 SCC 15: Issue of continuation of proceedings before another judge. Judicial interpretation of s. 669.2(3) of the Criminal Code – rules to follow if a trial judge dies or is unable to continue when no adjudication has been made or verdict rendered. Appeal allowed, convictions and sentences restored. Per Côté J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)

[4] With all due respect, I conclude that the Court of Appeal erred in its interpretation and application of s. 669.2. There is no reason to require an inquiry that is not provided for by law where the parties have consented to the filing, in a trial that was commenced again, of a transcript of testimony given at a first trial. Such an inquiry would completely alter the judge’s role, minimize the judge’s ability to assess the transcript of prior testimony and run counter to the presumption of the competence of counsel.

R. v. Gerrard, 2022 SCC 13: Oral reasons dismissing appeal of 13 domestic violence related convictions delivered by Moldaver, J. Trial judge’s reasons show that she instructed herself correctly on the W.(D.) test. Trial judge assessed complainant’s credibility as a direct response to accused’s defence at trial.

R. v. Tim, 2022 SCC 12: Issue of infringement of the right against arbitrary detention under s. 9 of the Charter. Police officer arrested accused based on a mistake of law about the legal status of a substance found in the accused’s vehicle.  Per Wagner C.J. and Moldaver, Côté, Rowe, Kasirer and Jamal JJ.:

[4]  For the reasons that follow, I would dismiss the appeal. The police breached s. 9 of the Charter by arresting the appellant based on a mistake of law about the legal status of gabapentin. They then breached s. 8 of the Charter by searching his person and car incident to the unlawful arrest. … Although all the impugned evidence was “obtained in a manner” that breached the Charter, I would not exclude it under s. 24(2). The Charter breaches were at the less serious end of the scale of culpability and only moderately impacted the appellant’s Charter-protected interests. On the other side of the ledger, the evidence was reliable and essential to the prosecution of serious offences. In my view, weighing these considerations, the admission of the evidence would not bring the administration of justice into disrepute.

Per Brown J. (dissenting)

[104] Taking that into account, and accepting my colleague’s discussion of the other lines of inquiry under R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I find that admitting the evidence would bring the administration of justice into disrepute. I would therefore allow the appeal, exclude the evidence, and substitute verdicts of acquittal on all charges.

R. v. Stairs, 2022 SCC 11: Issue of whether search of accused’s home was a breach of his s. 8 Charter rights. Recognition of the potential of violating privacy through a warrantless search of a home; is the area sufficiently proximate to the arrest to provide a link. Appeal dismissed: Wagner, C.J. and Moldaver, Rowe, Kasirer and Jamal, J.J.:

[10] Applying the stricter standard to this case, the police, in our view, had reason to suspect that there was a safety risk in the basement living room and that their concerns would be addressed by a quick scan of the room, which was the least intrusive manner of search possible in the circumstances. It follows that Mr. Stairs’ s. 8 Charter rights were not breached, and the drug evidence was properly admitted. Accordingly, we would dismiss the appeal.

Karakatsanis, Brown and Martin, J.J. (dissenting):

[107] Like my colleagues, I conclude that the common law sets too low a bar for searches incident to arrest inside a home. Privacy demands more. When officers seek to search a home for safety purposes — as they did here — the appropriate standard is reasonable suspicion of an imminent threat to police or public safety.

Côté, J. (concurring);

[174] However, in the present case, I would not interfere with the trial judge’s finding that the police were acting in good faith on their understanding of unsettled law. As I have explained, the justificatory standard for and permissible scope of a residential search incident to arrest were unclear at the relevant time. Further, society has a strong interest in the adjudication of a charge involving a large quantity of a highly dangerous and pernicious street drug.

R. v. Moar, 2022 MBCA 36: Accused appeals his conviction for second degree murder and the period of parole ineligibility. Appeal is based on the grounds that the trial judge erred in instructing the jury on intention and intoxication. Analysis of the trial judge’s instructions and the law around jury instructions. Conviction appeal dismissed. Accused argues that the trial judge erred in apply his Gladue factors in determining his sentence. Leave to appeal the sentence granted, but appeal dismissed.

