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.
Ontario court decisions on CanLII now display artificial intelligence generated classification. The AI feature uses machine learning technology to automatically generate practice area labels. The labels appear in grey at the bottom of a search result, underneath the italicized subject keywords. Read the full post here
Legal research tool Rangefindr has recently released a free sentencing guide for transgender offenders. The guide summarizes material on the sentencing of transgender and gender nonconforming offenders. Members of the Law Society of Manitoba have access to Rangefindr’s criminal sentencing resources through the Member’s Portal. Read the full post here
I Love to Read Month
February is I Love to Read Month! We are recommending the following titles all about legal history in Manitoba.
Judicious Restraint: The Life and Law of Justice Marshall E. Rothstein, Lisa M. Kelly and Ivo Entchev
A biography of Manitoba-born, former Justice of the Supreme Court of Canada, Justice Marshall E. Rothstein.
Paths to the Bench: The Judicial Appointment Process in Manitoba, 1870-1950, Dale Brawn
Uncovers the political nature of the judicial appointment processes and the history of the legal profession in Manitoba from 1870-1950.
A Partnership of Equals: the struggle for reform of family law in manitoba, berenice b. sisler
Traces the struggle to reform Manitoba’s family law during the years 1975-78, to achieve equality for married women.
The queen v. louis riel, introduction by desmond morton
Following Morton’s introduction, this work includes text from the Reports of Cases 1885 and the Law Reports 1885 with text of the trial.
Contact the Great Library to arrange pickup of any of our titles for loan.
Book Reviews
Review taken from the Canadian Law Library Review, Vol. 46 Issue 3
“Jacqueline L King, a partner at Shibley Righton LLP, is the author of 25 Rules for Success… and 10 Tips to Help youEnjoy the Practice of Law. She is a respected litigation lawyer, a sought-after continuing legal education speaker, an astute collaborator in any committees she sits on, and oh yeah, a mother who also gets involved in her children’s lives. In this book, the author explains how she stays on top of commitments while giving her best in all that she sets her mind to.
As the Honourable Ian Binnie writes in the Foreword, this book applies to both early and mid-career legal practitioners who seek to improve their practice of law by way of alleviating stress and anxiety.” – reviewed by Vicki J Leung
The series continues the forum’s core focus on how the intersection of business and law is evolving.
The webinars are accredited for professionalism credits from the LSO and CPD credits from the LSBC. They are free to view and simply require registration to attend.
Webinar Topics, Dates + Registration Links:
***note all Webinars run from 12pm-1pm Eastern Time***
Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19: Appeal of decision by Pest management Regulatory Agency (PMRA) re continued registration of glyphosate products for use in Canada. Safe Food Matters applied to Federal Court for judicial review (dismissed). FCA allowed appeal and remitted decision back to PMRA for reconsideration. Judicial review is in accordance with Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. Question is whether the decision is reasonable.
Dhalla v. College of Physicians and Surgeons of Manitoba,2022 MBCA 7: Appeal of penalty imposed after finding of professional misconduct, and costs decision. Appellant was reprimanded and his licence to practice medicine was suspended for two months. He was ordered to pay costs of $85,000 as a contribution to the costs of the investigation and hearing. Analysis of the civil standards of review and penalty standards of review. Appeal dismissed.
Mohammadi v. Compensation Appeal Board, 2022 MBQB 20: Application for reconsideration of decision advising applicant she was not eligible for wage loss benefits under the Compensation Appeal Board. Applicant had been receiving a non-earner income replacement indemnity due to a car accident prior to being a victim of crime. Grounds of appeal are on a question of law or jurisdiction. Kroft, J. finds it is a question of law and thus the standard of review is correctness. Central question is whether applicant was employed or self-employed at the time of the incident. Appeal dismissed.
WRE Development Ltd. v. Lafarge Canada Inc.,2022 MBCA 11: Plaintiff’s appeal of dismissal for long delay under Queen’s Bench Rule 24.02(1). Motion judge concluded that there was no significant advance in the action for a period in excess of three years. Action involves the construction of an apartment building built between 2010 and 2012. Plaintiff sought damages re product supplied and installed by the defendant. Explanation of the difference between the old and new rule 24. Analysis of the test for whether an action has been significantly advanced. Appeal dismissed.
Frenchie’s Farm and Ranch Ltd v. Peace Hills Insurance Company,2022 MBCA 10: Plaintiff appeals dismissal of claim for payment under an insurance policy relating to a fire loss. Plaintiff argues error by the trial judge. Court of Appeal determined that the trial judge correctly noted that a false statement will violate statutory condition 7. Appeal dismissed.
Chartier v. Bibeau,2022 MBCA 5: Appeal of civil jury award of damages in the amount of $500,000 for a defamation suit. Award reduced to $50,000 for general and aggravated damages.
Bibeau et al v. Chartier et al,2022 MBCA 2: Appeal from dispute regarding the terms of an oral contract. Parties disagree about the extent of the interest purchased by the plaintiff. Statement of claim included allegations of breach of contract and breach of fiduciary duty. Standard of review is discretionary, reviewed on a deferential standard. Plaintiffs’ appeals are dismissed; defendants’ cross appeals are allowed in part.
85 Academy Road Development Corporation et al. v. Rona Inc. et al.,2022 MBQB 15: Request for reconsideration of decision to refuse to direct payment to Rona of trust funds. Basis for reconsideration request is Toromont CAT v. Erickson Construction (1975) Ltd. et al,2021 MBQB 75, not referenced previously by either party in the original submissions. Reasons of November 16, 2021 are revised.
