eLex December 2020

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
New Library ResourcesConstitutional Law 
Corporate & Commercial 
 Criminal Law 
 Family Law 
 Labour & Employment 

News


In the News

In a rare Saturday sitting, Chief Justice Glenn Joyal dismissed an application for a temporary stay of enforcement of the public health order regarding drive-in church services.

CanLII has published The CanLII Manual to British Columbia Civil Litigation.


Court Notices & Practice Directions

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

Court of Queen’s Bench

Practice Direction – Family and Child Protection Video Conference Trials and the Continuation and Commencement of Other Remote Services (December 3, 2020)
Notice – Adjustments to Current Scheduling Protocols – December 14, 2020 to January 8, 2021 (December 3, 2020)
November 26, 2020 – Court Attire
Practice Direction – Remote and Off Site Civil Trials (November 20, 2020)
Practice Direction – Criminal Trials Accused’s Remote Appearance by Video Conference (November 17, 2020)
Masters’ Court – COVID-19 Update (November 12, 2020)
Notice – Adjustments to Current Scheduling Protocols – November 16 to December 11, 2020 (November 10, 2020)

Provincial Court

December 1, 2020 – Counter Court (Winnipeg)
Notice – COVID-19 – Suspension and Restriction of Hearings (November 30, 2020)
Notice – COVID -19 – Suspension and Restriction of Hearings – Legal Aid Administrative Court (November 24, 2020)
Notice – Service of Child Protection Proceedings on Persons in Custody during Pandemic Restrictions (November 18, 2020)
Notice – Circuit Court Sitting Replacement Dates Due to COVID-19 (November 18, 2020)
Practice Directive – Video Appearances for Trials and Preliminary Hearings in the Provincial Court of Manitoba (November 17, 2020)
Notice – COVID -19 – Rescheduling Adult and Youth Out of Custody Matters -Regional Centres  (November 16, 2020)
Notice – COVID – 19 – Reschedulding Adult and Youth Out of Custody Matters (November 13, 2020)
Notice – COVID -19 – Suspension and Restriction of Hearings (November 10, 2020)


New Library Resources

Introducing New Practice Resources – Have you seen The Law Society’s newly relaunched Practice Resource Library? This comprehensive collection of resources is now conveniently available at the click of your mouse, free of charge. While designed to support all Manitoba lawyers in their practice, these resources have been developed with solo and small firm practitioners particularly in mind.

Substantive Law


Administrative Law

Court v. Canada (Attorney General), 2020 FCA 199: Request for judicial review of a decision of the Appeal Division of the Social Security Tribunal. Applicant was terminated from employment during her pregnancy and received maternity and parental leave benefits. She also sued her employer for wrongful dismissal and breach of contract, reaching a settlement of $50,000. Employment Insurance Commission notified the applicant that the settlement represented earnings and meant she received an overpayment of benefits and had to pay them back. Analysis of the legislative meaning of s.45 of the Employment Insurance Act and s.35 of the Regulations. Application dismissed, no awarding of costs.

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196: Appeal and cross-appeal re two applications for judicial review challenging the designation of four Jurisprudential Guides (JG) by the Chairperson of the IRB. Appeal dismissed and cross-appeal granted.

[4]  The Federal Court certified the two following serious questions of general importance, as contemplated by paragraph 74(d) of the IRPA:
1. Does the Chairperson of the Immigration and Refugee Board have the authority pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act to issue jurisprudential guidelines that include factual determinations?
2. Do the Jurisprudential Guides that the Chairperson issued with respect to Nigeria, Pakistan, India and China unlawfully fetter the discretion of members of the Refugee Protection Division and the Refugee Appeal Division to make their own factual findings, or improperly encroach upon their adjudicative independence?

Kevin W. Gray. “A Separate Head of Judicial Review: Divergent Paths in Common Law Rights Review”, 33 Can. J. Admin. L. & Prac. 305 (Sept. 2020). (WLNC – request a copy.)  “This paper argues that proportionality review, if adopted in Canada as a separate head of review, would provide a more robust form of rights protection.”


