eLex October 2021

Table of Contents

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

News


In the News

The Open Court Principle and Privacy: A New Frontier? Case comment on Sherman Estate v. Donovan2021 SCC 25. When do exceptional circumstances justify restriction on the open courts principle. 

Events

Understanding legal project management

In this 60 minute webinar, our speakers will focus on the key drivers and trends in legal project management.

In the webinar, our speakers will consider:
– Best practices for LPM to better manage client portfolios and matters.
– Examples of practice areas where LPM is being applied successfully (i.e. complex litigation, transactions).
– How does having an LPM function add value to clients and help law firms gain competitive advantage?

Law and Disability in Canada

Professors Ruby Dhand and David Ireland, two of the authors of ‘Law and Disability in Canada: Cases and Materials’, available now on the LexisNexis Canada Bookstore, will be presenting a live interactive webinar discussing selected topics from their book including access to justice for people with mental health disabilities and addiction, and disability in the criminal justice system.

A General Overview of Overview of Various Insolvency and Restructuring Options for Small and Medium Sized Businesses

DATE: Tuesday, October 26, 2021
Time:  12:00 Noon – 1:30pm
Location: Zoom Video Conference
TOPIC: A general overview of various insolvency and restructuring options for small and medium sized businesses
SPEAKERS: Rick Schwartz, Partner, Tapper Cuddy LLP
Ross McFadyen, Partner, Thompson Dorfman Sweatman LLP 
John Fritz, trustee, Deloitte


Court Notices & Practice Directions

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

Federal Court

Notice To The Parties And The Profession

Court of Appeal

Notices

Court of Queen’s Bench

Notices

Provincial Court

Notices


Discipline Digests

Discipline Decision – BADOHAL, Chaman

New Library Resources

New in Print

The 2022 Annotated Tremeear’s Criminal Code

New in the 2022 edition:
The 2022 Annotated Tremeear’s Criminal Code features all the latest legislative amendments, including those introduced by the following:

  • An Act to amend the Criminal Code (medical assistance in dying), S.C. 2021, c. 2 (former Bill C-7)
  • The Canada – United States – Mexico Agreement Implementation Act, S.C. 2020, c. 1 (former Bill C-4)
  • Canada Regulation 2021-44 – amending the Controlled Drugs and Substances Act

Martin’s Annual Criminal Code, 2022 Edition

Whats New in this edition:

  • Ahmad v. R., 2020 SCC 11 – The Supreme Court of Canada held that, where police call a number suspected to be connected to a crime, they cannot offer an opportunity to commit an offence to the person who answers the call without first having formed reasonable suspicion that that person is engaged in criminal activity.
  • Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 – According to the Supreme Court of Canada, s. 12 of the Charter does not protect corporations from cruel and unusual treatment or punishment.
  • R. v. R.V., 2021 SCC 10 – The Crown may seek to reconcile seemingly inconsistent verdicts, such as a conviction for sexual interference coupled with an acquittal for sexual assault charges involving the same event, by establishing a legal error in the jury instructions that had material bearing on the acquittal and not on the conviction, and by showing that the jury did not indeed find the accused both guilty and not guilty of the same conduct.
  • T.J.M. v. R., 2021 SCC 6 – The Supreme Court of Canada held a superior court justice to have jurisdiction to hear and decide an application for judicial interim release brough by a young person in Youth Criminal Justice Act proceedings – such jurisdiction is held concurrently with the judges of the designated youth court of the province.
  • Zora v. R., 2020 SCC 14 – According to the Supreme Court of Canada, the Crown must prove that the accused had breached a condition of an undertaking, recognizance or order knowingly or recklessly – this offence has a subjective mens rea.

New Online Titles

On vLex
National Security Law. Second Edition

National Security Law — 2nd ed. by Craig Forcese and Leah West

National Security Law, 2e, is about the law governing the Canadian state’s response to serious crises — that is, events that jeopardize its national security. The book approaches national security law as a system, organizing its discussion of law around five themes: structure (the mandate and roles of national security agencies); threats (aggression, terrorism, interference, proliferation, and emergencies); information (domestic and international intelligence collection, sharing, and information secrecy); response (including security screening and assessment, aviation “no fly” listings, passport revocation, immigration detention and removals, peace bonds, preventive detention, threat reduction, defensive and offensive cyber, criminal prosecutions, and use of force); and accountability (national security review).