Andrews v. Grammond,2022 MBQB 11: Claim for professional negligence for advice given before lawyer became a sitting judge, brought under the Small Claims Act. Issue is whether it is an excluded proceeding, as defined under s. 3(4). Joyal, C.J.Q.B. finds that it is and claimant will have to find another forum for relief. Significant analysis and discussion of this section.
Ostrowski v. Weinstein et al, 2022 MBQB 3 : Motion for summary judgment to dismiss plaintiff’s wrongful conviction claim due to it not being filed within the limitation period. Action had to have been initiated within two years. Contentious issue is when the two year limitation period started to run. Extensive analysis of when the limitation period started. Greenberg, J. determined that the limitation period expired in May 2006. Claim dismissed.
R.S. Distribution Services Ltd. v. MTS Inc. et al.,2022 MBQB 2: Action for breach of contract. Issue over whether there was an agreement to deliver services with a minimum amount over the term. Defendant felt that the minimum guaranteed amount of the previous contract had been too high. Plaintiff used an internal memo that had been attached to the hard copy of the contract constituted the new agreed minimum amount. Toews, J. concluded that the memo was not part of the contract and dismissed the action.
Wilson et al v. Kornelsen,2022 MBQB 1: Issue of prescriptive rights over a certain property in the Town of Stonewall. Test for a party asserting a dominant tenement and easement is set out in Limack et al v. Kroeker et al, 2020 MBCA 98 at para 16. As well, the period of usage must be over 20 years. Most of the evidence is in the form of hearsay. Toews, J. sets out a detailed order of which rights belong to which property.
Knight v. Daraden Investments Ltd. et al.,2021 MBQB 279: Appeal from master’s decision dismissing plaintiff’s action under Rule 24.02(1), long delay. Action over defendants’ failure to take reasonable care resulting in physical injury to the plaintiff through a slip and fall. Parties disagree over whether there was an agreement to delay proceedings. Bock, J. agrees that there has been an inordinate delay within the meaning of Rules 24.01(2) and (3) but blame is shared by both parties and thus excusable.
Tataskweyak Cree Nation et al. v. Canada (A.G.);, Curve Lake First Nation et al. v. Canada (A.G.),2021 MBQB 276: Order and reasons for approval of class counsel’s legal fees. Fees for prosecuting the actions have been negotiated separately from the settlement agreement. The Class is not responsible for paying legal fees. Analysis of whether the fees suggested ($53 million plus $5 million for future work) are fair and reasonable and in the best interests of the class. Fees approved.
Tataskweyak Cree Nation et al. v. Canada (A.G.);, Curve Lake First Nation et al. v. Canada (A.G.),2021 MBQB 275: Motion to approve the First Nations Drinking Water Settlement Agreement. Both Federal Court and the Manitoba Court of Queen’s Bench have jurisdiction. Sets out the key provisions of the settlement agreement: retrospective and prospective compensation; class and class period; and implementing the “Long-Term Drinking Water Advisory Action Plan”. Class counsel fees will be subject to a different order and reasons.
Bryan Schwartz, Monica Adeler, Mike Myschyshyn and Robert Walichnowski. Asper Review of International Business and Trade Law, Vol. 21 Special Edition:Cybersecurity and Law Firms. 2021 CanLIIDocs 988 Guide to cybersecurity for lawyers from a Canadian perspective.
Criminal Law
R. v. Ali,2022 SCC 1: Issue of legality of a strip search of the accused resulting in the seizure of cocaine. Moldaver, Brown, Rowe and Jamal JJ; Concurrence: Côté J. Appeal dismissed.
[2] A majority of this Court agrees with the conclusion of the majority of the Court of Appeal and would dismiss the appeal. Where a strip search is conducted as an incident to a person’s lawful arrest, there must be reasonable and probable grounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest (see Golden, at para. 99). These grounds are met for the strip search where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest (see Golden, at paras. 94 and 111).
R. v. Bourassa,2022 MBCA 9: Request for leave to appeal a seven year sentence for four weapons-related offences. Argues that judge did not adequately apply the principle of totality. Standard of review is highly deferential. Leave to appeal granted but appeal dismissed.
R. v. Morrissette,2022 MBCA 8: Appeal of convictions for several offences involving firearms. Appellant also seeks leave to appeal the custodial portion of his sentence. He argues there was no direct evidence of possession and that the circumstantial evidence was insufficient to convict him. Conviction appeal dismissed and application for leave to appeal the sentence denied.
R. v. Derksen,2022 MBCA 6: Appeal of sentence of nine and a half years’ incarceration for three firearms charges. Leave to appeal was denied, however parties asked that appeal be granted to clarify one aspect of the individual sentences related to the totality principle. Clarification added; appeal dismissed.
R. v. Bear,2022 MBCA 4: Appeal of Crown’s application for designation of the accused as a dangerous offender. Accused’s principal submission is that the sentencing judge erred at the designation stage. Leave to appeal granted; appeal dismissed.
R. v. McKenzie,2022 MBCA 3: Appeal of case re common law police powers; whether the law relating to ss. 8, 9 and 24(2) of the Charter were applied correctly. Analysis of the common law power of investigative detentions. Appeal dismissed.
R. v. Hurdon,2022 MBPC 7: Trial for possession of fentanyl for the purpose of trafficking, simple possession of methamphetamine, and possession of property under $5,000 from the sale of drugs. Expert opinion evidence on what quantity of drugs is likely to be for personal use versus trafficking. Accused testified but was not a credible witness. Accused convicted.
