eLex February 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Bankruptcy LawProvincial
Discipline DigestsCivil Litigation 
New Library ResourcesCorporate & Commercial 
 Criminal Law 
 Family Law 
 Labour & Employment 
 Wills, Trusts & Estates 

News


In the News

BCSC rules that B.C. is the appropriate location to hear a defamation suit against Twitter: Guistra v. Twitter, Inc., 2021 BCSC 54. Commentary from The Lawyers Daily.

The 2021 Annual Joint Family Law program is open for registration.
Topics will include:

  • High conflict parenting disputes
  • Valuation of property and support obligations
  • Rule amendments and new court forms relating to the Divorce Act
  • Effective virtual advocacy
  • How to remain resilient and have a rewarding career

The Great Library is open again! Please knock or call (204-945-1958) to be let in.


Court Notices & Practice Directions

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

Court of Queen’s Bench

Provincial Court


Discipline Digests

Discipline decision – CHAMPAGNE, Gisele Rita


New Library Resources

Newly added books

Recently added titles include A Guide to Mental Disorder Law in Canadian Criminal Justice and Judicial Review of Immigration Decisions. As well as new editions of Lawyer’s Professional Liability — 4th ed., General Principles of Canadian Insurance Law — 3rd ed., A Guide to Canadian Money-Laundering Legislation — 6th ed., and Nathan and Goldfarb’s Company Meetings for Share Capital — 12th ed.

See the full post for summaries of each title.

Substantive Law


Administrative Law

Stadler v. Director St. Boniface/St. Vital, 2021 MBCA 7: Applicant seeks leave to appeal an order of the Social Services Appeal Board confirming a decision to suspend the applicant’s income assistance benefits until the respondent has received confirmation that the applicant has applied for OAS and GIS. Leave for appeal allowed on two questions of law.

Cox v. Director St. Boniface/St. Vital, 2021 MBCA 2: Applicant seeking leave to appeal an order of the Social Services Appeal Board re overpayment of assistant to the applicant under the Employment and Income Assistance Program. Applicant had gone to Germany for a medical consultation and did not advise the program. When they found out, her file was closed. She reapplied upon return and was approved, but was assessed an overpayment for benefits received while she was out of the country. Motion for leave to appeal dismissed.

Paul Daly. Administrative Law Matters – Regulations and Reasonableness Review, January 29, 2021 as viewed on February 4, 2021. Analysis of standard of review of regulations.


Bankruptcy Law

Economical Mutual Insurance v. Guilbert, 2020 MBQB 179: Applicant seeks declaration that judgment issued against respondent will not be released by an order of discharge in bankruptcy. Respondent was found responsible in a civil court for the loss of his business due to arson. Analysis of s. 178(1)(a) and (e) of the Bankruptcy and Insolvency Act.  Menzies, J. finds for the applicant.

Justice David M. Brown. Insolvency Routes of Appeal: A Quick Primer. Canadian Bankruptcy Reports (Articles) (2020) 76 C.B.R. (6th) 197 (WLNC, request a copy).


Civil Litigation

Armstrong v. Ward, 2021 SCC 1: Oral decision re medical negligence. Appeal allowed for the dissenting reasons of Justice van Rensburg in 2019 ONCA 936; trial decision restored.

Canada v. MacDonald, 2021 FCA 6: Costs decision. Mr. MacDonald was successful at trial in the Tax Court, and was awarded costs. Crown appealed and was successful and awarded costs. Mr. MacDonald appealed to SCC and lost again, with costs. Prior to appeal hearing at FCA, he had sought an enhanced costs award because of a settlement offer. Crown now appeals, seeking enhanced costs for a settlement offer it made. Analysis of the doctrine of relitigation. Appeal dismissed.

Canada (Attorney General) v. Utah, 2020 FCA 224: Action for damages for failing to process request for refugee protection in a timely manner. Defendants moved for summary dismissal on limitations grounds at trial. All agree that limitation period is two years. FCC dismissed the motion; FCA allowed appeal and dismissed motion. Key provision is Alberta’s Limitations Act, para. 3(1)(a). Further commentary below.

