eLex May 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Bankruptcy LawProvincial
New Library ResourcesCivil Litigation 
Book ReviewCriminal Law 
 Family Law 
 Labour and Employment Law 

News


In the News


Court Notices & Practice Directions

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

Provincial Court


New Library Resources

New Online Titles

FROM DESLIBRIS
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The Law of Property – Robert Chambers

“The law of property is the most commonly encountered area of law because we rely on it every day. Within a legal context, the word property refers to the rights that people have to their things, not to the things themselves. Property law serves as a framework for sharing our things with others, and thus often intrudes on various other areas of law: it intersects with the law of contracts whenever people buy and sell things; the wrongful interference with property may be a tort or a crime; and the power to make laws concerning property involves constitutional law.”

United Nations Law, Politics, and Practice – Alexandre Tavadian

The result of a 300-year-long experiment, the United Nations has preserved its position as an indispensable actor on the world stage. As Kofi Annan famously remarked, “more than ever before in human history, we share a common destiny. We can master it only if we face it together. And that, my friends, is why we have the United Nations.” Since its formation, the international community of states averted a third World War, replaced colonialism with self-determination, reduced poverty and hunger, eradicated many diseases, and established mechanisms for promoting and protecting human rights. Yet, the way the United Nations operates to achieve these objectives is not well known. There has yet to be a comprehensive and accessible text that presents a holistic overview of the United Nations as an institution through a multidisciplinary approach to the study of the UN rather than an exclusively legal or political analysis.

Canadian Class Action Law Review – Volume 16, Issue 2

  • Introduction. Harvey T Strosberg
  • Book Review: Defending Class Actions in Canada: A Guide for Defendant. Michael A Crystal and Maria Khan
  • Flash Boys Class Actions: Civil Fraud, Conspiracy, and the Certifiability of High-Frequency Trading Cases in Canada.
    Lindsay Frame
  • An Overview of Class Actions and COVID-19 in Ontario’s Long-Term Care Facilities. Jordan Assaraf
  • The Unworkability of the Workable Methodology Standard. Kate Boyle and Nicholas Hooper
  • United We Stand, Divided We Fall: Class Actions and Corporate Hegemony. Rebecca Meharchand
  • The Limits of Case Management: A Review and Principled Approach to the Court’s General Management Powers. Paul-Erik Veel, Adil Abdulla, and Angela Hou
  • Determining a Fair Price for Carriage?: Applying a “Fee-Driven” Factor and Reverse Auctions to Adjudicating Carriage Motions in Ontario. Timothy Law

Book Reviews

Reviews taken from the Canadian Law Library Review Volume 46, no. 1

New Technologies for Human Rights Law and Practice

New Technologies for Human Rights Law and Practice.
Edited by Molly K. Land & Jay D. Aronson. Cambridge:
Cambridge University Press, 2018. xiv, 318 p. Includes
table of contents, bibliographical references, and index.
ISBN 978-1-107-17963-9 (hardcover) $126.95; ISBN 978-1-316-63141-6 (softcover) $40.95. Open access (PDF) via doi.org/10.1017/9781316838952

Reviewed by Katarina Daniels

New Technologies for Human Rights Law and Practice is a brilliantly edited collection of essays that looks at both promising and problematic uses of technology in relation to human rights. It pursues the overarching goal of “articulat[ing] a human rights-based approach to understanding the impact of technological change on human rights” (p. 2). The diverse group of contributing authors includes law professors, practitioners, researchers, and technology specialists. These authors regularly refer to and rely on human rights law and accountability strategies in practice, as well as adopt ideas and concepts from cyberlaw and science and technology studies within the book.

Substantive Law


Administrative Law

Jordan v. Director, Winnipeg West, 2021 MBCA 43: Applicant seeks leave to appeal the decision of the Social Services Appeal Board confirming that she had been overpaid assistance because she had been living in an undisclosed common-law relationship. Appeal can take place only on a question of jurisdiction or a point of law. Application dismissed.

Michelle A. Alton, Suman Furmah, Kayla Seyler. Adapting the Role of Tribunal Counsel to Promote Access to Justice: How Far Can We Go? 34 Can. J. Admin. L & Prac. 27. (WLNC – request a copy.)


Bankruptcy Law

Royal Bank of Canada v. 6382330 Manitoba Ltd. et al., 2021 MBQB 72: Motion seeking leave to commence an action against the Receiver as a result of gross negligence. Test for leave is based on a “strong prima facie case”. Leave denied.


