eLex December 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Discipline DigestsCivil LitigationProvincial
New Library ResourcesConstitutional Law 
Book ReviewsCriminal Law 
EventsFamily Law 
 Wills, Trusts & Estates 

News


In the News

Provincial Court appointments – “Province Announces Appointment of Two New Provincial Court Judges” November 18, 2021 – “The Manitoba government has appointed Rachel Rusen and Michael Clark as provincial court judges to serve in Winnipeg.”

Annual ReportsThe Manitoba Court of Appeal (MBCA) has issued its first-ever Annual Report.  It is for the 2019-2020 fiscal year.

News Releases

Province Introduces Amendments To Police Services Act November 29, 2021 – “The Manitoba government is introducing amendments to the Police Services Act that would strengthen the Independent Investigations Unit (IIU) and support greater responsiveness and accountability in policing across the province”

Government Introduces Legislative Amendments That Would Address MMIWG National Inquiry Calls For Justice November 26, 2021 – “The Manitoba government has introduced amendments to the Path to Reconciliation Act that would establish the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) as a key component of the government’s approach to advancing truth and reconciliation”

Manitoba Government Introduces Legislation to Safeguard the Rights of Children November 25, 2021 – “The Manitoba government has introduced legislation that would modernize the Family Maintenance Act by clarifying parentage for children conceived through assisted reproduction with or without surrogacy”

Manitoba Government Will Repeal The Public Services Sustainability Act November 24, 2021 “The Public Services Sustainability Act was introduced and passed in 2017 but was never in force. While the constitutionality of this never-proclaimed legislation raises important issues on the range of legislative tools open to government – as it manages the economic pressures facing all Manitobans – it is now time for a different approach, the minister noted.”

Manitoba Confirms No Appeal in Carbon Tax Case November 17, 2021 – “Manitoba will not be filing an appeal from the recent Federal Court decision on its challenge of Ottawa’s original assessment of the Made-in-Manitoba Climate and Green Plan, Premier Heather Stefanson announced today. Manitoba is developing its policy approach to the new federal legislative and regulatory framework with its Dec. 31, 2022, timeline and looks forward to constructive negotiations over the months ahead, Stefanson noted.”


Discipline Digests

DateNameCase No.DecisionDescription
2021-11-05TAN, Wen Yen (Jazz)2021-07Conduct & ConsequencesBreach of Integrity / Quality of Service
2021-09-28Member A2021-06PardonPardon Application

New Library Resources

New Online Titles

On vLEX
AUTONOMOUS VEHICLES. SELF-DRIVING CARS AND THE LAW OF CANADA  BY NATHAN BAKER IRWIN LAW INC., 2021

“Over the coming decades, the law surrounding motor vehicles is going to go through profound changes as autonomous vehicles become common and issues of law deriving from advances in technology inevitably arise. A new area of law will be needed, and with it, an assessment of how the current law can be adapted. Autonomous Vehicles: Self-Driving Cars and the Law of Canada will serve as a ready resource as courts and litigants begin the journey down this new road.”

DISCRIMINATION STORIES. EXCLUSION, LAW, AND EVERYDAY LIFE  BY COLLEEN SHEPPARD IRWIN LAW INC., 2021

Discrimination Stories: Exclusion, Law, and Everyday Life explores diverse legal cases brought before courts and human rights tribunals to help us understand the development of anti-discrimination law in Canada. Drawing on the complexity and power of discrimination stories, this book is designed to expand our collective knowledge of the evolving legal concepts at the heart of equality law.”


Book Reviews

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

“A strong point of this book is that the cases are all relevant and interesting, and each analysis differs enough from the original opinion. Each rewritten judgment makes enough relevant points that it is easy for readers to wish that they had been the actual decisions.”


