eLex July 2022

by Karen Sawatzky | Jul 11, 2022 | eLex

Table of Contents

News

From P.E.I.’s Court of Appeal: R. v. Skye View Farms Ltd. et al., 2022 PECA 1. River flooded and dead fish were found. Fisheries officers collected water and soil samples from a farmer’s field abutting the river. What is the proper test to apply for a s.8 Charter infringement? Interpretation of s. 49(1) (inspection) and s. 49.1 (investigation) of the Fisheries Act as well as degree of privacy a commercial farmer can reasonably expect.

Court Notices & Practice Directions

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

Court of Queen’s Bench

• June 16, 2022 – Amendments to the Court of Queen’s Bench Rules 
• June 24, 2022 – Distribution of Written Court of Queen’s Bench Judgments 

Practice directions

Provincial Court

• June 22, 2022 – Prisoner Transport, Imposition of a Penitentiary Sentence 
• June 16, 2022 – 2pm Trials Pilot Project

Law Society of Manitoba Discipline Digests

The Law Society of Manitoba v. Murray 2022 MBLS 7

New Library Resources

New in Print

A Practical Guide to Distribution Agreements – “Because distribution agreements cover a diverse range of products and are applicable across the commercial sector, A Practical Guide to Distribution Agreements is essential reading for anyone providing or purchasing goods for distribution. It not only includes an in-depth discussion of the numerous complex issues that can arise in distribution agreements, but also provides step-by-step guidance through the elements of a proper distribution contract – from the parties and the structure, to the scope of the agreement.”

Canadian Tort Law, 12th Edition – “When Canadian Tort Law was first published in 1972, it became the first treatise on the law of torts in Canada. The twelfth edition continues the standard of excellence achieved by each previous edition. As the treatise most commonly cited by the Supreme Court of Canada and other Canadian courts, Canadian Tort Law has greatly influenced the development of tort law in Canada. The text has been updated and in places substantially re-written to reflect changes in tort law in the past few years”

The Law of Unincorporated Associations in Canada – “Unincorporated associations include everything from political parties, sports associations and trade unions, to religious associations and social clubs. Despite the critical role that many of these organizations play in Canadian society, Stephen Aylward explains that, “[s]trictly speaking, unincorporated associations do not exist in the eyes of the law.” Unlike partnerships and corporations, unincorporated associations are not governed by any specific legislation and, as a result, this area of the law has developed primarily through the courts and the application of the law of contract, agency and trusts. In The Law of Unincorporated Associations in Canada, Aylward takes this patchwork quilt of authorities and creates a synthesized manual that lawyers can rely on when advising clients in this space.”

The Construction of Statutes, 7th Edition – “Part art, part science – that’s the essence of effective statutory interpretation. And understanding that balance is precisely the kind of insight you’ll glean from this latest edition of the industry-leading resource, The Construction of Statutes. This is a volume that no lawyer can afford to be without: knowing how to read and apply statutes, and to construct sound arguments regarding statutory interpretation, is a critical skill to possess, regardless of specialty or area of practice. This seventh edition offers a comprehensive and up-to-date examination of the rules and principles governing statutory interpretation, including the latest cases and developments.”

New Online Titles

Available in the Library Resources section of the Member’s Portal

From Emond’s Criminal Law Series

Indigenous People and the Criminal Justice System, 2nd Edition

“Indigenous people are the most over-represented population in Canada’s criminal justice system. Their experiences within the system are interwoven with issues of colonialism and discrimination. Indigenous People and the Criminal Justice System, 2nd Edition, examines these issues and their impact to provide lawyers and judges with a deeper understanding of this area of the law. “

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 2

Reviewed by Kim Clarke, Bennett Jones Law Library University of Calgary

Millennial Leadership in Law Schools: Essays on Disruption, Innovation, and the Future. Edited by Ashley Krenelka Chase. Gretzville, N.Y.: William S. Hein, 2021. xxi, 218 p. Includes references. ISBN 978-0-8377-4136-9 (softcover) US$99.00

“One often struggles to find connections between works in collections of essays. That is not the case with this book. Its narrow focus on millennials and the repetition of themes of their collaborative nature, technological leaning, and ability to relate to law students (most of whom are millennials) provides a smooth flow between the essays.”

