eLex February 2022

by Karen Sawatzky | Feb 14, 2022 | eLex

Table of Contents

News

In the News

Manitoba Law Society Benchers approve pilot program for part-time practising fees

The Library will be reopening to visitors on February 16, 2020.

Notices

Court Notices & Practice Directions

COVID related notices

Provincial Court

Notice – COVID-19 Suspension and Restriction of Hearings

Queen’s Bench

Notice – COVID-19 Update

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

Other Notices

Provincial Court

Notice – Additional Adult Trial Dates in Winnipeg added to the Court’s Website (February 2, 2022)
Current advertisement – Judicial Justice of the Peace (Brandon and Thompson) (February 3, 2022)

Discipline Digests

Notice of Withdrawal – Thomas (Tom) Turner

New Library Resources

Print titles coming soon

LEGAL DATA AND INFORMATION IN PRACTICE: HOW DATA AND THE LAW INTERACT, SARAH A. SUTHERLAND

Legal Data and Information in Practice provides readers with an understanding of how to facilitate the acquisition, management, and use of legal data in organizations such as libraries, courts, governments, universities, and start-ups. Legal organizations are looking at how to develop data-driven insights for a variety of purposes and it is vital that they have the necessary skills to facilitate this work. This book will assist in this endeavour by providing an international perspective on the issues affecting access to legal data and clearly describing methods of obtaining and evaluating it.

New eResources

New from CanLII: AI generated subject classification for Ontario case law

Ontario court decisions on CanLII now display artificial intelligence generated classification. The AI feature uses machine learning technology to automatically generate practice area labels. The labels appear in grey at the bottom of a search result, underneath the italicized subject keywords. Read the full post here

Free Guide from Rangefindr: Sentencing Guide for Transgender Offenders

Legal research tool Rangefindr has recently released a free sentencing guide for transgender offenders. The guide summarizes material on the sentencing of transgender and gender nonconforming offenders.
Members of the Law Society of Manitoba have access to Rangefindr’s criminal sentencing resources through the Member’s Portal. Read the full post here

I Love to Read Month

February is I Love to Read Month! We are recommending the following titles all about legal history in Manitoba.

Judicious Restraint: The Life and Law of Justice Marshall E. Rothstein, Lisa M. Kelly and Ivo Entchev

A biography of Manitoba-born, former Justice of the Supreme Court of Canada, Justice Marshall E. Rothstein.

Paths to the Bench: The Judicial Appointment Process in Manitoba, 1870-1950, Dale Brawn

Uncovers the political nature of the judicial appointment processes and the history of the legal profession in Manitoba from 1870-1950.

A Partnership of Equals: the struggle for reform of family law in manitoba, berenice b. sisler

Traces the struggle to reform Manitoba’s family law during the years 1975-78, to achieve equality for married women.

The queen v. louis riel, introduction by desmond morton

Following Morton’s introduction, this work includes text from the Reports of Cases 1885 and the Law Reports 1885 with text of the trial.

Contact the Great Library to arrange pickup of any of our titles for loan.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 46 Issue 3

25 Rules for Success… and 10 Tips to Help You Enjoy the Practice of Law. By Jacqueline L King. Toronto:Thomson Reuters, 2020. 137p. Includes appendices of supplemental resources. ISBN 978-0-7798-9714-8 (softbound) $54.00

“Jacqueline L King, a partner at Shibley Righton LLP, is the author of 25 Rules for Success… and 10 Tips to Help you Enjoy the Practice of Law. She is a respected litigation lawyer, a sought-after continuing legal education speaker, an astute collaborator in any committees she sits on, and oh yeah, a mother who also gets involved in her children’s lives. In this book, the author explains how she stays on top of commitments while giving her best in all that she sets her mind to.

As the Honourable Ian Binnie writes in the Foreword, this book applies to both early and mid-career legal practitioners who seek to improve their practice of law by way of alleviating stress and anxiety.” – reviewed by Vicki J Leung

Events

The Canadian Legal Innovation Forum February – March 2022

The series continues the forum’s core focus on how the intersection of business and law is evolving.

The webinars are accredited for professionalism credits from the LSO and CPD credits from the LSBC. They are free to view and simply require registration to attend.

