eLex June 2022

by Karen Sawatzky | Jun 13, 2022 | eLex

Table of Contents

News

Notices

Court Notices & Practice Directions

All Courts Notice – Mask Use and Court Reopening (May 13, 2022)

Queen’s Bench (Masters)

June 9, 2022 Re: COVID-19 Update and New Practices for the Fall of 2022 – prior notices from March 2020 to 2022 currently governing practice before the masters will be replaced by this notice in the fall.

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

Discipline Digests

The Law Society of Manitoba v. Fawcett 2022 MBLS 4
The Law Society of Manitoba v. Currie 2022 MBLS 5
The Law Society of Manitoba v. Stern 2022 MBLS 6

New Library Resources

New in Print

• Remedies in Tort – “five-volume work has a total of 28 chapters that are constantly updated with the most recent guidelines and court decisions.”
• Widdifield on Executors and Trustees – “a comprehensive exposition of the law relating to the exercise of the duties and prerogatives of the executor or trustee in Canadian law.”
• The Regulation of Professions – “A comprehensive synthesis of the law relating to the regulation of Canadian professions…reviews both the legislative framework and the significant body of case law that interprets this subject.”
• The Oppression Remedy – “a critical resource for advising corporations, boards or shareholders and creditors about their rights and duties.”

New Online Titles
available in the Library Resources section behind the Member Portal

On vLEX

• Fertility: 40 Years of Change  By Maureen A. McTeer – analyses how Canada has responded to the many legal and societal opportunities this foundational reproductive technology has created, such as new types of human relationships; the treatment of infertility; human embryo research; and the revolutionary possibilities for society raised by the combination of reproductive and genetic technologies
• Every Cyclist’s Guide to Canadian Law – 2nd ed.  By Christopher Waters – provides a comprehensive overview of the Canadian law on bicycles. The book covers rules of the road, purchasing and using bikes, what to do in the case of a crash or a stolen bike, starting up your own cycling club, racing your bike, and much more.
• Child Victims in Canada’s Justice System By Loree Armstrong Beniuk – a thoroughly researched resource that will be useful for anyone working with or establishing public policy with respect to children who have experienced sexual abuse.
• Canadian Policing. Why and How It Must Change By Kent Roach – a comprehensive and critical examination of Canadian policing from its colonial origins to its response to the February 2022 blockades and occupations.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 1.

Smart Contracts: Technological, Business and Legal Perspectives. Edited by Marcelo Corrales Compagnucci, Mark Fenwick & Stefan Wrbka. Oxford, U.K.: Hart Publishing, 2021. 204 p. ISBN 9781509937028 (hardcover) $150.95; ISBN 9781509937035 (PDF) $135.85; ISBN 9781509937042 (EPUB) $135.85.

Reviewed by Susannah Tredwell

“The book consists of eight chapters exploring such areas as data provision and privacy laws, the sharing of healthcare data, and unfair contract terms, and it concludes with a discussion of the future of smart contracts. Since each chapter is written by a different author or authors, there is a certain amount of repetition when it comes to subjects addressing what smart contracts and blockchain are, although the slants do vary. The consensus seems to be that “smart contract” is a bit of a misnomer since smart contracts are generally neither smart nor really contracts.”

Events

Call to the Bar June 16, 2022

The Mass Call to the Bar ceremony is returning to an in person format this year after being conducted virtually for the last two years due to the pandemic restrictions. This year’s distinguished guest speaker is the Chief Justice of Manitoba, the Honourable Chief Justice Richard Chartier.
Members of the profession are invited to attend this ceremony and are asked to contact Lisa Ehnes at lehnes@lawsociety.mb.ca to obtain tickets to sit in the audience or to advise that you would like to participate in the procession at the beginning of the ceremony and be seated in an area set aside for members of the Bar.
Please note that if you wish to participate in the procession, you will be required to wear court robes. If you have any other questions regarding the Call ceremony, please contact Joan Holmstrom at 204-926-2017 or by email at jholmstrom@lawsociety. mb.ca.