Substantive Law

Administrative Law

Stadler v. St. Boniface/St. Vital (Director), 2022 MBCA 56: Dispute over when a disabled individual receiving income assistance must apply for federal retirement or old age benefits. First dispute was when the appellant turned 60 – CA ruled he did not have to apply for benefits until age 65 (2020 MBCA 46). In this matter he wishes to delay applying until age 70. Appeal is based on the following questions of law: Did the Board err in confirming the decision to suspend income assistance benefits pending confirmation he had applied for OAS/GIS; Did the Board err in determining that it does not have jurisdiction to review the constitutionality of its own legislation. Appeal dismissed.

Pensions/Constitutional Law: Tribunal Jurisdiction re Constitutional Issues; s.15. Supreme Advocacy: Court of Appeal Decision of the Week, June 22, 2022. Comment on Stadler v. St. Boniface/St. Vital (Director).

Paul Daly. The Ages of Administrative Law, Public Law Conference, University College Dublin, July 2022. 2022 CanLIIDocs 1400.

In this paper, I tell the story of the administrative state from two perspectives in a tale spanning three distinct periods. One perspective is that of the structure of the state, which is focused on the entities created to carry out legislative policy. The other is the perspective of judicial review of administrative action. This is the story of how the courts came to oversee the administrative state.

Civil Litigation

British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27: Issue of whether an organization can maintain an action via public interest standing.

Per Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3] In this appeal, the Council of Canadians with Disabilities (“CCD”) seeks public interest standing to challenge the constitutionality of certain provisions of British Columbia’s mental health legislation. CCD originally filed its claim alongside two individual plaintiffs who were directly affected by the impugned provisions. The individual plaintiffs discontinued their claims, leaving CCD as the sole plaintiff. CCD sought public interest standing to continue the action on its own.

[4] The Attorney General of British Columbia (“AGBC”) applied for dismissal of CCD’s action on a summary trial. He argued that the lack of an individual plaintiff was fatal to CCD’s claim for public interest standing because, without such a plaintiff, CCD could not adduce a sufficient factual setting to resolve the constitutional issue. In response, CCD filed an affidavit in which it promised to adduce sufficient facts at trial. The Supreme Court of British Columbia granted the AGBC’s application, declined to grant CCD public interest standing, and dismissed CCD’s claim. The Court of Appeal allowed CCD’s appeal and remitted the matter to the Supreme Court of British Columbia for fresh consideration. The AGBC appeals that decision.

[5] For the reasons that follow, I would dismiss the appeal, but grant CCD public interest standing, with special costs in this Court and in the courts below.

Henderson v. The Manitoba Public Insurance Corporation, 2022 MBCA 57: Appeal by defendant MPI of dismissal of motion relating to the availability of the remedy for damages. Plaintiff is arguing breach of contract and/or negligent advice over purchase of motor vehicle insurance. Issues are: Is MPI liable for either breach of contract or negligence; if liability is found, what is the appropriate remedy; quantification of damages, if entitled. Motion judge’s role is to determine the essential character of the dispute; trial judge has the jurisdiction to determine the action (i.e. liability). Appeal dismissed.

6191763 Manitoba Inc. et al. v. 5801916 Manitoba Ltd., 2022 MBQB 82: Competing motions for summary judgment over oral contract dispute. Plaintiff and defendants negotiated an oral agreement to develop a piece of property. After hearing the evidence (both affidavit and live) Lanchbery, J. determined a trial was necessary.

Rempel v. Gentek, 2022 MBQB 128: Motion by defendant to dismiss plaintiff’s wrongful dismissal action for delay (Rule 24.02(1)). Issue of whether three or more years have passed without a “significant advance” in the action. Governing test set out in Buhr v. Buhr, 2021 MBCA 63. McCarthy, J. finds that the preparation and filing of the pre-trial brief was a significant step and therefore, constituted a significant advance. Motion dismissed.

