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

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

eLex May 2022

by Karen Sawatzky | May 9, 2022 | eLex

Table of Contents

News

In the News

Office of the Superintendent of Financial Institutions Canada released its 2022-2025 Strategic Plan.

Replace “Interns” with “Articling Students”. 5 Tips from a Law School Librarian for Assigning Research Projects to Interns by Matthew Flyntz, in the ABA Journal.
“As a law school reference librarian, I field a lot of questions from law students working at internships, externships and summer jobs. Over the years, I’ve seen some recurring issues with the research assignments given to law students, and I thought it might be helpful to discuss some of them here.”

Sarah Nixon. Two Visions of Reconciliation. (2022) 27 Appeal 42. 
“Reconciliation has become a popular and contentious term in Canadian politics, media, jurisprudence, and legal education. In this paper, I explore what is at stake in our approach to reconciliation by contrasting two prevailing forms. First is a form pursued in Canadian jurisprudence which I refer to as “reconciliation to Crown sovereignty.” !e second is a form advocated by numerous scholars and Indigenous leaders which I call “reconciliation as treaty.”

Court Notices & Practice Directions

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

Court of Queen’s Bench

Notice – April 12, 2022 – Amendments to the Court of Queen’s Bench Rules

Provincial Court

Notice – Resumption of JJP Dockets in the communities of Cross Lake, Gods Lake Narrows, Nelson House, Norway House, Oxford House, Shamattawa and Split Lake (April 19, 2022)

Discipline Digests

The Law Society of Manitoba v. Fiorino, 2022 MBLS 3

New Library Resources

New in Print

Employment Law during a Pandemic, Sean J. O’Donnell, LL.B.

“Developed in response to the pandemic, this handy resource acts as a one-stop reference for employment lawyers, litigators, in-house counsel and other human resources professionals who are charged with dealing with the employment law issues that have arisen during and as a result of the COVID-19 crisis. Author O’Donnell, an experienced employment lawyer, is particularly well-positioned to offer general guidelines and best practices for addressing those issues, as well as to provide insight into the relevant legislation and case law related to COVID-19. Featuring case studies based on the COVID-19 outbreak, this text includes answers to the most pressing employment- and pandemic-related questions that lawyers and other professionals are grappling with at this time.”

Annotated Firearms Act & Related Legislation, 5th Edition, Jonathan Keene Brunet, Solomon Friedman, Fady Mansour

“This comprehensive guide to firearms legislation in Canada provides you with a fully annotated version of the Firearms Act, Part III and other related sections of the Criminal Code, and relevant provisions of the National Defence Act and the Youth Criminal Justice Act.”

New eResources

Will Week April 2022

Will Week is a week-long series of free public events to bring awareness to the importance of wills and estate planning. Seminars start Tuesday April 26, 2022. Visit the Library’s events calendar for session and registration information.

The event is a collaboration between the Manitoba Bar Association, The Winnipeg Foundation and the Public Guardian and Trustee. To learn more about Will Week, visit the Winnipeg Foundation website.

Visit our virtual book display here to see all the print and digital resources the library has to offer.

Journals Update

New articles from the following journals are now available for Law Society members upon request.

• Canadian Family Law Quarterly
• Intellectual Property Journal
• Journal of Parliamentary and Political Law
• McGill Law Journal
• National Journal of Constitutional Law
• Ottawa Law Review

For a pdf copy of these or other legal journal articles email us at library@lawsociety.mb.ca.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 1. This title is available in e-book format to LSM members as part of Emond Publications’ Criminal Law Series,

Search and Seizure. By Nader Hasan et al. Toronto: Emond, 2021. xxix, 729 p. Includes table of cases and index. ISBN 978-1-77255-635-3 (softcover) $159.00.

“The common law and case consideration reveal that search and seizure are pivotal elements of the criminal justice system. The foreword notes that these concepts are at the heart of that system. The authors, who bring academic, Crown counsel, and defence experience to this project, have assembled an impressive amount of pertinent detail for examination”

“Throughout this publication, the authors have incorporated many highlighted areas, titled Practice Points, that are designed to appeal to those who will be using this resource as a tool for court. Accordingly, this publication has considerable value for those learning about the state of search and seizure in Canada. It is also an asset for the practicing lawyer seeking to stay abreast of case law in this complex area.”

Events

Step into the Estate Plan for a Complex Family

Zoom Video Conference
May 24, 2022
12:00 PM – 01:30 PM

The panel, comprised of members of the Society of Trust and Estate Practitioners (“STEP”), will work through a case study featuring a blended family, and discuss spousal agreements and family property claims, structuring an inheritance for a disabled beneficiary, the impact of a beneficiary’s U.S. residency, the use of insurance to supplement or implement an estate plan, the impact of a change in the testator’s domicile, and the importance of an interdisciplinary approach to estate planning.  

PANELISTS: 
Tricia Carver, CPA-CA, CFP, TEP, Insurance Advisor, National Bank Insurance
Christa Walkden, CPA(ND), MST, TEP, CPA-CA, Director – Tax and Estate Planning, The Asper Family
Mariska Loeppky, B. Comm (Hons.), CPA, CA, TEP, CFP, Director, Tax and Estate Planning, IG Wealth Management
Harmanjit Mavi, JD/MBA, TEP, Wills and Estates Lawyer, MLT Aikins LLP
Krista Clendenning, JD, TEP, Wills and Estates Lawyer, Tradition Law LLP
MODERATOR: 
Daniel Watts, JD, TEP, Estate and Trust Consultant, Assante Wealth Management

Please RSVP (PRE-REGISTRATION IS REQUIRED) to the Manitoba Bar Association online at www.cbapd.org. The link to join the meeting will be sent the morning of the meeting.

Substantive Law

Administrative Law

Canada (Attorney General) v. Robinson, 2022 FCA 59: Issue of whether the holder of an inshore fishing license must personally carry out the activities authorized by the licence. Licence holder can apply for permission to substitute another person if they are medically unable to perform the activity, subject to a five-year limit. The department had allowed respondent permission to extend the substitution for longer than five years, but gave notice that 2016 would be the last year. FCA ruled on whether the trial judge adopted the correct standard of review, and then, whether he applied it correctly. Appeal dismissed. (Further comment noted below.)

A Maze in Corn Inc. v. Manitoba Emergency Measures Organization et al, 2022 MBCA 38: Application seeks leave to appeal a decision of the Manitoba Disaster Assistance Appeal Board. Decisions are only allowed with leave of the Court of Appeal and only on a question of law. Applicant raises four grounds of appeal. Leave to appeal granted on the issue of compensable economic loss.

Mark Mancini. The Sunday Evening Administrative Review, Issue #37, April 10, 2022. Comment on Canada (Attorney General) v. Robinson, 2022 FCA 59.

Civil Litigation

McDonald v. Bialowas et al, 2022 MBCA 39: Appeal of decision (2021 MBQB 161) dismissing claim for a declaration that a door in the appellant’s building is governed by, required and compliant with the 1941 National Building Code. Appeal dismissed.

Nguyen v. Winnipeg (City of), 2022 MBCA 33: Issue of whether a judgment was an interlocutory order which requires leave to appeal or if it was a final order, allowing an appeal as of right. Analysis of the difference between the two, in a slip and fall case. Steel, J.A. finds the City is allowed to appeal as of right.