Events

Finding & Using Archives in Manitoba December 08 2021, 12:00 pm – 1:30 pm

This session will get participants to “think outside the box” to go beyond the traditional legal information tools and resources (CanLII, Quicklaw, Westlaw, etc.) and will cover the following topics:
– Understanding the basic concepts of “archives” and “records”;
– Identifying various kinds of archival materials or resources that may be useful in legal research;
– Locating reliable and trustworthy sources;
– Benefits of using archives and non-traditional resources.

Please RSVP (PRE-REGISTRATION IS REQUIRED) to the Manitoba Bar Association online at www.cbapd.org.

View our full calendar for more upcoming events

Substantive Law


Administrative Law

Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 : Discrimination claim brough on behalf of a public figure with disability against a professional comedian who mocked some of his physical disabilities. SCC split 5-4. Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ:

[7] In this case, we are of the opinion that the elements of a discrimination claim under the Quebec Charter have not been established. We would therefore allow the appeal.

Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting):

[119] For the reasons that follow, we would dismiss the appeal. The central question is whether the impairment of the equal exercise of the right to dignity is sufficiently serious, or whether it is justified by the comedian’s freedom of expression. In the circumstances of this case, the widely disseminated taunting of a 10 to 13 year‑old disabled child that plays on dehumanizing notions associated with his disability clearly meets this threshold.

Madison Holdings Ltd. v Winnipeg (City of), 2021 MBCA 94: Appeal by City re decision of the Land Value Appraisal Commission for expropriation of the applicant’s business. Issues concern assessment of disturbance damages and how to address the principle of betterment. Detailed analysis of calculation of disturbance damages and compensation for time spent by owner on their involvement in the expropriation. City’s appeal allowed in part, reducing disturbance damages award to give credit for market value of expropriated property and deducting award for owners’ time. Respondent Madison is substantially successful; Spivak, J.A. grants solicitor-client costs.

Ian Mackenzie. Toward a Unified Theory of Administrative Law? Review: Understanding Administrative Law in the Common Law World by Paul Daly. Slaw.ca, as viewed 10 Nov 2021.


Civil Litigation

Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47: Issue of promissory estoppel and waiver by conduct in defending a motor vehicle accident. Insured was killed in a motorcycle accidence. His insurer proceeded to defend his estate in two lawsuits filed by two people injured in the accident. Three years after the accident, the insurer learned that the insured had been drinking just prior to the accident and ceased defending his estate and denied coverage. Trial judge found waiver by conduct and did not consider estoppel argument; found that insurer had waived its right to deny full coverage. Court of Appeal overturned. SCC dismissed the appeal.

Beaulieu et al. v. Winnipeg (City of) et al., 2021 MBCA 93: Motion for admission of further evidence. Analysis of the test for the admissibility of further evidence in civil appeal cases. Issue of conflict of interest when joint defence (city and a police officer) may prefer one party’s interests over the other. Motion dismissed.

Tataskweyak Cree Nation v. Intact Insurance Company, 2021 MBCA 91: Defendant appeals dismissal of motion for delay. Two actions were consolidated, but consent consolidation was not filed in the Court. Motion judge found agreement to consolidate constituted a “significant advance”. CA found no merit to appeal; appeal dismissed.

Capitol Steel Corporation v. R. Litz & Sons Company Ltd. and F.A. Roberts & Associates Ltd. et al, 2021 MBQB 238: Two motions filed by the defendant. The first, to dismiss for delay, and the second to strike certain portions of the affidavit evidence filed in defence of the delay motion. Evidence to be struck include confidential mediation materials and other documents over which defendants claim settlement privilege. Some documents are struck while the rest will be allowed. Motion to dismiss for delay denied.

Gray v. Attorney General of Canada et al., 2021 MBQB 235: Motion by defendant to dismiss due to delay. Incident happened in 2003; statement of claim was filed in 2005. Examination of new Queen’s Bench Rule 24.02, the “long delay” rule; analysis of the “three year period of inactivity”. Motion granted; action dismissed.