CB Dinners Inc. v. J. Brandt Enterprises (2013) Ltd., 2022 MBQB 126: Dispute over the purchase of a refurbished long-haul trick. Plaintiff seeks damages equal to the aggregate costs incurred to address the engine failure and other repairs. Plaintiff assumed two year warranty on sales invoice referred to the entire truck, not just the replaced “engine inframe”. Issue of contractual interpretation. Kroft, J. finds that the plaintiff has not established on the evidence that the defendant is responsible for the damage.

Gzebowski v. Ogwal, 2022 MBQB 121: Application to determine the value of a property jointly owned by the parties, so that the applicants can buy out the respondent’s interest. Greenberg, J. must determine approximately how much each party contributed; neither party has complete documentation. Parties had hoped to sell the property but there was no interest in it. Matter had been ongoing for several years. Court sets the amount owing, applicants are awarded costs at the Tariff amount (Class III).

Knutson Building Ltd. v. Winnipeg Environmental Remediations Inc. et al, 2022 MBQB 119: Motion for dismissal for long delay (Rule (24.02(1)). Issues of whether the appeal should be deemed abandoned; whether fresh evidence should be permitted; whether the claim should be dismissed for long delay; and whether the court should exercise discretion to ensure justice is done. Plaintiff’s lawyer was dealing with personal and professional problems during the matter. Appeal brief was filed two weeks later than the rules allowed. Martin, J. revived the appeal. Application to admit fresh evidence denied. Claim dismissed for long delay. Court does not exercise discretion to revive it.

Ostrowski v. 4445211 Manitoba Ltd. o/a Tan FX et al., 2022 MBQB 112: Plaintiff seeking judgment for amount representing deposits she had paid for the purchase of a tanning salon. Defendant’s position is that the defendants were entitled to retain the deposits. Issue of contractual interpretation. Summary judgment is appropriate in this case where facts are agreed to. Plain reading of contract allows defendant to retain deposit but must return remaning funds to plaintiff.

Capital Commercial Real Estate Services Inc. v. Bibeau, 2022 MBQB 105: Matter between two parties who disagree on an oral contract. Plaintiff claims defendant agreed to pay him $300,000; defendant says it was $200,000. Parties had extensive business relationship, which was why there was no written agreement. Plaintiff put forth several documents defendant would have reviewed. Grammond, J. found no consistency between the documents such that the defendant could have misunderstood the fee. Claim dismissed.

McIntyre v. Potter, 2022 MBQB 103: Motions to add a group of third parties to a matter. Test is set out in Loeppky et al v. Taylor McCaffrey LLP et al., 2019 MBQB 59. Also considered Vale v. Schwartz et al., 2021 MBQB 46. Plaintiffs sued two sets of defendants in contract and tort, but filed a notice of discontinuance against the second set of defendants. Plaintiffs also signed a release, releasing the second set of defendants from all liability. Motions granted.

Supel v. Cunningham, 2022 MBQB 96: Claim in defamation. Plaintiff sued defendant for an injunction and damages; defendant was noted in default. Plaintiff moved for judgment, and defendant moved to set aside the noting of default so she could file a defence. Motion denied. Matter proceeded to default judgment hearing. Defamation was via social media posts. Analysis reviewed Crookes v. Newton, 2011 SCC 47, Grant v. Torstar Corp., 2009 SCC 61, and Rainy River (Town) v. Olsen, 2017 ONCA 605. Martin, J. awarded general damages of $25,000, aggravated damages of $10,00 and punitive damages of $10,000 plus special damages of $262.50; costs of double Tariff A, Class 2, plus full disbursements.

Ostrowski v. Dubois, 2022 MBQB 95: Defendant seeks order that plaintiff’s claim be dismissed due to delay. Action started when plaintiff sued defendants for breach of contract for money he had lent her. Defendant claims monies advanced were a gift, not loans. Parties executed a settlement agreement in May 2012. Analysis of Queen’s Bench rules 24.02(1), 24.02(1)(a), 24.02(1)(e) and 24.01, all centering around “long delay”. Motion dismissed.

