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Now available online behind the member’s portal are two titles from Emond’s Criminal Law series.
Search and Seizure by Nader Hasan, Mabel Lai, David Schermbrucker, and Randy Schwartz
“Search and Seizure provides a practical examination of the evolving body of legal rules and principles that govern how reasonable searches and seizures are conducted. In particular, it considers the increased complexity of assessing a person’s reasonable expectation of privacy in the digital age. This handbook addresses central concerns and relevant topics such as Section 487 Search Warrants, computer device searches, warrantless searches, and exclusion of evidence.”
Prosecuting and Defending Fraud Cases — 2nd edition by Grace Hession David, Ian Smith, and Jonathan Shime
“Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook, 2nd Edition prepares readers to properly litigate fraud cases, examining both prosecutorial and defence perspectives. Guiding readers step by step throughout the process of a fraud case, this practical resource weaves strategic information with case law analysis and relevant provisions of the Criminal Code.
To get instant access to these titles and the rest of the Emond’s Criminal Law Series log into the Member Portal and click on Library Resources.
The Manitoba Government has released its 2021 budget which includes spending on COVID-19 relief and health care, changes to child care and education, and reducing property taxes and PST on certain retail.
The Canadian Law of Architecture and Engineering — 3rd ed.
by Beverley M. McLachlin and Arthur M. Grant
“As explained in the preface to this new volume, in the more than 25 years since the second edition of The Canadian Law of Architecture and Engineering was published, the practice and law related to architecture and engineering have changed in important ways, including “the increased mobility of architects and engineers within Canada and internationally and the legal requirements imposed on professionals from outside of the country, and the importance of addressing the environmental impact of building projects.” All of these significant changes are addressed in this third edition of The Canadian Law of Architecture and Engineering.”
Digital Commerce in Canada
by Michael Deturbide and Teresa Scassa
“Formerly known as Electronic Commerce and Internet Law in Canada, the second edition of this book won the 2013 Walter Owen Book Prize – and this new title is sure to garner praise of the same magnitude. Written by leading experts in the field, Digital Commerce in Canada provides an in-depth look at digital transactions, and in particular the contractual nature of the relationships that form the basis of those transactions. The book also provides extensive consideration of private sector data protection law and its application.”
Cross-Examination: The Pinpoint Method
by Kyla Lee
“Cross-examination is the most difficult skill to learn, and it is also the easiest to use incorrectly and ineffectively.” Avoid falling into that trap by adopting the pinpoint method of cross-examination today.”
Digital Titles
From DesLibris
Canadian Competition Law and Policy
by John S. Tyhurst
“While this book is focused on the law, the discussion also touches on topics related to the broader subject of competition policy, which deals with such matters as how competition legislation is designed and implemented, and its interplay with regulatory and other government policies that may affect the competitive market. An emerging issue in this respect is the conduct of dominant firms in digital and data-driven markets, and the extent to which competition law is equipped to address this conduct or may need to adapt or change to do so. Canadian Competition Law and Policy addresses other fascinating and challenging examples of industry structures (such as oligopolistic markets) and market conduct (such as tied selling and predatory pricing) that require a blend of business, economics, law and related disciplines for their analysis.”
Looseleafs
We carry a number of annually updated looseleafs in many areas of law. The most recently updated titles this month are:
Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook — 2nd Edition by Grace Hession David, Ian Smith, and Jonathan Shime
“Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook, 2nd Edition prepares readers to properly litigate fraud cases, examining both prosecutorial and defence perspectives. Guiding readers step by step throughout the process of a fraud case, this practical resource weaves strategic information with case law analysis and relevant provisions of the Criminal Code.”
Search and Seizure by Nader Hasan, Mabel Lai, David Schermbrucker, and Randy Schwartz
“This all-in-one comprehensive guide analyzes every perspective, including those of the rights-holder, the police officer conducting a search or seizure, prosecutors and defence counsel, and judges reviewing police conduct after the fact.”
