eLex September 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
New Library ResourcesCriminal Law 
Book ReviewsFamily Law 
Labour and Employment Law 
 Wills, Trusts & Estates 
  

News


In the News

Events

Legal Research with vLex and Irwin Law Webinar

Tuesday, September 28, 2021, 12:00 p.m.—1:00 p.m.
Irwin Law’s comprehensive Essentials of Canadian Law series is moving from desLibris onto the vLex platform. Learn how to incorporate these texts, vLex and the AI assistant Vincent into your legal research with this free webinar. Eligible for 1 hour of CPD.

Email library@lawsociety.mb.ca to register. You will need to have Zoom installed on your device. Zoom link will be sent the day before the webinar.


Commemorating 150 Years of Treaty 1 and Treaty 2: What You Need to Know

September 17, 2021 , 12:00 noon – 1:15 p.m. Video Webinar
August 2021 marks the 150th anniversaries of the signing of Treaties No. 1 and 2 in Manitoba. In honour of this important milestone, Dr. Niigaanwewidam (Niigaan) Sinclair will discuss the history of the two treaties, the significance of Section 35 of the Constitution Act, 1982 which entrenches treaty rights, and why an understanding of the treaties and the obligations and benefits that flow from them is essential knowledge for all Manitoba lawyers, regardless of your area of practice.

Presenter: Dr. Niigaanwewidam (Niigaan) James Sinclair


Understanding the Dynamics of Domestic Violence for Family Law Practitioners

September 20 @ 8:00 am – September 23 @ 12:00 pm
This training will provide an overview of the dynamics of domestic violence in the context of separation, divorce, and child custody and access. All are welcome to attend. The training will take place over 4 mornings (8 am – 12 pm Saskatchewan time), Monday, September 20 – Thursday, September 23. The training will be held using Zoom.


National Day for Truth and Reconciliation

In June, the federal government announced Sept. 30 as a new annual statutory day to reflect on the history and ongoing trauma caused by residential schools and to honour those who were lost and the survivors, families and communities who continue to grieve.

The National Centre for Truth and Reconciliation is presenting a 5-day national online event of workshops, videos, and activities. Register here or click to see a full schedule.


For a full list of all upcoming events, click here for our Library Events Calendar

Court Notices & Practice Directions

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

Court of Queen’s Bench

COVID related notices and directives

Practice directions

Notices

Provincial Court

COVID related notices and directions

Practice Directives

Notices

Court of Appeal

Covid Related notices and directions

Practice Direction


New Library Resources

New in Print

Sentencing — 10th ed. by Clayton Ruby
This book canvasses the law of sentencing in a way that no other books on criminal law and sentencing are able: it succinctly outlines all of the significant facets of sentencing principles and procedure, and provides the reader with a comprehensive range of sentencing for various offences.

Executive Legislation — 3rd ed. by John Mark Keyes
Examines what constitutes executive legislation, considers the constitutional framework for delegating executive legislative authority and the institutional controls on the delegation and exercise of this authority, and considers how executive legislation is made and operates within this context and provides a comparative law perspective ranging not only throughout Canada, but also across comparable Commonwealth jurisdictions.

Bidding and Tendering: What is the Law — 6th ed. By Paul Sandori and William M. Pigott
Helps readers learn from the moves and mistakes of others. This edition not only explains the basic legal principles but also fully updates readers on changes to construction law since publication of the widely referenced fifth edition in 2015.

Misrepresentation and (Dis)Honest Performance in Contract — 2nd ed. by Bruce MacDougall 
A comprehensive, practical guide that offers critical information in an easy-to-use format. Devoted exclusively to the very specific yet crucial area of misrepresentation in contract law and the duty of honest performance.

Drafting Trusts and Will Trusts in Canada — 5th Edition by James Kessler, Fiona Hunter
This book examines both the general and the technical issues that can arise in this area of the law, and deftly combines advice on the substantive law with useful drafting direction from experts in the field.

Canadian Administrative Law — 3rd ed. by Guy Régimbald
This third edition provides an updated look at administrative law in Canada, taking the new case law into account while providing readers with a comprehensive guide to the subject. It is a valuable reference for anyone involved in the practice or study of administrative law.