Civil Litigation

Ontario (Attorney General) v. Clark, 2021 SCC 18: Issue of whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors. Three officers with the Toronto Police Service sued the Ontario Attorney General for negligence and misfeasance in public office. Officers were accused of beating an accused during arrest and prosecutors stayed the charges. The stay application was widely reported in the media. Later investigation found the accusations were not substantiated; officers claimed reputational harm.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution, and misfeasance cannot be used to get around this reality.

Per Côté J. (dissenting): The appeal should be dismissed. Prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers who suffered harm as a result of deliberate and unlawful conduct by prosecutors in connection with serious criminal allegations of police misconduct.

Zaki v. University of Manitoba, 2021 MBCA 46: Appeal from a decision of a motion judge refusing a mandatory interlocutory injunction. Motion judge concluded applicant had not met the requirement of showing a strong likelihood of success. Appeal court agreed; appeal dismissed.

Business Development Bank of Canada v. Cohen, 2021 MBCA 41: Defendant appeals an order for summary judgment in favour of the plaintiff for the amount owing under two personal guarantees. Defendant alleged the plaintiff sold certain real property below fair market value, resulting in the sale being commercially unreasonable. Each party provided an expert report supporting their position. Court of Appeal found that motion judge did not provide an explanation for his determinations, such that summary judgment was not appropriate and allowed the appeal.

Lockport Taxi Ltd. v. The Rural Municipality of East St Paul et al., 2021 MBCA 40: Appeal of a decision of an application judge on the interpretation of The Local Vehicles For Hire Act. Key issue is one of statutory interpretation, therefore standard of review is correctness. The Act delegates discretionary powers to municipalities to make by-laws regulating the operation of vehicles for hire in their jurisdiction. The four respondent municipalities have not yet passed by-laws. Applicant had requested an order of mandamus requiring the municipalities to draft by-laws to regulate the industry, which was denied. Court of Appeal agreed with the application judge’s reasons; appeal dismissed.

Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government, 2021 MBCA 36: Appeal of an order of mandamus; reviewing judge granted application of MGEU to appoint an arbitration board. Issue on appeal is whether the Minister’s refusal to order the appointment of an arbitration board was reasonable. Extensive analysis of Vavilov and the standard of review by Steel, J.A. Examination and interpretation of s. 48 of The Civil Service Act. The mandamus order is confirmed, requiring the Minister to appoint an arbitration board.

Zaki v. University of Manitoba, 2021 MBCA 35: Motion by respondent to adjourn applicant’s appeal in a student disciplinary decision. Chambers judge determined she did not have jurisdiction to adjourn the appeal.

Weremy v. The Government of Manitoba, 2021 MBCA 34: Motion for leave to appeal by defendant (Manitoba) of an order certifying a class proceeding. Issue is whether the certification judge relied on inadmissible hearsay evidence to define the class period. Action is over systemic negligence and breach of fiduciary duty for operation of the Manitoba Developmental Centre in Portage la Prairie. Significant analysis of the evidentiary standard on a motion for certification. Motion dismissed.

Winnipeg (City) v. Caspian Projects Inc. et al., 2021 MBCA 33: Appeal of order for the production of documents in the possession of a non-party (the RCMP). Discussion of Queen’s Bench Rule 30.10(1) for factors regarding production, and its intersection with s. 490(15) of the Criminal Code. Decision is subject to review on the standard of deference. Appeal dismissed.

Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 77: Application to seek leave to appeal a decision of an arbitrator. Issue of what constitutes the record to be considered while seeking leave. Parties intentionally did not create an official record of the proceedings to keep the arbitration private. Analysis of whether Vavilov changes the standard of review on appeals taken from arbitration decisions. Discussion of “homemade transcript” and proportionality. Joyal, C.J.Q.B. determined the documents that could be included in the evidentiary record so that the appeal could be scheduled.

Tataskweyak Cree Nation v. Intact Insurance Company, 2021 MBQB 66: Appeal from Master’s decision dismissing action for long delay. Events surround construction of a sewage lagoon. Company that was awarded the contract withdrew in spring 2012. Intact is the surety under a performance bond on the contract. All parties agreed to consolidate the two actions and signed a consent order but counsel for one of the parties forgot to file it. Appeal allowed.

Erika Chamberlain. Case Annotation: Caplan v. Atas. (2021) 77 C.C.L.T. (4th) 124. (WLNC – request a copy.)

Caplan v. Atas adds the new tort of “harassment in internet communications” to this milieu. It responded, in this case, to a prolonged and outrageous campaign of character assassination against a range of persons with whom the defendant had perceived grievances, as well as their loved ones, lawyers, and business associates.