Book Reviews
Reviews taken from the Canadian Law Library Review Volume 46, no. 1
“In the Shadow of International Law: Secrecy and Regime Change in the Postwar World explores a theoretical argument that might explain why world leaders often pursue regime change surreptitiously. Author Michael Poznansky is an assistant professor in international affairs and intelligence studies cross-appointed to the political science department at the University of Pittsburgh. He explores the role that international laws addressing violations of sovereignty have played in post-WWII America’s increase in covert interventions intent on altering the domestic authority structures of another state. Simply put, the book tests Poznansky’s theory that non-intervention principles and provisions lead to intentionally covert actions to overthrow foreign regimes.”
Substantive Law
Administrative Law
Hancock v. College of Registered Nurses of Manitoba,2021 MBCA 20: Appeal of finding of a panel of the College of Registered Nurses’ Discipline Committee that the appellant was guilty of professional misconduct, as well as the penalty and the order of costs. Appellant was found to have inappropriately accessed medical records. Appeal dismissed.
The Deputy Minister of Finance v. Cutting Edge Athletic Supplies Inc.,2021 MBQB 38: Two matters adjudicated in one application. Appeal by Deputy Minister of Finance re calculation of retail sales tax payable, and appeal by Cutting Edge Athletic Supplies of assessment of liability against director. Analysis of burden of proof in tax appeals. Finance is successful in its appeal; TAC’s decision on director’s liability affirmed.
John M. Evans. Reviewing Delegated Legislation after Vavilov: Vires or Reasonableness? 34 Can. J. Admin. L. & Prac. 1. (WLNC – request a copy).
This article explores the basis on which courts review the validity of delegated legislation in Canada. They have traditionally employed ultra vires as the ground of review by construing the legal scope of the enabling clause and determining whether the delegated legislation falls within it, with no deference to the delegate. However, when the challenge is to the exercise of the power itself raising a question of inextricably mixed fact and law, delegated legislation may also be set aside as ultra vires if it is so unreasonable as to be beyond the intent of the Legislature in delegating the power. More recently, the Supreme Court has been divided on whether the Dunsmuir framework, with its default reasonableness standard on questions of law, applies to the review of delegated legislation. Vavilov may suggest that it does. The author argues that the Dunsmuir/Vavilov framework was primarily designed for the review of adjudicative decisions and is a poor fit for reviewing delegated legislation
Civil Litigation
Jack v. McLean,2021 FCA 65: Related to McLean et al. v. Canada (Attorney General), 2021 MBCA 15. Appeal re fee approval order which declined to adjudicate appellants’ request for fees in class action proceeding. FC found that there was no fee sharing agreement before the Court to approve and action was never certified. Appeal dismissed.
CIBC v. Ahmed, 2021 MBCA 25: Appeal from summary judgment order to pay the outstanding balance on her credit card issued by the plaintiff, plus interests and costs. Basis of appeal is that the motion judge erred in dismissing her motion for recusal, and failed to conduct the hearing in a fair and impartial manner, giving rise to a reasonable apprehension of bias. Appeal dismissed; costs in favour of the plaintiff set at $1,500 all inclusive of disbursements.
The Director of Criminal Property and Forfeiture v. Ramdath et al.,2021 MBCA 23: Interpretation of the stand of proof required for an interim preservation order under s.7(2) of The Criminal Property Forfeiture Act. Defendant (appellant) had embezzled millions of dollars from his employer. Director obtained an interim preservation order which froze funds in a GIC and TFSA in the name of the defendant. Under this Act, standards of proof change at different stages of legal proceedings. Explanation of all the different standards of proof from proof beyond a reasonable doubt to reasonable suspicion. Appeal dismissed.