Wilde et al v. The Rural Municipality of Taché et al, 2022 MBCA 31: Appeal of dismissal of application to extend time to commence an action against the respondents for defects in the design and construction of their residence. CA determined that application judge correctly determined that the appellants ought to have known there were foundation problems several years prior to acting on it. Appeal dismissed. 

Group III Diversified Inc v Winnipeg (City of), 2022 MBCA 30: Appeal of order assessing compensation in an expropriation case. Land Value Appraisal Commission (LVAC) assessed compensation of $177,057.75; appellant was seeking $5,749,000. Pfuetzner, J.A. determined reasons from LVAC were deficient such that they did not allow for appellate review. Matter sent back to LVAC for a new hearing in accordance with guidance provided in these reasons.

Winnipeg Condominium Corporation 479 v. Frohlinger, 2022 MBCA 29: Appeal of decision discharging a mortgage held by the appellant against the title to a parking unit. Discussion of development where parties are in a non-arms-length relationship. Court found no reviewable error of fact or law; appeal dismissed.

The City of Winnipeg v. 3177751 Manitoba Ltd., 2022 MBQB 85: Defendant seeks an order disqualifying a law firm (Taylor McCaffrey LLP) from acting for the City of Winnipeg on an expropriation hearing. Defendant claims firm is in a conflict of interest because it had acted for the defendant and some of its affiliates over the last 20 years. Examination of the law of conflict of interest in the legal profession and discussion of “bright line rule”. Motion dismissed.

Winnipeg (City) v. Caspian Projects Inc. et al., 2022 MBQB 81: Resolution of payment of $327,200 found to be a civil bribe. Joyal, C.J.Q.B. determined that it should be treated as damages for breach of trust, payable to the City. Analysis includes caselaw re damages in an amount equivalent to the bribe.

3065448 Manitoba Ltd. v. Bolay, 2022 MBQB 65: Contract dispute. Issue over quality of work as well as length of time to complete the project. Abel, J. determined time was not of the essence, so the lack of a guaranteed completion date was not enough of a factor to allow the plaintiffs to issue a stop-work order. Deficiency in workmanship was repairable, and defendant was willing and able to repair it. Corporation entitled to damages of 75% of the contract, since it had completed 75% of the work; Bolay entitled to damages for repairs recommended by expert report of $21,200.

Merchant Law Group v. Champagne, 2022 MBQB 64: Appeal of small claims court officer’s decision requiring appellant to pay respondent fees, disbursements and costs for legal services in a family law matter on the basis of quantum meruit. Counsel of record moved to withdraw but the family division justice refused the motion, even though the appellant advised that she would be representing herself. No formal contract or retainer drawn up between the parties. Toews, J. finds the hearing officer’s determination constitutes an error of law. Appeal allowed to the extent that the amount of the order be reduced by 70%, roughly the amount of work completed after the appellant’s termination of the relationship.

The Rural Municipality of Macdonald v. Samborski, 2022 MBQB 54: Hearing over penalty for contempt. Defendant refused to obey an interim injunction restraining them from composting on a property, in violation of a municipal by-law. Penalty codified under Queen’s Bench Rule 60.10. Analysis of caselaw on fines for contempt. Suche, J. found a reasonable fine was $5,000 for the defendant Leonard Samborski, $10,000 for Samborski Environmental and $40,000 for costs in favour of the R.M.

J-Kap v. City of Winnipeg, 2022 MBQB 49: Plaintiff sued City of Winnipeg in negligence by issuing a deficient building permit. Plaintiff purchased a house in need of repair and submitted an application with construction drawings that included a new foundation to replace the existing foundation. Building permit allowed for the construction of an addition to the rear of the building but no foundation work. Credibility of plaintiff at issue. City is successful.

Michael Ilg. Markets, Autonomy, & Mistake: The Judicial Control of Standard Form Contracts in a Cyber Age. (2022) 37 B.F.L.R. 229 (WLNC – request a copy).

This article addresses the growth of electronic standard form agreements involving consumers and considers the implications for general principles of contract law. In answer to the potential abuse of electronic standard agreements by technology companies, the Supreme Court of Canada, in Heller v. Uber, significantly expanded the equitable doctrine of unconscionability. 

Paul Ivanoff and Ethan McCarthy. Contract Termination: Considerations in Terminating for Default or for Convenience. 2021 J. Can. C. Construction Law 61. (WLNC – request a copy)

Parties enter into construction contracts with a common goal of building a successful project. Yet industry participants know all too well that hurdles can be encountered during project execution which will challenge the relationship between contracting parties. Many hurdles can be resolved amicably through the mechanisms provided in the contract. However, in certain instances, an owner or contractor may be so dissatisfied with the other party’s performance of their contractual obligations that they may view the relationship as unsalvageable and seek to bring it to an end by terminating the construction contract for default.

Criminal Law

R. v. Dussault, 2022 SCC 16: Issue of accused’s right to counsel before police questioning (s. 10(b) of the Charter). Did police provide accused with a reasonable opportunity to consult counsel, and were they required to provide him with a further opportunity to consult counsel before interrogating him. Appeal dismissed. Per Moldaver J. (Wagner C.J. and Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3] For reasons that I will explain, in the unique circumstances of this case, I am satisfied that the police were required to provide Mr. Dussault with a further opportunity to consult counsel before questioning him. My reasons for reaching that conclusion, however, differ from those of the Court of Appeal. In my opinion, there were objectively observable indicators that the police conduct in this case had the effect of undermining the legal advice that the lawyer provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide Mr. Dussault with a second opportunity to consult counsel. They failed to do so and thereby breached his s. 10(b) rights. I would dismiss the appeal.

R. v. J.D., 2022 SCC 15: Issue of continuation of proceedings before another judge. Judicial interpretation of s. 669.2(3) of the Criminal Code – rules to follow if a trial judge dies or is unable to continue when no adjudication has been made or verdict rendered. Appeal allowed, convictions and sentences restored. Per Côté J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)

[4] With all due respect, I conclude that the Court of Appeal erred in its interpretation and application of s. 669.2. There is no reason to require an inquiry that is not provided for by law where the parties have consented to the filing, in a trial that was commenced again, of a transcript of testimony given at a first trial. Such an inquiry would completely alter the judge’s role, minimize the judge’s ability to assess the transcript of prior testimony and run counter to the presumption of the competence of counsel.

R. v. Gerrard, 2022 SCC 13: Oral reasons dismissing appeal of 13 domestic violence related convictions delivered by Moldaver, J. Trial judge’s reasons show that she instructed herself correctly on the W.(D.) test. Trial judge assessed complainant’s credibility as a direct response to accused’s defence at trial.

R. v. Tim, 2022 SCC 12: Issue of infringement of the right against arbitrary detention under s. 9 of the Charter. Police officer arrested accused based on a mistake of law about the legal status of a substance found in the accused’s vehicle.  Per Wagner C.J. and Moldaver, Côté, Rowe, Kasirer and Jamal JJ.:

[4]  For the reasons that follow, I would dismiss the appeal. The police breached s. 9 of the Charter by arresting the appellant based on a mistake of law about the legal status of gabapentin. They then breached s. 8 of the Charter by searching his person and car incident to the unlawful arrest. … Although all the impugned evidence was “obtained in a manner” that breached the Charter, I would not exclude it under s. 24(2). The Charter breaches were at the less serious end of the scale of culpability and only moderately impacted the appellant’s Charter-protected interests. On the other side of the ledger, the evidence was reliable and essential to the prosecution of serious offences. In my view, weighing these considerations, the admission of the evidence would not bring the administration of justice into disrepute.