Viscount Gort Motor Hotel Ltd. v. Pre-Con Builders Ltd. et al, 2021 MBCA 5: Appeal by applicant over dismissal of application to extend the limitation period under Part II of The Limitation of Actions Act. Applicant sought to file a claim for breach of contract and negligence. Judge determined applicant ought to have known of the cause of action more than 12 months before filing the application. Appeal notes there are two claims, one of which should have been known but the other was not. Appeal allowed in respect of one set of deficiencies.

B.N. v. Anglican Church, 2020 MBCA 127: Appeal by defendant that it was vicariously liable for two sexual assaults, as well as the damage award. Defendant argues that trial judge didn’t consider the inconsistencies in the plaintiff’s evidence and misconstrued the totality of the evidence. Issues on appeal raise issues of fact and mixed fact and law, which are reviewable only for palpable and overriding error. Court determines that defendant has failed to demonstrate decisions warrants appellate intervention. Appeal dismissed.

Crescent View Farms Ltd. et al. v. ULS Industries Ltd. et al., 2020 MBQB 191: Litigation over repairs to a manure storage facility. ULS seeks leave to amend its third party claim to add the Government of Manitoba plus several Manitoba Conservation employees. Analysis of The Proceedings Against the Crown Act and Crown liability in determining whether the government can be added. Leave denied to add particular employees; leave granted to add the government.

Agropur MSI, LLC v. The Winning Combination Inc., 2020 MBQB 188: Motion for summary judgment for breaches of a settlement agreement. Conflict over description of relationship: plaintiff believed parties had a manufacturing and supply agreement, while defendant claimed there was never any written contract; instead they sent purchases orders to the plaintiff and the plaintiff sent order confirmations. Parties also entered into a third party logistics services agreement. Perlmutter, A.C.J. rules that this argument requires a full trial.

CropConnect v. Bank of Montreal et al., 2020 MBQB 186: Issue arising out of an attempted fraud directing payment to the respondent. Fraud was caught before money disappeared and is now held by court. Applicant seeks an order that the money belongs to them and asks for it to be returned. Respondent says that it is also an innocent victim of the fraud. Harris, J. finds that respondent must bear the loss as it was in a better position to prevent the fraud. Funds to be returned to the applicant, as well as costs.

Christopher Guly. Judges can’t ‘smuggle’ personal views into statutory interpretation: Federal Court of Appeal”. The Lawyers Daily, January 18, 2021. Case comment on Canada (Attorney General) v. Utah.

Chris Armstrong, Mike Preston. Black Spot or Big Chill: Consequences of J. Cote v. Burnaby. 2020 J. Can. C. Construction Law. 1 (WLNC – request a copy).

The case of J. Cote & Son Excavating Ltd. v. Burnaby (City) (2019 BCCA 168) raised a question: can government impose a bidding ban (a “Reprisal Policy”) against contractors who have sued that government?


Corporate & Commercial Law

Canadian Imperial Bank of Commerce v. Canada, 2021 FCA 10: Supply of a financial service is an exempt supply under the GST/HST. Appellant sought rebates of tax if paid on fees charged by Visa for the supply CIBC received as a participant in the Visa payment system. MNR denied rebate claims. Appeal to Tax Court was dismissed, concluding that the supply was an administrative, not a financial service. Analysis of statutory definition of “financial service”. Appeal allowed, referred back to MNR for reconsideration and reassessment.

Barkley v. Canada, 2021 FCA 5: Issue over whether legal expenses incurred by an individual to defend a claim re employment income are deductible under para. 8(1)(b) of the Income Tax Act. Appellants’ income derived from shares in family corporation. Analysis of the new provision added to the ITA adopted in 1990. Appeals dismissed.

