eLex October 2020

Highlights in this issue

Latest SCC decision on retroactive child support
How private is your text? Case comment on R. v. Marakah and R. v. Jones
Supreme Advocacy’s Court of Appeal Decision of the Week – John Deere Financial v. R.M. of MacDonald

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
Discipline DigestsCorporate & Commercial 
New Library ResourcesCriminal Law 
 Family Law 
  

News


In the News

  • The government has announced that the current legislature has been prorogued and there will be a new throne speech delivered on October 7, 2020. 
  • Upcoming CPD from the Law Society
  • vLexJustis webinar available on the Library Resources page behind the member’s portal

Court Notices & Practice Directions

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

Notices

All Courts

Notice to the Profession: COVID-19 (September 28, 2020)
Notice to the Profession: COVID – Use of Masks – Province wide (September 8, 2020)
Notice to the Profession:  COVID – Use of Masks (September 7, 2020)
Notice to the Profession: COVID-19 (August 28, 2020)

Manitoba Provincial Court

Notice – Child Protection Hearings (October 1, 2020)
Notice – COVID-19 Suspension and Re-opening of Additional Courts (September 28, 2020)
Notice – Additional Trial Dates Available on Court’s Website (September 24, 2020)
Notice – COVID-19 Suspension and Re-Opening of Additional Courts (September 18, 2020)
Notice – JJP Administrative Circuit Dockets (Thompson Court Centre) (September 9, 2020)


Discipline Digests

Digest – Adeline Lorraine Degner
Notice of Undertaking – Gisele Champagne
Notice of Restrictions – Caroline B. Cramer


New Library Resources

New Online Titles

Sentencing in Canada : Essays in Law, Policy, and Practice edited by David Cole and Julian Roberts

“A unique collection of essays that explore all key aspects of sentencing. The volume is not simply a statement of the law—instead, the chapters examine the wider context in which sentencing and parole decisions are taken. The volume also incorporates findings from the latest empirical research into sentencing policy and practice in Canada, including important issues such as sentencing Indigenous persons.”

Financial Skills for Professionals by Vern Krishna

“This book uses clear, concise explanations and simple numerical examples of what lawyers and professional persons need to know to understand financial law and statements.”

The Law of Evidence – 8th ed. by David Paciocco, Palma Paciocco, and Lee Stuesser

“Canada’s leading text in evidentiary law in both criminal and civil cases. In this newest edition of this frequently cited book, the authors continue the practice of organizing, explaining, and illustrating the law of evidence clearly, simply, and practically. The Law of Evidence, 8e, provides authoritative analyses of new cases, and portions of the book have been rewritten or reorganized to enhance discussion of the most important topics in evidentiary law.”

Canadian Family Law – 8th ed. by Julien D. Payne and Marilyn A. Payne

“The eighth edition of Canadian Family Law is a companion volume to Payne and Payne, Child Support Guidelines in Canada, 2020. Previous editions of both of these texts have been cited in hundreds of judicial decisions across Canada, including the Supreme Court of Canada and appellate courts from coast to coast. Canadian Family Law has also been adopted as required reading in family law courses presented by several colleges and universities across Canada.”

Substantive Law


Administrative Law

Bell Canada v. British Columbia Broadband Association, 2020 FCA 140: Appeals of order issued by the CRTC retroactively setting final rates that large telephone and cable companies can charge for aggregated wholesale high speed access services. While the appeal is consolidated, the telephone companies and the cable companies have different arguments. Telephone companies argue that the CRTC erred in law or jurisdiction; cable companies argue the CRTC committed one or more legal jurisdictional errors. Respondents represent or are independent internet service providers. Analysis of the legislative framework of the Telecommunications Act. Appeals dismissed. 

Paul Daly. The Appellate Standard of Review in Public Law Cases. Preprint to be published in Public Law journal in 2021. 

… On this issue, two common law apex courts have recently divided: the United Kingdom Supreme Court taking one view, the High Court of Australia a very different view. …


Civil Litigation

Bent v. Platnick, 2020 SCC 23: Appeal concerning s.137.1 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Appellant sent an email to members of the OTLA listserv naming the respondent and alleging that he altered doctors’ reports and changed a doctor’s decision. Respondent commenced a lawsuit in defamation. Appellant filed a motion under s.137.1 of the CJA to dismiss; motion judge allowed, appeal court set it aside and remitted defamation claim to the Superior Court for consideration. Held: Appeals should be dismissed. Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ: Claim in defamation should be allowed to continue. It deserves to be adjudicated on its merits. Appellant has met her threshold burden that her email constitutes an expression relating to a matter of public interest; respondent has also discharged his burden that the proceeding has substantial merit. Abella, Karakatsanis, Martin and Kasirer JJ. dissent. 

1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22: Litigation on same section of the Courts of Justice Act, different conclusion. Appellant brought action against respondent in breach of contract; respondent moved to rely on s.137.1 to have action dismissed. Respondent opposed a proposed subdivision development by the appellant and testified at a hearing of the Ontario Municipal Board. Significant analysis of statutory interpretation. Appeal dismissed. Côté J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. concurring). 

Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19) (CA), 2020 FCA 137: Response to Attorney General regarding meaning and application of s.6 in order to reduce uncertainty. Attorney General submits that s.6 suspends retroactively all time limits established by or under an Act of Parliament between March 13 and September 13, 2020. Court issues a direction under Rule 54 to clarify. 

John Deere Financial Inc. v. Macdonald (Rural Municipality), 2020 MBCA 90: Respondent municipality appealed an order declaring the applicant the lawful owner of seized property and requiring it to be returned. The RM seized two front-end loaders leased from the applicant by the owner of property in a land-use dispute. Appeal dismissed. 

Rylaarsdam v. Balcaen, 2020 MBCA 91: Appeal by respondent of decision appointing applicant (her brother) as sole attorney for Arie Jacob Rylaarsdam, requiring him to provide an annual accounting to her and an accounting to the Master every two years. Respondent raised numerous grounds of appeal relating to the conduct of the hearing and the decision itself. Appeal dismissed. 

Carlson v. Dunn et al, 2020 MBCA 85: Defendants’ appeal of finding of liability in personal injury decision. Plaintiff suffered severe injuries falling off the roof of the defendants’ garage while inspecting work done by one of the defendants. Defendants argue that trial judge made errors in factual findings, findings of negligence and order of costs. Appeal partially allowed, setting aside judge’s finding of liability against Dunn. 

Evans v. Norway House Fisherman’s Co-op Ltd. et al, 2020 MBCA 83: Appeal of denial of application for judicial review. Applicant’s membership in the Co-op was terminated. Applicant claims application judge should have ruled on his claim that the Co-op breach his right to procedural fairness. Application judge ordered a trial of the oppression claim against respondent Saunders. Appeal dismissed. 

Winnipeg (City) v. Caspian Projects Inc. et al., 2020 MBQB 129: Series of contested motions: defendants’ motion to strike the plaintiff’s statement of claim; defendants’ motion for further and better particulars (argued in the alternative to their motion to strike the statement of claim); plaintiff’s motion to amend its statement of claim; motion brought by the “Sheegl defendants” for severance; and a motion brought by the “Sheegl defendants” to strike the cross-claim brought by the “Consultant Defendants”. Summary of determinations: defendants’ motion to strike the City’ s statement of claim is dismissed; defendants’ motion for further and better particulars is dismissed; City’s motion to amend its statement of claim is granted; Sheegl Defendants’ motion to sever is granted; Sheegl Defendants’ motion to strike the cross-claim of the Consultant Defendants is dismissed.

Vale v. Schwartz et al., 2020 MBQB 127: Motion for summary judgement. Plaintiff alleges that some defendants stole nickel from the plaintiff’s mining operation and unlawfully converted it to nickel; other defendants bought the stolen nickel and sold it. Motion is successful; damages will be argued later. 

Municipal Law: Seizure and Forfeiture Powers, Innocent Third Party, Supreme Advocacy, Court of Appeal Decision of the Week. Comment re John Deere Financial Inc. v. Macdonald (Rural Municipality), summarized above. 

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


Corporate & Commercial Law

Fire Sky Energy Inc. v. EverGro Energy Corporation, 2020 MBQB 133: Both parties claim a leasehold interest in petroleum located near Virden. Plaintiff claims defendant’s lease expired January 2016 and theirs came in to effect in February 2017. Defendant contends its interpretation of the lease is that it remains valid. Lessor agrees with plaintiff. Analysis of the terms of the lease. Plaintiff is successful but no damages awarded. 

Gerald Chan. Text Message Privacy: Who Else is Reading This? (2019) 88 S.C.L.R. (2d) 69. Case comment on R. v. Marakah and R. v. Jones


Criminal Law

R. v. McDonald, 2020 MBCA 92: Appeal of conviction for first degree murder. He is seeking a manslaughter verdict or a new trial. Ground of appeal is that it is unreasonable; accused argues that trial judge’s decision was based on two key findings not supported by the evidence. Steel, JA found that the trial judge carefully reviewed and evaluated all the evidence and provided reasons for what he accepted. Trial judge’s reasons are entitled to deference. Appeal dismissed. 

R. v. Contois, 2020 MBCA 89: Appeal of conviction for second degree murder and request for leave to appeal the sentence for that offence. Main issue is narrow – whether the accused should have known that when he discharged a firearm, death would be the result. Analysis of s.229(c) of the Criminal Code and the assessment of the subjective knowledge of the accused. Appeal dismissed. 

R. v D.T., 2020 MBCA 88: Appeal of conviction for sexual assault. Accused argues that trial judge misapprehended the medical evidence. Court cites R. v. Morrissey and R. v. J.A.W. as authority on test for determining whether there was a misapprehension of evidence amounting to a miscarriage of justice. Appeal dismissed. 