Garang v. Grimolfson, 2021 MBQB 234: Motion by defendant to strike statement of claim in its entirety pursuant to Queen’s Bench Rule 25.11(1). Plaintiff’s statement of claim seeks $5 million for intentional and prolonged infliction of emotional and psychological suffrage plus a declaration of parentage and custodial relief. Events occurred in 2006. Claim struck.

Bird Construction Group v. Trotter and Morton Industrial Contracting Inc., 2021 MBQB 233: Dispute over liens filed by respondent over contract performance. Applicant requested an order vacating the liens upon providing lien bonds with face values equivalent to the two liens. Respondent opposed the application. Project is on Crown land; lien is “registered” against owner’s holdback account. Issue is whether the security should be in the form of cash or a lien bond. Partial payment of cash paid to court; remainder to be held in lien bond.

BP General Partner Ltd. et al v. Aztekk Concrete Works Ltd., 2021 MBQB 232: Motion to set aside default judgment and noting of default. Defendant states it has an arguable defence and intends to file a counterclaim, and no prejudice or irreparable harm will result to the plaintiff. Analysis of Queen’s Bench Rule 19.08 re court’s discretion to set aside default judgments. Defendants are successful.

Centum Above All Financial Inc. et al v. Canada Revenue Agency, 2021 MBQB 230: Plaintiffs filed a statement of claim against the defendant seeking general damages of $1.4 million. Defendant brought a motion to strikeout the amended statement of claim in its entirety, without leave to amend. Claim alleges a number of unparticularized torts; defendant claims it fails to disclose a reasonable cause of action, is scandalous, frivolous or vexatious, and is an abuse of process. Analysis of Queen’s Bench Rule 25.06(1) and 25.11(1). Motion granted.

Bradley Brown et al. v. General Electric Canada Company, 2021 MBQB 227: Motion to compel certain of the plaintiffs to answer certain questions in examinations for discovery. Issue is governed by Rule 31.06(1) of the Queen’s Bench Rules. Plaintiffs argue that they are not required to answer the questions because they seek evidence that is irrelevant and inadmissible in the action. Defendant argues that the concept of relevance must be broadly construed. Motion granted.

Alvare v. St. Boniface Hospital Inc. et al., 2021 MBQB 220: Application for an interim injunction requiring respondents to remove a DNR order and provide all life-sustaining care to applicant. Discussion of legal principles involved and physician’s obligations as set out in the College of Physicians and Surgeons of Manitoba Standard of Practice regarding withholding and withdrawing life-sustaining treatment. Motion dismissed.

295 Garry Street Inc. v. Mittal et al., 2021 MBQB 215: Twin motions for summary  judgment. Plaintiff initiated an action for trespass and demand removal of certain equipment including a diesel generator; defendants say equipment is within their easement. Conflict arises over vagueness of easement agreement. Plaintiff’s summary judgment motion allowed.

Genevieve Cantin. Ontario Court’s Merits Decision in Medical Malpractice Class Action, The Lawyer’s Daily, 11 Nov 2021
Case comment on Levac v. James, 2021 ONSC 5971. Several patients at a pain management clinic contracted infectious meningitis from a doctor with a particular staph infection. This is a common issues trial.

Peter Sankoff and Zachary Wilson. A Jurisprudential “House of Cards”: The Power to Exclude Improperly Obtained Evidence in Civil Proceedings. (2021) 99-1 CBR 146. Section 24(2) of the Charter provides a specific route to exclusion of evidence that had been improperly obtained, but there is no such change to civil common law. Article asks can judges exclude evidence in this manner, and if they can, should they.


Constitutional Law

R. v. Albashir, 2021 SCC 48: Issue of whether the result of the unconstitutionality of s. 212(1)(j) of the Criminal Code as found in Canada (Attorney General) v. Bedford, 2013 SCC 72 should be applied retroactively. Accused were charged with numerous offences, some occurring during the one-year period of suspension. Trial judge quashed the charges. Court of Appeal allowed the Crown’s appeals and entered convictions. SCC held appeals should be dismissed. From the headnotes:

 Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: In light of the purpose animating the suspension of the declaration of invalidity in Bedford, the presumption of retroactivity of a declaration of invalidity is rebutted by necessary implication. The purpose of a suspension must be considered in determining whether the declaration must logically operate retroactively or purely prospectively. In Bedford, the Court’s remedy was purely prospective, because the purpose of the suspension — avoiding deregulation that would leave sex workers vulnerable — would be frustrated by a retroactive remedy. 


