eLex March 2021
Table of Contents
News
In the News
The Manitoba Legislature has resumed sitting. Click on “Provincial” under Legislation to view the latest bills. Previous bills introduced in November now have the text added.
The latest programs from the Law Society CPD.
Lawyers for Literacy is back! (virtually)
Notices
Research Assistantship – the CBA Judges Section is seeking a research assistant for the preparation of a guidance document for its members on tips for managing reserve judgments. Please see the attachment for details.
The Law Society is looking for Legal Counsel to join the Complaints Resolution Department.
CPLED is looking for Education Counsel, Instructional Design.
Court Notices & Practice Directions
All COVID-19 Notices and Practice Directions are available here.
Court of Queen’s Bench
February 26, 2021 Public Viewing/Attendance at Virtual Hearings
February 19, 2021 – Family Division – Central Registry of Divorce Proceedings
February 12, 2021 – Practice Direction – Divorce Act Amendment Rules
February 10, 2021 – Version 6 of the Mandatory Standard Clauses for Family Division Orders
February 4, 2021 – Amendments to the Divorce Act
February 22, 2021 (Family Division) Adjustment to Current Scheduling Protocols March 1 to 31, 2021)
Provincial Court
February 24, 2021 – Realignment of Courtrooms – Winnipeg Centre
February 24, 2021 – Precautions – in custody first appearances
February 5, 2021 – Out of Province Parties and Witnesses and the continuing obligation to isolate for 14 days
February 5, 2021 – Update to Judicial Justice of the Peace weekday bail dockets
Discipline Digests
Discipline Decision ALCOCK, Richard Maurice
New Library Resources
New in Print
The Canadian Law of Architecture and Engineering — 3rd Edition
Co-authored by Beverley McLachlin, the former Chief Justice of the Supreme Court of Canada, and seasoned lawyer Arthur Grant, The Canadian Law of Architecture and Engineering, 3rd Edition is an essential guide for architects, engineers and those in the construction industry – including their legal advisors – as it examines the legal principles governing the practice of these professions.
Updated to include new and significant judicial decisions as well as legislative and administrative amendments, this latest edition is sure to become an indispensable reference. In addition to revised content, this text provides readers with practical precedents of forms and contracts that they can use as templates, as well as useful tables setting out the applicable professional code of ethics for each province and territory so architects and engineers understand their duties and obligations.
New Online Titles
From Deslibris
Canadian Competition Law and Policy provides a succinct and accessible analysis of the Competition Act and related legislation, regulations, enforcement guidelines, and other guidance issued by the Competition Bureau. The discussion provides extensive case examples drawn from Canadian, American, European, and other competition law authorities to illuminate concepts and legal tests. The book seeks to offer students, lawyers, and others interested in the subject a practical guide to the context, objectives, and evolution of the Canadian competition law scheme by providing an overview of the jurisprudential and legislative history; an approachable outline of key economic concepts; and a review of methods and approaches applied by economists and lawyers to the analysis of competition law problems.
Book Reviews
Reviews taken from the Canadian Law Library Review Volume 46, no. 1
“An Introduction to the Canadian Law of Restitution and Unjust Enrichment is a concise book that could be described as a 217-page distillation on the subject. As someone unfamiliar with private law, I found this a dense read that took a good amount of energy to digest. It achieves the goal of providing an overview of the subject and offers a fair and objective analysis. The author acknowledges conflicting theories in the law, makes it clear when he is offering his point of view on a concept or theory that is disputed, and leaves it to the reader to draw their own conclusions. This book is recommended for law practitioners working in the areas of contract and tort law.”
Substantive Law
Administrative Law
Levin v. Manitoba Public Insurance Corporation et al, 2021 MBCA 16: Application for leave to appeal decision of AICAC. Applicant has a right to appeal the commission’s decision on a question of jurisdiction or of law. None of the arguments the applicant raised fall under these categories, so application dismissed.
Inkster v. The Workers Compensation Board of Manitoba et al, 2021 MBCA 14: Applicant applied for compensation for a work-related injury and was denied. His appeal to the WCB Appeal Commission was also denied, and request for judicial review dismissed as well. Issues to consider: did the application judge choose the correct standard, and was it applied properly. Standard was reasonableness. Appeal dismissed.
David Phillip Jones, Q.C. The Year In Review in Administrative Law, December 2020. As presented at the Manitoba Bar Association Midwinter Conference, January 2021.