Per Brown J. (dissenting)

[104] Taking that into account, and accepting my colleague’s discussion of the other lines of inquiry under R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I find that admitting the evidence would bring the administration of justice into disrepute. I would therefore allow the appeal, exclude the evidence, and substitute verdicts of acquittal on all charges.

R. v. Stairs, 2022 SCC 11: Issue of whether search of accused’s home was a breach of his s. 8 Charter rights. Recognition of the potential of violating privacy through a warrantless search of a home; is the area sufficiently proximate to the arrest to provide a link. Appeal dismissed: Wagner, C.J. and Moldaver, Rowe, Kasirer and Jamal, J.J.:

[10] Applying the stricter standard to this case, the police, in our view, had reason to suspect that there was a safety risk in the basement living room and that their concerns would be addressed by a quick scan of the room, which was the least intrusive manner of search possible in the circumstances. It follows that Mr. Stairs’ s. 8 Charter rights were not breached, and the drug evidence was properly admitted. Accordingly, we would dismiss the appeal.

Karakatsanis, Brown and Martin, J.J. (dissenting):

[107] Like my colleagues, I conclude that the common law sets too low a bar for searches incident to arrest inside a home. Privacy demands more. When officers seek to search a home for safety purposes — as they did here — the appropriate standard is reasonable suspicion of an imminent threat to police or public safety.

Côté, J. (concurring);

[174] However, in the present case, I would not interfere with the trial judge’s finding that the police were acting in good faith on their understanding of unsettled law. As I have explained, the justificatory standard for and permissible scope of a residential search incident to arrest were unclear at the relevant time. Further, society has a strong interest in the adjudication of a charge involving a large quantity of a highly dangerous and pernicious street drug.

R. v. Moar, 2022 MBCA 36: Accused appeals his conviction for second degree murder and the period of parole ineligibility. Appeal is based on the grounds that the trial judge erred in instructing the jury on intention and intoxication. Analysis of the trial judge’s instructions and the law around jury instructions. Conviction appeal dismissed. Accused argues that the trial judge erred in apply his Gladue factors in determining his sentence. Leave to appeal the sentence granted, but appeal dismissed.

R. v. G.S., 2022 MBCA 35: Accused appeals his convictions for sexual assault with a weapon, choking to overcome resistance and uttering threats. Crown seeks leave to appeal and if granted, appeals the sentence. Accused seeks to admit fresh evidence. Evidence against the accused included an audio file made by the victim during the assault. He seeks to tender opinion evidence of an expert that the audio file was manipulated. Conviction appeal dismissed; leave granted to appeal the sentence, but also dismissed.

R. v. Bunn, 2022 MBCA 34: Accused appeals his conviction for sexual assault; Crown seeks leave to appeal, and if granted, appeals the sentence. Accused argues that the trial judge applied uneven scrutiny in her analysis of his evidence versus the victim, and returned an unreasonable verdict. CA dismissed the convictions appeal. Crown allowed leave to appeal sentence, but appeal dismissed.

R. v. Keating, 2022 MBCA 32: Crown appeal of sentence for break and enter and committing assault, and uttering threats. Sentence was 18 months’ incarceration for first charges, and an additional six months incarceration, concurrent followed by three years’ probation. Crown alleges trial judge erred by underestimating the gravity of the offences and the accused’s moral culpability. Court agrees; new sentence (jointly recommended) of four years’ and six months (concurrent).

R. v. Bordian, 2022 MBQB 83: Trial over charge of attempted murder and aggravated assault. Both the accused and the victim testified with two very different versions of the events. Analysis and consideration of the credibility of the evidence of both parties. Accused acquitted of attempted murder, convicted of aggravated assault.

R. v. C.B., 2022 MBQB 63: Accused pleaded guilty to three counts of mischief and was sentenced to 15 months of supervised probation. He appeals, arguing that the sentencing judge erred in principle and submits that the appropriate sentence is a conditional discharge. Harris, J. found sentencing judge erred by focussing almost exclusively on the offence and its impact on society. Further analysis is required on whether a discharge would not be contrary to the public interest. Appeal allowed.

R. v. Peters, 2022 MBQB 59: Accused charged with sexual assault and failure to comply with an undertaking. Complainant and accused testified. Leven, J. used W.(D.) framework to analyse reasonable doubt. Trial was not an issue of consent; both parties described two different scenarios. Accused found guilty.

Hudson (Re), 2022 MBPC 20: Determination of who will be granted standing in the Inquest into the death of Eishia Hudson. Ms. Hudson was killed by a WPS officer who discharged his firearm. Presumption of inquest is to determine the circumstances relating to the death and determine what, if anything, can be done to prevent similar deaths in the future. Detailed explanation of who will be granted standing, who will not, and why.

R. v. Anobis, 2022 MBPC 17: Accused is charged with assault on a peace officer (x2) and resisting arrest. Evidence of accused and evidence of police officers differ. Evidence includes testimony of accused, police officers, taser report, and video recording provided by the accused. Heinrichs, P.J. observes inconsistencies in all the testimony. Although the judge finds issues with the accused’s evidence, there is a reasonable doubt as to his guilt.

R. v. D.P., 2022 MBPC 16: Accused is charged with possession of a Schedule 1 drug after a traffic stop. Traffic stop was legal; accused claims vehicle was searched without a warrant. Onus on accused to establish on a balance of probabilities that a breach occurred. Evidence of police officers and accused both consistent and logical; however, judge accepts police evidence.

R. v. James, 2022 MBPC 15: Sentence for guilty plea to the offence of manslaughter. This was a violent, unprovoked attack with a knife in a public space. Accused was extremely intoxicated at the time, raising doubt that the Crown could prove he had the intent necessary to support a conviction for murder. Pre-sentence report and a Gladue assessment were filed with the Court. Accused sentenced to 10 years with a one year reduction due to severe Gladue factors.

Application pursuant to section 490(1) of the Criminal Code for detention of things seized, Envelope 28693, 2022 MBPC 14: Police (and counsel) appeared in an ex parte proceeding requesting a detention order pursuant to s. 490(1) of the Criminal Code. Report had been filed twice but was rejected and no order had been made. Issues of jurisdiction, effect of failure to file the report in seven days, and whether a detention order should be made in this case. Krahn, A.C.J. issued the order.

R. v. Rosin, 2022 MBPC 10: Ruling on admissibility of community impact statement (CIS), pursuant to s. 772.2(1) of the Criminal Code. Canadian Centre for Child Protection (C3P) wished to provide a statement which would provide general information about online luring and reference case law and information gathered from reported offences and comments from those who have been victimized. Defense argues the statement contains information that is inadmissible at law. Lord, A.C.P.J. references other cases both in Manitoba and other jurisdictions where C3P CIS were admitted. The statement is admitted.

