eLex January 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsCivil LitigationFederal
Court Notices &
Practice Directions
Constitutional LawProvincial
Discipline DigestsCorporate & Commercial
New Library ResourcesCriminal Law 
Family Law 
 Labour & Employment 

News


In the News

2020 SCC Year in Review as published by Supreme Advocacy.

CanLII Connects’ Year in Review

The Great Library is closed while Winnipeg is under Code Red restrictions. Please email us at library@lawsociety.mb.ca for all your legal research needs.


Court Notices & Practice Directions

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

Court of Queen’s Bench

Notice – Adjustments to Current Scheduling Protocols – January 12 – 29, 2021 (Family Division) (December 21, 2020)
Practice Direction – Adjustments to Current Scheduling Protocols – January 11 to 29, 2021, Video Conference Civil Trials and the Continuation of other Remote Services (December 18, 2020)

Provincial Court

Notice – Rescheduling of Adult and Youth out of Custody Matters Due to COVID-19 (January 6, 2020)
Notice – Further Suspension and Restriction of Hearings Return to Sitting for Some Trials and Special Sittings in Certain Circuits (December 30,2020)
Notice – Suspension of Court Sittings due to COVID-19 (December 30, 2020)
Notice – Rescheduling of Winnipeg Adult and Youth Out of Custody Matters due to COVID-19 (Winnipeg Centre) (December 30,2020)
Notice – Suspension of Court Sittings due to COVID-19 (December 17, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-19 (December 11, 2020) 
Notice – Rescheduling of Adult and Youth Out of Custody Matters due to COVID-19 (Regional Centres) (December 11, 2020) 
Notice – Rescheduling of Adult and Youth Out of Custody Matters due to COVID-19 (Winnipeg Centre) (December 11, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-19 (December 11, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-10 (December 4, 2020)
Notice – Rescheduling of Adult and Youth out of Custody Matters due to COVID-19 (Regional Centres) (December 4, 2020)
Notice – Rescheduling of Adult and Youth out of Custody Matters due to COVID-19 (Winnipeg Centre)  (December 2, 2020)


Discipline Digests

Discipline decision – Wang, Junling


New Library Resources

New Online Titles

From Deslibris

National Security Law – 2nd ed. by Craig Forcese and Leah Westis

This text is about the law governing the Canadian state’s response to serious crises, that is, events that jeopardize its national security. The book approaches national security law as a system, organizing its discussion of law around five themes: structure, threats, information, response, and accountability –Publisher’s description.

Substantive Law


Civil Litigation

C.M. Callow Inc. v. Zollinger, 2020 SCC 45: Issue of whether exercise of termination clause constituted a breach of duty of honest performance. Group of condominium corporations (Baycrest) entered into a two year winter maintenance contract and a separate summer maintenance contract with the appellant, C.M. Callow. Baycrest did not renew winter contract when it was up for renewal, misleading Callow during the period of the summer contract. Appeal allowed and decision of trial judge reinstated.

The duty of honest performance in contract, formulated in Bhasin v. Hrynew2014 SCC 71, [2014] 3 S.C.R. 494, applies to all contracts and requires that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. In determining whether dishonesty is connected to a given contract, the relevant question is whether a right under that contract was exercised, or an obligation under that contract was performed, dishonestly. While the duty of honest performance is not to be equated with a positive obligation of disclosure, in circumstances where a contracting party lies to or knowingly misleads another, a lack of a positive obligation of disclosure does not preclude an obligation to correct a false impression created through that party’s own actions. (from the headnotes)

Interlake Reserves Tribal Council Inc, et al v. The Government of Manitoba, 2020 MBCA 126: Appeal by defendant of an order granting interlocutory injunctive relief from carrying out further work on an all-season road. Manitoba Metis Federation (MMF) and the Assembly of First Nations (AFN) move to intervene. Project is the construction of two permanent outlet channels to direct flood waters in the Interlake region. Leave to intervene is governed by Rule 46.1. AFN argument includes reference to UNDRIP. Motion by both parties to intervene in the appeal are dismissed.

The Workers Compensation Board v. Ali, 2020 MBCA 122: Appeal of decision denying motion by the defendant to dismiss the claim for delay. Statement of claim for negligence on the part of the defendant was filed in April 2007. Statement of defence was filed in March 2009. Analysis of the interpretation of former Rule 24.01. Appeal allowed.