Given the evolution of Canadian law in these areas, this second edition is a comprehensive rewrite of the first edition, first published in 2007.

Readers may be interested in this primer course on national security law that the authors have created in support of the book.”


Book Reviews

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

Managing Privacy in a Connected World. By Éloïse Gratton & Elisa Hendry. Toronto: LexisNexis Canada, 2020. 488p. Includes bibliographic references and index. ISBN 9780433503651 (softcover) $190.00. 

Reviewed by Stef Alexandru

Managing Privacy in a Connected World expertly ties together privacy and emerging practice areas with technologies that are shaping our environment. In recent years, privacy law has developed and extended into new and exciting areas like artificial intelligence, blockchain, the Internet of Things, and smart and connected devices. Although this book has a wide scope in considering a variety of existing and developing legal issues interrelated with privacy, it masterfully captures the essence of each issue.”

Substantive Law


Administrative Law

Cann v. Fort Garry/River Heights (Director), 2021 MBCA 75: Appeal of an order of the Social Services Appeal Board, where the appellant’s benefits were clawed back after he received a payment under the CERB program. Issue is whether the payment should be considered “earned income” or a “liquid asset”. Receivers of income assistance can receive up to $4,000 in the form of liquid assets. Appeal allowed.

Haile v. The Workers Compensation Board of Manitoba et al., 2021 MBQB 192: Application for judicial review of decision denying applicant’s claim for benefits beyond January 11, 2016. Applicant suffered a workplace injury on January 6, 2016 and returned to work January 11. Appeal Commission determined she had materially recovered by the time she returned to work. Standard of review is reasonable; issue is whether the Appeal Commission’s decision that the applicant’s difficulties were not the result of her workplace injury was reasonable. Reminder that the court’s role is to review the Appeal Commission’s reasons not to decide the issue itself. Application dismissed.

Paul Daly. The Shaky Foundations of the Supreme Court of Canada’s Public/Private Divide: Chartier v. Métis Nation, Saskatchewan – 2021 MBQB 142. Administrative Law Matters, published September 8, 2021, viewed September 9, 2021.

“In a series of recent decisions, the Supreme Court of Canada has erected a divide between public and private law. First, judicial review of private organizations was restricted in Wall … , a restriction subsequently extended to judicial enforcement of private organizations’ constitutive documents in Aga …”


Civil Litigation

Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33: Issue of whether the court retains jurisdiction to reconsider publication ban orders after merits of criminal proceedings decided. A publication ban had been placed on an affidavit filed in a criminal matter before the court of appeal pending a decision as to its admissibility as new evidence. CA dismissed the motion for new evidence but ordered that the publication ban remain in effect indefinitely. CBC brought a motion to set aside the publication ban; CA declined to hear the motion citing functus officio.

Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.: The Court of Appeal had jurisdiction to consider the CBC’s motion to set aside the publication ban. While the court could not rehear the appeal on the merits and while the doctrine of functus officio precluded it from reconsidering the substance of the appeal, the court retained the authority to supervise access to the record of its own proceeding, which allowed it to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed.

Per Abella J. (dissenting): The appeals should be dismissed. The CBC is not entitled to reconsideration of the publication ban as a result of its undue and unjustified delay.

Wolfe et al v. Taylor et al, 2021 MBCA 72 : Chambers motion re appeal of dismissal of motion for leave to commence a claim in negligence and breach of fiduciary duty. Liquidator seeks an order for security for costs on the appeal and an order requiring the appellants to pay the costs awarded against them before prosecuting the appeal. Parties have been involved in proceedings since 2017, over sale of two parcels of land to another party. Motion for security order granted; motion for an order to pay the awarded costs dismissed.

Shinoff v. The Province of Manitoba et al, 2021 MBCA 73: Appeal of dismissal of statement of claim by summary judgement. Plaintiff alleged defendants were vicariously liable for the care she received in foster care between 1966 and 1969. Court of Appeal agreed with motion judge in applying K.L.B. v. British Columbia, 2003 SCC 51 (paras 18-17), and following the legislation in place at the time. Court left to another day whether the claims of negligence were statute-barred under The Limitation of Actions Act.