R. v. Maytwayashing, 2022 MBPC 6: Sentencing decision after conviction for robbing a taxi driver, driving while impaired and refusing to provide a breath sample. Most serious part of the offence is the robbery. Crown submits a four year sentence is appropriate; defence submits Gladue principles call for a more lenient custodial sentence. Sentencing judge found accused had shown signs of rehabilitation while out on bail. Appropriate sentence is 18 months custody, with three months enhanced credit for pre-sentence custody.

Camas Ussery. The Myth of the “Ideal Victim”: Combatting Misconceptions of Expected Demeanour in Sexual Assault Survivors.(2022) 27 Appeal 3.

… This paper explores the research on trauma and demeanour and explains why it is critical that the legal profession appreciates its importance. The paper looks at many available yet underused options within the Canadian criminal justice system to mitigate the effects of trauma on demeanour and support survivors, and argues that their increased use would benefit survivors while maintaining the presumption of innocence that lies at the heart of a criminal trial.

Don Stuart. Fan: The Vexing Question of Distinguishing Mistakes of Fact from Those of Law. (2022) 75 C.R. (7^th) 22 (WLNC – request a copy). In R. v. Fan, … the courts were confronted with the argument that the accused had a number of licences that made their grow operation legal. The trial judge rejected the defence and convicted. When the appeal reached the Court of Appeal Justice Trotter dismissed the appeal on the basis that the trial judge did not accept the evidence that they believed the grow operation was legal. In the alternative he carefully explored what he rightly dubbed the “vexing” question of whether, if there was such a mistake, it was one of law or fact. 

Family Law

Johnson v. Miazga, 2022 MBQB 80: Motion for recusal. Respondent requests Petersen, J. be recused as the case conference judge on the basis of alleged apprehension of bias on an individual basis as well as an institutional basis, because petitioner’s counsel is the daughter of a former family division justice. Extensive analysis of the law regarding recusal. Motion dismissed.

Eichkorn v Eichkorn, 2022 MBQB 79: Master’s report re separation date. Parties are two years apart on date of separation. In absence of agreement, s. 16 of The Family Property Act provides that the separation date is the date when the spouses last cohabited with each other. Affidavits of the petitioner, respondent and one witness served as the direct evidence. Parties lived under the same roof until June 2020; dispute is over when they began to live separate and apart under the same roof. After analysis of evidence, Master accepts petitioner’s position.

J.L.B. v. C.D.R., 2022 MBQB 74: Claims for divorce, parenting arrangements and child support. Parties agreed to an order of joint custody; mother sought an order of primary care and control with final decision-making authority and specified periods of care to the father, with certain conditions. Father sought a shared care arrangement with equal decision-making authority. Father has a significant history of drug addiction and mental health concerns. Under best interests of the child, mother is awarded primary care and control. Father is ordered to provide annual financial disclosure; divorce judgment issued.

Chanel v. Chanel, 2022 MBQB 70: Motion by petitioner (wife) for an order of summary judgment incorporating the terms of a purported settlement agreement concerning child and spousal support, and the sharing of assets and liabilities. Respondent (husband) opposes, stating he didn’t agree to the settlement agreement. Both parties were represented by experienced counsel. Analysis of appropriateness of summary judgment in a family law context. Doyle, J. finds that there is, wife is entitled to summary judgment pursuant to Rule 70.18.1.

R.J.S. v. The Director of Child and Family Services, 2022 MBQB 69: Objection to placement of name on Child Abuse Registry. The Registry is provincial jurisdiction and not tied to a criminal prosecution, so the proceedings are a civil process, determined on the civil burden of a balance of probabilities. Evidence included testimony of applicant and (now adult) child, plus initial disclosure email made to ECFS staff, written response to NOPI by R.J.S., and other documents. On a balance of probabilities, Court is satisfied that R.J.S. did abuse his child.

Windsor v. Hink, 2022 MBQB 30: Reference for accounting under The Family Property Act. Parties have kept most of their funds separate. Master must consider which funds have been intermingled. Consideration of numerous recent decisions on the issue of tracing and whether assets that are alleged to be inherited or pre-acquired remain exempt. Analysis of growth of funds in child’s RESP funded, in part, by child support received by mother, and whether a portion of that should be considered an asset of the wife and shareable with the husband (issue of “excessive gifting”).

Nicholas Bala and Rachel Birnbaum. Focusing on Children in Post-Separation Parenting. The Lawyer’s Daily, April 27, 2022.

Rollie Thompson, Q.C. SSAG FAQs 2022: Your Frequently (or occasionally) Asked Questions About the SSAG, and Some “Answers”.

Labour and Employment Law

People Corporation v. Mansbridge, 2022 MBCA 37: Plaintiff sought an interlocutory injunction against the defendant (a former employee) and his new employer to enforce restrictive covenants and a confidentiality clause. Motion was dismissed; this is the appeal. Issue of standard to be applied when considering the test set out in RJR-MacDonald Inc. v. Canada (Attorney General). CA determined a “strong prima facie case” is the standard. Appeal dismissed. 

Thorne v. NNCEA Inc.,2022 MBQB 62: Action for remedies in connection with termination of employment in June 2016. Defendant moves to dismiss the plaintiff’s action for delay pursuant to Rule 24.01 of the Queen’s Bench Rules. Plaintiff filed statement of claim in May 2017, amended December 2018; statement of defence filed February 2019. Plaintiff and his counsel discussed a reply between March and May 2019. Plaintiff made offer to settle in May 2020. Issues of whether there has been a delay, and whether the delay has resulted in significant prejudice. Both parties contributed to the delay. Chartier, J. found there was enough activity to move the file forward to dismiss the motion.

Legislation

Federal

House of Commons
44th Parliament, 1^st Session

C-11 An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
At second reading in the House of Commons
Show details

C-19 An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures
At second reading in the House of Commons
Show details

C-237 An Act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act
At second reading in the House of Commons
Show details

Senate

S-203 An Act respecting a federal framework on autism spectrum disorder
Short title: Federal Framework on Autism Spectrum Disorder Act
At third reading in the Senate
Show details

S-241 An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals)
At second reading in the Senate
Show details

S-243 An Act to enact the Climate-Aligned Finance Act and to make related amendments to other Acts
At second reading in the Senate
Show details

Provincial

Proclamations

eLex April 2022

by Karen Sawatzky | Apr 11, 2022 | eLex

Table of Contents

News

In the News

Budget season, federal and provincial – On April 7, Budget 2022 was presented by the The Honourable Chrystia Freeland, Deputy Prime Minister and Minister of Finance, in the House of Commons. Highlights of the budget include a focus on housing, limiting greenhouse gases, and investment in low-carbon industries and the critical minerals sector.

Read the Government of Canada Budget 2022 news release here.

Meanwhile in Manitoba, the 2022 provincial budget is set to be delivered on Tuesday, April 12, 2022.

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

Court Notices & Practice Directions

Court of Queen’s Bench

March 9, 2022 – No need to self-isolate for out-of-province parties or witnesses  

Provincial Court

April 4, 2022 – Adult Criminal Matters in Thompson Court Centre

March 24, 2022 – New PC judge appointed in Thompson

Discipline Digests

The Law Society of Manitoba v Restall Jr., 2022 MBLS 2

New Library Resources

New from Emond’s Criminal Law Series

Qualifying and Challenging Expert Evidence, Eric V. Gottardi, Jennifer A. MacLellan, Michael Lacy, Robin Flumerfelt

Qualifying and Challenging Expert Evidence is an essential guide for legal practitioners and expert witnesses participating in a criminal trial. Applicable to Crown, defence counsel, and the judiciary, this handbook uses clear and concise language to address all aspects of expert witness testimony from start to finish.