R. v. Maytwayashing,2022 MBPC 6: Sentencing decision after accused was found guilty after trial of robbing a taxi driver, driving while impaired and refusing to provide a breath sample. Gladue factors considered. Discussion of the fundamental principles of sentencing. Relevant sentencing objectives in this case are denunciation, general deterrence and rehabilitation. Sentence for robbery is 18 months of custody; concurrent sentence of seven days for the other offences.
R. v. Watson-Langley,2022 MBPC 5: Decision on voir dire re s.9 violation. Accused seeks exclusion of all evidence obtained by police, in particular the seizure of a set of car keys which included key fobs for two apartment blocks. Harvie, P.J. admits the evidence.
R. v. Millan,2022 MBPC 1: Sentencing decision for the offences of making and possessing child pornography, and breaching a condition of his release order. Overall issue is to assess the seriousness of the offences committed and the accused`s degree of moral culpability. Accused has prior convictions for sexual offences. Sentencing objectives in this case include denunciation and deterrence, as well as the objective of separating the offender from society. Total sentence of three and a half years, less time served in remand custody credited at 1.5 days, followed by three years of supervised probation.
R. v. Lohr-Mansbridge,2021 MBPC 62: Accused charged with hunting at night without a permit, and hunting on private land without permission of the owner. Conservation officers were on duty patrolling an area where people were known to hunt at night. Accused were found in a vehicle at midnight, slowly driving in the area and arrested for hunting at night. Although Carlson, P.J. found that they were likely guilty, it didn`t reach the criminal standard of beyond a reasonable doubt. Both accused were acquitted.
R. v. Campbell, 2021 MBPC 59: Sentencing decision for accused found guilty of several violent offences. Crown and defence make the same recommendations for the most serious matters but different on the lesser offences. Gladue factors are also considered. Discussion of the approach required when sentencing multiple offences at the same time. Totality of sentences is nine years imprisonment.
Tim Quigley. “Sadly, No RIP for Starting-Point Sentences”, (2022) 75 C.R. (7th) 306. (WLNC – request a copy). Analysis of R. v. Parranto, 2021 SCC 46 in an analysis of starting points as a form of appellate guidance to sentencing judges.
Nicole M. Myers and David Ireland. “Unpacking Manitoba Bail Practices: Systemic Discrimination, Conditions of Release and the Potential to Reduce the Remand Population.” (2021) 69 C.L.Q. 26. (WLNC – request a copy)
Family Law
Pedersen v. Pedersen,2022 MBQB 6: Master’s report on family property accounting. Both parties operated under a limited retainer. Conflicts over the value of a farm corporation. Both parties retained an expert to value the corporation. Master also directed to determine the discount rate to be applied as a result of potential tax liability associated with the husband’s real property, RRSPs and his interest in the corporation. Petitioner is the successful party.
Gadea v. Rath,2022 MBQB 5: Mother requests return of the parties’ child to Costa Rica under the “Hague Convention”. Father denies that the removal or retention of the child was wrongful. Mother submits that the wrongful removal took place in either April 2020 or September 2021. Date of removal is vital to determining which section of Article 12 applies. Jurisdiction for custody and access issues is based on habitual residence. Hatch, A.C.J. determines the child had been habitually resident in Manitoba for either date. Application dismissed.
Rollie Thompson, Q.C. Retroactive Support after Colucci, (2021) 40 C.F.L.Q. 61 (WLNC – request a copy). Case comment on Colucci v. Colucci,2021 SCC 24, resolving the confusion about how to apply D.B.S. to retroactive variations downward.
Wills, Trusts & Estates
Weiss Estate v. Weiss; Weiss v. Weiss Estate,2022 MBQB 13: Combined applications relating to the will of the testator. First application seeks to rectify will to correct errors; cross application states that if rectification is allowed, the will must be declared invalid. Issue is over the residue clause. Kroft, J. grants the application to rectify the will.
Estate of George Czyzewski,2022 MBQB 8: Application by executor to pass accounts. Testator died over 11 years ago. Probate was granted in 2011. Total value of estate at time of death was close to $3 million. Executor ignored several requests for an accounting over the years. Executor has yet to obtain a clearance certificate from CRA. Discussion of the requirement for executors to remain neutral in the discharge of their duties. Master Berthaudin found both the executor and his lawyer delayed the winding up of this matter. Executor must return funds he withdrew against the estate and will receive no compensation for his work.
The Manitoba government has appointed 11 Manitoba lawyers as Queen’s counsel to recognize their extraordinary contributions to the practice of law […] Queen’s counsel is an honorary title given to a lawyer by the lieutenant-governor in council, based on recommendations made by the minister of justice following consultation with an advisory council. […] After stopping these appointments in 2001, the Legislative Assembly of Manitoba passed the Queen’s Counsel Act in 2018 and restored Queen’s counsel appointments for Manitoba lawyers.
The Manitoba government has appointed Judge Donovan Dvorak as an associate chief judge of the provincial court of Manitoba […] Dvorak was appointed to the provincial court of Manitoba in 2013 and currently sits in Brandon. He was previously appointed to the provincial court of Saskatchewan in 2018. […] Dvorak replaces Associate Chief Judge Malcolm McDonald, who retired earlier this month.
The House adjourned on December 2nd 2021 and stands adjourned until March 2nd, 2022, or to the call of the Speaker.
Google reviews – you either love ’em or hate ’em. Negative reviews can do unimaginable harm to your reputation and there is often little you can do to remove them. One company in Ontario, however, is trying to do just that. This Pre-Claim Injunction explains the interaction between Rules 37.17 and 16.01 of the Rules of Civil Procedure in determining whether email notification is acceptable as personal service.
