Court Notices & Practice Directions

Court of Appeal

• September 14, 2022 – References to the Crown in Court Documents

Court of King’s Bench

Memo

• October 22, 2020 – Schedule of Hearings (Summer and Fall Terms for 2021)

Practice Directions

• September 26, 2022 – Motion to Withdraw as Counsel to an Accused in a Criminal Case)

Notices

• September 27, 2022  Masters Notice – Update to Child Protection docket practice before the Masters (commencing immediately)

Discipline Digests

Manitoba Law Society Decisions

• The Law Society of Manitoba v Greenberg, 2022 MBLS 9

New Library Resources

New In Print

New Online Titles

These new titles from Irwin Law are now available on vLex.

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

Book Reviews

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

Performing Copyright: Law, Theatre and Auhorship. By Luke McDonagh. Oxford, U.K.: Hart, 2021. xxix, 202 p. Includes bibliographic references, table of cases, table of legislation, and index. ISBN 9781509927036 (hardcover) $135.85; ISBN 9781509949168 (softcover) $69.75; ISBN 9781509927050 (ePUB & Mobi) $108.68; ISBN 9781509927043 (PDF) $108.68.

Reviewed By Domininque Garingan. Library Manager, Calgary Parlee McLaws LLP

“Performing Copyright is a thesis on intellectual property law and the evolution of its application to modern theatre. McDonagh focuses the study on theatre in the U.K. and begins the discussion of law, theatre, ownership, and authorship in the Elizabethan and Jacobean eras and ends it in the present-day U.K. theatre community….

The crux of Performing Copyright highlights theatre as an example of the need to consider the mutual influence between intellectual property laws and the communities of practice to which they apply. The historical evolution of play manuscript publication, artistic and dramatic works, rights afforded to authors, and rights afforded to performers have all, in varying degrees, influenced copyright and performance rights in contemporary theatre.”

Events

See below for more upcoming events.

Substantive Law

Administrative Law

Jhanji v. The Law Society of Manitoba, 2022 MBCA 78: Appeal of professional discipline proceeding that found the appellant was incompetent to practice law. Three main areas under appeal: the finding of incompetence, disqualification of counsel for the respondent, and the fairness of the discipline proceeding. Discussion of when party can file further argument after the perfecting of the appeal, as well as further submissions while the case is under reserve. Appeal dismissed.

 Winnipeg (City of) v. Manitoba (Director, Contaminated Sites Remediation Act) et al, 2022 MBCA 72: Chambers proceeding raising the administrative law issue of prematurity. City (applicant) seeks leave to appeal a decision of the respondent upholding the Director’s designation of the City as a potentially responsible person (PRP) under the Act (s.48) for remediation of an impacted site. Analysis of the threshold for demonstrating exceptional circumstances in order for leave to appeal to be granted, citing Neufeld et al v. The Manitoba Securities Commission, 2018 MBCA 101. Application dismissed.

 College of Registered Nurses of Manitoba v. Hancock, 2022 MBCA 70: Appeal of misconduct, penalty and costs decisions. Appellate jurisdiction is statutory and governed by s. 131 (1) and (2) of The Regulated Health Professions Act, C.C.S.M. c. R117. Standard of appeal is deferential (Law Society of Saskatchewan v. Abrametz). Court has no jurisdiction to determine appellant’s arguments regarding the misconduct decision. No reversible errors in the penalty and costs decision. Appeal dismissed.

 Warraich, Re, 2022 MBCA 66: Appeal from findings of an Inquiry Committee of College of Physicians and Surgeons that the appellant was guilty of professional misconduct, displayed a lack of skill, knowledge and judgment, and breached by-laws, as well as the penalty. Since this is a statutory review, standard of review is that expressed in Housen v. Nikolaisen. Panel is owed a high level of deference. Appeal dismissed.

 The WSD v. City of Winnipeg et al., 2022 MBKB 184: Statutory appeal over assessments made regarding liability to pay municipal taxation. Issue of statutory interpretationof s. 22(1)(d) of The Municipal Assessment Act, C.C.S.M. c.  M226. Canvas of various decisions addressing the principles of interpretation of tax legislation. Review of definitions in The Public Schools Act, C.C.S.M. c. P250. Examination of the historical record on the reasons behind school assessment. Edmond, J. concludes that some of the real property in this appeal is exempt.

 Springfield Taxpayers Rights Corp. v. Rural Municipality of Springfield and Berger Peat Moss Ltd., 2022 MBKB 180: Application for judicial review of decision refusing to quash development permits. Issue is whether a property owner can rely on permits and authorizations issued by governmental agencies and authorities to develop and build on their land. Applicants did not seek an injunction in a reasonable length of time. Rempel, J. found that the delay in filing the application constituted an abuse of process. Considerable analysis of the meaning of inordinate delay and the prejudice it brings to the respondent. Application dismissed.

