The Frailties of Online Legal Research

The words “and” and “or”

Stephen Thiele, a research partner at Gardiner Roberts, recently published the following on the difficulties of searching online when you are looking for judicial consideration of “and” and “or”. As these are also boolean operators, it can be difficult for platforms to distinguish between the two. Here is Stephen’s advice.

I have been a legal research lawyer for almost 30 years.

When I started law school in 1987 the use of laptops to take notes in lectures was completely unknown. Our first year legal research and writing class was based on how to conduct research using books like case reports, The Canadian Abridgment Digests, and the Canadian Encyclopedic Digests (Ontario) and other paper sources. Online research was limited to “Quicklaw”, which was a database of cases that could be searched using Boolean search parameters. These cases were generally considered to be unreported decisions because they had not been published in case reports, such as the Dominion Law Reports or the Ontario Reports.

When I articled, we did not have a desk top computer and all legal research was done using the physical books that were either in the firm’s small library or at the nearby law school law library.

When I was called to the Ontario Bar in 1992, lawyers were only beginning to get desktop computers installed in their offices. Thus, online commercial legal research sources were still in their infancy as the legal publishers were still developing platforms that could be utilized over the internet and easily accessed from a law office computer.

At the time, the Canadian Abridgment Digests became one of the first product that was made available on a CD-Rom and eventually Carswell was able to develop an online research tool to rival Quicklaw.

The race toward the virtual library had begun.

Today, law students and the legal profession have become dependent on using online tools to conduct legal research. Paper products have disappeared from library bookshelves as lawyers and students access virtual law libraries. However, as I recently discovered, conducting online legal research is not necessarily easy if the point of law being searched is a common word.

The words “and” and “or” are words that have received a lot of judicial consideration. But they are so common that trying to find jurisprudence in which they have been judicially interpreted using online search tools can prove difficult.

For example, there are some tools available online that are specifically created to assist the researcher in understanding how certain words have been judicially considered. For example, the product “Words & Phrases” might be a good place to discover how the words “and” and “or” have been interpreted. However since both “and” and “or” are Boolean search connectors, they are “stop words” when entered electronically in the relevant search fields of this tool. Accordingly, no results can be obtained.

Meanwhile online dictionaries are not necessarily adequate either, as I discovered when searching a dictionary on another online private commercial source even though these two very common words have received much attention.

So in order to track down the relevant law in which the meaning of common words is sought using virtual research tools, a legal researcher must think of other words and search strategies to produce the desired results.

But finding an alternative might still prove to be elusive. For example, a researcher might try to use different natural language searches or different Boolean search strings such as: “contractual /s interpretation /s “and”” or “meaning /s “and” /s “or””. However, these search strings produce unsatisfactory results.

Thus, a legal researcher might currently still be tempted to hop in a car, while we work from home during the COVID pandemic and potentially in the future, and drive to the office to access a hard copy of a law dictionary to discover the legal meaning of the word “and” and “or”, especially where there is time pressure to find an answer.

But this is an easy way out and is likely to be unavailable in the future as law firms feel the pressure to convert their physical law libraries to virtual law libraries that are accessible to all lawyers and law students from their computers at all times of the day.

Accordingly, in an evolving world where technology is replacing paper, it is incumbent for legal researchers to evolve their methodologies to match the evolution that is taking place in the legal publishing world.

For online research where the only source available might be a case law database because helpful textbooks have not yet been converted to an electronic format or might not be included in a firm’s subscription, the meaning of common words like “and” and “or” requires the researcher to utilize uncommon words. For the words “and” and “or” those uncommon words are “conjunction”, “conjunctive” and “disjunctive”.

As a matter of contractual or statutory interpretation the words “and” and “or” are sometimes interpreted “conjunctively” or “disjunctively” depending on context. Using these uncommon words in a search string will open the door to retrieving the relevant case law to help answer legal questions involving how a court might interpret these common words in a contract or a statute.

Although it cannot be doubted that more and more legal research will be dependent on the use of online tools, whether through publicly accessible sites like CanLII.org or privately purchased commercial tools like WestlawNextCanada or Lexis Advance, hard copy books should not be discounted until such time as these books are converted to an electronic format and made widely available to the legal community in such format. While I am a veteran research lawyer who can easily shift to an online legal research world and discover the keywords necessary to retrieve relevant case law where the interpretation of a common word is at stake, the less experienced legal researcher might struggle.

The take away is that while legal publishers need to rapidly convert paper titles into electronic format, legal researchers must appreciate that there will always remain potential frailties in online legal research and that great care and thought sometimes is required to locate and retrieve the necessary cases on point.

Thank you to Stephen for allowing us to reprint his post here.

eLex December 2020

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
New Library ResourcesConstitutional Law 
Corporate & Commercial 
 Criminal Law 
 Family Law 
 Labour & Employment 

News


In the News

In a rare Saturday sitting, Chief Justice Glenn Joyal dismissed an application for a temporary stay of enforcement of the public health order regarding drive-in church services.