The Director of Criminal Property and Forfeiture v. Nguyen et al.,2021 MBCA 19: Defendant appeals an order of forfeiture of his residence.First opportunity for Court of Appeal to interpret and apply s.14(1) of The Criminal Property Forfeiture Act. Residence was used for a marihuana grow operation. Defendant pleaded guilty; part of the sentence included a forfeiture order of all the seized items. Director (plaintiff) initiated additional proceedings to request forfeiture of the residence. Trial judge weighed factors for and against forfeiture, as outlined in the Act. Appeal dismissed.
Interlake Reserves Tribal Council Inc et al. v. Government of Manitoba, 2021 MBCA17: Appeal of order granting interlocutory injunctions. Project is to build a permanent flood control management system to replace the Lake St. Martin emergency outlet channel constructed in 2011. Injunctions sought in support of their review of three administrative decisions relating to environmental assessment. Issue of whether adequate consultation or effective notice took place. Decision to grant or refuse an interlocutory injunction is entitled to a “high degree of deference” on appeal. Appeal allowed.
McLean et al. v. Canada (Attorney General),2021 MBCA 15: Appeal by both parties of motion judge’s order setting aside the discontinuance of this action, a class proceeding re residential schools. Plaintiffs and defendant are taking the same position on appeal. Discussion of definition of “class proceeding”, i.e. statutory interpretation, and history of s.35(1) of The Class Proceedings Act. Proceeding had not been certified, therefore it remained subject to discontinuance under Rule 23.01(1) of the Queen’s Bench rules. Appeal allowed. Also at issue was whether the moving parties (former lawyers of record) had standing to file the motion.
Winnipeg (City) v. Caspian Projects Inc. et al.,2021 MBQB 63: Motion (by some defendants) to discover two non-party RCMP members. Based on evidence brought forward, moving parties have not established necessities under Queen’s Bench Rules 31.10(1) and 31.10(2) to justify an examination by a non-party.
Shelter Canadian Properties Limited v. Christie Building Holding Company, Limited, 2021 MBQB 59: Applicant seeks judgment enforcing award of arbitrator; respondent has filed two applications: leave to appeal the arbitrator’s award; and a stay of enforcement of any judgment respecting the award. Balance of convenience favours paying the award to the applicant.
Farmers Edge Inc. v. Precision Weather Solutions Inc.,2021 MBQB 58: Motion by defendant PWS for an interim and interlocutory injunction. PWS claims damages in excess of $1.2 million over and above general damages and fears there is a risk FE would not be able to pay such a damages award. Motion dismissed.
Vale v. Schwartz et al.,2021 MBQB 49 : Damages following summary judgment decision of August 27, 2020 (2020 MBQB 127). McCarthy, J. requested written submissions setting out each party’s position on the appropriate date for losses to be assessed, the method of valuation and appropriate value, and the appropriate conversion into Canadian dollars. London Metal Exchange (LME) price is determined to be the best indication available of the fair market value of the stolen nickel.
Vale v. Schwartz et al.,2021 MBQB 46 : Motion by some defendants (Urbanmine defendants) to add another party (ELG Metals) as a third party. ELG opposes the motion on the basis that Manitoba courts do not hold jurisdiction for the dispute between Urbanmine and ELG. Interpretation of court’s jurisdiction: presence-based, consent-based, or assumed jurisdiction. Manitoba is the appropriate jurisdiction. Next step is whether leave should be granted to add a third party. Test is set out in Loeppky et al v. Taylor McCaffrey LLP et al.,2019 MBQB 59. Leave granted.
Lou Anna Roberts v. The Government of Manitoba,2021 MBQB 43: Suit for damages pursuant to The Occupiers’ Liability Act. Plaintiff fell while exiting a building owned, occupied and managed by the provincial government. Parties agree on special damages but disagree on apportionment of degrees of negligence. Also disagree on quantum of non-pecuniary general damages. Negligence is set at 50-50. General damages of $90,000 awarded.