Stewart v. 6551450 Manitoba Ltd. et al; 6551450 Manitoba Ltd. v. Spence, 2022 MBQB 84: Litigation involving two claims related to efforts to sell a parcel of land. One claim is a dispute over a loan made between Stewart and 6551450 MB (“655”); other claim is between 655 and Peguis First Nation for breaching fiduciary and contractual duties. Stewart loaned 655 $600,000 as noted in meeting minutes and a promissory note but no loan agreement. 655 claimed there was no loan. Harris, J. found there was enough documentary evidence to show there was a loan. Breach of fiduciary duty was over purchase agreement. Deal required approval by the RM to develop a quarry on the parcel of land. Harris found no breach; claim dismissed.

Constitutional Law

Flette et al. v. The Government of Manitoba et al., 2022 MBQB 104: Four proceedings combined addressing common issues of the constitutional validity of legislation and certain actions of Manitoba dealing with provincial funding of child protection and welfare. Proceedings allege inappropriate conduct by Manitoba relating to the Children’s Special Allowance (CSA). Manitoba directed CFS Agencies within some First Nations authorities to remit the CSA to Manitoba. Some agencies refused. Issue is over whether the allowance should be remitted to the province or if it is to be remitted to the agency for use on behalf of the child. Edmond, J. lays out the context respecting the constitutional challenges (para 61). Analysis of the intermingling of The Budget Implementation and Tax Statutes  Amendment Act, 2020, S.M. 2020 c. 21 (BITSA and CSA.

Criminal Law

R. v. J.J., 2022 SCC 28: Challenge to the constitutionality of ss. 278.92 to 278.94 of the Criminal Code, dealing with the record screening regime for sexual offences. Includes definition of a “record” (para. 34). Crown’s appeal should be allowed, J.’s cross-appeal dismissed, S.’s (complainant) appeal allowed and application judges’ rulings quashed.

Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Before determining the constitutionality of the impugned provisions, it is necessary to interpret them. First, it must be determined what qualifies as a “record” for private record applications, using s. 278.1 as the starting point. The definition of “record” creates two distinct groups: (1) records that fall within enumerated categories; and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy. 

Per Brown J. (dissenting in part): The record screening regime enacted under ss. 278.92 to 278.94 of the Criminal Code limits the accused’s rights under ss. 11(c), 11(d) and 7 of the Charter. These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. Therefore, ss. 278.92 to 278.94 should be struck down, with immediate effect, but only as those sections relate to the record screening regime. 

Per Rowe J. (dissenting in part): On the merits, there is agreement with Brown J. that ss. 278.92 to 278.94 of the Criminal Code are unconstitutional and of no force and effect except in so far as they apply to the existing s. 276 regime. The legislation restricts the fair trial rights of accused persons by placing limits on how they can conduct the cross‑examination of Crown witnesses and what evidence they can introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants. 

Per Côté J. (dissenting in part): There is agreement with Brown J. that the record screening regime does not come close to passing constitutional muster. There is also agreement with Rowe J.’s analytical approach in respect of s. 7 of the Charter. However, there is disagreement with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. A narrow interpretation should be preferred.

R. v. Goforth, 2022 SCC 25: Issue of charge to jury and whether it may have misled the jury. Appeal allowed and convictions restored.

Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Kasirer JJ.: The jury was properly instructed. The jury charge functionally conveyed the mens rea requirements such that there is no reasonable possibility that the jury would have been confused. The charge also sufficiently recited the evidence about the circumstances that the accused argued prevented him from foreseeing the risk of harm to the children. As well, the jury was well‑equipped to make a common sense assessment of whether failing to provide food or fluids to young children constituted a marked departure from the conduct of a reasonably prudent person.

Per Brown, Martin and Jamal JJ.: The jury charge, when viewed from the functional perspective required by the jurisprudence, did not properly equip the jury to decide the case according to law. However, as no substantial wrong or miscarriage of justice flowed from the deficient instructions, the curative proviso should be applied. There is therefore agreement with the majority that the appeal should be allowed and the convictions restored.

