Court Notices & Practice Directions

• Court of Appeal

  • December 14, 2022 – Notice – Further Evidence Rule
  • December 14, 2022 – Practice Direction – Allegation of Ineffective Assistance of Counsel

• Provincial Court

  • January 5, 2023 – Scheduling of Youth Matters

New Library Resources

New Print Titles

Waters Law of Trusts in Canada, 5th ed.

This new 5th edition is both comprehensive and up-to-date. The book examines the history and contemporary state of the law of trusts in every jurisdiction of Canada, including the nature of trusts under common law and civil law, and some international jurisdictions such as the Commonwealth jurisdictions and the United States where Canadian trust law is increasingly sought. You will gain insight into the creation and administration of express trusts; trust termination; conflict of laws, including the Hague Convention on the Recognition of Trusts; the variety of uses to which the trust is applied; and the law concerning remedial trusts (for example, resulting and constructive trusts), especially in matrimonial law.

Preparation of Wills and Powers of Attorney by Lucinda Main

Preparation of Wills and Powers of Attorney: First Interview to Final Report, 5th Edition provides practical guidance to lawyers who engage in an estate planning practice. Readers are taken from the opening of a new file through the planning and drafting of wills and powers of attorney both for property and personal care through to the reporting, billing and storage of original documents. While Ontario focused, this book contains invaluable tips relevant to estate planners across the country.

This edition has added coverage of the treatment of digital assets and devices in wills and powers of attorney for property, recent case law respecting the drafting of multiple wills, medical assistance in dying and powers of attorney for personal care, and the virtual execution of wills and powers of attorney.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 3

The Future of Unions and Worker Representation: The Digital Picket Line. By Anthony Forsyth. Oxford: Hart, 2022. xxxii, 277 p. Includes bibliographic references and index. ISBN 9781509924974 (hardcover) $150.95; ISBN 9781509924998 (PDF) $135.85; ISBN 9781509924981 (ePUB & Mobi) $135.85.

Reviewed by Andrea Black, Research Specialist Dentons Canada LLP

“Unions are making headlines around the world. Workers in New York voted to create unions at Starbucks and Amazon locations this past December and April, respectively. In Canada, unionization actions are currently underway at Amazon locations in Alberta and Quebec. Employers are being accused of interfering with union drives and penalizing workers at unionized locations. The ongoing pandemic has reintroduced the issues of reasonable sick leave and safe working conditions into collective agreement negotiations.”

Events

Upcoming Events

Substantive Law

Civil Litigation

Hofer v. Hofer et al, 2022 MBCA 99: Appeal of order removing one respondent as trustee of the colony; cross-appeal by applicants of dismissal of their request for a declaration that they are directors of the colony and its corporations. Issue of control and management of a private, voluntary association that operates a mixed-farming business. Appeal and cross-appeal dismissed.

 Currie v. Currie, 2022 MBKB 241: Application for order under The Limitations of Actions Act to commence an action for breach of an oral agreement. Parties agree that the limitation period expired on November 20, 2000.  Perlmutter, A.C.J.K.B. finds that the proposed cause of action has a reasonable chance of success, but that the applicant knew or should have known about it prior to May 2021. Leave denied.

 Lofchick v. Belkin et al, 2022 MBKB 235: Motions by defendants brought before a Master to dismiss a matter for delay (Rule 24), and to strike a motion for discontinuance filed by the plaintiff for abuse of process. Analysis of the legal basis for the jurisdiction of a master. Master does not have jurisdiction, motion dismissed.

 Anosha Khan. B.C. Court Awards $77K for Cannabis Startup Expenses Pursuant to Oral Agreement. The Lawyer’s Daily, 3 January 2023. Case comment re Case National Investment Ltd. v. 1219925 B.C. Ltd., 2022 BCSC 2250. Analysis of when an oral agreement is binding. 

Jason J. Annibale, Charlotte Conlin, Donia Hashem. Has the Music Stopped? Public Access to Construction Arbitration Decisions in Canada. 2022 J. Can. C. Construction Law 91. (WLC – LSM members can request a copy.)