Authored by a respected team of cross-national legal experts, Qualifying and Challenging Expert Evidence integrates varied perspectives to achieve a balanced, engaging, and comprehensive approach unmatched by any other resource. It maintains a practical focus while weaving strategic guidance with an analysis of case law and the relevant provisions of the Criminal Code and the Canada Evidence Act. Ranging from psychiatry to forensics and from pathology to technology, this resource will prepare legal practitioners for the procedural, tactical, and strategic elements of qualifying and challenging expert witnesses in criminal cases.

New Print Titles Coming Soon

Employment Law during a Pandemic, Sean J. O’Donnell, LL.B.

Developed in response to the pandemic, this handy resource acts as a one-stop reference for employment lawyers, litigators, in-house counsel and other human resources professionals who are charged with dealing with the employment law issues that have arisen during and as a result of the COVID-19 crisis. Author O’Donnell, an experienced employment lawyer, is particularly well-positioned to offer general guidelines and best practices for addressing those issues, as well as to provide insight into the relevant legislation and case law related to COVID-19. Featuring case studies based on the COVID-19 outbreak, this text includes answers to the most pressing employment- and pandemic-related questions that lawyers and other professionals are grappling with at this time.

New eResources

New Family Law Resources from Justice Canada

New Family Law resources have recently been released by the Justice Department as part of their free online legal training resources for professionals, Justice Canada Changes to Family Laws. Along with a family violence toolkit, three new free and accredited courses are available to help lawyers understand the 2021 amendments to the Divorce Act.

ICYMI: Journals Update

New articles from the following journals are now available for Law Society members upon request:

• Estates Trusts & Pensions Journal
• Canadian Criminal Law Review
• Criminal Law Quarterly
• Canadian Journal of Administrative Law & Practice
• Canadian Journal of Law and Jurisprudence
• Education and Law Journal
• Indigenous Law Journal
• University of Toronto Law Journal
• Windsor Yearbook of Access to Justice

To see the full list of articles click here. For a pdf copy of the listed articles, email us at library@lawsociety.mb.ca.

Book Reviews

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

Artificial Intelligence and the Law in Canada. Edited by Florian Martin-Bariteau and Teresa Scassa. Toronto: LexisNexis Canada Inc., 2021. xxvii, 422 p. Includes contributor biographies, foreword, table of contents, table of cases, and index. ISBN 978-0-433-51467-1 (hardback) $195.00.

“[..] Artificial Intelligence and the Law in Canada highlights all the ways in which AI has had and will continue to have an impact on significant aspects of Canadian society. It explains how the law has responded to or might respond to issues raised by AI’s current or potential applications within the current legal framework. Where appropriate, it considers how the law could or should be reconceptualized to respond to these issues.

[…] If readers were uncertain before, this book makes it abundantly clear that AI is here, and it is here to stay. In this context, Artificial Intelligence and the Law in Canada is an essential read for practicing lawyers across all areas of law, judges, policymakers, and of course legal academics, and is a must-purchase for all types of law libraries.” – reviewed by Katerina Daniels

Events

The New Limitations Act

Apr 28 2022

1:00 pm – 4:00 pm

Significant changes to the limitation periods for civil causes of action will come into effect on September 30, 2022, bringing Manitoba’s regime into alignment with many other provinces. The new Limitations Act eliminates the various limitation periods for different causes of action under our current legislation and replaces them with a two-year ”basic” limitation period. It also shortens the “ultimate” limitation period to 15 years, with the exception of certain Aboriginal claims.

In addition to understanding the law, you will also need to think carefully about your system for diarizing matters and how you will communicate with clients about their claims.

This ½ day program will give you an overview of the new Limitations Act, covering key topics such as:

• What does the new statute make simpler or more complicated?
• Transition period
• Discoverability – basic limitation period runs from the date the claim is discovered
• Practice management considerations

Presenters
Bill Gange, Gange Collins
Tana Christianson, Professional Liability Claims Fund
Kelly Dixon, Green & Dixon
Sacha Paul, Thompson Dorfman Sweatman LLP

Register Now.

Substantive Law

Administrative Law

Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50: Decision of the Refugee Protection Division (RPD) finding that the respondent had “voluntarily reavailed herself of the diplomatic protection of Columbia” because she had used a Columbian passport to travel to Columbia and sought private protection. As a result, she lost her claim for protection. Federal court found RPD decision unreasonable. Reasonableness analysis conducted from paras 58-79. FCA agreed and offers RPD extensive guidance (para 80).

Thorkelson v.The College of Pharmacists of Manitoba et al., 2022 MBQB 29: Appeal of decision by College of Pharmacists to cancel appellant’s license. Appellant pled guilty to the felony of misprision in the U.S. Parties do not agree on the standard of review. Appellant argues this appeal is a new matter; respondents say it is appellate review, relying on Vavilov. Suche, J. provides an overview of the licence cancellation procedure of The Pharmaceutical Act. Analysis of whether “misprision of a felony” is an offence. Court concludes that cancellation of the appellant’s licences is not an appropriate penalty.

Paul Daly, Jennifer Raso and Joe Tomlinson. Administrative Law in the Digital World, 2022 CanLIIDocs 559.

…Given the vast scope, both current and potential, of the interfaces between administrative law and the digital world, our aim in this chapter cannot be to provide a comprehensive survey of the questions that occupy this growing part of the field, or those questions that may occupy it in the coming years. Instead, our aim is more modest but still, we hope, useful at this juncture: to provide a provocation for administrative law scholars regarding the necessity of engaging with developments concerning digital technology…

Terry Davidson. Follow-up Needed if Changes Come to Manitoba’s Social Services Appeal Process: Expert. The Lawyer’s Daily, 15 March 2022. Comment on amendments introduced to The Social Services Appeal Board Act.

Civil Litigation

Anderson v. Alberta, 2022 SCC 6: Advance costs and the requirement of impecuniosity. Cost of litigation is estimated at $5 million. Appeal allowed; Karakatsanis and Brown JJ. (Wagner C.J. and Moldaver, Côté, Rowe, Martin, Kasirer and Jamal JJ. concurring)

[4] We conclude that a First Nation government that has access to resources may meet the impecuniosity requirement if it demonstrates that it requires such resources to meet its pressing needs. While the impecuniosity requirement is guided by the condition of necessity, pressing needs are not defined by the bare necessities of life. Rather, and in keeping with the imperative of reconciliation, they ought to be understood from the perspective of that First Nation government. …

[7] In our respectful view, the case management judge erred in her impecuniosity analysis. While her finding that Beaver Lake is an impoverished community with pressing needs is unassailable, her findings were insufficient to conclude that Beaver Lake had satisfied the legal test for impecuniosity.

[8] The matter of Beaver Lake’s impecuniosity, however, should be reconsidered in light of the reasons that follow, and to account for the passage of time which will likely have altered Beaver Lake’s current financial state. We would therefore allow the appeal and remit the matter to the Court of Queen’s Bench of Alberta.

