New Notices: COVID-19 Update

January 18, 2022 – Notice – Provincial Court of Manitoba RE: COVID-19 Suspension and Restriction of Hearings

“This Notice is further to the Notices issued December 23, 2021 and December 29, 2021. We continue to be concerned about the COVID-19 numbers and the Omicron variant. Given this, and in order to continue to balance the health and safety of court participants with providing meaningful access to justice, we will be extending the court closures set out in the above noted Notices up to and including February 25, 2022.”

“Please review the Notice of January 7, 2022, as a reminder on how to book remote appearances.”

Visit the Manitoba Courts website for all COVID related notices.

Journals Update

The latest issues of these journals are out and available for members. PDF copies of these articles are available upon request following copyright fair use guidelines. Contact us at library@lawsociety.mb.ca for more information.

Education and Law Journal

  • Annual Review of Education Law 30 Educ. & L.J. 237

Manitoba Law Journal  (also available on CanLII.org)

Vol 44, no 3

  • Preface & Issue Overview “Ultra Vires and Void:” an Executive Inquiry Takes on Manitoba’s Legislative Building Crisis (And Wins)
    44 Man. L.J. 185 Tom Mitchell
  • Triaging and Mediating to Meet the Needs of Families under the Family Dispute Resolution (Pilot Project) Act of Manitoba
    44 Man. L.J. 1 Stefanie Goldberg
  • Bad Law: Rethinking Justice for a Postcolonial Canada
    44 Man. L.J. 299 Justice Gerald Jewers
  • A Deposit in a Pre-Incorporation Transaction Is Still a Deposit: A Comment on Benedetto v 2453912 Ontario Inc
    44 Man. L.J. 225 Darcy L. MacPherson
  • High Time for Change: Combatting the Black Market for Cannabis in Canada
    44 Man. L.J. 257 Nick Noonan
  • Readability in the Canadian Tax System
    44 Man. L.J. 63 Colin Jackson
  • The Premier Should Not Also Be the Attorney General: Roncarelli v Duplessis Revisited as a Cautionary Tale in Legal Ethics and Professionalism
    44 Man. L.J. 155 Andrew Flavelle Martin
  • The Duty of Legislative Counsel as Guardians of the Statute Book: Sui Generis or a Professional Duty of Lawyers?
    44 Man. L.J. 116 Andrew Flavelle Martin

Vol 44, no 4

  • The Troubled History of the Defence of Duress and Excluded Offences: Could the Reasoned Use of Mitigation on Sentencing Prevent Duress from (Further) Becoming Archaic, Gendered, and Completely Inaccessible?
    44 Man. L.J. 33 Frances E. Chapman, Georgette M. Lemieux
  • Fitness to Stand Trial and Dementia: Considering Changes to Assessment to Meet Demographic Need
    44 Man. L.J. 177 Shauna Sawich, Hygiea Casiano
  • Fundamentally Flawed: The Arbitrariness of the Corporal Punishment Defence
    44 Man. L.J. 87 Mark Carter
  • The Availability of the Common Law Defence of Duress to Principals Charged with Murder: An Analysis of the Conflicting Appellate Decisions in R v Willis (TAW) and R v Aravena
    44 Man. L.J. 136 Robert H. Tanha
  • The Constitutionality of Excluding Duress as a Defence to Murder
    44 Man. L.J. 111 Colton Fehr
  • The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence
    44 Man. L.J. 1 Isabel Grant
  • Year in Review
    44 Man. L.J. 208 David Ireland

Vol 44, no 6

  • Shattered: The Historic and Continued Breaching of Indigenous Persons Right to Reasonable and Timely Bail
    44 Man. L.J. 170 Sean Gallop
  • Blurred Lines: A Critical Examination of the Use of Police Officers and Police Employees as Expert Witnesses in Criminal Trials
    44 Man. L.J. 48 Brandon Trask, Evan Podaima
  • Algorithmic Policing Technologies in Canada
    44 Man. L.J. 246 Shawn Singh
  • Predictive Policing and the Charter
    44 Man. L.J. 224 Kaitlyn Hiller
  • California Wrongful Incarceration Compensation Law: A History That Is Still Being Written
    44 Man. L.J. 194 Kelly Shea Delvac
  • Talking to Strangers: A Critical Analysis of the Supreme Court of Canada’s Decision in R v Mills
    44 Man. L.J. 108 Chelsey Buggie
  • Detained on Sight: The Socioeconomic Aspect of Social Context in R v Le
    44 Man. L.J. 138 Lewis Waring
  • Pungent Sound: Analyzing the Criminal Enforcement of Environmental Law in the Pacific Northwest
    44 Man. L.J. 76 Joshua Ozymy, Melissa Jarrell Ozymy
  • Wrongful Extradition: Reforming the Committal Phase of Canada’s Extradition Law
    44 Man. L.J. 1 Robert J. Currie

