Table of Contents

News	Substantive Law	Legislation
In the News	Administrative Law	Federal
Court Notices & Practice Directions	Civil Litigation	Provincial
Discipline Digests	Corporate & Commercial Law
New Library Resources	Criminal Law
Book Reviews	Family Law
Events	Labour & Employment Law
	Wills, Trusts & Estates

News

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In the News

House Back in Session – March 2nd marked the beginning of the Spring Sitting of the Fourth Session of the 42nd Legislature of Manitoba. MLA’s returned to the chamber for a full house for the first time since the pandemic had required most members to attend virtually for physical distancing regulations.

Updates to LSM Practice Area Fundamentals – Did you know that the Law Society’s Education Centre updated and added new content to their Practice Area Fundamentals documents last September? Alongside the chapter on Criminal Law, the Education Centre added new chapters in: Civil Procedure, Wills and Estates, Corporate Commercial; and Real Estate.

The Practice Area Fundamentals section is available through the Law Society of Manitoba Education Centre.

Save the date! – On October 27, 2022, the Court of Appeal of Manitoba will be hosting a Gala dinner at the RBC Convention Centre to honour the retirement of the Hon. Justice Richard Chartier, Chief Justice of Manitoba. This is sure to be an exceptional evening with special guest speaker, the Right Hon. Richard Wagner, P.C., Chief Justice of Canada. Details to come. Click here to see the announcement.

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Court Notices & Practice Directions

February 25, 2022 – Court transition plan arising from evolving public health orders

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

Court of Appeal

March 1, 2022 – Resumption of in-person appeal hearings and chambers motions starting Monday, March 14, 2022

Court of Queen’s Bench

March 1, 2022 – Adjustments to current scheduling protocols March 7, 2022, until further notice

March 1, 2022 – Manitoba Court of Queen’s Bench – Masters – Re: Covid-19 update

Provincial Court

March 10, 2022 – Judicial Appointment to the Provincial Court

February 18, 2022 – Resumption of regularly scheduled court sittings and special sittings in the Provincial Court of Manitoba

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Discipline Digests

The Law Society of Manitoba v Margaret Carroll, 2022 MBLS 1

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New Library Resources

New in Print

New Online Titles

From HeinOnline

New eResources

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Book Reviews

Review taken from the Canadian Law Library Review, Vol. 46 Issue 4

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Events

CLEA Annual Law Conference

The Annual Law Conference starts on Tuesday, March 22nd.  The topic this year is Family Law.

The conference webinars are free, but you must register.

There are four sessions planned:

Overview of Family Law with Nina Holatova – Tuesday, March 22nd, 5 pm.  Register here

Family Violence with Stacey Soldier and Wayne Rose – Wednesday, March 23rd, 10 am.  Register here

Parenting with Leah Klassen – Thursday, March 24th, 10 am. Register here

Panel:  Family Law Government Services in Manitoba with Michael Williams, Ingrid Pflug and Leita Kalinowsky – Thursday, March 24, 1:30 pm. Register here

Substantive Law

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Administrative Law

Singleton v. Fort Garry/River Heights (Director), 2022 MBCA 24: Question of whether the Social Services Appeal Board erred in law by applying the wrong test in determining the appellant’s eligibility for benefits. Appellant separated from her husband but is not yet divorced. She received benefits under The Manitoba Assistance Act on the basis of being a single person unable to earn sufficient income to meet her needs. Facing homelessness, she moved back in with her husband as a roommate. After an investigation, the Director concluded they are common-law partners and terminated her benefits. Appellant appealed and the Board agreed with the Director but for different reasons. Court determined the wrong test had been applied; correct question to ask is whether the appellant and her husband were living separate and apart in the same home or whether they had reconciled. Court directed that the Director’s order cancelling the appellant’s benefits be rescinded; the Director investigate and prepare a new report; and the Board hold a new hearing.

Christine Hickey. Reasons First: Post-Vavilov Considerations for Tribunal Participation on Judicial Review or Appeal. (2022) 35 Can. J. Admin. L. & Prac. 103 (WLNC – request a copy).