[17] In most cases, I would not be satisfied that when Myers J. sent the motion back to Obsidian’s counsel to be brought “on notice”, he meant notice by something other than the personal service required for an originating process. This was, after all, the first missive in this action (or proposed action) that Google, as defendant, would have received. However, Google is an unusual respondent in certain respects, and its uniqueness may impact on the way in which the ambiguity between Rule 16.01 and Rule 37.17 is interpreted.
Since Google has three dedicated email addresses dealing with litigation, Morgan, J. accepted that notice had been given. The interim injunction and Norwich Order sought was granted.
Due to the planned demonstrations at the legislature Friday, February 4, 2022, library staff will be working from home. We hope to be able to provide you the same great service as when we’re here, but there may be some items we can’t retrieve. We plan to be back to our regular service on Monday.
Please contact us by email only until then. Thank you.
Province reworks pension regulations – “Manitoba has amended funding rules to provide relief to pension plans and strengthen the pension regulatory system. Changes to the Pension Benefits Regulation establish new rules for funding private-sector defined benefit pension plans.”
Court Notices & Practice Directions
COVID related notices
Attention Counsel and Self Representing Individuals
This is the first comprehensive text on this facet of law. It is designed to clarify the nuances of the authentication and admissibility of digital evidence, privacy rights, the uses and limits of social media evidence, and the search and seizure of electronic devices. This text also explores the ways in which law enforcement can access digital data in the hands of third parties, including the various powers created by Bill C-13 (Protecting Canadians from Online Crime Act).
Search and Seizure provides a practical examination of the evolving body of legal rules and principles that govern how reasonable searches and seizures are conducted. In particular, it considers the increased complexity of assessing a person’s reasonable expectation of privacy in the digital age. This handbook addresses central concerns and relevant topics such as Section 487 Search Warrants, computer device searches, warrantless searches, and exclusion of evidence.
Modern Criminal Evidence is the first major treatise to provide a truly practical and comprehensive guide to criminal evidence law in Canada. Unlike other texts in this area, this book’s practical approach guides readers through evidentiary issues in all components of criminal law, providing indispensable insight from Crown, defence, and judicial perspectives.
Guiding readers step by step throughout the process of a fraud case, this practical resource weaves strategic information with case law analysis and relevant provisions of the Criminal Code. This edition features up-to-date legislation, additional content, updated charts, and a new chapter on cyber fraud in Canada.
From LexisNexis
Regulatory Law and Practice, 3rd Edition takes a multi-jurisdictional approach to regulatory law principles and regulatory processes, describing case law and regulatory processes in jurisdictions across the Commonwealth and beyond.
The Law of Privacy, 3rd Edition is a comprehensive treatise providing a thorough overview of Canadian privacy law and includes two main sections: Personal Information Protection in Canada and Privacy. This book also features a helpful annex that provides guidance on how to manage personal information, including how to build privacy management frameworks and the privacy issues that must be addressed in outsourcing and procurement.
The Encyclopedic Dictionary of Canadian Law “From the very first entry (“A or a”) to the last (“ZZZZ”), it is clear that this new publication is the most comprehensive Canadian legal dictionary available. It is a thoroughly contemporary, truly essential resource that even includes definitions of common acronyms now used in text slang – a useful addition given the extent to which text messages are now used as evidence in criminal proceedings.”
Dangerous Offender Law – Written by three experts in the field, including defence counsel and intervenor from the landmark R. v. Boutilier case at the Supreme Court of Canada, Dangerous Offender Law presents criminal justice participants and the Canadian public with a long overdue guide to understanding the complex sentencing regime set out in Part XXIV of Canada’s Criminal Code.
In Drafting Wills in Canada: A Lawyer’s Practical Guide, 3rd Edition, authors Robyn Solnik, Brian Gillingham and Caroline G.S. Kiva demonstrate the most common errors made by solicitors in drafting wills, powers of attorney, and other estate planning documents. The detailed explanations give readers deep insight into why the errors are wrong and what can be done to correct them. The 3rd Edition includes helpful examples of good and bad drafting, along with dozens of practical tips both for drafting and for managing a wills practice.
The Doctrine of Res Judicata in Canada, 5th Edition – The book’s analysis, terminology and description of the law have been adopted by the Supreme Court of Canada, and have been cited on numerous occasions by provincial trial and appellate courts and by tribunals across Canada. The text provides a comprehensive distillation of the res judicata doctrine that has evolved in 200 years of Canadian jurisprudence.
Book Reviews
Review taken from the Canadian Law Library Review Vol. 46 Issue 4
“If you have any interest in artificial intelligence (AI), especially if it’s coupled with a desire to learn more about how developments in AI are related to law and legal technology, then this collection of papers has been compiled just for you.
As AI continues to seep into many areas of legal practice, this is an important collection of critical papers relevant not just for law libraries but for any library collection hoping to inform readers about ongoing developments in AI and society.”