New Online Titles

From Heinonline

HeinOnline has added several new journal titles from Emerald Publishing to the Law Journal Library collection. This includes full text for all past issues of the journals, excluding the 2 most recent years, which are indexed only

  • International Journal of Law and Management
  • Journal of Financial Crime
  • Journal of International Trade Law and Policy
  • Journal of Property, Planning and Environmental Law
  • Policing: An International Journal of Police Strategies & Management

Book Review

Review taken from the Canadian Law Library Review Volume 46, No. 2.

The Canadian Law of Obligations: Access to Justice
Edited by Hilary Young. Toronto: LexisNexis Canada, 2020. xxx, 255 p. Includes illustrations, bibliographic references, and index. ISBN 9780433505754 (softcover) $130.00.
Review by Emily Nickerson

“…a product of the second biennial Canadian Law of Obligations conference held at the University of New Brunswick in 2019. This conference brought together legal scholars who presented and discussed how the Canadian law of obligations should evolve, particularly in light of the need for greater access to justice.
…this book serves as a timely addition to the existing body of literature covering contracts, torts, and restitution. The papers in this volume invite readers to challenge the status quo and re-examine current assumptions on how traditional problems relating to contracts, torts, property, unjust enrichment, and civil procedure are addressed.”

Substantive Law


Administrative Law

Histed v. Law Society of Manitoba, 2021 MBCA 70: Appeal of conviction by a discipline panel of the respondent concerning four counts of professional misconduct. Appellant contends that the Panel erred in finding his conduct uncivil and constituted professional misconduct. Standard of review is that set out in Housen v. Nikolaisen. Appeal dismissed.

McHale et al. v. Manitoba (Education and Training), 2021 MBQB 190: Reasons comparable to Stone v. Manitoba (Education and Training) below.

Stone v. Manitoba (Education and Training), 2021 MBQB 187: Application for judicial review concerning a complaint dismissed by the Manitoba Human Rights Commission. Complaint concerns discrimination by failing to include materials on gender identity and sexual orientation in the kindergarten to grade 12 curriculum. The Commission investigated the complaint and submitted an investigation report, recommending that the complaint be referred to adjudication. The Commission dismissed the complaint. Kroft, J. finds the Commission’s decision is unreasonable due to insufficient reasons and directs them to reconsider the complaint.

Michele Santarsieri Inc. et al. v. Manitoba (Deputy Minister of Finance), 2021 MBQB 174: Appeal of decision of the Tax Appeals Commission regarding assessments of payroll tax. Applicant claims bias, questions whether there was adequate evidence to make credibility findings, and appeals whether the test under s. 2(4.1) of HPSEA was properly applied. Substantive analysis of judicial consideration of reasonable apprehension of bias. Standard of review for issue of test application is palpable and overriding error. Grammond, J. affirmed the decision of the TAC.


Civil Litigation

Mirage Consulting Ltd. v. 5573344 Manitoba Ltd. et al., 2021 MBQB 186: Defendants’ motions for summary judgment on the grounds that there is no genuine issue requiring a trial. Issue is over interpretation of a restrictive covenant in a consulting agreement. McCawley, J. concluded that the consulting agreement expired, therefore the restrictive covenant did not come into effect. Motion granted.

Fisher River Cree Nation et al. v. Ochekwi-Sipi First Nation Personal Care Home Inc., 2021 MBQB 181: Application for a remedy under s. 234 of The Corporations Act regarding the repeal of a bylaw and passing of a new bylaw. Applicants must establish they have standing and that the conduct of the directors has been oppressive. Judicial consideration of oppression and whether it applies in this instance. Applicants are successful; remedy is to invalidate the second bylaw, and reinstate the initial one.

Private Trading Group, LLC v. The Government of Manitoba et al, 2021 MBQB 180: Motion by defendant Sinclair for an order striking out the amended statement of claim against him. Plaintiff included him in its suit against the government for non-payment of a portion of its contract for the purchase of N95 masks. Plaintiff stated that defendant was acting in his capacity as a public officer as Deputy Minister of Central Services. Standard to have the claim struck is very high. Motion dismissed.

4508841 Manitoba Association Inc. v. Stuart Olson Construction Ltd. et al., 2021 MBQB 179: Application for leave to begin an action pursuant to The Limitation of Actions Act, s.  14(1). The respondents were responsible for constructing a seniors’ housing project in Ste. Anne in 2006. Applicants became aware of all material facts on or about July 21, 2016 and filed an application on June 16, 2017. Respondents opposed application on the basis that the applicant has not proven it has a cause of action with a reasonable chance of success. Application dismissed.