Bayview Construction Ltd. v. 6681485 Manitoba Ltd., 2020 MBQB 173: Expedited action under Rule 20(A). Parties are involved in construction of a 55 unit condominium project. Plaintiff commenced action to collect remaining balance on contract; defendant counterclaims alleging breach of contract. Abra, J. notes this is “the antithesis of an expedited action” (para. 8). Judgment granted to plaintiff Bayview with interest.

Martens v. The Manitoba Public Insurance Corporation, 2020 MBQB 158: Motor vehicle accident from 1998. Liability was resolved in 2012. Current issue is whether MPI acted in bad faith. Analysis of bad faith as a stand alone claim and whether it rises to an actionable wrong. Court agrees with plaintiff that claims process rises to level of egregiousness and punitive damages are warranted.


Constitutional Law

Springs of Living Water Centre Inc. v. The Government of Manitoba, 2020 MBQB 185: Emergency Charter challenge to authority of order under the Public Health Act to restrict attendance at religious ceremonies. Onus that applicant must meet to obtain a stay of legislation is extremely high. Analysis of statutory interpretation of a Public Health Order. Application denied.


Corporate & Commercial Law

Resolute FP Canada Inc. v. Hydro-Québec, 2020 SCC 43: Issue of assignment of contracts. Original contract entered into in 1926 between previous entities. Over time, the contract was assigned to Hydro-Québec through the nationalization of electricity in Québec. Respondent relied on a clause from the original 1926 contract to increase the price of electricity purchased from it by the appellant. SCC is asked to reconsider the conditions for and effects of assignment of contract. From the headnotes:

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Martin and Kasirer JJ.: The 1965 contract effected an assignment of the 1926 contract. As a result, Hydro‑Québec is a party to the 1926 contract and can therefore invoke art. 20 of that contract with respect to Resolute. Because the two levies at issue are a “tax or charge” on electricity generated from water power within the meaning of that same art. 20, the 1926 contract applies to them and they are therefore payable by Resolute to Hydro‑Québec under that agreement.

Per Côté and Rowe JJ. (dissenting): The appeal should be allowed and the Superior Court’s decision restored. The trial judge did not make a reviewable error in finding that Gatineau Power had not assigned the 1926 contract to Hydro‑Québec and that the 1965 contract had instead made Hydro‑Québec a mandatary of Gatineau Power. 

Canada v. BCS Group Business Services Inc., 2020 FCA 205: Appeal from decision of Tax Court granting respondent corporation leave to be represented by its sole shareholder and director, and not a lawyer. Analysis of TCC General Procedure Rule 17.1 (right to appear). Standard of review of a question of law is correctness. Discussion of corporation as a legal person and whether it can appear “in person”. Appeal allowed.

Dennis v. The Attorney General of Canada et al, 2020 MBCA 118: Potential class action by a proposed class of farmers who sold grain to the Canadian Wheat Board. Appeal of a judgment of a motion judge striking out its claim without leave to amend, on the basis that it doesn’t disclose a reasonable cause of action. Appeal allowed.

Ackron Egg Farms Ltd. v. Manitoba Egg Farmers et al., 2020 MBQB 187: Dispute over regulatory decisions in a supply management system. Explanation of the key concepts underlying supply management and the ownership of quotas. Crisis developed during the pandemic, when there was a surge of demand for eggs in their shell versus eggs for processing. Application for judicial review of decisions of Manitoba Egg Farmers (MEF). Application dismissed.


Criminal Law

R. v. Cortes Rivera, 2020 SCC 44: Appeal from 2020 ABCA 76, conviction for sexual assault. Issues included whether the trial erred in declining to hold a s.276.1 hearing, and admitting certain evidence.

The Court — We would dismiss the appeal. The parties did not dispute that the trial judge erred in dismissing the accused’s application under s. 276.1 of the Criminal Code, R.S.C. 1985, c. C-46, to cross‑examine the complainant. In our view, this error did not lead to a miscarriage of justice and falls within the curative proviso under s. 686(1)(b) because the evidence was otherwise overwhelming and a conviction was inevitable.

R. v. W.M., 2020 SCC 42: Appeal from 2020 ONCA 236, conviction for sexual interference and sexual assault of accused’s daughter over materiality of the trial judge’s misapprehension of the evidence. CA ordered a new trial; B.W. Miller, J.A. in dissent would dismiss the appeal.

The Chief Justice — We are all of the view that the appeal must be allowed for the reasons of Justice Miller.