Arbitration is often ranked as the most common or favoured construction dispute resolution process. Many current construction contracts mandate arbitration if disputes cannot be resolved amicably through party-to-party negotiations or mediation. However, the authors, Jason J. Annibale, Charlotte Conlin, and Donia Hashem, discuss the impact of arbitration, a private and confidential process, on the evolution of construction law. Without access to decisions on important issues, the development of case law is slowing. This timely and thoughtful paper reviews the reasons why arbitral decisions rarely form part of the public record, including the limited rights of appeal and judicial review designed to provide parties with finality. The authors make the case for publication of arbitration decisions in the area of construction law by drawing parallels with other specialized areas, such as marine law, and by development of an organizational infrastructure for the collection and publishing of construction arbitration decisions.

Corporate and Commercial Law

Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2022 MBKB 239: Applicant seeks leave to appeal an arbitral award in a commercial dispute. Applicant also seeks relief to set aside a portion of a previous award. Standard of review for leave to appeal under s. 44(2) of The Arbitration Act requires a question of law. Joyal, C.J.K.B., applies a multifactorial analysis, starting with whether the applicant has identified a question of law of arguable merit. Leading authority is Teal Cedar Products v. British Columbia, 2017 SCC 32. Issue of a limited evidentiary record from the arbitration. Application dismissed.

Criminal Law

R. v. Beaver, 2022 SCC 54: Admissibility of evidence, in terms of whether a confession was given voluntarily, and whether police had reasonable and probable grounds for arrests. Accused (2) shared a home with the deceased. One called 911 to report him dead. When police arrived, they detained the accused without lawful authority. Homicide detectives realized the breach and tried to “correct” it by informing accused of their Charter rights. Trial judge admitted the confessions and both were convicted of manslaughter. Appeal court dismissed the appeal. SCC dismissed the appeal, 5-4. PerWagner C.J. and Moldaver, Rowe, Kasirer and Jamal JJ.:

[1] At the heart of these appeals is the balance between the protection of the rights of the accused in the criminal process and society’s interest in the effective investigation and prosecution of serious crimes. The appeals raise three issues: (1) the voluntariness of one of the appellants’ confessions under the common law confessions rule; (2) whether the police had reasonable and probable grounds to arrest the appellants for murder; and (3) whether the appellants’ confessions were “obtained in a manner” that breached the Canadian Charter of Rights and Freedoms because the police failed to make a “fresh start” from earlier Charter breaches, and if their confessions were so obtained, whether they must be excluded under s. 24(2).

…

[6] I would dismiss the appeals, but for somewhat different reasons than the decisions under appeal. As I will explain, I agree with the lower courts that Beaver’s confession was voluntary and thus admissible under the common law confessions rule. I also agree that the police had reasonable and probable grounds to arrest the appellants for murder. However, I find that the homicide detectives made a “fresh start” from the Charter breaches arising from the appellants’ unlawful detention for Lambert but not for Beaver. Thus, only Beaver’s confession was obtained in a manner that breached the Charter. Balancing the lines of inquiry under s. 24(2) of the Charter, I conclude that admitting Beaver’s confession into evidence would not bring the administration of justice into disrepute. I would thus confirm the appellants’ convictions for manslaughter.

 Per Karakatsanis, Côté, Brown and Martin JJ. (dissenting):

[139] I part ways with the majority on two points. First, on whether it was lawful for the lead investigator, after learning of the circumstances of the appellants’ unlawful detention, to immediately arrest them for murder and direct their continued questioning. I conclude that the information relied on to direct the appellants’ arrests does not come close to the particularized probability required to meet the reasonable grounds standard. The arrests were a blatant attempt to salvage the investigation in the face of what officers knew were multiple serious violations of the appellants’ Charter rights. The accumulation of breaches of well-established Charter standards in this case requires that the evidence be excluded as a remedy under s. 24(2) of the Charter to avoid bringing further disrepute to the administration of justice.

 

[140] Second, the test for inclusion under s. 24(2) is long established and well known. The focus is on the connection between the breach and the evidence obtained, with reference to temporal, contextual, and causal elements (R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980; R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235). There is simply no need to speak in terms of whether or not there was somehow a “fresh start” for those who have breached Charter rights. Indeed, the notion of a “fresh start” is an unhelpful and potentially misleading concept that has no place in the s. 24(2) analysis. It divides what is to be a holistic analysis into before and after segments and operates to cure and/or remove Charter breaches from the analysis, thus placing a heavy finger on the scale of s. 24(2).

 

[141] The combination of these two conclusions is more than enough to allow the appeals, exclude all the evidence obtained in a manner that infringed the appellants’ Charter rights, set aside the convictions, and order new trials. Thus, while I should not be taken as accepting the majority’s voluntariness analysis, I find it unnecessary to address the voluntariness issue raised by Mr. Beaver.

