eLex July 2020

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Bankruptcy LawProvincial
Discipline DigestsCivil Litigation 
New Library ResourcesCorporate & Commercial 
 Criminal Law 
 Family Law 
 Labour & Employment 
 Wills, Trusts & Estates 

News


In the News

COVID-19 Content on CanLII and How to Find it

… CanLII now has more than 2,290 pieces of content relating to COVID-19, which include at least 2,000 cases and 150 pieces of legislation. CanLII continues to update its collection as documents are made available by courts and tribunals. …

Family Law Manitoba 

The first phase of a new single-window Family Resolution Service. “The new Family Resolution Service delivers a seamless continuum of affordable services to all Manitobans, and expands front-end support and out of court options.” 


Court Notices & Practice Directions

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

Notice

Manitoba Court of Appeal

Resumption of in-person appeal hearings and chambers motions (June 24, 2020)

Manitoba Court of Queen’s Bench

Scheduling Protocols for family division motions and case conferences via teleconference or video conference (June 23, 2020)

Triage Screening List

Provincial Court (Winnipeg Centre)

COVID-19 suspension ad re-opening of additional courts (June 24, 2020)

Child Protection Hearings (June 23, 2020)

Update to the Judges and Judicial Justice of the Peace Weekend Bail Courts (May 28, 2020)

Pre-Trial Coordinator Timelines (May 28, 2020)

Teleconference Availability in Provincial Court courtrooms (May 26, 2020)


Discipline Digests

Jhanji, Vibhu Raj

New Library Resources

Emond Publications Criminal Law Series – several titles are already been updated. This e-book series is available to all Law Society members. Sign in to the Members Portal, click on “Library Resources” at the bottom of the left-hand navigation pane and then select the series. All 15 titles are written from the point of view of prosecution and defence. 

Substantive Law


Administrative Law

3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103: Appeal of CRTC findings on Notice of Violation (NOV) that appellant had committed four violations of CASL and the resulting fines. Appellant also asserted that CASL is unconstitutional. Parties agreed that CRTC has the jurisdiction to determine the constitutional question. Standard of review is correctness on the constitutional question, and standard of palpable and overriding error on NOV. Appeal dismissed. 

Entertainment Software Assoc. v. Society Composers, 2020 FCA 100: Issue of the appropriateness of a tariff on music from a streaming service. Analysis of s. 2.4(1.1) as added by the Copyright Modernization Act, S.C. 2012, c.20. Discussion of Vavilov and its effect on setting the standard of review for administrative decisions. FCA determined that the Copyright Board’s interpretation of s. 2.4(1.1) cannot stand. Appropriate remedy is to quash the decision and grant costs to the applicants. 

The College of Pharmacists v. Jorgenson, 2020 MBQB 88: Request for summary judgment in claim for a permanent injunction and damages over defamation. Defendant published a variety of statements claiming the plaintiffs were responsible for the deaths of several Indigenous people in Northern Manitoba. Defendant did not provide any evidence backing up his assertions. Summary judgment is granted, along with significant costs. 

Qualico Developments (Winnipeg) Ltd. v. Winnipeg (City of) et al., 2020 MBQB 87: Application for judicial review and an order of mandamus to amend the 2019 assessment and tax rolls of the applicant. Applicant sold a strip of property to the city, resulting in an amendment to the assessment of the property’s value. Applicant did not appeal future assessments, relying on the carry forward principle. Applicant was assessed on higher value. Standard of review is reasonableness, not correctness. Application granted.


Bankruptcy Law


Civil Litigation

Uber Technologies Inc. v. Heller, 2020 SCC 16 : Respondent started a class proceeding in Ontario for violations of employment standards législation. Appellant brought motion to stay the class based on the arbitration clause. Motion judge stayed the proceeding, holding that the arbitration agreement’s validity had to be determined by arbitration. ONCA allowed the appeal. Many issues to resolve : Is the arbitration clause unconscionable? Is there an inequality of bargaining power? Does the Ontario International Commercial Arbitration Act apply or the Arbitration Act? Is there an issue of accessibility? Appeal dismissed : per Wagner C.J. and Abella, Moldaver, Karakatsanis, Rowe, Martin and Kasirer JJ; Côté J. dissenting. 

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13: Minority language education rights. Analysis of s. 23 of The Charter and its remedial purpose. Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: Appeal allowed in part; Brown and Rowe JJ. dissenting in part. 