R. v. G.S., 2022 MBCA 35: Accused appeals his convictions for sexual assault with a weapon, choking to overcome resistance and uttering threats. Crown seeks leave to appeal and if granted, appeals the sentence. Accused seeks to admit fresh evidence. Evidence against the accused included an audio file made by the victim during the assault. He seeks to tender opinion evidence of an expert that the audio file was manipulated. Conviction appeal dismissed; leave granted to appeal the sentence, but also dismissed.

R. v. Bunn, 2022 MBCA 34: Accused appeals his conviction for sexual assault; Crown seeks leave to appeal, and if granted, appeals the sentence. Accused argues that the trial judge applied uneven scrutiny in her analysis of his evidence versus the victim, and returned an unreasonable verdict. CA dismissed the convictions appeal. Crown allowed leave to appeal sentence, but appeal dismissed.

R. v. Keating, 2022 MBCA 32: Crown appeal of sentence for break and enter and committing assault, and uttering threats. Sentence was 18 months’ incarceration for first charges, and an additional six months incarceration, concurrent followed by three years’ probation. Crown alleges trial judge erred by underestimating the gravity of the offences and the accused’s moral culpability. Court agrees; new sentence (jointly recommended) of four years’ and six months (concurrent).

R. v. Bordian, 2022 MBQB 83: Trial over charge of attempted murder and aggravated assault. Both the accused and the victim testified with two very different versions of the events. Analysis and consideration of the credibility of the evidence of both parties. Accused acquitted of attempted murder, convicted of aggravated assault.

R. v. C.B., 2022 MBQB 63: Accused pleaded guilty to three counts of mischief and was sentenced to 15 months of supervised probation. He appeals, arguing that the sentencing judge erred in principle and submits that the appropriate sentence is a conditional discharge. Harris, J. found sentencing judge erred by focussing almost exclusively on the offence and its impact on society. Further analysis is required on whether a discharge would not be contrary to the public interest. Appeal allowed.

R. v. Peters, 2022 MBQB 59: Accused charged with sexual assault and failure to comply with an undertaking. Complainant and accused testified. Leven, J. used W.(D.) framework to analyse reasonable doubt. Trial was not an issue of consent; both parties described two different scenarios. Accused found guilty.

Hudson (Re), 2022 MBPC 20: Determination of who will be granted standing in the Inquest into the death of Eishia Hudson. Ms. Hudson was killed by a WPS officer who discharged his firearm. Presumption of inquest is to determine the circumstances relating to the death and determine what, if anything, can be done to prevent similar deaths in the future. Detailed explanation of who will be granted standing, who will not, and why.

R. v. Anobis, 2022 MBPC 17: Accused is charged with assault on a peace officer (x2) and resisting arrest. Evidence of accused and evidence of police officers differ. Evidence includes testimony of accused, police officers, taser report, and video recording provided by the accused. Heinrichs, P.J. observes inconsistencies in all the testimony. Although the judge finds issues with the accused’s evidence, there is a reasonable doubt as to his guilt.

R. v. D.P., 2022 MBPC 16: Accused is charged with possession of a Schedule 1 drug after a traffic stop. Traffic stop was legal; accused claims vehicle was searched without a warrant. Onus on accused to establish on a balance of probabilities that a breach occurred. Evidence of police officers and accused both consistent and logical; however, judge accepts police evidence.

R. v. James, 2022 MBPC 15: Sentence for guilty plea to the offence of manslaughter. This was a violent, unprovoked attack with a knife in a public space. Accused was extremely intoxicated at the time, raising doubt that the Crown could prove he had the intent necessary to support a conviction for murder. Pre-sentence report and a Gladue assessment were filed with the Court. Accused sentenced to 10 years with a one year reduction due to severe Gladue factors.