John Schofield. Appeal Court ruling in long-running land litigation beckons SCC scrutiny, says lawyer”, The Lawyer’s Daily, April 16, 2021. Case comment on Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201, overturning 2019 ONSC 5322.

The case illustrates “the perils associated with a landowner selling interests in the land to more than one party in more than one transaction,” Court of Appeal supernumerary Justice Eileen Gillese wrote for the majority, including Justice Mary Lou Benotto.

“The appeals raise many legal issues, one of which is the little-known equitable doctrine of estoppel by convention,” she added. “In Canada, this doctrine finds its roots in Ryan v. Moore 2005 SCC 38. As you will see, estoppel by convention plays a critical role in the resolution of these appeals.”

Ian Burns. “Lawyers should distinguish between remediation and litigation legal costs: B.C. Court of Appeal”, The Lawyer’s Daily, April 12, 2021. Case comment on Victory Motors (Abbotsford) Ltd. v. Actton Super-Save Gas Stations Ltd., 2021 BCCA 129.

The B.C. Court of Appeal has issued a ruling in a case involving a dispute over the cleanup of a former gas station that lawyers are saying helps to clear up some of the confusion in the law about how legal costs are apportioned in environmental remediation cases, but could lead to more issues down the road.


Criminal Law

R. v. Desautel, 2021 SCC 17: Issue of whether Aboriginal people located outside of Canada can assert Aboriginal rights under the Canadian Constitution. Respondent is an American citizen who was charged with hunting without a license in British Columbia. His defence was based on having an Aboriginal right to hunt protected by s. 35(1) of the Constitution Act, 1982.

Per Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1) of the Constitution Act, 1982. On a purposive interpretation of s. 35(1), the expression “aboriginal peoples of Canada” means the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include Aboriginal groups that are now outside Canada.

Per Côté J. (dissenting): The appeal should be allowed and the constitutional question answered in the negative. The constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982, does not extend to an Aboriginal group located outside of Canada. And even if it did, D cannot establish that he was exercising an Aboriginal right to hunt in the Sinixt traditional territory in British Columbia, as the modern group’s claim lacks continuity with the pre‑contact group’s practices.

Per Moldaver J. (dissenting): Even assuming that the majority is correct in holding that, as a member of an Aboriginal collective located outside Canada, D is entitled to claim the constitutional protection provided by s. 35(1) of the Constitution Act, 1982, there is agreement with Côté J. that in this case, D has not met the onus of establishing the continuity element of his claim, under the test for Aboriginal rights pursuant to Van der Peet.

R. v. Smith, 2021 SCC 16: Appeal from 2020 BCCA 271. Issue of whether the trial judge’s failure to deal properly with the prior inconsistent statements does not mean she failed to consider or give effect to them.

Brown J. — We would allow the appeal, set aside the order for a new trial and restore the respondent’s conviction for sexual assault, substantially for the reasons of Dickson J.A. …
… While testimonial inconsistencies may be relevant when assessing a witness’s credibility and reliability, only some are of such significance that failing to consider them will meet this standard.

R. v. Ramos, 2021 SCC 15: Appeal from 2020 MBCA 111 over whether the trial judge gave adequate reasons in his assessment of the credibility of the witnesses.

The Chief Justice — We are all of the view, for the reasons of Justice Mainella of the Court of Appeal of Manitoba, to dismiss the appeal.

R. v. Antczak, 2021 MBCA 39: Crown seeks leave to appeal sentence for possession of fentanyl for the purpose of trafficking. Crown claims the sentence is demonstrably unfit. Examination of the principles of sentencing, especially the role of rehabilitation. Leave to appeal allowed, appeal dismissed.

R. v. Telfer, 2021 MBCA 38: Appeal of conviction for first degree murder under s.8 of the Charter (unreasonable search and seizure). Did the accused have a reasonable expectation of privacy in information provide to WPS by Budget Rent-a-Car? Appeal dismissed.

R. v. Thorassie, 2021 MBCA 37: Appeal of conviction for assault and other charges, and application for leave to appeal sentence. Accused argued that the trial judge misapprehended the evidence and erred in his application of the law of self-defence. Trial judge reviewed video evidence and stills from the video to reach his conclusions. Conviction appeal dismissed. Leave granted to appeal the sentence and sentence appeal dismissed.

R. v. St. Paul, 2021 MBCA 31: Appeal of sentence; whether the judge conducted a meaningful Gladue analysis. Accused was convicted of second degree murder and sentenced to life imprisonment. Accused appeals imposition of a 15-year period of parole ineligibility as being overly harsh. In determining sentence, trial judge found that the killing was “close to first degree murder”. Court found that both mitigating and aggravating factors were properly considered; appeal dismissed.