Civil Litigation

Hydro-Québec v. Matta, 2020 SCC 37: Property rights – Servitudes; whether original acquisition of servitude allowing Hydro-Québec to set up a transmission line between two substations in the 1970s allowed for additional work to be carried out on the servient land. Trial judge ruled for Hydro-Québec; appeal overturned. SCC allowed appeal.

Kuny v. Pullan Kammerloch Frohlinger et al, 2020 MBCA 114: Request for extension of time to file an appeal re summary judgment decision granted to defendants re claims by plaintiff alleging negligence and professional misconduct by two law firms. Leave granted.

Ian Dmytriw et al v, Jonah N.K. Odim et al, 2020 MBCA 112: Appeal by defendants of motion judge’s refusal to dismiss action for delay. Motion was previously dismissed by a Master then overturned by a judge. Simonsen, J. concludes that motion judge erred in law by applying the former rule rather than the current one, made a palpable and overriding error in determining the period of unexplained delay and did not properly deal with inherent prejudice. Appeal allowed. Chronology of events included, as well as discussion of differences to Rule 24.01.

Wesco Distribution Canada GP Inc. v. Fenchurch General Insurance Company, 2020 MBQB 166: Motion for preliminary determination of whether the limitation period in The Insurance Act applies to a labour and payment bond. Question depends on whether the bond is a contract of insurance under the Act. Defendant claims the limitation period was one year while the plaintiff states it is two years. Analysis of the definition of a “contract of insurance”. Greenberg, J. agrees with plaintiffs.

Grumm v. Warkentin, 2020 MBQB 164: Defendant’s motion to dismiss plaintiff’s action due to delay. Plaintiff issued a statement of claim for personal injuries sustained in an assault, in October 2006. Defendant responded in October 2007. Replay and counterclaim by the plaintiff in October 2010. Two issues: Should motion precede under current rules for delay amended on January 1, 2018 or under the old rules; should action be dismissed. Matter was not unduly complex; Chartier, J. found that plaintiff did not provide any reasonable explanation for the delay. Motion granted.

Gomes v. Laporte, 2020 MBQB 152: Two actions combined: civil action concerning an unprovoked assault, and an allegation of malicious prosecution and civil conspiracy. Plaintiff in assault pursued criminal charges which were dropped. Civil action on assault dismissed; damages awarded for the other action.

Kennedy et al. v. McKenzie, 2020 MBQB 139: Contested applications over the appointment of a committee responsible for making decisions about property and personal care. Applications are between the respondent’s common-law husband and his mother, and her own mother. Respondent suffered a traumatic brain injury after being hit by a vehicle. Analysis of legal test as set out in Yaremko v. Manitoba (Director of Psychiatric Services (2001 MBQB 85). Turner, J. concludes that respondent’s mother is the best choice.

Jerred Kiss. “The Newest Member of the Family: A Comment on Leitch v. Novac”. 64 C.C.L.T. (4th) 279.  2020 ONCA 257. (WLNC – request a copy.) 

… Of these remaining economic torts, unlawful means conspiracy is perhaps the one characterized by the most uncertainty. While it is now clear that the tort’s “unlawful means” element is not restricted to civilly actionable wrongs both its general scope and elements of liability remain unclear. Thankfully, in Leitch v. Novac the Ontario Court of Appeal has now addressed the former issue, holding that while unlawful means conspiracy may be considered an “economic tort,” plaintiffs are not necessarily barred from pleading it in the family law context. …

Michael McGowan. “Annotation to OZ Merchandizing Inc. v. Canadian Professional Soccer Association”. 35 C.P.C. (8th) 396. (WLNC – request a copy.) 2019 ONSC 3882

OZ Merchandizing is an uncommon example of a closing address to a jury containing such numerous, serious, and varied flaws that the trial judge was unable to remedy the situation by correcting instructions to the jury. Although trial counsel should represent his/her client fearlessly and with vigor, the line was clearly crossed in this case.


