eLex May 2020

by Karen Sawatzky | May 4, 2020 | eLex

Table of Contents

News

In the News

COVID-19

• Law Society of Manitoba COVID-19 Updates and Resources
• Guidance for Legal Professionals Filing a Non-compliant Document in Court – Sample Undertaking
• Free COVID-19 Webinar Series – Justice Adapting – Manitoba date May 8th 11:00 a.m. (from LexisNexis)
• Manitoba Government: Restoring Safe Services

Court Notices & Practice Directions

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

New Library Resources

• Guide to using vLex

Substantive Law

Administrative Law

ImagineAbility Inc. v. City of Winnipeg, 2020 MBCA 39 – Appeal of order of mandamus granted by the reviewing judge requiring tax collector for the City to correct tax rolls. Discussion of s.340 of The City of Winnipeg Charter, S.M. 2002, c. 39 and reasonableness. Appeal allowed. 

The Law Society of Manitoba v. Kalo, 2020 MBCA 37 – Appeal of costs award for an appeal of a permanent injunction. Court found no merit to the appeal and ordered costs against the respondent, including additional costs intended to censure the respondent’s behaviour in court. 

Manitoba Metis Federation Inc. v. Brian Pallister et al., 2020 MBQB 49 – Request for judicial review of Cabinet’s decision to issue a directive aligning the government’s policies with Manitoba Hydro practices regarding agreements with Indigenous communities. The review takes into account questions surrounding the lawful exercise of Cabinet’s stewardship role over Hydro, the honour of the Crown and whether MMF was entitled to special procedural rights in relation to a Cabinet policy decision. Joyal, C.J.Q.B. dismissed the application. 

Canada (Attorney General) v. Zalys, 2020 FCA 81 – Appeal of judgment granting judicial review of decision of an adjudicator regarding respondent’s grievance where he sought to have service pay included in the lump sum payout of annual leave he received upon retiring. Standard of review for an appeal of a judicial review application is reasonableness. Dissent includes an explanation of who to include in the style of cause for judicial review.   

Vavilov Hits the Road, Paul Daly, Administrative Law Matters, updated to April 24, 2020. 

Waiting for Godot: Canadian Administrative Law in 2019, Paul Daly, 33 Can. J. Admin. L. & Prac. 1. Year in review paper covering the Supreme Court’s trilogy of decisions on standard of review and more. (WLNC – request a copy.) 

Bankruptcy Law

White Oak Commercial Finance, LLC v. Nygård Holdings (USA) Limited et al., 2020 MBQB 58 – Application for appointment of Richter Advisory Group as receiver without security of all assets, undertakings and properties of the respondents. Court reserved its decision and ordered the respondent to continue to fully comply with the terms of its credit agreement. Court is satisfied that the applicant has met the test for appointment of a receiver. 

Insolvency Routes of Appeal: A Quick Primer, Justice David M. Brown, (2020) 76 C.B.R. (6^th) 197. (Originally presented to the Ontario Bar Association – Insolvency Section, January 2020, WLNC, request a copy.) 

Civil Litigation

Outland Camps Inc. v. M&L General Contracting Ltd. et al., 2020 MBCA 42 – Appeal of order re money paid into court under s. 55(2) of The Builders’ Liens Act. Issue is whether the funds were security for lien claims, trust claims or both. Subcontractor did not file a lien within the limitation date so has no lien claim. Analysis of whether the fund paid into court was a trust fund. Appeal dismissed. 

Gray-McKay et al. v. Whiteway et al., 2020 MBQB 62 – Three separate motions by defendants for summary judgment based on a limitations defence, plus request to expunge certain documents. Statement of claim originally filed in Ontario in May 2012 and discontinued November 2012. Statement of claim also filed in Manitoba in July 2012 for breach of contract, negligence, and negligent misrepresentation for a project from summer and fall 2009. Defendants’ motion was successful. 

6165347 Manitoba Inc. et al. v. The City of Winnipeg et al., 2020 MBQB 60 – Request by respondents for reconsideration or setting aside of a contempt order. Respondents were found in contempt for failing to process applicants’ secondary plan application at a public meeting. Significant analysis of a contempt finding in a civil matter. 