R. v. Leslie, 2021 MBCA 29: Accused appeals his conviction for one count of sexual assault; Crown applies for leave to appeal sentence. One ground of appeal for accused is ineffective assistance of counsel. Cameron, J.A. admits fresh evidence in support of this ground of appeal and allows the appeal. New trial ordered. Crown’s application for leave to appeal sentence is moot. Discussion of the rule in Browne v. Dunn, [1894] 6 R 67.

R. v. Pohl, 2021 MBQB 74: Motion by accused for an order of disclosure of a mirrored image of a seized hard drive. Hard drive contains primary evidence against the accused. McCarthy, J. references Stinchcombe and R. v. Smith for the court’s consideration of the balancing of interests required in a disclosure application. Motion granted under strict trust conditions.

R. v. G.K.B., 2021 MBQB 78: Accused charged with one count of sexual assault for two incidents that took place over 10 years ago. No corroborating witnesses or physical evidence; testimony of complainant and accused was consistent. Neither was more persuasive than the other, leading Leven, J. to a finding of reasonable doubt. Accused acquitted.

R. v. Bunn, 2021 MBQB 71: Sentencing decision for conviction of one count of sexual assault. Based on the offence, deterrence and denunciation are the paramount sentencing factors. Victim was sleeping at time of offence is an aggravating factor; no mitigating factors except for Gladue factors. Accused is sentenced to 28 months incarceration followed by two years of supervised probation.

Hall v. Independent Investigation Unit of Manitoba, 2021 MBQB 67: Application for an order revoking an ex parte order granted by a JJP requiring the applicant to produce two reports to the IIU. RCMP asserts the reports are prohibited from production. IIU says reports are not “notes” within the meaning of s. 11 of Man. Reg. 99/2015. Issues are standard of review to revoke production order; would production of reports disclose information that is protected from disclosure; did the constable impliedly waive privilege; is there a discretion not to revoke the production order. Analysis of the difference between a supplementary occurrence report (SOR) and a subject behaviour – officer response report (SB/OR). SOR determined to be “notes” while SB/OR is not. Production order varied to remove the requirement to produce the SOR.

R. v. J.C.M., 2021 MBQB 65: Application by accused about admissibility of evidence of previous sexual activity under s.276(2) of the Criminal Code. Discussion of test enumerated in R. v. Goldfinch, 2019 SCC 38. Accused’s motion granted in part.


Family Law

Lievaart v. Smith, 2021 MBQB 73: Request for variation of child support payments as ordered in a final order of 2014. Low income family, mother received income assistance because father did not pay child support. Discussion of imputing income, whether or not to waive arrears. Some variation allowed.

Malko v. Beck, 2021 MBQB 68: Accounting and equalization of assets under The Family Property Act, as well as issue of a protection order, a preservation order and spousal support. Everett, J.  ordered a reference to the Master for a family property accounting but neither party proceeded with it. Hatch, A.C.J. comments on non-compliance with Rule 70.25 and sanctions that can be invoked when a party fails to comply.

G.W.E.G. v. A.S.D., 2021 MBQB 64: Cross motions between guardian applicants and the biological father over interim guardianship and care and control. Trial dates are set for February 2022. Mother is deceased, and maternal uncle and partner took child into their care. Father requests custody. Horst, J. finds both parties can provide suitable care for the child; law in Manitoba states that “so long as the child’s best interests can be met by the parent, then that relationship must be given priority by the court” (para 13). Schedule for transition to father’s care is set.

Jeannette Aucoin and Chantal Cattermole. B.C. court declares parentage order for parent in polyamorous relationship”, The Lawyer’s Daily, May 3, 2021. Case comment on British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767.

On April 23, a B.C. court ordered that a second mother in a polyamorous triad relationship be declared a legal parent. British Columbia Birth Registration No. 2018-XX-XX5815 2021 BCSC 767 is the first case of its kind in B.C. and groundbreaking, not only for polyamorous relationships, but also for the evolving legal concept of parentage.


Labour and Employment Law

Stuart Rudner. “April pay cut is constructive dismissal”, The Lawyer’s Daily, April 16, 2021. Case comment on Kosteckyj v. Paramount Resources Ltd., 2021 ABQB 225.

[3]               On April 1, 2020, as a result of the Cost Reduction Program, Ms. Kosteckyj’s base salary was reduced from $154,800 to $139,320, Paramount’s contribution to her RRSP, based on 6% of her salary, was suspended, and her bonus status was unknown. In addition, her access to seminars and training was curtailed. Ms. Kosteckyj took no steps to accept or reject the changes resulting from the implementation of the Cost Reduction Program.

