New Resource – O’Brien’s Forms

Legal research resources are easy to find and purchase for litigators, but it’s much more challenging to do the same for corporate and commercial members. The best precedents are expensive and publishers are unwilling to allow us to make them easily available to members. We have been able to secure a subscription to O’Brien’s Forms Division I (Commercial and General) and Division II (Corporations) for library staff. If you are looking for precedents in this area, please contact us and we can do the research for you, and provide you with the precedent.

We also subscribe to Canadian Forms and Precedents through LexisNexis Advance Quicklaw. You can find a list of our complete collection here.

And don’t forget the new Practice Materials from the Law Society’s Education Centre. Current materials cover Corporate Commercial, Criminal Law and Real Estate, with coverage for Wills and Estates, Civil Litigation, Administrative Advocacy, Child Protection, and Family Law in the works.

eLex February 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Bankruptcy LawProvincial
Discipline DigestsCivil Litigation 
New Library ResourcesCorporate & Commercial 
 Criminal Law 
 Family Law 
 Labour & Employment 
 Wills, Trusts & Estates 


In the News

BCSC rules that B.C. is the appropriate location to hear a defamation suit against Twitter: Guistra v. Twitter, Inc., 2021 BCSC 54. Commentary from The Lawyers Daily.

The 2021 Annual Joint Family Law program is open for registration.
Topics will include:

  • High conflict parenting disputes
  • Valuation of property and support obligations
  • Rule amendments and new court forms relating to the Divorce Act
  • Effective virtual advocacy
  • How to remain resilient and have a rewarding career

The Great Library is open again! Please knock or call (204-945-1958) to be let in.

Court Notices & Practice Directions

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

Court of Queen’s Bench

Provincial Court

Discipline Digests

Discipline decision – CHAMPAGNE, Gisele Rita

New Library Resources

Newly added books

Recently added titles include A Guide to Mental Disorder Law in Canadian Criminal Justice and Judicial Review of Immigration Decisions. As well as new editions of Lawyer’s Professional Liability — 4th ed., General Principles of Canadian Insurance Law — 3rd ed., A Guide to Canadian Money-Laundering Legislation — 6th ed., and Nathan and Goldfarb’s Company Meetings for Share Capital — 12th ed.

See the full post for summaries of each title.

Substantive Law

Administrative Law

Stadler v. Director St. Boniface/St. Vital, 2021 MBCA 7: Applicant seeks leave to appeal an order of the Social Services Appeal Board confirming a decision to suspend the applicant’s income assistance benefits until the respondent has received confirmation that the applicant has applied for OAS and GIS. Leave for appeal allowed on two questions of law.

Cox v. Director St. Boniface/St. Vital, 2021 MBCA 2: Applicant seeking leave to appeal an order of the Social Services Appeal Board re overpayment of assistant to the applicant under the Employment and Income Assistance Program. Applicant had gone to Germany for a medical consultation and did not advise the program. When they found out, her file was closed. She reapplied upon return and was approved, but was assessed an overpayment for benefits received while she was out of the country. Motion for leave to appeal dismissed.

Paul Daly. Administrative Law Matters – Regulations and Reasonableness Review, January 29, 2021 as viewed on February 4, 2021. Analysis of standard of review of regulations.

Bankruptcy Law

Economical Mutual Insurance v. Guilbert, 2020 MBQB 179: Applicant seeks declaration that judgment issued against respondent will not be released by an order of discharge in bankruptcy. Respondent was found responsible in a civil court for the loss of his business due to arson. Analysis of s. 178(1)(a) and (e) of the Bankruptcy and Insolvency Act.  Menzies, J. finds for the applicant.

Justice David M. Brown. Insolvency Routes of Appeal: A Quick Primer. Canadian Bankruptcy Reports (Articles) (2020) 76 C.B.R. (6th) 197 (WLNC, request a copy).

Civil Litigation

Armstrong v. Ward, 2021 SCC 1: Oral decision re medical negligence. Appeal allowed for the dissenting reasons of Justice van Rensburg in 2019 ONCA 936; trial decision restored.

Canada v. MacDonald, 2021 FCA 6: Costs decision. Mr. MacDonald was successful at trial in the Tax Court, and was awarded costs. Crown appealed and was successful and awarded costs. Mr. MacDonald appealed to SCC and lost again, with costs. Prior to appeal hearing at FCA, he had sought an enhanced costs award because of a settlement offer. Crown now appeals, seeking enhanced costs for a settlement offer it made. Analysis of the doctrine of relitigation. Appeal dismissed.

Canada (Attorney General) v. Utah, 2020 FCA 224: Action for damages for failing to process request for refugee protection in a timely manner. Defendants moved for summary dismissal on limitations grounds at trial. All agree that limitation period is two years. FCC dismissed the motion; FCA allowed appeal and dismissed motion. Key provision is Alberta’s Limitations Act, para. 3(1)(a). Further commentary below.

Viscount Gort Motor Hotel Ltd. v. Pre-Con Builders Ltd. et al, 2021 MBCA 5: Appeal by applicant over dismissal of application to extend the limitation period under Part II of The Limitation of Actions Act. Applicant sought to file a claim for breach of contract and negligence. Judge determined applicant ought to have known of the cause of action more than 12 months before filing the application. Appeal notes there are two claims, one of which should have been known but the other was not. Appeal allowed in respect of one set of deficiencies.