R. v. Mehari, 2020 SCC 40: Appeal from 2020 SKCA 37, conviction of sexual assault related to admissibility and assessment of the evidence. CA overturned trial decision and ordered a new trial. Appeal allowed.

The Court — This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law. In any event, we see no error in respect of this argument that would have warranted intervention on appeal.

R. v. Delmas, 2020 SCC 39: Appeal from 2020 ABCA 152, that essentially the verdict was unreasonable in a sexual assault conviction. Appeal dismissed (oral decision).

Moldaver J. — A majority of the Court would dismiss the appeal. The trial judge did not engage in stereotypical reasoning in his assessment of the appellant’s evidence. (Justice Côté dissenting).

R. v. Roulette, 2020 MBCA 125: Appeal of conviction by a jury for three counts of aggravated assault. Basis of conviction was that accused was a party to the offence through a common intention to commit an assault. Review of jury instructions on a standard of adequacy not perfection. Appeal dismissed.

R. v. Buckels, 2020 MBCA 124: Appeal of both conviction and sentence for possession of cocaine and methamphetamine for the purposes of trafficking, as well as other offences. Conviction appeal dismissed. Sentence was not demonstrably unfit taking into account migitating factors, so leave to appeal denied.

R. v. VanEindhoven, 2020 MBCA 123: Leave to appeal sentence for assault on domestic partner, based on ineffective assistance from counsel and errors by the sentencing judge. Accused also asks to admit fresh evidence. Appeal dismissed.

R. v. Overby, 2020 MBCA 121: Accused appeals conviction by a jury for second degree murder. Appeal is based on very narrow grounds. Accused argued that the circumstances warranted a finding of manslaughter. Appeal dismissed.

R. v. Richards, 2020 MBCA 120: Sentence appeal. Accused is a permanent resident of Canada but not a citizen, and received a six month custodial sentence after pleading guilt to one count of break and enter. At sentencing hearing, judge was not made aware that this sentence would make him subject to a removal order, whereas a sentence of six months less a day would allow him to appeal the removal order. Appeal allowed.

R. v. Abbasi, 2020 MBCA 119: Appeal by accused for convictions of a number of sexual offences and seeks leave to appeal his sentence. Analysis of actual and innocent collusion in witness testimony and its admissibility. Appeal dismissed.

R. v. Simon, 2020 MBCA 117: Appeal of conviction for sexual assault and sentence (sentence appeal abandoned). Grounds for appeal: trial judge unevenly scrutinized the evidence; trial judge misapprehended the evidence; trial judge considered prohibited evidence when assessing credibility. Key issue at trial was consent and case turned on credibility. Appeal dismissed.

R. v. Ducharme, 2020 MBQB 177: Accused is charged with first degree murder in the killing of another inmate at Stony Mountain Institute. Crown’s position is that the accused aided in the planning and carrying out of the murder, and disposing of the murder weapon. Evidence is circumstantial. Crown’s evidence is a silent video of the activities of the accused and others on the range for eight hours leading up to and after the murder. Defence interprets evidence differently. McCarthy, J. does not find the Crown has proved its case beyond a reasonable doubt and the accused is acquitted.

R. v. Cure, 2020 MBQB 175: Appeal of summary conviction for driving while impaired. Appellant argues trial judge erred in finding that arresting officer had reasonable grounds to make a breath demand; in finding that officer did not breach appellant’s Charter right under s. 10(b) to speak to counsel of choice; and in finding he was in care or control of the vehicle. Significant analysis of s.10(b); appeal dismissed.

R. v. Airmaster Sales Ltd., 2020 MBQB 174: Appeal of convictions re two provincial offence notices for speeding (photoradar). Accused’s personal representative had been denied authorization to act on his behalf; accused then did not turn up for rescheduled hearing; JJP entered default convictions. Accused argues that JJP erred when she did not allow his representative to act; Crown argues that issue is accused was convicted because he did not appear. Analysis of interpretation of “representative” (s. 53 of the Provincial Offences Act). Appeal dismissed.

The Canadian Broadcasting Corporation v. Morrison, 2020 MBQB 169: Application for an order of certiorari to quash a publication ban issued by Provincial Court in 2019. Matter is a private prosecution re charges of defamatory libel. Applicant is acting as a third party news organization and not a party to the prosecution. Argument is over the open courts principle. Issues are whether the applicant has the status to bring the application and if so, is certiorari available in these particular circumstances. Analysis of applicant’s standing. Application denied.