Application pursuant to section 490(1) of the Criminal Code for detention of things seized, Envelope 28693, 2022 MBPC 14: Police (and counsel) appeared in an ex parte proceeding requesting a detention order pursuant to s. 490(1) of the Criminal Code. Report had been filed twice but was rejected and no order had been made. Issues of jurisdiction, effect of failure to file the report in seven days, and whether a detention order should be made in this case. Krahn, A.C.J. issued the order.

R. v. Rosin, 2022 MBPC 10: Ruling on admissibility of community impact statement (CIS), pursuant to s. 772.2(1) of the Criminal Code. Canadian Centre for Child Protection (C3P) wished to provide a statement which would provide general information about online luring and reference case law and information gathered from reported offences and comments from those who have been victimized. Defense argues the statement contains information that is inadmissible at law. Lord, A.C.P.J. references other cases both in Manitoba and other jurisdictions where C3P CIS were admitted. The statement is admitted.

R. v. Maytwayashing, 2022 MBPC 6: Sentencing decision after conviction for robbing a taxi driver, driving while impaired and refusing to provide a breath sample. Most serious part of the offence is the robbery. Crown submits a four year sentence is appropriate; defence submits Gladue principles call for a more lenient custodial sentence. Sentencing judge found accused had shown signs of rehabilitation while out on bail. Appropriate sentence is 18 months custody, with three months enhanced credit for pre-sentence custody.

Camas Ussery. The Myth of the “Ideal Victim”: Combatting Misconceptions of Expected Demeanour in Sexual Assault Survivors.(2022) 27 Appeal 3.

… This paper explores the research on trauma and demeanour and explains why it is critical that the legal profession appreciates its importance. The paper looks at many available yet underused options within the Canadian criminal justice system to mitigate the effects of trauma on demeanour and support survivors, and argues that their increased use would benefit survivors while maintaining the presumption of innocence that lies at the heart of a criminal trial.

Don Stuart. Fan: The Vexing Question of Distinguishing Mistakes of Fact from Those of Law. (2022) 75 C.R. (7th) 22 (WLNC – request a copy). In R. v. Fan, … the courts were confronted with the argument that the accused had a number of licences that made their grow operation legal. The trial judge rejected the defence and convicted. When the appeal reached the Court of Appeal Justice Trotter dismissed the appeal on the basis that the trial judge did not accept the evidence that they believed the grow operation was legal. In the alternative he carefully explored what he rightly dubbed the “vexing” question of whether, if there was such a mistake, it was one of law or fact. 


Family Law

Johnson v. Miazga, 2022 MBQB 80: Motion for recusal. Respondent requests Petersen, J. be recused as the case conference judge on the basis of alleged apprehension of bias on an individual basis as well as an institutional basis, because petitioner’s counsel is the daughter of a former family division justice. Extensive analysis of the law regarding recusal. Motion dismissed.

Eichkorn v Eichkorn, 2022 MBQB 79: Master’s report re separation date. Parties are two years apart on date of separation. In absence of agreement, s. 16 of The Family Property Act provides that the separation date is the date when the spouses last cohabited with each other. Affidavits of the petitioner, respondent and one witness served as the direct evidence. Parties lived under the same roof until June 2020; dispute is over when they began to live separate and apart under the same roof. After analysis of evidence, Master accepts petitioner’s position.

J.L.B. v. C.D.R., 2022 MBQB 74: Claims for divorce, parenting arrangements and child support. Parties agreed to an order of joint custody; mother sought an order of primary care and control with final decision-making authority and specified periods of care to the father, with certain conditions. Father sought a shared care arrangement with equal decision-making authority. Father has a significant history of drug addiction and mental health concerns. Under best interests of the child, mother is awarded primary care and control. Father is ordered to provide annual financial disclosure; divorce judgment issued.