Webinar Topics, Dates + Registration Links:

***note all Webinars run from 12pm-1pm Eastern Time***

• PARAPROFESSIONALS: How is the role of the paraprofessional evolving in mid-size law firms? (February 16th)
• DATA: Mastering data governance: increasing risks and strategies to address them. (March 2nd)
• REAL ESTATE: How are lawyers in the Canadian real estate sector innovating? (March 8th)
• CHANGE MANAGEMENT: Mastering change management for law firms and legal departments (March 24th)
• KNOWLEDGE MANAGEMENT: How a successful knowledge management strategy can drive innovation in law firms and legal departments. (March 30th)

Full information about the series and registration links on: www.canlif.net/webinars.

Substantive Law

Administrative Law

Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19: Appeal of decision by Pest management Regulatory Agency (PMRA) re continued registration of glyphosate products for use in Canada. Safe Food Matters applied to Federal Court for judicial review (dismissed). FCA allowed appeal and remitted decision back to PMRA for reconsideration. Judicial review is in accordance with Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. Question is whether the decision is reasonable.

Dhalla v. College of Physicians and Surgeons of Manitoba, 2022 MBCA 7: Appeal of penalty imposed after finding of professional misconduct, and costs decision. Appellant was reprimanded and his licence to practice medicine was suspended for two months. He was ordered to pay costs of $85,000 as a contribution to the costs of the investigation and hearing. Analysis of the civil standards of review and penalty standards of review. Appeal dismissed.

Mohammadi v. Compensation Appeal Board, 2022 MBQB 20: Application for reconsideration of decision advising applicant she was not eligible for wage loss benefits under the Compensation Appeal Board. Applicant had been receiving a non-earner income replacement indemnity due to a car accident prior to being a victim of crime. Grounds of appeal are on a question of law or jurisdiction. Kroft, J. finds it is a question of law and thus the standard of review is correctness. Central question is whether applicant was employed or self-employed at the time of the incident. Appeal dismissed.

Mark Mancini. The Sunday Evening Administrative Review, Issue 28. Case comment on Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19.

Civil Litigation

WRE Development Ltd. v. Lafarge Canada Inc., 2022 MBCA 11: Plaintiff’s appeal of dismissal for long delay under Queen’s Bench Rule 24.02(1). Motion judge concluded that there was no significant advance in the action for a period in excess of three years. Action involves the construction of an apartment building built between 2010 and 2012. Plaintiff sought damages re product supplied and installed by the defendant. Explanation of the difference between the old and new rule 24. Analysis of the test for whether an action has been significantly advanced. Appeal dismissed.

Frenchie’s Farm and Ranch Ltd v. Peace Hills Insurance Company, 2022 MBCA 10: Plaintiff appeals dismissal of claim for payment under an insurance policy relating to a fire loss. Plaintiff argues error by the trial judge. Court of Appeal determined that the trial judge correctly noted that a false statement will violate statutory condition 7. Appeal dismissed.

Chartier v. Bibeau, 2022 MBCA 5: Appeal of civil jury award of damages in the amount of $500,000 for a defamation suit. Award reduced to $50,000 for general and aggravated damages.

Bibeau et al v. Chartier et al, 2022 MBCA 2: Appeal from dispute regarding the terms of an oral contract. Parties disagree about the extent of the interest purchased by the plaintiff. Statement of claim included allegations of breach of contract and breach of fiduciary duty. Standard of review is discretionary, reviewed on a deferential standard. Plaintiffs’ appeals are dismissed; defendants’ cross appeals are allowed in part.

85 Academy Road Development Corporation et al. v. Rona Inc. et al., 2022 MBQB 15: Request for reconsideration of decision to refuse to direct payment to Rona of trust funds. Basis for reconsideration request is Toromont CAT v. Erickson Construction (1975) Ltd. et al, 2021 MBQB 75, not referenced previously by either party in the original submissions. Reasons of November 16, 2021 are revised.

Andrews v. Grammond, 2022 MBQB 11: Claim for professional negligence for advice given before lawyer became a sitting judge, brought under the Small Claims Act. Issue is whether it is an excluded proceeding, as defined under s. 3(4). Joyal, C.J.Q.B. finds that it is and claimant will have to find another forum for relief. Significant analysis and discussion of this section.