[4]               In a further cost-cutting measure, to achieve a 15% reduction in Paramount’s workforce, Ms. Kosteckyj, along with a number of other Paramount employees, was terminated, without cause, on April 22, 2020.

[5]               Paramount acknowledges that Ms. Kosteckyj was a valued employee, with 6½ years of service, and that she is entitled to damages in lieu of reasonable notice of termination. Both parties agree that the leading case on determining the period of reasonable notice is Bardal v The Globe & Mail Ltd (1960), 1960 CanLII 294 (ON SC), 24 DLR (2d) 140. Both parties assert that Ms. Kosteckyj was terminated in an economic downturn, but each has a different position regarding the relevance of that fact.

Legislation


Federal

43rd Parliament, 2nd Session

C-293 An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders)
Progress: Introduction and First Reading in the House of Commons

C-208 An Act to amend the Income Tax Act (transfer of small business or family farm or fishing corporation)
Progress: Concurrence at Report Stage in the House of Commons

C-30 An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures Short Title: Budget Implementation Act, 2021, No. 1
Progress: First Reading in the House of Commons

C-228 An Act to establish a federal framework to reduce recidivism Short Title: Reduction of Recidivism Framework Act
Progress: Third Reading in the House of Commons

C-3 An Act to amend the Judges Act and the Criminal Code
Progress: Committee Report Presented without Amendment in the Senate

C-218 An Act to amend the Criminal Code (sports betting) Short Title: Safe and Regulated Sports Betting Act
Progress: First Reading in the Senate

C-291 An Act to amend the Immigration and Refugee Protection Act
Progress: Introduction and First Reading in the House of Commons


Provincial

Government Bills

71Hon. Mr. Fielding
Minister of Finance
The Education Property Tax Reduction Act (Property Tax and Insulation Assistance Act and Income Tax Act Amended)PDF
72Hon. Ms. Squires
Minister of Families
The Disability Support Act and Amendments to The Manitoba Assistance ActPDF

Private Bills

203Mr. SalaThe Manitoba Hydro Amendment Act (Referendum Before Privatization of Subsidiary)PDF 
204Mr. KinewThe Louis Riel ActPDF 
205Mr. GerrardThe Latex Control ActPDF 
206Ms. FontaineThe Provincial Court Amendment Act (Mandatory Awareness Training)PDF 
207Ms. FontaineThe Abortion Protest Buffer Zone ActPDF 
208Mr. JohnsonThe Wildlife Amendment Act (Protecting Property from Water and Wildlife Damage)PDFSM 2020, c. 26
209Ms. FontaineThe Criminal Property Forfeiture Amendment Act (2)PDF 
210Mr. KinewThe Personal Protective Equipment Reporting ActPDF 
211Mr. ReyesThe Employment Standards Code Amendment Act (Unpaid Leave for Reservists)PDFSM 2020, c. 27
212Mr. MosesThe Mandatory Training for Provincial Employees (Systemic Racism and Human Rights) ActPDF 
213Ms. LathlinThe Reporting of Supports for Child Survivors of Sexual Assault Act (Trained Health Professionals and Evidence Collection Kits)
 • amendment(s) adopted at Committee Stage
PDF 
214MLA AsagwaraThe Universal Newborn Hearing Screening Amendment ActPDF 
215Ms. LamoureuxThe Provincial Court Amendment Act (Gender-Based Violence Education Requirements)PDF 
216Mr. KinewThe Public Health Amendment Act (2)PDF 
217Mr. GerrardThe Legislative Assembly Amendment and Legislative Assembly Management Commission Amendment ActPDF 
218MLA AsagwaraThe Somali Heritage Week ActPDFSM 2020, c. 28
219Mr. GerrardThe Health Care Accountability and Timely Access Act (The Health Care Act and Amendments to The Health Services Insurance Act)PDF 
220Mr. LindseyThe Transportation Infrastructure Amendment ActPDF 
223Mrs. SmithThe Spirit Bear Day ActPDF 
224Mrs. SmithThe Fatality Inquiries Amendment Act (Overdose Death Reporting)PDF 
225Mr. WasyliwThe Budget Impact Reporting ActPDF 
226Mr. MartinThe Red Tape Reduction Day ActPDF 
227Mr. SalaThe Residential Tenancies Amendment ActPDF 
229Mr. WasyliwThe Restriction on Material Accompanying Government Cheques ActPDF 
300Mr. NesbittThe United Church of Canada Amendment ActPDFSM 2020, c. 29
301Ms. FontaineThe Winnipeg Humane Society Foundation Incorporation Amendment ActPDFSM 2020, c. 30

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