Paterson et al. v. Walker et al., 2021 MBQB 172 : Application for judicial review. Statement of claim was issued in August 2013. Dispute concerns the development of a lot at Falcon Lake; four main issues to be reviewed. Application for review concerns the plaintiffs’ complaints with the defendants’ regulatory decision making. Standard of review is reasonableness as set out in Vavilov. Consideration of The Provincial Parks Act, C.C.S.M. c. P20 and the Parks Activities Regulation, no. 141/96, as well as The Cottager’s Handbook, 3rd ed. Edmond, J. denies plaintiffs’ application to quash the site plan permit; finds the decision to issue a retroactive variance was reasonable; quashes a decision of the province not requiring defendants (Walkers) to comply with a 2018 order; and last order requiring the Walkers to reduce their development footprint by 244 square feet is reasonable. Divided success on the application; costs remain in the cause.

Sarrasin v. Sokal, 2021 MBQB 171: Defendant’s motion to strike statement of claim of plaintiff without leave to amend. Plaintiff filed a claim of the following torts: defamation, malicious prosecution, and workplace harassment. Parties worked together at Canada Post and were active union members. Analysis of Queen’s Bench rule 25.06(1) and 25.11(1). Keyser, J. found that the claim must be struck in its entirety.

Wilde et al. v. The Rural Municipality of Taché et al., 2021 MBQB 166: Application seeking leave for an extension of time to bring an action under The Limitations of Actions Act. Issue is over the design and construction of the applicants’ residence. Contract to build home was signed in 2007 and applicants moved in in 2008. Significant defects were not discovered until 2018. Analysis of s.20(2), (3) and (4) of the LAA. McCawley, J. found that the parties should have known all material facts more than 12 months before seeking leave to being their action. Application dismissed.

Erika Chamberlain. Case Annotation: Caplan v. Atas, (2021) 71 C.C.L.T. (4th) 124). (WLNC – request a copy.) “This remarkable case continues the recent trend in Ontario of recognizing new intentional torts: intrusion on seclusion, public disclosure of private embarrassing facts, and publicity placing the plaintiff in a false light. All of these, but especially the last two, respond to the potential for defendants to inflict serious reputational harm and mental distress on plaintiffs by posting false, misleading, intimate, or humiliating matters on the internet.”

Cindy Kou. Barring New Bids from Contractors Who Have Made Claims Against Municipal Owners, (2021) 8 C.L.R. (5th) 170. (WLNC – request a copy.) “May municipal owners exclude bids from contractors who have previously sued the owners? Would it be unconstitutional or contrary to public policy for a municipality to do so?”


Criminal Law

R. v. Hjorleifson, 2021 MBCA 69: Accused seeks leave to appeal his conviction for one count of assault and one count of uttering threats. Accused and victim were involved in divorce proceedings. Leave to appeal can only be granted on questions of law. Accused raised several grounds of appeal, but only one, inffective assistance of counsel, was a question of law. Appeal allowed on this ground only.

R. v. Letkeman, 2021 MBCA 68: Appeal by Crown of non-custodial sentence given to an RCMP officer for criminal negligence causing bodily harm. Offence was committed while accused was following a vehicle he suspected was being operated by an impaired driver. Passenger in the vehicle suffered severe and lifelong injuries. Court of Appeal found that the trial judge made errors in principle, leading to the imposition of an unfit sentence (para. 58). New sentence includes a three month period of incarceration (stayed). Burnett, J.A., in dissent, would have sentenced the accused to 36 months incarceration (para. 159).

Anderson (Re), 2021 MBPC 38: Inquest under The Fatality Inquiries Act re Kevin Anderson. Death was caused by a train derailment. Mr. Anderson was the conductor. Track collapsed as the train travelled over it due to the wash out of the roadbed surface. Transportation Safety Board report summarized all the facts of the event and made several recommendations. Chief Medical Examiner directed the Chief Judge to call an inquest. Issues are 1) the respective roles of the Inquest Judge and the CME in setting the scope of an inquest; and 2) is the derailment a circumstance in which Mr. Anderson’s death occurred must be further investigated.

R. v. Hooke; Plamandon, 2021 MBPC 34: Sentencing decision re conviction for the interprovincial transport of stolen restricted firearms. Several severe aggravating factors applicable to both accused. Mr. Hooke has some mitigating factors while Mr. Plamandon has very few. Sentencing centers on the moral culpability of the offenders.