New Notices: COVID-19 Update

January 14, 2022 – Notice to the Profession – Manitoba Court of Queen’s Bench – Masters RE: COVID-19 Update

“The Notices issued by Manitoba Court of Queen’s Bench Masters on March 17, 2020, April 7, 2020, April 24, 2020, May 11, 2020, and September 1, 2020 are being updated with the changes noted below, which are to take effect immediately, and continue in place to at least March 4, 2022, or further notice of the court. These changes reflect the challenges related to the continuing and increasing threats associated with the COVID-19 virus and in particular, the alarming increase in the positivity rate within our communities. These changes will mirror those announced by the Chief Justice, Court of Queen’s Bench for the period of January 10 to March 4, 2022.

“Given the increasing rates of community transmission and potential impact on Manitoba’s healthcare system, we are cancelling all in-person hearings set to proceed during this period, or until further notice.”

The full text outlining the changes can be accessed here.

Visit the Manitoba Courts website for all COVID related notices.

Legislative Update – Proclamations

Several new proclamations were signed last month with many of them coming into effect soon.

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2021, c. 14The Pension Benefits Amendment Act subsection 10(1), section 11 and clause 17(a)20 Dec 202115 Dec 2021Proclamation
SM 2021, c. 40The Court Practice and Administration Act (Various Acts Amended) Parts 4 and 71 Jan 202215 Dec 2021Proclamation
SM 2021, c. 40The Court Practice and Administration Act (Various Acts Amended) Part 51 Feb 202215 Dec 2021Proclamation
SM 2021, c. 51The Liquor, Gaming and Cannabis Control Amendment Act (2) whole Act17 Dec 202115 Dec 2021Proclamation
SM 2021, c. 15The Regional Health Authorities Amendment Act (Health System Governance and Accountability) subsections 91(1) and (17) to (22) and clauses 91(23)(b) to (d)1 Jan 20221 Dec 2021Proclamation
SM 2021, c. 26The Municipal Statutes Amendment Act Part 21 Jan 20221 Dec 2021Proclamation

See here for all current proclamations.

eLex January 2022

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Bankruptcy LawProvincial
Discipline DigestsCivil Litigation
New Library ResourcesCorporate and Commercial Law
Book ReviewsCriminal Law 
EventsFamily Law 
 Wills, Trusts & Estates 
  

News


In the News

Province reworks pension regulations – “Manitoba has amended funding rules to provide relief to pension plans and strengthen the pension regulatory system. Changes to the Pension Benefits Regulation establish new rules for funding private-sector defined benefit pension plans.”


Court Notices & Practice Directions

Attention Counsel and Self Representing Individuals

Changes affecting the Provincial Court
Changes affecting the Court of Queen’s Bench
Changes affecting the Court of Appeal

Provincial Court

Notice – Direction to Facilitate Remote Appearances (January 7, 2022)
Notice – Suspension and Restriction of Hearings (December 29, 2021)
Notice – Suspension and Restrictions of Hearings (December 23, 2021)

Queen’s Bench

Notice – Adjustments to Current Scheduling Protocols – Jan 10 – March 4, 2022 for General and Family Divisions (December 24, 2021)

Court of Appeal

Notice – All Hearings of the Court of Appeal will be conducted remotely starting January 4, 2022 until further notice (December 20, 2021)

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

Other notices

Court of Queen’s Bench

December 22, 2021 – Amendments to the Court of Queen’s Bench Rules

Provincial Court

December 20, 2021 – Changes to Adult Bail Triage Procedure (Courtroom 301) and Bail Court (Courtrooms 304 and 306)


Discipline Digests

DateNameCase No.DecisionDescription
2021-12-31KHANDELWAL, Subhash Chand2021-11Conduct & ConsequencesBreach of Integrity / Conflict of Interest / Breach of Undertaking to the Law Society
2021-12-20BAUMAN, Gregory Lloyd2021-10Conduct & ConsequencesBreach of Integrity / Conflict of Interest / Quality of Service
2021-12-14Member A2021-09Conduct (Acquittal)Quality of Service / Offensive Communication
2021-12-10HOGUE, Joseph Jules Alain2021-08Conduct & ConsequencesFailure to Provide and Ensure Adequate Supervision of Support Staff

New Library Resources

New in Print

From Emond Publications

Digital Evidence, 2nd ed. Gerald ChanSusan Magotiaux

This is the first comprehensive text on this facet of law. It is designed to clarify the nuances of the authentication and admissibility of digital evidence, privacy rights, the uses and limits of social media evidence, and the search and seizure of electronic devices. This text also explores the ways in which law enforcement can access digital data in the hands of third parties, including the various powers created by Bill C-13 (Protecting Canadians from Online Crime Act).