Winnipeg Condominium Corporation 479 v. 520 Portage Avenue Ltd et al, 2020 MBCA 66: Appeal of decision of application judge transferring ownership of parking area from the developer to the condominium corporation. Developer retained ownership of parking area as a unit, then leased it to the corporation. Purchasers of condominiums thought it was part of the common elements. Intervenor held three registered mortgages against the parking unit. Appellant (Developer) believed matter should proceed by trial, not application. Appeal dismissed. 

Samborski Environmental Ltd. v. The Government of Manitoba et al, 2020 MBCA 63: Motion for an extension of time to file and serve a notice of appeal. Issue of whether an environmental license allowing a composting operation on the property was valid or not. Detailed analysis of s. 90(1)(a) of The Court of Queen’s Bench Act concerning when leave to appeal is required for a consent order. Motion granted. 

Rebillard v. Winnipeg (Police Service) et al, 2020 MBCA 59: Appeal of dismissal of lawsuit alleging false arrest, false imprisonment and malicious prosecution. Plaintiff had history of animosity with her neighbour. WPS obtained warrant for her arrest; Crown later stayed all charges. Appeal centred on whether defendants had grounds to arrest and charge her; trial judge erred in evidentiary rulings; and trial judge failed to assist her as a self-represented litigant. Appeal dismissed, except for order for throwaway costs, which were allowed. 

Sagkeeng v. Government of Manitoba et al., 2020 MBQB 83: Applicant alleges that the respondents breached the duty to consult and accommodate in respect of a project permitting construction on traditional and ancestral territory. Minister of Sustainable Development had issued a license to Manitoba Hydro permitting the construction pursuant to s.12 of The Environment Act. Applicant is seeking judicial review of the minister’s licensing decision. Explanation of the duty to consult as well as a detailed review of the facts. Application dismissed. 

Weremy v. The Government of Manitoba, 2020 MBQB 85: Action for class action certification relating to allegations of physical and sexual abuse of the residents of the Manitoba Developmental Centre (MDC). Detailed analysis of all the issues under s.4 of The Class Proceedings Act, Certification of a Class Proceeding. Claim is certified.


Corporate & Commercial Law

Canada v. Cameco Corporation, 2020 FCA 112: Appeal of decision of Tax Court on the issue of s.247(2)(b) and (d) of the Income Tax Act. The decision of the Tax Court reversed the Minister’s allocation of the profit of a foreign subsidiary of a Canadian corporation to the parent Canadian corporation. Main focus was the application of the transfer price rules in s.247. Appeal dismissed.

Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108: Order on intervenors. Six parties have moved to intervene in this appeal. In a no-nonsense order, Stratas, J.A. sets out the terms for the parties. First, they are collected into groups based on broadly similar submissions. Each group is allowed to submit one memorandum of fact and law. They cannot add to the evidentiary record. Oral submissions will be determined by the panel hearing the appeal. 

Zohar Levy and Nicholas Carmichael. Covid-19 as a Force Majeure, and Other Contractual Considerations. Business Law Reports (2020), 2 B.L.R. (6th) 32 (WLNC – request a copy).  

Teresa Scassa, Amy Salyzyn, Jena McGill, Suzanne Bouclin. Developing Privacy Best Practices for Direct-to-Public Legal Apps: Observations and Lessons Learned, (2020) 18 Can. J. L. & Tech. 1 (WLNC – request a copy). 

Alexi N. Wood and Jennifer Saville. Tort of Harassment: Crying Out for a Remedy, (2020) 38 Adv J. No. 4, 26 – 28 (LAQL – request a copy). 


Criminal Law

R. v. Zora, 2020 SCC 14: Whether mens rea for offence of failure to comply with conditions of undertaking is to be assessed on a subjective or objective standard. Appellant was charged under s. 145(3) of the Criminal Code for breaching his curfew and breaching his condition to answer the door. Analysis of subjective and objective mens rea. Appeal allowed; new trial ordered. Decision delivered by Martin, J.

R. v. Li, 2020 SCC 12: Companion case to R. v. Ahmad, 2020 SCC 11. No entrapment this time. Guilty plea entered, matter remitted for sentencing. Oral decision of the Court. 

R v. Dhaliwal, 2020 MBCA 65: Appeal of sentence after conviction for fraud and forgery. Accused is a citizen of India and permanent resident of Canada. Based on his sentence he suffered collateral immigration consequences. Counsel should have brought this to the attention of the judge, however, it is also the judge’s duty to take this into consideration. Sentence was varied to six months less a day, with the restitution remaining. 