B.N. v. Anglican Church, 2020 MBCA 127: Appeal by defendant that it was vicariously liable for two sexual assaults, as well as the damage award. Defendant argues that trial judge didn’t consider the inconsistencies in the plaintiff’s evidence and misconstrued the totality of the evidence. Issues on appeal raise issues of fact and mixed fact and law, which are reviewable only for palpable and overriding error. Court determines that defendant has failed to demonstrate decisions warrants appellate intervention. Appeal dismissed.

Crescent View Farms Ltd. et al. v. ULS Industries Ltd. et al., 2020 MBQB 191: Litigation over repairs to a manure storage facility. ULS seeks leave to amend its third party claim to add the Government of Manitoba plus several Manitoba Conservation employees. Analysis of The Proceedings Against the Crown Act and Crown liability in determining whether the government can be added. Leave denied to add particular employees; leave granted to add the government.

Agropur MSI, LLC v. The Winning Combination Inc., 2020 MBQB 188: Motion for summary judgment for breaches of a settlement agreement. Conflict over description of relationship: plaintiff believed parties had a manufacturing and supply agreement, while defendant claimed there was never any written contract; instead they sent purchases orders to the plaintiff and the plaintiff sent order confirmations. Parties also entered into a third party logistics services agreement. Perlmutter, A.C.J. rules that this argument requires a full trial.

CropConnect v. Bank of Montreal et al., 2020 MBQB 186: Issue arising out of an attempted fraud directing payment to the respondent. Fraud was caught before money disappeared and is now held by court. Applicant seeks an order that the money belongs to them and asks for it to be returned. Respondent says that it is also an innocent victim of the fraud. Harris, J. finds that respondent must bear the loss as it was in a better position to prevent the fraud. Funds to be returned to the applicant, as well as costs.

Christopher Guly. Judges can’t ‘smuggle’ personal views into statutory interpretation: Federal Court of Appeal”. The Lawyers Daily, January 18, 2021. Case comment on Canada (Attorney General) v. Utah.

Chris Armstrong, Mike Preston. Black Spot or Big Chill: Consequences of J. Cote v. Burnaby. 2020 J. Can. C. Construction Law. 1 (WLNC – request a copy).

The case of J. Cote & Son Excavating Ltd. v. Burnaby (City) (2019 BCCA 168) raised a question: can government impose a bidding ban (a “Reprisal Policy”) against contractors who have sued that government?

Corporate & Commercial Law

Canadian Imperial Bank of Commerce v. Canada, 2021 FCA 10: Supply of a financial service is an exempt supply under the GST/HST. Appellant sought rebates of tax if paid on fees charged by Visa for the supply CIBC received as a participant in the Visa payment system. MNR denied rebate claims. Appeal to Tax Court was dismissed, concluding that the supply was an administrative, not a financial service. Analysis of statutory definition of “financial service”. Appeal allowed, referred back to MNR for reconsideration and reassessment.

Barkley v. Canada, 2021 FCA 5: Issue over whether legal expenses incurred by an individual to defend a claim re employment income are deductible under para. 8(1)(b) of the Income Tax Act. Appellants’ income derived from shares in family corporation. Analysis of the new provision added to the ITA adopted in 1990. Appeals dismissed.

6486976 Manitoba Ltd. v. 7344989 Manitoba Ltd., 2020 MBQB 192: Motion for summary judgment by defendant to dismiss claim by plaintiff. Parties had entered into an agreement as vendor and purchaser of commercial condominiums. Disagreement over whether property had been developed as outlined in the contract. Analysis of appropriateness of summary judgment to resolve the issue; Edmond, J. determines it is and finds in favour of the defendant.

Andrew Botterell. Case Comment: 1688782 Ontario Inc. v. Maple Leaf Foods Inc. Canadian Cases on the Law of Torts (Articles). (2021) 69 C.C.L.T. (4th) 137. (WLNC – request a copy.)

1688782 Ontario Inc. v. Maple Leaf Foods Inc. is an important and welcome decision that has the potential to substantially change the way in which negligence liability is understood in Canada. 

Criminal Law

R. v. T.J.M., 2021 SCC 6: Issue of which court has jurisdiction to grant judicial interim release to a young person. Provincial Court of Alberta is the designated youth court, but because the Crown gave notice of intention to pursue an adult sentence, accused was entitled to elect mode of trial. He chose a superior court sitting without a jury.  Discussion of exclusive versus concurrent jurisdicition. From the headnotes:           
 Section 33(8) of the YCJA confers exclusive jurisdiction upon “a youth justice court judge” to release a young person charged with an offence referred to in s. 522 of the Criminal Code, which incorporates s. 469 offences, from custody. It does not qualify the term “youth justice court judge” so as to include only those superior court justices deemed under ss. 13(2) and 13(3) to be youth justice court judges. Just as ss. 13(2) and 13(3) of the YCJA deem a superior court judge to be a youth justice court judge, s. 13(1) also designates as a youth justice court judge a judge sitting in the court established by the province as a youth justice court. Accordingly, the jurisdiction is concurrent, and not exclusive to either of them.

R. v. Waterman, 2021 SCC 5: Unreasonable verdict appeal of a jury trial. Issue over credibility of complainant. Events took place between 1977 and 1981. SCC allowed the appeal, set aside the acquittals and restored the convictions. 2020 NLCA 18.