Injustices and Miscarriages of Justice Experienced by Indigenous Women
Jun 24, 2022, 12:00 pm – 1:30 pm, MANITOBA BAR ASSOCIATION
For Manitoba Bar Association Members

SPEAKER: SENATOR KIM PATE, INDEPENDENT SENATOR FOR ONTARIO, TERRITORY OF THE ALGONQUIN ANISHINABEG

Three senators are calling for the exoneration of twelve Indigenous women they say endured significant injustices in their interactions with the criminal justice system in a report issued May 16, 2022. The report identifies a number of problematic cases. The lawmakers said the findings in the report are “alarming” and reveal a pattern of systemic racism, misogyny, and abuses of mandatory minimums penalties. Join us as we discuss the report with Senator Kim Pate, which builds a case for a group conviction review and exoneration by the Department of Justice, and calls for the repeal of all mandatory minimums penalties.

See the full list of events on our calendar

Substantive Law

Administrative Law

Keurig Canada Inc. v. Canada (Border Services Agency), 2022 FCA 100: Is it a “coffee maker” or an “electro-thermic appliance”? Appeal of tariff classification of certain goods imported by Keurig. Canadian International Trade Tribunal (CITT) classified it as a “coffee maker” in December 2014. In July 2018, Keurig applied for a refund of duties, claiming it should be classified as “other electro-thermic devices” since it makes tea, hot cholate and other hot drinks besides coffee. Includes a concise description of the Keurig brewing system. Appeal dismissed. No word on whether the Court was offered a demonstration.

McCare Global Healthcare Services Inc. v. The Workers Compensation Board of Manitoba, 2022 MBCA 50: Appeal of judicial review of assessment dispute. Applicant is a health care service provider placement agency. WCB assessed the applicant as the employer of the service providers; applicant claimed that the service providers were independent contractors. WCB Appeal Commission determined that the service providers were workers for the purposes of coverage, and that the applicant was the employer. Judicial review agreed with Appeal Commission (standard of “reasonableness”). Discussion of s.60(2.1) (deemed worker and employer). Appeal dismissed.

Michelle Flaherty and Morgan Teeple Hopkins. Self-Represented Litigants and Active Adjudication: The Duties of Adjudicators. (2022) 35 Can J. Admin. L. & Prac. 177 (WLC – LSM Members can request a copy.)

The work of adjudicators has shifted in the face of increased numbers of self-represented litigants (“SRLs”) in our justice system. Fair and proportionate adjudication has always been expected of decision-makers. However, the current context requires more. One of the guiding principles that arises from the jurisprudence is that decision-makers must recognize and accommodate the SRL’s unfamiliarity with the legal process. It is no longer appropriate for adjudicators to act as passive participants in the hearing. They are now expected to use their role to ensure the hearing process is both fair and accessible to all litigants, including SRLs.

Civil Litigation

Urbanmine Inc. et al v. ELG Metals Inc., 2022 MBCA 51: Appeal concerning the application of s.2(1)(c) of The Tortfeasors and  Contributory Negligence Act on a motion to commence a claim against a third party. Discussion of the history of negligence acts. CA found no error in motion judge’s conclusion that defendants established a prima facie case that they have a statutory right to contribution from the third party. Appeal dismissed.

Wolfe et al v. Taylor et al, 2022 MBCA 48:  Appeal of dismissal of motion for leave to commence a claim in negligence against court-appointed liquidator. Applicant must establish a strong prima facie case before leave will be granted. Appeal dismissed.

7602678 Manitoba Ltd. v. 6399500 Manitoba Ltd., 2022 MBQB 89: Hearing re costs in relation to three previous Orders, instead of in the cause.  Law Society of Manitoba seeks costs in its role as intervenor as a party; its involvement in this matter is over. Review of s. 96 of The Court of Queen’s Bench Act and Queen’s Bench Rules 57.01(1) and (3). Costs are awarded to the Law Society following Class II of Tariff A. Defendant 6399500 is awarded costs at Class III of Tariff A for orders that have been completed.