In this paper I will argue that, despite a more flexible approach to tribunal participation, principles enunciated by the Supreme Court of Canada in Vavilov will see a decline in tribunal participation. Where standing/participation is granted, the primary focus will be on the tribunal’s “helpful elucidation of the issues” to ensure a “fully informed adjudication”. (footnotes omitted)

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Civil Litigation

Vale Canada Limited v. Urbanmine Inc., 2022 MBCA 18:

[1] This appeal highlights the importance of not conflating the law of contributory negligence with the law of mitigation when considering a claim for damages arising from conversion. 

Plaintiff owns a nickel mine; Schwartz defendants stole nickel and sold it to Urbanmine, which then resold it to a third party at a profit. Urbanmine conceded that the purchase and resale constituted conversion (a strict liability tort) but argued that plaintiff should have mitigated its losses by having better security. Motion judge determined that is not an available defence. Chartier, C.J.M. discusses difference between contributory negligence and mitigation. Appeal dismissed.

Group Westco Inc. v. Manitoba Chicken Producers et al, 2022 MBCA 16: Applicant’s appeal of motion judge’s discretionary decision to dismiss application for judicial review on the basis of prematurity. Underlying issue is the Manitoba Chicken Producers’ adoption of particular production quotas. Appeal dismissed.

Brandon Condominium Corporation No. 68 v. TJR Investment Holdings Ltd., 2022 MBCA 13: Appeal as to rights and obligations of residential owners of condominium units in a mixed-use condominium complex. Key issue is whether The Condominium Act allows for an unequal allocation of expenses for common elements and reserve funds. Analysis of s.36(1) of the Act (reserve fund). Discussion of applicability of limitation periods for Condominium Act cases. Divided success on appeal.

Berscheid v. Government of Manitoba, 2022 MBCA 12: Appeal of summary dismissal of part of claim for damages from flooding on forage land leased from the defendant. Plaintiff also appeals orders made during case management conferences. Defendants rely on an exclusion clause in the forage lease to release them from liability from flood damage. Discussion of whether rules from 1989 were in effect or later guidelines. Appeal allowed for the summary judgment decision dismissing part of his claim and it will proceed to trial. Remainder of appeal dismissed.

Combs et al v. Griffith et al, 2022 MBQB 40: Dispute over ownership of two burial plots in a cemetery. The RM sold the plots to the plaintiffs’ mother in 2006, and then mistakenly resold them to the defendants in 2021. One of the defendants was buried in one of the plots. Plaintiffs want his remains to be disinterred. Before applying to Min. of Health for an order for disinterment, plaintiffs seek an order declaring that they are the lawful owners of the plots. Defendants’ argue that court has no jurisdiction to make such a declaration. Analysis of The Cemeteries Act and whether purchasers own a plot or if it is an easement. Declaration granted.

SGI v. Marostica, 2022 MBQB 35: Application for judicial review of an umpire’s decision under The Insurance Act, s. 121. This section sets out a mechanism for resolution of disputes concerning insurance contracts. Discussion of the appropriate level of procedural fairness. Significant deference owed to the decision of the umpire. Both parties had input in choosing the appraisers, the expertise of those individuals and the umpire. Application dismissed.

Winnipeg Condominium Corporation No. 881 v. T & T et al., 2022 MBQB 33: Application pursuant to Part II of The Limitation of Actions Act for leave to commence an action against the named respondents. Issues are whether the applicant filed the application within 12 months of knowing all material facts, and whether they have established that they have a prima facie case. Criteria under s.14 set out in Cahill v. Pasieczka, 2014 MBQB 217., paras. 26 and 27. Leave allowed. 

College of Registered Nurses v. Shannon Hancock, 2022 MBQB 26: Request for order that the respondent be declared a vexatious litigant, as well as other orders. Consideration of s.73 of The Regulated Health Professionals Act. Such an order is a serious and exceptional remedy. Review of a vexatious litigant application is determined on an objective standard. Significant discussion of the history of legal actions of the respondent over several years. Court declares respondent a vexatious litigant and discontinues several previous actions.

Fletcher v. Bradbury (MHRC), 2022 MBQB 25: Application under The Freedom of Information and Protection of Privacy Act, s. 67 and Queen’s Bench Rule 14, appeal for access to records redacted in initial request. Restatement of touchstones underpinning requests of the government by a citizen or organization. Analysis of test as set out in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3. More information required; request for further submissions.