R. v. J.A.W., 2020 MBCA 62: Appeal of conviction and sentence for sexual assault. Accused based appeal on a misapprehension of the evidence by the trial judge. Court noted that it must be careful to not retry the case. “An evaluation of testimony may only be interfered with where it cannot be supported by any reasonable view of the evidence” (para. 13). Appeals dismissed. 

R. v. Singh et al, 2020 MBCA 61: Appeals of convictions and sentences for sexual assault. Main focus of appeal is that the trial judge misapprehended the DNA evidence. CA found that trial judge took into account the limitations of the forensic evidence. Both appeals dismissed. 

R. v. Bonni, 2020 MBCA 64: Appeal of sexual assault conviction. Accused argues four errors: judge applied a higher level of scrutiny of the evidence of the defence; he misapprehended the evidence; that he improperly considered the accused’s prior relationship with the complainant; and he should not have allowed the Crown to call rebuttal evidence. Appeal dismissed. 

R. v. Brar, 2020 MBCA 58: Appeal from conviction of sexual assault on grounds that trial judge erred in dismissing his motion for a stay under s.11(b) of the Charter. Argument for stay was conducted after trial, going against court recommendations (but with consensus of counsel). Judge issued a 28 page endorsement with reasons for dismissing motion. Monnin, J.A. issued comment on inappropriateness of such a long endorsement (paras 41-45). Appeal dismissed.

R. v. McLeod, 2020 MBQB 80: Appeal of conviction for assaulting a peace officer engaged in the execution of her duties. Accused argues First Nation safety officer was not acting as a peace officer in law when the assault took place, therefore he should be just convicted of the included offence of assault. Explanation of the three sources of authority for the statutory scheme governing First Nation safety officers.  As issue is a question of law, standard of review is correctness. Appeal dismissed. 

Tim Quigley. R. v. Friesen: Sentencing Guidance from the Supreme Court of Canada (2020), 62 C.R. (7th) 77 (WLNC – request a copy).

The primary role of our highest court is, of course, to act as the court of last resort in deciding individual cases. The Court, however, also plays an influential role by providing guidance to lower courts. It does not always accept this role in a comprehensive manner but it certainly has in R. v. Friesen. To state the ratio decidendi of the case would be relatively simple: The Manitoba Court of Appeal erred in finding that the sentencing judge in a case of sexual interference against a young child had erred in principle. However, it is much more likely that Friesen will become authority for the proposition that sentences for sexual offences against children must increase. That is certainly a prominent part of the message delivered by the Court. At the same time, though, the Court seized the opportunity to re-state or to re-formulate several other principles that should govern the sentencing process.

Rowan Kunitz. At the Mercy of the Court: Canadian Sentencing Principles and the Concept of Mercy. (2020) 25 Can. Crim. L. Rev. 1 (WLNC – request a copy). 

Understood via its sentencing versus pardon, administrative, or constitutional lenses, mercy remains understudied in Canada’s courtroom context. This has resulted in a gap between Mercy’s theoretical underpinnings and its courtroom application. This gap is rooted in mercy’s theoretical and historical definitions, corrective versus sentencing understandings, and limited Canadian focused legal scholarship.


Family Law

Smederovac v Eichkorn, 2020 MBCA 57: Appeal of order for child support and order for costs after a two day trial. Trial was focused on determination of income. Appeal over judge ordering an amount of child support over and above the set-off amount in a shared custody regime. Standard of review re child support is highly deferential; analysis of s.9 of the Guidelines. Appeal allowed; trial judge erred in ordering an increased set-off amount without explaining how she arrived at that figure. Parties still have some issues to be settled, so matter is sent back to Family Division. Costs are reassessed. 

Peters v. Peters, 2020 MBQB 94: Motion to vary final order, allowing termination of spousal support, retroactive reduction in child support and remission of arrears of child and spousal support. Threshold requirement of a material change in circumstances has been met. Respondent’s financial disclosure is inadequate; Petitioner requests income be impugned to him. Thomson, J. grants reduction of annual income for support purposes but not to the level the respondent requested. 