Owen v. Little Grand Rapids First Nation et al, 2021 MBQB 201: Motion by plaintiff to strike statements of defence without leave to amend on the basis that neither discloses a reasonable defence. Issue involves dismissal of councillor by band when band didn’t have the authority to dismiss him. Master Goldenberg finds some parts of the defence must be struck and allows defendants to amend statement.

52000 Manitoba Ltd. and 4472048 Manitoba Ltd. v. 5806497 Manitoba Ltd. et al, 2021 MBQB 194: Motions by plaintiffs for summary judgment re statement of claim against defendant; motion by defendant for summary judgment dismissing the actions; motion for order by plaintiffs striking out a portion of an affidavit. McKelvey, J. dismissed all motions.

[43]      I am not satisfied that a fair and just adjudication is possible on a summary basis.  There are genuine issues requiring a trial which have not been resolved through these proceedings.

Widmer v. Scott, 2021 MBQB 193: Action by lawyer for payment of legal fees. Defendants do not dispute that tasks on the bills were done, they simply refused to pay. Action succeeds for plaintiff under summary judgment, although request for charging order against several properties of the defendants was denied.


Constitutional Law

Richard D. Lindgren. Annotation to: References re Greenhouse Gas Pollution Pricing Act, (2021) 39 C.E.L.R. (4th) 454. (WLNC – request a copy).

The majority opinion of the Court concludes that the “national concern” branch of Parliament’s “peace, order and good government” (POGG) power under s. 91 of the Constitution Act, 18672 provides the constitutional basis of the GGPPA. (2021 SCC 11).

Criminal Law

R. v. K.G.P., 2021 MBCA 79: Appeal by accused of conviction for sexual assault. Victim has significant mental health issues, including a dissociative identity disorder. Accused was aware of her condition. Trial judge rejected accused’s defence of an honest but mistaken belief in consent. Court of Appeal decides there is no basis for appellate intervention. Appeal dismissed.

R. v. Burg and Khan, 2021 MBCA 77: Whether the Crown’s preferring a direct indictment violated the rights of the accused under s.7 or 11(b) of the Charter. Accused basing their position on Jordan. They argue that the direct indictment was for the sole purpose of moving the case from Provincial Court to the Court of Queen’s Bench, thus giving the Crown a longer period of time to prepare for the trial. Appeals dismissed.

R. v. Lariviere, 2021 MBCA 76: Appeal of conviction for sexual assault, making child pornography and extortion. Appeal turns on standard of appellate review in relation to findings of credibility. Only ground of appeal of sufficient merit is submission that the trial judge improperly drew an adverse inference because the accused failed to pursue or call corroborative evidence. Appeal dismissed.

R. v. Onakpoya aka Kerrhs, 2021 MBCA 74: Appeal of motion by accused to quash a direct indictment on a charge of aggravated assault and have proceedings dismissed or remitted back to Provincial Court for a preliminary inquiry. Crown applied to quash the notice of appeal on the basis that this Court has no jurisdiction to hear the appeal because it is from an interlocutory decision. Court agrees with Crown; appeal dismissed.

R. v. R.W., 2021 MBCA 71: Accused seeks leave to appeal and, if granted, appeals sentence imposed following conviction for two counts of sexual interference. Accused asserts trial judge erred in the application of the principle of totality. Standard of review is deferential. Court followed the test set out in R. v. Draper, 2010 MBCA 35 (para 30). Court found that trial judge erred in the application of the principle of totality, but not so much that the sentence was unfit. Leave granted, but appeal dismissed.

R. v. Devos, 2021 MBQB 189: Trial for charges of impaired driving causing death, dangerous driving causing death, and driving over .08. Accused had a graduated licence prohibiting him from driving with any blood alcohol. He drove his truck around a field, it fishtailed and rolled over. Driver was wearing a seatbelt, passenger was not. Passenger died. Discussion of “bolus drinking”. Accused found guilty of impaired driving casuing death, dangerous driving causing death, and not guilty of driving over .08.