Moldaver J. — The only issue on this unreasonable verdict appeal is whether the inconsistencies in the complainant’s testimony are so significant that a conviction registered on the basis of his evidence is unreasonable as a matter of law. Although some of the inconsistencies are troubling, a majority of the Court is satisfied that the jury acted reasonably in believing the complainant.

R. v. Murtaza, 2021 SCC 4: Appeal of conviction over selling cocaine to an undercover officer. Issue over whether officer relied on his own memory of the face of the appellant or if he was influenced by a review of a short video of the transaction. ABCA dismissed appeal; SCC dismissed substantially for the reasons of Rowbotham, J.A. (2020 ABCA 158):

[15]           I agree with my colleague Wakeling JA that the appeal should be dismissed for the reasons set out in his judgment, with the exception of his discussion at footnote 3. The issue of how a trial judge should address the accused’s change of appearance between the offence and trial was not argued in the court below. There is no ground of appeal that raises this issue. We did not receive submissions, either written or oral and we did not give counsel the opportunity to provide submissions.

[16]           In order to preserve the independence and impartiality of the appeal courts, the ability of appeal judges to raise new issues is limited in that it is permissible “only in rare circumstances” when “failing to do so would risk an injustice”: R v Mian2014 SCC 54 at paras 39 and 41.

[17]           This is not the rare circumstance contemplated by the Supreme Court and there is no risk of injustice. In my view, it is inappropriate for this court to opine on this issue.

R. v. Deslauriers, 2021 SCC 3: Crown appeal as of right on questions of law.

A majority of this Court would dismiss the appeal for the reasons given by Chamberland J.A.

 Judge Roy erred in law in denying Mr. Deslauriers the right to obtain and, if need be, file documents relating to the existence of three criminal investigations and a report from the Centre jeunesse des Laurentides involving the victim. There was a likely and reasonable possibility that the information in question could assist Mr. Deslauriers in exercising his right to make full answer and defence.

Abella and Brown JJ. would have allowed the appeal and restored the guilty verdict.

R. v. Yusuf, 2021 SCC 2: Oral decision on delay. Unanimous decision dismissing appeal.

In doing so, we have chosen to leave for another day various legal issues that arise from this Court’s decisions in R. v. Jordan2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody2017 SCC 31, [2017] 1 S.C.R. 659, including whether and in what circumstances multiple accused should be treated communally as opposed to individually when assessing defence delay under s. 11(b); whether discrete events as defined in Jordan attributable to a particular accused should be deducted only from the accused responsible for those events or be deducted communally from the co-accused as well; and whether a s. 11(b) application can be brought post‑conviction and if so, whether a remedy other than a stay of proceedings is available.

R. v. Sinclair, 2021 MBCA 6: Accused seeks leave to appeal her sentence on the basis that the sentencing judge failed to give sufficient weight to mitigating and Gladue factors, erred in assessing the accused’s moral culpability and imposed a sentence that was harsh and unfit. Standard of review is deferential. Leave to appeal granted, but appeal dismissed.

R. v. Olenick, 2021 MBCA 4: Appeal of custodial sentence which also imposed a lifetime weapons ban. Accused submits that the lifetime weapons prohibition is an illegal sentence. Crown agrees that maximum prohibition available is 10 years. Leave to appeal granted and 10 year weapons prohibition is substituted. Rest of the sentence remains the same.

R.v. S.C.C., 2021 MBCA 1: Appeal by Crown for sentence for offences of distribution of an intimate image without consent and failure to comply with a recognizance. Crown argues that judge erred in her approach to parity and proportionality and that the sentence is demonstrably unfit. Leave for appeal granted, sentence varied to be increased to two years less a day.  

R. v. Belyk, 2021 MBQB 12: Accused is charged with second degree murder. Issue over whether he had the intent to commit murder, or if he should be convicted of manslaughter. Accused had ingested a variety of intoxicants prior to the attack. Numerous witnesses testified, describing his behaviour, both expert and civilian. McKelvey, J. found him guilty of manslaughter.

R. v. D.A.B., 2021 MBQB 6: Application under s.276 of the Criminal Code for leave to cross-examine the complainant on her prior sexual history with him. Onus is on defence to show how the proposed evidence is relevant to the accused’s defence of honest but mistaken belief. Crown wishes to introduce evidence of the parties’ use of a “safe word”. Greenberg, J. determines that both sets of evidence are admissible.

R. v. Wood, 2021 MBQB 4: Sentencing decision for conviction of manslaughter in a case of domestic violence. Although accused was charged with murder, Martin, J. concluded the Crown did not prove beyond a reasonable doubt that he knew his actions would lead to the death of his wife. Martin, J. also comments on the tragedy of violence suffered by Aboriginal women. Aggravating factors are significant while mitigating factors are few. Accused is sentenced to 18 years’ incarceration, with credit for 4 ½ years for time spent in custody since his arrest.

R. v. A.A.J.T., 2021 MBQB 3: Sentencing decision for conviction of several sexual offences against a four year old child, including sexual interference and making and distributing child pornography. Detailed examination of the principles involved in sentencing where there were many aggravating and few mitigating factors. Counsel did not request a pre-sentence report and there were no Gladue considerations. Under principle of totality, Rempel, J. sentenced accused to 30 years, 6 months reduced to 22 years.

The Director of Criminal Property and Forfeiture v. Gurniak et al., 2020 MBQB 184: Three motions concerning violation of Charter rights: ss. 8 and 10 over seizure of property. Motion by Director for a ruling on the propriety of questions put to one defendant during his examination for discovery.