Zubriski v. Bachewich, 2020 MBQB 56 – Request for summary judgment by plaintiff to recover money lent to the defendant for the purchase of a car. Defendant argues that the transaction wasn’t a loan but was an agreement to purchase the defendant’s home. Issues are the nature of the agreement (called an “equitable mortgage”); is the agreement conscionable; what is the remedy. Narratives of both parties vary widely; Court preferred defendant over the plaintiff. 

Canadian Construction Law Reform: A Survey of Recent Developments in Builders Liens, Prompt Payment, Interim Adjudication and Mandatory Construction Bonding, Michael A. Skene, Dirk Laudan, 2020 J. Can. C. Construction Law 93. (WLNC – request a copy.)

Bringing order from chaos: Some thoughts on recent judicial approaches to online libel cases, Mark Donald, (2019) 38 Adv. J. No. 3, 36-38. (LNQL – request a copy.) 

Corporate & Commercial Law

Wolfe et al v. Taylor et al, 2020 MBCA 44 – Appeal of orders from a liquidation proceedings. Parties had been farming together since 2008 using two corporate entities. Considerable analysis of the doctrine of marshalling. 

Loblaw Financial Holdings Inc. v. Canada, 2020 FCA 79 – Decision on issue of foreign accrual property income provisions in the Income Tax Act. MNR issued reassessments on Loblaw Financial for a holding in Barbados. Loblaw Financial appealed the reassessment to the Tax Court and appeals that decision. Question to be determined is whether the Tax Court erred in concluding that the subsidiary did not conduct business principally with arm’s length persons. Court concluded that the Tax Court made reviewable errors and decision should be set aside. 

York University v. The Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA 77 – Appeal by York re enforcement of interim tariff covering the copying of protected works in post-secondary educational institutions. Decision reviews all the great copyright decisions of the past 15 years, as well as the modernized Copyright Act. Court found that the tariff was not mandatory and Access Copyright could not maintain a copyright infringement action. York’s counterclaim re fair dealing as a relief was also dismissed. 

Responsibilities and Liabilities of Directors in Manitoba, Kristen Wittman and Kelby Loeppky 2020 CanLIIDocs 567

Federal Court of Appeal Deals Access Copyright Huge Blow as It Overturns York University Copyright Decision, Michael Geist, michaelgeist.ca, April 23, 2020. 

Criminal Law

R. v. Friesen, 2020 SCC 9 – Appeal from MBCA. Sentencing appeal re sexual offence against children and extortion of mother. Court of Appeal found that sentencing judge had erred in principle and conducted a fresh analysis, reducing the sentence. Crown appealed from CA’s interference. Appeal allowed, original sentence restored. 

R. v. Jorowski, 2020 MBCA 43 – Request for leave to appeal two orders of the same proceeding. Initial incident was a speeding ticket issued by photo radar. Accused initially filed an application for a stay due to delay, and when that was denied, pleaded guilty and paid the fine. She then filed a notice of appeal to set aside her conviction and requested that she be represented by a non-lawyer. This motion was also denied. Leave for appeal in this application was also denied.

R. v. Castel, 2020 MBCA 41 – Appeal of conviction for second degree murder. Sole issue at trial was whether Crown proved beyond a reasonable doubt that the accused had the required intent for second degree murder. Appeal dismissed. 

R. v. J.C.W., 2020 MBCA 40 – Request for leave to appeal sentence of eight years’ incarceration for a guilty plea for one count of sexual assault. Crown stayed a charge of incest upon entering of guilty plea. Charge is on the high side for the offence, however, issue is whether it is harsh and excessive. Leave to appeal allowed, appeal dismissed. 

R. v. Ward, 2020 MBCA 38 – Appeal of conviction, and request for leave to appeal sentence. Accused was convicted of various firearms offences, including discharging a firearm with intent and was sentenced to a 9 year custodial sentence. Conviction appeal dismissed, leave for appeal of the sentence allowed, sentence appeal denied. At the time of the accused’s sentencing, he was serving a prior sentence with an unexpired portion. Trial judge declined to consider unexpired portion as part of the totality analysis. Appeal court determined that despite this error, the sentence was fit. 