R. v. Thorassie, 2020 MBCA 87: Motion by accused for an extension of time to file an appeal regarding his convictions and an extension to file an application for leave to appeal his sentence. Accused was convicted of offences of aggravated assault endangering life, possession of a knife, and carrying a concealed weapon. Burden is on applicant to show why he should receive an extension. Difficulties with completing the application for appeal on time appeared to be administrative, and grounds for appeal had merit; both motions allowed. 

R. v J.G.H.W., 2020 MBCA 86: Request for appeal by the Crown re probationary sentence received by young person for sexual offences. Crown had recommended two years custody followed by one year probation; defence asked for two years supervised probation. Sentencing judge concluded there were alternatives to custody and sentenced him to probation. CA determined that sentencing judge erred in principle in imposing a sentence holding the young person accountable through meaningful consequences and added a period of incarceration. At time of hearing, accused had been compliant with the terms of his supervised probation for several years. Sentence was varied, adding a 12-month custody and probation order, which was then stayed. 

R. v. Thomas, 2020 MBCA 84: Decision adjourning an appeal. Accused pleaded guilty to second degree murder in 2011 and was sentenced to life imprisonment. A year later she filed a motion for an extension of time to appeal the conviction, which was heard in 2016, making a claim of “ineffective assistance of counsel”. Very little movement on file since then. Appeal adjourned until later date in fall. 

R. v. Okemow, 2020 MBQB 128: Sentencing decision for conviction of second degree murder. Plain language decision from Martin, J. taking into account a Gladue report, presentence report and various psychiatric fitness reports as well as victim impact statements. Delivered at God’s Lake Narrows First Nation. Also considers whether harsh nature of RCMP cells during trial should be taken into account in mitigation. Accused given sentence of life in prison, serving 16 years before asking for release, reduced by two months. 

Leila Gaind. A Rose by Any Other Name: Well-Being Checks, a New Manifestation of Discriminatory Policing? (2020) 25 Appeal 3

… Across jurisdictions, the data reveals that street checks disproportionately target Black, Indigenous, and other racialized and marginalized persons. … Now, street checks are a way for officers to check in on the “well-being” of marginalized community members. In Vancouver, the VPD has framed this practice as promoting a social good, but this article contends that well-being checks are another manifestation of arbitrary street checks. 

Don Stuart. Labillois: The New Power to Demand an ASD without Reasonable Suspicion: What of Section 8? (2020) 63 C.R. (7th) 243.  (WLNC – request a copy.) 


Family Law

Michel v. Graydon, 2020 SCC 24: Retroactive variation of child support order under provincial legislation. Further clarification of the rule in D.B.S. Per the summary, “a court must analyze the statutory scheme in which the application was brought, and the different policy choices made by the federal and provincial governments must be respected.” Respondent father had understated his income for child support purposes; mother was dependent on social assistance and assigned her rights to receive child support to the Minister. Minister never authorized an application to review child support. In 2015 mother applied to retroactively vary child support (terminated in 2012). Delay was reasonable – father had engaged in blameworthy conduct by failing to accurately disclose his income. Appeal allowed. Majority reasons (Moldaver, Côté, Brown, Rowe and Kasirer, J.J.) delivered by Brown, J. (paras. 1-37); concurring reasons of Wagner, C.J. and Martin, J. delivered by Martin, J. (paras. 38-135); further concurring reasons of Abella and Karakatsanis, JJ., delivered by Abella, J. (para. 136). 

Rachel Birnbaum. Virtual Parent-Child Contact Post-Separation: Hearing from Multiple Perspectives on the Risks and Rewards. (2020) 39 C.F.L.Q. 75 (WLNC – request a copy.)


Legislation


Federal

Speech from the Throne
43rd Parliament, 1st Session

43rd Parliament, 1st Session
S-1
An Act relating to railways
Progress: Introduction and First Reading in the Senate
Show Details

43rd Parliament, 1st Session
C-1
An Act respecting the administration of oaths of office
Progress: Introduction and First Reading in the House of Commons
Show Details

43rd Parliament, 1st Session
S-204
An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs)
Progress: Introduction and First Reading in the Senate
Show Details

43rd Parliament, 1st Session
S-205
An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speaker of the Senate)
Progress: Introduction and First Reading in the Senate
Show Details

43rd Parliament, 1st Session
C-2
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2020
Short Title
Appropriation Act No. 3, 2019-20
Statute of Canada: 2019, c. 30
Progress: Royal Assent
Show Details

43rd Parliament, 1st Session
S-202
An Act to amend the Criminal Code (conversion therapy)
Progress: Introduction and First Reading in the Senate
Show Details

43rd Parliament, 1st Session
S-203
An Act to amend the National Capital Act (buildings or works of national significance)
Progress: Introduction and First Reading in the Senate
Show Details

43rd Parliament, 1st Session
C-201
An Act to develop a national school food program for children
Short Title
School Food Program for Children Act
Progress: Introduction and First Reading in the House of Commons
Show Details

43rd Parliament, 1st Session
C-202
An Act to amend the Criminal Code (assault against a health care worker)
Progress: Introduction and First Reading in the House of Commons


Provincial

42nd Legislature, 3rd Session
October 7, 2020 – Fall legislative session to begin

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