Table of Contents
News
In the News
The Great Library is closed while Winnipeg is under Code Red restrictions.
Funding awarded for Access to Justice Co-ordinator.
Court Notices & Practice Directions
All COVID-19 Notices and Practice Directions are available here.
Manitoba Court of Appeal
Notice – All Hearings of the Court of Appeal will be conducted remotely until further Notice (November 2, 2020)
Court of Queen’s Bench
Masters’ Court – Notice – Procedural Update (MEP) (November 4, 2020)
Notice – Additional Measures in respect of attendance at the Law Courts Complex (November 2, 2020)
Notice – Scheduling Protocols (October 1, 2020)
Provincial Court
Notice – Contested Bail applications before Judicial Justices of the Peace (JJPs) (November 9, 2020)
Notice – COVID-19 – Update (November 2, 2020)
Notice – COVID-19 – Suspension and Reopening of Courts (October 30)
Notice – COVID-19 – Update to Judicial Justice of the Peace Weekday Bail Dockets (October 22, 2020)
Discipline Digests
Notice of Disbarment – Paul Richard Hesse
Notice of Undertaking – Ryan William Fawcett
Notice of Restrictions – John Sinclair
Reasons for Decision: Douglas Albert Mayer – Quality of Service/Failure to notify insurer
New Library Resources
New Online Titles
Emond’s Criminal Law Series
Prosecuting and Defending Sexual Offence Cases – 2nd ed. by Daniel Brown and Jill Witkin
This edition contains new chapters on historical sexual offences and cross-examination on private records, and reflects changes in Bill C-51 pertaining to third party records, other sexual history, and consent. Analysis of case law and relevant Criminal Code provisions have been integrated throughout in order to effectively guide readers through the flow of a sexual offence case.
From DesLibris
The Law of Contracts – 3rd ed. by John McCamus
“The Law of Contracts, third edition, is a thorough revision of this authoritative text in Irwin Law’s Essentials of Canadian Law series. It includes discussion of recent jurisprudential developments in a variety of topics. The book also incorporates reference to recent Canadian cases on doctrines such as estoppel, privity, interpretation, and appellate review, and discussion of recent leading authorities dealing with such matters as contractual interpretation and the application of the basic principles of formation to e-commerce.”
New Print Titles
Sopinka on the Trial of an Action – 4th Edition, by J. Kenneth McEwan
“Sopinka on the Trial of an Action, 4th Edition remains a go-to reference for best practices and strategies in the courtroom at the trial level. The book covers everything from the structure of the trial, trial preparation, presenting the case at trial and trials where the case goes to the jury. Also included is a plethora of useful and handy appendices ranging from sample opening statements, cross examination techniques, addresses and questions to the jury, to many more.”
Liability Insurance Law in Canada – 7th Edition, by Gordon G. Hilliker
“Follows the same format as earlier editions and covers all aspects of liability insurance (excluding automobile), from general principles of insurance law and insurance contracts to specific clauses and types of policies. Hilliker examines the similarities and differences between the legislative regimes of each province; analyzes the jurisprudence and identifies preferred approaches; presents a select body of U.S. case law that can be used to fill in the gaps in Canadian jurisprudence; and includes a useful set of Insurance Bureau of Canada commercial liability policy forms.”
Substantive Law
Administrative Law
Cann v. Director, Fort Garry/River Heights, 2020 MBCA 101: Application for leave to appeal an order of the Social Services Appeal Board clawing back income assistance during the pandemic. Applicant was receiving income and shelter assistance due to a disability, and applied to the CERB for additional assistance, which he reported. He received $2,000 but ultimately returned $1,260 to the federal government. Director advised he did not qualify for the CERB and thus he had been overpaid in income assistance. Board concluded that CERB was earned income. Mainella, J.A. determined this was a question of law of significant importance for many Manitobans that it required a more thorough inquiry by a panel of the Court of Appeal. Also issued an order for assistance from Legal Aid counsel.
Paul Daly. Administrative Law Matters: Rates and Reserves: Manitoba (Hydro-Electric Board v. Manitoba (Public Utilities Board), 2020 MBCA 60. Case commentary, published Oct. 13, 2020.