Reference re Ross, 2022 MBCA 101: Request by Minister of Justice for the opinion of the Manitoba Court of appeal as to the admissibility of new information as fresh evidence re Deveryn Ross. Mr. Ross was convicted of two counts of fraud over $1,000 in 1995. Second part of reference: if the new information is admissible, consider the case as if it were an appeal. Analysis of the test to admit fresh evidence – whether it should be the Palmer test or the Dixon-Taillefer test. Motion for fresh evidence dismissed; therefore, no need to consider the second part of the Reference.

 R. v. Lavallee, 2022 MBCA 100: Request for leave to appeal and if granted, leave to appeal sentence for contempt. Appellant willfully disobeyed a subpoena to give evidence at a murder trial. CA found trial judge made several errors in principle in sentencing the appellant. Appellant is an Indigenous woman who witnessed a murder. She was threatened and assaulted for reporting it to the police. CA found that trial judge erred in assessment of Gladue factors and how this affected her moral culpability; as well, he erred in failing to consider and underemphasized several mitigating factors. Fit sentence was determined to be five months, not 10.

 R. v. Bradburn et al, 2022 MBCA 98: Appeals by three co-accused convicted for second degree murder (2) and manslaughter (1) in a trial by judge alone. Accused convicted of manslaughter also seeks leave to appeal his sentence. Various issues of appeal including an unreasonable verdict, wrong statement and application of the mens rea requirement for murder, eye witness evidence was unreliable. Sentence appeal argues that trial judge did not give parity as a co-accused received a lesser sentence. Conviction appeals dismissed; leave to appeal sentence granted but sentence appeal dismissed.

 R. v. Logan, 2022 MBCA 97: Accused seeks leave to appeal global sentence of 10 years’ imprisonment from convictions of sexual assault and sexual interference involving six children. Accused argues that the trial judge erred in her totality analysis, resulting in a demonstrably unfit sentence. Standard of review on sentence appeals is highly deferential. Trial judge imposed a cumulative sentence, and then after taking a “last look” for totality, chose not to reduce it. Leave to appeal allowed, appeal dismissed.

 R. v. Osborne, 2022 MBCA 96: Sentence appeal where accused was convicted of manslaughter by a jury, and a judge imposed a sentence of 17 years’ imprisonment. Accused appeals her sentence on the grounds that the trial judge erred by relying on aggravating facts not proven beyond a reasonable doubt, erred in application of Gladue factors and imposed a sentence that was harsh and excessive. Leave to appeal granted, and appeal allowed – trial judge erred in principle by erroneously considering an aggravating factor in sentencing. 17 year sentence set aside and a 13 year sentence substituted.

 R. v. Caribou, 2022 MBCA 95: Sentence appeal where accused was convicted of manslaughter by a jury, and a judge imposed a sentence of 13 years’ imprisonment. Accused challenged the constitutionality of ss. 719(3) and 719(3.1) of the Criminal Code re the limit on credit for pre-sentence custody. He also argues that the trial judge did not give sufficient weight to Gladue factors. Leave for appeal allowed, appeal dismissed.

 R. v. S. (D.), 2022 MBCA 94: Appeal of conviction for sexual interference and his sentence of nine years’ imprisonment. Grounds of appeal are that judge erred in relying on evidence of the victim and in finding that the injuries to the victim were caused by the accused. Issues raised regarding admissibility of evidence of complainant’s sexual activity (s.276 of the Criminal Code). Considerable analysis of the principles of s. 276 in protecting the integrity of the trial and whether evidence of previous sexual activity could be admitted. Appeal dismissed; leave to appeal the sentence granted, but dismissed also.

 R. v. Pruden, 2022 MBKB 240: Sentencing decision where accused pled guilty to manslaughter. Victim was a recent immigrant. Accused struck him with a metal crutch from behind and then walked away. McCarthy, J. finds it was in the middle of the scale for manslaughter. Significant aggravating as well as mitigating factors. Accused has been incarcerated or on probation most of his life. Objectives of sentencing in a violent offence are denunciation and deterrence. Accused is sentenced to 12 years in prison.

