Bill 220The Transportation Infrastructure Amendment Act – amends The Transportation Infrastructure Act to add a requirement that the minister establish standards for clearing snow from provincial roads. These standards must meet the minimum requirements set out in a schedule to the Act and must be published.
SM 2015, c. 45The Real Estate Services Act (whole Act) proclaimed to come into force on January 1, 2022.
SM 2018, c. 7The Community Child Care Standards Amendment Act (Enhanced Powers Respecting Governance and Accountability) (whole Act) proclaimed to come into force on January 1, 2021.
SM 2020, c. 21The Budget Implementation and Tax Statutes Amendment Act, 2020 (Schedule B — The Manitoba Habitat Heritage Corporation Reorganization Act, section 8) proclaimed in force on February 1, 2021.
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.
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.
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.
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.
This month brings a few new features and additions to CanLII and HeinOnline.
CanLII has added the ability to upload your own documents to Lexbox. This new feature lets you keep all your research in one place and use CanLII’s resources like Reflex to automatically link to cited cases and legislation. You can also set up alerts and feeds based on information in your document. For those who subscribe to Clio, you can also now link to CanLII to add a timer straight to the header of every page.
While you are over on CanLII, check out this blog post that analyses how COVID-19 has affected how people are using CanLII, what they are looking for, and why that might be. It includes a really cool animated bar graph.
Over on HeinOnline, they have added a long desired search feature. Users can now search multiple selected databases at a time, right from their HeinOnline welcome page. Now, instead of searching one database at a time, you can select the ones you think will be most useful. This also includes filtering results to help narrow down queries.
HeinOnline has also continued to add new journals to its Law Journal Library, with a collection of now 2,900 titles. If you are interested more in specific authors, scroll down to their Tip of the Month to read more about their Author profile pages.
Practice Direction – Remote and Off Site Civil Trials (November 20, 2020) – This direction is provided due to the recent Code Red designation and addresses certain obstacles and limitations that affect scheduled civil trials in the Court of Queen’s Bench. Options for parties, where they have been advised that a trial is being adjourned are provided in the notice.
Notice – COVID -19 – Suspension and Restriction of Hearings – Legal Aid Administrative Court (November 24, 2020) – “Further to the Notices of November 10 and 13, 2020, suspending court with respect to all out of custody matters, this will confirm the Legal Aid Administrative Court on December 8, 2020 at 9:30 a.m. courtroom 402 is cancelled with respect to out of custody matters.” Individuals awaiting the appointment of counsel by Legal Aid are encouraged to contact Legal Aid. Counsel appointed to individuals are asked to contact their clients.
Bill 214The Universal Newborn Hearing Screening Amendment Act – In addition to screening for hearing loss, parents and guardians are offered the opportunity to have their infants tested for congenital cytomegalovirus (CMV) infection.
Bill 217The Legislative Assembly Amendment and Legislative Assembly Management Commission Amendment Act – amends The Legislative Assembly Act and The Legislative Assembly Management Commission Act. The definitions “recognized opposition party” and “other opposition party” are changed to include political parties that are represented in the Assembly by two or more members, provided that the party’s candidates received at least 10% of the votes cast in the last general election. Such a party and its members are not immediately entitled to any additional funding, salaries or allowances.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
Printing and Photocopying
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The Great Library will be closed from December 25, 2024 to January 1, 2025 for the winter holidays. Regular office hours will resume on Thursday, January 2, 2025.
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