Chanel v. Chanel, 2022 MBQB 70: Motion by petitioner (wife) for an order of summary judgment incorporating the terms of a purported settlement agreement concerning child and spousal support, and the sharing of assets and liabilities. Respondent (husband) opposes, stating he didn’t agree to the settlement agreement. Both parties were represented by experienced counsel. Analysis of appropriateness of summary judgment in a family law context. Doyle, J. finds that there is, wife is entitled to summary judgment pursuant to Rule 70.18.1.

R.J.S. v. The Director of Child and Family Services, 2022 MBQB 69: Objection to placement of name on Child Abuse Registry. The Registry is provincial jurisdiction and not tied to a criminal prosecution, so the proceedings are a civil process, determined on the civil burden of a balance of probabilities. Evidence included testimony of applicant and (now adult) child, plus initial disclosure email made to ECFS staff, written response to NOPI by R.J.S., and other documents. On a balance of probabilities, Court is satisfied that R.J.S. did abuse his child.

Windsor v. Hink, 2022 MBQB 30: Reference for accounting under The Family Property Act. Parties have kept most of their funds separate. Master must consider which funds have been intermingled. Consideration of numerous recent decisions on the issue of tracing and whether assets that are alleged to be inherited or pre-acquired remain exempt. Analysis of growth of funds in child’s RESP funded, in part, by child support received by mother, and whether a portion of that should be considered an asset of the wife and shareable with the husband (issue of “excessive gifting”).

Nicholas Bala and Rachel Birnbaum. Focusing on Children in Post-Separation Parenting. The Lawyer’s Daily, April 27, 2022.

Rollie Thompson, Q.C. SSAG FAQs 2022: Your Frequently (or occasionally) Asked Questions About the SSAG, and Some “Answers”.


Labour and Employment Law

People Corporation v. Mansbridge, 2022 MBCA 37: Plaintiff sought an interlocutory injunction against the defendant (a former employee) and his new employer to enforce restrictive covenants and a confidentiality clause. Motion was dismissed; this is the appeal. Issue of standard to be applied when considering the test set out in RJR-MacDonald Inc. v. Canada (Attorney General). CA determined a “strong prima facie case” is the standard. Appeal dismissed. 

Thorne v. NNCEA Inc.,2022 MBQB 62: Action for remedies in connection with termination of employment in June 2016. Defendant moves to dismiss the plaintiff’s action for delay pursuant to Rule 24.01 of the Queen’s Bench Rules. Plaintiff filed statement of claim in May 2017, amended December 2018; statement of defence filed February 2019. Plaintiff and his counsel discussed a reply between March and May 2019. Plaintiff made offer to settle in May 2020. Issues of whether there has been a delay, and whether the delay has resulted in significant prejudice. Both parties contributed to the delay. Chartier, J. found there was enough activity to move the file forward to dismiss the motion.

Legislation


Federal

House of Commons
44th Parliament, 1st Session

C-11 An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
At second reading in the House of Commons
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C-19 An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures
At second reading in the House of Commons
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C-237 An Act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act
At second reading in the House of Commons
Show details

Senate

S-203 An Act respecting a federal framework on autism spectrum disorder
Short title: Federal Framework on Autism Spectrum Disorder Act
At third reading in the Senate
Show details

S-241 An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals)
At second reading in the Senate
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S-243 An Act to enact the Climate-Aligned Finance Act and to make related amendments to other Acts
At second reading in the Senate
Show details


Provincial

Bill NumberSponsored byAs proposed   (Click PDF for the bilingual version)
228Ms. NaylorThe Eating Disorders Awareness Week ActPDF
229MLA LindseyThe Transportation Infrastructure Amendment ActPDF
230Mr. WasyliwThe Budget Impact Reporting ActPDF
232Mr. MalowayThe Catalytic Converter Identification ActPDF
233Mr. WishartThe Engineering and Geoscientific Professions Amendment ActPDF
234Mrs. SmithThe Drug-Related Death Bereavement Day ActPDF
235Mr. AltomareThe Public Schools Amendment Act (Nutrition Programs)PDF

Proclamations

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2021, c. 48The Reducing Red Tape and Improving Services Act, 2021 s. 51 Jun 202227 Apr 2022Proclamation
SM 2022, c. 7The Peak of the Market Reorganization Act Whole Act20 Apr 202212 Apr 2022Proclamation

Legislative Updates

News

April 22, 2022 – Manitoba Government proclaims new Public Service Act
“The Manitoba Public Service Commission advises the Manitoba government has proclaimed the Public Service Act (PSA) to replace the Civil Service Act.

