eLex September 2020

by Karen Sawatzky | Sep 10, 2020 | eLex

Highlights in this issue

New notice to the profession re: use of masks

Legal Ease – Guide to Finding Point-in-Time Legislation

Criminal contempt in family law –  Van Easton v. Wur, 2020 MBCA 82

Table of Contents

News

In the News

Province announces public engagement on possible rural crime and metal theft legislation

• The Manitoba government is seeking feedback from the public on proposed measures to combat rural crime and metal theft through a new online questionnaire

Province calling for expressions of interest for social impact bond to reduce youth recidivism

• A social impact bond is a social policy tool that brings together government, the private sector, not-for-profits and other stakeholders to deliver effective and prevention-focused solutions. Private investment is used to fund the programs initially, and then is repaid if social outcomes and cost savings are realized. These types of programs allow the government to explore more innovative solutions without financial risk, with the ultimate goal of delivering better outcomes for Manitobans.

Court Notices & Practice Directions

Notices

All Courts Notice 
August 28, 2020 re Mask Mandate in areas where a Code Orange is in place

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

Manitoba Court of Queen’s Bench
August 25, 2020 – Filing Fee
Masters’ Court – Notice COVID-19 Procedural Update (August 14, 2020)

Manitoba Provincial Court
August 18, 2020 – Access to Winnipeg Remand Centre
August 7, 2020 – Additional Trial Dates Added to the Court’s Website
August 7, 2020 – Suspension and Re-Opening of Additional Courts – St. Theresa Point
August 6, 2020 – Pre-Trial Coordinator Dockets
July 30, 2020 – Suspension and Re-Opening of Additional Courts (July 30, 2020)
July 30, 2020 – Child Protection Hearings (July 30, 2020)

New Library Resources

New Legal Ease Guide

In the newest addition to our Legal Ease Guides, we provide you with a helpful summary and quick tutorial of tracing the legislative history of federal and provincial acts.

Discover how to track changes to an act, find amendments, and discover the originating acts of current statutes.

New Online Titles

Information and Privacy Law in Canada
by Barbara von Tigerstrom
”Explores how we can access information held by public bodies, what governments and other organizations can do with information about us, and how we can use the courts or other mechanisms to hold others accountable when they violate our privacy or misuse our personal information.”

Mergers, Acquisitions and Other Changes of Corporate Control – 3rd ed.
by Christopher C. Nicholls
“This book offers a succinct and insightful discussion of the principal laws governing mergers and acquisitions transactions conducted in Canada. This third edition discusses the implications of a host of recent legal and regulatory developments since the publication of the second edition, including, in particular, the ground-breaking changes introduced by National Instrument 62-104 in 2016.”

The Canadian Investor: Challenge and Change in Canadian Capital Markets
by Anita Indira Anand
“This book examines all aspects of the many different institutions, programs, actors, and laws that affect investors’ rights. A detailed and accessible analysis of the Canadian landscape that explores securities commissions and other regulatory institutions through a contemporary lens, The Canadian Investor is currently unique in Canada.”

Criminal Procedure — 4th ed.
by Steve Coughlan
“This book sets out and examines the law governing criminal procedure in Canada. This fourth edition updates the law in all areas of criminal procedure. Most notably, it incorporates significant discussion of Bill C-75, which has made changes to a great many areas of the Criminal Code. In addition, it includes discussion of significant new SCC cases.”

Anatomy of an Election: Canada’s Federal General Election of 2019 Through the Lens of Political Law
by Gregory Tardi
“Anatomy of an Election takes a comprehensive and interdisciplinary look at Canada’s 2019 federal election as an example of a democratic election. This book is unique in its explanation of elections and electioneering. It sets the scene by enumerating the foundational elements of Canada’s electoral system, focusing on the constitutional principles, the legislation, and the major court judgments.”

Substantive Law

Administrative Law

Brown v. Canada (Citizenship and Immigration), 2020 FCA 130: Challenge to the enforcement of removal orders by the Canada Border Services Agency on behalf of the Immigration Division of the Immigration and Refugee Board of Canada. Appellant was found to be inadmissible to Canada on the basis of criminal convictions. He was held in correction facilities for five years before being deported. Appellant challenged constitutionality of detention under ss. 57 and 58 of IRPA, claiming it violates ss. 7, 9, 12 and 15 of The Charter. Although appellant had been removed from Canada and thus the challenge was moot, Federal Court exercised its discretion to hear the application in the public interest. FC dismissed the Charter challenge. Appeal is based on the following certified question: 

Decision is a further examination of Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. Appeal is dismissed. 

Dina Awad and Elliot Windfield. Judicial Review post Vavilov: Are courts “correcting” administrative decisions? (Canada Regulatory Review, August 27, 2020, Dentons) 

Civil Litigation

The College of Pharmacists of Manitoba v. Jorgenson, 2020 MBCA 80: Plaintiff applies for security for costs for defendant’s appeal and leave to serve its motion electronically and retroactively. This was an issue of defamation which had been decided for the plaintiff under summary judgment. Defendant claimed financial impecuniosity, but provided no evidence. Motion allowed; defendant ordered to pay security for costs in the amount of $5,000. 