Bankruptcy Law
Bannerman Lumber Ltd. et al v. Goodman, 2021 MBCA 13: Application by respondent for an extension of time to file and serve notice of an appeal of a finding under s. 178(1)(e) of the BIA. Bannerman had been awarded an arbitration award against Mr. Goodman in 2013. Mr. Goodman made an assignment in bankruptcy in July 2014 which was discharged in 2017. Bannerman made an application to have the award survive the discharge. They were successful, and Goodman did not appeal in time. Discussion of test for an extension of time to appeal. Important criterion is whether there are arguable grounds of appeal. Application dismissed.
Bradley Wiffen. Reverse Vesting Transactions: An Innovative Approach to Restructuring. 2020 18th Annual Review of Insolvency Law 146.
… A third form of restructuring transaction, which has come to be referred to as a “reverse vesting transaction,” has recently emerged to facilitate the acquisition of the shares of a restructured debtor company. …
Civil Litigation
Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7: Appeal of arbitration award concerning breach of contract for disposal of waste. Examination of duty to exercise contractual discretion in good faith. From the headnotes: Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Where a party to a contract exercises its discretion unreasonably, that is, in a manner not connected to the underlying purposes of the discretion granted by the contract, its conduct amounts to a breach of the duty to exercise contractual discretionary powers in good faith. Metro’s exercise of discretion was not unreasonable with regard to the purposes for which the discretion was granted and was therefore not a breach of the duty. Accordingly, the arbitrator’s award cannot stand, whether the standard of review is correctness or reasonableness. Additional reasons from Côté, Brown and Rowe JJ, concurring.
Samborski Environmental Ltd. V. Government of Manitoba, 2021 MBCA 11: Two related appeals heard at once. Defendant (GOM) appealed chambers judge’s order granting plaintiff an extension of time to file an appeal. Plaintiff appealed motion judge’s dismissal of their claim. Issue is an environmental license in relation to a proposed garden supplies facility with composting component. Previous owner of property had received a license for a composting facility but never went ahead with it. Both appeals dismissed.
Sher-Bett Construction (Manitoba) Inc. v. The Co-operators General Insurance Company, 2021 MBCA 10: Appeal over the interpretation and application of an exclusion clause in a builders’ risk broad form insurance policy. Policy had a “frost or freezing” exclusion which was used to deny the claim. Focus of appeal is the meaning of the phrase “caused directly”. Appeal allowed.
Broadband Communications North Inc. v. 6901001 Manitoba Ltd., 2021 MBQB 25: Appeal of arbitration award. Leave to appeal on three specific issues was granted at 2017 MBQB 146. Parties settled one issue and applicant raised additional issues which were not allowed to be added. Discussion of standard of review for commercial arbitration. Both parties have some measure of success.
McLeod Estate v. Cole et al., 2021 MBQB 24: Estate is seeking an order of rescission voiding the sale transaction of certain parcels of land. Estate claims that the deceased lacked the necessary capacity to engage in the contract of sale. Analysis of mental capacity to perform a legal act; professional standard of care; fiduciary duty; fair market value of the lands for sale. Claim dismissed.
Wolfe et al. v. Taylor et al., 2021 MBQB 16: Analysis of intercompany debt claim in a liquidation matter. Liquidator argues that the amount of intercompany debt is confirmed by the materials filed in court. Respondent argues that a full accounting is required. Toews, J. agrees with liquidator and decides that the intercompany debt claim in the amount filed should be accepted by the court.
Aleshka v. Fettes et al., 2021 MBQB 14: Motion for judgment enforcing alleged agreement under Rule 49.09. Applicant states that Respondent Greg Fettes breached an agreement to settle the application. Respondent says a non-binding “framework of an agreement” is all that was agreed to. From a review of the actions of the parties, Kroft, J. cannot conclude that the evidence establishes the three elements required for a binding settlement agreement. Motion dismissed.
Stephen A. Thiele. Legal Research in Costs Awards, Gardiner Roberts blog, February 16, 2021.
“Despite its importance, legal research is often a line item that comes under close scrutiny when a court awards costs to a successful litigant. Two recent cases demonstrate why legal research comes under such scrutiny.”