Bankruptcy Law
Chandos Construction Ltd. v. Deloitte Restructuring Inc., 2020 SCC 25: Analysis of the anti-deprivation rule. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ: “The test under the anti-deprivation rule has two parts: the relevant clause is triggered by an event of insolvency or bankruptcy, and the effect of the clause is to remove value from the insolvent’s estate.” – from the summary. Per Côté J. (dissenting): “A purely effects-based test gives too little weight to freedom of contract, party autonomy, and the elbow-room which the common law traditionally accords for the aggressive pursuit of self-interest.”
The Bankruptcy of Stanley Frank Ostrowski, 2020 MBQB 147: Motion by the bankrupt to annul his assignment in bankruptcy. Bankrupt realized he made a mistake and shouldn’t have made an assignment. At the time he didn’t disclose that he would be filing a suit for wrongful conviction, which, if successful, would allow him to pay off his creditors. Trustee and representative of OSB do not take a position. Creditors were given notice and none participated in proceedings. Motion granted.
Civil Litigation
Desjardins Financial Services Firm Inc. v. Asselin, 2020 SCC 30: Whether Court of Appeal was justified in intervening in Superior Court’s decision re class action. Per Wagner C.J. and Abella, Karakatsanis, Brown, Martin and Kasirer JJ.: Appeal should be allowed in part for the sole purpose of varying paras. 8 and 9 … to clarify the scope of the claim for punitive damages. Threshold for authorizing a class action in Quebec is a low one. Per Moldaver, Côté and Rowe JJ. (dissenting in part): Authorization again the Firm should be denied, and authorization against Management should be granted, but only on the claim for compensatory damages.
Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29: Post-incorporation contracts – Test is the same for post-incorporation contracts as for any other agreement. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Martin and Kasirer JJ.: “…the applicable test for finding that a post-incorporation contract exists is the same as the one for finding that any other agreement exists at common law. The test is objective, and the offer, acceptance, consideration and terms may be inferred from the parties’ conduct and from the surrounding circumstances….” Rowe J. dissenting in part.
Sagkeeng v. Government of Manitoba et al, 2020 MBCA 100: Application to increase length of factum from 30 pages to 47 pages as set out in QB Rule 29(1). Due to COVID-19, parties’ argument will be based solely on written materials. Applicant argues that two proceedings are being addressed in its appeal. Motion dismissed.
Klimack et al v. Kroeker et al, 2020 MBCA 98: Appeal on decision over prescriptive easements: unregistered access road affecting three cottage properties. Extensive examination and analysis of prescriptive easements in Manitoba; use relied upon by claimant must be “as of right”. Appeal dismissed.
Penner v. Montcalm (Rural Municipality), 2020 MBCA 97: Motion for extension of time to file appeal book and factum re summary judgment decision on a tax sale. Plaintiff was having difficulties preparing materials due to pandemic. He had no access to the internet or libraries where he could access the internet. While Court recognized difficulty of preparation of materials in rural communities, notice of appeal does not demonstrate an arguable ground of appeal. Motion dismissed.
The Director of Criminal Property and Forfeiture v. Gurniak et al, 2020 MBCA 96: Appeal from action for the civil forfeiture of criminal property: when should a stay be granted in a civil proceeding when there are concurrent criminal proceedings. By the time this appeal was heard the matter was moot, but CA agreed to hear it. Principal concern of motion judge was that derivative evidence could be obtained in the civil case that could be used in the criminal matter. Discussion of the difference between use immunity doctrine and derivative use immunity doctrine. Appeal allowed.
Lagimodiere et al. v. The Wawanesa Mutual Insurance Company et al., 2020 MBQB 154: Application for permission to add a party as defendant in this action, and application by one of the defendants for leave to file a third party claim against that party. Defendant FirstOnSite Restoration had sought creditor protection under the CCAA. FOS made an assignment in bankruptcy and was discharged Dec. 2019. No distribution was made to any unsecured creditors. Motions partially successful.
Vincent et al. v. Red River Mutual, 2020 MBQB 153: Order by applicants seeking appointment of a dispute resoution representative. Respondent opposes, arguing no action for recovery under the policy was started prior to the limitation date, resulting in lapsing of applicants’ right to use dispute resolution process. Issue is over disagreement in amount of compensation paid and restoration of personal property after a house fire. Analysis of the limitation period in s.136.2(2) of The Insurance Act. Application dismissed.
Kozak et al. v. Core Life Inc. et al., 2020 MBQB 149: Motion by defendants re jurisdiction. Plaintiffs live in Manitoba and Alberta; plaintiff corporation is a Manitoba corporation. Defendant is an Ontario company. Plaintiffs purchased shares in defendant’s corporation; negotiated an agreement that the indemnity would be construed under the laws of Manitoba. Motion dismissed.