R. v. Hall, 2022 MBCA 59: Sentence appeal; accused argues it is demonstrably unfit as it is harsh and excessive. He received a nine year sentence for four counts of robbery with a weapon. Leave to appeal denied.

R. v. Reimer, 2022 MBCA 55: Appeal of dismissal of application for an order of habeas corpusand mandamus. Accused is charged with two counts of second-degree murder and plans to assert a defence of not criminally responsible. Crown obtained an order for an assessment but it can’t be completed within the 30-day time frame. Assessment order had lapsed by the time came before the application judge; it was dismissed as moot. Appeal dismissed.

R. v. Cleveland, 2022 MBCA 54: Appeal of conviction on a charge of first degree murder. Accused is self represented. Grounds of appeal are the trial judge’s decision to admit similar fact evidence; adequacy of the charge to the jury; and ineffective assistance of counsel at trial. Appeal dismissed.

R. v. Siwicki, 2022 MBCA 53: Appeal of order dismissing appellant’s application re a request to change the venue of sentencing. Critical question is whether a court maintains oversight of such requests. Analysis of interpretation of s. 479 of the Criminal Code. Analysis of concepts of “jurisdiction over the offence” and “jurisdiction over the person”. CA found that Court, not parties, has the final word on where a sentencing hearing will occur.

R. v. F. (J.M.), 2022 MBCA 52: Appeal for conviction for first degree murder, and leave to appeal sentence. Trial judge convicted the appellant based on circumstantial evidence. Issue of admissibility of a cellphone and its contents. Trial judge found a breach of s. 10(b) of the Charter, but after conducting a s. 24(2) analysis, admitted the evidence. CA determined trial judge should have considered the provisions of s. 146 of the YCJA. Conviction and sentence set aside; matter remitted back to trial court for a new trial.

R. v. D.L., 2022 MBQB 127: Accused charged with sexual assault. Complainant testified she was intoxicated and had no memory of the events. Accused testified that she wasn’t overly drunk and there was consent. Court must consider a W.(D.) analysis. Leven, J. found accused was not credible; accused guilty as charged.

R. v. Williams, 2022 MBQB 125: Sentencing decision for conviction of manslaughter. Accused was in a drug-induced psychosis at the time. Many aggravating factors and no mitigating factors in terms of the offence itself. McCarthy, J. takes judicial notice of Gladue factors impacting the offender. None of the case law provided by Crown and defence counsel was directly on point. Due to violent nature of crime, accused is sentenced to life in prison.

R. v. Pierpoint et al., 2022 MBQB 117: Request that indictment be stayed due to delay. Applicants were released after their arrest and have remained out-of-custody throughout the proceedings. Crown argues that the delay was caused by the impact of COVID-19, courts were closed for out-of-custody trials for five months. Both parties provided an extensive factual underpinning relevant to the court’s consideration. Determination that the systemic impact of the pandemic is an exceptional circumstance, and that this is a complex case also giving rise to exceptional circumstances. Application dismissed.

R. v. D.J.S., 2022 MBQB 116: Sentencing decision for conviction of one count of sexual assault. Rempel, J. explained the difficulties in determining a fair and just sentence. Complainant was 14 and on the autism spectrum; accused was 23 and diagnosed with schizophrenia. Review of role of sentencing, including Gladue and Ipeelee factors. Primary consideration must be given to the objectives of deterrence and denunciation. Crown is seeking a sentence of five years less pre-sentence credit. Defence argues five years would be crushing to the accused due to his mental illness and ability to receive treatment. They argue two years less a day plus a significant period of probation would be appropriate. Court imposed a period of incarceration of three years and six months plus ancillary orders.

R. v. P.K., 2022 MBQB 107: Application to terminate a SOIRA order under s. 490.015(1)(b) of the Criminal Code. Accused was required to be registered for a period of 20 years. Onus is on the accused to satisfy the requirements for termination on the balance of probabilities. Keyser, J. sets out the test as found in R. v. D.D., 2020 BCCA 169. Order terminated.