6486976 Manitoba Ltd. v. 7344989 Manitoba Ltd., 2020 MBQB 192: Motion for summary judgment by defendant to dismiss claim by plaintiff. Parties had entered into an agreement as vendor and purchaser of commercial condominiums. Disagreement over whether property had been developed as outlined in the contract. Analysis of appropriateness of summary judgment to resolve the issue; Edmond, J. determines it is and finds in favour of the defendant.

Andrew Botterell. Case Comment: 1688782 Ontario Inc. v. Maple Leaf Foods Inc. Canadian Cases on the Law of Torts (Articles). (2021) 69 C.C.L.T. (4th) 137. (WLNC – request a copy.)

1688782 Ontario Inc. v. Maple Leaf Foods Inc. is an important and welcome decision that has the potential to substantially change the way in which negligence liability is understood in Canada. 


Criminal Law

R. v. T.J.M., 2021 SCC 6: Issue of which court has jurisdiction to grant judicial interim release to a young person. Provincial Court of Alberta is the designated youth court, but because the Crown gave notice of intention to pursue an adult sentence, accused was entitled to elect mode of trial. He chose a superior court sitting without a jury.  Discussion of exclusive versus concurrent jurisdicition. From the headnotes:           
 Section 33(8) of the YCJA confers exclusive jurisdiction upon “a youth justice court judge” to release a young person charged with an offence referred to in s. 522 of the Criminal Code, which incorporates s. 469 offences, from custody. It does not qualify the term “youth justice court judge” so as to include only those superior court justices deemed under ss. 13(2) and 13(3) to be youth justice court judges. Just as ss. 13(2) and 13(3) of the YCJA deem a superior court judge to be a youth justice court judge, s. 13(1) also designates as a youth justice court judge a judge sitting in the court established by the province as a youth justice court. Accordingly, the jurisdiction is concurrent, and not exclusive to either of them.

R. v. Waterman, 2021 SCC 5: Unreasonable verdict appeal of a jury trial. Issue over credibility of complainant. Events took place between 1977 and 1981. SCC allowed the appeal, set aside the acquittals and restored the convictions. 2020 NLCA 18.

Moldaver J. — The only issue on this unreasonable verdict appeal is whether the inconsistencies in the complainant’s testimony are so significant that a conviction registered on the basis of his evidence is unreasonable as a matter of law. Although some of the inconsistencies are troubling, a majority of the Court is satisfied that the jury acted reasonably in believing the complainant.

R. v. Murtaza, 2021 SCC 4: Appeal of conviction over selling cocaine to an undercover officer. Issue over whether officer relied on his own memory of the face of the appellant or if he was influenced by a review of a short video of the transaction. ABCA dismissed appeal; SCC dismissed substantially for the reasons of Rowbotham, J.A. (2020 ABCA 158):

[15]           I agree with my colleague Wakeling JA that the appeal should be dismissed for the reasons set out in his judgment, with the exception of his discussion at footnote 3. The issue of how a trial judge should address the accused’s change of appearance between the offence and trial was not argued in the court below. There is no ground of appeal that raises this issue. We did not receive submissions, either written or oral and we did not give counsel the opportunity to provide submissions.

[16]           In order to preserve the independence and impartiality of the appeal courts, the ability of appeal judges to raise new issues is limited in that it is permissible “only in rare circumstances” when “failing to do so would risk an injustice”: R v Mian2014 SCC 54 at paras 39 and 41.

[17]           This is not the rare circumstance contemplated by the Supreme Court and there is no risk of injustice. In my view, it is inappropriate for this court to opine on this issue.

R. v. Deslauriers, 2021 SCC 3: Crown appeal as of right on questions of law.

A majority of this Court would dismiss the appeal for the reasons given by Chamberland J.A.

 Judge Roy erred in law in denying Mr. Deslauriers the right to obtain and, if need be, file documents relating to the existence of three criminal investigations and a report from the Centre jeunesse des Laurentides involving the victim. There was a likely and reasonable possibility that the information in question could assist Mr. Deslauriers in exercising his right to make full answer and defence.