Trunzo v. Satgunam, 2020 MBQB 144: Order seeking extension of limitation period to file a statement of claim for damages. Plaintiffs purchased house from defendant in 1998. In 2014, they had water damage which they fixed. In 2018, they discovered more extensive damage, leading to an expert opinion that the house posed a real and substantial danger to the occupants. Extensive analysis of The Limitations of Actions Act, s. 14(1). Leave granted.
DSTB Inc. v. McGregor Landscaping & Design et al., 2020 MBQB 142: Issue of garnishment over assignment. Plaintiff obtained an order of garnishment over accounts receivable of defendant. Third party JCFS seeks a declaration that it purchased the receivables with a series of assignment agreements. Importance of decision: agreements were not drafted by a lawyer, yet the intent was discernible; there isn’t much judicial consideration of garnishment vs. assignment; argument of s. 347(1) of the Criminal Code (interest at a criminal rate); whether this constituted fraud. Detailed analysis by Grammond, J. on all points.
6165347 Manitoba Inc. et al. v. The City of Winnipeg et al., 2020 MBQB 141: Motion by applicants to vary a previous order and motion by respondents to expunge some of the applicants’ evidence. Respondents’ motion is dismissed. Threshold to vary an order is very high. Grammond, J. varies para. 4 of her previous order to order that the SPC hold a fresh public meeting. Applicants request fine for respondents as a sanction; judge declines to so order. Enhanced costs to the applicants.
Desrochers v. Desrochers, 2020 MBQB 140: Parties are tenants in common of three parcels of land. Plaintiff is asking for an order of sale; defendant opposes but is requesting an order of partition. Reference to Chevalier v. Chevalier as setting out the law of partition and sale. No way to fairly partition the land, therefore Menzies, J. issues an order for sale.
Winnipeg (City) v. Caspian Projects Inc. et al., 2020 MBQB 131: Motion under QB Rule 63 for a stay of an Order pending appeal, relating to access and production of certain documents in the possession of a non-party. Only the “clearest of cases” deserve a stay of an interlocutory order. Includes test for determining answer. Applicants must prove there is an arguable case that the judgment under appeal is wrong. Appeal dismissed.
Civil Litigation: Factum Length in the Court of Appeal, Supreme Advocacy – Court of Appeal Decision of the Week; Case comment on Sagkeeng v. Government of Manitoba et al.
Constitutional Law
Fraser v. Canada (Attorney General), 2020 SCC 28: Discrimination based on sex: claimants are retired members of the RCMP who took maternity leave in the 1990s. They expected that job-sharing would be eligible for full pension credits but it wasn’t. They were unable to purchase full-time pension credit for their job-sharing service. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ: “…This arrangement has a disproportionate impact on women and perpetuates their historical disadvantage. It is a clear violation of their right to equality under s. 15(1) of the Charter.” – from summary. Côté, Brown and Rowe JJ. Dissenting.
Criminal Law
R. v. Reilly, 2020 SCC 27: Appeal of a stay of charges of assault causing bodily harm, granted because of systemic problems in the bail system in Alberta. Oral decision by Brown, J.: “…no basis for the Court of Appeal to interfere with the trial judge’s exercise of discretion…”
R. v. Herntier, 2020 MBCA 95: Appeal of conviction by a jury of second degree murder, and the parole ineligibility term of accused’s sentence. Beard, J.A. reduces the number of grounds for appeal from 19 to 7. Also considers whether a juror can provide fresh evidence on appeal. This is a lengthy decision with significant analysis of many points, but in the end, the appeal was dismissed.
R. v. Dram, 2020 MBCA 93: Appeal of sentence for possession of methamphetamine for the purpose of trafficking. Accused received sentence of four years’ incarceration and a concurrent sentence of 20 days for breach of recognizance. Accused asserts that sentencing judge erred by considering unproven aggravating facts, overemphasizing general deterrence, underemphasizing Gladue factors and imposed an unfit sentence. Standard of review is deferential. Leave for appeal granted, but appeal dismissed.