R. v. Muskego, 2022 MBQB 101: Accused charged with possession of a prohibited weapon, unlawful storage of a firearm and intentionally discharging a firearm. Trial raises the issue of false confessions. Consideration of R. v. Pearce (M.L.), 2014 MBCA 70. Accused found guilty of discharging a firearm; other charges withdrawn.

R. v. A.C., 2022 MBQB 99: Trial for charges of assault, assault with a weapon and sexual assault between domestic partners. Assaults took place over many years; complainant had difficulty determining exact dates. Leven, J. considers R. v. Barton and R. v. W.(D) in his analysis. Accused found guilty of sexual assault, common assault, and not guilty of assault with a weapon.

R. v. Parker, 2022 MBQB 66: Sentencing decision after guilty plea for possession of a loaded prohibited firearm, breach of a weapons prohibition order and assault. Accused committed offences while under the influence of various drugs. He was released on a strict curfew and enrolled in a treatment program on his own initiative. Crown is seeking a total sentence of 42 months imprisonment; defence seeks a total sentence of two years less a day, conditionally. Overarching principle is proportionality. Drug addiction is both an aggravating and mitigating factor. Suche, J. considers numerous cases on sentencing both for and against imprisonment. Court determines a conditional sentence following by three years probation will be effective.

R. v. Mamula, 2022 MBPC 34: Application for a stay of proceedings due to delay. Total delay is 33 months and 25 days. Crown argues that but for the COVID pandemic, the trial would have occurred in September 2020. Defence argues that the Crown failed to take reasonable steps to mitigate the delay. Devine, P.J. finds that the court and the Crown did take mitigating steps; application dismissed.

R. v. Shamrat, 2022 MBPC 33: Application to stay proceedings due to delay. Trial has been adjourned and rescheduled six times, due to restrictions during the pandemic. Arrest was on September 7, 2019. Applicant has been out of custody since his arrest. Total delay is 33 months and 21 days. Delay by defence amounts to 53 days. Analysis of other jurisdictions’ responses to the impact of the pandemic to trial schedules and whether six adjournments counts as “exceptional” and a “discrete event”. Carlson, P.J. finds delay attributable to exceptional circumstances amounts to 24 months.

R. v. S.A., 2022 MBPC 28: Sentencing decision re guilty plea for distribution of intimate images. Extensive canvas of treatment of other offenders from different jurisdictions, as well as two from MBCA. Deterrence and denunciation are the primary sentencing objectives. Both aggravating and mitigating factors to take into consideration. Heinrichs considered a Conditional Sentence Order but determined the aggravating factors warranted a custodial sentence. Sentence of nine months in custody and a two year order of supervised probation.

R. v. Shuvera, 2022 MBPC 27: Sentencing decision for one count of dangerous driving causing bodily harm. Accused pleaded guilty. Complainant received serious injuries from the collision. Review of authorities indicates a sentencing range of no jail to significant jail. Custodial sentence of eight months followed by two years of supervised probation.

R. v. Dew, 2022 MBPC 26: Trial of accused charged with luring based on text communications with a 15 year old. Only issue is whether the communication constituted the offence of luring. Explanation of operation and purpose of the offence of luring set out in R. v. Legare, 2009 SCC 56. Accused found guilty.

R. v. Genaille, 2022 MBPC 25: Voir dire decision re application to admit co-accused’s hearsay statement for truth. Accused Richard provided a video statement to the police denying accused Genaille’s involvement. Crown did not seek to tender the comments at trial. Application dismissed; threshold reliability has not been established.

Cristin Schmitz. Ottawa Proposes Narrower Self-Induced Extreme Intoxication Defence to Violence to “Fill the Legal Gap”. The Lawyer’s Daily, June 20, 2022.

Ryan Clements. Cross Country Noteup – Criminal Appeals. CanLIIConnects. Short summaries of criminal appeals from all jurisdictions published on a monthly basis.