The Civilian Director of the Independent Investigation Unit v. The Winnipeg Police Service, 2020 MBQB 125: Application for an order of mandamus requiring WPS to provide notes made by Cadets at an incident IIU is investigating. Order of mandamus is an extraordinary remedy granted only in exceptional circumstances. Analysis considers the legislative interpretation of “Cadet”. Neither the Independent Investigations Regulation nor The Police Services Act mention cadets. Grammond, J. concludes that IIU is entitled to product of cadet notes made relative to the incident being investigated. 

Enns v. Rosenort Housing Corp. Inc. et al., 2020 MBQB 124: Motion by defendant for summary judgment. Claim for damages under The Occupiers’ Liability Act for a slip and fall on an icy driveway resulting in a broken ankle. Claim against R.M. of Morris and Cousin’s Gravel & Surfacing was dropped. Defendant Rosenort Housing must meet standard of reasonable care as imposed by the Act. Plaintiff feels there is a genuine issue for trial, Bond, J. disagrees. Summary judgment granted.

Winnipeg (City) v. Caspian Projects Inc. et al., 2020 MBQB 120: Plaintiff’s motion for non-party production pursuant to QB Rule 30.10 and defendants’ motion to strike significant portions of plaintiff’s supporting affidavits. Further to redevelopment of former Canada Post Building to use as WPS headquarters. City wants possession of documents that are in the possession of the RCMP. Legal framework includes the test applicable to a s.490(15) of the Criminal Code as articulated by Bond, J. in Canada Post Corporation v. Canada (A.G.), 2018 MBQB 87 at para. 17. Defendants’ motion to strike dismissed; City is entitled to the production order. 

Corporate & Commercial Law

Desrochers v. Desrochers, 2020 MBQB 123: Reference to the Master for accounting and valuation of assets of a farming partnership. Parties had not documented in writing material agreements. Primary issue is disposition of three half sections of farmland which will be resolved by trial. Parties agree on value; plaintiff wishes to purchase defendant’s share, defendant wishes to purchase some or all or plaintiff’s share or an order for partition and sale. Reference evaluates contested secondary issues. 

Courage, Noel. “Uber / Google Trade Secret Row Over Self-Driving Car Tech Hits End of Road:  Settlement and Jail Time”, Bereskin & Parr LLP, August 6, 2020. 

Criminal Law

R. v. Poperechny, 2020 MBCA 81: Appeal of summary conviction reinstating charges that had been stayed due to delay in which delay was actually under the presumptive 18 month ceiling. Onus is on accused to establish that s.11(b) Charter Rights were infringed. Second level appeal pursuant to s.839 of the Criminal Code. Standard of review is correctness. LeMaistre, JA did not endorse appeal judge’s reasoning but agreed that the motion judge made a legal error and her decisions is not owed deference. CA conducted its own analysis of the delay and dismissed the appeal. 

R. v. Slotta, 2020 MBCA 79: Request for leave to appeal and appeal of an eight year sentence of incarceration as a result of a guilty plea for one charge of importing fentanyl. Companion case to R. v. Petrowski. Accused requests a reduction in sentence, Crown asks that Court set sentencing ranges of double to triple the amount established in R. v. Rocha, 2009 MBCA 26. Appeal dismissed; Court also declined to set sentencing ranges. 

R. v. Petrowski, 2020 MBCA 78: Similar to R. v. Slotta, request for leave to appeal and appeal of 10 year sentence of incarceration for charge of importing fentanyl. Accused argues that sentence is unfit and asks for reduction; Crown argues sentence should be longer due to the dangerousness of fentanyl. Both appeals dismissed. 

R. v. Fisher, 2020 MBCA 75: Accused seeks to set aside a deemed abandonment of his appeal and to extend the time to file his motion. Accused filed notice of appeal of his conviction and sentence but due to issues with legal aid and the pandemic, was unable to respond in time. Crown has no objection to an extension. Accused bears onus to establish that he had a continuous intention to hear the appeal. Motion granted by appeal dismissed. LeMaistre, JA found no arguable error. 

R v. E. Moar, 2020 MBQB 121: Sentencing hearing for accused who pled guilty to one count of manslaughter in the death of his mother. Aggravating factors include a recent criminal record, brutal and vicious assault leading to victim’s death, assault witnessed by victim’s young children, accused is assessed at a very high risk to reoffend. Mitigating factors include guilty plea (at the last minute), Gladue factors, family support. Crown seeks 14 years less time in custody, defence asks for go forward sentence of two years, taking into account time in custody. Sentence of incarceration of 8 years with a credit of 47 months for time in custody. 

R. v. McIvor, 2020 MBQB 117: Appropriate sentence for conviction of intentionally discharging a firearm. Two accused involved; different sentences recommended. Crown argues that this accused has a higher moral culpability as well as a more substantial record, therefore his sentence should be longer. Defence argues for parity with other accused. Judge sentences accused to a year longer than co-accused. 