Criminal Law
R. v. Esseghaier, 2021 SCC 9: Whether the curative proviso is available for jury selection errors. Accused were charged with a series of terrorism offences. Appeal after conviction was bifurcated to deal with jury selection issue first. CA allowed appeal and ordered a new trial, determining that trial judge had erred. SCC allowed appeal and restored convictions. From the headnotes:
The jury for both E and J was improperly constituted. The trial judge erred in both his primary and alternative conclusions with respect to J’s application. The common law discretion to exclude prospective jurors while using rotating triers existed, and the trial judge’s refusal to exercise his discretion was unreasonable. However, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code can be applied to cure the trial judge’s error.
Reasons delivered by Moldaver and Brown, JJ.
R. v. W.O., 2021 SCC 8: Appeal of conviction for sexual assault, incest, and sexual interference (2020 ONCA 392). Per Côté J. — We are all of the view that the appeal should be dismissed, substantially for the reasons of Hoy A.C.J. Main issues on appeal were the significance of a complainant’s failure to make a timely complaint, and insufficiency of reasons.
R. v. C.P., 2021 MBCA 9: Sentence appeal after pleading guilty to robbery and other offences, on the grounds that the sentencing judge imposed an illegal sentence. Crown and defence filed a joint factum and consent to conducting appeal in writing. Joint submissions are accepted, leave to appeal the sentence is granted and appeal allowed.
R. v. McKenzie, 2021 MBCA 8: Appellant entered a guilty plea to discharging a firearm with intent and was sentenced as an adult to six years, eight months in custody. He seeks leave to appeal his conviction on the basis that his guilty plea should not have been accepted and the sentence was not fit. Onus is on accused to demonstrate that there is a valid reason to set aside the guilty plea. Appellant had counsel and is not suggesting he had ineffective assistance of counsel. Both leaves to appeal granted but dismissed.
R. v. Sandhu, 2021 MBQB 22: Appeal by accused of mandatory minimum sentence and seeks an order that his constitutional challenge to the sentence be heard. Appellant, a foreign national, pleaded guilty, in 2018, in Provincial Court to driving over .08. His sentencing was delayed in order to facilitate completion of his application for a permanent resident visa. Application continued to be delayed, and he was sentenced in January 2020. MMS prevented him from seeking a discharge giving rise to a deportation order. Appeal granted; new sentencing hearing will proceed.
R. v. K.D.M., 2021 MBQB 21: Trial of accused charged with several offences said to have taken place between July 2009 and November 2016 against his biological daughter. Credibility of witnesses is critical. Complainant is more credible than accused and he is found guilty of all offences.
R. v. Moar, 2021 MBQB 9: Second degree murder trial. Analysis of post-offence (or after-the-fact) conduct and its role as circumstantial evidence. Careful examination of eye witness testimony to determine which of two parties fired the fatal shot, and whether it was accidental, self-defence, or intentional. Accused found guilty of second degree murder.
R. v. Moar, 2021 MBQB 8: Voir dire re admissibility of two video statements in trial for second degree murder. Police were unable to locate witness to serve a subpoena upon him. Both statements were presumptively inadmissible. Necessity was established and only issue to be decided was threshold reliability. Analysis of threshold reliability, procedural reliability, and substantive reliability. Grammond, J. admitted the first statement but not the second.
Beam v. Attorney General of Canada, 2021 MBQB 7: Application to quash a production order relating to documents pertaining to an historical sexual assault. Applicant is an elder in a religious order. Standard of review is whether the authorizing judge “could have” granted the authorization, as stated in R. v. Vice Media Canada Inc., 2018 SCC 53 at para. 69. Applicant claims religious privilege. Analysis of whether religious privilege exists in this instance. Production order is upheld and the document is to be disclosed to the RCMP to examine to determine if criminal charges are warranted.
R. v. Gold, 2021 MBQB 5: Appeal from summary conviction in provincial court over pointing a firearm. Issues of reliability and credibility of complainant and accused, reasonableness of guilty verdict among other issues raised on appeal. Appeal dismissed.
R. v. K.D.M., 2021 MBQB 2: Ruling on admissibility of complainant’s videotaped statement. Statement was made five years after the offences ended. Accused’s counsel opposes admitting statement on the grounds that it was not made within a reasonable time after the alleged offence. Issue is whether the timing of the taking of the statement and the date of the last alleged incident is reasonable within the meaning of s.715.1(1). Analysis of the meaning of “within a reasonable time”. Statement is admitted.
R. v. K.D.M., 2021 MBQB 1: Ruling on voluntariness of accused’s statement. Accused charged with numerous offences include assault, sexual interference and incest. Crown seeks admissibility of accused’s video-recorded statement to WPS for the purpose of cross-examination. Accused’s counsel claims statement was not made voluntarily. Discussion of excessive interviewing tactics. Statement allowed.