Fletcher v. Bradbury (MHRC) (No. 2), 2022 MBQB 73: Issue of whether applicant is entitled to access of portions of the Offer or Lease of property held by the Manitoba Housing and Renewal Corporation (MCHR). Applicant requested to view some portions which were redacted. Exception to disclosure is discretionary; public body may refuse disclosure if a reasonable expectation of probable harm is shown. Test is that set out in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (headnotes). MHRC ordered to release the information.

Dennis v. Canada (AG) et al. (No. 2), 2022 MBQB 72: Proceedings under The Class Proceedings Act. Plaintiff filed a class action on behalf of a proposed class of grain producers who sold grain through the Canadian Wheat Board during two crop years (2010-2012). Issue is over regulations passed by the Canadian government increasing the CWB contingency fund cap from $60 million to $200 million. Motion for certification is granted. Proposed Class and Common Issues set out in Appendix A attached to this decision.

Ian Burns. Advance Payments Under Fixed Fee Agreements part of Lawyers` Trust Funds: B.C. Court of Appeal. The Lawyer`s Daily, May 9, 2022. Comment on Law Society of British Columbia v. Guo, 2022 BCCA 154.

Irina Ceric and Jasminka Kalajdzic. Policing Protest via the Civil Law: Class Actions, Injunctions, and the “Freedom Convoy”. (2022) 70 C.L.Q. 247. (WLC – request a copy)

In the aftermath of the so-called Freedom Convoy and the blockades in Ottawa, Windsor, and Coutts, Alberta, crucial questions have emerged about the implication of the use of the civil law to demobilize and criminalize protest movements. Injunctions have long been wielded by governments and corporations against movements for Indigenous and environmental justice, but their invocation by local residents and small businesses against a lengthy and disruptive protest is unusual.

Daniel Escudero. Ontario Court Grants Summary Judgment to Subcontractor after Contractor Breached Trust Condition. The Lawyer’s Daily, June 2, 2022. Comment on Pylon Paving (1996) Inc. v. Beaucon Building Services Inc., 2022 ONSC 3282.

Criminal Law

R. v. Bissonnette, 2022 SCC 23: Challenge to the constitutionality of s. 745.51 of the Criminal Code re punishment that is cruel and unusual by nature. Accused had been sentenced to consecutive 25-year parole ineligibility periods in a case involving multiple first degree murder convictions. Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3]  More specifically, the question before the Court is whether s. 745.51 of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), which was introduced in 2011 by the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, S.C. 2011, c. 5, s. 5, is contrary to ss. 7 and 12 of the Charter. The impugned provision authorizes the imposition of consecutive parole ineligibility periods in cases involving multiple murders. In the context of first degree murders, the application of this provision allows a court to impose a sentence of imprisonment without eligibility for parole for a period of 50, 75, 100 or even 150 years. In practice, the exercise of the court’s discretion will inevitably result in imprisonment for life without a realistic possibility of parole for every offender concerned who has been convicted of multiple first degree murders. Such a criminal sentence is one whose severity is without precedent in this country’s history since the abolition of the death penalty and corporal punishment in the 1970s.
…
[7] The provision challenged in this case allows the imposition of a sentence that falls into this latter category of punishments that are cruel and unusual by nature. All offenders subjected to stacked 25‑year ineligibility periods under s. 745.51 Cr. C. are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.

R. v. Safdar, 2022 SCC 21: Decision delivered orally by Brown, J. At the conclusion of evidence and submissions, the accused applied for a stay based on a breach of his right to be tried within a reasonable time. The trial judge heard the application while preparing his decision on the trial proper. He reserved his decision and granted the stay. Court of Appeal set aside the stay order.

We agree with the Court of Appeal that K.G.K. is dispositive of the central issue in this appeal. For the purposes of determining whether the total delay exceeded the Jordan presumptive ceiling, the time between the conclusion of evidence and argument, and the bringing of the s. 11(b) application in this case, should not have been counted (K.G.K., at paras. 31 and 33; R. v. J.F., 2022 SCC 17 , at para. 27).