Maquinay v. Greatway Financial Inc. et al., 2021 MBQB 35: Plaintiff seeks to set aside Master’s decision to strike her Statement of Claim as a whole with leave to amend portions of some of the causes of action. Harris, J. found that the claim contravenes the rules of pleading in significant ways. Plaintiff allowed leave to amend part of the claim.
WRE Development Ltd. v. Lafarge Canada Inc.,2021 MBQB 37: Appeal of dismissal of motion to dismiss the action due to long delay. Standard of review is a hearing de novo. Interpretation of Queen’s Bench rule 24.02(1) as amended effective January 1, 2018. No significant action moving the file forward in over three years. Plaintiff was waiting for additional documents from the defendant after discovery. Analysis of what constitutes “significant advance”. Bock, J. finds for defendant; even though delay was due to defendant’s lack of response, plaintiff’s counsel could have compelled the defendant for undertakings.
Frenchie’s Farm and Ranch Ltd. v. Peace Hills Insurance Company,2021 MBQB 33: Insurance claim over fire loss that occurred in 2011. Insurance company has denied coverage for plaintiff making false statements in the statutory declaration for the proof of loss and has not provided information to support the existence of the items lost. Plaintiff claims all such records were lost in the fire. Credibility of witnesses a significant factor in finding for the defendant.
Consbec Inc. v. Hollow Water Weri Construction Ltd.,2021 MBQB 32: Plaintiff seeks to amend statement of claim by adding WERI as a defendant. Claim is for remaining payment due under contract. Defendant filed a counterclaim for problems with the initial contract. Proposed amendment would require piercing the corporate veil. Motion dismissed.
Shinoff v. The Province of Manitoba et al.,2021 MBQB 31: Summary judgment request by defendants. Plaintiff is suing based on her experience as a child in foster care in the 1960s. Question is whether the relationship between the plaintiff’s foster mother and the defendants sufficiently close that vicarious liability could be imposed. Also discussion of limitation period that applies. Summary judgment granted.
Glenwood Label & Box Mfg. Ltd. v.Brunswick Label Systems Inc. et al.,2021 MBQB 30: Claim by defendant for costs in case that was dismissed for delay. Plaintiff disputes entitlement due to costs of counterclaim. Analysis of Queen’s Bench Rule 23.03 and 23.05. Litigation had been ongoing for 25 years.
In applying established principles of insurance contract interpretation to this new area, the Court of Appeal ruled that Co-operators General Insurance Company of Guelph, Ont., did not owe a duty to defend Brockville, Ont.-based Family and Children’s Services of Lanark, Leeds and Grenville (FCSLLG) or Peterborough, Ont. consulting firm Laridae Communications Inc. in two lawsuits stemming from an April 2016 data hack that targeted FCSLLG. The hacker took a confidential report that contained details about case files and investigations involving 285 people and posted a hyperlink to the report on two Facebook pages.
The appellant was seriously injured when he slipped and fell on black ice on a sidewalk adjacent to the respondents’ residential property. The summary trial judge found that it was appropriate to sever the issues of liability and damages and resolve the duty of care question on summary trial. She dismissed the claim on the basis that the respondents did not owe a duty of care. On appeal, the appellant recast the nature of the duty alleged, focusing on the obligation of property owners to clear snow and ice from sidewalks to comply with a municipal bylaw. He argued that a property owner owes a duty of care to users of municipal sidewalks to take reasonable care with respect to removal of snow and ice from adjacent sidewalks. Held: Appeal dismissed. While the weight of authority has rejected the existence of such a duty of care, no court has undertaken an Anns/Cooper analysis and the authorities are not binding on this Court. Applying the Anns/Cooper analysis, the risk of harm was foreseeable, but the appellant is unable to establish a sufficient relationship of proximity and it would not be just or fair to impose a duty of care in these circumstances. The judge did not err in deciding the issue on a summary trial application.
