eLex August 2020

by Karen Sawatzky | Aug 4, 2020 | eLex

Highlights in this issue

Supreme Court of Canada recently released two decisions on judicial compensation. Issue is confidentiality of Cabinet documents.

Two MBQB decisions with the City of Winnipeg as respondent:
Ladco Company Limited v. The City of Winnipeg, and Ewanek v. Winnipeg (City of) et al.

All COVID-19 orders from the Province under The Public Health Act are available here.

Table of Contents

News

In the News

The Great Library is open for lawyers, Monday to Friday from 8:30 – 12:30 and 1:30 – 4:30. Please call ahead if you wish to request a particular book. We can arrange for pick-up at the staff entrance on Kennedy Street. 

Upcoming CPD: Your Legal Research Toolkit: How the Manitoba Law Library Can Help
September 24, 2020
12:00 noon – 1:00 p.m. (webinar)
Details and Registration

Court Notices & Practice Directions

State of Emergency and Public Health Orders
All COVID-19 Notices and Practice Directions are available here.

Notices

Manitoba Court of Queen’s Bench

July 2, 2020 – Amendments to the Court of Queen’s Bench Rules – “dealing with Rule 70 Family Division Amendments, and Rule 76 Small Claims Rules Amendments.”

New Library Resources

Commissions of Inquiry by Stephen Goudge & Heather MacIvor, “Co-authored by the former Commissioner of the Public Inquiry into Pediatric Forensic Pathology, this book explores the powers and procedures of federal and provincial Commissions of Inquiry and their impact on our daily lives.”

Legal and Legislative Drafting – 2^nd ed.  by J. Paul Salembier, “This title tackles the challenge of drafting complex legal and legislative documents. This book goes far beyond simply discussing the principles; it provides readers with a step-by-step guide that helps them put those principles into action.”

The Canadian Law of Mortgages – 3^rd  Edition by Joseph E. Roach, “The third edition of this book, cited numerous times by the court in every major Canadian jurisdiction, fully updates you on the law of mortgages in Canadian common law jurisdictions. Author Joseph Roach delves into problems and questions that real estate practitioners tackle on a daily basis.”

Substantive Law

Administrative Law

Ewanek v. Winnipeg (City of) et al., 2020 MBQB 98: Application for judicial review of a decision of the City of Winnipeg Appeal Committee concerning a zoning variance. The property to be rezoned is next door to the applicant. Appeal Committee had previously turned down the application in 2017. Appeal provision for this committee is on a question of law. Standard of review will be correctness. Other issues raised are reviewed under reasonableness. Application dismissed. 

Katherine Hardie. Deference after the Trilogy: What is the Impact of a “Culture of Justification”? 33 Can. J. Admin. L & Prac. 145. (WLNC – request a copy). 

This article looks at the meaning of the reasonableness standard post-trilogy and, in particular, the differences between the majority’s approach and that of the minority, as well as the impact of a “culture of justification” on the reasonableness standard. 

Civil Litigation

Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19: Appeal of certification for class action on the basis of whether the plaintiffs` claims disclose a reasonable cause of action. Plaintiffs are relying on waiver of tort, breach of contract and unjust enrichment, seeking a gains-based award. Plaintiffs claim that VLTs are inherently dangerous and deceptive. NLSC and NLCA both certified the action; SCC allowed the appeal. 

From the headnotes:

Held (Wagner C.J. and Karakatsanis, Martin and Kasirer JJ. dissenting in part): The appeals should be allowed, the certification order set aside and the plaintiffs’ statement of claim struck in its entirety.Per Abella, Moldaver, Côté, Brown and Rowe JJ. : Each claim that the plaintiffs have pleaded is bound to fail because it discloses no reasonable cause of action.

Salt Canada Inc. v. Baker, 2020 FCA 127: Appeal of a judgment from the Federal Court for an order directing the Commissioner of Patents to vary the records to reflect a new owner of a particular patent. FCC stated it did not have jurisdiction, believing this to be an issue of contractual interpretation; FCA disagreed. Analysis of s.52 of the Patent Act as well as comparisons to other statutes. 

The Rural Municipality of MacDonald v. Zettler et al., 2020 MBQB 108: Motion by plaintiff for summary judgment granting relief with a permanent injunction against the defendants. Long history of litigation between the parties concerning use of property as a landscaping business. Includes analysis of s. 180 of The Planning Act. Also includes an order re remediation of the property. Summary judgment granted. 