R. v. Sullivan, 2022 SCC 19: Also known as Sullivan and Chan. Heard with R. v. Brown, 2022 SCC 18 (below). Constitutionality of s. 33.1 of the Criminal Code in defence of extreme self-induced intoxication akin to automatism. Court of Appeal held that S. and C. were entitled to raise the defence of automatism. S’s convictions were set aside and acquittals entered; new trial ordered for C. Appeals dismissed. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

[5] In R. v. Brown, 2022 SCC 18 , released concurrently with the reasons for judgment in these appeals, I conclude that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is equally applicable to the Crown’s appeals in the cases at bar.

[6] As respondent, Mr. Sullivan has raised an issue relating to the character and force of a s. 52(1) declaration of unconstitutionality issued by a superior court. He argued before us that the trial judge had been bound by a previous declaration by a superior court judge in the province that held s. 33.1 to be of no force and effect. The issue raised by Mr. Sullivan provides an opportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis apply. As I shall endeavour to explain, stare decisis does apply and the trial judge was only bound to that limited extent on the question of the constitutionality of s. 33.1.

R. v. Brown, 2022 SCC 18: Defence of extreme intoxication. Constitutionality of s. 33.1 of the Criminal Code. Appeal allowed, acquittal restored. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

[3] Mr. Brown’s appeal before this Court turns on the circumstances in which persons accused of certain violent crimes can invoke self‑induced extreme intoxication to show that they lacked the general intent or voluntariness ordinarily required to justify a conviction and punishment. Similar matters are at the heart of the Crown appeals in R. v. Sullivan and R. v. Chan, for which judgments are rendered simultaneously with this case (R. v. Sullivan, 2022 SCC 19 ) (the “Sullivan and Chan appeals”).
…
[4] These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, taken alone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generally associated with drunkenness. As I note below, there is good reason to believe Parliament understood that alcohol alone is unlikely to bring about the delusional state akin to automatism it sought to regulate in enacting s. 33.1 of the Criminal Code, R.S.C. 1985, c. C‑46. … I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.
…
[13] The violations of the rights of the accused in respect of the principles of fundamental justice and the presumption of innocence occasioned by s. 33.1 are grave. Notwithstanding Parliament’s laudable purpose, s. 33.1 is not saved by s. 1 of the Charter. The legitimate goals of protecting the victims of these crimes and holding the extremely self-intoxicated accountable, compelling as they are, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliament has created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in some respect, is innocent of the offence as charged according to the requirements of the Constitution.

R. v. J.F., 2022 SCC 17: Right to be tried within a reasonable time – whether the presumptive ceilings established in Jordan apply to retrial delay. Further explanation of the Jordan framework. Appeal allowed. Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.:

[2] This appeal affords the Court an opportunity to decide whether the Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. Two questions arise: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay?
…
[4] The ceilings set in Jordan apply to retrial delay. The framework established in that case protects the right of an accused to be tried within a reasonable time pursuant to s. 11(b), and that provision equally guarantees this right to an accused who is tried a second time. Although it is generally accepted that retrials must be prioritized when scheduling hearings and that they will be shorter than first trials, I do not think it is appropriate to adopt different presumptive ceilings for retrials. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried.

Côté J. (dissenting):

[81]  This appeal concerns the interaction between the culture shift introduced by this Court since R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, the presumptive ceilings within which an accused must be brought to trial, and the situation — not contemplated by Jordan — in which a new trial is ordered. We must propose a pragmatic solution that respects the right of an accused to be tried within a reasonable time while also remaining true to the principles established in Jordan when analyzing delay in the context of a retrial.
…
[84] Of course, the Court’s purpose in Jordan was not to provide second‑rate justice to accused persons, but rather to ensure that their constitutional right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, is respected. Where the prosecution breaches its duty and infringes this fundamental right, a stay of proceedings is the only possible remedy (R. v. Rahey, 1987 CanLII 52 (SCC) , [1987] 1 S.C.R. 588, at p. 614; Jordan, at paras. 35 and 47; R. v. Cody, 2017 SCC 31 , [2017] 1 S.C.R. 659, at para. 24).