Forsythe et al v. Labossiere et al, 2022 MBCA 28: Plaintiffs appeal an order directing the district registrar to cancel and discharge a caveat filed by the plaintiffs. Issue of whether the motion judge had jurisdiction to discharge the caveat and whether it was appropriate to dismiss the plaintiffs’ motion for a PLO. Judicial consideration of test from Bojkovic v. Rentz Bros Inc et al, 2010 MBCA 17. Discussion of caveat discharge under s.163 of The Real Property Act. Plaintiffs’ appeal granted.

Singh v. Brar, 2022 MBQB 60: Application for a declaration that a taxi vehicle licence belongs to the applicant. Respondent argues that he has a 50 percent beneficial ownership interest in the licence. Onus is on applicant to demonstrate that the respondent does not have an interest. Perlmutter, A.C.J.Q.B. found that she was not able to do that and therefore the parties are in a partnership and the respondent has a 50 percent beneficial ownership interest. Partnership is to be dissolved and licence to be sold. Remaining issue is determining the date of the dissolution of the partnership. Reference to a master to take accounts and determine the distribution of assets.

Kalo v. Microsoft Corporation, 2022 MBQB 56: Small claims action: dispute over loss of files from a Hotmail account which was deactivated by the defendant. Claimant lost access to the account and followed some procedures to regain access but did not complete them. After 60 days of no activity, defendant deactivated the account and all files and documents were deleted. Claimant is asking for damages of $15,000. Toews, J. found that the defendant provided claimant with an opportunity to retrieve his data and dismissed the claim.

Winnipeg (City) v. Caspian Projects Inc. et al., 2022 MBQB 53: Cross motions for summary judgment re City’s claims over cost overruns and other financial issues regarding the bidding and tendering of the contract to replace the WPS headquarters. Joyal, C.J.Q.B. finds that summary judgment is an appropriate forum and over 129 pages, decides that the City’s allegations have been proven and the defendants’ cross-motion ought to be dismissed. Discussion of admissible evidence to be considered by the court (para 108). Damages award determined starting at para 265.

Niata Enterprises Ltd. et al. v. Snowcat Property Holdings Limited, 2022 MBQB 50: Application for a declaration of entitlement to an easement over the respondent’s property, and an interlocutory injunction restraining the respondent from interfering with the easement. Applicants claim under proprietary estoppel and prescriptive easement. Discussion of the applicable law governing the establishment of a prescriptive easement. Application dismissed.

White Oak Commercial Finance, LLC v. Nygård Holdings, 2022 MBQB 48: Application by Receiver seeking several orders, and a separate motion seeking advice and direction regarding the additional use of the Preserved Proceeds. Discussion of a “substantive consolidation” and whether it should be applied in the facts and circumstances of this case. Analysis of the proper allocation of revenues generated from the sale of assets towards costs for professional fees. Consideration of the application of the law of subrogation. Summary of Orders/Declaratory relief found at para. 161.

Muzik v. Worthington et al., 2022 MBQB 44: Reasons on costs for decision reported at 2021 MBQB 263 where plaintiff was awarded damages of $1.6 million for defamation. No award of solicitor and client costs; party and party costs at a Class 4 level with some double costs due to refusal of a settlement offer; pre-judgment and post-judgment interest included. Summary noted at para. 45.

Papasotiriou-Lanteigne v. Tsitsos, 2022 MBQB 41: Appeal from a Master’s decision dismissing the action for long delay. Issue is over whether the plaintiff was under a disability, as QB Rule 24.02(3) states that any period of time a person is under a disability is not included when calculating the three years under Rule 24.02(1). Plaintiff argued that his conviction for murder and imprisonment counted as a disability. Discussion of the law on dismissal for an action for delay. Appeal dismissed.

Roque v. Peters, 2022 MBQB 34: Suit over providing intimate images to a third party without consent. Two statutory torts involved, under The Intimate Image Protection Act and The Privacy Act. Zinchuk, J. stated “It is the ability to control who sees images of one’s body which is ultimately central to this litigation” (para.33). Consideration of whether motives of defendant play a role when considering defence of public interest. Plaintiff is successful; general and aggravated damages awarded.

Manitoba Federation of Labour et al v. The Government of Manitoba, 2022 MBQB 32: Award of damages for breach of Charter rights in negotiation between the University of Manitoba and the University of Manitoba Faculty Association. UMFA is claiming damages on behalf of individual members and on behalf of the union itself. Discussion of the loss of trust in the union/membership relationship, as well as employee/employer relationship due to government interference. McKelvey, J. used the steps developed in Vancouver (City) v. Ward, 2010 SCC 27 to assess damages. Damages of just over $19 million are awarded.

Clovis Kemmerich. The Interpretation of Court Opinions. (2022) 35 Can. J.L. & Juris. 169 (WLNC – request a copy).

What kind of argument is acceptable for this or that interpretation when the text is a court’s opinion? There is plenty of discussion about literary, constitutional, and statutory interpretation. Is it acceptable to import their tenets or theories to the interpretation of court opinions? This paper goes over the leading views on literary, constitutional, and statutory interpretation to compare them with the needs of the court opinions’ interpretation. The author argues that one must interpret court opinions according to the pragmatic model and endeavor to understand the meaning the judge intended for the text.

Terry Davidson. Manitoba Intimate Images Lawsuit Could Pave Way for Other Complainants: Lawyer. The Lawyer’s Daily, 14 March 2022. Comment on Roque v. Peters, 2022 MBQB 34, the first ruling on The Intimate Images Act.

Criminal Law

R. v. Vallières, 2022 SCC 10: Issue of amount of fine in lieu of an order for forfeiture of property that is proceeds of crime. Respondent was convicted of fraud, trafficking and theft of maple syrup. Trial judge had imposed a fine in lieu of an order for forfeiture equal to the value of the property ($10 million). Court of Appeal reduced it to $1 million, the value of the property that was proceeds of crime. Appeal allowed. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

[1] This appeal gives the Court an opportunity to clarify the scope of judicial discretion when determining the amount of a fine to impose on an offender under s. 462.37(3) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), in lieu of an order for forfeiture of property that is proceeds of crime (“fine in lieu”). In particular, this Court must determine whether a court has the discretion to limit the amount of a fine in lieu to the profit made by an offender from their criminal activities and must delineate the circumstances in which a court may apportion between co‑accused the value of property that is proceeds of crime. This appeal serves, incidentally, as an occasion for this Court to reaffirm that a fine in lieu is ordered as a substitute for forfeiture and not as a punishment for the commission of an offence, although the fine is part of the sentencing process.

R. v. Samaniego, 2022 SCC 9: Issue of the scope of trial management power. Accused appealed his conviction on the basis that the trial judge erred by making rulings curtailing particular lines of questioning. From the headnotes:

Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Three of the impugned rulings were free from error. The fourth ruling was erroneous in part; however, the curative proviso applies, as it occasioned no substantial wrong or miscarriage of justice.

Per Côté, Brown and Rowe JJ. (dissenting): The appeal should be allowed, the conviction set aside, and a new trial ordered. The trial judge’s exclusion of the security guard’s prior inconsistent statement made at the preliminary inquiry about who dropped and picked up the gun was an erroneous evidentiary ruling, not a trial management decision. This error cannot be saved by the curative proviso.