R. v. D.A.B., 2021 MBQB 185: Trial of sexual assault causing bodily harm. Accused has a different version of events, and says that the complainant consented. Issues turn on credibility of the parties. Greenberg, J. use the framework of W.(D.) to analyze the evidence. Accused found not guilty.

R. v. Oke, 2021 MBPC 39: Sentencing decision re use of excessive force by RCMP in arrest of Indigenous man. Accused pled guilty. Issue is appropriate sentence for offender and the offence, an assault against a vulnerable person. Analysis of authorities for sentencing a police officer. Thompson, P.J. sentences the accused to a conditional discharge with supervised probation.

Nicole M. Myers and David Ireland. Unpacking Manitoba Bail Practices: Systemic Discrimination, Conditions of Release and the Potential to Reduce the Remand Population. (2021) 69 C.L.Q. 26 (WLNC  – request a copy.)

In Manitoba, 68.9% of the provincial jail population is in pre-trial detention. While Manitoba is not alone in having a pre-trial detention population that exceeds the provincially sentenced population, this is the highest proportion in the country. Using data collected from bail court observations in Manitoba, we examine routine bail practices and the implications of current bail trends.

Paul L. Moreau. “Trouble for Starting Points?”, (2021) 68 C.R. (7th) 129. (WLNC – request a copy.)

In the recent decision of R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada has again grappled with the thorny issue of starting points in sentencing. This has long been a point of friction, particularly with the Alberta Court of Appeal, who has been the leading advocates for this type of appellate guidance since at least 1982.


Family Law

Walshe v. Walshe, 2021 MBQB 197: Reference order for an accounting with respect to disputed assets and liabilities. Parties own a construction business. Dispute over value of business at time of separation. Husband’s net worth statement is not accepted and accuracy of statement wife relies on is questionable. Detailed analysis of how the master arrived at the accounting.

L.L.L. and C.A.L. v. L.M.S. and R.J.M., 2021 MBPC 42: Costs decision over a guardianship application. Respondent, who was successful, takes the position he should have his costs. Applicants believe each party should bear their own costs. Provincial Court rules provide that Queen’s Bench Rules (57.01) are applicable in the Provincial Court (Family Division). Citing Gabb v. Gabb, 2001 MBCA 19, Wiebe, C.J. finds costs award to R.J.M.

M.G. v. The Director of Child and Family Services, 2021 MBPC 40: Application by the Agency compelling police to disclose records relating to an investigation of historic allegations against M.G. prior to him reaching adulthood. M.G. opposes, his right to privacy should take priority over Agency’s interest in his records. M.G. has an upcoming child abuse registry hearing. Parties agree that records held under the YCJA are generally not disclosable. Issues (para. 5): What constitutes the record being sought? How should the records be classified? Are the records disclosable based on how they are classified? Rolston, P.J. finds the records are not disclosable.

Chantal Cattermole and Abigail Choi. Can surrogate have parenting time with child?, The Lawyer’s Daily, Sep. 15, 2021. Case comment on K.B. v. M.S.B., 2021 BCSC 1283.


Wills, Trusts & Estates

McLeod Estate v. Cole et al., 2021 MBCA 80 : Chambers motion by plaintiffs for leave to file a 43-page factum. Court of Appeal rules sets a 30 page limit for a factum although Rule 29(3) provides judicial discretion to deal with factums of an excessive length. Plaintiffs’ notice of appeal notes 17 grounds of appeal. Mainella, J.A. outlines the principles to exercising discretion as to whether to grant leave to file a lengthier factum. Motion dismissed.

Legislation


Federal

Results of the Monday, September 20, 2021, general election will remain unofficial until the Chief Electoral Officer has confirmed the name of the member of Parliament elected in each constituency.

The expected date for the return of the election writs is Monday, October 11, 2021.

Federal justice agenda features bills which died in last Parliament, many Liberal election pledges – Lawyer’s Daily


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.

News Release – Province Announces New Regulations To Support Remote Witnessing And Commissioning Options

“Bill 42, the Remote Witnessing and Commissioning Act, which became law in December 2020, amended the six statutes included in the temporary order and enabled alternatives to physical attendance on a permanent rather than temporary basis.

The new regulations establish processes for the use of videoconferencing as an alternative to in-person attendance when witnessing and commissioning certain legal documents.”

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