Abella and Brown JJ. would have allowed the appeal and restored the guilty verdict.

R. v. Yusuf, 2021 SCC 2: Oral decision on delay. Unanimous decision dismissing appeal.

In doing so, we have chosen to leave for another day various legal issues that arise from this Court’s decisions in R. v. Jordan2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody2017 SCC 31, [2017] 1 S.C.R. 659, including whether and in what circumstances multiple accused should be treated communally as opposed to individually when assessing defence delay under s. 11(b); whether discrete events as defined in Jordan attributable to a particular accused should be deducted only from the accused responsible for those events or be deducted communally from the co-accused as well; and whether a s. 11(b) application can be brought post‑conviction and if so, whether a remedy other than a stay of proceedings is available.

R. v. Sinclair, 2021 MBCA 6: Accused seeks leave to appeal her sentence on the basis that the sentencing judge failed to give sufficient weight to mitigating and Gladue factors, erred in assessing the accused’s moral culpability and imposed a sentence that was harsh and unfit. Standard of review is deferential. Leave to appeal granted, but appeal dismissed.

R. v. Olenick, 2021 MBCA 4: Appeal of custodial sentence which also imposed a lifetime weapons ban. Accused submits that the lifetime weapons prohibition is an illegal sentence. Crown agrees that maximum prohibition available is 10 years. Leave to appeal granted and 10 year weapons prohibition is substituted. Rest of the sentence remains the same.

R.v. S.C.C., 2021 MBCA 1: Appeal by Crown for sentence for offences of distribution of an intimate image without consent and failure to comply with a recognizance. Crown argues that judge erred in her approach to parity and proportionality and that the sentence is demonstrably unfit. Leave for appeal granted, sentence varied to be increased to two years less a day.  

R. v. Belyk, 2021 MBQB 12: Accused is charged with second degree murder. Issue over whether he had the intent to commit murder, or if he should be convicted of manslaughter. Accused had ingested a variety of intoxicants prior to the attack. Numerous witnesses testified, describing his behaviour, both expert and civilian. McKelvey, J. found him guilty of manslaughter.

R. v. D.A.B., 2021 MBQB 6: Application under s.276 of the Criminal Code for leave to cross-examine the complainant on her prior sexual history with him. Onus is on defence to show how the proposed evidence is relevant to the accused’s defence of honest but mistaken belief. Crown wishes to introduce evidence of the parties’ use of a “safe word”. Greenberg, J. determines that both sets of evidence are admissible.

R. v. Wood, 2021 MBQB 4: Sentencing decision for conviction of manslaughter in a case of domestic violence. Although accused was charged with murder, Martin, J. concluded the Crown did not prove beyond a reasonable doubt that he knew his actions would lead to the death of his wife. Martin, J. also comments on the tragedy of violence suffered by Aboriginal women. Aggravating factors are significant while mitigating factors are few. Accused is sentenced to 18 years’ incarceration, with credit for 4 ½ years for time spent in custody since his arrest.

R. v. A.A.J.T., 2021 MBQB 3: Sentencing decision for conviction of several sexual offences against a four year old child, including sexual interference and making and distributing child pornography. Detailed examination of the principles involved in sentencing where there were many aggravating and few mitigating factors. Counsel did not request a pre-sentence report and there were no Gladue considerations. Under principle of totality, Rempel, J. sentenced accused to 30 years, 6 months reduced to 22 years.

The Director of Criminal Property and Forfeiture v. Gurniak et al., 2020 MBQB 184: Three motions concerning violation of Charter rights: ss. 8 and 10 over seizure of property. Motion by Director for a ruling on the propriety of questions put to one defendant during his examination for discovery.