[4]There are four general areas of controversy arising from these motions. The first area of controversy involves the question as to whether the Director is exposed at all to a Charter challenge of the nature made here.  The second area of controversy involves a question concerning the procedure to be followed when an alleged Charter violation is raised in an action brought by the Director pursuant to The Criminal Property Forfeiture Act, C.C.S.M. c. C306 (hereinafter “the CPFA”). The third area of controversy examines whether any Charter breaches actually occurred.  The fourth area of controversy arises only if a Charter breach has been found to have occurred and involves a consideration as to the appropriate remedy, if any, to be granted.

Dewar, J. leaves the Charter breaches to be determined by the trial judge; motion by Director is allowed.

R. v. Alcorn, 2020 MBQB 183: Sentencing decision for conviction for obtaining sexual services from a person under the age of 18. Offence took place on June 30, 2015, when s.286.1(2) of the Criminal Code was amended in response to Canada (Attorney General) v. Bedford. Crown seeks a penitentiary term of five years; defence seeks a term of one year imprisonment followed by two years’ probation. Suche, J. orders a sentence of 15 months imprisonment with no probation.

R. v. Truthwaite, 2020 MBQB 180: Appeal of conviction for having care and control of a motor vehicle while impaired. Appellant claims verdict was unreasonable. Offence of care and control of a motor vehicle is based on former s. 258 of the Criminal Code which was in effect at the time of the offence. Onus is on appellant to rebut the presumption of care and control. Bond, J. determined that the verdict was reasonable and dismissed the appeal.

R. v. L.S., 2020 MBPC 63: Allegations of sexual misconduct of an historical nature. Complainants are sisters of the accused and events span 1991 to 1996. Accused has an alibi for some of the time frame of the charges. Case must be assessed pursuant to R. v. W. (D.). Crown relied on testimony of both complainants; defence called accused. Evidence also included documentary evidence relating to domestic proceedings between the accused and his former partner, and the divorce of the parents. Court finds that reasonable doubt is raised, and accused is acquitted.

Joel Hechter. The Presumption of Privacy: A Modest Proposal to Legislatively Regulate Police Access to Privately Generated Surveillance Video. (2020) 25 Can. Crim. L. Rev. 83 (WLNC – request a copy).

As I will explain in this article, our courts have paved the way for Parliament to enact limits on state access to privately generated surveillance video: giving police the powers they need to preserve and obtain important evidence, while protecting all Canadians’ privacy. I discuss the problem, and propose the outline of a legislative solution.

Janelle Marchand, Louise Bond-Fraser and Ian Fraser. The Knowledge and Beliefs of Jurors and Non-Jurors Concerning the Fallibility of Memory: Is this Information Common Knowledge? 2020 68 C.L.Q. 93 (WLNC – request a copy).

Since the advent of DNA evidence in the courtroom and the resultant exonerations, which revealed that more than 70% of the erroneous convictions were due in whole or in part to faulty eyewitness testimony, the problem with eyewitness memory has become a topic for debate. The question is whether or not reminders of the fallibility of eyewitness testimony are necessary in the courtroom and, if so, who should provide them? 

Family Law

Pandey v. Pandey, 2021 MBCA 3: Respondent appeals a property order; petitioner appeals a support order. Both parties seek to enter fresh evidence. Parties had appeared to settle their property dispute by consent, but the order was not filed within 30 days. Respondent raised concern that the calculations were wrong. Parties made a new appointment to settle. Respondent did not approve of the order, although judge signed it as both parties had consented. On issues of child and spousal support, petitioner was represented by counsel. Court of Appeal sees no reason to interfere. Property order is set aside, appeal on support order dismissed; neither party allowed to enter further evidence.

Ross v. Berens, 2021 MBQB 10: Reasons to an emergency motion filed by the petitioner for variation or setting aside of a protection order, order of joint custody, and an order returning the child to the petitioner. Parties were involved in a physical altercation, investigated by WPS and resulting in two charges of assault laid against the petitioner. Respondent appearead before a JJP asking for a protection order, but did not give full and frank disclosure. Motion granted.

Draho v. Cardno, 2020 MBQB 190: Request by respondent for setting aside noting of default and default judgment pursuant to Rule 19. Parties and their counsel had been communicating throughout December. Court has a broad discretion to set aside noting of default on such terms as are just. Test is summarized as 1. Was there a bona fide intention to defend; 2. Was there any undue delay that would cause irreparable harm to the petitioner; and 3. Is there evidence of a meritorious defence? Thomson, J. finds for the respondent.

Michif CFS v. K.L.B. and A.P., 2020 MBQB 182: Application by Agency for a six-month temporary guardianship order, by summary judgment. Mother opposes application and wants children returned to her care. Discussion of whether summary judgment is appropriate; Abel, J. determines it is. Agency bears evidential burden of establishing that there is no genuine issue requiring a trial. Issue of whether temporary order should be four or six months. Agency originally applied for a four month order, then changed it to six. Court ordered a four month temporary order.

Marzoff v. Marzoff, 2020 MBQB 178: Master’s decision on undertakings from discoveries in a family proceeding. Motion by wife to compel husband to respond to all undertakings and file a new financial statement. Husband’s response was delayed, and incomplete for some. Review of the undertakings in dispute and analysis. Wife’s motion is granted, with costs to be determined later.