[3] The issue put forward by the appellants on this appeal was: did the motion judge err in granting the respondent’s motion for summary judgment because there was no genuine issue requiring a trial about the scope of the appellants’ liability to the respondent under their personal guarantees? The appellants submit that there was a genuine issue requiring a trial, as the respondent misrepresented to them that their liability under their personal guarantees was joint and several with a collective exposure limited to $600,000. [4] For the reasons that follow, I agree that the motion judge erred and would remit for trial the narrow issue of determining the amount that each appellant owes to the respondent under their respective personal guarantees.
Constitutional Law
Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11: Division of powers of federal and provincial governments in climate legislation. Reference to the distinctly Canadian concept of peace, order and good government (POGG) that we learned in Canadian history class. Discussion of federalism as a foundational principle of the Canadian Constitution.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: The GGPPA is constitutional. It sets minimum national standards of GHG price stringency to reduce GHG emissions. Parliament has jurisdiction to enact this law as a matter of national concern under the peace, order, and good government (“POGG”) clause of s. 91 of the Constitution Act, 1867.
Per Côté J. (dissenting in part):There is agreement with the majority with respect to the formulation of the national concern test. There is also agreement that Parliament has the power to enact constitutionally valid legislation establishing minimum national standards of price stringency to reduce GHG emissions. However, the GGPPAis, in its current form, unconstitutional. It cannot be said to accord with the matter of national concern formulated by the majority because the breadth of the discretion that it confers on the Governor in Council results in no meaningful limits on the power of the executive. Minimum standards are set by the executive, not the GGPPA.
PerBrown J. (dissenting): The Greenhouse Gas Pollution Pricing Act (“Act”)cannot be supported by any source of federal authority, and it is therefore wholly ultra vires Parliament. The Act’s subject matter falls squarely within provincial jurisdiction. The fact that the Act’s structure and operation is premised on provincial legislatures having authority to enact the same scheme is fatal to the constitutionality of the Actunder Parliament’s residual authority to legislate with respect to matters of national concern for the peace, order, and good government of Canada under the Constitution Act, 1867.
Per Rowe J.(dissenting): The national concern doctrine is a residual power of last resort. Faithful adherence to the doctrine leads inexorably to the conclusion that the national concern branch of the POGG power cannot be the basis for the constitutionality of the Greenhouse Gas Pollution Pricing Act (“Act”). Accordingly, there is agreement with Brown J.’s analysis and with his conclusion that the Act is ultra vires in whole.
Kimberly A. Poffenroth. New Brunswick’s Precedent Setting Election: Conducting a 28-day Snap Election During a Global Pandemic. 15 J. Parliamentary & Pol. L. 15. (WLNC – request a copy). …While working from home in the early spring of 2020, the staff of Elections NB began developing plans to conduct provincial by-elections and the postponed municipal council, district education council and regional health authority board elections. Based on when legislative sessions have historically begun in New Brunswick, Elections NB anticipated that the postponed provincial by-elections would be held later in 2020, once COVID-related restrictions were lifted. It was unclear whether the postponed “local elections” would be held in 2020, but in any event, they would have to be held no later than May 10, 2021. …
Criminal Law
R. v. R.V.,2021 SCC 10: Unreasonable and inconsistent verdict; whether legal error in jury instructions can reconcile apparently inconsistent verdicts; appropriate remedy. Accused was convicted of sexual interference and invitation to sexual touching, but acquitted of sexual assault based on the same evidence. Accused appealed, verdicts unreasonable; Crown cross-appealed, charge to jury was confusing. CA held no legal error in jury instruction and acquitted.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ.: The trial judge misdirected the jury on the charge of sexual assault. This legal error was material to the acquittal, did not impact on the convictions, and reconciles the apparent inconsistency in the verdicts. As the verdicts are not actually inconsistent, the convictions are not unreasonable on the basis of inconsistency. V’s convictions should therefore be restored. The acquittal on the charge of sexual assault should be set aside and in the circumstances of this case, a stay of proceedings should be entered on that charge.