R. v. Kinnavanthong, 2022 MBCA 49: Appeal of conviction after a jury trial for the offences of manslaughter, aggravated assault and discharge of a firearm, and appeal of designation as a dangerous offender and the imposition of an indeterminate sentence. Grounds for appeal are that trial judge erred in finding no air of reality to the defence of self-defence; instructing the jury to disregard his submission that it was an accident; and imposing an indeterminate sentence. Both appeals dismissed.

R. v. A.A.J.T., 2022 MBCA 47: Request for leave to appeal sentence for conviction of sexual interference, child pornography offences and more. Accused claims he received a sentence that was harsh and excessive and that the judge did not analyze or properly apply the principle of totality. Leave to appeal granted, appeal dismissed.

R. v. Wood, 2022 MBCA 46: Application for leave to appeal sentence for conviction of manslaughter. Argues that sentence is inconsistent with principle of parity and errors of trial judge caused him to impose an unfit sentence. Sentencing judges are to be afforded wide latitude. Vulnerability of the deceased important factor in determining sentence. Leave to appeal granted, appeal dismissed.

R. v. D.A.B., 2022 MBCA 45: Appeal by Crown of acquittal of sexual assault causing bodily harm and choking to overcome resistance. Crown’s right to appeal restricted to questions of law alone. Appeal dismissed.

R. v. Pietz, 2022 MBQB 93: Application for stay of proceedings due to violation of Charter rights by police conduct. Accused argues that his s.7, 9 and 10(b) rights were violated by the police and requests a stay of proceedings. Bond, J. finds that rights were not violated, and even if they were, a stay would not be the appropriate remedy. Application dismissed.

R. v. C.P.R., 2022 MBQB 71: Sentencing for accused who was convicted of several sexual assault and child pornography offences. Harris, J. noted there is little guidance on sentences based on the facts in this case (para 39). Review of cases decided since Friesen. Court finds an extremely high level of moral blameworthiness of the accused. Appropriate sentence is 14 years, but reduced to 10 when taking into respect the principle of proportionality.

R. v. Unrau, 2022 MBQB 67: Appeal of conviction in provincial court for dangerous driving, driving while impaired and driving over .08. Appeal based on errors in law over several issues; standard of review is correctness. Significant analysis of whether s.11(b) delay was calculated correctly. Appeal dismissed.

R. v. K.S.S., 2022 MBPC 22: Sentencing decision for intimate partner aggravated assault. Accused has drug addiction issues and faces immigration consequences. Partner was an unwilling participant and required a witness warrant. Aggravating factors include impact to partner and her children, it was committed in the family home; mitigating factors include lack of prior record, rehabilitative efforts and expression of remorse. Martin, P.J. finds that a sentence of three years incarceration is appropriate.

R v J.O., 2022 MBPC 19: Hearing to determine admissibility of certain evidence. Criteria for admissibility set out in s. 276 of the Criminal Code. Some is admitted, while other evidence is not. Rolston, P.J. leaves room to readdress this during trial.

R. v. McLachlan,2022 MBPC 13: Sentencing decision for conviction of sexual interference, examining the impact of R. v. Friesen on case law pre-dating that decision. Discussion of sentencing principles under s. 718 of the Criminal Code. Primary consideration is to the objectives of denunciation and deterrence, as offence was against a vulnerable female child under the age of 18. Offending is on the very high end of the spectrum (para. 24). Martin, P.J. finds an appropriate sentence is 13 years’ incarceration for sexual interference and a concurrent sentence of 10 years for invitation to sexual touching.

Amanda Jerome. Court Affirms Jury Should Not be Given “Traditional Caution” on Exculpatory Eyewitness Evidence: Counsel”. The Lawyer’s Daily, May 9, 2022. Comment on R. v. Grant, 2022 ONCA 337.

Tim Quigley. “Sadly, No RIP for Starting-Point Sentences”. (2022) 75 C.R. (7^th) 306 (WLC – LSM members can request a copy).