[4]There are four general areas of controversy arising from these motions. The first area of controversy involves the question as to whether the Director is exposed at all to a Charter challenge of the nature made here.  The second area of controversy involves a question concerning the procedure to be followed when an alleged Charter violation is raised in an action brought by the Director pursuant to The Criminal Property Forfeiture Act, C.C.S.M. c. C306 (hereinafter “the CPFA”). The third area of controversy examines whether any Charter breaches actually occurred.  The fourth area of controversy arises only if a Charter breach has been found to have occurred and involves a consideration as to the appropriate remedy, if any, to be granted.

Dewar, J. leaves the Charter breaches to be determined by the trial judge; motion by Director is allowed.

R. v. Alcorn, 2020 MBQB 183: Sentencing decision for conviction for obtaining sexual services from a person under the age of 18. Offence took place on June 30, 2015, when s.286.1(2) of the Criminal Code was amended in response to Canada (Attorney General) v. Bedford. Crown seeks a penitentiary term of five years; defence seeks a term of one year imprisonment followed by two years’ probation. Suche, J. orders a sentence of 15 months imprisonment with no probation.

R. v. Truthwaite, 2020 MBQB 180: Appeal of conviction for having care and control of a motor vehicle while impaired. Appellant claims verdict was unreasonable. Offence of care and control of a motor vehicle is based on former s. 258 of the Criminal Code which was in effect at the time of the offence. Onus is on appellant to rebut the presumption of care and control. Bond, J. determined that the verdict was reasonable and dismissed the appeal.

R. v. L.S., 2020 MBPC 63: Allegations of sexual misconduct of an historical nature. Complainants are sisters of the accused and events span 1991 to 1996. Accused has an alibi for some of the time frame of the charges. Case must be assessed pursuant to R. v. W. (D.). Crown relied on testimony of both complainants; defence called accused. Evidence also included documentary evidence relating to domestic proceedings between the accused and his former partner, and the divorce of the parents. Court finds that reasonable doubt is raised, and accused is acquitted.

Joel Hechter. The Presumption of Privacy: A Modest Proposal to Legislatively Regulate Police Access to Privately Generated Surveillance Video. (2020) 25 Can. Crim. L. Rev. 83 (WLNC – request a copy).

As I will explain in this article, our courts have paved the way for Parliament to enact limits on state access to privately generated surveillance video: giving police the powers they need to preserve and obtain important evidence, while protecting all Canadians’ privacy. I discuss the problem, and propose the outline of a legislative solution.

Janelle Marchand, Louise Bond-Fraser and Ian Fraser. The Knowledge and Beliefs of Jurors and Non-Jurors Concerning the Fallibility of Memory: Is this Information Common Knowledge? 2020 68 C.L.Q. 93 (WLNC – request a copy).

Since the advent of DNA evidence in the courtroom and the resultant exonerations, which revealed that more than 70% of the erroneous convictions were due in whole or in part to faulty eyewitness testimony, the problem with eyewitness memory has become a topic for debate. The question is whether or not reminders of the fallibility of eyewitness testimony are necessary in the courtroom and, if so, who should provide them? 


Family Law

Pandey v. Pandey, 2021 MBCA 3: Respondent appeals a property order; petitioner appeals a support order. Both parties seek to enter fresh evidence. Parties had appeared to settle their property dispute by consent, but the order was not filed within 30 days. Respondent raised concern that the calculations were wrong. Parties made a new appointment to settle. Respondent did not approve of the order, although judge signed it as both parties had consented. On issues of child and spousal support, petitioner was represented by counsel. Court of Appeal sees no reason to interfere. Property order is set aside, appeal on support order dismissed; neither party allowed to enter further evidence.

Ross v. Berens, 2021 MBQB 10: Reasons to an emergency motion filed by the petitioner for variation or setting aside of a protection order, order of joint custody, and an order returning the child to the petitioner. Parties were involved in a physical altercation, investigated by WPS and resulting in two charges of assault laid against the petitioner. Respondent appearead before a JJP asking for a protection order, but did not give full and frank disclosure. Motion granted.