R. v. White, 2022 SCC 7: Oral decision: Appeal as of right based on dissent in NLCA. Respondent claimed ineffective assistance of counsel and sought a new trial. He claimed he had not been advised of his right to choose a trial in Provincial Court, Supreme Court with a judge alone, or Supreme Court with a judge and jury. He was convicted in Provincial Court. Dissent in CA did not agree that ineffective assistance of counsel was made out. Appeal allowed and matter remanded to CA to address respondent’s remaining grounds of appeal.

R. v. Brunelle, 2022 SCC 5: Oral decision: Crown appealed as of right, arguing that majority overstepped in its appellate role by reassessing the evidence. Accused claimed he acted in self-defence; trial judge rejected the theory.

When a verdict is reached by a judge sitting alone, there are two bases on which a court of appeal may be justified in intervening because the verdict is unreasonable: (1) where the verdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning (R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3).

R. v. Hjorleifson, 2022 MBCA 27: Motion by accused for an order pursuant to r. 46.2 of the Court of Appeal rules for the rehearing of his appeal. Test set out in Rémillard v. Rémillard, 2015 MBCA 42. Motion dismissed.

R. v. Tamana, 2022 MBCA 26: Accused appeals his convictions for kidnapping, aggravated assault, robbery with a firearm and other offences, and seeks leave to appeal his sentence. Accused has burden of establishing his claim of uneven scrutiny of the evidence. Appeal dismissed and leave to appeal the sentence denied.

R. v. J.M., 2022 MBCA 25: Accused appeals conviction for offences of sexual assault and sexual interference. He also seeks leave to appeal and if granted, appeal his sentence. Accused argues trial judge erred by admitting the victim’s video statement and that the verdicts were unreasonable. Examination of s. 715.1 of the Criminal Code and its application in this case. Conviction appeal dismissed and leave to appeal sentence denied.

R. v. Gromnisky, 2022 MBQB 58: Accused was convicted of impaired driving and sentenced to a minimum $1,000 fine and a minimum one year driving prohibition, leading to a suspension to his driver’s licence. He appealed and filed an application to have the order stayed which was granted. There being no written decisions in Manitoba, Martin, J. provides these reasons. He notes the different legislative and procedural requirements under the Criminal Code and The Highway Traffic Act. Test for a stay is noted in para 11.

R. v. A.S., 2022 MBPC 12: Sentencing decision where accused pleaded guilty to 17 child sexual abuse offences involving nine children, which took place over two and a half decades. Children were all known to him. Crown seeking a sentence of 30 years; defence 21 ¼ years. Relevant sentencing principles in this case are denouncing the offender’s conduct, deterrence, separating him from society, and to acknowledge the harm done to the victims. Much discussion of R. v. Friesen, 2020 SCC 9. Sentence for each offence should be consecutive, but the reasonable sentences add up to 105 ½ years. Sentence of 30 years reduced by pre-trial custody.

R. v. Sumner, 2022 MBPC 3: Sentencing decision where accused pleaded guilty to a residential break and enter, commit assault and an aggravated assault committed 18 days later. Matter heard in FASD Court. Both events were extremely violent. Video evidence provided for both. Devine, P.J. notes the lack of appropriate resources available to house the accused. Examination of the accused’s moral culpability given he is indigenous, suffers from FASD and other psychological diagnoses. Sentence for break and enter is 18 months, sentence on aggravated assault is four years, giving a total of five and a half years. Overall sentence reduced to four years, reduced by the time spent in custody.

R. v. Day, 2022 MBPC 2: Voir dire over issue of constitutional validity of mandatory alcohol screening (MAS) under s. 320.27(2) of the Criminal Code on charge of impaired driving. Accused bears burden of proving on balance of probabilities that the section violates the Charter. Significant narration of the expert opinion evidence given. Discussion of the effectiveness of MAS on deterring drinking and driving. Motion dismissed.

Nathan Baker. Cases Address Question of Time on Suspension Pre-DUI Pleas. The Lawyer’s Daily, 17 March 2022. SCC Leave to Appeal granted in Basque v. R., 2021 NBCA 50.

Cristin Schmitz. SCC Sheds Light on When Judicial Curtailment of Defence’s Cross-Examination Threatens Fair Trial. The Lawyer’s Daily, 25 March 2022. Summary of R. v. Samaniego, 2022 SCC 9.

Family Law

Singh v. Kaur, 2022 MBQB 46: Father’s application for the return of his son from Italy under the Hague Convention. Mother opposes and requests a stay or adjournment pending determination of her claim for refugee protection. Analysis of whether the evidence presented in court fulfills the meaning of Article 13(b) of the Convention (grave risk or harm) as an exception to the mandatory return provisions. Court must determine whether removal of the child was wrongful. Analysis of whether a “Voice of the Child” report should be ordered, considering the child is eight years old. Stay denied, report not ordered, and request for return of child granted.

A.J.K. v. J.P.B., 2022 MBQB 43: Issues of family violence, hearings without notice, sealing orders and initializing. Pattern of family violence has established that the father poses a significant risk to the mother, the children and the community. Mother has sole custody of the children. Mother sought a protection order for herself and then later for herself and the children. In current motion, mother is seeking an order that she not be required to provide notice to the father of a change of residence or relocation for the children. Case considers new provisions in the Divorce Act which mandates new duties for judges to consider family violence and how it impacts the best interest of the children. Discussion of when it is appropriate to initialize a decision. Court pocket is sealed to the father and the public until 30 days from the date of signing this judgment. Mother’s motion is allowed.

Manitoba (Director of Child and Family Services) v. A.K.M.P. and S.L.H., 2022 MBQB 38: Application by Agency for permanent order of guardianship. Respondents (parents) argue that a supervision order is appropriate. Agency bears burden of proof to establish that child was in need of protection at time of apprehension and trial. Child has already exceeded the maximum amount of time allowed under a temporary order. Both parents have made significant progress over the past two years. Thatcher, J. finds the child is currently in need of protection and grants a permanent order. There is a guardianship application brought by a grandmother. Child will not be adopted as long as that application is active.

T.L.T. v. D.A.F. and CFS Western MB v. T.L.E. and D.A.F., 2022 MBQB 28: Custody order for child who has been going back and forth between the mother and the father since 2014. Interim Order pronounced gave parents joint custody, with mother having primary care and control and father having specified periods of care. Issues for determination: What order is in the best interest of the child and pursuant to what legislation; ongoing amount of child support; are there any arrears of child support owing by the father. Menzies, J. had determined previously that the child was in need of protection. Abel, J. concludes that the parties should have joint custody, with the father having primary care and control, and determines level of child support and arrears payable.

Nicholas Bala and Yakin Ebsim. The 2021 Canadian Parenting Reforms: Is Shared Parenting the New Normal? Queen’s Law Research Paper Series. 2022 CanLIIDocs 557.

In March 2021 the first significant changes to the parenting provisions of Canada’s Divorce Act (DA) since its enactment in 1985 came into effect. While the legislative reforms were substantial, in many respects they reinforced judicial trends that were apparent in the caselaw under the previous legislation. Under the reforms, courts have continued to emphasize the need for individualized decision-making and the absence of legislative presumptions about parenting time or decision-making.