In a recent article, Paul Moreau made a compelling case for the abolition of starting-point sentences. Sadly, in R. v. Parranto, a majority of the Supreme Court rejected the arguments to rid our sentencing process of these pernicious approaches. Indeed, as I shall argue below, the Court has shown more than mere acceptance of starting points as a form of appellate guidance to sentencing judges. Rather, the Court’s position reinforces both starting-point sentencing and the imposition of long prison sentences. This is despite strong pronouncements in favour of appellate deference in sentencing review and the role that starting-points may play in that review.

Family Law

B.J.T. v. J.D., 2022 SCC 24: Child custody – child was found in need of protection from mother. Maternal grandmother and child’s father submitted competing parenting plans.  Hearing judge awarded custody to the grandmother; majority of the Court of Appeal reversed the decision and awarded custody to the father. Appeal allowed, the hearing judge made no legal errors that warranted appellate intervention and that decision was entitled to deference. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

[2] At the conclusion of the appeal, we unanimously allowed the appeal. We set aside the decision of the Court of Appeal and restored the order of the hearing judge awarding the permanent custody and guardianship to the grandmother pursuant to s. 38(2)(e) of the Child Protection Act. Under the terms of the hearing judge’s final disposition, the grandmother was immediately entitled to the custody and guardianship of the child in P.E.I., and the Director was required to return him to the grandmother … at the expense of the Director.

Barendregt v. Grebliunas, 2022 SCC 22: Appeal of relocation order, where father admitted additional evidence on appeal. Primary residence of children was awarded to the mother at trial; appeal court overturned based on additional evidence. Analysis of the Palmer test for the admission of new evidence and whether it can be applied in a family law case. Karakatsanis J. (Wagner C.J. and Moldaver, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3] In my view, the test in Palmer v. The Queen, 1979 CanLII 8 (SCC) , [1980] 1 S.C.R. 759, applies whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial. Appellate courts must apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice, regardless of when the evidence, or fact, came into existence.

[4] In cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life. At the same time, finality and order are critically important in family proceedings, and factual developments that occur subsequent to trial are usually better addressed through variation procedures.

[5] In this case, the Court of Appeal for British Columbia held that Palmer did not strictly govern the admission of new evidence on appeal. Instead, it applied a different test and admitted the evidence. It erred in doing so.

Côté J. (dissenting):

[193] … I disagree with my colleague’s application of Palmer to the facts of this case. Appellate courts that strictly apply the Palmer test tend to focus too narrowly on the potential for further evidence to distort the appellate standard of review rather than properly focusing on the best interests of the child as the overriding consideration. The Palmer test must be applied flexibly in all cases involving the welfare of children. My colleague recognizes this well‑established principle, yet her application of Palmer is devoid of flexibility.

[194] On a proper application of Palmer, I would admit the new evidence and remand the appeal to the trial court for reconsideration of the children’s best interests in light of the new information regarding the father’s financial situation and the condition of the West Kelowna home. The effect of holding otherwise would be to relocate 2 children 1,000 km away from their father based on an inaccurate picture of reality.

Metis Child, Family and Community Services v. C.P.R. et al, 2022 MBCA 40: Private guardianship dispute. Motion by Peguis First Nation CFS for leave to intervene in the appeal of an order of guardianship in relation to A.D.R. Reference made to new federal Indigenous child and family services legislation, An Act Respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24. Motion granted.

 Swerid v. Swerid, 2022 MBQB 94: Variation proceeding over post-majority support for two children with no relationship with the payor parent. Discussion of the onus of proving “child of the marriage”. Analysis of the effect of the change in circumstances. Respondent had onus of proving that the children were children of the marriage after their 18^th birthday. Mirwaldt, J. found she did not meet that. Final Order varied ending child support at children’s 18^th birthday; various respondent must repay child support overpaid; petitioner owes education costs he agreed to in separation order.