R. v. Russell, 2020 MBQB 41: Trial where accused is charged with sexual assault. Events took place in 2006, when complainant was 12 years old. Toews, J. analyses the evidence using the three-step test set out in R. v. W.(D.). Accused is convicted. 

R. v. Tarapaski, 2020 MBPC 36: Trial for charges of uttering threats, mischief, possession someone else’s identity documents, possession a firearm and more. Police found an “alleged makeshift firearm”. Discussion of interpretation of “possession” of the firearm as well as what is a firearm. Accused is found guilty of some of the counts and not guilty of others. 

R. v. Bohemier, 2020 MBPC 33: Sentencing reasons for arson, assault, and assaulting a police officer. Accused is a vulnerable adult under the care of the Manitoba Trustee. On the night of the offence he was in a psychotic state brought about by schizophrenia. Analysis of principle of proportionality when crafting a sentence as well as other relevant sentencing principles. Accused was sentenced to two years for arson, concurrent sentence of six months for assault less time currently spent in custody. 

Family Law

Van Easton v. Wur, 2020 MBCA 82: Appeal of charge of criminal contempt. Petitioner (mother) initiated a civil contempt proceeding based on father’s disobedience of a custody order. Court issued a criminal contempt proceeding due to father’s interaction with motion judge during the civil contempt proceeding. CA concluded that rules of natural justice had not been followed and quashed the criminal contempt charge. 

CFS Western MB v. C.D.C. and W.D.V. et al., 2020 MBQB 118: Application by agency for an order for summary judgment to place child with paternal grandparents. Mother is opposed, arguing that the child should be returned to her care. Father of child has consented to the order placing the child with his parents. Concern relates to mother’s addiction issues and ability to parent the child. Analysis of whether summary judgment is fair and just in this situation; Abel, J. finds that it is. Agency’s motion is granted, with a guardianship order for six months. 

WRCFS v. R.V.S. and D.D.T., 2020 MBPC 32: Due to previous involvement with the Agency, child was apprehended at birth. Issue is whether the Agency had reasonable and probable grounds to believe that the child was in need of protection. Court found that the Agency based its decision on speculation of harm. No direct caselaw on how to interpret serious harm in a non-emergency situation. Significant analysis of K.L.W. v. Winnipeg Child and Family Services, 

Schofield, John. “Bid to cancel prenup not barred by two-year limitation period, rules Ontario Court of Appeal”. The Lawyer’s Daily, August 6, 2020. Commentary on Kyle v. Atwill, 2020 ONCA 476. 

Labour & Employment

Waraich v. Director of Employment Standards, 2020 MBCA 76: Motion for leave to appeal a decision of Small Claims Court. Leave can only proceed on a question of law or jurisdiction. Claimant had been issued five payment-of-wages orders. She referred two to the Manitoba Labour Board but not the other three. Director filed certificates under the Employment Standards Code making them enforceable as judgments of the court and collected the amounts by a third-party demand on the claimant’s bank. Director argued that trial judge erred in law in disposing of the payment-of-wages orders. Motion to appeal is allowed but only on the question of whether the trial judge applied the correct legal test in quashing two of the orders. 

Klassen v. Rosenort Cooperative Limited, 2020 MBQB 116: Action for wrongful dismissal. Employment terminated for breach of confidentiality by providing a local manufacturer with an internal pricelist. Plaintiff is successful, and was awarded damages in lieu of notice, as well as aggravated and punitive damages. 

Wills, Trusts & Estates

Preston et al v. Wachniak, 2020 MBCA 77: Motion by respondent seeking an extension of time to file a factum. Applicant held power of attorney for her mother, who moved in to a personal care home. Applicant applied for a writ of possession for her mother’s home, where the respondent (brother) resided, in order to sell it to fund her mother’s care. Writ of possession was granted, but stayed for 90 days in order for respondent to find new accommodations. Mother passed away and the writ of possession was set aside. Mother’s will divided her assets equally between all her children. New order for writ of possession was issued, and not appealed, making original appeal moot. Appeal dismissed. 

Legislation

Federal

43^rd Parliament, 1^st Session (Parliament has been prorogued)

43rd Parliament, 1st Session
C-20
An Act respecting further COVID-19 measures
Statute of Canada: 2020, c. 11
Progress: 
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43rd Parliament, 1st Session
C-245
An Act respecting the development of a national strategy in relation to fresh water
Short Title
National Freshwater Strategy Act
Progress: 
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43rd Parliament, 1st Session
C-244
An Act to amend the Canadian Navigable Waters Act (North Thames River, Middle Thames River and Thames River)
Progress: 
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43rd Parliament, 1st Session
C-243
An Act to amend the Payment Card Networks Act (credit card acceptance fees)
Progress: 
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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: 
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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: 
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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: 
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43rd Parliament, 1st Session
S-208
An Act to amend the Criminal Code (independence of the judiciary)
Progress: 
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Provincial

42^nd Legislature, 2^nd Session

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