 R. v. Vanjaarsveld, 2022 MBKB 234: Accused was charged with possession for the purposes of trafficking. Small amount (equivalent to personal use) found on her and in bathroom; larger amount (likely for trafficking) found hidden in alcove. Accused denied knowledge of larger amount and amount in bathroom. Leven, J. found her a not credible witness, but convicted her of simple possession. Reasonable doubt on whether she knew about product hidden in a box.

 R. v. P.A.B., 2022 MBKB 233: Trial on charges of assault, sexual assault, and choking to overcome. Accused testified, requiring a W.(D.) analysis. Leven, J. found complainant’s testimony credible, despite mixing up some details. Accused was not credible; found guilty on all charges.

 R. v. A.L. and J.C., 2022 MBKB 232: Sentencing for parents convicted of criminal negligence, aggravated assault and other offences against their children. Children were under a year at the time of the offence and suffered numerous fractures, developmental delays and severe malnutrition. Sentencing judge reviewed pre-sentence reports, victim and community impact statements, as well as character references. Significant aggravating factors, including not taking children for medical care when parents knew it was necessary. Crown and defence agree sentences should be consecutive for both children. No caselaw authorities for a similar fact satiation were found. A.L. sentenced to 20 years, reduced to 18 after totality consideration; J.C. sentenced to 13 years, reduced to 12 years.

 R. v. R.A.D., 2022 MBKB 228: Appeal from Provincial Court trial and sentence; accused found guilty sexual assault and sexual interference and sentenced to 18 months in custody. Complainant was 9 years old at the time. Trial judge is owed a significant amount of deference. Considerable analysis of trial judge’s assessment of accused’s credibility. Trial judge disbelieved all of the accused’s testimony; McCarthy, J. found trial judge made findings based on his own assumptions and beliefs. Matter sent back for trial. Sentence appeal examined as well. Sentence had been increased from 12 months to 18 months due to release of R. v. Friesen in between appeals. McCarthy notes that trial judge did not give reasons for the increase in sentence; due to delay between charge and sentencing, Friesen should not have been considered.

 R. v. Sandhu, 2022 MBKB 224: Constitutional challenge to the mandatory minimum sentence for operating a vehicle with a blood alcohol concentration in excess of 80 mg. Applicant is a foreign national. MMS means he has a criminal record, and he will be deported. He argues that the MMS is grossly disproportionate to his circumstances and is in violation of s. 7 and s. 12 of The Charter. Analysis of Parliament’s intentions with mandatory minimum sentencing and how it applies to this charge. Turner, J. finds that the sentence is not disproportionate, and Charter rights have not been violated.

 R. v. Cosford, 2022 MBPC 60: Sentencing after summary conviction for transporting a firearm in a careless manner and possession of cannabis for the purpose of distributing it. Accused is charged under the Criminal Code for the firearms offence and under the Cannabis Act for the cannabis offence. No nexus is drawn between the two offences. Sentence of $2,000 fine for careless transportation of a firearm, and $10,000 fine for possession with intent to distribute.

 R. v. Beardy, 2022 MBPC 59: Written reasons dismissing an application by the prosecution for an order that the accused abstain from communicating with Erin Jessup concerning an assault causing bodily harm. Ms. Jessup is also an accused in the assault. Pollack, S.P.J. notes no evidence in support of the application was admitted; application dismissed.

 R. v. Wichart, 2022 MBPC 58: Sentencing for summary conviction for impaired driving causing bodily injury. Injured passenger will require medical assistance for the rest of his life. Prosecution seeks a sentence of 18 months; defence asks for a conditional sentence up to two years, citing R. v. Proulx, 2000 SCC 5. Pollack, S.P.J. sentences accused to one year in prison.

Scott Franks. Revisiting Jury Instructions on Racial Prejudice Towards Indigenous Peoples in Canadian Criminal Trials. (2022) 100 – 3 C.B.R. 406.

This article examines the Supreme Court of Canada’s assumptions in Barton and Chouhan on racial bias in Canadian criminal jury trials. Jury research offers important insights related to the differential impact of jury instructions for racialized and Indigenous persons, and for accused and victims. If jurors cannot understand jury instructions, or if jury instructions, or victim or defendant race, do not predict sentencing or conviction outcomes, then we might have little confidence in reducing anti-Indigenous prejudice through jury instructions. Worse yet, if jury instructions prime, rather than suppress, prejudicial reasoning, then we may want to entirely rethink the use of specialized instructions for this purpose; our reforms might instead focus on jury diversification. I argue that the Canadian jury research casts doubt on the Supreme Court of Canada’s jurisprudence on a juror’s capacity to control racial bias against Indigenous persons in criminal trials.