Alison Braley-Rattai. The Best Interest of the Child and the Limits of Parental Autonomy to Refuse Vaccination. McGill Journal of Law and Health, 2021 CanLIIDocs 13616.

In this article, the author defends the proposition that given the overwhelming scientific evidence that points to the safety and utility of childhood vaccination, consideration of the child’s best interest undermines the case for parental vaccine refusal, quite apart from the public health dimension of the issue, which she discusses only peripherally.

Labour and Employment Law

University of Manitoba v. University of Manitoba Faculty Association, 2022 CanLII 22900 (MB LA): Labour arbitration decision by William Kaplan. Three issues referred to interest arbitration: general salary increase, recruitment and retention adjustments, return to work disputes. Parties goal is to advance to the 25^th percentile in the U15 Group of Canadian Research University Salary Standings. UM currently sits near the bottom. Arbitrator uses the mean rather than the median when considering the General Salary increase.

JSL Labour and Employment Law NetLetter. A weekly current awareness service highlighting new labour and employment decisions from labour boards, arbitrators, human rights tribunals and courts. Available through LexisAdvance Quicklaw. Email us to be added to the distribution list.

Wills, Trusts & Estates

Weiss Estate v. Weiss; Weiss v. Weiss Estate, 2022 MBQB 55: Costs decision after granting of application found at 2022 MBQB 13. One set of parties were ruled against on both applications but wanted party and party costs and disbursements paid from the estate. Position of other (successful) parties request costs in an amount approximating tariff costs, doubled from the point where they made an offer to settle. Public Guardian and Trustee is also entitled to costs, determined on a solicitor and client basis.

Bowes v. Estate of Bowes, 2022 MBQB 47: Application for a determination of ownership of monies on deposit in a joint account where the testator died intestate. Applicant submits that legal and beneficial ownership of the account passed to him through right of survivorship. One sibling argues that the account is held in trust on the presumption of resulting trust. Leading decision on this issue is Pecore v. Pecore, 2007 SCC 17. Applicant has duty to prove transferor’s intention to make a gift. Bock, J. found applicant was successful and the balance in the account will not be included in the testator’s estate.

Tecter v. Reimer Estate, 2022 MBQB 45: Counsel for respondent requested submission respecting costs. Kroft, J. had ordered party and party costs for decision in 2021 MBQB 133. Parties submitted brief written reasons. Kroft, J. concluded party and party costs should be varied but solicitor and client costs were too high. Order for applicants to pay the respondent elevated costs.

Ian Burns. Beneficiaries not liable for debts of a trust or trustee, Alberta Appeal Court rules. The Lawyer’s Daily, 1 April 2022. Case comment on Chevron Canada Resources v. Canada, 2022 ABCA 108.  

Aubrie Girou and Catherine Bunio. B.C. Bill-21 and Electronic Wills: Progressive or Problematic? (2022) 41 Est. Tr. & Pensions J. 152 (Request a copy). A list of all articles from the latest edition of Estates, Trusts and Pensions Journal is available here.

Legislation

Federal

House of Commons

44th Parliament, 1^st Session
C-261
An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech)
Progress: First reading completed in the House of Commons
Show details

44th Parliament, 1^st Session
C-5
An Act to amend the Criminal Code and the Controlled Drugs and Substances Act
Progress: At second reading in the House of Commons
Show details

Senate

44th Parliament, 1^st Session
S-243
An Act to enact the Climate-Aligned Finance Act and to make related amendments to other Acts
Progress: First reading completed in the Senate
Show details

44th Parliament, 1^st Session
S-4
An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)
Progress: At second reading in the Senate
Show details

Royal Assent Received

44th Parliament, 1^st Session
C-12
An Act to amend the Old Age Security Act (Guaranteed Income Supplement)
Show details

Provincial

Government Bills

Private Bills

Proclamations

eLex March 2022

by Karen Sawatzky | Mar 14, 2022 | eLex

Table of Contents

News

In the News

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

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

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

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

Court Notices & Practice Directions

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

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

Court of Appeal

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

Court of Queen’s Bench

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

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

Provincial Court

March 10, 2022 – Judicial Appointment to the Provincial Court

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

Discipline Digests

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

New Library Resources

New in Print

LEGAL DATA AND INFORMATION IN PRACTICE: HOW DATA AND THE LAW INTERACT, SARAH A. SUTHERLAND

Legal Data and Information in Practice provides readers with an understanding of how to facilitate the acquisition, management, and use of legal data in organizations such as libraries, courts, governments, universities, and start-ups. Legal organizations are looking at how to develop data-driven insights for a variety of purposes and it is vital that they have the necessary skills to facilitate this work. This book will assist in this endeavour by providing an international perspective on the issues affecting access to legal data and clearly describing methods of obtaining and evaluating it.

New Online Titles

From HeinOnline

New Journal Titles from HeinOnline

HeinOnline has added new journal titles to their flagship journal database, the Law Journal Library. We’ve evaluated these new titles and are highlighting the ones we think you’ll be most interested in.
New titles include:

• Amicus Curiae
• Criminal Justice Studies
• Refuge: Canada’s Journal on Refugees
• Research in Law & Economics
• Tocqueville Review

New eResources

Digital Book Display – Evidence

One of the strengths of the Manitoba Law Library is our range of texts on evidence. We have titles specific to criminal law and family law, digital evidence, expert evidence, and section 24(2) of the Charter.

To help you browse, we’ve compiled some of our most recent print and online titles into this virtual book display.

Book Reviews

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

The Justice Crisis: The Cost and Value of Accessing Law. Edited by Trevor CW Farrow and Lesley A Jacobs. Vancouver: UBC Press, 2020. 345 p. Includes index. ISBN 9780774863582 (paperback) $39.95.

“What is the current state of civil and family law access to justice in Canada? The authors and editors of The Justice Crisis come together to describe a complex system in need of reform. This compilation of essays is the culminating project of the Canadian Forum on Civil Justice’s SSHRC Community-University Research Alliance (CURA) Cost of Justice Project, which aimed to produce research needed for evidence-based decision-making for civil justice reform in Canada and internationally. The project asked, first, what does it cost to deliver an effective civil justice system? and second, what are the social and economic costs of failing to do so? This volume targets these questions. […] The editors aim not just to describe problems, but also to present solutions. This goal is particularly well met in the case studies and the focus on the role of legal professionals in the system. Because of this, the book successfully strikes a balance between academic inquiry and lived experience. It bridges the gap some academic texts often leave open by raising practical solutions to the issues raised. Its language is generally accessible to a non-legal audience, making this a particularly useful cross-over text for social science readers as well.” – reviewed by Krisandra Ivings

Events

CLEA Annual Law Conference

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

The conference webinars are free, but you must register.

There are four sessions planned:

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

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

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

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

Substantive Law

Administrative Law

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

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

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

Civil Litigation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Corporate and Commercial Law

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

Criminal Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Family Law

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

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

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

Rachel Garrett. The Children Parliament Left Behind: Examining the Inequity of Funding in an Act Respecting First Nations, Inuit and Métis children, Youth and Families. (2021) 34-1 Canadian Journal of Family Law 45.

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

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

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

Labour and Employment Law

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

Wills, Trusts & Estates

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

Legislation

Federal

House of Commons

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

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

Senate

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

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

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

Provincial

Government Bills

Private Bills

Proclamations