CanLII has published The CanLII Manual to British Columbia Civil Litigation.


Court Notices & Practice Directions

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

Court of Queen’s Bench

Practice Direction – Family and Child Protection Video Conference Trials and the Continuation and Commencement of Other Remote Services (December 3, 2020)
Notice – Adjustments to Current Scheduling Protocols – December 14, 2020 to January 8, 2021 (December 3, 2020)
November 26, 2020 – Court Attire
Practice Direction – Remote and Off Site Civil Trials (November 20, 2020)
Practice Direction – Criminal Trials Accused’s Remote Appearance by Video Conference (November 17, 2020)
Masters’ Court – COVID-19 Update (November 12, 2020)
Notice – Adjustments to Current Scheduling Protocols – November 16 to December 11, 2020 (November 10, 2020)

Provincial Court

December 1, 2020 – Counter Court (Winnipeg)
Notice – COVID-19 – Suspension and Restriction of Hearings (November 30, 2020)
Notice – COVID -19 – Suspension and Restriction of Hearings – Legal Aid Administrative Court (November 24, 2020)
Notice – Service of Child Protection Proceedings on Persons in Custody during Pandemic Restrictions (November 18, 2020)
Notice – Circuit Court Sitting Replacement Dates Due to COVID-19 (November 18, 2020)
Practice Directive – Video Appearances for Trials and Preliminary Hearings in the Provincial Court of Manitoba (November 17, 2020)
Notice – COVID -19 – Rescheduling Adult and Youth Out of Custody Matters -Regional Centres  (November 16, 2020)
Notice – COVID – 19 – Reschedulding Adult and Youth Out of Custody Matters (November 13, 2020)
Notice – COVID -19 – Suspension and Restriction of Hearings (November 10, 2020)


New Library Resources

Introducing New Practice Resources – Have you seen The Law Society’s newly relaunched Practice Resource Library? This comprehensive collection of resources is now conveniently available at the click of your mouse, free of charge. While designed to support all Manitoba lawyers in their practice, these resources have been developed with solo and small firm practitioners particularly in mind.

Substantive Law


Administrative Law

Court v. Canada (Attorney General), 2020 FCA 199: Request for judicial review of a decision of the Appeal Division of the Social Security Tribunal. Applicant was terminated from employment during her pregnancy and received maternity and parental leave benefits. She also sued her employer for wrongful dismissal and breach of contract, reaching a settlement of $50,000. Employment Insurance Commission notified the applicant that the settlement represented earnings and meant she received an overpayment of benefits and had to pay them back. Analysis of the legislative meaning of s.45 of the Employment Insurance Act and s.35 of the Regulations. Application dismissed, no awarding of costs.

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196: Appeal and cross-appeal re two applications for judicial review challenging the designation of four Jurisprudential Guides (JG) by the Chairperson of the IRB. Appeal dismissed and cross-appeal granted.

[4]  The Federal Court certified the two following serious questions of general importance, as contemplated by paragraph 74(d) of the IRPA:
1. Does the Chairperson of the Immigration and Refugee Board have the authority pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act to issue jurisprudential guidelines that include factual determinations?
2. Do the Jurisprudential Guides that the Chairperson issued with respect to Nigeria, Pakistan, India and China unlawfully fetter the discretion of members of the Refugee Protection Division and the Refugee Appeal Division to make their own factual findings, or improperly encroach upon their adjudicative independence?

Kevin W. Gray. “A Separate Head of Judicial Review: Divergent Paths in Common Law Rights Review”, 33 Can. J. Admin. L. & Prac. 305 (Sept. 2020). (WLNC – request a copy.)  “This paper argues that proportionality review, if adopted in Canada as a separate head of review, would provide a more robust form of rights protection.”


Civil Litigation

Hydro-Québec v. Matta, 2020 SCC 37: Property rights – Servitudes; whether original acquisition of servitude allowing Hydro-Québec to set up a transmission line between two substations in the 1970s allowed for additional work to be carried out on the servient land. Trial judge ruled for Hydro-Québec; appeal overturned. SCC allowed appeal.

Kuny v. Pullan Kammerloch Frohlinger et al, 2020 MBCA 114: Request for extension of time to file an appeal re summary judgment decision granted to defendants re claims by plaintiff alleging negligence and professional misconduct by two law firms. Leave granted.

Ian Dmytriw et al v, Jonah N.K. Odim et al, 2020 MBCA 112: Appeal by defendants of motion judge’s refusal to dismiss action for delay. Motion was previously dismissed by a Master then overturned by a judge. Simonsen, J. concludes that motion judge erred in law by applying the former rule rather than the current one, made a palpable and overriding error in determining the period of unexplained delay and did not properly deal with inherent prejudice. Appeal allowed. Chronology of events included, as well as discussion of differences to Rule 24.01.

Wesco Distribution Canada GP Inc. v. Fenchurch General Insurance Company, 2020 MBQB 166: Motion for preliminary determination of whether the limitation period in The Insurance Act applies to a labour and payment bond. Question depends on whether the bond is a contract of insurance under the Act. Defendant claims the limitation period was one year while the plaintiff states it is two years. Analysis of the definition of a “contract of insurance”. Greenberg, J. agrees with plaintiffs.