 Mark Manicini. The Sunday Evening Administrative Review. Issue #60: October 2, 2022. “This week’s newsletter … consists solely of cases pertaining to adequacy of reasons.”

Civil Litigation

Bonnefield Canadian Farmland Evergreen LP v. Fat Cat Farms Ltd., 2022 MBCA 77: Appeal by defendant of decision of trial judge regarding a written lease of farmland between the parties. Claim was over unpaid rent and damages due to the condition in which the defendant left the property. CA finds no reviewable error in the trial judge’s interpretation of the lease; no palpable and overriding error was established; trial judge applied the correct legal test for contractual interpretation. Appeal dismissed.

 Knight. v. Daraden Investments Ltd. et al, 2022 MBCA 69: Defendants move for leave to appeal an interlocutory order as required under s. 25.2(1) of The Court of Appeal Act, C.C.S.M. c. C240. First opportunity for the Court to consider the test to be applied to such a motion. Claim for damages for personal injuries suffered in a slip and fall. Pfuetzner, J.A. agrees with both counsel that the test is the one set out by SKCA in Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (para 6). Leave to appeal dismissed.

 Sarrasin v. Sokal, 2022 MBCA 67: Appeal of order striking out plaintiff’s statement of claim for disclosing no reasonable cause of action without leave to amend. Plaintiff alleged defamation, malicious prosecution and workplace harassment, but only appeals the order as it relates to defamation. CA finds that motion judge’s determination that plaintiff’s pleadings do not show that the words in issue refer to him; appeal dismissed.

 Vanessa Di Feo. CM Callow v Zollinger, Reconceptualized Through the Tort of Negligent Misrepresentation. (2022) 27 Appeal 103.

This article argues that CM Callow Inc v Zollinger was wrongly decided, and that the Supreme Court of Canada unnecessarily expanded the duty of honest contractual performance established in Bhasin v Hrynew. In this decision, the Supreme Court applied a contract law analysis to a fact scenario that did not entirely call for it. This is to say that the contract that Mr. Callow hoped to incentivize through freebie work never came into existence, so it should not have been assessed through the lens of the duty of honesty.

 Anna SP Wong. Duty of Honest Performance: A Tort Dressed in Contract Clothing. (2022) 100 – 1 C.B.R. 95.

In CM Callow Inc v Zollinger, the latest installment from the Supreme Court of Canada on the duty of honest performance, the Court insisted that it is a contractual duty rather than a tortious one. This article contends that the duty to act honestly, a welcome addition as it is to the realm of private-law obligations, represents an infusion of tort logic into contract law.

Criminal Law

R. v. Spotted Eagle, 2022 MBCA 75: Appeal of conviction for possession of methamphetamine for the purpose of trafficking. Accused seeks to have conviction set aside or, in the alternative, substitute a conviction for simple possession. He argues that the evidence was insufficient to find a conviction for trafficking. Appeal dismissed.

R. v. Tarapaski, 2022 MBCA 74: Appeal of conviction of possession of a non-restricted firearm without being a holder of a licence, and two counts of possession of firearms when bound by an order prohibiting it. Item in question was an improvised firearm, not an inoperable commercially manufactured firearm (para 19). Analysis of the limits of a statutory definition. Test set out in R. v. Covin, [1983] 1 S.C.R. 725 and summarized in R. v. Vader, 2012 ABQB 288. Appeal dismissed.

 R. v. Meilleur, 2022 MBCA 71: Appeal of conviction of manslaughter and sentence of 13 years imprisonment, after trial by judge and jury. Accused submits that the trial judge erred in admitting an inculpatory statement he gave to police. He appeals sentence on the basis that it was harsh and excessive. Conviction appeal dismissed; leave to appeal sentence granted and also dismissed.

 R. v. Ostamas, 2022 MBCA 68: Appeal of sentence ordered in 2016 for pleading guilty to three counts of second degree murder. Accused was sentenced to life imprisonment with 25-year periods of parole ineligibility consecutively. Accused argues that given s. 745.51 has been found unconstitutional (R. v. Bissonnette), the 25-year periods should be made concurrent rather than consecutive. Crown agrees. Appeal allowed.