Constitutional Law

Ontario (Attorney General) v. G, 2020 SCC 38: Right to equality re Ontario’s sex offender registry. Accused found not criminally responsible on account of mental disorder for sexual offences can never be removed from the sex offender registry even after receiving an absolute discharge from a review board. Review of ss. 7 and 15(1) of the Charter. Appeal dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Christopher’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter. These discriminatory distinctions cannot be justified in a free and democratic society. The remedy granted by the Court of Appeal was appropriate, and its orders should be upheld.

Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32: Does fining a corporation constitute cruel and unusual punishment? Corporation was fined the mandatory minimum fine for an offence under s.46 of Quebec’s Building Act. The corporation challenged the fine under s. 12 of the Charter.  Analysis of the meaning of “cruel and unusual” and whether it applies to corporations as well as human beings.

Per Abella, Karakatsanis and Martin JJ.: The purpose of s. 12 of the Charter is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.

Stephanie Williams. “The Powers of the CSE after C-59: Are Privacy Rights at Risk?” 40 Nat’l J. Const. L. 131. (WLNC – request a copy.)

In 2019, Canada’s national security legislation was overhauled. A significant part of this overhaul was the creation of the Communications Security Establishment Act, providing a complete legislative framework for Canada’s nearly 80-year-old signals intelligence agency, the Communications Security Establishment (the CSE). This new legislation also brings many concerns for Canadians’ privacy. 


Corporate & Commercial Law

1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35: Issue of the tort of pure economic loss. In 2008 Maple Leaf was forced to recall meat products processed at one of its factories due to a listeria outbreak. Following the outbreak, franchisees of Mr. Sub experienced a shortage of product for six to eight weeks. A class action on behalf of the franchisees against Maple Leaf was certified, but overturned on appeal. From the headnote:

Per Moldaver, Côté, Brown, Rowe and Martin JJ.: Maple Leaf does not owe a duty of care to the franchisees in respect of these matters. … Pure economic loss is economic loss that is unconnected to a physical or mental injury to the plaintiff’s person, or physical damage to property.
Per Wagner C.J. and Abella, Karakatsanis and Kasirer JJ. (dissenting): … it is just and fair to impose a novel duty of care on Maple Leaf in the circumstances, and the appeal should therefore be allowed.

Sensible Capital Corp. v. Galton Corporation, 2020 MBQB 159: Motion for summary judgment by the plaintiff re various alleged breaches of a debenture agreement. Defence argues this is not an appropriate case for summary judgment and raises defence of estoppel. Extensive analysis of the test for summary judgment and whether additional oral evidence should be entered. Discussion of the parol evidence rule. Summary judgment granted.

Dowd et al. v. Skip the Dishes Restaurant Services Inc., 2020 MBQB 155: Appeal of Master’s decision dismissing plaintiffs’ motion for an interim order for preservation of property. Plaintiffs claim co-creation of the online ordering system of the defendant. Master dismissed motion because plaintiffs had not demonstrated the property, as they defined it, could be the subject of an order for preservation. Analysis of Queen’s Bench Rule 45.01. Also consideration of whether the Master’s decision would impact discovery. Appeal dismissed.

Bill C-12 can demonstrate environmental leadership to Canadian business”. Janis Sarra, The Lawyers Daily, November 25, 2020.


Criminal Law

R. v. Slatter, 2020 SCC 36: Appeal of 2019 ONCA 807 based on sufficiency of reasons by trial judge in a sexual assault trial. Complainant has an intellectual and developmental disability. Appeal allowed; conviction restored.

Moldaver J. — We are all of the view that the appeal must be allowed, for the reasons of Justice Pepall, with which we agree.

R. v. Kishayinew, 2020 SCC 34: Appeal from 2019 SKCA 127 on issue of subjective consent via circumstantial evidence. Delivered orally by Moldaver, J.:

“A majority of the Court is of the view that, when read in context, the trial judge’s reasons make it clear that he was satisfied, beyond a reasonable doubt, that the complainant did not subjectively consent to any sexual activity with Mr. Kishayinew.”