Search and Seizure David SchermbruckerRandy SchwartzMabel LaiNader Hasan

Search and Seizure provides a practical examination of the evolving body of legal rules and principles that govern how reasonable searches and seizures are conducted. In particular, it considers the increased complexity of assessing a person’s reasonable expectation of privacy in the digital age. This handbook addresses central concerns and relevant topics such as Section 487 Search Warrants, computer device searches, warrantless searches, and exclusion of evidence.

Modern Criminal Evidence

Modern Criminal Evidence is the first major treatise to provide a truly practical and comprehensive guide to criminal evidence law in Canada. Unlike other texts in this area, this book’s practical approach guides readers through evidentiary issues in all components of criminal law, providing indispensable insight from Crown, defence, and judicial perspectives.

Prosecuting and Defending Fraud Cases, 2nd ed.

Guiding readers step by step throughout the process of a fraud case, this practical resource weaves strategic information with case law analysis and relevant provisions of the Criminal Code. This edition features up-to-date legislation, additional content, updated charts, and a new chapter on cyber fraud in Canada.

From LexisNexis

  • Regulatory Law and Practice, 3rd Edition takes a multi-jurisdictional approach to regulatory law principles and regulatory processes, describing case law and regulatory processes in jurisdictions across the Commonwealth and beyond.
  • The Law of Privacy, 3rd Edition is a comprehensive treatise providing a thorough overview of Canadian privacy law and includes two main sections: Personal Information Protection in Canada and  Privacy. This book also features a helpful annex that provides guidance on how to manage personal information, including how to build privacy management frameworks and the privacy issues that must be addressed in outsourcing and procurement.
  • The Encyclopedic Dictionary of Canadian Law “From the very first entry (“A or a”) to the last (“ZZZZ”), it is clear that this new publication is the most comprehensive Canadian legal dictionary available. It is a thoroughly contemporary, truly essential resource that even includes definitions of common acronyms now used in text slang – a useful addition given the extent to which text messages are now used as evidence in criminal proceedings.”
  • Dangerous Offender Law – Written by three experts in the field, including defence counsel and intervenor from the landmark R. v. Boutilier case at the Supreme Court of Canada, Dangerous Offender Law presents criminal justice participants and the Canadian public with a long overdue guide to understanding the complex sentencing regime set out in Part XXIV of Canada’s Criminal Code.
  • In Drafting Wills in Canada: A Lawyer’s Practical Guide, 3rd Edition, authors Robyn Solnik, Brian Gillingham and Caroline G.S. Kiva demonstrate the most common errors made by solicitors in drafting wills, powers of attorney, and other estate planning documents. The detailed explanations give readers deep insight into why the errors are wrong and what can be done to correct them. The 3rd Edition includes helpful examples of good and bad drafting, along with dozens of practical tips both for drafting and for managing a wills practice.
  • The Doctrine of Res Judicata in Canada, 5th Edition – The book’s analysis, terminology and description of the law have been adopted by the Supreme Court of Canada, and have been cited on numerous occasions by provincial trial and appellate courts and by tribunals across Canada. The text provides a comprehensive distillation of the res judicata doctrine that has evolved in 200 years of Canadian jurisprudence.

Book Reviews

Review taken from the Canadian Law Library Review Vol. 46 Issue 4

Is Law Computable?: Critical Perspectives on Law and Artificial Intelligence. Edited by Simon Deakin and Christopher Markou. Oxford; New York: Hart Publishing, 2020. xxi, 320 p. Includes bibliographic references and index. ISBN 978-1-5099-3706-6 (hardback) $130.05.

“If you have any interest in artificial intelligence (AI), especially if it’s coupled with a desire to learn more about how developments in AI are related to law and legal technology, then this collection of papers has been compiled just for you.

As AI continues to seep into many areas of legal practice, this is an important collection of critical papers relevant not just for law libraries but for any library collection hoping to inform readers about ongoing developments in AI and society.”


Events

MBA 2022 Mid-Winter Conference Jan 20 – 21 2022

Thursday, January 20, 2022
9:00am – 11:30am Morning Continuing Legal Professional Development Sessions

–         Family Law Year Review
–         Issues of Sexual Violence Across the Law: A Trauma-Informed Lens
–         Mental Health Accommodations in the Workplace
–         Advising Commercial Landlords and Tenants in Insolvency

11:45am – 1:45pm – EPPM session – Lawyers Strong: Engaging Lawyers and the Legal Profession to be Changemakers for Wellbeing