Ostrowski v. Weinstein et al, 2022 MBQB 3 : Motion for summary judgment to dismiss plaintiff’s wrongful conviction claim due to it not being filed within the limitation period. Action had to have been initiated within two years. Contentious issue is when the two year limitation period started to run. Extensive analysis of when the limitation period started. Greenberg, J. determined that the limitation period expired in May 2006. Claim dismissed.

R.S. Distribution Services Ltd. v. MTS Inc. et al., 2022 MBQB 2: Action for breach of contract. Issue over whether there was an agreement to deliver services with a minimum amount over the term. Defendant felt that the minimum guaranteed amount of the previous contract had been too high. Plaintiff used an internal memo that had been attached to the hard copy of the contract constituted the new agreed minimum amount. Toews, J. concluded that the memo was not part of the contract and dismissed the action.

Wilson et al v. Kornelsen, 2022 MBQB 1: Issue of prescriptive rights over a certain property in the Town of Stonewall. Test for a party asserting a dominant tenement and easement is set out in Limack et al v. Kroeker et al, 2020 MBCA 98 at para 16. As well, the period of usage must be over 20 years. Most of the evidence is in the form of hearsay. Toews, J. sets out a detailed order of which rights belong to which property.

Knight v. Daraden Investments Ltd. et al., 2021 MBQB 279: Appeal from master’s decision dismissing plaintiff’s action under Rule 24.02(1), long delay. Action over defendants’ failure to take reasonable care resulting in physical injury to the plaintiff through a slip and fall. Parties disagree over whether there was an agreement to delay proceedings. Bock, J. agrees that there has been an inordinate delay within the meaning of Rules 24.01(2) and (3) but blame is shared by both parties and thus excusable.

Tataskweyak Cree Nation et al. v. Canada (A.G.);, Curve Lake First Nation et al. v. Canada (A.G.), 2021 MBQB 276: Order and reasons for approval of class counsel’s legal fees. Fees for prosecuting the actions have been negotiated separately from the settlement agreement. The Class is not responsible for paying legal fees. Analysis of whether the fees suggested ($53 million plus $5 million for future work) are fair and reasonable and in the best interests of the class. Fees approved.

Tataskweyak Cree Nation et al. v. Canada (A.G.);, Curve Lake First Nation et al. v. Canada (A.G.), 2021 MBQB 275: Motion to approve the First Nations Drinking Water Settlement Agreement. Both Federal Court and the Manitoba Court of Queen’s Bench have jurisdiction. Sets out the key provisions of the settlement agreement: retrospective and prospective compensation; class and class period; and implementing the “Long-Term Drinking Water Advisory Action Plan”. Class counsel fees will be subject to a different order and reasons.  

Terry Davidson. Defamation awards must be proportionate to conduct, says lawyer of dispute between millionaires, The Lawyer’s Daily, February 3, 2022. Case comment on Bibeau et al v. Chartier et al., 2022 MBCA 5.

Bryan Schwartz, Monica Adeler, Mike Myschyshyn and Robert Walichnowski. Asper Review of International Business and Trade Law, Vol. 21 Special Edition: Cybersecurity and Law Firms. 2021 CanLIIDocs 988
Guide to cybersecurity for lawyers from a Canadian perspective.

Criminal Law

R. v. Ali, 2022 SCC 1: Issue of legality of a strip search of the accused resulting in the seizure of cocaine. Moldaver, Brown, Rowe and Jamal JJ; Concurrence: Côté J. Appeal dismissed.

[2] A majority of this Court agrees with the conclusion of the majority of the Court of Appeal and would dismiss the appeal. Where a strip search is conducted as an incident to a person’s lawful arrest, there must be reasonable and probable grounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest (see Golden, at para. 99). These grounds are met for the strip search where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest (see Golden, at paras. 94 and 111).

R. v. Bourassa, 2022 MBCA 9: Request for leave to appeal a seven year sentence for four weapons-related offences. Argues that judge did not adequately apply the principle of totality. Standard of review is highly deferential. Leave to appeal granted but appeal dismissed.