R. v. Langan, 2020 SCC 33: Appeal from 2019 BCCA 467 over the admission of text messages into evidence. Oral decision delivered by Abella, J.:

“A majority is of the view to allow the appeal for the reasons of Chief Justice Bauman. Justices Côté and Brown would dismiss substantially for the reasons of Justice Stromberg-Stein. “

R. v. Riley, 2020 SCC 31: Oral decision delivered by Karakatsanis, J. allowing the appeal for the reasons of Scanlan, J.A. in dissent, 2019 NSCA 94. Issue of whether giving a Vetrovec caution was an error and if so, could the appeal be dismissed by the curative proviso?

R v. Amyotte, 2020 MBCA 116: Appeal of sentence. Accused submits sentencing judge misunderstood the terms of a joint recommendation; that he failed to apply the totality principle; and that he failed to give sufficient weight to Gladue factors. Crown agreed that it is apparent from the sentencing judge’s reasons that he erred. Issue reviewed at appeal court is whether this had a material difference on the sentence imposed. Sentence appeal is dismissed.

R v. Kirton, 2020 MBCA 113: Accused seeks leave to appeal, and appeal, his sentence for six offences. He was designated a dangerous offender and sentenced to an indeterminate sentence. Standard of review is that set out in R. v. Sanderson, 2018 MBCA 63, para. 8. Appeal of dangerous offender designation and indeterminate sentence dismissed.

R v. Coutu, 2020 MBCA 106: Leave to appeal by the Crown of a sentence for a warrantless search of a backpack. Accused was discovered with a backpack of firearms when police were in pursuit of another suspect similarly dressed. Trial judge declared arrest and search illegal but did not exclude the weapons evidence. Instead, he reduced the sentence from five and a half years in prison to five years, to send a “message” to the police. Standard of review allows appeal court to sentence afresh based on its own analysis, giving deference to the sentencing judge’s finding of fact to the extent that they are not affected by an error in principle (para 8). Crown’s appeal allowed and sentence is increased.

R. v. S. (D.), 2020 MBQB 163: Sentence for charge of sexual interference under s. 151 of the Criminal Code. Accused is stepfather of 14 year old complainant. References R. v. Friesen as setting out applicable principles of proportionality. Rempel, J. determines denunciation and deterrence are the primary considerations, in imposing a sentence of nine years of incarceration.

An Application for a General Warrant, s. 487.01 and a Sealing Order, s. 487.3, 2020 MBPC 62: Request to use an automated licence plate reader (ALPR) to identify and track a suspected drug trafficker. Discussion of the reasonable expectation of privacy when police are gathering information. Application denied.

R. v. T.A., 2020 MBPC 59: Opposition by defence counsel to Crown’s application to file a videotaped statement of a 10 year old child involving sexual offences allegedly committed by her stepfather. Crown relies on s.715.1 of the Criminal Code; issue is whether the recording was made “within a reasonable time after the alleged offence”. Devine, P.J. sets out the four-part test to determine admissibility and finds the statement admissible.

R. v. Berent, 2020 MBPC 53: Motion for an order allowing the accuseds to attend their trial remotely by video link from California. Accuseds would have to quarantine for two weeks upon return to Manitoba and assert staying in Manitoba for a lengthy period of time would impose a hardship on them. Analysis of s.650 of the Criminal Code re the requirement for the accused to appear in court in person. Krahn, A.C.J. concluded that it would not be fair for a trial this complex to go ahead with the accused only appearing by video. 

Lauren Sapic. “The Criminalization of Non-Assimilation and Property Rights in the Canadian Prairies”. (2020) 43-5 M.L.J. 95.
The tragic case of Colten Boushie, a young Indigenous man from Saskatchewan, has become an inflection point in Canadian law due to the intersection of Indigenous rights and property law.