Gateway Bible Baptist Church et al. v. Manitoba et al., 2022 MBQB 22: Determination of costs in two unsuccessful challenges respecting the constitutionality of various Emergency Public Health Orders. “Ordinary rule” suggests that costs are awarded to the successful party, however, given the public interest nature of the issues and this was an issue of “first impression”, no costs are ordered. Joyal, C.J.Q.B. notes that this decision is not a precedent for future litigation.

7602678 Manitoba Ltd. v. 6399500 Manitoba Ltd., 2022 MBQB 16: Dispute over contract and failed real estate transaction. Motion seeking various orders for relief. Analysis of whether Mr. Jhanji is properly a party to the pending action, which will determine if he can represent himself, given he has been suspended from practising law. Defendants and Intervenor Law Society agree if he is a party, he can self-represent. Master Patterson finds that Mr. Jhanji is not properly named as a party to the pending action, and may not represent the corporation in this action.

Fatoki et al. v. Hilton Homes (2007) Ltd., 2022 MBQB 14: Application for an order directing respondents to comply with an order issued by this court relating to the impact fee by-law passed by City of Winnipeg council. Order required City to refund the fees collected plus interest, to the person who made the payment. Developers who collected the fee are responsible to refund the fee to the purchaser. Order was not made until after these applicants had taken possession of their homes. Respondent claims Schedule on Purchase and Sale Agreement allows it to keep a portion or all of the fee refund. Analysis of principles of contract interpretation to be applied, as well as objective intentions of the parties. Applicants were largely successful; costs awarded on a Class 2 basis.

Christopher Guly. Ontario Appellate Court Greenlights Damages Hearing in CIBC Class Action. The Lawyer’s Daily, 17 February 2022. Case comment on a 15 year class action, Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115.

Jeffrey Lem. The Latest Word on Easement Obstruction: The de Jocas Trilogy. (2021) 23 R.P.R. (6^th) 56 (WLNC – request a copy).

… The de Jocas Trilogy affirms the general rule that “substantial interference” remains the operative substantive test, but provides a treasure trove of insights on the topic of easement blockage or interference and easement dispute litigation generally. Although the de Jocas Trilogy involved residential cottage properties, blockage and interference is a common dispute in all easements, both residential and commercial. Furthermore, while the de Jocas Trilogy involved total permanent physical blockage of a right-of-way, the principles therein apply equally well to partial blockages like building encroachments, and, perhaps more commonly, to temporary blockages like parking within access rights-of-way.

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Corporate and Commercial Law

Maes et al. v. Western Warner Oil Ltd. et al., 2022 MBQB 7: Action over investment in a small Alberta oil and gas company. Plaintiffs allege they were induced to make their investments on the basis of negligent or fraudulent misrepresentations, or, alternatively, that the defendants have breached the agreements. Or, they are the victims of oppressive conduct. Defendants deny any wrongdoing and further submit plaintiffs’ claims are time-barred. Analysis details the facts in dispute and analysis. Bock, J. finds for the defendants and dismisses all of the plaintiffs’ claims.

Criminal Law

R. v. Ste-Marie, 2022 SCC 3: Crown appeals from a decision quashing four convictions and entering a stay of proceedings because of a violation of the right to be tried within a reasonable length of time. Respondents were charged with laundering proceeds of crime in 2009, and convicted in 2016. Trial judge found a 77-month delay between charges and the end of the trial, but declined to enter a stay of proceedings on the grounds that the accused had not been prejudiced by the delay. CA overturned trial judge’s decision.

[7] With respect, the Court of Appeal erred in refusing to re‑examine the unreasonableness of the delays on the ground that the record before it was incomplete. On appeal, the Crown filed a statement of admissions by the parties — filed by the parties at trial under s. 655 of the Criminal Code, R.S.C. 1985, c. C‑46 — that contained a detailed chronology of events, the content of which was not analyzed at all by the Court of Appeal. In our opinion, the evidence in the record allowed the appeal judges to carry out that analysis. It should be noted that a statement of admissions by the parties was not part of the appeal records in the cases on which the Court of Appeal relied, at para. 14 of its reasons, to justify its refusal to re‑examine the delays in this case. Although a court is not bound by admissions of law, a joint statement may be useful on appeal and may help reduce the delays leading to the infringement alleged by an accused (see, e.g., R. v. Bryant, 2021 QCCA 1807, at para. 3).