…the PSA provides a legislative framework for an ethical and effective public service for Manitoba by setting out fundamental values such as transparency, accountability, integrity and respect for others. It provides a modern and innovative approach to workforce management supported by a code of conduct and an action plan that strengthen the foundation for a dynamic public workforce.” More information can be found here.

May 2, 2022 – Manitoba government enacts accessible information and communication standard regulation
“The Accessible Information and Communication Standard Regulation is the third standard under the Accessibility for Manitobans Act. It reduces barriers related to accessing information provided in print, in-person, on websites or in other formats. Standards have been put in place previously for accessible customer services and employment.” Read the full news release here.

Government Bills

2nd Reading

2 The Public Services Sustainability Repeal Act

7 The Police Services Amendment Act (Enhancing Independent Investigation Unit Operations)

8 The Court of Appeal Amendment and Provincial Court Amendment Act

15 The Drivers and Vehicles Amendment and Highway Traffic Amendment Act

16 The Financial Administration Amendment Act

17 The Family Law Act, The Family Support Enforcement Act and The Inter-jurisdictional Support Orders Amendment Act

18 The Legislative Security Amendment Act

19 The Beneficiary Designation (Retirement, Savings and Other Plans) Amendment Act

21 The Highway Traffic Amendment and Manitoba Public Insurance Corporation Amendment Act

23 The Reducing Red Tape and Improving Services Act, 2022

26 The Officers of the Assembly Act (Various Acts Amended)

27 The Highway Traffic Amendment Act (Alternative Measures for Driving Offences)

29 The Mennonite College Federation Amendment Act

30 The Police Services Amendment and Law Enforcement Review Amendment Act

33 The Municipal Assessment Amendment and Municipal Board Amendment Act

34 The City of Winnipeg Charter Amendment and Planning Amendment Act

35 The Commemoration of Days, Weeks and Months and Related Repeals and Amendments Act

In Commitee

31 The Minor Amendments and Corrections Act, 2022 (no amendments)

32 The Victims’ Bill of Rights Amendment Act (no amendments)

Private Bills

Introduced

221 The Apprenticeship and Certification Amendment Act (Apprenticeship Supervision)The Apprenticeship and Certification Act. Currently, the number of apprentices a journeyperson may supervise is set by regulation. This Bill requires a 1 to 1 supervision ratio for most trades. A trade may continue to have a greater number of apprentices supervised by a journeyperson if a higher ratio is set by regulation for that trade before this Bill takes effect.

228 The Eating Disorders Awareness Week Act – proclaims February 1 to February 7 of each year as Eating Disorders Awareness Week.

229 The Transportation Infrastructure Amendment Act – amends The Transportation Infrastructure Act to add a requirement that the minister establish standards for clearing snow from provincial roads. These standards must meet the minimum requirements set out in a schedule to the Act and must be published.

230 The Budget Impact Reporting Act – establishes The Budget Impact Reporting Act. The Minister of Finance must report on the effects of the government’s budget decisions on economic and social inclusion and greenhouse gas emissions in Manitoba.                      

232 The Catalytic Converter Identification Act – requires a motor vehicle dealer to mark the vehicle identification number for every vehicle sold by the dealer on that vehicle’s catalytic converter. Amendments to Bill 9, The Scrap Metal Act, require scrap metal dealers who purchase a catalytic converter with a vehicle identification number on it to record that number and provide it to police and Manitoba Public Insurance.