Dueck v. Dueck, 2020 MBQB 89: Motion by father to increase his periods of care and control. Father is on probation from assaulting mother, and is not allowed to have direct contact with her. Mother has agreed to an Interim Order on care and control to facilitate father’s access. Father seeks shared care and control. Mother is not opposed to the care and control schedule but opposes shared care and control. Interim Order is granted allowing father a little more time with the child. 

Nicholas Bala. Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act. (2020) 39 CFLQ 45 (WLNC – request a copy). 

Since the Report of the Special Parliamentary Committee in 1998, it has been widely acknowledged that the parenting provisions of Canada’s Divorce Act were in need of reform. After a couple of unsuccessful efforts to enact reforms in the early years of this century, in May 2018 the Liberal government introduced Bill C-78, proposing significant changes to the law governing post-divorce parenting. The Bill had widespread support from family lawyers, judges, and scholars, as well as mediators, and mental health professionals. There was, however, controversy about some parts of Bill C-78 at the Parliamentary Hearings, and minor amendments were made as a result of the Committee process.


Labour & Employment

The Portage la Prairie Teachers’ Association v. The Portage la Prairie School Division, 2020 MBQB 93: Application for an order quashing the award of an arbitration panel determining that a directive that teachers remain in school and available until 4:00 p.m., whether they have been assigned duties after the end of the instructional day at 3:20 p.m. Panel concluded that the directive was fair and reasonable. Neither the collective agreement nor legislation governs the directive. Award upheld, application dismissed. 

Manitoba Federation of Labour et al v. The Government of Manitoba, 2020 MBQB 92: Argument over whether The Public Services Sustainability Act, S.M. 2017 c. 24, violates the Plaintiffs’ right to freedom of association. The Act was passed in 2017 but has not yet been proclaimed. McKelvey, J. issued a 288 page decision that ultimately decided in the plaintiffs’ favour. 

UNIFOR and its Local 100 v. Canadian National Railway, 2020 MBQB 91: Application for judicial review of an arbitration decision. Employee was involved in a near-miss accident, and was tested for drugs and alcohol as per CNR policy. Oral fluid sample tested positive for marihuana and cocaine; employee was terminated. Several issues discussed: standard of review; breach of duty of procedural fairness; misapprehension of evidence; failure to apply the collective agreement and the employer’s policy in determining the employee’s responsibility. Application denied. 

Gaucher v. Manitoba Public Insurance Corporation, 2020 MBQB 84: Claim for wrongful dismissal. Plaintiff claims defendant had no cause to terminate her without notice; defendant claims she was terminated for just cause. Issues include cannabis in the workplace before legalization, condoning a subordinate’s illegal conduct, losing trust of the employer. Defendant is successful. Perlmutter, A.C.J.Q.B includes damages he would have assessed if plaintiff had been successful.  

Sarah Marsden. “Who Bears the Burden of Enforcement: The Regulation of Workers and

Employers in Canada’s Migrant Work Programs” (2019) 22:1 C.L.E.L.J. 1. (Available on HeinOnline). 


Wills, Trusts & Estates

John E.S. Poyser. Annotation: Geluch v. Geluch Estate. (2020) 55 E.T.R. (4th) 133 (WLNC – requst a copy). 

The decision in Geluch Estate is interesting for three different reasons. First, dealing with capacity, the decision is a rare example of a court expressly addressing the analytical framework applicable to a combination of inter vivos and testamentary instruments intertwined into a single estate plan. Second, dealing with knowledge and approval, the court struck down a residue clause contained in a will based on the so-called “doctrine of righteousness.” Third, dealing with remedy, the court struck down the residue clause but allowed the remaining clauses in the will, including bequests, to go to probate, effectively severing the bad from the good.

Legislation


Federal

43rd Parliament, 1st Session

43rd Parliament, 1st Session
C-19
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title
Appropriation Act No. 3, 2020-21
Statute of Canada: 2020, c. 10
Progress: Royal Assent
Show Details
43rd Parliament, 1st Session

C-18
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title
Appropriation Act No. 2, 2020-21
Statute of Canada: 2020, c. 9
Progress: Royal Assent
Show Details

43rd Parliament, 1st Session
S-214
An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation
Progress: Introduction and First Reading in the Senate
Show Details

43rd Parliament, 1st Session
S-208
An Act to amend the Criminal Code (independence of the judiciary)
Progress: Introduction and First Reading in the Senate
Show Details

Provincial

42nd Legislature, 2nd Session

House adjourned May 27, 2020 until the call of the Speaker. No new activity.

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