2:00pm – 4:30pm Afternoon Continuing Legal Professional Development Sessions

–         Domestic Violence and Family Law
–         Manitoba Law Reform Commission: Current Areas of Law Reform
–         The Land Back Movement: What is it, and what does it mean for the legal profession and legal practitioners?
–         Textbooks to Technology – The Impact of Knowledge Aggregation, Search Functions, and A.I. on Business Law

4:30pm – 6:30pm – Bench & Bar Reception – Fairmont Winnipeg

Friday, January 22, 2021
9:00am – 11:30am Morning Continuing Legal Professional Development Sessions

–         Advising the Executor
–         Regulating Public Health
–         Taxation of Damages and Settlement Amounts
–         Sexual Assault Cases – the pitfalls, perils and how to avoid them

Awards Ceremony – 11:45am – 1:45pm

2:00pm – 4:30pm Afternoon Continuing Professional Development Sessions

–         Current Issues in Tax Law
–         Children in the Court Process: From Disclosure to Trial
–         The Balancing Act in the First Five Years of Practice
–         Impact of the Dismiss for Delay Amendments on the Profession

Click here to view the brochure

See our Calendar for more upcoming events.

Substantive Law


Administrative Law

Hyra v. The Worker’s Compensation Board of Manitoba et al., 2021 MBQB 249: Application for judicial review of decision of Appeal Commission which determined that the applicant did not sustain an injury in the course of his employment. Applicant submits that the decision is not reasonable. Applicant was a firefighter. Issue is whether the applicant suffered from PTSD in the course of his employment. Analysis of the meaning of “accident” in the Act. Standard of review is reasonableness. Application dismissed.


Bankruptcy Law

Montréal (City) v. Deloitte Restructuring Inc., 2021 SCC 53: Issue of whether the city could use
“pre-post compensation” to recoup the cost of work done under another contract. Superior court granted Deloitte’s application to stop this, CA agreed with Superior Court, and SCC ultimately agreed as well. Plain language explanation available hereWagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Martin JJ; Brown J. (dissenting).

[2]  This question thus affords the Court an occasion to interpret, for the first time, certain provisions of Bill 26 as well as the regulation made under it, the Voluntary Reimbursement Program, CQLR, c. R‑2.2.0.0.3, r. 1 (“VRP Regulation”). In doing so, we will clarify for public bodies the burden of proof that rests on them in seeking to establish that a claim arising from an agreement entered into under the Voluntary Reimbursement Program (“VRP”) is fraudulent.


Civil Litigation

Guilbert v. Economical Mutual Insurance Company, 2022 MBCA 1: Request for extension of time to file a notice of appeal of judgment pronounced on March 21, 2019 and entered on April 30, 2019. Applicant (plaintiff) was denied insurance coverage of business and property which was destroyed by fire. Respondent (defendant) insurance company claimed he deliberately set the fire. Criteria for allowing an extension to commence an appeal were recently confirmed in Samborski Environmental Ltd. v. The Government of Manitoba et al., 2020 MBCA 63. Discussion of the admissibility of polygraph tests. Motion dismissed.

Royal Bank of Canada v. Universal Energy Resources Inc. et al., 2021 MBCA 105: Defendants appeal order granting summary judgment to the plaintiff for repayment of loan. UER argued that RBC had acted in bad faith in demanding repayment. Appeal dismissed, with costs on a solicitor and client basis as per the provisions of the loan agreement.

Martens v. The Manitoba Public Insurance Corporation, 2021 MBCA 102: Appeal of whether MPI has a duty to act in good faith in administering the personal injury claim of an uninsured automobile accident victim. In 1998, plaintiff was a passenger in an uninsured vehicle that was involved in a serious accident. She received Income Replacement Indemnity which was periodically reviewed by MPI. In 2003 she was charged with fraud, and acquitted in 2005, eventually receiving a full retroactive payment of IRI up to 2012. She sued MPI claiming damages for breach of the duty of good faith in how it dealt with her claim. Standard of review is correctness. CA found that trial judge erred in finding MPI acted in bad faith.

Christie Building Holding Company Limited v. Shelter Canadian Properties Limited, 2021 MBCA 103: Applicant appeals determination by case management judge as to what constitutes the record for the purposes of two applications for leave to appeal from decisions made by a commercial arbitrator. CA finds appeal is premature; appeal dismissed.

Hofer v. Hofer et al., 2021 MBQB 265 : Further reasons to those set out in Hofer v. Hofer et al., 2021 MBQB 175, concerning breach of trust. Order removing respondent Rodney Hofer as trustee of the colony, and removed as an officer and director of any corporate entity used to carry on Rainbow’s operations. Deloitte Restructuring to remain court-appointed monitor of Rainbow until further order.