Sarah Pringle. The “Threat” of Marriage Fraud: A Story of Precarity, Exclusion, and Belonging. Allan Falconer Memorial Student Essay. (2020) 33 Can. J. Fam. L. 1 (WLNC – request a copy).

Rachel Birnbaum. Virtual Parent-Child Contact Post-Separation: Hearing from Multiple Perspectives on the Risks and Rewards. (2020) 39 C.F.L.Q. 75.

There is an increasing focus on the use of virtual technology to promote and facilitate parent-child contact post-separation. For example, texting, instant messaging, videoconferencing, webcams and other related internet tools are used to promote and facilitate contact post-separation. Yet, little is understood and written about whether and how using virtual technology impacts parent-child relationships post-separation, specifically from the perspectives of children and youth, parents, mental health professionals, and lawyers.

Labour & Employment

6586856 Canada Inc. (Loomis Express) v. Fick, 2021 FCA 2: Appeal from decision of FCC allowing respondent’s application for judicial review over a complaint of unjust dismissal. Adjudicator dismissed the complaint after finding that the respondent was engaged as an independent contractor and not an employee. Standard of review is reasonableness. Discussion of whether the adjudicator considered certain evidence and whether the process was fair. FCA agrees with adjudicator and allows appeal.

Wills, Trusts & Estates

The Estate of Treasure Alna Ellison, 2021 MBQB 11: Master’s report flowing from a reference order of Justice Grammond. Some issues of valuation of liability due to removing respondent as executrix of the estate. Respondent had failed to cooperate with disclosure and master is not certain that all funds have been accounted for. Also issues with fees paid to lawyer from the estate.

Estates, Trusts & Pensions Journal, Vol. 40, No. 1. For a copy of any of these articles, please send a request to



43rd Parliament, 2nd Session

C-220 An Act to amend the Canada Labour Code (compassionate care leave)
Progress: Introduction and First Reading in the House of CommonsShow Details

C-265 An Act to amend the Employment Insurance Act (illness, injury or quarantine) Short Title Émilie Sansfaçon Act
Progress: Introduction and First Reading in the House of CommonsShow Details

C-264 An Act to amend the Income Tax Act (volunteer firefighting and search and rescue volunteer services)
Progress: Introduction and First Reading in the House of CommonsShow Details

C-20 An Act to amend the Nova Scotia and Newfoundland and Labrador Additional Fiscal Equalization Offset Payments Act
Progress: Introduction and First Reading in the House of CommonsShow Details

C-215 An Act respecting Canada’s fulfillment of its greenhouse gas emissions reduction obligations Short TitleClimate Change Accountability Act
Progress: Introduction and First Reading in the House of CommonsShow Details


42nd Legislature, 3rd Session

House adjourned December 3, 2020 until the call of the Speaker.
No new activity.

The Value of Detailed Notes

Lawyers are taught to take detailed notes. Every conversation with a client, whether in person or by telephone, or written in a document or email, is recorded in order to back up actions taken and matters billed. It’s what you turn to when your client says “I didn’t tell you to do that” and you face a complaint.

Recent estates litigation in Ontario turned on the exemplary note taking of Solicitor Barry Smith. As noted by Gans, J.:

[32]      I digress to make one observation. Smith, who had been Helen’s, if not Eugene’s, solicitor for at least 7 years by the Spring of 2011, would best be described as an ‘old-school’ solicitor. He was not only a generalist, who made ‘house calls’, but was a man who was involved or involved himself with every aspect of a client’s affairs. He made copious notes to file, which I found to be unassailable in terms of providing me with the details of the events as they unfolded during the Spring and into the Summer of 2011.

This case involved all the usual suspects: a large estate, a testator recently diagnosed with Alzheimer’s, a power of attorney clash, and undisclosed codicils. But it was the note-taking by Mr. Smith that persuaded the judge that Mrs. Kates was competent.

When reading Kates Estate, 2020 ONSC 7046, don’t ignore the footnotes. There are some very interesting comments there as well.

The Importance of Keeping Good Notes”, Richard Worsfold and Reshma Kishnani, The Lawyers Daily, January 29, 2021.

eLex January 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsCivil LitigationFederal
Court Notices &
Practice Directions
Constitutional LawProvincial
Discipline DigestsCorporate & Commercial
New Library ResourcesCriminal Law 
Family Law 
 Labour & Employment 


In the News

2020 SCC Year in Review as published by Supreme Advocacy.

CanLII Connects’ Year in Review

The Great Library is closed while Winnipeg is under Code Red restrictions. Please email us at for all your legal research needs.

Court Notices & Practice Directions

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

Court of Queen’s Bench

Notice – Adjustments to Current Scheduling Protocols – January 12 – 29, 2021 (Family Division) (December 21, 2020)
Practice Direction – Adjustments to Current Scheduling Protocols – January 11 to 29, 2021, Video Conference Civil Trials and the Continuation of other Remote Services (December 18, 2020)