Appeal allowed, stay of proceedings set aside and case remanded to a new panel of the Court of Appeal for consideration of the other grounds of appeal that remain outstanding.

R. v. Boulanger, 2022 SCC 2: Right to be tried in a reasonable length of time. Crown appeals from a majority decision of QCCA finding a net delay of 35 months and 2 days, exceeding the ceiling set in R. v. Jordan. Issue is whether two particular delays must be attributed to the defence because of its conduct.

[4] It is true that the characterization of delay is a question of law and that the trial judge was not bound by the respondent’s admission in this regard. However, the trial judge did not provide any explanation, even an implicit one, to clarify why he was rejecting the admission for this period (reasons of Chamberland J.A., at para. 173). Since he chose to go against the parties’ suggestion, and in the absence of submissions by them on this specific point, it was especially important that the trial judge provide reasons explaining what he had decided and why (see R. v. G.F., 2021 SCC 20, at paras. 71‑74). With respect, he did not do so.

Court re-examined dates available for trial and reasons for delay, and recalculated total time. It still exceeded the Jordan framework. Appeal dismissed.

R. v. Sutherland, 2022 MBCA 23: Accused appeals conviction by a jury of second degree murder. First ground of appeal is curative instruction given to the jury. Second ground is admissibility of lay opinion evidence. Appellate court must review jury instructions on a standard of adequacy, not perfection. Significant analysis of whether the trial judge erred by allowing lay opinion evidence. Appeal dismissed on both grounds.

R. v. Hjorleifson, 2022 MBCA 22: Question of whether accused received ineffective assistance at trial. Analysis of test for ineffective assistance. Appeal dismissed.

R. v. Glennie, 2022 MBCA 21: Application for leave to appeal sentence relating to drug trafficking and weapons offences. At sentencing hearing there were a large number of charges on varying dates leading to confusion. Accused appeals arguing that sentencing judge erred in assessment of concurrent and consecutive sentences, finding that a firearm was a restricted weapon, and imposing an unfit sentence. Sentencing judge is entitled to significant deference. Leave to appeal granted as sentencing judge should have apportioned the adjustment for totality, but appeal dismissed.

R. v. Thomas, 2022 MBCA 19: Appeal of conviction for second degree murder on the basis that guilty plea was not voluntary. Accused applies to tender fresh evidence. Refresher on the test for determining a valid guilty plea. Fresh evidence admitted, but appeal dismissed.

R. v. Markwick, 2022 MBCA 20: Appeal of conviction for assault causing bodily harm and forcible confinement on basis that trial judge unevenly scrutinized evidence. Credibility was key issue at trial. Appeal dismissed.

R. v. Debler, 2022 MBCA 15: Accused appeals conviction for sexual exploitation and interefernce under ss. 153 and 151 of the Criminal Code, and seeks leave to appeal his sentence. He seeks to replace the conviction with one under s.152. Appeal granted, leave to appeal sentence denied.

R. v. T.P.R., 2022 MBCA 14: Appeal of conviction for sexual interference, arguing that the judge erred by refusing to order production of the victim’s therapy records and admitting specific evidence. Discussion of the statutory relevance threshold set by Parliament with regards to private records. Appeal dismissed.

R. v. Watt, 2022 MBQB 21: Issue of whether minimum ten year period of parole ineligibility should be raised where the accused pled guilty to a charge of second degree murder. Crown asked for 17 years; defence argued for 10. Discussion of aggravating and mitigating circumstances in determining an appropriate sentence. Proper period of parole ineligibility is 12 years.

R. v. Fraser, 2022 MBQB 12: Application for certiorari by Crown to quash a ruling on the basis the provincial judge lacked jurisdiction to deem a particular warrant executed.