R. v. Mason, 2020 MBQB 151: Trial for manslaughter. Accused relies on defence of self-defence. She suffered from PTSD and exhibited the symptoms of Battered Woman Syndrome. Crown must establish beyond a reasonable doubt that the accused did not act in self-defence. Crown submits that the stabbing was precipitated by anger and revenge. Expert evidence admitted in forensic pathology and clinical and forensic psychology, in particular with regards to PTSD and battered women syndrome. Ultimately, McKelvey, J. did not believe Crown had proved its case beyond a reasonable doubt; accused is acquitted.
R. v. Pearase, 2020 MBQB 138: Accused is charged with one count of sexual assault. Issue is whether the accused had an honest but mistaken belief that complainant had communicated consent. McCarthy, J. found that the Crown proved that complainant lacked the requisite capacity to consent. Analysis moves to whether accused had an honest but mistaken belief that she had consented. Evidence led included video of event. Accused is found guilty.
R. v. Oghieakhe, 2020 MBPC 58: Sentencing decision for accused after being found guilty of sexual assault after trial. Issue of appropriate sentence also will take in to account that accused will likely be subject to removal after the completion of his sentence. Court determined accused had high moral blameworthiness but also perceived him as an excellent candidate for rehabilitation. Sentence of two years less a day plus 24 months’ supervised probation.
R. v. J.J.D., 2020 MBPC 54: Sentencing decision for Aboriginal youth with no prior criminal record. Accused was originally charged with manslaughter, but pled guilty to assault causing bodily harm. He participated in a beating instigated by another youth that led to the death of the victim. Given credit of 1.25 days for 251 days of pre-trial detention; sentence of 9 months in custody (no further custody necessary) plus supervised probation order for next two years.
R. v. Bigl, 2020 MBPC 51: Did Crown prove beyond a reasonable doubt that accused had knowledge and control of drugs seized by police and whether money seized can be proven to be proceeds from drug trafficking. Accused did not own either the vehicle or house where property was found. Accused is acquitted.
R. v. Plaha, 2020 MBPC 50: Voir dire re impaired driving charge and driving with an alcohol reading of .08 or more. Charter motion alleging violation of right to counsel (s.10(b)) and application to exclude the breath sample evidence. At end of trial Crown stayed the impaired driving charge but other charge remained. RCMP had received a third party complaint about possible impaired driving and pulled over a driver and requested an ASD screening. Analysis of meaning of being offered “right to counsel” and satisfaction with it. Evidence is excluded.
R. v. Bear, 2020 MBPC 46: Dangerous offender application. Respondent admits that this offence was a serious personal injury offence and that he has a high likelihood of harmful recidivism, but that his conduct should not be designated as dangerous but rather as a long-term offender. Respondent has been consistently non-compliant with probation supervision programs. Risk assessment places him at a high risk of reoffending violently. Decision on sentencing is between a determinate sentence followed by long-term supervision or an indeterminate sentence. Mr. Bear is sentenced to an indeterminate sentence.
R. v. C.P., 2020 MBPC 45: Sentencing decision for a youth who pleaded guilty to robbery and other charges. Crown is seeking a custodial sentence followed by a year of probation. Defence requests a probationary sentence. Victim Impact Statement by victim of armed robbery shows extent of terror he still feels. Mitigating factors include youth’s guilty plea, Gladue factors, and compliance with strict release conditions as well as remorse. Devine, P.J. determines to give accused least restrictive sentence that is capable of achieving the purpose of holding him accountable, most likely to rehabilitate and reintegrate him into society and promote a sense of responsibility.
R. v. Harder, 2020 MBPC 43: Voir dire to determine whether accused’s Charter rights had been violated over impaired driving arrest before being administered an ASD. Court found no breach of s.8 or s. 10(b).
R. v. Wood, 2020 MBPC 42: Application for delay based on Jordan where trial is scheduled to take place 17 months and 27 days after the charge was laid. Crown agrees that defence was diligent in moving the case to trial. Crown’s position is that the net delay is less than 13 months. Includes analysis of the issue of attributing co-accused delay as well as whether the time to trial markedly exceeded what is reasonable. Court determined it did not; application dismissed.
Family Law
J.D.B. v. D.K.M., 2020 MBCA 102: Further hearing in appeal of review of final order made in 2018. Review order was found to be in error regarding custody of daughter. Appeal allowed in part.
Zilke v. Epp, 2020 MBCA 99: Respondent is requesting an adjournment for the appeal of an order finding her in contempt of court orders dealing with custody and access, as well as the penalty imposed. Petitioner is opposed, as appeal was filed over a year ago. Court invited parties to resolve the matter which they were able to do. Appeal granted, varying the order.