Muzik v. Worthington et al., 2021 MBQB 263: Trial seeking damages for defamation. Defendant Mr. Worthington alleged that he commuted his CPR pension to an investment plan devised by the plaintiff that lost half the value of the pension. At trial, only remaining defendants were CBC and CBC reporter Ms. Sawicka. Rempel, J. found that the investigation fell below the objective journalistic standard. Discussion of the legal test as to the definition of defamatory words, as well as possible defences. Plaintiff is successful. Damages awarded in the amount of $1,659,403.

Dumesnil v. Dr. Jacob et al., 2021 MBQB 240: Case of medical malpractice. Plaintiff suffered a severely comminuted calcaneal fracture due to an automobile accident in 2006. Test for issues is described in Campbell et al. v. Jones et al., 2016 MBQB 10. Parties agreed that defendants owed a duty of care to the plaintiff. Discussion of how to determine the standard of care as relates to a hospital in a rural setting. Lanchbery, J. considers standard of care on several issues: timing of surgery; premature removal of sutures; procedure when infection found; negligence regarding quality of reduction; and others. Claim is dismissed; provisional damages are set.

Long v. Beamish, 2021 MBQB 260: Master’s report on assessment of lawyer’s bill. Litigation had been ongoing since 2008. Applicant claimed respondent lawyer had told her fees would be capped at a particular maximum but she paid much more. Respondent had billed applicant regularly throughout the litigation, and she had paid each bill. Both parties testified and were cross-examined. Master found all fees were fully disclosed. Application dismissed with costs to the respondent.

Long v. Philipp and MacDougall, 2021 MBQB 254: Motion for adjournment of trial for action ongoing since 2008. Two issues: whether the plaintiff has established that the trial out to be adjourned; and whether she has demonstrated that her prime reason (to be able to pursue the set aside motion) is sufficiently procedurally and substantively sound. Analysis of the Set Aside Rule (59.06(2)). Motion denied.

O’Connor v. Bains et al., 2021 MBQB 255 : Motion by defendants for summary judgment, based on plaintiff’s claim raising no genuine issue requiring a trial. Dewar, J. finds otherwise. Motion dismissed.

Parsons v. Saskatchewan Mutual Insurance, 2021 MBQB 252: Queen’s Bench Rule 22:  Special Case. Parties agreed to certain facts allowing the court to make the requested determinations. Conflict is over insurance coverage under a specified peril policy for a rental property damaged by fire caused by the tenant. Analysis of s.136.8 of The Insurance Act re prohibited exclusions. Abel, J. finds that the defendants are not liable to indemnify the plaintiffs.

Ultracuts v. Magicuts, 2021 MBQB 250: Tort of unlawful interference with economic interests by means of an unlawful act against a third party. Issue of which franchise would be licensed for Wal-Mart stores after Wal-Mart’s purchase of Woolworths stores. Saull, J. finds that plaintiff has established liability (para. 141) and assigns damages of $34,575.000.

Glover v. The Progressive Conservative Party of Manitoba, 2021 MBQB 246: Application seeking declaratory order that the Progressive Conservative Party election of October 30, 2021 is invalid. First issue to be determined is whether the court has jurisdiction to decide the dispute; Edmond, J. determines he does. Consideration of whether the applicant has exhausted other remedies. Acceptance of motion by Heather Stefanson for intervenor status. Matter scheduled on an expedited basis.

85 Academy Road Development Corporation et al. v. Rona Inc. et al., 2021 MBQB 241: Examination of Rule 24 (dismissal for delay) and its application to counterclaims. Claim was first filed in 2007 over project completed in 2006. No significant advances since filing the plaintiffs’ reply and defence to counterclaim. All parties seek an order for dismissal for delay. Rona also seeds an order for return of trust funds paid to its lawyer for security. All three parties delay motions are allowed. Plaintiffs’ claim and Rona’s counterclaim are dismissed. Trust funds are to be released back to the plaintiffs.

Dumesnil v. Dr. Jacob et al., 2021 MBQB 240: Case of medical malpractice. Plaintiff suffered a severely comminuted calcaneal fracture due to an automobile accident in 2006. Test for issues is described in Campbell et al. v. Jones et al., 2016 MBQB 10. Parties agreed that defendants owed a duty of care to the plaintiff. Discussion of how to determine the standard of care as relates to a hospital in a rural setting. Lanchbery, J. considers standard of care on several issues: timing of surgery; premature removal of sutures; procedure when infection found; negligence regarding quality of reduction; and others. Claim is dismissed; provisional damages are set.

Jeff Buckstein. Ambiguous “pollution exclusion” cited as Appeal Court upholds insurer’s duty to defend. The Lawyer’s Daily, January 6, 2022. Case comment on Hemlow Estate v. Co-operators General Insurance Company 2021 ONCA 908.

Robert Hamilton and Howard Kislowicz. The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? 2021 59-1 A.L.R. 41. Case comment on the Coldwater Indian Band v. Attorney General of Canada, 2020 FCA 34.

