eLex November 2021

by Karen Sawatzky | Nov 8, 2021 | eLex

Table of Contents

News

In the News

Law Court Main Entrance Now Open

Lawyers and the public can now use the main entrance located at 408 York Avenue. The new entrance provides better accessibility, signage, and improved security screening areas. Please note that current COVID-19 protocols limit access to Manitoba court buildings to those dealing with court matters.

Manitoba Government making changes to Family Maintenance Act to include parentage legislation for children conceived through assisted reproduction.

First criminal conviction for forcibly coughing on someone with the intention of spreading COVID-19 has been decided in Alberta Provincial Court.

Notices

Court Notices & Practice Directions

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

Court of Appeal

October 1, 2021 – Leave Required for  most Interlocutory Appeals

Court of Queen’s Bench

COVID-19 Notice – No Need to Self-Isolate for Fully Vaccinated Out of Province Parties or Witnesses (October 20, 2021)

Provincial Court

• Notice – Resumption of Judicial Justice of the Peace dockets in the communities of Split Lake, Oxford House, Shamattawa, Gods Lake, Cross Lake, Norway House and Nelson House (October 6, 2021)
• Notice – Resumption of Judicial Justice of the Peace dockets in the communities of Split Lake, Oxford House, Shamattawa, Gods Lake, Cross Lake, Norway House and Nelson House (October 1, 2021)

Discipline Digests

Decision – PURVIS, Darcy Frederick

Decisions – WEBB, Karen Lee

New Library Resources

New Online Titles

From vLEX

The Federal Court of Appeal and the Federal Court: 50 Years of History

A new eBook celebrating the 50th anniversary of the Federal Court of Appeal has been added to our online Irwin Law Collection on vLex.

“This book was prepared for the celebration of the fiftieth anniversary of the Federal Courts in 2021. Seventy-eight current and retired judges and prothonotaries on the two courts were interviewed and are referred to throughout the book. The authors present a brief history of these courts and their predecessor — the Exchequer Court of Canada — and an overview of the courts’ jurisdiction, decision-making trends, and unique attributes. There are chapters on each of the courts’ specialties — administrative law, immigration and refugee law, intellectual property, security and intelligence, Indigenous issues, the environment, admiralty, labour and human rights, and tax.”

From Heinonline

“HeinOnline has made a special arrangement with Edward Elgar Publishing to offer comprehensive coverage of selected Elgar legal journals. 12 Elgar titles have been added to HeinOnline’s Law Journal Library with a three-year embargo.”

This collection has already had new journals added to it including Competition Law & Policy Debate, Renewable Energy Law and Policy Review, and European Energy & Climate Journal

Book Reviews

Review taken from the Canadian Law Library Review Volume 46, No. 3

By the Court: Anonymous Judgments at the Supreme Court of Canada. By Peter McCormick and Marc D Zanoni. Vancouver: UBC Press, 2019. xv, 252p. Includes bibliographic references and index. ISBN 9780774861717 (hardcover) $89.95. ISBN 9780774861724 (softcover) $32.95. ISBN 9780774861748 (EPUB) $32.95. ISBN 9780774861731 (PDF) $32.95.

Reviewed by Ann Marie Melvie

“Marc D Zanoni, with Peter McCormack as his thesis
supervisor, was working on a Master of Arts degree in
political science at the University of Lethbridge. Zanoni’s
thesis topic involved “an examination of the Supreme Court
of Canada’s By the Court decisions—those decisions that
are not attributed to any specific individual but mysteriously
and cryptically to the Court” (p xi). During his literature
review, Zanoni was surprised to discover that there was no
academic literature on the topic! There were no books, no
articles, and no “focused discussion” of the phenomenon.
After various twists, turns, and discoveries in the research
process, Zanoni and McCormick ended up writing this book,
a well-researched exploration of By the Court decisions of
the Supreme Court of Canada (SCC).”

Click here for the full review

Events

2021 Isaac Pitblado Lectures: A Shot in the Arm – Can We Achieve Client Immunity in Contract Law? – November 26, 2021

Jointly presented by The Law Society of Manitoba,
the Manitoba Bar Association and the University of Manitoba, Faculty of Law

Whether you graduated in this century or the last, contract law has changed since you were in law school. The 2021 Pitblado Lectures will provide a comprehensive update on an array of contracts topics. From the rights and obligations arising from the duty of good faith, to the validity of e-signatures, to what an international arbitration clause really means for your client, the sessions will offer thought-provoking discussion and useful take-aways. The Lectures will also address COVID-related concerns, particularly in the employment law context, as we start to move out of the pandemic.