R. v. Mediascene Inc., 2022 MBPC 11: Dispute over speeding offence issued by photoradar. Defendant pleads lack of signage on this section of roadway was insufficient. Cites The Highway Traffic Act and regulations as authority. Crown proceeded by way of certificate evidence. Defendant did not call evidence. JJP found there was no evidentiary foundation put before the Court to displace the Crown’s case. Conviction entered.

Erika Chamberlin. Francis v. Ontario: Can the Crown Restore Its Own Immunity? 2021 99-3 CBA 645. Comment on Francis v. Ontario, 2021 ONCA 197.

Francis involved a class proceeding related to practices of administrative segregation in Ontario’s correctional facilities. The class was comprised of two groups that were allegedly harmed by these practices: inmates suffering from serious mental illness and those who were placed in administrative segregation for 15 or more consecutive days (referred to in the decision as “Prolonged Inmates”). They brought claims in negligence and under sections 7 and 12 of the Charter of Rights and Freedoms. The Court of Appeal upheld the decision of the motion judge, Justice Perell, to award aggregate Charter damages of $30 million, and this portion of the judgment is not discussed further here. I will limit my discussion to the negligence claim, which was based on alleged systemic negligence in the practice of administrative segregation, including over-reliance on administrative segregation for administrative purposes, failing to investigate or report harm, failing to adequately supervise employees, and failing to remove class members from segregation in a timely manner. (p. 646).

Michael Plaxton. R. v. Pruden: A History of Force, (2020) 76 C.R. (7^th) 196 (WLNC – request a copy). Comment on the meaning and significance of “force” in the offence of assault.

In October 2021, Judge Lamoureux of the Alberta Provincial Court convicted Kyle Pruden of two counts of assault. The charges stem from a confrontation that took place in November 2020, during the Covid-19 pandemic, and at a time when there was a mask mandate in Alberta. The first count is unremarkable: Mr. Pruden refused to leave, after being told to do so. The second count is more interesting, at least legally. As the argument with a bar employee progressed, Mr. Pruden pulled down his mask and intentionally — he testified “sarcastically” — coughed in close proximity to her. Judge Lamoureux found that this satisfied the elements of assault per s. 265(1)(a) of the Criminal Code. For my purposes, the striking aspect of her analysis is the conclusion that the defendant applied “force” to the complainant by expelling “lung air molecules”.  (footnotes omitted)

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Family Law

Sharma v. Sharma, 2022 MBQB 27: Consideration of the issues of entitlement and quantum of child support for an adult child. Both parties advance claims for relief retroactive to 2017. Leading case is Rebenchuk v. Rebenchuk, 2007 MBCA 22. Competing motions to vary a Final Order pronounced on May 15, 2006, varied on October 6, 2016 concerning entitlement, quantum of period child support, and contribution to an adult child’s s.7 expense for education. Analysis of whether the adult son is a “child of the marriage” and the role of an “intermittent student”. Dependency, rather than age, is an important factor (para 86). Order is varied; counsel are requested to prepare and file a statement specifying the balance owing or the amount of overpayment.  

Craig v. Craig, 2022 MBQB 19: Issue of whether costs should be ordered on this motion or if it should be adjourned and determined at trial, and if petitioner is entitled to double party and party costs pursuant to Rule 49. Doyle, J. decided that there is no benefit to either party to delay the awarding of costs; petitioner is awarded costs.

Porath v. Wardner, 2022 MBQB 17: Issue of costs to be awarded on an interim motion on a guardianship application. Discussion of legislation and rules governing costs awards, including Rule 49. Father is requesting double costs for a portion of his fees; Guardianship applicant (aunt) argues that father’s proposal could not be construed as an offer to settle. Costs awarded in an amount higher than the Tariff A amount.

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 Canadian Journal of Family Law 45.

New, ground-breaking Indigenous child welfare legislation passed through the House of Commons and the Senate in 2019 and came into force in January of 2020. Formerly Bill C-92, now An Act respecting First Nations, Inuit and Métis children, youth and families (the Act), this Act contains a number of innovative provisions aimed at affirming the jurisdiction of Indigenous Peoples and establishing national standards for services provided to Indigenous families. While the Act has been critiqued on a number of grounds for not going far enough, it undoubtedly pushes the law over a few lines that, up to this point, had not yet been crossed. (p. 47)

Scott Booth. Tax Efficient Solutions to Division of Corporate Property: Can The Court Order a Corporate Reorganization? (2021) 40 C.F.L.Q. 49 (WLNC – request a copy).