Per Brown and Kasirer JJ. (dissenting in part): There is agreement with the majority that the verdicts in this case are inconsistent. There is also agreement that the jury was misdirected, and that the misdirection amounted to legal error that might reasonably be thought to have had a material bearing on the acquittal. However, the only available remedy in response to the Crown appeal in the present case is the order of a new trial. To avoid putting V in jeopardy for something for which he was convicted, a new trial on all three charges is necessary.
R. v. Airmaster Sales Ltd.,2021 MBCA 30: Motion for leave to appeal decision of summary conviction judge dismissed accused’s appeal from default convictions for two speeding infractions. Accused’s representative had been removed by the JJP which caused an adjournment. Accused stated that he was confused as to the date of his trial and missed it. Motion dismissed.
R. v. Meeches,2021 MBCA 26: Appellant seeks leave to appeal adult sentence of life imprisonment for second degree murder. Review of sentencing judge’s assessment of PSR and Gladue factors. Interpretation of “accountability” in determining length of sentence. Leave to appeal granted, appeal dismissed.
R. v. Courchene,2021 MBCA 24: Appeal of conviction for breaking, entering and stealing a firearm on the basis that the verdict was unreasonable. Discussion of the definition of “firearm”. Appeal dismissed.
R. v S.A.D.F.,2021 MBCA 22: Crown seeks leave to appeal sentence following accused’s guilty plea to two counts of sexual interference. Grounds are that sentencing judge failed to appreciate the gravity of the offences and the moral blameworthiness of the accused. Spivak, J.A. allows appeal and increases sentence, Burnett, J. A. Concurring. Monnin, J.A. in dissent.
R. v. Bernier,2021 MBCA 21: Appeal of dismissal of a summary conviction appeal challenging the constitutionality of s.229 of The Highway Traffic Act (photo radar speeding tickets). Accused argued that s.229 was unconstitutional because it created a presumption that he was the driver. This appeal was heard by a panel of five judges, in case these circumstances overturned the Court’s previous decision on this issue in R. v. Gray, 1988 CanLII 1374. Appeal dismissed.
R. v. Ibrahim,2021 MBCA 12: Appeal of conviction for possession of cocaine, asserting that the search violated the accused’s s.8 Charter rights. CA agreed that trial judge erred in her statement of one of the facts supporting her finding, but that the misapprehension did not constitute an overriding error. Appeal dismissed.
R. v. Ginter,2021 MBQB 56: Appeal by appellant of prohibition of owning firearms for a five year period. Issues on appeal are: 1. Did the hearing judge commit a reviewable error in her assessment of any evidentiary issues; and 2. Did the hearing judge err in concluding the prohibition order was necessary in the interests of public safety. Appeal dismissed.
R. v. McKenzie,2021 MBQB 54: Voir dire re search which found the accused in possession of a loaded handgun, methamphetamines and fentanyl, and cash. Discussion of the standard of “reasonable suspicion” as well as the test for a valid investigative detention and warrantless search. Motion to exclude evidence dismissed.
R. v. J.C.,2021 MBQB 52: Sentencing decision for guilty plea to assault. Charges of uttering a threat and sexually assaulting the complainant were stayed. PSR assessed the accused as a medium risk to re-offend, and that he is a suitable candidate for community supervision. Primary sentencing objectives are denunciation and deterrence; custodial sentence of 9 to 12 months is appropriate; conditional sentence imposed.
R. v. M.V.R.,2021 MBQB 47: Trial of charges of historic sexual assault, threats and forcible entry. Some charges relate to a period where the complainant was a child of approximately 12 years old. Credibility and reliability of witnesses is of major concern in cases of this nature. Verdict of not guilty; judge has reasonable doubt as to the accused’s guilt.