Buhr v. Buhr, 2020 MBQB 107: Motion to dismiss action due to delay. Events occurred in July 2010, statement of claim was filed in 2012, examinations for discovery began and ended in September 2016. Defendants submit action must be dismissed pursuant to Queen’s Bench Rule 24.02(1) (long delay rule) or 24.01(1) (presumption of significant prejudice). Bock, J. provides analysis under both circumstances in dismissing the plaintiff’s action. 

Fougere v. Rural Municipality of Lac du Bonnet et al., 2020 MBQB 102: Action seeking financial compensation over sale of property in a tax sale proceedings. Two actions combined by consent: action against the RM and action against the lawyer acting on her behalf. Both actions dismissed. 

Ladco Company Limited v. The City of Winnipeg, 2020 MBQB 101: Applications for judicial review of City of Winnipeg’s Impact Fee By-law (127/2016) and a related resolution. Issues: Are the by-law and resolution ultra vires; whether the by-law creates an indirect tax or whether it imposes a fee. Starting point for analysis of standard of review is reasonableness. Significant analysis of the difference between an indirect tax and a regulatory fee. Edmond, J. finds for the applicants. 

Bibeau et al. v. Chartier et al., 2020 MBQB 100: Request to reconsider a decision. Extraordinary circumstances must be present as set out in Abraham v. Wingate Properties Ltd., (1985 MBCA). Motion to reconsider dismissed. 

Jones v. Roller, 2020 MBQB 97: Action in defamation. This is a motion to seeking further portions of the Statement of Claim struck. Some portions struck; plaintiff is given 20 days to provide additional particulars in other areas. 

Silpit Industries Co. Ltd. v. Rady et al., 2020 MBQB 96: Appeal by applicant of arbitration award. Parties have right of appeal on question of law alone. Issue is over legal fees that were added into the award. Both parties referred to SCC decision of Teal Cedar Products Ltd. v. British Columbia. Application dismissed.

Jerred Kiss. The Newest Member of the Family: A Comment on Leitch v. Novac. (2020) 64 C.C.L.T. (4^th) 297 (WLNC – request a copy). 
The economic torts are in a “state of flux.”¹ While the Supreme Court of Canada brought much needed clarity to the unlawful means tort in Bram Enterprises Ltd. v. A.I. Enterprises Ltd., questions concerning the nature and scope of the other economic torts — such as inducing breach of contract, unlawful means conspiracy, and intimidation — continue. Leitch v. Novac, 2020 ONCA 257. 

Constitutional Law

Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21: Companion case to 2020 SCC 20. Issue of whether confidential Cabinet documents can form part of the record on a review, pursuant to Bodner v. Alberta. SCC (9:0) allowed the appeal in part; and the motion judge’s declaration modified such that only the discussion of government-wide implications in the Attorney General’s report and the communications plan be included in the record.

British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20: Similar to above. Appeal allowed and master’s order for production of Cabinet submissions quashed. 

Reference re Genetic Non‑Discrimination Act, 2020 SCC 17: Reference by the Government of Quebec on the constitutionality of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, with respect to whether these provisions were ultra vires to the jurisdiction of Parliament over criminal law. Quebec Court of Appeal held that ss. 1 to 7 exceeded Parliament’s authority over criminal law. The Canadian Coalition for Genetic Fairness appealed to SCC as of right. Appeal allowed, 5-4: per Karakatsanis J. (Abella, Martin JJ. concurring); per Moldaver J. (concurring) (Côté J., concurring); per Kasirer J. (dissenting) (Wagner C.J.C., Brown, Rowe JJ. concurring).

Criminal Law

R. v. Thanabalasingham, 2020 SCC 18: Appeal by Crown of stay of proceedings in a second degree murder case due to delay. Charges were laid before release of R. v. Jordan. Delay was calculated to be around 45 months; appeal dismissed, delivered by The Court. 

R. v. Bernier, 2020 MBCA 74: Application for leave to appeal a summary conviction appeal challenging the legality of the photo radar legislation. Applicant argued that s.229 of The Highway Traffic Act violated his presumption of innocence. Tests to be applied: 1) whether the appeal meets the test for permitting a second level appeal; and 2) whether there is an arguable case that this meets the test for an appellate court to reconsider a prior decision of the Court (para 8). Application granted. 

R. v. Williams, 2020 MBCA 72: Appeal of a jury conviction for manslaughter for failing to provide the necessities of life for a child asserting that the trial judge erred in instructing the jury. He also seeks leave to appeal his sentence. Child’s mother was convicted in her death. A witness testified that the accused was present when the mother abused the child. Jury instructions are reviewed on a standard of adequacy, not perfection. Leave for appeal of sentence granted; discussion of fitness of sentence includes reference to R. v. Friesen, 2020 SCC 9. Both appeals dismissed. 