Cindy Kou. Barring New Bids from Contractors Who Have Made Claims against Municipal Owners. (2021) 8 C.L.R. (5th) 170. (WLNC – request a copy.) Case comment on J. Cote & Son Excavating Ltd. v. City of Burnaby, 2018 BCSC 1491.

May municipal owners exclude bids from contractors who have previously sued the owners? Would it be unconstitutional or contrary to public policy for a municipality to do so?


Corporate and Commercial Law

Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51: Tax law issue: Canadian corporate taxpayer not including income earned by foreign subsidiary in Canadian tax return for several taxation years. Reasons for judgment: Côté J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Martin and Kasirer JJ. concurring).

[2]  The FAPI regime is one of the most complicated statutory regimes in Canadian law. Although it has come before us after several years of diligent work by sophisticated auditors and legal counsel, the question in this appeal is remarkably straightforward. Does a parent corporation conduct business with its CFA when it provides capital and exercises corporate oversight? In my respectful view, the answer is an equally straightforward no.

Rosenberg et al. v. Securtek Monitoring Solutions Inc., 2021 MBCA 100: Appeal of dispute over contractual interpretation. Parties disagreed as to whether similarly worded purchase agreements create a contractual right for the plaintiffs. Trial judge agreed with the plaintiffs and awarded compensatory damages with pre-judgment interest as well as an unusually high costs award. Defendants appeal on grounds related to the finding of liability in relation to the calculation of compensatory damages and on the costs awards. Appeal allowed. CA finds that there are two palpable and overriding errors made in the interpretation of the purchase agreements.

Criminal Law

R. v. Lai, 2021 SCC 52: Oral decision re exercising the right to re-elect. Appeal of R. v. Lai, 2021 BCCA 105. Appellant waited 15 months to re-elect after his trial dates were set in Provincial Court, causing an additional delay. Majority of SCC dismissed the appeal, Côté, J. dissenting.

R. v. Flett et al., 2021 MBCA 104 : Five accused were jointly charged; judge convicted all five on three of the 12 counts. Three of the accused have appealed their convictions and one also appealed his sentence. Submissions on conviction are that the trial judge erred on her application of Vetrovec v. The Queen and that the verdicts are unreasonable. The submission on the sentence appeal is that the sentence was harsh and excessive. CA found that trial judge’s reasons demonstrate that she did caution herself appropriately. Conviction appeals dismissed, leave to appeal the sentence denied.

R. v. Alcorn, 2021 MBCA 101: Appeal about fitness of sentence for the offence of purchasing sexual services from a child. Trial judge sentenced accused to 15 months’ imprisonment less time served. CA finds judge made errors in principle in assessment of proportionality. Crown appeal allowed, sentence varied to a term of five years’ imprisonment, less time served. Analysis of R. v. Friesen, 2020 SCC 9 and how it affects the sentence.

R. v. King and Laquette, 2021 MBQB 274: Co-accused charged with second degree murder. Determination of proof takes into consideration intoxication through drugs and/or alcohol and assertions of self-defence and provocation. Charges dismissed.

R. v. Brass, 2021 MBQB 272: Accused convicted by a jury of second degree murder. Sentence is life imprisonment. Issue is the period of time he must serve before he is eligible to seek parole. Consideration of the sentencing provisions found in s.718 of the Criminal Code. Gladue factors and moral blameworthiness taken into account. Accused sentenced to life in prison with no possibility of parole for 17 years.

R. v. C. (A.D.W.), 2021 MBQB 268: Trial for first degree murder, attempted murder and discharging a firearm. Accused was 14 years old at the time of the offence. Mix of evidentiary and legal issues at play. Video evidence is key to determining facts. Level of intoxication of accused is relevant to his intentions. Accused found guilty.

R. v. R.D.S., 2021 MBQB 264: Sentencing decision where accused pleaded guilty to sexual interference, invitation to sexual touching, making and possessing child pornography. Accused is child’s mother; child was 4-5 when offences occurred. Crown seeks a total sentence of 20 years in custody; defence submits a sentence in the range of 10-12 years is appropriate. In sexual offences against children, the court must give primary consideration to deterrence and denunciation. Saull, J. considers R. v. Wells, 2000 SCC 10 for authority for the proposition that where the offence is a violent and serious one, the appropriate sentence should not and will not differ between Indigenous and non-Indigenous offencers (para 108). Extensive discussion of factors used to determine sentence, including Gladue report, circumstances of the accused, and mitigating and aggravating factors. Sentence of 20 years.