R. v. Farley, 2020 MBQB 167: Appeal of conviction in Provincial Court for impaired driving. Accused claims a Charter breach of infringement of his right to counsel and that arresting officer should have inquired if he had drunk alcohol recently. Appeal dismissed.

R. v. F. (J.M.), 2020 MBQB 161: Application by Crown for an order that the accused be sentenced as an adult. He was convicted of first degree murder. At the time of the murder he was almost 17 years old. He is now 20. Principles to be applied are s. 72(1) of the YCJA and relevant case law (noted in para. 6). Onus rests with the Crown. Order granted.

Michelle Biddulph. “The Privacy Paradox: Marakah, Mills, and the Diminished Protections of Section 8.” (2020) 43:5 Man L J 161.

This article challenges the understanding of Marakah as a progressive decision, suggesting that Marakah has created a privacy paradox. By significantly expanding the scope of section 8 of the Charter, the Court in Marakah has created a right that is both extremely broad and practically illusory.

Sonia Lawrence, Debra Parkes. “R. v. Turtle: Substantive Equality Touches Down in Treaty 5 Territory”. (2020) 66 C.R. (7th) 430. (WLNC – request a copy).

…However, in R. v. Turtle, a provincial court sentencing proceeding for impaired driving that involved a constitutional challenge brought by six Indigenous women (Sherry Turtle, Audrey Turtle, Loretta Turtle, Cherilee Turtle, Rocelyn Moose and Tracey Strang), Canadian substantive equality touched down in Treaty 5 Territory. The women had all been convicted of a second impaired driving offence, and were facing mandatory minimum sentences of not more than 90 days. They were also eligible under the terms of s. 732 of the Criminal Code to serve these sentences intermittently.


Family Law

Hart v. Pownall, 2020 MBQB 168: Motion by respondent for suspension of final order, or variation of child and spousal support pending trial. Petitioner filed a motion in opposition. Parties had signed a final order in 2016 dealing with all property and support obligations. As a result of the complexity of the issues, trial is set for May 2021. Respondent’s motion is dismissed.

M.K. v. Child and Family All Nations Coordinated Response Network, 2020 MBQB 156: Application in opposition to Notice of Intended Entry on the Child Abuse Registry. Applicant was found by WPS in vehicle with a 14 year old girl who acknowledged she was a sex trade worker. Discussion of hearsay rule as outlined in D.L. v. Child and Family All Nations Coordinated Response Network, 2014 MBCA 86. Significant analysis of credibility of testimony of applicant and its inconsistency in his statements to various investigators as well as at trial. Application dismissed.

Claire Houston. “Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts”. (2020) 33:1 Can J Fam L 103.

Family court judges are increasingly being asked to resolve parenting disputes involving conflict over a child’s gender expression or identity. These disputes ask whether it is in the best interests of children to support their gender nonconformity, including any decision to transition to a gender different from the one they were assigned at birth. Despite more of these cases coming before family courts, judges have little guidance on how to resolve these cases in the best interests of children.


Labour & Employment

Pokornik v. SkipTheDishes Restaurant Services Inc., 2020 MBQB 181: Class action over whether the plaintiff’s relationship with the defendant is one of employment or independent contractor. Defendant states that arbitration clause in the plaintiff’s contract mandates that disputes be resolved by arbitration. Chartier, J. agrees that defendant may bring its application to stay the claim under The Arbitration Act before any further steps are taken.


Legislation


Federal

43rd Parliament, 2nd Session
C-7 An Act to amend the Criminal Code (medical assistance in dying)
Progress: Second Reading in the Senate Show Details

S-2 An Act to amend the Chemical Weapons Convention Implementation Act
Progress: Third Reading in the Senate Show Details

C-6 An Act to amend the Criminal Code (conversion therapy)
Progress: Committee Reporting the Bill with Amendments in the House of Commons Show Details

C-262 An Act to amend the Income Tax Act (capture and utilization or storage of greenhouse gases)
Progress: Introduction and First Reading in the House of Commons Show Details

C-10 An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
Progress: Introduction and First Reading in the House of Commons Show Details

C-17 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. 5, 2020-21 Statute of Canada: 2020, c. 14
Progress: Royal AssentShow Details


Provincial

42nd Legislature, 3rd Session

House adjourned December 3, 2020 until the call of the Speaker. No new activity.

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