 R. v. Sinclair, 2022 MBCA 65: Accused seeks leave to appeal and appeals sentence of five years’ incarceration on charges including luring, possession of child pornography, making child pornography and others. Crown agrees that errors were committed warranting appellate intervention, but that sentence should be increased, not decreased. Steel, J.A. makes a considerable analysis of the requirements for determining an appropriate sentence after Friesen. Discussion of the principle of proportionality and moral culpability of offender. Sentence increased to eight years.

R. v. Devos, 2022 MBKB 185: Accused was convicted of impaired driving causing death and dangerous driving causing death. Crown requested a sentence of four years; defence submitted three years of supervised probation, or an intermitten sentence of up to 90 days. Accused had a clean record and his pre-sentence report indicated he was a very low risk to re-offend. Thorough review of the case law on convictions for similar offences. Leven, J. orders a sentence of six months in prison, followed by three years of supervised probation.

R. v. Crate, 2022 MBKB 182: Appeal of conviction for having care and control of a motor vehicle while impaired. Main issue on appeal relates to infringement of appellant’s bail rights after arrest. Appellant was arrested in Norway House, held for over 24 hours before her first appearance, and then transferred to Thompson for her bail hearing. Question of whether the trial judge erred by failing to find a systemic constitutional violation. Grammond, J. concluded that such a finding is a mixed question of fact and law; applicable standard of review is correctness. Considerable analysis of Charter breaches and what appropriate remedies are available. Grammond, J. found that the appellant’s bail rights were breached in multiple ways but this was not one of the clearest cases, and a stay of proceedings was refused.

 R. v. Saunders, 2022 MBKB 177: Sentencing decision for conviction by a jury for second degree murder. Conviction carries a mandatory sentence of life imprisonment with no right to apply for parole for at least 10 years. Crown submits that parole ineligibility period should be 16 years; accused submits 10 years should apply. Kroft, J. considers the nature of the offence, the character of the offender, the principles of sentencing and finds 13 years parole ineligibility is appropriate.

R. v. M. (H.), 2022 MBPC 42: Sentencing decision for manslaughter. Accused was just under 18 at the time of the offence. Crown requests accused be sentenced as an adult; defence argues that the Crown has not rebutted the presumption of diminished moral culpability. Considerable evidence and reports filed including FASD Centre multidisciplinary report, several Psychological Forensic Assessment reports, Gladue report, book of victim impact statements, and youth criminal record of accused. Devine, P.J. gives a lengthy explanation and analysis of the sentencing principles for young people under the Youth Criminal Justice Act. First prong of test not satisfied (presumption of reduced moral culpability rebutted). Second prong is whether the maximum youth sentence adequate to hold the accused accountable. Defence is suggesting a three year IRCS order. Devine, P.J. imposes the maximum youth sentence of three years’ IRCS.

Michael R. Dambrot. Section 8 of the Canadian Charter of Rights and Freedoms. (2022) 26 C.R. (3d) 97 (WLC – LSM members can request a copy).

Section 8 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982 [en. by Canada Act, 1982 (Eng.), c. 11] provides that “everyone has the right to be secure against unreasonable search or seizure.” When this section is coupled with the discretion contained in s. 24(2) to exclude from criminal proceedings evidence obtained in a manner that infringes s. 8, it can readily be seen that these few words will have a dynamic impact on the course of criminal prosecutions in Canada.

 Jeff Buckstein. Alberta Court of Appeal Reduces Sentence for Sexual Offences on Gladue Analysis. The Lawyer’s Daily, 15 September 2022. Case comment re R. v. Dichrow, 2022 ABCA 282. Accused argued trial judge did not take in to account his Indigenous heritage as a Métis person.

Family Law

Briscoe v. Briscoe, 2022 MBCA 76: Appeal of dismissed motion re severing divorce from the balance of relief in the pleadings. Motion judge dismissed the husband’s motion, determining that it was not proportionate. Severance is a discretionary remedy and not a matter of right. CA found no error in trial judge’s exercise of discretion. Appeal dismissed.

Emes v. Emes, 2022 MBKB 186: Petitioner’s motion for a final order of spousal support. Parties had agreed to an all-encompassing separation agreement with a defined term of spousal support that did not allow for variation or review. Respondent has not made any payments as required under the agreement. Thatcher, J. conducts a thorough Miglin analysis and orders the respondent to pay the petitioner the amount determined under the original separation agreement as well as arrears.

Michif CFS v. S.A.S. and J.A.A.M., 2022 MBKB 176: Application by agency for a permanent order of guardianship of two year old child, by summary judgment. Parents oppose request for summary judgment, arguing there are genuine issues for trial. Parents seek return of the child to their care. Test for summary judgment articulated in Dakota Ojibway Child and Family Services et al v. M.B.H., 2019 MBCA 91. Child is Indigenous, therefore provisions of An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, S.C. 2019, c. 24 need to be considered. Abel, J. determines that summary judgment is acceptable, and motion is granted.