Please join us for a day all about contract law updates with a focus on issues that will be of particular interest to anyone with a solicitor’s practice.

For more information, please visit the 2021 Pitblado Lectures website.

Click here to register.

View our full calendar for more upcoming events

Substantive Law

Administrative Law

Lall v. Manitoba Public Insurance Corporation et al, 2021 MBCA 89: Appellant seeks leave to appeal decision of AICAC declining to extend 90 day time limit for filing appeal. Decision of internal reviewing officer was issued in May 2016. Notice of appeal filed in April 2020. Explanation of delay included difficulty navigating the process. After reviewing her medical file, appellant realized the reviewing officer was missing a relevant document.

The Law Society of Manitoba v. Brian A. Langford, 2021 MBCA 87: Appeal from conviction by Discipline Committee and penalty of disbarment. Appellant has statutory right to appeal. Standard of review as described in Housen v. Nikolaisen, Vavilov, and Histed v. Law Society of Manitoba at para. 34-37. Pfeutzner, J.A. found no merit to the appeal. 

Waraich v. Director of Employment Standards, 2021 MBCA 82: Question of issue estoppel in a civil proceeding as a result of a decision in a prior administrative proceeding. This is a dispute over unpaid wages, where an employment standards officer found the “employer” was the claimant in her personal capacity as opposed to a corporation. There were five orders in total, two of which were appealed and resolved through mediation. The other three were never appealed, and the Director filed the orders which then became an enforceable judgment. The Director garnished funds from the claimant’s personal bank account to satisfy the judgment. Claimant then commenced a claim under The Court of Queen’s Bench Small Claims Practices Act and was successful. Question being decided in the civil claim was the same as the administrative proceeding under The Employment Standards Code. Appeal allowed.

Manitoba Public Insurance Corporation v. The City of Winnipeg, 2021 MBQB 212: Appeal of decision by respondent designating a property owned by the applicant as a historical resource. Applicant’s position claims that as an agent of the Crown its assets can’t be bound. Respondent accepts this position but submits that the court should dismiss the matter. Issue is a question of law. Appeal allowed.

Bankruptcy Law

Wolfe et al. v. Taylor et al., 2021 MBCA 83 : Appeal of decision related to the validity and amount of intercompany debt as found by the liquidator. Appellant alleges that the liquidation judge erred in approving the intercompany debt. Two issues to be determined: Should there be a full hearing with an in-depth audit; and how to resolve the intercompany debt issue. Appeal dismissed.

The Bankruptcy of Steven Otto Galloway, 2021 MBQB 213: Application for discharge from bankruptcy opposed by Trustee and OSB on basis applicant has not accurately disclosed his income. Bankrupt acknowledged that he did not provide information on a monthly basis but indicated there was a change in his trustee part way through and he didn’t understand he was obligated to do so. He also disagrees with the OSB estimate of his income. Registrar finds he did not adequately report his income, makes his discharge conditional upon payment of $5,000 to the Trustee and suspended his discharge for six months.

Civil Litigation

Nelson (City) v. Marchi, 2021 SCC 41: Plaintiff was injured climbing over a snowbank left by municipality’s snow-clearing efforts. She sued city for negligence; trial judge dismissed her claim. Court of Appeal concluded trial judge erred and ordered a new trial. Appeal dismissed. Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Martin and Kasirer JJ.

[5]  We agree with the Court of Appeal that the trial judge erred on all three conclusions. On duty of care, the relevant City decision was not a core policy decision immune from negligence liability. The City therefore owed Ms. Marchi a duty of care. On standard of care and causation, the trial judge’s analysis was tainted by legal errors. As key factual findings are required, this Court is not well placed to determine the standard of care and causation issues. We would therefore dismiss the appeal and order a new trial in accordance with these reasons.

6362222 Canada Inc. v. Prelco Inc., 2021 SCC 39: Issue over doctrine of breach of fundamental obligation in a contract: Is a non-liability clause in a contract valid in respect of a breach of fundamental obligation in Quebec civil law? Wagner C.J. and Kasirer J. (Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe and Martin JJ. concurring).

[4] Although the Court of Appeal was right to refer to public order and absence of a cause in support of its analysis of the validity of the clause at issue, we nonetheless conclude that the appeal should be allowed. Respectfully stated, neither of the legal bases for the doctrine suffices to negate the non‑liability clause to which the parties freely consented in the case at bar, as neither public order nor the non‑existence of the obligation can be successfully argued in this appeal.