R. v. McKay, 2020 MBQB 106: Sentencing decision for guilty plea for manslaughter. Two reports prepared: Probation Services Pre-Sentence Report and a Gladue Report. Accused was diagnosed with partial Fetal Alcohol Syndrome at 24 months. Factors taken into consideration include what would best benefit and protect the community as well as provide the best prospects of rehabilitation.

R. v. Morrissette, 2020 MBQB 90: Not guilty plea to possession of a firearm. Evidence to be analyzed in accordance with the principles of R. v. W.(D.). Firearm and three shotgun shells were on the floor of the backseat of a stolen vehicle, near where the accused was sitting. Accused is convicted. 

R. v. Bigl, 2020 MBPC 29: Application to seek leave to cross-examine police officer who swore the affidavit granting a search warrant for the accused’s home, as well as an application deeming the search a warrantless search. Analysis of the legal test for issuance of a warrant. Applications dismissed. 

R. Solomon, L. MacLeod, E. Dumschat. The Shifting Focus of Canadian Impaired Driving Enforcement: The Increased Role of Provincial and Territorial Administrative Sanctions. 25 Can. Crim. L. Rev. 25 (2020) (WLNC – request a copy). 
Federal criminal charges and prosecutions have historically played the dominant role in efforts to deter impaired driving. However, the processing of these charges has become an exceedingly technical, time-consuming and uncertain venture, prompting a shift in Canadian impaired driving enforcement. Provincial administrative sanctions are increasingly being used not only to augment, but also instead of federal criminal charges.

Family Law

Bloomfield v. Halfyard, 2020 MBCA 73: Appeal of order re joint custody. In 2015, judge had granted joint custody with primary care and control to the father, and specified times of care and control to the mother. Mother appeals dismissal of various motions, including a motion for contempt. Appeal dismissed with costs of $500 to the father. 

Anderson v. Bernhard, 2020 MBCA 71: Appeal of order dismissing a motion to vary a consent order. Issues raised included spousal support and arrears owing. Appeal dismissed. 

Kamer v. Ptashnik, 2020 MBCA 70: Appeal of final order after a trial, as well as a motion to introduce fresh evidence. Litigation had been ongoing since 2008. Most arguments founded on allegations of procedural unfairness and bias. Cameron, J.A. emphasized the importance of deference owed to the trial judge. Appeal dismissed. 

Tunmer v. Tunmer, 2020 MBQB 112: Petition for divorce, spousal and child support, division of property and matter of contempt. Respondent (husband) filed incomplete financial disclosure and has been delinquent at following previous orders. Detailed analysis of the finding of contempt leading to the imposition of a significant financial penalty and a custodial sentence of one day imprisonment. Support and property matters also dealt with. 

Muense v. Muense, 2020 MBQB 105: Application under The Hague Abduction Convention. Father requests the return of two young children to Germany. Both parties are German citizens, mother is a Canadian permanent resident. During the marriage the parties moved back and forth between Germany and Canada. Father consented to mother’s return to Canada for an extended visit but thought they would return. Mother claims visit was always a permanent stay. Original filing came right at the start of the COVID-19 lockdown. Analysis of “habitual residence” as well as whether the mother’s removal of the children was “wrongful”. MacPhail, J. finds that Germany is the habitual residence. Analysis of s.13 of Convention is based on credibility of evidence submitted by the parties. Application is dismissed. 

Michif CFS v. C.L.H. and W.J.B., 2020 MBQB 99: Agency seeking a 6 month temporary order for child of C.L.H. and W.J.B. Agency had requested a hearing in June 2019 to determine if child was in need of protection; this was granted. After several adjournments, trial was finally held in May 2020. Detailed discussion of ability of parents to properly care for child, including reports from several experts. Court determined child is to be returned to his parents within three months, potentially with support from the Agency.  

Shelley, Katherine Tess. “The Exclusion Trap for Women Refugee Claimants who Escape Domestic Violence with Children.” Osgoode Hall Law Journal 55.3 (2018) : 756-790. 
Women who escape domestic violence with their children are being denied refugee status in Canada on the grounds that, by fleeing with their children, they have committed the crime of child abduction. Article 1(F)(b) of the 1951 Refugee Convention, which has been imported into Canadian law, specifies that individuals who have committed serious, non-political crimes are excluded from the protections associated with being a legal refugee. Consequently, women who travel to Canada with their children risk the denial of their refugee claims solely because they chose not to abandon their children in an abusive or potentially dangerous situation.

Legislation

Federal

Provincial

42^nd Legislature, 2^nd Session

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