R. v. Assi,2021 MBQB 44: Pretrial motion challenging the constitutionality of a limitation placed on the defence of provocation to be heard prior to trial (s.232 of the Criminal Code. Applicant is charged with murder and attempted murder. Application dismissed.
R. v. Siwicki,2021 MBQB 42: Application for an order of certiorari quashing decision of a Provincial Court judge denying a request to transfer a matter from St. Boniface Judicial Centre to Winnipeg Judicial Centre. Matter consisted of a guilty plea and sentencing. Defence had consent of Crown to request transfer. Provincial Court judge relied on practice directive to refuse transfer. Review is limited to whether the judge exceeded his jurisdiction. Interpretation of s.479 of the Criminal Code. Discussion of the Chief Judge’s administrative powers as delivered through practice directives. Application dismissed.
R. v. Barca,2021 MBQB 40 : Charges of two counts of intentionally discharging a firearm and one count of storing a firearm in a reckless manner. Accused did not testify; he gave a videotaped interview to police which was admitted into evidence. Edmond, J. applied the analysis set out in R. v. W. (D.) to determine if the Crown had proven guilt beyond a reasonable doubt. Accused is found guilty of some counts and not guilty on others.
R. v. Denis,2021 MBQB 39: Appeal of conviction of driving while impaired; grounds are that the judge erred in finding that the Crown had proven compliance with s. 320.31(1)(a) of the Criminal Code (alcohol standard was certified by an analyst). Appellant requests that the conviction is quashed and an acquittal is ordered. This is a transitional case and must be considered in the context of s. 320.31(1). Standard of review is correctness. Discussion of the interpretation of “certified by an analyst”. Appeal allowed.
R. v. Tessier,2021 MBPC 14: Motion for unreasonable delay where the pre-trial delay is below the 18 month presumptive ceiling. Accused was charged with two offences of operating a conveyance while impaired.
R. v. Budd,2021 MBPC 13: Sentencing decision with a Charter challenge. Accused spent a considerable amount of time in lockup. He was extremely intoxicated and didn’t remember his original phone call with a lawyer. He was denied an additional call. Defence counsel alleges breaches of Charter sections 7, 9, 10(b) and 11(e). Harvie, P.J. concluded that accused’s Charter rights were breached and the appropriate remedy is a $1 fine for each charge, along with one year supervised probation.
R. v. Rakesh, 2021 MBPC 12: Sentencing decision for bank robbery by accused, a gambling addict with no prior criminal record. Crown seeks a total sentence of 20 years with a reduction for a total of 9 years, less credit for time in custody. Defence seeks four years and argues that rehabilitation plays an important role. Analysis of mitigating and aggravating factors, including the need for deterrence when sentencing for a bank robbery. Harvie, P.J. sentenced accused to 5 years, less credit for presentence custody plus 3 years probation.
R. v. Kipling,2021 MBPC 11: Accused charged with aggravated assault. Incident involved attacker hitting a teenager over the head with a hammer, and then fled the scene. Issue is over identity of the attacker from video surveillance. No forensic evidence was found. Crown relied on opinion evidence of two recognition witnesses as well as circumstantial evidence. Analysis includes test to qualify recognition witnesses. Accused found guilty.
R. v. Soriano,2021 MBPC 6: Application by Crown for admission of statement of accused for use in cross-examination should accused testify. Defence seeks exclusion of statement. Analysis of whether accused’s s.10(b) Charter right to counsel were breached. Pullan, J. ruled that she had reasonable doubt that the statement was voluntary and excluded it.
R. v. Blair,2021 MBPC 4 (FASD Court): Sentencing decision after accused pleaded guilty to two armed robberies. Crown is seeking a sentence of six years concurrent for each of the robberies, plus one year consecutive for using an imitation firearm. Defence is seeking three years followed by probation. Analysis of the effect of FASD on accused’s moral culpability, aggravating and mitigating factors. Total sentence of 30 months minus time already spent in custody.