Marrese v. Dyck, 2020 MBCA 94: Respondent appealed a final order made under The Family Maintenance Act, requiring him to pay child support plus a further amount towards arrears. Issue over financial disclosure; respondent claimed expenses not supported by the amount he claimed in income. Trial judge identified evidence explaining why he accepted that the respondent’s true income was much higher than what he reported. Appeal dismissed.
Zheng v. Yang, 2020 MBQB 146: Divorce Act proceeding, with a number of issues resolved before trial. Remaining matters are income quantification of petitioner to determine child support obligation; income determination of respondent to assess entitlement and quantum of spousal support; and whether money given to parties to purchase family home was a gift or a loan. Parties had been supported financially by petitioner’s parents. Now petitioner presented a promissory note signed between him and his parents indicating that money used to purchase family home was a loan and not a gift. Respondent claims she thought it was a gift and would not have accepted it if it had been a loan. Analysis of credibility of all witnesses. Thomson, J. finds respondent has made her case that the money was a gift.
Labour & Employment
Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26: Appeal re constructive dismissal –whether damages for breach of duty to provide reasonable notice include incentive bonus. “This appeal bears on the redress available to an employee who, by reason of the circumstances of his departure from a job he had held for many years, is treated in law as if he were dismissed. By extension, it concerns some of the proper contours of an employer’s common law right to determine the composition of its workforce.” – para. 1. Appeal allowed. Kasirer J. (Wagner C.J. and Moldaver, Côté, Brown, Rowe and Martin JJ. concurring).
Isaacson et al v. Credential Insurance Services Inc., 2020 MBCA 103: Appeal of dismissal of claim for distribution of commissions post-termination. Plaintiff claims commissions vested with them. Issue of contractual interpretation in employment contracts and Agency Distribution Agreement. Appeal dismissed.
Wills, Trusts & Estates
Dobrowolski v. Dobrowolski, 2020 MBCA 105: Appeal over dispute between estate of deceased and one of the deceased’s children. Issue is over whether deceased invested in property with as tenants in common or gifted the investment. Trial judge relied in hearsay as parties to intent had passed away. Reliability and weight of hearsay evidence was evaluated along with any corroborative evidence. Trial judge had found that deceased had documented a business relationship, leading him to find for the plaintiff. Analysis of the treatment of hearsay evidence. Also appeal of award of double costs. Appeal dismissed.
The Estate of Denise Joanne Pynenburg et al. v. Donald Rocan Salkeld, 2020 MBQB 150: Motion for summary judgment by estate. Parties were in a common law relationship for 21 years, ending in August 2003. They entered into a settlement agreement signed in 2007. Denise died three years later and her estate sued to enforce defendant’s obligations under the agreement. He contends the obligation ended upon the death of Denise. Rempel, J. is satisfied this can be resolved by summary judgment through affidavit evidence and cross-examination on the affidavits. Plaintiffs were mostly successful.
Legislation
Federal
43rd Parliament, 2nd Session
C-9 An Act to amend the Income Tax Act (Canada Emergency Rent Subsidy and Canada Emergency Wage Subsidy)
Progress: 
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43rd Parliament, 2nd Session
C-220 An Act to amend the Canada Labour Code (compassionate care leave)
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43rd Parliament, 2nd Session
S-1001 An Act respecting Girl Guides of Canada
Short Title: Girl Guides of Canada Act
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43rd Parliament, 2nd Session
C-228 An Act to establish a federal framework to reduce recidivism
Short Title: Reduction of Recidivism Framework Act
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43rd Parliament, 2nd Session
C-251 An Act to continue VIA Rail Canada Inc. under the name VIA Rail Canada and to make consequential amendments to other Acts
Short Title: VIA Rail Canada Act
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43rd Parliament, 2nd Session
S-2 An Act to amend the Chemical Weapons Convention Implementation Act
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43rd Parliament, 2nd Session
S-213 An Act to amend the Department for Women and Gender Equality Act
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43rd Parliament, 2nd Session
S-216 An Act to enact the Modern Slavery Act and to amend the Customs Tariff
Short Title: Modern Slavery Act
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43rd Parliament, 2nd Session
S-217 An Act to amend the Canada Labour Code (successive contracts for services)
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43rd Parliament, 2nd Session
S-207 An Act to amend the Criminal Code (independence of the judiciary)
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Provincial
42nd Legislature, 3rd Session
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