R. v. Blacksmith, 2021 MBQB 257: Trial for second degree murder; Crown must prove that accused committed an unlawful act; that the act caused the death of the victim; and that the accused either meant to cause the death … and was reckless. Accused submits that the evidence is circumstantial. Primary cause of death was smoke inhalation; victim also had numerous blunt force injuries. Analysis and explanation of admissibility of expert evidence. Evidence is circumstantial. Starting point for analysis is SCC decision of Villaroman. Edmond, J. finds accused guilty of second degree murder.

R. v. McKay, 2021 MBQB 256: Trial for first degree murder. Many witnesses testified putting accused at scene. Most were intoxicated at the time so credibility was undermined. McKelvey, J. finds Crown has not provided proof beyond a reasonable doubt of first degree murder, but finds accused guilty of manslaughter.

R. v. K.C.C.F., 2021 MBQB 253: Sentencing decision for accused convicted of sexual interference and sexual assault. Initial motion for a stay of proceedings based on delay dealt with first. Stay denied. Accused is a permanent resident originally from Brazil; complainant was in foster care. Deterrence and denunciation are primary factors. Menzies, J. sentences him to 20 months’ incarceration.

R. v. H. (T.J.) and C. (A.D.W.), 2021 MBQB 245: Young offenders charged with first degree murder, two attempted murders and two charges of discharging a firearm with intent to endanger life. Judgment dealing with admissibility of A.C.’s comments and statements. Defence led expert evidence in area of FASD and how it affects A.C. Consideration of s.26(1) of the Youth Criminal Justice Act, providing notice to youth’s guardian. Martin, J. found that police did not comply with s. 146 and comments made by A.C. in the police car are inadmissible.

R. v. Robert, 2021 MBPC 64: Application to exclude blood sample evidence from the accused set aside by a lab technician. Accused collided with a parked dump truck and was taken to hospital after suffering severe injuries. Blood samples were taken for medical purposes and held while waiting for a warrant. Issue is whether the accused had a reasonable expectation of privacy in basic medical information. Application dismissed.

R. v. Turner, 2021 MBPC 61: Sentencing decision re guilty plea to charge of possession for the purpose of trafficking. Crown seeks three year custodial sentence; defence argues for suspended sentence. Analysis of the meaning of “exceptional circumstances” and whether they apply. Harvie, P.J. finds they do not, but notes mitigation on the part of the accused as assessed by the positive steps taken by him while out on bail. A sentence of one year is deemed appropriate.

R. v. Fontaine, 2021 MBPC 60: Voir dire over Charter motion. Defence argues that both accuseds’ right to be protected from arbitrary detention and from unlawful search and seizure were violated. Evidence obtained as a result of the unlawful arrest should be excluded from trial. Search was based on information from two confidential informants. Applicable law is as set out in R. v. Penner, 2021 MBCA 8 at para. 4. Analysis of credibility of information and sources. Rolston, P.J. determines that WPS had reasonable grounds for arrest.

Sean Gallop. 11(e) Shattered: The Historic and Continued Breaching of Indigenous Persons Right to Reasonable and Timely Bail. (2021) 44-6 M.L.J. 170.

…This paper will look at the historical access to justice issues regarding reasonable bail for Indigenous peoples, the current attempts to address this issue, and the challenges that still need to be addressed.

Steve Coughlan. R. v. Khill and the Structure of Self-Defence : Declining to See What Isn’t There. (2021) 74 C.R. (7th) 328. (WLNC – request a copy.)

The disagreement in R. v. Khill between Justices Martin and Moldaver over how to approach section 34 is entirely understandable. The genesis of their debate is that they are aiming at different things. Justice Martin is trying to put into effect the scheme that Parliament intended: Justice Moldaver is trying to create a law around defence of the person which is well-structured and allows for appellate review.


Family Law

Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54 : Exception to settlement privilege. Parties underwent mediation to resolve their custody and property arrangements. Mediator recorded his conclusions in a summary of what had been agreed upon. One party, I, filed a court action seeking greater financial compensation; other party, M, argued that the parties had entered into a contract. Trial judge relied on exception to settlement privilege; Court of Appeal dismissed the appeal. Third party (Association de mediation familiale du Québec) obtained leave to be appeal to SCC. From the headnotes:

Per Wagner C.J. and Moldaver, Côté, Brown, Rowe and Kasirer JJ.: The settlement exception generally applies. Having regard to the very nature of family mediation, to its inherent procedural safeguards and to the terms of the standard family mediation contract used in Quebec, it is neither necessary nor desirable, for the protection of vulnerable parties, to establish a rule of absolute confidentiality or to depart from the rule developed in Union Carbide relating to the settlement exception. 

Karakatsanis, Abella and Martin, J.J. concurring.