[7] I would allow JC’s appeal. With respect to the first alleged error, the trial judge’s improper reliance on stereotype had a material effect on his rejection of JC’s evidence about securing HD’s consent. This finding, in turn, played an important role in the trial judge’s overall evaluation of JC’s credibility. This error cannot be treated as harmless or as not occasioning a miscarriage of justice in what was a pure credibility case. [8] I would also find that the trial judge committed the second alleged error by incorrectly characterizing JC’s motive theory as based on stereotype, and by relying on stereotype and the willingness of HD to endure a criminal trial in rejecting JC’s motive theory. [9] Because of these errors, I would set aside the convictions and order a new trial.
Family Law
Métis Child, Family and Community Services v. H.D.G.J.,2021 MBCA 18: Agency appeals decision of the trial judge granting an order that the child in question be placed with her maternal grandmother without transfer of guardianship, and that the agency continue to be the child’s legal guardian. Ultimate issue is whether there should be a permanent order of guardianship. Appeal court found that trial judge erred in a number of ways; appeal allowed, Agency appointed as permanent guardian.
Youssef v. Letourneau,2021 MBQB 57: Interjurisdictional case for child support from August 2015, based on father’s imputed income. Petitioner (mother) lives in Manitoba and respondent (father) lives in Washington state. Mother originally filed a petition under The Family Maintenance Act seeking child support, and then submitted an application under The ISO Act. Child support arrears and continuing obligations are determined after income imputed.
Maquimot v. Maquimot,2021 MBQB 41: Request to set aside a without notice protection order. Respondent asserts that applicant failed to make full and frank disclosure of all relevant particulars to the JJP. Application dismissed.
In the latest edition: • Weaponizing the Internet: The (New) Tort of Internet Harassment • Sharing (actually not sharing) Post-Separation Increases in Income • Virtual Cross-Examination Etiquette; Rule 1: Don’t Lie
Labour and Employment Law
White Bear First Nation v. Bird, 2021 FCA 50: Appeal of termination, allegedly for cause. Respondent had worked for nearly 14 years at appellant’s on-reserve school, first as a teacher and then as principal, with a clean employment record. Adjudicator found employer had just cause to terminate. Respondent sought judicial review in FC. Application granted, court found that adjudicator erred in failing to apply the correct legal test among other reasons. Justice Diner also found that respondent had been denied an opportunity to respond to complaints against him prior to termination. Appeal dismissed.
Dolski v. Staples Canada ULC,2021 MBQB 29: Plaintiff was dismissed without cause by the defendant, who required her to sign a standard form “Full and Final Release”, which she did. She claims reimbursement from the defendant for travel expenses incurred prior to her termination. The request occurred several months after signing the release. Defendant refuses to pay. Legitimacy of expenses is not questions. Discussion of the nature of a release as a form of contract. Plaintiff’s action allowed.
Chris Drinovz. Can an Employer Require Employees to Get the COVID-19 Vacine (BC)?2021 CanLIIDOCS 228. This has been a hot topic since the news of the first-approved vaccine. Currently in British Columbia there is no specific legislation requiring employees to get vaccinated. However, please note that this could evolve once the vaccine is underway and available to the public at large. The short answer to this question is yes, generally non-unionized employers (and in some cases unionized employers) can require employees to get the vaccine (with certain exceptions discussed below).
Wills, Trusts & Estates
Nicol v. Nicol Estate,2021 MBQB 50: Dispute over administration of estate by Trustee in the disposition of parcels of land included in the estate. Applications request direction from the court in interpreting the provisions of the testator’s will regarding purchasing the parcels of land. Application dismissed.
Re Clark Estate,2021 MBQB 23: Dispute between the deceased’s mother and his former common-law partner over letters of administration. Deceased passed away in the Turks & Caicos Islands. Discusses the differences between jurisdiction simpliciter and the doctrine of forum non conveniens. Turner, J. concludes that the Turks & Caicos Islands are the appropriate forum.
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