R. v. Morrissette, 2022 MBCA 8: Appeal of convictions for several offences involving firearms. Appellant also seeks leave to appeal the custodial portion of his sentence. He argues there was no direct evidence of possession and that the circumstantial evidence was insufficient to convict him. Conviction appeal dismissed and application for leave to appeal the sentence denied.

R. v. Derksen, 2022 MBCA 6: Appeal of sentence of nine and a half years’ incarceration for three firearms charges. Leave to appeal was denied, however parties asked that appeal be granted to clarify one aspect of the individual sentences related to the totality principle. Clarification added; appeal dismissed.

R. v. Bear, 2022 MBCA 4: Appeal of Crown’s application for designation of the accused as a dangerous offender. Accused’s principal submission is that the sentencing judge erred at the designation stage. Leave to appeal granted; appeal dismissed.

R. v. McKenzie, 2022 MBCA 3: Appeal of case re common law police powers; whether the law relating to ss. 8, 9 and 24(2) of the Charter were applied correctly. Analysis of the common law power of investigative detentions. Appeal dismissed.

R. v. Hurdon, 2022 MBPC 7: Trial for possession of fentanyl for the purpose of trafficking, simple possession of methamphetamine, and possession of property under $5,000 from the sale of drugs. Expert opinion evidence on what quantity of drugs is likely to be for personal use versus trafficking. Accused testified but was not a credible witness. Accused convicted.

R. v. Maytwayashing, 2022 MBPC 6: Sentencing decision after accused was found guilty after trial of robbing a taxi driver, driving while impaired and refusing to provide a breath sample. Gladue factors considered. Discussion of the fundamental principles of sentencing. Relevant sentencing objectives in this case are denunciation, general deterrence and rehabilitation. Sentence for robbery is 18 months of custody; concurrent sentence of seven days for the other offences.

R. v. Watson-Langley, 2022 MBPC 5: Decision on voir dire re s.9 violation. Accused seeks exclusion of all evidence obtained by police, in particular the seizure of a set of car keys which included key fobs for two apartment blocks. Harvie, P.J. admits the evidence.

R. v. Millan, 2022 MBPC 1: Sentencing decision for the offences of making and possessing child pornography, and breaching a condition of his release order. Overall issue is to assess the seriousness of the offences committed and the accused`s degree of moral culpability. Accused has prior convictions for sexual offences. Sentencing objectives in this case include denunciation and deterrence, as well as the objective of separating the offender from society. Total sentence of three and a half years, less time served in remand custody credited at 1.5 days, followed by three years of supervised probation.

R. v. Lohr-Mansbridge, 2021 MBPC 62: Accused charged with hunting at night without a permit, and hunting on private land without permission of the owner. Conservation officers were on duty patrolling an area where people were known to hunt at night. Accused were found in a vehicle at midnight, slowly driving in the area and arrested for hunting at night. Although Carlson, P.J. found that they were likely guilty, it didn`t reach the criminal standard of beyond a reasonable doubt. Both accused were acquitted.

R. v. Campbell, 2021 MBPC 59: Sentencing decision for accused found guilty of several violent offences. Crown and defence make the same recommendations for the most serious matters but different on the lesser offences. Gladue factors are also considered. Discussion of the approach required when sentencing multiple offences at the same time. Totality of sentences is nine years imprisonment.

Tim Quigley. “Sadly, No RIP for Starting-Point Sentences”, (2022) 75 C.R. (7^th) 306. (WLNC – request a copy). Analysis of R. v. Parranto, 2021 SCC 46 in an analysis of starting points as a form of appellate guidance to sentencing judges.

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)

Family Law

Pedersen v. Pedersen, 2022 MBQB 6: Master’s report on family property accounting. Both parties operated under a limited retainer. Conflicts over the value of a farm corporation. Both parties retained an expert to value the corporation. Master also directed to determine the discount rate to be applied as a result of potential tax liability associated with the husband’s real property, RRSPs and his interest in the corporation. Petitioner is the successful party.