Claire Houston. Case Annotation: A. v. A., (2022) 81 C.C.L.T. (4^th) 130 (WLC – LSM members can request a copy).

This decision communicates an important message: family violence causes substantial harm and is wrong. To recognize this wrong, Mandhane J. held that family courts should not allow “no-fault” divorce to shield abusers from civil liability, and that family courts ought to adjudicate family violence tort claims alongside claims for property division, spousal and child support, and parenting decision-making responsibility and parenting time.

David Frenkel, Yunjae Kim. Separation Date Principles and Assessment Guide. (2022) 40 C.F.L.Q. 335. (WLC – LSM members can request a copy).

When a couple gets married, the date of the wedding is easy to remember, even after many years have passed. … However, when a couple separates, the circumstances are usually very different, and the recollection of those events can get hazy.

Jodi Lazare, Kelsey Warr. A Gender-Based Approach to Historical Child Support: Comment on Colucci v. Colucci. (2022) 34 – 2 Can. J. Fam. L. 209.

In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law.

Labour and Employment Law

Bartel-Zobarich v. Manitoba Association of Health Care Professionals (MAHCP-Bargaining Unit) et al, 2022 MBCA 64: Application for an extension of time to file notices of appeal. Respondents were successful in having motions granted to strike out the notice of application and statement of claim without leave to amend as well as declaring the applicant to be a vexatious litigant. Applicant was terminated for cause in January 2012; grievance was settled in January 2014. Applicant takes position grievance was settled without her knowledge. Analysis of whether the applicant showed a continuous intention to appeal and whether she had a reasonable explanation for the delay. Motion denied.

Pokornik v. SkipTheDishes Restaurant Services Inc., 2022 MBKB 178: Action seeking various heads of relief including a declaration that the plaintiff is an employee and not an independent contractor, and an order certifying this proceeding as a class action. Defendant moves for an order staying the action in favour of arbitration. Plaintiff originally contracted with the defendant in 2014. Original agreement contained no arbitration agreement. In 2018, agreement was changed to require disputes be resolved through arbitration. Plaintiff was required to accept the change in order to continue to offer services through the app. Analysis of s. 7(1) of The Arbitration Act to determine which agreement governs the relationship. Chartier, J. decides in favour of the plaintiff.

Scope of the Inquest Hearing Decision (Anderson), 2022 MBPC 46: Motion by the City of Thompson and Thompson Fire and Emergency Services to modify the scope of the inquest to remove the issue of determining whether Mr. Anderson’s death was preventable if there had been more timely medical intervention; and whether the original scope should be revised to have as its primary focus a review of the coordination of a multi-agency response to a serious incident in a remote setting in Manitoba. Situation arose over the death of the conductor of a freight train after the train derailed in a remote area of the rail line. Review of the law concerning the scope of an inquest. Opinion of the Chief Medical Examiner changed after the inquest was called; Killeen, P.J. finds that to be a material change, and scope is changed.

Eric Tucker. Competition and Labour Law in Canada: Patrolling the Boundaries. (preprint – published as Competition and Labour Law in Canada: The Contestable Margins of Legal Toleration, in S. Paul, S. McCrystal, & E. McGaughey (Eds.), The Cambridge Handbook of Labour in Competition Law (Cambridge Law Handbooks, pp. 127-140, 2022)).

In Canada, as in most advanced capitalist countries, the right of workers to engage in collective action has been partially immunized from competition law, one of the basic norms of capitalist legality. The “zone of toleration”, however, has been contested over time and poses a recurring regulatory dilemma that stems from labour’s commodity status in capitalism.

Wills, Trusts & Estates

McLeod Estate v. Cole et al, 2022 MBCA 73: Plaintiffs’ appeal of dismissal of their claim that the defendants sold their father’s property for less than market value prior to his death, asserting that he did not have sufficient mental capacity. Appeal’s argument centred on the trial judge made a litany of palpable and overriding errors in his assessment of the evidence.  Explanation of the doctrine of suspicious circumstances. Appeal dismissed.

John E.S. Poyser. Case Comment: Sandwell v. Sayers – The State of Unconscionable Procurement in British Columbia. (2022) 76 E.T.R. (4^th) 249. (WLC – LSM members can request a copy)

Sandwell v. Sayers bears comment as it touches on the prospective place of “unconscionable procurement” as an attack on gifts, suggesting that modern Canadian courts may wish to pause before accepting the doctrine as part of the current law.

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