Family Law

Fijala v. Fijala, 2020 MBQB 162: Petitioner applies for an order deleting any and all arrears for child support, as well as late penalties and/or cost recovery fees and an order that the respondent pay her any overpayments. Petitioner had been ordered to pay child support to respondent for arrears, and then payments were to go to child. Confusion over who received what money. Application dismissed.

Ducharme v. Burym, 2020 MBQB 160: Divorce proceedings contesting custody arrangements for the parties’ four children and child support. Income imputed to father. Detailed consent order by MacPhail, J. at para. 66. Divorce granted.

“No legislative gap in assisted human reproduction legislation, B.C. Court of Appeal says.” Ian Burns, The Lawyers Daily, December 2, 2020. Case commentary on L.T. v. D.T. Estate, 2020 BCCA 328.

“Indigenous children and the child welfare system in Canada”. Darlene Rites. The Lawyers Daily, December 2, 2020. Case commentary on A.M. v. Ministry of Social Services, 2020 SKCA 114.


Labour & Employment

Engel v. Southern – Santé Sud Regional Health Authority,2020 MBQB 157: Applicant claims his right to perform surgery in the respondent’s hospitals was terminated without due process. Respondent says the process set out in the By-law doesn’t apply. Question of if the issue relates to the decision to terminate operating time or the process followed, and standard of review. Analysis of definition of “complaint” and “privileges”, and whether the By-law is delegated legislation. Decision terminating applicant’s right to be on the surgical rota is quashed; Greenberg, J. suggests parties proceed to arbitration which is the next step in the process.


Legislation


Federal

43rd Parliament, 2nd Session

C-232 An Act respecting a Climate Emergency Action Framework Short Title: Climate Emergency Action Act
Progress: Introduction and First Reading in the House of Commons Show Details

C-7 An Act to amend the Criminal Code (medical assistance in dying)
Progress: Concurrence at Report Stage in the House of Commons Show Details

C-259 An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985 (pension plans and group insurance programs)
Progress: Introduction and First Reading in the House of Commons Show Details

C-258 An Act to amend the Canada Labour Code (replacement workers)
Progress: Introduction and First Reading in the House of Commons Show Details

C-15 An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples Short Title: United Nations Declaration on the Rights of Indigenous Peoples Act
Progress: Introduction and First Reading in the House of Commons Show Details

S-212 An Act to amend the Criminal Code (disclosure of information by jurors)
Progress: Introduction and First Reading in the Senate Show Details

S-213 An Act to amend the Department for Women and Gender Equality Act
Progress: Introduction and First Reading in the Senate Show Details

C-3An Act to amend the Judges Act and the Criminal Code
Progress: First Reading in the Senate Show Details


Provincial

Third Session, Forty-Second Legislature

Government Bills

No.Sponsored byAs proposed(Click PDF for the bilingual version)
As enacted
37Hon. Ms. Squires
Minister of Municipal Relations
The Planning Amendment and City of Winnipeg Charter Amendment ActPDF 
38Hon. Ms. Squires
Minister of Municipal Relations
The Building and Electrical Permitting Improvement Act (Various Acts Amended and Permit Dispute Resolution Act Enacted)PDF 
39Hon. Mr. Fielding
Minister of Finance
The Supplementary Appropriation Act, 2020 (COVID-19 Response)PDFSM 2020, c. 17
40Hon. Mr. Wharton
Minister of Crown Services
The Manitoba Liquor and Lotteries Corporation Amendment and Liquor, Gaming and Cannabis Control Amendment ActPDF 
41Hon. Mr. Eichler
Minister of Economic Development and Training
The Fair Registration Practices in Regulated Professions Amendment ActPDF 
42Hon. Mr. Cullen
Minister of Justice
The Remote Witnessing and Commissioning Act (Various Acts Amended)PDF 
43Hon. Mr. Helwer
Minister responsible for the Civil Service
The Civil Service Superannuation Amendment Act *PDFSM 2020, c. 16
44Hon. Mr. PallisterThe Employment Standards Code Amendment ActPDFSM 2020, c. 18

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