Criminal Law

R. v. Parranto, 2021 SCC 46: Appeal on sentencing ranges. Accused pleaded guilty to various drug trafficking offences. SCC found the sentences at trial were demonstrably unfit and Court of Appeal’s intervention was appropriate. Per Wagner C.J. and BrownMartin and Kasirer JJ:

[3] The appellants and several interveners sought to discredit the starting‑point approach by arguing that it has undesirable results, including higher rates of incarceration for Indigenous and other offenders. These criticisms lose their force, however, if starting points are properly treated as non‑binding guidance by both sentencing and appellate courts…

[4] Accordingly, there is no need to disavow the starting‑point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence.

 Per Moldaver and Côté JJ.(concurring):

[84] I would dismiss the appeals from sentence and uphold the sentences of 10 years and 14 years imposed by the Court of Appeal. The sentences imposed by the sentencing judges in both cases were demonstrably unfit….

[86] I find it necessary, however, to write separately to raise what I believe to be an issue of overriding concern in these cases. Specifically, I wish to focus on the gravity of largescale trafficking in fentanyl for personal gain and the need to impose severe penalties, ranging from mid‑level double digit penitentiary terms up to and including life imprisonment, for those who do so.

Per Rowe, J. (concurring):

[102] These appeals provide an opportunity for this Court to resolve the “issue of importance” it identified in R. v. Friesen, 2020 SCC 9, at para. 41: are “starting points . . . a permissible form of appellate guidance”? I would answer this question in the negative. The starting‑point approach pioneered by the Court of Appeal of Alberta is, in theory and in practice, contrary to Parliament’s sentencing regime and this Court’s jurisprudence…

[105] My colleagues say that they are putting forth “a revised understanding” of starting points (Brown and Martin JJ.’s reasons, at para. 3). I am skeptical, however, as to the impact this so‑called revised approach will have. This Court has provided guidance on numerous prior occasions, yet the Court of Appeal’s approach has remained unchanged (R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; Friesen). As a result, in my view, to offer yet more helpful suggestions to ameliorate the problems inherent in starting-point methodology is naïve. The problems are baked into the methodology and they are rooted in the purposes for which it was developed and for which it has been maintained. There is only one effective response: to say that starting-point methodology can no longer be used. Being definitive in so saying is long overdue.

Per Abella and Karakatsanis, J.J. (dissenting):

[206] In my view, neither trial judge made an error in principle, nor was either sentence demonstrably unfit. In both appeals, the Court of Appeal did not act with restraint and deference but rather assumed a scrutineering, interventionist posture. The trial judges were faulted for their reasonable exercises of discretion, their factual findings were disregarded, and their demonstrated appreciations of the gravity of the offences before them were ignored. Both appeals should therefore be allowed with the original sentences restored.

R. v. Cowan, 2021 SCC 45: Appeal by accused as of right and appeal by Crown. Accused was arrested in relation to a robbery by others and acquitted. Court of Appeal set aside the acquittal and ordered a new trial, limited to the question of the accused’s guilty as a party. Per Wagner C.J. and Moldaver, Côté, Martin and Kasirer JJ.:

[7] For the reasons that follow, I would dismiss Mr. Cowan’s appeal and allow the Crown’s appeal. I am in agreement with the majority of the Court of Appeal that the trial judge committed an error of law in his analysis of party liability, which had a material bearing on the acquittal. The appropriate remedy is therefore to set aside the acquittal and order a new trial. However, in my respectful view, the new trial must be a full retrial.