Events
MBA 2022 Mid-Winter Conference Jan 20 – 21 2022
Thursday, January 20, 2022 9:00am – 11:30am Morning Continuing Legal Professional Development Sessions
– Family Law Year Review – Issues of Sexual Violence Across the Law: A Trauma-Informed Lens – Mental Health Accommodations in the Workplace – Advising Commercial Landlords and Tenants in Insolvency
11:45am – 1:45pm – EPPM session – Lawyers Strong: Engaging Lawyers and the Legal Profession to be Changemakers for Wellbeing
2:00pm – 4:30pm Afternoon Continuing Legal Professional Development Sessions
– Domestic Violence and Family Law – Manitoba Law Reform Commission: Current Areas of Law Reform – The Land Back Movement: What is it, and what does it mean for the legal profession and legal practitioners? – Textbooks to Technology – The Impact of Knowledge Aggregation, Search Functions, and A.I. on Business Law
Friday, January 22, 2021 9:00am – 11:30am Morning Continuing Legal Professional Development Sessions
– Advising the Executor – Regulating Public Health – Taxation of Damages and Settlement Amounts – Sexual Assault Cases – the pitfalls, perils and how to avoid them
Awards Ceremony – 11:45am – 1:45pm
2:00pm – 4:30pm Afternoon Continuing Professional Development Sessions
– Current Issues in Tax Law – Children in the Court Process: From Disclosure to Trial – The Balancing Act in the First Five Years of Practice – Impact of the Dismiss for Delay Amendments on the Profession
Hyra v. The Worker’s Compensation Board of Manitoba et al.,2021 MBQB 249: Application for judicial review of decision of Appeal Commission which determined that the applicant did not sustain an injury in the course of his employment. Applicant submits that the decision is not reasonable. Applicant was a firefighter. Issue is whether the applicant suffered from PTSD in the course of his employment. Analysis of the meaning of “accident” in the Act. Standard of review is reasonableness. Application dismissed.
Bankruptcy Law
Montréal (City) v. Deloitte Restructuring Inc.,2021 SCC 53: Issue of whether the city could use “pre-post compensation” to recoup the cost of work done under another contract. Superior court granted Deloitte’s application to stop this, CA agreed with Superior Court, and SCC ultimately agreed as well. Plain language explanation available here. Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Martin JJ; Brown J. (dissenting).
[2] This question thus affords the Court an occasion to interpret, for the first time, certain provisions of Bill 26 as well as the regulation made under it, the Voluntary Reimbursement Program, CQLR, c. R‑2.2.0.0.3, r. 1 (“VRP Regulation”). In doing so, we will clarify for public bodies the burden of proof that rests on them in seeking to establish that a claim arising from an agreement entered into under the Voluntary Reimbursement Program (“VRP”) is fraudulent.
Civil Litigation
Guilbert v. Economical Mutual Insurance Company, 2022 MBCA 1: Request for extension of time to file a notice of appeal of judgment pronounced on March 21, 2019 and entered on April 30, 2019. Applicant (plaintiff) was denied insurance coverage of business and property which was destroyed by fire. Respondent (defendant) insurance company claimed he deliberately set the fire. Criteria for allowing an extension to commence an appeal were recently confirmed in Samborski Environmental Ltd. v. The Government of Manitoba et al.,2020 MBCA 63. Discussion of the admissibility of polygraph tests. Motion dismissed.
Royal Bank of Canada v. Universal Energy Resources Inc. et al., 2021 MBCA 105: Defendants appeal order granting summary judgment to the plaintiff for repayment of loan. UER argued that RBC had acted in bad faith in demanding repayment. Appeal dismissed, with costs on a solicitor and client basis as per the provisions of the loan agreement.
Martens v. The Manitoba Public Insurance Corporation,2021 MBCA 102: Appeal of whether MPI has a duty to act in good faith in administering the personal injury claim of an uninsured automobile accident victim. In 1998, plaintiff was a passenger in an uninsured vehicle that was involved in a serious accident. She received Income Replacement Indemnity which was periodically reviewed by MPI. In 2003 she was charged with fraud, and acquitted in 2005, eventually receiving a full retroactive payment of IRI up to 2012. She sued MPI claiming damages for breach of the duty of good faith in how it dealt with her claim. Standard of review is correctness. CA found that trial judge erred in finding MPI acted in bad faith.
Christie Building Holding Company Limited v. Shelter Canadian Properties Limited,2021 MBCA 103: Applicant appeals determination by case management judge as to what constitutes the record for the purposes of two applications for leave to appeal from decisions made by a commercial arbitrator. CA finds appeal is premature; appeal dismissed.
Hofer v. Hofer et al.,2021 MBQB 265 : Further reasons to those set out in Hofer v. Hofer et al., 2021 MBQB 175, concerning breach of trust. Order removing respondent Rodney Hofer as trustee of the colony, and removed as an officer and director of any corporate entity used to carry on Rainbow’s operations. Deloitte Restructuring to remain court-appointed monitor of Rainbow until further order.
Muzik v. Worthington et al.,2021 MBQB 263: Trial seeking damages for defamation. Defendant Mr. Worthington alleged that he commuted his CPR pension to an investment plan devised by the plaintiff that lost half the value of the pension. At trial, only remaining defendants were CBC and CBC reporter Ms. Sawicka. Rempel, J. found that the investigation fell below the objective journalistic standard. Discussion of the legal test as to the definition of defamatory words, as well as possible defences. Plaintiff is successful. Damages awarded in the amount of $1,659,403.
Dumesnil v. Dr. Jacob et al.,2021 MBQB 240: Case of medical malpractice. Plaintiff suffered a severely comminuted calcaneal fracture due to an automobile accident in 2006. Test for issues is described in Campbell et al. v. Jones et al., 2016 MBQB 10. Parties agreed that defendants owed a duty of care to the plaintiff. Discussion of how to determine the standard of care as relates to a hospital in a rural setting. Lanchbery, J. considers standard of care on several issues: timing of surgery; premature removal of sutures; procedure when infection found; negligence regarding quality of reduction; and others. Claim is dismissed; provisional damages are set.
Long v. Beamish,2021 MBQB 260: Master’s report on assessment of lawyer’s bill. Litigation had been ongoing since 2008. Applicant claimed respondent lawyer had told her fees would be capped at a particular maximum but she paid much more. Respondent had billed applicant regularly throughout the litigation, and she had paid each bill. Both parties testified and were cross-examined. Master found all fees were fully disclosed. Application dismissed with costs to the respondent.