Draho v. Cardno, 2020 MBQB 190: Request by respondent for setting aside noting of default and default judgment pursuant to Rule 19. Parties and their counsel had been communicating throughout December. Court has a broad discretion to set aside noting of default on such terms as are just. Test is summarized as 1. Was there a bona fide intention to defend; 2. Was there any undue delay that would cause irreparable harm to the petitioner; and 3. Is there evidence of a meritorious defence? Thomson, J. finds for the respondent.

Michif CFS v. K.L.B. and A.P., 2020 MBQB 182: Application by Agency for a six-month temporary guardianship order, by summary judgment. Mother opposes application and wants children returned to her care. Discussion of whether summary judgment is appropriate; Abel, J. determines it is. Agency bears evidential burden of establishing that there is no genuine issue requiring a trial. Issue of whether temporary order should be four or six months. Agency originally applied for a four month order, then changed it to six. Court ordered a four month temporary order.

Marzoff v. Marzoff, 2020 MBQB 178: Master’s decision on undertakings from discoveries in a family proceeding. Motion by wife to compel husband to respond to all undertakings and file a new financial statement. Husband’s response was delayed, and incomplete for some. Review of the undertakings in dispute and analysis. Wife’s motion is granted, with costs to be determined later.

Sarah Pringle. The “Threat” of Marriage Fraud: A Story of Precarity, Exclusion, and Belonging. Allan Falconer Memorial Student Essay. (2020) 33 Can. J. Fam. L. 1 (WLNC – request a copy).

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

There is an increasing focus on the use of virtual technology to promote and facilitate parent-child contact post-separation. For example, texting, instant messaging, videoconferencing, webcams and other related internet tools are used to promote and facilitate contact post-separation. Yet, little is understood and written about whether and how using virtual technology impacts parent-child relationships post-separation, specifically from the perspectives of children and youth, parents, mental health professionals, and lawyers.


Labour & Employment

6586856 Canada Inc. (Loomis Express) v. Fick, 2021 FCA 2: Appeal from decision of FCC allowing respondent’s application for judicial review over a complaint of unjust dismissal. Adjudicator dismissed the complaint after finding that the respondent was engaged as an independent contractor and not an employee. Standard of review is reasonableness. Discussion of whether the adjudicator considered certain evidence and whether the process was fair. FCA agrees with adjudicator and allows appeal.


Wills, Trusts & Estates

The Estate of Treasure Alna Ellison, 2021 MBQB 11: Master’s report flowing from a reference order of Justice Grammond. Some issues of valuation of liability due to removing respondent as executrix of the estate. Respondent had failed to cooperate with disclosure and master is not certain that all funds have been accounted for. Also issues with fees paid to lawyer from the estate.

Estates, Trusts & Pensions Journal, Vol. 40, No. 1. For a copy of any of these articles, please send a request to library@lawsociety.mb.ca.

Legislation


Federal

43rd Parliament, 2nd Session

C-220 An Act to amend the Canada Labour Code (compassionate care leave)
Progress: Introduction and First Reading in the House of CommonsShow Details

C-265 An Act to amend the Employment Insurance Act (illness, injury or quarantine) Short Title Émilie Sansfaçon Act
Progress: Introduction and First Reading in the House of CommonsShow Details

C-264 An Act to amend the Income Tax Act (volunteer firefighting and search and rescue volunteer services)
Progress: Introduction and First Reading in the House of CommonsShow Details

C-20 An Act to amend the Nova Scotia and Newfoundland and Labrador Additional Fiscal Equalization Offset Payments Act
Progress: Introduction and First Reading in the House of CommonsShow Details

C-215 An Act respecting Canada’s fulfillment of its greenhouse gas emissions reduction obligations Short TitleClimate Change Accountability Act
Progress: Introduction and First Reading in the House of CommonsShow Details


Provincial

42nd Legislature, 3rd Session

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

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