Per Brown and Rowe JJ. (dissenting):

[75] I would allow the appeal by Mr. Cowan and restore his acquittal. I would do so for the dissenting reasons of Justice Jackson, which I adopt, except for para. 61.

R. v. Abdisalam, 2021 MBCA 97: Appeal of sentence for conviction of robbery with a weapon. Accused believes judge did not take into account consequences based on his immigration statuts, overemphasized his youth record and underemphasized his undiagnosed PTSD. Court of Appeal found no error and that the sentence, although on the high side, was fit. Leave to appeal granted; appeal dismissed.

R. v. Roulette, 2021 MBCA 95: Appeal by accused of conviction and sentence. Issue on conviction is whether trial judge unreasonably dismissed an available inference that should have led to reasonable doubt, i.e. it was an accident. Crown agrees and joins in asking for an acquittal. Conviction is set aside and acquittal entered; sentence appeal dismissed as being moot.

R. v. Lewyc-Sullivan, 2021 MBCA 92: Request for leave to appeal sentence, arguing that judge failed to give sufficient weight to principle of rehabilitation. Accused was found guilty of possession of cocaine for the purpose of trafficking. Standard of review for sentencing decisions is deferential. Despite accused’s rehabilitation, judge concluded that deterrence and denunciation were paramount considerations. Judge imposed a sentence below the appropriate sentencing range. Leave to appeal granted, appeal dismissed.

R. v. B. (H.E.J.E.), 2021 MBQB 223: Accused found guilty on two counts of second degree murder, committed when he was 16 years old. Crown applies for an order that he be sentenced as an adult. Legal principles summarized by Hamilton, J.A. in R. v. McClements, 2017 MBCA 104. Evidence submitted included the facts essential to the jury’s guilty verdict; two Gladue reports; Manitoba Corrections Incident Reports as well as a victim impact statement. Crown application granted.

R. v. Assi, 2021 MBQB 217: Sentencing decision; appropriate period of parole ineligibility for conviction for second degree murder and appropriate sentence for count of attempt to commit murder. Crown seeks parole ineligibility raised to 13 years and a 10 year concurrent sentence. Defence ask that parole ineligibility remain at the minimum of 10 years and an eight year concurrent sentence. Discussion of s.745.4 of the Criminal Code for factors to be considered. After considering mitigating and aggravating factors, Turner J. sentences accused to life imprisonment without eligibility for parole 11 years, plus 8 years concurrent for the other charge.

R. v. Franklin, 2021 MBPC 58: Sentencing decision where accused pled guilty to aggravated assault. Accused is Indigenous with multiple mental health diagnoses and a substance abuse disorder. Detailed analysis of sentencing ranges for the offence as well as the effect of the accused’s life experiences as mitigation. Sentence is effectively three years plus two years probation, calculated as 330 days pre-sentence custody, two years less a day custodial plus two years probation.

R. v. Hanakowski, 2021 MBPC 56: Trial for the offences of child luring and making sexually explicit material available to a child. Three elements to the offence of luring, and each element must be established beyond a reasonable doubt (R. v. Legare, 2009 SCC 56). Central issue is whether the Crown has proven that the accused believed the “child” (an undercover RCMP officer) he was texting was under 16. Accused testified in his defence, stating that the text messages were a joke. Accused found guilty.

R. v. Silva, 2021 MBPC 54: Sentencing decision where accused pled guilty to causing bodily harm while driving impaired. He is a permanent resident from Portugal and now faces deportation. Sentencing objectives are denunciation and deterrence as well as proportionality. Victim was seriously injured; accused’s blood alcohol level was extremely high. Extensive analysis of case law, noting that none considered collateral immigration consequences. Sentenced to six months less a day to avoid being unable to appeal a deportation order, and six months supervised probation.

Cristin Schmitz. SCC explains criminal jeopardy, other fallout from suspended declarations of constitutional invalidity. The Lawyer’s Daily, 19 Nov 2021.
Comment on R. v. Albashir, 2021 SCC 48.