Carasquero et al v. Holder et al, 2021 MBQB 258: Master’s report on cohabitation and separation dates. Petitioner’s position is that cohabitation commenced in or about 1986 and ceased in 2019; respondent’s position is that there was no common-law relationship. Both parties are mentally incompetent; petition was filed on petitioner’s behalf by his brother and defended by the niece of the respondent. Master considers Molodowich factors. Since no evidence was able to be submitted by the parties, the master must consider the evidence submitted on their behalf, such as photographs showing them together over the years, an old Christmas card, and a bill of sale showing the address of the petitioner.

Koch v. Monk, 2021 MBQB 244: Master’s report on cohabitation dates. Dispute over the end of the cohabitation period. Petitioner indicates it ended in March 2017; respondent says May. Master considers Molodowich factors and agrees with respondent.

Rachel Birnbaum, Nicholas Bala. Ontario’s Family Law Limited Scope Services Project: Rhetoric and Realities of the Family Bar Addressing Access to Justice Challenges. (2021) 40 C.F.L.Q. 1. (WLNC – request a copy.)

There has been growing recognition that many of those without lawyers and ineligible for government funded legal services can afford some legal services, but not traditional full legal representation. Proponents of limited scope family legal services have enthusiastically promoted the expansion of this type of limited legal service. This type of innovation allows the private bar to play a more significant role in addressing the crisis of access to justice by providing more affordable limited services for lower and middle-income individuals who may not be able to afford or may want full legal representation.


Wills, Trusts & Estates

Re Wilson Estate, 2021 MBQB 248: Application by executrix to pass accounts; opposed by applicant’s sister. Respondent claims that applicant distributed household items and personal effects rather than selling them and placing the proceeds into the estate account, and she claims that applicant paid monies out of the estate for improper matters. Parties are estranged and communicate mostly by text. Detailed discussion of the parties’ difficulties communicating over a small estate.

Lisa Filgiano. Calmusky v. Calmusky: A Novel Application of the Presumption of Resulting Trust or an Outlier? (2021) Vol. 41 E.T.P.J. 7. (Request a copy). Case comment re Calmusky v. Calmusky and Mak (Estate) v. Mak.

It has been slightly over a year and a half since the release of Calmusky v. Calmusky. The decision shook the estates and trusts community and displaced the widely held understanding that the presumption of resulting trust does not extend to beneficiary designations made on registered accounts, life insurance policies or similar instruments….

More recently, in Mak (Estate) v. Mak, the court declined to follow Calmusky and held that the presumption of resulting trust did not apply to a registered retirement savings fund (“RRIF”).

Legislation


Federal

News – Senate adopts bill to ‘help jurors suffering trauma following a trial’ Amanda Jerome. The Lawyer’s Daily. December 13, 2021.

Bill S-206, (An Act to amend the Criminal Code [disclosure of information by jurors]), passed its third reading in the Senate on Dec. 8 without amendment and is awaiting first reading in the House of Commons. The bill, sponsored by Sen. Pierre-Hugues Boisvenu of Quebec, “seeks to remove the legal barriers in the Code limiting access to medical support for jurors who wish to consult a health-care professional when suffering from trauma following their participation in a criminal trial,”

House of Commons

Senate bills awaiting first reading

S-21, S-216

Second reading

C-5, C-7, C-8, C-9, S-202, S-206, S-214, S-223

Senate

Second reading

S-201, S-204, S-205, S-208, S-212, S-213, S-215, S-217, S-218, S-220, S-221, S-224, S-225, S-226, S-227, S-228, S-229, S-230, S-231, S-232, S-233, S-234

Third reading

S-207

Royal assent received

C-2 An Act to provide further support in response to COVID-19
C-3 An Act to amend the Criminal Code and the Canada Labour Code
C-4 An Act to amend the Criminal Code (conversion therapy)
C-6 An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2022


Provincial

The House adjourned on December 2nd 2021 and stands adjourned until March 2nd, 2022, or to the call of the Speaker.

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2021, c. 14The Pension Benefits Amendment Act subsection 10(1), section 11 and clause 17(a)20 Dec 202115 Dec 2021Proclamation
SM 2021, c. 40The Court Practice and Administration Act (Various Acts Amended) Parts 4 and 71 Jan 202215 Dec 2021Proclamation
SM 2021, c. 40The Court Practice and Administration Act (Various Acts Amended) Part 51 Feb 202215 Dec 2021Proclamation
SM 2021, c. 51The Liquor, Gaming and Cannabis Control Amendment Act (2) whole Act17 Dec 202115 Dec 2021Proclamation
SM 2021, c. 15The Regional Health Authorities Amendment Act (Health System Governance and Accountability) subsections 91(1) and (17) to (22) and clauses 91(23)(b) to (d)1 Jan 20221 Dec 2021Proclamation
SM 2021, c. 26The Municipal Statutes Amendment Act Part 2