R. Solomon, A. Sohrevardi, E. Dumschat, L. MacLeod. Cannabis and Driving : The Provincial and Territorial Legislative Mosaic. 2020 68 C.L.Q. 165 (WLNC – request a copy).
The provinces and territories have recently amended their drug-related driving legislation, established retail cannabis distribution systems and enacted related regulatory controls. This legislative flurry has been driven and shaped by three major changes in the federal criminal law that came into force in 2018.
R. v. Zora, 2020 SCC 14, Audio Recording. Failure to comply with conditions of undertaking or recognizance. Produced by Legal Listening and available through CanLII Connects.
Family Law
Elyk v. Elyk, 2021 MBQB 26: Trial over family property. Parties separated several years ago, and managed to settle many issues prior to trial. Significant analysis of the definition of occupation rent, and whether it applies in this case. Divorce judgment also granted.
Church v. Church, 2021 MBQB 20: Respondent’s motion to vary child support in an evolving split custodial regime. Payor is an Indigenous person with treaty status earning income on a reserve. Issues are what are the incomes of the parties; and is a retroactive adjustment to child support appropriate. In order to vary child support, there must be a change in circumstances; this is easily met. Determination of income of the parties; respondent’s estimate is down from previous years due to pandemic. Explanation of whether there should be a retroactive adjustment, as per D.B.S.. Variation allowed.
Carmyn Alyson Aleshka vs. Gregory Fettes, 2021 MBQB 19: Parties have been part of the case flow management process. Husband seeks divorce through a summary determination. Wife opposes, seeking a severance of the issues. Examination of the co-existence of the rule for severance and the rules for summary judgment. Dueck, J. determines it may take another two years for the parties to deal with their property settlement issues. Following analysis of previous legal proceedings, order allowed.
Tomsic v. Bilyk, 2021 MBQB 18: Request for variation of Protection Order. October 2018 Protection Order was for mother alone. In August 2019 mother requested a second protection order. Father had supervised access to children. There were no concerns by the supervisor regarding father’s conduct with children. Father had various breaches of order and was sentenced to a period of incarceration. Analysis of the role of a protection order in order to prevent domestic violence and it is not to be used to deal with parenting issues. Success mixed.
Ross v. Berens, 2021 MBQB 10: Supplemental reasons to an oral decision at the hearing of an emergency motion. Respondent applied for a protection order on behalf of both himself and their child on a without notice basis. He did not tell JJP that the petitioner had already filed a petition and served the respondent. Motion for urgent relief granted allowing mother contact with the child, and protection order is set aside.
Ken Nathens. Battle of the Experts, The Lawyers Daily, February 26, 2021. Clarification on the use of experts in family law. Comment on Frondall v. Frondall, 2020 SKCA 135.
Nicholas Bala. Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act. (2020) 39 C.F.L.Q. 45 (WLNC – request a copy).
… Bill C-78 will have only limited impact on those Canadian family lawyers and parents who have already adopted child-focused, less litigious approaches to the resolution of family disputes. However, the amendments should have an impact on practitioners who have not made that shift, as well as on self-represented litigants who may look to the Divorce Act for guidance. Further, the relocation scheme in Bill C-78 will substantially change the law governing this contentious issue.
Wills, Trusts & Estates
Syryk v. Kuharski, 2021 MBQB 13: Plaintiff’s action to recover money lent to her brother during his lifetime, from his estate. Plaintiff does not have an accurate ledger indicating exactly how much money she lent. Defendant executor relies on statute of limitations to bar most of the claims. Menzies, J. determines this can be determined through summary judgment. Only a small amount of loans are deemed to be still outstanding.
Legislation
Federal
43rd Parliament, 2nd Session
C-205 An Act to amend the Health of Animals Act
Progress: 
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C-220 An Act to amend the Canada Labour Code (compassionate care leave)
Progress: 
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C-14 An Act to implement certain provisions of the economic statement tabled in Parliament on November 30, 2020 and other measures Short Title: Economic Statement Implementation Act, 2020
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C-21An Act to amend certain Acts and to make certain consequential amendments (firearms)
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C-221 An Act to amend the Income Tax Act (oil and gas wells) Short Title: Environmental Restoration Incentive Act
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C-228 An Act to establish a federal framework to reduce recidivism Short Title: Reduction of Recidivism Framework Act
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