 Lauren-Jean Ogden. Taken for Grant-ed: Assessing the Short-Comings of the Grant Test’s Application to the Evidence Obtained from Personal Devices. (2022) 45 – 6 M.L.J. 26.

In this paper, I explore how judges have taken the unique nature of personal device content for granted, leading to the frequent inclusion of evidence which would have been excluded had it existed in the form of a paper document. This has led to a section 24(2) regime that does not fulfill its purpose of protecting the good repute of the justice system, and instead communicates the justice system’s condonation of the violation of individual’s rights against unreasonable search and seizure, so long as the ends justify the means.

Family Law

Smith v. Smith, 2022 MBKB 242: Petitioner’s motion for costs against respondent’s counsel personally. Respondent’s counsel didn’t release settlement funds to petitioner’s counsel until several days after receiving them, and then imposed trust conditions on them so they could not be released to the petitioner. Antonio, J. ordered costs personally against respondent’s counsel in the amount of $10,000.

 Hassler v. Hassler, 2022 MBKB 230: Request to vary final order and separation agreement. Parties wish for change to parenting regime. Father is no longer earning as much as he was when the final order was made and seeks variation in child and spousal support. Discussion of whether income should be imputed for the father, and how and why that is done. Due to conflict between the parents, mother is given final decision-making authority. Child support set at guidelines for four children, plus 70% of s.7 expenses. Spousal support affirmed at lower amount as agreed in final order.

 Klassen v. Wowk-Litwin, 2022 MBKB 229: Trial over many property-related issues. Parties separated in 2014. Petitioner (husband) claimed funds in a credit union account were a gift from his parents before the relationship began (from a farming operation). Analysis of whether funds were a gift or part of an estate freeze. Argument of whether the petitioner dissipated assets of the respondent through significant credit card debt paid by the respondent’s income from a medical corporation. Respondent is now disabled and has significant debts, some incurred by the petitioner without her knowledge. Petitioner has been able to accumulate wealth. Antonio, J. settles most of the property issues. 

 Katherine Cooligan, Brad Yaeger. A Look at Recent Developments in the Law of Contempt. (2022) 41 C.F.L.Q. 77 (WLC – LSM members can request a copy).

Contempt proceedings are a blunt and imperfect instrument with which to enforce parenting orders. After over 30 years of experience litigating high conflict parenting cases in Ontario courts, I have extensive and varied exposure to contempt proceedings in that jurisdiction. In my experience, these proceedings are useful for coercing compliance from recalcitrant parentsin extreme cases, but also frequently (and increasingly) abused in high conflict cases to harass parents over minor and/or isolated breaches of court orders. In recent years I have litigated a number of cases at both ends of this spectrum. The majority of cases fall between these two extremes, occupying a precarious space in which judicial discretion is paramount, and in which the court’s intervention may indeed be required, but not necessarily its “big stick”. These cases have, in recent years, become fertile ground for dynamic developments in the law of civil contempt.

Labour and Employment Law

dB Noise Reduction Inc. v. Letkemann et al., 2022 MBKB 208: Application for summary judgment. Plaintiff alleges that defendant (former employee) breached the restrictive covenants of his employment agreement. McCarthy, J. found the agreement was overly broad and unenforceable. Claim dismissed.

Wills, Trusts & Estates

Peters v. Watral et al, 2022 MBKB 217: Application requesting an order removing executor on the basis he has breached his fiduciary duty to the estate. Estate consisted mostly of three parcels of adjacent land totalling 80 acres. Deceased passed away in March 2019. Applicant argued that estate should have been disposed of within a year of her death. Harris, J. found executor acted in breach of his duty by only considering one beneficiary, and must be removed. Orders a reference to a Master to set the terms for a sale; neither beneficiary is to have right of first refusal.

John E.S. Poyser. Case Comment: Sandwell v. Sayers – The State of Unconscionable Procurement in British Columbia. (2022) 76 E.T.R. (4th) 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.

Legislation

Federal

Recent Activity

See here for the latest activity.

Provincial

The House adjourned onDecember 1, 2022.

The 5th Session of the 42nd Legislature will reconvene on Wednesday, March 1, 2023 at 1:30 p.m.

Current Bills    |    Bill Status

New Regulations