233 The Engineering and Geoscientific Professions Amendment Act –  amends the Engineering and Geoscientific Professions Act with new responsibilities of the registrar, specifies scope of practice licensees, changes to continuing professional development, and appeals.

235 The Public Schools Amendment Act (Nutrition Programs) – amends The Public Schools Act to require the minister to report each year by school division and school district on the schools that provided a nutrition program during the previous fiscal year. The minister must table the report in the Assembly and make it available to the public.

2nd Reading

234 The Drug-Related Death Bereavement Day Act – proclaims the Sunday before Mother’s Day of every year as Drug-Related Death Bereavement Day, a day to reflect on the impact of drugs in Manitoba and to grieve those lost to drugs.

In Commitee

223 The Ukrainian Heritage Month Act – proclaims the month of September as Ukrainian Heritage Month

227 The Turban Day Act

Proclamations

ChapterTitle    (provisions)Date in forceDate signedProclamation
SM 2021, c. 48The Reducing Red Tape and Improving Services Act, 2021 (section 5)1 Jun 202227 Apr 2022Proclamation
SM 2022, c. 7The Peak of the Market Reorganization Act (whole Act)20 Apr 202212 Apr 2022Proclamation

For the status of all current bills click here.


Great Library History – part 2

Manitoba Law Library – A story of change pt. 2

“Rather oddly, the [Law Society] Act does not require, nor even explicitly authorize, the Society to maintain a library. But nevertheless it does so;” (Cameron Harvey – The Law Society of Manitoba 1877-1977)

The story of the Great Library and the Old Law Courts Building is fundamentally a story of change. As the judiciary grew to accommodate the growth of the City and Province, so too did the courthouses. From early log cabin style buildings to the original courthouse on Kennedy Street, finally to the construction of the Old Law Courts Building on Broadway, the early story of the judiciary and its buildings is one of expansion.

“Old Law Courts Building on Kennedy Street built in 1882, replaced in 1893. University of Manitoba Archives and Special Collections, Art Work on Winnipeg RBR FC 3396.37.A77, volume 6 page 4.” – retrieved from Heritage Winnipeg site

This was also reflected in the need for a law library to serve the city’s legal practitioners, and in 1871, one of the first actions the newly formed Bar Society took was the establishment of the first library in the Kennedy Street courthouse. As the judiciary expanded, so did the need for library services – regional libraries followed suit in the province and the library continued to grow its collection. That said, frugality has always been a hallmark of the library, and the library’s budget has always been one of the cost-saving areas of the Law Society.

Despite the profession’s acknowledgment of the necessity of a library and its usefulness evidenced by its steady expansion, the library (like today) occupied a paradoxical space, caught between a clear need and being one of the first areas to face budget cuts when times were lean. In 1885, for example, despite a majority of the Benchers being in favor of establishing a downtown library branch in the McIntyre Block, a deficit of $700 in the library budget meant setting aside the plans when it came down to a vote. This trend would continue through the twentieth century.

During the Depression, the library suffered drastic cuts to its purchasing capacity, which continued during the war years when members were no longer contributing fees while they were in service. In 1972 the Law Society commissioned a report that would review the adequacy of the library’s resources. The report found that the library was not meeting the needs of the profession and allocated money to hire a full-time librarian and to improve the collection. Not long after, Garth Niven was hired as Chief Librarian and he saw the library through the next three decades of rapid technological and structural change.

After reading the old annual reports during the building renovations in the 1980s, I wanted to find out more about this next chapter in the Library’s history. Karen insisted that the person I had to speak with was Facility Manager of the Law Courts Complex, Martin Jandavs. Martin had been at the Law Courts Complex during the time of the renovation and would know everything about the changes that the buildings had undergone. Martin graciously agreed to speak with me about the Old Law Courts Building, and he did not disappoint. We sat at one of the original carved wooden tables in the Library, and he told me all about the last 40 years at the Law Courts.

Continued in part 3…

Part 1