 Mann v. Mitchell, 2022 MBQB 92: Motion by respondent for various forms of relief in high conflict proceedings, including security for costs, an order that petitioner be declared a vexatious litigant, an order of sole custody as well as others. Petitioner’s motion for recalculation of child support payments, change in location of periods of care and control and other relief, is dismissed. Both parties are self-represented. Trial dates have been postponed several times due to the pandemic, but are now set for February 2023. Motion dismissed.

 Gerrow v. Minty, 2022 MBQB 91: Trial to determine child support and amount of income to impute to mother (respondent). Parents had switched from mother having majority parenting time to shared parenting time (50-50). Mother manages property for her father, as well as a few private clients. Leven, J. imputes income at minimum wage for full time work. Father claims increased costs, e.g. cost of gas, child care but his evidence is sparse. After set-off, child support ordered at $520/month.

Johnson v. Miazga, 2022 MBQB 90: Application for summary judgment to divide family property based on the terms of a purported agreement reached between the parties at a case conference. Respondent claims there was no “meeting of the minds” due to medical incapacity, even though she was represented by senior counsel at the time. Secondary issue of a request for a variation of drop-off and pick-up of children. Analysis of whether summary judgement is an appropriate method, whether the respondent was temporarily incapacitated, and whether the agreement reached was unconscionable. Petersen, J. granted summary judgment.

Pedersen v. Pedersen, 2022 MBQB 86: Respondent’s motions opposing confirmation of Master’s Report and request to admit fresh evidence. Master’s Report will be adjudicated at trial in the fall. Thomson, J. relies on the test (would the evidence, if presented at trial probably have changed the result; and could the evidence have been obtained before trial by the exercise of reasonable diligence) in dismissing the respondent’s motion.

Wright v. Wright, 2022 MBQB 78: Request by respondent for leave to amend answer to petition for divorce to request an unequal division of family property. Bar for unequal division of property is a high one, relying on Moskal v. Costco Wholesale Corporation, 2015 MBCA 108. Motion granted.

 Esler v. Busch, 2022 MBQB 76: Decision re request by petitioner for dismissal due to delay of an answer (not a petition) filed on behalf of respondent. Petition originally filed in September 2015; respondent filed an answer in December 2016. Pre-trial held in April 2018, and a consent order pronounced in August 2018. No further activity on the file. Significant discussion of Rules 24.01 and 24.02 and how they apply in family proceedings. Master Patterson found that there was a delay that was not to be condoned, as per Hryniak. Husband is successful.

Lesy v. Lesy, 2022 MBQB 68: Application for grandparent access under The Child and Family Services Act. Grandparents want substantial contact with their granddaughter; father wants no contact, or in the alternative, limited supervised visits. Grandparents initially brought application in Saskatchewan which was unsuccessful. Analysis of the doctrine of res judicata as well as other grandparent access cases. Grandparents were successful in receiving some supervised in-person access as well as telephone or video contact.

  Cristin Schmitz. SCC Rules Biological Ties Carry “Minimal Weight” in Determining Child’s Best Interests for Custody. The Lawyer’s Daily, June 3, 2022. Comment on 2022 SCC 24.

Labour and Employment Law

Hussey v. Bell Mobility Inc., 2022 FCA 95: Appeal over the application of the reasonableness standard in a wrongful dismissal case. Appellant appeals dismissal of an application for judicial review of an adjudicator appointed under the Canada Labour Code. Adjudicator found she had been unjustly dismissed but declined to reinstate her. Instead, she was awarded compensation as well as partial costs. Respondent employer cross appeals on the issue of costs. Statutory provision at issue is ss.242(4). Analysis of the common law approach versus the fixed term approach to unjust dismissal (para 25-31). Both appeal and cross-appeal dismissed.

Labour Arbitration Cases are now on CanLII! CanLII is pleased to announce the completion of a project to scan and add the decisions that were published in Labour Arbitration Cases (LAC) to CanLII.org!

Legislation

Federal

Recent Activity

Provincial

The House adjourned on June 1, 2022. The 4^th Session of the 42^nd Legislature will reconvene on Wednesday, September 28, 2022 at 1:30 p.m.

Bills Passed

Proclamations