Steve Coughlan. R. v. McKenzie: Continuing Confusion on Common Law Powers, (2022) 77 C.R. (7^th) 330. (WLC – LSM members can request a copy.)

In most ways the result in McKenzie[2022 MBCA 3]  is unremarkable. Police observed a known gang member who was known to carry weapons and who seemed to be concealing one at that moment, detained him, found the weapon, and he was convicted. Once the accused’s challenge on appeal to the trial judge’s findings that underlay the relevant legal tests failed, there was no other plausible result than that the detention and search would be found to be lawful. At the same time, the case illustrates the confusion inherent in common law powers such as investigative detention and search incident to investigative detention. Some aspects of this are commented on by the Manitoba Court of Appeal, while others are demonstrated by the decision.

Family Law

A.A.O. nka T.L.K. v. N.O.O. et al., 2022 MBCA 58: Respondent appeals order granting petitioner sole custody, setting child and spousal support, and apportioning daycare expenses. Key to the sole custody order was that the respondent had been charged criminally with aggravated assault of an infant in her care. Family law orders are entitled to considerable deference absent an error in principle, a significant misapprehension of the evidence or an award that is clearly wrong. None of those apply; appeal dismissed.

C.E.S. v. S.O.S., 2022 MBQB 120: Issue of the allocation and form of parenting time petitioner is to have with the parties’ daughter. Petitioner wants equal time; respondent says current arrangement, limited time and supervised, should remain the same. Complex family history; petitioner made claims to Child and Family Services resulting in abuse investigations of the respondent. Agency determined that children were at risk of harm with petitioner, instead. Thomson, J. orders minor adjustments to support paid under the interim orders and current parenting arrangements remain.

Lukianchuk v. Lukianchuk, 2022 MBQB 115: Motion to rescind a variation order filed pursuant to Rule 37.11(1). Petitioner (wife) was in the middle of changing counsel when the order was filed. Respondent (husband) asked for arrears to be set at $0.00. No one disclosed that Maintenance Enforcement Program had issued a creditor statement of account stating that there was an enforceable balance of arrears of child support owed by the husband in the amount of $64,415.68. Analysis of petitioner’s actions show she did not proceed “promptly”. Application dismissed.

Chen v. Ma, 2022 MBQB 114: Issue re child support as provided in a written agreement made between the parties in 2016. Daycare expenses not included in consent final order and divorce judgment but included in agreement. Parties are to share the expense on a 50/50 basis. Issue is whether it should be gross daycare expenses or net (after deduction for expenses under the Income Tax Act). Thomson, J. rules that the plain meaning of the agreement means the net expense, agreeing with the defendant.

Blanchard v. Maxwell, 2022 MBQB 113: Dispute over child support, timing and location of weekly exchanges and imputation of income. Parties had an interim court order for child support. Mother wished to make changes to pick-up/drop-off due to difficulties of current arrangement; father did not want to make any changes. Mother had detailed proposal for alternatives, father did not. Leven, J. imputed income for both parties to arrive at new child support award of $812/month, plus arrears.

CFS Western MB v. M.L.K. and T.D.R., 2022 MBQB 106: Agency seeks a permanent order for a child apprehended in 2019. Mother’s father and father’s sister seek guardianship (separately). Mother and father oppose order sought by Agency, and want the child returned to them. Child is Indigenous; Abel, J. takes into consideration the provisions of An Act respecting First Nations, Inuit and Métis Children Youth and Families, S.C. 2019 c. 24 which has a more expansive list of factors to be considered when determining the best interest of a child. Neither parent is able to provide adequate care at this time. Discussion of whether a permanent order, a temporary order or an alternate placement order would be best.

Trojnar v. Trojnar, 2022 MBQB 102: Motion to set aside a variation order for spousal support. Order had been pronounced after two lengthy JADR sessions. Issue over a term that the lump sum spousal support payments could be used as a deduction on the petitioner’s tax returns for two years. He later discovered he could not obtain the tax refunds he anticipated. Motion pleaded “common mistake”, and also relied on Queen’s Bench Rule 59.06(2)(a). Motion dismissed.