Provincial Court

Notice – Rescheduling of Adult and Youth out of Custody Matters Due to COVID-19 (January 6, 2020)
Notice – Further Suspension and Restriction of Hearings Return to Sitting for Some Trials and Special Sittings in Certain Circuits (December 30,2020)
Notice – Suspension of Court Sittings due to COVID-19 (December 30, 2020)
Notice – Rescheduling of Winnipeg Adult and Youth Out of Custody Matters due to COVID-19 (Winnipeg Centre) (December 30,2020)
Notice – Suspension of Court Sittings due to COVID-19 (December 17, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-19 (December 11, 2020) 
Notice – Rescheduling of Adult and Youth Out of Custody Matters due to COVID-19 (Regional Centres) (December 11, 2020) 
Notice – Rescheduling of Adult and Youth Out of Custody Matters due to COVID-19 (Winnipeg Centre) (December 11, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-19 (December 11, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-10 (December 4, 2020)
Notice – Rescheduling of Adult and Youth out of Custody Matters due to COVID-19 (Regional Centres) (December 4, 2020)
Notice – Rescheduling of Adult and Youth out of Custody Matters due to COVID-19 (Winnipeg Centre)  (December 2, 2020)

Discipline Digests

Discipline decision – Wang, Junling

New Library Resources

New Online Titles

From Deslibris

National Security Law – 2nd ed. by Craig Forcese and Leah Westis

This text is about the law governing the Canadian state’s response to serious crises, that is, events that jeopardize its national security. The book approaches national security law as a system, organizing its discussion of law around five themes: structure, threats, information, response, and accountability –Publisher’s description.

Substantive Law

Civil Litigation

C.M. Callow Inc. v. Zollinger, 2020 SCC 45: Issue of whether exercise of termination clause constituted a breach of duty of honest performance. Group of condominium corporations (Baycrest) entered into a two year winter maintenance contract and a separate summer maintenance contract with the appellant, C.M. Callow. Baycrest did not renew winter contract when it was up for renewal, misleading Callow during the period of the summer contract. Appeal allowed and decision of trial judge reinstated.

The duty of honest performance in contract, formulated in Bhasin v. Hrynew2014 SCC 71, [2014] 3 S.C.R. 494, applies to all contracts and requires that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. In determining whether dishonesty is connected to a given contract, the relevant question is whether a right under that contract was exercised, or an obligation under that contract was performed, dishonestly. While the duty of honest performance is not to be equated with a positive obligation of disclosure, in circumstances where a contracting party lies to or knowingly misleads another, a lack of a positive obligation of disclosure does not preclude an obligation to correct a false impression created through that party’s own actions. (from the headnotes)

Interlake Reserves Tribal Council Inc, et al v. The Government of Manitoba, 2020 MBCA 126: Appeal by defendant of an order granting interlocutory injunctive relief from carrying out further work on an all-season road. Manitoba Metis Federation (MMF) and the Assembly of First Nations (AFN) move to intervene. Project is the construction of two permanent outlet channels to direct flood waters in the Interlake region. Leave to intervene is governed by Rule 46.1. AFN argument includes reference to UNDRIP. Motion by both parties to intervene in the appeal are dismissed.

The Workers Compensation Board v. Ali, 2020 MBCA 122: Appeal of decision denying motion by the defendant to dismiss the claim for delay. Statement of claim for negligence on the part of the defendant was filed in April 2007. Statement of defence was filed in March 2009. Analysis of the interpretation of former Rule 24.01. Appeal allowed.

Bayview Construction Ltd. v. 6681485 Manitoba Ltd., 2020 MBQB 173: Expedited action under Rule 20(A). Parties are involved in construction of a 55 unit condominium project. Plaintiff commenced action to collect remaining balance on contract; defendant counterclaims alleging breach of contract. Abra, J. notes this is “the antithesis of an expedited action” (para. 8). Judgment granted to plaintiff Bayview with interest.

Martens v. The Manitoba Public Insurance Corporation, 2020 MBQB 158: Motor vehicle accident from 1998. Liability was resolved in 2012. Current issue is whether MPI acted in bad faith. Analysis of bad faith as a stand alone claim and whether it rises to an actionable wrong. Court agrees with plaintiff that claims process rises to level of egregiousness and punitive damages are warranted.

Constitutional Law

Springs of Living Water Centre Inc. v. The Government of Manitoba, 2020 MBQB 185: Emergency Charter challenge to authority of order under the Public Health Act to restrict attendance at religious ceremonies. Onus that applicant must meet to obtain a stay of legislation is extremely high. Analysis of statutory interpretation of a Public Health Order. Application denied.

Corporate & Commercial Law

Resolute FP Canada Inc. v. Hydro-Québec, 2020 SCC 43: Issue of assignment of contracts. Original contract entered into in 1926 between previous entities. Over time, the contract was assigned to Hydro-Québec through the nationalization of electricity in Québec. Respondent relied on a clause from the original 1926 contract to increase the price of electricity purchased from it by the appellant. SCC is asked to reconsider the conditions for and effects of assignment of contract. From the headnotes:

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Martin and Kasirer JJ.: The 1965 contract effected an assignment of the 1926 contract. As a result, Hydro‑Québec is a party to the 1926 contract and can therefore invoke art. 20 of that contract with respect to Resolute. Because the two levies at issue are a “tax or charge” on electricity generated from water power within the meaning of that same art. 20, the 1926 contract applies to them and they are therefore payable by Resolute to Hydro‑Québec under that agreement.

Per Côté and Rowe JJ. (dissenting): The appeal should be allowed and the Superior Court’s decision restored. The trial judge did not make a reviewable error in finding that Gatineau Power had not assigned the 1926 contract to Hydro‑Québec and that the 1965 contract had instead made Hydro‑Québec a mandatary of Gatineau Power. 