Long v. Philipp and MacDougall, 2021 MBQB 254: Motion for adjournment of trial for action ongoing since 2008. Two issues: whether the plaintiff has established that the trial out to be adjourned; and whether she has demonstrated that her prime reason (to be able to pursue the set aside motion) is sufficiently procedurally and substantively sound. Analysis of the Set Aside Rule (59.06(2)). Motion denied.
O’Connor v. Bains et al.,2021 MBQB 255 : Motion by defendants for summary judgment, based on plaintiff’s claim raising no genuine issue requiring a trial. Dewar, J. finds otherwise. Motion dismissed.
Parsons v. Saskatchewan Mutual Insurance,2021 MBQB 252: Queen’s Bench Rule 22: Special Case. Parties agreed to certain facts allowing the court to make the requested determinations. Conflict is over insurance coverage under a specified peril policy for a rental property damaged by fire caused by the tenant. Analysis of s.136.8 of The Insurance Act re prohibited exclusions. Abel, J. finds that the defendants are not liable to indemnify the plaintiffs.
Ultracuts v. Magicuts,2021 MBQB 250: Tort of unlawful interference with economic interests by means of an unlawful act against a third party. Issue of which franchise would be licensed for Wal-Mart stores after Wal-Mart’s purchase of Woolworths stores. Saull, J. finds that plaintiff has established liability (para. 141) and assigns damages of $34,575.000.
Glover v. The Progressive Conservative Party of Manitoba,2021 MBQB 246: Application seeking declaratory order that the Progressive Conservative Party election of October 30, 2021 is invalid. First issue to be determined is whether the court has jurisdiction to decide the dispute; Edmond, J. determines he does. Consideration of whether the applicant has exhausted other remedies. Acceptance of motion by Heather Stefanson for intervenor status. Matter scheduled on an expedited basis.
85 Academy Road Development Corporation et al. v. Rona Inc. et al.,2021 MBQB 241: Examination of Rule 24 (dismissal for delay) and its application to counterclaims. Claim was first filed in 2007 over project completed in 2006. No significant advances since filing the plaintiffs’ reply and defence to counterclaim.All parties seek an order for dismissal for delay. Rona also seeds an order for return of trust funds paid to its lawyer for security. All three parties delay motions are allowed. Plaintiffs’ claim and Rona’s counterclaim are dismissed. Trust funds are to be released back to the plaintiffs.
Dumesnil v. Dr. Jacob et al.,2021 MBQB 240: Case of medical malpractice. Plaintiff suffered a severely comminuted calcaneal fracture due to an automobile accident in 2006. Test for issues is described in Campbell et al. v. Jones et al., 2016 MBQB 10. Parties agreed that defendants owed a duty of care to the plaintiff. Discussion of how to determine the standard of care as relates to a hospital in a rural setting. Lanchbery, J. considers standard of care on several issues: timing of surgery; premature removal of sutures; procedure when infection found; negligence regarding quality of reduction; and others. Claim is dismissed; provisional damages are set.
Cindy Kou. Barring New Bids from Contractors Who Have Made Claims against Municipal Owners. (2021) 8 C.L.R. (5th) 170. (WLNC – request a copy.) Case comment on J. Cote & Son Excavating Ltd. v. City of Burnaby, 2018 BCSC 1491.
May municipal owners exclude bids from contractors who have previously sued the owners? Would it be unconstitutional or contrary to public policy for a municipality to do so?
Corporate and Commercial Law
Canada v. Loblaw Financial Holdings Inc.,2021 SCC 51: Tax law issue: Canadian corporate taxpayer not including income earned by foreign subsidiary in Canadian tax return for several taxation years. Reasons for judgment: Côté J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Martin and Kasirer JJ. concurring).
[2] The FAPI regime is one of the most complicated statutory regimes in Canadian law. Although it has come before us after several years of diligent work by sophisticated auditors and legal counsel, the question in this appeal is remarkably straightforward. Does a parent corporation conduct business with its CFA when it provides capital and exercises corporate oversight? In my respectful view, the answer is an equally straightforward no.
Rosenberg et al. v. Securtek Monitoring Solutions Inc.,2021 MBCA 100: Appeal of dispute over contractual interpretation. Parties disagreed as to whether similarly worded purchase agreements create a contractual right for the plaintiffs. Trial judge agreed with the plaintiffs and awarded compensatory damages with pre-judgment interest as well as an unusually high costs award. Defendants appeal on grounds related to the finding of liability in relation to the calculation of compensatory damages and on the costs awards. Appeal allowed. CA finds that there are two palpable and overriding errors made in the interpretation of the purchase agreements.
Criminal Law
R. v. Lai,2021 SCC 52: Oral decision re exercising the right to re-elect. Appeal of R. v. Lai, 2021 BCCA 105. Appellant waited 15 months to re-elect after his trial dates were set in Provincial Court, causing an additional delay. Majority of SCC dismissed the appeal, Côté, J. dissenting.
R. v. Flett et al.,2021 MBCA 104 : Five accused were jointly charged; judge convicted all five on three of the 12 counts. Three of the accused have appealed their convictions and one also appealed his sentence. Submissions on conviction are that the trial judge erred on her application of Vetrovec v. The Queen and that the verdicts are unreasonable. The submission on the sentence appeal is that the sentence was harsh and excessive. CA found that trial judge’s reasons demonstrate that she did caution herself appropriately. Conviction appeals dismissed, leave to appeal the sentence denied.