Lall v. Manitoba Public Insurance Corporation et al, 2021 MBCA 89: Appellant seeks leave to appeal decision of AICAC declining to extend 90 day time limit for filing appeal. Decision of internal reviewing officer was issued in May 2016. Notice of appeal filed in April 2020. Explanation of delay included difficulty navigating the process. After reviewing her medical file, appellant realized the reviewing officer was missing a relevant document. Lemaistre, J.A. concluded appellant has not demonstrated an arguable case requiring a more thorough examination; appeal dismissed.

Sagkeeng v. Government of Manitoba et al., 2021 MBCA 88: Issues related to a government’s duty to consult and accommodate in relation to Aboriginal and treaty rights under s.35 of the Constitution Act, 1982. Appellant Sagkeeng is appealing dismissal of its application for judicial review of the decision to grant a license authorizing Manitoba Hydro to construct a transmission line crossing Treaty 1 land. Application judge dismissed on the basis that there was an adequate alternative remedy. Discussion and analysis of the role of an appeal to the Lieutenant Governor in Council as a remedy. Appeal dismissed.

Royal Bank of Canada v. Pauls, 2021 MBCA 86: Appeal by defendant of summary judgment re outstanding principal and interest owed to the plaintiff under a line of credit and credit card. Defendant entered into contracts with the plaintiff but disputed changes to interest rates based on not receiving sufficient notice. Motion judge agreed, and granted summary judgment to the plaintiff for the amounts claimed less the increased interest charged during the period of insufficient notice. Appeal dismissed.

Rutherford v. Wiens, 2021 MBCA 84: Appeal of 2020 MBQB 35 re medical malpractice. Should the trial judge have determined the cause in fact of the injury to the plaintiff before deciding if there had been a breach of the standard of care? Issue of whether the rarity of a resulting injury factors in to a finding of negligence. Discussion of the elements of a negligence claim under the “traditional approach” (para 25) and exceptions to it (e.g. Armstrong v. Royal Victoria Hospital). Burnett and leMaistre, J.J.A. dismiss the appeal, Monnin, J.A. in dissent.

Green v. Bell et al, 2021 MBCA 81: Chambers motion seeking leave to appeal a decision of summary judgment granted to defendants dismissing plaintiff’s statement of claim. Plaintiff was prohibited from continuing proceedings unless he obtained leave from a justice of the Court of Appeal. Motion denied.

Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219: Challenge to constitutionality of Emergency Public Health Orders restricting public gatherings, gatherings in private residences and temporary closure of places of worship. Applicants contend these infringe ss. 2(a), 2(b), 2(c), 7 and 15 of the Charter. See paragraph 24 and for description of determinations and paragraph 361 for conclusions. Application dismissed.

Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 218: Challenge to constitutionality of Emergency Public Health Orders made addressing the public health threat of COVID-19. This application seeks a declaration that ss. 13 and 67 of the PHA violate an unwritten constitutional principle that only the legislative assembly can make laws of general application. Joyal, C.J.Q.B. determines that the statutory delegation is constitutional. Applicants challenge is dismissed.

Evanson v. Fort La Bosse School et al., 2021 MBQB 216 : Action in negligence re injury to plaintiff. Issue is visibility through door commonly used by students and teachers. Door must be unlocked with a key from the outside, but can be opened by pushing a crash bar from the inside. Liability is placed only on school division. Damages of just under $80,000 awarded.

Business Development Bank of Canada v. 5809836 Manitoba Ltd. et al., 2021 MBQB 211: Motion for summary judgment over guaranteed repayment of a loan. Defendant claims that plaintiff failed to follow its own lending procedures. Perlmutter, A.C.J.Q.B. finds that under the terms of the agreement, plaintiff has discretion to advance funds. In this case, exceptional circumstances that can give rise to a duty by a lender do not exist (para 13). Motion granted.

Loeppky et al. v. Taylor McCaffrey LLP et al., 2021 MBQB 208 : Issue of duty of care of lawyer in a business transaction. Plaintiff received independent legal advice in transaction involving purchase and sale of shares with insufficient security. Conflict over whether plaintiff was advised of the possibility of loss. All claims dismissed.

McIvor v. Dakota Tipi First Nation, 2021 MBQB 206: Motion for summary judgment in an action for breach of contract and damages. Parties had an agreement to share a rebate for the sale of tobacco on Dakota Tipi First Nation. They entered into a new agreement which expressly provided that it is subject to approval by a band council resolution which was never enacted. Defendant stopped paying the plantiff his share. Toews, J. finds it is not an appropriate case for summary judgment. Parties are ordered to amend their pleadings prior to all issues being referred to trial.