R. v. Graham, 2021 MBPC 33: Motion to have charges for a sexual assault stayed due to delay. Charges were laid 10 years ago and accused was not arrested until 2019 despite the RCMP being aware of his location in 2012 and 2014. Accused caused some delay by fleeing Thompson, but the Crown and RCMP are also responsible for some. Total delay from charge to trial is 10 years and 3 months; net delay is over eight years. Cawley, P.J. stayed the charge.

Michelle I. Bertrand, David Ireland, Richard Jochelson and Kathleen Kerr-Donohue. Dispensing Digital Justice: COVID-19, Courts and the Potentially Diminishing Role of Jury Trials. The Annual Review of Interdisciplinary Justice Research, Vol. 10, 2021.


Family Law

G.R.M. et al. v. The Director of Child and Family Services et al., 2021 MBQB 182: Defendants appeal decision of Master dismissing motion to strike out the plaintiffs’ statement of claim on the basis that it is an abuse of process. Appeal from a decision of a master is a fresh hearing. Issue is over apprehension of a child by the defendant. Appeal dismissed.

Chapman v. Russell et al., 2021 MBQB 173 : Application by grandmother for guardianship under The Child and Family Services Act, s.77, as well as interim child support. Child is now 17 and has lived with grandmother for several years. Father lives in B.C. Grandmother’s motion included a request for financial disclosure. Order by MacPhail, J. that father’s income be imputed at $150,000 and that be used to determine his child support obligation pursuant to the B.C. Table.

Smith v. Smith, 2021 MBQB 169: Written reasons of the terms of a Final Order for relief corollary to a divorce that had been previously pronounced. Property issues had been settled. Child custody, support and spousal support to be settled by summary judgment. Analysis of application of current case law to a “parenting order”. Parties reached a settlement on custody issues and relocation via an interim order. Children were apprehended by CFS in Ontario; new order for custody filed by summary judgment. Johnston, J. finds that summary judgment is an appropriate method for a fair and just determination of the matter (para 27).

Barb Cotton and Christine Silverberg. Recent Alberta cases illustrate child support obligations of stepparent. The Lawyer’s Daily, 31 August 2021. Case comment re Friesen v. Friesen, 2020 ABQB 103 and Nyereyegona v. Schofield, 2021 ABQB 662.


Labour and Employment Law

Wardrop v. Ericsson Canada Inc., 2021 MBQB 183: Motion by defendant seeking an order to stay the action in favour of arbitration. Defendant (employer) argues that the parties had an agreement to arbitrate the issue in dispute and thus the court has no jurisdiction. Plaintiff was terminated, given working notice and 78 weeks severance. Issue is whether Sales Incentive Plan payments should be included in his severance. Discussion of the “competence-competence principle” and significant analysis of when the court has discretion to retain jurisdiction and validity of agreement to arbitrate. Rempel, J. grants employer’s motion for a stay of the action commenced by the plaintiff.

People Corporation v. Mansbridge, 2021 MBQB 170: Motion for injunctive relief. Plaintiff seeks an interim, interlocutory and permanent injunction from defendant using plaintiff’s contacts to solicit business. Analysis of the test for granting an interlocutory injunction in the case of restrictive covenants in an employment contract. Harris, J. finds plaintiff has not established a strong prima facie case, as set out in the test in RJR-MacDonald.


Wills, Trusts & Estates

The Estate of William Alfred Kirkup, 2021 MBQB 184: Reference re passing of accounts in case where respondent acted as attorney for deceased prior to his death but there was no power of attorney document. Respondent ordered to account for all money received and disbursed while the deceased was incompetent and incapable of managing his affairs but there are no or very few receipts. Bank statements do not cover the entire period. Sr. Master Clearwater is unable to determine a reasonable opening inventory for the estate or a reasonable closing inventory. Parties agree on some expenses and others are excluded. C. David Freedman. Conflicts when Acting as Trustee and Lawyer. 40 Est. Tr. & Pensions J. 347. (Request a copy.)

Legislation


Federal

August 15, 2021

Her Excellency the Governor General, at the recommendation of the Prime Minister, issued a proclamation to dissolve the 43rd Parliament.
For more information, please consult the section entitled “Dissolution” in Our Procedure.

The general election will be held on Monday, September 20, 2021.


Provincial

The House adjourned on June 1, 2021.

The 3rd Session of the 42nd Legislature will reconvene on Wednesday, October 6, 2021 at 1:30 p.m.


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