R. v. Alcorn,2021 MBCA 101: Appeal about fitness of sentence for the offence of purchasing sexual services from a child. Trial judge sentenced accused to 15 months’ imprisonment less time served. CA finds judge made errors in principle in assessment of proportionality. Crown appeal allowed, sentence varied to a term of five years’ imprisonment, less time served. Analysis of R. v. Friesen, 2020 SCC 9 and how it affects the sentence.
R. v. King and Laquette,2021 MBQB 274: Co-accused charged with second degree murder. Determination of proof takes into consideration intoxication through drugs and/or alcohol and assertions of self-defence and provocation. Charges dismissed.
R. v. Brass,2021 MBQB 272: Accused convicted by a jury of second degree murder. Sentence is life imprisonment. Issue is the period of time he must serve before he is eligible to seek parole. Consideration of the sentencing provisions found in s.718 of the Criminal Code. Gladue factors and moral blameworthiness taken into account. Accused sentenced to life in prison with no possibility of parole for 17 years.
R. v. C. (A.D.W.),2021 MBQB 268: Trial for first degree murder, attempted murder and discharging a firearm. Accused was 14 years old at the time of the offence. Mix of evidentiary and legal issues at play. Video evidence is key to determining facts. Level of intoxication of accused is relevant to his intentions. Accused found guilty.
R. v. R.D.S.,2021 MBQB 264: Sentencing decision where accused pleaded guilty to sexual interference, invitation to sexual touching, making and possessing child pornography. Accused is child’s mother; child was 4-5 when offences occurred. Crown seeks a total sentence of 20 years in custody; defence submits a sentence in the range of 10-12 years is appropriate. In sexual offences against children, the court must give primary consideration to deterrence and denunciation. Saull, J. considers R. v. Wells,2000 SCC 10 for authority for the proposition that where the offence is a violent and serious one, the appropriate sentence should not and will not differ between Indigenous and non-Indigenous offencers (para 108). Extensive discussion of factors used to determine sentence, including Gladue report, circumstances of the accused, and mitigating and aggravating factors. Sentence of 20 years.
R. v. Blacksmith,2021 MBQB 257: Trial for second degree murder; Crown must prove that accused committed an unlawful act; that the act caused the death of the victim; and that the accused either meant to cause the death … and was reckless. Accused submits that the evidence is circumstantial. Primary cause of death was smoke inhalation; victim also had numerous blunt force injuries. Analysis and explanation of admissibility of expert evidence. Evidence is circumstantial. Starting point for analysis is SCC decision of Villaroman. Edmond, J. finds accused guilty of second degree murder.
R. v. McKay,2021 MBQB 256: Trial for first degree murder. Many witnesses testified putting accused at scene. Most were intoxicated at the time so credibility was undermined. McKelvey, J. finds Crown has not provided proof beyond a reasonable doubt of first degree murder, but finds accused guilty of manslaughter.
R. v. K.C.C.F.,2021 MBQB 253: Sentencing decision for accused convicted of sexual interference and sexual assault. Initial motion for a stay of proceedings based on delay dealt with first. Stay denied. Accused is a permanent resident originally from Brazil; complainant was in foster care. Deterrence and denunciation are primary factors. Menzies, J. sentences him to 20 months’ incarceration.
R. v. H. (T.J.) and C. (A.D.W.),2021 MBQB 245: Young offenders charged with first degree murder, two attempted murders and two charges of discharging a firearm with intent to endanger life. Judgment dealing with admissibility of A.C.’s comments and statements. Defence led expert evidence in area of FASD and how it affects A.C. Consideration of s.26(1) of the Youth Criminal Justice Act, providing notice to youth’s guardian. Martin, J. found that police did not comply with s. 146 and comments made by A.C. in the police car are inadmissible.
R. v. Robert,2021 MBPC 64: Application to exclude blood sample evidence from the accused set aside by a lab technician. Accused collided with a parked dump truck and was taken to hospital after suffering severe injuries. Blood samples were taken for medical purposes and held while waiting for a warrant. Issue is whether the accused had a reasonable expectation of privacy in basic medical information. Application dismissed.
R. v. Turner,2021 MBPC 61: Sentencing decision re guilty plea to charge of possession for the purpose of trafficking. Crown seeks three year custodial sentence; defence argues for suspended sentence. Analysis of the meaning of “exceptional circumstances” and whether they apply. Harvie, P.J. finds they do not, but notes mitigation on the part of the accused as assessed by the positive steps taken by him while out on bail. A sentence of one year is deemed appropriate.
R. v. Fontaine,2021 MBPC 60: Voir dire over Charter motion. Defence argues that both accuseds’ right to be protected from arbitrary detention and from unlawful search and seizure were violated. Evidence obtained as a result of the unlawful arrest should be excluded from trial. Search was based on information from two confidential informants. Applicable law is as set out in R. v. Penner, 2021 MBCA 8 at para. 4. Analysis of credibility of information and sources. Rolston, P.J. determines that WPS had reasonable grounds for arrest.
…This paper will look at the historical access to justice issues regarding reasonable bail for Indigenous peoples, the current attempts to address this issue, and the challenges that still need to be addressed.
Steve Coughlan. R. v. Khill and the Structure of Self-Defence : Declining to See What Isn’t There. (2021) 74 C.R. (7th) 328. (WLNC – request a copy.)
The disagreement in R. v. Khill between Justices Martin and Moldaver over how to approach section 34 is entirely understandable. The genesis of their debate is that they are aiming at different things. Justice Martin is trying to put into effect the scheme that Parliament intended: Justice Moldaver is trying to create a law around defence of the person which is well-structured and allows for appellate review.