Keith Hogg. Seeing Justice Done: Increasing Indigenous Representation on Canadian Juries. (2021) 26 Appeal 51. Considers the ways in which Indigenous people are excluded at each of the three stages of juror selection and offers remedies.


Family Law

Bonneteau v. Bonneteau, 2021 MBQB 237: Master’s report on Family Property Act accounting. Only issue left is the shareability of the business interests of the respondent. Parties had signed a pre-nuptial agreement in 1992. Master is only to determine if the agreement extended to cover the business assets at issue. Issue of interpretation of the contract based on its language and other evidence when the language is ambiguous. Master finds that part of the assets are covered, while the other part is not.

Nolin v. Nolin, 2021 MBQB 222: Master’s report on family property accounting. Reference order sets the date of valuation at January 1, 2015. Most of the listed assets and liabilities were resolved; only contested issues were a vehicle and its loan, the respondent’s Visa account and the respondent’s shares in a Manitoba corporation.

Nicholson v. Nicholson, 2021 MBQB 214: Issues of child support; respondent requests a retroactive adjustment. Detailed s.9 analysis of the Child Support Guidelines. Thomson, J. found this was not an appropriate case for a retroactive adjustment to child support in the respondent’s favour.

Romi Laskin. Expanding the Reach of Gladue: Exploring the Use of Gladue Reports in Child Protection, (2021) 26 Appeal 25.

Explores the potential of the legislature or courts usling Gladue-like reports in British Columbia’s child protection laws and policies.

Rachel Garrett. The Children Parliament Left Behind: Examining the Inequity of Funding in an Act Respecting First Nations, Inuit and Métis Children, Youth and Families. (2021) 34-1 C.J.F.L. 45.

From the abstract:

An Act respecting First Nations, Inuit and Métis children, youth and families (the Act) came into force in January of 2020, containing many innovative provisions aimed at affirming the jurisdiction of Indigenous peoples and providing services for Indigenous families. Ground­breaking provisions within the Act create a positive obligation on the government to provide services to Indigenous children who otherwise would have been apprehended due to their socioeconomic status. However, the Act lacks a concrete funding provision. This legislative comment conducts an exercise in statutory interpretation to conclude that the current omission of a funding provision within the legislation is at odds with the nature, purposes, and context of the legislation.


Wills, Trusts & Estates

Kuchinka v. Davies, 2021 MBQB 224: Applicant moves for declaration that the respondent has breached her fiduciary duty as executrix and trustee for the estate of the deceased. Applicant is the great-grandaughter of the testator who died in 2002 and left a residual bequest that was to be given to her when she turned 18. Respondent did not respond to queries by applicant’s mother over the years as to how the inheritance was invested. Applicant is successful; entitled to solicitor and her own client costs payable personally by respondent.

Legislation


Genevieve Cantin. Liberals reintroduce bill to streamline and add sanctions to federal judicial discipline process. The Lawyer’s Daily. November 11, 2021. – “The new bill would, according to its summary, amend the federal Judges Act to establish a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge’s removal from office, and change the process via which the Canadian Judicial Council (CJC) recommends to the federal minister of justice that a judge be removed.”

Federal

House of Commons

Second reading

Government bills

C-2 An Act to provide further support in response to COVID-19
C-3 An Act to amend the Criminal Code and the Canada Labour Code

Senate

Second reading

Government bills

S-2 An Act to amend the Parliament of Canada Act and to make consequential and related amendments to other Acts
S-3 An Act to amend the Judges Act
C-4An Act to amend the Criminal Code (conversion therapy)

Other bills

S-201, S-202, S-203, S-204, S-205, S-206, S-207, S-208, S-209, S-210, S-211, S-212, S-213, S-214, S-215, S-216, S-217, S-218, S-219, S-220, S-221, S-222, S-223, S-224, S-225, S-226, S-227, S-228, S-229, S-230, S-231


Provincial

The House adjourned on December 2nd and stands adjourned until March 2nd, 2022, or to the call of the Speaker.

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