This paper discusses current jurisprudence dealing with whether the Supreme Court of British Columbia, pursuant to s. 97 of the Family Law Act, SBC 2011, chapter 25 (the “FLA“), has jurisdiction to order a divisive reorganization of corporate assets, such as a butterfly transaction. 

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Labour and Employment Law

3559972 Manitoba Ltd. et al. v. Pethrick et al., 2022 MBQB 39: Issue over validity of non-competition and non-solicitation clauses in a professional services contract. Agreement calls for a five year ban from working at any entity in Manitoba whose business intersects with the specialty services at Nova, and forever prohibits the defendant from soliciting any of Nova’s clients. Analysis of the law of these clauses in contracts; Kroft, J. notes that these clauses are considered restraints of trade. The clauses are found to be void and unenforceable.

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Wills, Trusts & Estates

Dalrymple et al. v. DeMeyer Estate; Dusik et al. v. DeMeyer Estate, 2022 MBQB 31: Dispute over administration of estate where testator passed away in 2013. Executor (son of the deceased) lived in her property rent free until it was sold in 2020. Demand for passing of accounts as well as occupation rent. Perlmutter, A.C.J.Q.B. issues order to a master for an accounting, including occupation rent less a set-off for reasonable expenses.

Legislation

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Federal

House of Commons

44th Parliament, 1^st Session
C-257
An Act to amend the Canadian Human Rights Act (protecting against discrimination based on political belief)
Progress: At first reading in the House of Commons
Show details

44th Parliament, 1^st Session
C-8
An Act to implement certain provisions of the economic and fiscal update tabled in Parliament on December 14, 2021 and other measures
Progress: At report stage in House of Commons
Show details

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Senate

44th Parliament, 1^st Session
S-239
An Act to amend the Criminal Code (criminal interest rate)
Progress: At second reading in the Senate
Show details

44th Parliament, 1^st Session
S-238
An Act to amend the Criminal Code and the Canadian Victims Bill of Rights (information about the victim)
Progress: At second reading in the Senate
Show details

44th Parliament, 1^st Session
S-217
An Act respecting the repurposing of certain seized, frozen or sequestrated assets
Progress: At consideration in committee in the Senate
Show details

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Provincial

Government Bills

10	Hon. Ms. Gordon Minister of Health	An Act respecting Amendments to The Health Services Insurance Act, The Pharmaceutical Act and Various Corporate Statutes	PDF
11	Hon. Mr. Goertzen Minister of Justice	The Elections Amendment Act	PDF
12	Hon. Mr. Johnson Minister of Agriculture	The Peak of the Market Reorganization Act	PDF
13	Hon. Ms. Squires Minister of Families	The Social Services Appeal Board Amendment Act	PDF
15	Hon. Mr. Piwniuk Minister of Transportation and Infrastructure	The Drivers and Vehicles Amendment and Highway Traffic Amendment Act	PDF
16	Hon. Mr. Friesen Minister of Finance	The Financial Administration Amendment Act	PDF
17	Hon. Mr. Goertzen Minister of Justice	The Family Law Act, The Family Support Enforcement Act and The Inter-jurisdictional Support Orders Amendment Act	PDF
20	Hon. Mr. Friesen Minister of Finance	The Supplementary Appropriation Act, 2021-2022	PDF

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Private Bills

217	Mrs. Smith	The Fatality Inquiries Amendment Act (Overdose Death Reporting)	PDF
222	MLA Marcelino	The Pay Transparency Act	PDF

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Proclamations

Chapter	Title     (provisions)	Date in force	Date signed	Proclamation
SM 2021, c. 11	The Public Service Act whole Act	26 Feb 2022	15 Feb 2022	Proclamation
SM 2021, c. 30	The Reducing Red Tape and Improving Services Act, 2020 sections 6 to 10	28 Feb 2022	15 Feb 2022	Proclamation

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