Wright v. Wright, 2022 MBQB 97: Master’s decision on disputed property issues. Contested issues included vehicles, valuation of a family-controlled small business corporation, and RRSPs. Master Patterson commented on the lack of evidence for parties’ respective positions as jeopardizing a desired outcome.

Stephanie Dickson, Melanie Battaglia. Child Support for Adult Children and Children with a Disability: The Impact of ODSP, the Disability Tax Credit, RDSP and RESP. (2022) 40 C.F.L.Q. 169 (WLC – LSM members may request a copy.)

In this article, we provide a summary of the primary types of public benefits, tax credits and social assistance programs available to the family when supporting an adult “child” with a disability. In particular, we discuss the Ontario Disability Support Program (“ODSP”), the Federal Disability Tax Credit (“DTC”), Registered Disability Savings Plan (“RDSP” — as distinguished from the Registered Education Savings Plan, “RESP”), and Ontario’s Passport Funding. 

Georgialee A. Lang. An Exhausting and Ruinous Parenting Case: J.M. v. E.M. The Lawyer’s Daily, June 21, 2022. Case comment on 2022 ABCA 49, a decision involving family violence, a mother who fled to Germany, and contempt of court charges.

Labour and Employment Law

Terry Davidson. Ontario Court Rules on Teachers’ Digital Communications Being Intercepted by Principal. The Lawyer’s Daily, June 24, 2022. Comment on Elementary Teachers Federation of Ontario v. York Region District School Board,2022 ONCA 476 on “reasonable expectation” of privacy afforded to employees.

Wills, Trusts & Estates

Canada (Attorney General) v. Collins Family Trust, 2022 SCC 26: Interpretation of attribution rules in s. 75(2) and inter-corporate dividend deduction in s. 112(1) of the Income Tax Act. Tax Court of Canada interpreted s. 75(2) differently than was commonly accepted by tax professionals and CRA. Reassessment of the trusts’ returns led to unanticipated tax liability. Trusts petitioned for the equitable remedy of rescission.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: Taxpayers should be taxed based on what they actually agreed to do and did, and not on what they could have done or later wished they had done. A determination that equity can relieve a tax mistake is barred by a limiting principle of equity and by principles of tax law stated in Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55, Accordingly, the trusts are barred from obtaining rescission of the transactions.

Per Côté J. (dissenting): The appeal should be dismissed. Rescission is, in strictly limited circumstances, an available remedy that can be used to unwind transactions that were undertaken on the basis of a mistaken assumption, even if permitting it would effectively relieve the taxpayer from payment of unexpected taxes. 

Re Estate of Marjorie Doreen Pelletier; Ratt v. Pelletier et al., 2022 MBQB 123: Application for an order that a testamentary document executed by the deceased be declared fully effective. Document is a codicil that was not incompliance with the Wills Act. Review of the circumstances leading to the writing of the codicil, and discussion of the competence of the deceased when it was written. Steps a court must follow set out in Schrof v. Schrof et al., 2017 MBQB 51. Analysis of whether suspicious circumstances exist. Chartier, J. finds for the applicant.

Nicol v. Nicol, 2022 MBQB 111: Defendant was executor of the estate of his mother. Plaintiff, his sister, did not accept payment of her share of the residue in 2005, as she was on social assistance and did not want it to affect her benefits. Defendant eventually divided the remaining residue to the other beneficiaries, including himself. Plaintiff now asks for an order for summary judgment alleging that the defendant committed a breach of trust and fraud. Abel, J. finds that the plaintiff has not met her evidential burden that there is no genuine issue for trial and that the defendant did not commit fraud. He allows the plaintiff to make further submissions at another hearing. Aubrie Girou, Catherine Bunio. B.C. Bill-21 and Electronic Wills: Progressive or Problematic? (2022) 41 Est. Tr. & Pensions J. 152. (LSM members may request a copy).

Legislation

Federal

BILLS – 44th PARLIAMENT, 1st SESSION

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.

Proclamations

Regulations