R. v. Guimond, 2020 MBQB 63 – Sentencing decision on guilty plea to two counts of second degree murder. Court agreed with counsels’ joint recommendation for a concurrent sentence of life imprisonment with eligibility for parole after 14 years. 

R v N. G. D., 2020 MBPC 17 – Charge of sexual assault where issue focused on consent. Only witnesses were the complainant and the accused. Court referred to R. v. W. (D.) for the three-step process to ensure the trier of fact remains focused on the principle of reasonable doubt where the accused testifies. Accused is found guilty. 

Ontario Court of Appeal Criminal Notes, Jeanette Gevikoglu, Amanda Hauk, Lisa Mathews and David Quayat, 2020 CanLIIDocs 566

Bail in the Time of COVID-19, Lisa Mathews, 2020 CanLIIDocs 564

Jeremy Bentham and Canadian Evidence Law: The Utilitarian Perspective on Mistrial Applications, Alanah Josey, (2019) 42 Man.L.J. 292, 2019 CanLIIDocs 2810

Family Law

A.D.D. v. The Director of Child and Family Services, 2020 MBQB 67 – Agency seeking to place a mother on the Child Abuse Registry on the basis of omission or failure to protect her child from sexual exploitation. Consideration given to the meaning of “omission” in the context of abuse as defined in The Child and Family Services Act. Agency is successful and mother’s name is entered on the registry. 

Flood v. Dale, 2020 MBQB 64 – Request for enforcement of arbitration award. Parties had agreed to arbitration to resolve their outstanding issues. Both parties received independent legal advice as to the meaning of the arbitration agreement. The court’s power to enforce an arbitration award is the same as enforcing one of its own orders. 

Statutory Recognition of Indigenous Custom Adoption: Its Role in Strengthening Self-Governance Over Child Welfare, Celeste Cuthbertson, 28 Dalhousie Journal of Legal Studies 29, 2019 CanLIIDocs 2938

The Cost of Shared Parenting: An Analysis of Section 9 from 2016 to 2017, Beth Ambury, (2020) 39 CFLQ 1 (WLNC, request a copy). 

Labour & Employment

McCallum v. Saputo, 2020 MBQB 66 – Wrongful dismissal with claims for damages in lieu of notice, expenses incurred in mitigation, bad faith damages and punitive damages. Plaintiff claims that defendant failed to communicate its corporate policies and used unwritten policies to justify the dismissal of the plaintiff. The Defendant claims this is a simple matter of theft giving rise to the breakdown of the employment relationship. Plaintiff’s claims dismissed; defendant was entitled to terminate his employment for just cause and without notice.

eText on Wrongful Dismissal and Employment Law, Peter M. Neumann and Jeffrey Sack, Lancaster House, 2012 CanLIIDocs 1, updated to 2019-10-02. 

Wills, Trusts & Estates

Hubschi Estate (Re), 2019 BCSC 2040, Annotation, J. Jeffrey Locke: Extreme example of non-compliant testamentary document being “cured”.  (2020) 52 E.T.R. (4^th) 231 (WLNC – request a copy). 

Legislation

Federal

43^rd Parliament, 1^st Session

C-15
An Act respecting Canada emergency student benefits (coronavirus disease 2019)
Short Title
Canada Emergency Student Benefit Act
Progress: 
Show Details

C-242
An Act to amend the Employment Insurance Act (illness, injury or quarantine)
Progress: 
Show Details

C-14
A second Act respecting certain measures in response to COVID-19
Short Title
COVID-19 Emergency Response Act, No. 2
Statute of Canada: 2020, c. 6
Progress: 
Show Details

C-13
An Act respecting certain measures in response to COVID-19
Short Title
COVID-19 Emergency Response Act
Statute of Canada: 2020, c. 5
Progress: 
Show Details

Provincial

42^nd Legislature, 2^nd Session