Gadea v. Rath, 2022 MBQB 5: Mother requests return of the parties’ child to Costa Rica under the “Hague Convention”. Father denies that the removal or retention of the child was wrongful. Mother submits that the wrongful removal took place in either April 2020 or September 2021. Date of removal is vital to determining which section of Article 12 applies. Jurisdiction for custody and access issues is based on habitual residence. Hatch, A.C.J. determines the child had been habitually resident in Manitoba for either date. Application dismissed.

Terry Davidson. Court Ruling an Example of Clash between Bankruptcy Law, Family Law; Scholar. The Lawyers Daily, 26 Jan 2022. Case comment on Woods v. Ferguson, 2022 NSCA 1. Parties divorced in 2014. Husband owed money to CRA who had put a lien on some property owned by both husband and wife.

Rollie Thompson, Q.C. Retroactive Support after Colucci, (2021) 40 C.F.L.Q. 61 (WLNC – request a copy). Case comment on Colucci v. Colucci, 2021 SCC 24, resolving the confusion about how to apply D.B.S. to retroactive variations downward.

Wills, Trusts & Estates

Weiss Estate v. Weiss; Weiss v. Weiss Estate, 2022 MBQB 13: Combined applications relating to the will of the testator. First application seeks to rectify will to correct errors; cross application states that if rectification is allowed, the will must be declared invalid. Issue is over the residue clause. Kroft, J. grants the application to rectify the will.

Estate of George Czyzewski, 2022 MBQB 8: Application by executor to pass accounts. Testator died over 11 years ago. Probate was granted in 2011. Total value of estate at time of death was close to $3 million. Executor ignored several requests for an accounting over the years. Executor has yet to obtain a clearance certificate from CRA. Discussion of the requirement for executors to remain neutral in the discharge of their duties. Master Berthaudin found both the executor and his lawyer delayed the winding up of this matter. Executor must return funds he withdrew against the estate and will receive no compensation for his work.

Ian Spiegel. Here come the new reporting requirement for trusts, The Lawyer’s Daily, February 8, 2022.  

Legislation

Federal

House of Commons

44th Parliament, 1st Session
C-233
An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner)
Progress: At second reading in the House of Commons
Show Details

44th Parliament, 1st Session
C-240
An Act to amend the Income Tax Act (donations involving private corporation shares or real estate)
Progress: At second reading in the House of Commons
Show Details

44th Parliament, 1st Session
C-242
An Act to amend the Immigration and Refugee Protection Act (temporary resident visas for parents and grandparents)
Progress: At second reading in the House of Commons
Show Details

Senate

44th Parliament, 1st Session
S-213
An Act to amend the Criminal Code (independence of the judiciary)
Progress: At second reading in the Senate
Show Details

44th Parliament, 1st Session
S-205
An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders)
Progress: At second reading in the Senate
Show Details

Royal assent received

44th Parliament, 1st Session
C-3
An Act to amend the Criminal Code and the Canada Labour Code
Statute of Canada: 2022, c. 27
Progress: Royal Assent
Show Details

Provincial

News: Province appoints 11 Manitoba Lawyers to Queen’s Counsel for 2021, Manitoba News Release, January 25, 2022

The Manitoba government has appointed 11 Manitoba lawyers as Queen’s counsel to recognize their extraordinary contributions to the practice of law […] Queen’s counsel is an honorary title given to a lawyer by the lieutenant-governor in council, based on recommendations made by the minister of justice following consultation with an advisory council. […] After stopping these appointments in 2001, the Legislative Assembly of Manitoba passed the Queen’s Counsel Act in 2018 and restored Queen’s counsel appointments for Manitoba lawyers.

News: Province announces appointment of associate chief judge, Manitoba News Release, January 21, 2022

The Manitoba government has appointed Judge Donovan Dvorak as an associate chief judge of the provincial court of Manitoba […] Dvorak was appointed to the provincial court of Manitoba in 2013 and currently sits in Brandon. He was previously appointed to the provincial court of Saskatchewan in 2018. […] Dvorak replaces Associate Chief Judge Malcolm McDonald, who retired earlier this month.

The House adjourned on December 2nd 2021 and stands adjourned until March 2nd, 2022, or to the call of the Speaker.

Orders in Council

Fatality Inquiries Act (Feb 2)
Transportation Infrastructure Act (Feb 2)
Community Childcare Standards Act (Jan 19)