Bonnefield Canadian Farmland Evergreen LP v. Fat Cat Farms Ltd., 2021 MBQB 202: Action for unpaid rent and damages. Dispute is over amount plaintiff is claiming to rectify the condition of the property so it could be leased again. Defendant counterclaims that plaintiff breached its obligations under the lease. McCawley, J. found for the plaintiff.

Supreme Advocacy. Exactly When Does the Clock Begin to Run for You to File your Appeal? Court of Appeal Decision of the Week, Oct. 6, 2021. Case comment on Gefen v. Gaertner, 2021 ONCA 631.

Cristin Schmitz. Litigation loan companies not on hook for $3.5-million defence legal costs in class action: court. The Lawyer’s Daily, October 8, 2021. Case comment on Davies v. Clarington (Municipality), 2021 ONSC 6449.

In the first known Canadian ruling on a defence motion for legal costs against non-party lenders who helped fund a plaintiff’s case, an Ontario judge has refused to order four litigation loan companies to pay to the defendants in a personal injury class action a $3.5-million costs award made against the foreign plaintiff who has no assets in Canada.

Constitutional Law

Toronto (City) v. Ontario (Attorney General), 2021 SCC 34: Appeal over the exercise of provincial legislative authority over municipalities: does the constitution restrain a provincial legislature from changing the way municipal councils are elected. Events arose from the Ontario government’s decision to reduce the number of wards in the city of Toronto in the middle of an election campaign. Wagner C.J. and Brown J. (Moldaver, Côté and Rowe JJ. concurring); Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring) in dissent.

[4]  None of these arguments have merit, and we would dismiss the City’s appeal. In our view, the Province acted constitutionally. As to the s. 2(b) claim, the City seeks access to a statutory platform which must be considered under the framework stated in Baier. The change to the ward structure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure in the 69 days between the Act coming into force and the election day. There was no substantial interference with the claimants’ freedom of expression and thus no limitation of s. 2(b).

Criminal Law

R. v. Khill, 2021 SCC 37: Accused was found not guilty in his trial for second degree murder. Court of Appeal overturned his acquittal and ordered a new trial. Omission of accused’s “role in the incident” as a discrete factor in jury charge was a material error. Appeal dismissed. Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ; Moldaver, Brown and Rowe JJ, concurring; Côté J. in dissent.

[5] In the present case, this jury was not instructed to consider the effect of Mr. Khill’s role in this incident on the reasonableness of his response and I am satisfied this was an error of law that had a material bearing on the jury’s verdict.

R. v. J.G.C., 2021 MBQB 221: Accused is charged with several accounts under the Criminal Code, including sexual interference, common assault, and uttering a death threat. Complainants are his former common law partner and her children. Credibility of testimony is crucial. Accused is convicted of some charges and acquitted on others.

R. v. Williams, 2021 MBQB 205: Accused is charged with second degree murder. Sole issue to decide is whether the Crown has proven beyond a reasonable doubt that the accused had the requisite intention for murder. Accused testified and called expert evidence. If accused’s evidence is accepted, then judge must acquit of second degree murder and convict for manslaughter. Evidence must be assessed as a whole and not piecemeal. McCarthy, J. finds that accused was likely suffering from methamphetamine-induced psychosis and lacked the necessary mens rea for murder. He is found guilty of manslaughter.

R. v. Moar, 2021 MBQB 203: Sentencing decision re conviction for second degree murder. Criminal Code calls for a mandatory life sentence. Issue is what period of parole ineligibility should be imposed. Crown asks for 17 years, defence requests 10. Defence notes Gladue factors to take into account, as well as cognitive deficits and lack of impulse control. Grammond J. finds that nature of offence as well as accused’s personal circumstances warrant increased parole ineligibility. She sets it at 15 years.

R. v. Kehler, 2021 MBQB 198: Trial of driver charged with impaired driving and failing to stop at the scene of an accident. Agreed fact that even a sober driver could not have avoided the accident. Analysis of presumption of intent where a driver fails to offer assistance by failing to stop at the scene. Crown must show proof of intent to escape civil or criminal responsibility. Accused found guilty of failure to stop at the scene of an accident, but not guilty of impaired driving.

R. v. Favell, 2021 MBPC 53: Charge of sexual assault and voyeurism with respect to two separate complainants. Motion by accused to sever the counts with respect to each complainant. Crown opposes. Test for determining if severance is required in the interest of justice is articulated in R. v. Last, 2009 SCC 45. Motion granted.