Canada v. BCS Group Business Services Inc., 2020 FCA 205: Appeal from decision of Tax Court granting respondent corporation leave to be represented by its sole shareholder and director, and not a lawyer. Analysis of TCC General Procedure Rule 17.1 (right to appear). Standard of review of a question of law is correctness. Discussion of corporation as a legal person and whether it can appear “in person”. Appeal allowed.

Dennis v. The Attorney General of Canada et al, 2020 MBCA 118: Potential class action by a proposed class of farmers who sold grain to the Canadian Wheat Board. Appeal of a judgment of a motion judge striking out its claim without leave to amend, on the basis that it doesn’t disclose a reasonable cause of action. Appeal allowed.

Ackron Egg Farms Ltd. v. Manitoba Egg Farmers et al., 2020 MBQB 187: Dispute over regulatory decisions in a supply management system. Explanation of the key concepts underlying supply management and the ownership of quotas. Crisis developed during the pandemic, when there was a surge of demand for eggs in their shell versus eggs for processing. Application for judicial review of decisions of Manitoba Egg Farmers (MEF). Application dismissed.

Criminal Law

R. v. Cortes Rivera, 2020 SCC 44: Appeal from 2020 ABCA 76, conviction for sexual assault. Issues included whether the trial erred in declining to hold a s.276.1 hearing, and admitting certain evidence.

The Court — We would dismiss the appeal. The parties did not dispute that the trial judge erred in dismissing the accused’s application under s. 276.1 of the Criminal Code, R.S.C. 1985, c. C-46, to cross‑examine the complainant. In our view, this error did not lead to a miscarriage of justice and falls within the curative proviso under s. 686(1)(b) because the evidence was otherwise overwhelming and a conviction was inevitable.

R. v. W.M., 2020 SCC 42: Appeal from 2020 ONCA 236, conviction for sexual interference and sexual assault of accused’s daughter over materiality of the trial judge’s misapprehension of the evidence. CA ordered a new trial; B.W. Miller, J.A. in dissent would dismiss the appeal.

The Chief Justice — We are all of the view that the appeal must be allowed for the reasons of Justice Miller.

R. v. Mehari, 2020 SCC 40: Appeal from 2020 SKCA 37, conviction of sexual assault related to admissibility and assessment of the evidence. CA overturned trial decision and ordered a new trial. Appeal allowed.

The Court — This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law. In any event, we see no error in respect of this argument that would have warranted intervention on appeal.

R. v. Delmas, 2020 SCC 39: Appeal from 2020 ABCA 152, that essentially the verdict was unreasonable in a sexual assault conviction. Appeal dismissed (oral decision).

Moldaver J. — A majority of the Court would dismiss the appeal. The trial judge did not engage in stereotypical reasoning in his assessment of the appellant’s evidence. (Justice Côté dissenting).

R. v. Roulette, 2020 MBCA 125: Appeal of conviction by a jury for three counts of aggravated assault. Basis of conviction was that accused was a party to the offence through a common intention to commit an assault. Review of jury instructions on a standard of adequacy not perfection. Appeal dismissed.

R. v. Buckels, 2020 MBCA 124: Appeal of both conviction and sentence for possession of cocaine and methamphetamine for the purposes of trafficking, as well as other offences. Conviction appeal dismissed. Sentence was not demonstrably unfit taking into account migitating factors, so leave to appeal denied.

R. v. VanEindhoven, 2020 MBCA 123: Leave to appeal sentence for assault on domestic partner, based on ineffective assistance from counsel and errors by the sentencing judge. Accused also asks to admit fresh evidence. Appeal dismissed.

R. v. Overby, 2020 MBCA 121: Accused appeals conviction by a jury for second degree murder. Appeal is based on very narrow grounds. Accused argued that the circumstances warranted a finding of manslaughter. Appeal dismissed.

R. v. Richards, 2020 MBCA 120: Sentence appeal. Accused is a permanent resident of Canada but not a citizen, and received a six month custodial sentence after pleading guilt to one count of break and enter. At sentencing hearing, judge was not made aware that this sentence would make him subject to a removal order, whereas a sentence of six months less a day would allow him to appeal the removal order. Appeal allowed.

R. v. Abbasi, 2020 MBCA 119: Appeal by accused for convictions of a number of sexual offences and seeks leave to appeal his sentence. Analysis of actual and innocent collusion in witness testimony and its admissibility. Appeal dismissed.

R. v. Simon, 2020 MBCA 117: Appeal of conviction for sexual assault and sentence (sentence appeal abandoned). Grounds for appeal: trial judge unevenly scrutinized the evidence; trial judge misapprehended the evidence; trial judge considered prohibited evidence when assessing credibility. Key issue at trial was consent and case turned on credibility. Appeal dismissed.

R. v. Ducharme, 2020 MBQB 177: Accused is charged with first degree murder in the killing of another inmate at Stony Mountain Institute. Crown’s position is that the accused aided in the planning and carrying out of the murder, and disposing of the murder weapon. Evidence is circumstantial. Crown’s evidence is a silent video of the activities of the accused and others on the range for eight hours leading up to and after the murder. Defence interprets evidence differently. McCarthy, J. does not find the Crown has proved its case beyond a reasonable doubt and the accused is acquitted.

R. v. Cure, 2020 MBQB 175: Appeal of summary conviction for driving while impaired. Appellant argues trial judge erred in finding that arresting officer had reasonable grounds to make a breath demand; in finding that officer did not breach appellant’s Charter right under s. 10(b) to speak to counsel of choice; and in finding he was in care or control of the vehicle. Significant analysis of s.10(b); appeal dismissed.