Family Law
Association de médiation familiale du Québec v. Bouvier,2021 SCC 54 : Exception to settlement privilege. Parties underwent mediation to resolve their custody and property arrangements. Mediator recorded his conclusions in a summary of what had been agreed upon. One party, I, filed a court action seeking greater financial compensation; other party, M, argued that the parties had entered into a contract. Trial judge relied on exception to settlement privilege; Court of Appeal dismissed the appeal. Third party (Association de mediation familiale du Québec) obtained leave to be appeal to SCC. From the headnotes:
Per Wagner C.J. and Moldaver, Côté, Brown, Rowe and Kasirer JJ.: The settlement exception generally applies. Having regard to the very nature of family mediation, to its inherent procedural safeguards and to the terms of the standard family mediation contract used in Quebec, it is neither necessary nor desirable, for the protection of vulnerable parties, to establish a rule of absolute confidentiality or to depart from the rule developed in Union Carbide relating to the settlement exception.
Karakatsanis, Abella and Martin, J.J. concurring.
Carasquero et al v. Holder et al,2021 MBQB 258: Master’s report on cohabitation and separation dates. Petitioner’s position is that cohabitation commenced in or about 1986 and ceased in 2019; respondent’s position is that there was no common-law relationship. Both parties are mentally incompetent; petition was filed on petitioner’s behalf by his brother and defended by the niece of the respondent. Master considers Molodowich factors. Since no evidence was able to be submitted by the parties, the master must consider the evidence submitted on their behalf, such as photographs showing them together over the years, an old Christmas card, and a bill of sale showing the address of the petitioner.
Koch v. Monk,2021 MBQB 244: Master’s report on cohabitation dates. Dispute over the end of the cohabitation period. Petitioner indicates it ended in March 2017; respondent says May. Master considers Molodowich factors and agrees with respondent.
Rachel Birnbaum, Nicholas Bala. Ontario’s Family Law Limited Scope Services Project: Rhetoric and Realities of the Family Bar Addressing Access to Justice Challenges. (2021) 40 C.F.L.Q. 1. (WLNC – request a copy.)
There has been growing recognition that many of those without lawyers and ineligible for government funded legal services can afford some legal services, but not traditional full legal representation. Proponents of limited scope family legal services have enthusiastically promoted the expansion of this type of limited legal service. This type of innovation allows the private bar to play a more significant role in addressing the crisis of access to justice by providing more affordable limited services for lower and middle-income individuals who may not be able to afford or may want full legal representation.
Wills, Trusts & Estates
Re Wilson Estate, 2021 MBQB 248: Application by executrix to pass accounts; opposed by applicant’s sister. Respondent claims that applicant distributed household items and personal effects rather than selling them and placing the proceeds into the estate account, and she claims that applicant paid monies out of the estate for improper matters. Parties are estranged and communicate mostly by text. Detailed discussion of the parties’ difficulties communicating over a small estate.
Lisa Filgiano. Calmusky v. Calmusky: A Novel Application of the Presumption of Resulting Trust or an Outlier? (2021) Vol. 41 E.T.P.J. 7. (Request a copy). Case comment re Calmusky v. Calmusky and Mak (Estate) v. Mak.
It has been slightly over a year and a half since the release of Calmusky v. Calmusky. The decision shook the estates and trusts community and displaced the widely held understanding that the presumption of resulting trust does not extend to beneficiary designations made on registered accounts, life insurance policies or similar instruments….
More recently, in Mak (Estate) v. Mak, the court declined to follow Calmusky and held that the presumption of resulting trust did not apply to a registered retirement savings fund (“RRIF”).
Bill S-206, (An Act to amend the Criminal Code [disclosure of information by jurors]), passed its third reading in the Senate on Dec. 8 without amendment and is awaiting first reading in the House of Commons. The bill, sponsored by Sen. Pierre-Hugues Boisvenu of Quebec, “seeks to remove the legal barriers in the Code limiting access to medical support for jurors who wish to consult a health-care professional when suffering from trauma following their participation in a criminal trial,”
C-2 An Act to provide further support in response to COVID-19 C-3 An Act to amend the Criminal Code and the Canada Labour Code C-4 An Act to amend the Criminal Code (conversion therapy) C-6 An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2022
The Regional Health Authorities Amendment Act (Health System Governance and Accountability) subsections 91(1) and (17) to (22) and clauses 91(23)(b) to (d)
It’s that time of the year again – time to nominate your favourite legal blog, podcast, newsletter, or whatever! I can’t believe this has been going on for 16 years – where does the time go??
Nothing fancy about the name of the Gardiner Roberts Litigation Blog – it is literally “Blog”, but don’t let that fool you. The content is substantive and well written, thoughtful legal analysis of recent cases in Ontario. Partners Stephen Thiele and James Cook have been publishing for a couple of years. Wish I had their ability to entice readers with their witty titles.
First Peoples Law hits the legal information trifecta: a blog, podcast AND a newsletter. I have been reading the newsletter (delivered every Sunday) for a few years and rely on it for authoritative national Indigenous content. More in-depth treatment is found on their blog.
For sheer entertainment value (at least to me), I have to include Above the Law‘s Thinking like a Lawyer podcast. The current “cast” of Joe Patrice, Kathryn Rubino and Chris Williams usually have me laughing at some point, either during “small talk” or wondering how Joe’s going to work in his latest ad read. Of course there are also serious topics discussed and, if you’re a Canadian lawyer, you are free to compare your bonuses to a top 100 U.S. law firm.
I look forward to other people’s nominations to add to my legal information sources!
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