R. v. Perry, 2021 MBPC 52: Impaired driving charge. Accused was asleep across the back seat of a parked motor vehicle with the engine running. Judge found accused’s ability to operate a motor vehicle was impaired by alcohol, and her blood alcohol level exceeded the legal limit, but that she did not have “care or control” of the parked motor vehicle when she was observed by police. Accused acquitted.

R. v. Krywonizka, 2021 MBPC 49: Offender pleaded guilty to six counts of firearms-related offences including the possession of prohibited firearms and the unlawful importing of firearms-related paraphernalia. Crown seeks a global disposition of six years imprisonment; defence concedes that a prison term is warranted but asks that it be of a length that it could be served conditionally in the community. Canvas of previous decisions regarding the sentencing objectives of firearms offences. Conditional sentence appropriate.

R. v. Harper, 2021 MBPC 47: Sentencing decision for conviction of residential break and enter, assault and possession of a weapon (bear spray). Gladue principles involved. Discussion of purpose of sentencing and effect on Indigenous people, as well as proportionality. Crown seeks five years in a penitentiary; defence seeks three years plus probation. Both counsel agree custodial sentence should be reduced by time accused has been in custody on remand. Devine, P.J. sentences him to a three year custodial sentence followed by a period of probation.

R. v. Kipling, 2021 MBPC 46: Sentencing decision for conviction after trial of charge of aggravated assault. Accused struck a teenager with a hammer to the back of his head with such force that the claw of the hammer was embedded in his skull. Many aggravating factors, few mitigating factors. Accused is sentenced to a global sentence of 10 years, nine months.

Nathan Baker. Decision addresses “major problem” of sentence disparity in Canada, The Lawyer’s Daily, Sept. 30, 2021. Case comment on R. v. Cabrera, 2021 ABCA 291 for sentence for second degree murder.

Lisa Silver. Who is Responsible for Extreme Intoxication? ABlawg.ca, Oct. 7, 2021. Case comment on R. V. Brown, 2021 ABCA 273, to be heard at the Supreme Court on Nov. 9, 2021.

Family Law

M.R.G.R. v. Kinosao Sipi Minisowin Agency, 2021 MBQB 195: Application opposing entry on Manitoba Child Abuse Registry. Agency received report of possible sexual abuse which was investigated, and the applicant was arrest and charged with sexual interference. Some charges were stayed and he was acquitted of another. The Agency’s Child Abuse Committee decided to proceed to have the applicant’s name entered on the Registry. Petersen, J. found on a balance of probabilities that the applicant accused the child. Application dismissed.

Amanda Jerome. “Serious issues” in dissent infamily case could “inspire” SCC to grant leave to appeal, court finds. The Lawyer’s Daily, October 14, 2021. Case comment on N. v. F., 2021 ONCA 688, relocation of children.

Labour and Employment Law

Northern Regional Health Authority v. Horrocks, 2021 SCC 42: Whether the exclusive jurisdiction of a labour arbitrator appointed under a collective agreement extends to adjudicating human rights disputes arising from a collective agreement. Employee filed a discrimination complaint; employer contested adjudicator’s jurisdiction. On judicial review, reviewing judge found error in essential character of dispute. CA allowed appeal. Wagner C.J. and Abella, Côté, Brown, Rowe and Kasirer JJ; Karakatsanis, J. in dissent.

[5] For the reasons that follow, I find myself in respectful disagreement with the adjudicator and the Court of Appeal. Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed.

Manitoba Federation of Labour et al v. The Government of Manitoba, 2021 MBCA 85: Question of constitutionality of legislation to prevent collective bargaining on wages for a limited period of time (re The Public Services Sustainability Act). Trial judge said unconstitutional; appeal court disagreed. Review of the analytical framework of s.2(d) of The Charter “as it relates to the right to associate in order to collectively pursue workplace goals” (para. 21). Appeal allowed.

Wills, Trusts & Estates

Dickson v. The Humane Society of Canada, 2021 MBQB 200: Motion by executor for advice and direction of the court in distributing residue of estate. One of the charitable organizations gifted in the will lost its charitable status. Issue is whether that beneficiary existed at the time of the Testatrix’s death or if its share should be divided among the other residual beneficiaries. Analysis involves consideration of the subjective intent of the Testatrix. McCawley, J. finds that the Humane Society is no longer a beneficiary.

Legislation

Federal

First Session of the 44th Parliament

A proclamation has been received from Her Excellency the Governor General that summons Parliament to meet for the dispatch of business at 1:00 p.m. ET. on Monday, November 22, 2021.

The election of the Speaker will be the first order of business when the House of Commons meets.

Provincial

The House adjourned on October 14, 2021.

Proclamations