R. v. Airmaster Sales Ltd., 2020 MBQB 174: Appeal of convictions re two provincial offence notices for speeding (photoradar). Accused’s personal representative had been denied authorization to act on his behalf; accused then did not turn up for rescheduled hearing; JJP entered default convictions. Accused argues that JJP erred when she did not allow his representative to act; Crown argues that issue is accused was convicted because he did not appear. Analysis of interpretation of “representative” (s. 53 of the Provincial Offences Act). Appeal dismissed.

The Canadian Broadcasting Corporation v. Morrison, 2020 MBQB 169: Application for an order of certiorari to quash a publication ban issued by Provincial Court in 2019. Matter is a private prosecution re charges of defamatory libel. Applicant is acting as a third party news organization and not a party to the prosecution. Argument is over the open courts principle. Issues are whether the applicant has the status to bring the application and if so, is certiorari available in these particular circumstances. Analysis of applicant’s standing. Application denied.

R. v. Farley, 2020 MBQB 167: Appeal of conviction in Provincial Court for impaired driving. Accused claims a Charter breach of infringement of his right to counsel and that arresting officer should have inquired if he had drunk alcohol recently. Appeal dismissed.

R. v. F. (J.M.), 2020 MBQB 161: Application by Crown for an order that the accused be sentenced as an adult. He was convicted of first degree murder. At the time of the murder he was almost 17 years old. He is now 20. Principles to be applied are s. 72(1) of the YCJA and relevant case law (noted in para. 6). Onus rests with the Crown. Order granted.

Michelle Biddulph. “The Privacy Paradox: Marakah, Mills, and the Diminished Protections of Section 8.” (2020) 43:5 Man L J 161.

This article challenges the understanding of Marakah as a progressive decision, suggesting that Marakah has created a privacy paradox. By significantly expanding the scope of section 8 of the Charter, the Court in Marakah has created a right that is both extremely broad and practically illusory.

Sonia Lawrence, Debra Parkes. “R. v. Turtle: Substantive Equality Touches Down in Treaty 5 Territory”. (2020) 66 C.R. (7th) 430. (WLNC – request a copy).

…However, in R. v. Turtle, a provincial court sentencing proceeding for impaired driving that involved a constitutional challenge brought by six Indigenous women (Sherry Turtle, Audrey Turtle, Loretta Turtle, Cherilee Turtle, Rocelyn Moose and Tracey Strang), Canadian substantive equality touched down in Treaty 5 Territory. The women had all been convicted of a second impaired driving offence, and were facing mandatory minimum sentences of not more than 90 days. They were also eligible under the terms of s. 732 of the Criminal Code to serve these sentences intermittently.

Family Law

Hart v. Pownall, 2020 MBQB 168: Motion by respondent for suspension of final order, or variation of child and spousal support pending trial. Petitioner filed a motion in opposition. Parties had signed a final order in 2016 dealing with all property and support obligations. As a result of the complexity of the issues, trial is set for May 2021. Respondent’s motion is dismissed.

M.K. v. Child and Family All Nations Coordinated Response Network, 2020 MBQB 156: Application in opposition to Notice of Intended Entry on the Child Abuse Registry. Applicant was found by WPS in vehicle with a 14 year old girl who acknowledged she was a sex trade worker. Discussion of hearsay rule as outlined in D.L. v. Child and Family All Nations Coordinated Response Network, 2014 MBCA 86. Significant analysis of credibility of testimony of applicant and its inconsistency in his statements to various investigators as well as at trial. Application dismissed.

Claire Houston. “Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts”. (2020) 33:1 Can J Fam L 103.

Family court judges are increasingly being asked to resolve parenting disputes involving conflict over a child’s gender expression or identity. These disputes ask whether it is in the best interests of children to support their gender nonconformity, including any decision to transition to a gender different from the one they were assigned at birth. Despite more of these cases coming before family courts, judges have little guidance on how to resolve these cases in the best interests of children.

Labour & Employment

Pokornik v. SkipTheDishes Restaurant Services Inc., 2020 MBQB 181: Class action over whether the plaintiff’s relationship with the defendant is one of employment or independent contractor. Defendant states that arbitration clause in the plaintiff’s contract mandates that disputes be resolved by arbitration. Chartier, J. agrees that defendant may bring its application to stay the claim under The Arbitration Act before any further steps are taken.



43rd Parliament, 2nd Session
C-7 An Act to amend the Criminal Code (medical assistance in dying)
Progress: Second Reading in the Senate Show Details

S-2 An Act to amend the Chemical Weapons Convention Implementation Act
Progress: Third Reading in the Senate Show Details

C-6 An Act to amend the Criminal Code (conversion therapy)
Progress: Committee Reporting the Bill with Amendments in the House of Commons Show Details

C-262 An Act to amend the Income Tax Act (capture and utilization or storage of greenhouse gases)
Progress: Introduction and First Reading in the House of Commons Show Details

C-10 An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
Progress: Introduction and First Reading in the House of Commons Show Details

C-17 An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title: Appropriation Act No. 5, 2020-21 Statute of Canada: 2020, c. 14
Progress: Royal AssentShow Details


42nd Legislature, 3rd Session

House adjourned December 3, 2020 until the call of the Speaker. No new activity.

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