Grumm v. Warkentin, 2020 MBQB 164: Defendant’s motion to dismiss plaintiff’s action due to delay. Plaintiff issued a statement of claim for personal injuries sustained in an assault, in October 2006. Defendant responded in October 2007. Replay and counterclaim by the plaintiff in October 2010. Two issues: Should motion precede under current rules for delay amended on January 1, 2018 or under the old rules; should action be dismissed. Matter was not unduly complex; Chartier, J. found that plaintiff did not provide any reasonable explanation for the delay. Motion granted.

Gomes v. Laporte, 2020 MBQB 152: Two actions combined: civil action concerning an unprovoked assault, and an allegation of malicious prosecution and civil conspiracy. Plaintiff in assault pursued criminal charges which were dropped. Civil action on assault dismissed; damages awarded for the other action.

Kennedy et al. v. McKenzie, 2020 MBQB 139: Contested applications over the appointment of a committee responsible for making decisions about property and personal care. Applications are between the respondent’s common-law husband and his mother, and her own mother. Respondent suffered a traumatic brain injury after being hit by a vehicle. Analysis of legal test as set out in Yaremko v. Manitoba (Director of Psychiatric Services (2001 MBQB 85). Turner, J. concludes that respondent’s mother is the best choice.

Jerred Kiss. “The Newest Member of the Family: A Comment on Leitch v. Novac”. 64 C.C.L.T. (4th) 279.  2020 ONCA 257. (WLNC – request a copy.) 

… Of these remaining economic torts, unlawful means conspiracy is perhaps the one characterized by the most uncertainty. While it is now clear that the tort’s “unlawful means” element is not restricted to civilly actionable wrongs both its general scope and elements of liability remain unclear. Thankfully, in Leitch v. Novac the Ontario Court of Appeal has now addressed the former issue, holding that while unlawful means conspiracy may be considered an “economic tort,” plaintiffs are not necessarily barred from pleading it in the family law context. …

Michael McGowan. “Annotation to OZ Merchandizing Inc. v. Canadian Professional Soccer Association”. 35 C.P.C. (8th) 396. (WLNC – request a copy.) 2019 ONSC 3882

OZ Merchandizing is an uncommon example of a closing address to a jury containing such numerous, serious, and varied flaws that the trial judge was unable to remedy the situation by correcting instructions to the jury. Although trial counsel should represent his/her client fearlessly and with vigor, the line was clearly crossed in this case.


Constitutional Law

Ontario (Attorney General) v. G, 2020 SCC 38: Right to equality re Ontario’s sex offender registry. Accused found not criminally responsible on account of mental disorder for sexual offences can never be removed from the sex offender registry even after receiving an absolute discharge from a review board. Review of ss. 7 and 15(1) of the Charter. Appeal dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Christopher’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter. These discriminatory distinctions cannot be justified in a free and democratic society. The remedy granted by the Court of Appeal was appropriate, and its orders should be upheld.

Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32: Does fining a corporation constitute cruel and unusual punishment? Corporation was fined the mandatory minimum fine for an offence under s.46 of Quebec’s Building Act. The corporation challenged the fine under s. 12 of the Charter.  Analysis of the meaning of “cruel and unusual” and whether it applies to corporations as well as human beings.

Per Abella, Karakatsanis and Martin JJ.: The purpose of s. 12 of the Charter is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.

Stephanie Williams. “The Powers of the CSE after C-59: Are Privacy Rights at Risk?” 40 Nat’l J. Const. L. 131. (WLNC – request a copy.)

In 2019, Canada’s national security legislation was overhauled. A significant part of this overhaul was the creation of the Communications Security Establishment Act, providing a complete legislative framework for Canada’s nearly 80-year-old signals intelligence agency, the Communications Security Establishment (the CSE). This new legislation also brings many concerns for Canadians’ privacy. 


Corporate & Commercial Law

1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35: Issue of the tort of pure economic loss. In 2008 Maple Leaf was forced to recall meat products processed at one of its factories due to a listeria outbreak. Following the outbreak, franchisees of Mr. Sub experienced a shortage of product for six to eight weeks. A class action on behalf of the franchisees against Maple Leaf was certified, but overturned on appeal. From the headnote:

Per Moldaver, Côté, Brown, Rowe and Martin JJ.: Maple Leaf does not owe a duty of care to the franchisees in respect of these matters. … Pure economic loss is economic loss that is unconnected to a physical or mental injury to the plaintiff’s person, or physical damage to property.
Per Wagner C.J. and Abella, Karakatsanis and Kasirer JJ. (dissenting): … it is just and fair to impose a novel duty of care on Maple Leaf in the circumstances, and the appeal should therefore be allowed.

Sensible Capital Corp. v. Galton Corporation, 2020 MBQB 159: Motion for summary judgment by the plaintiff re various alleged breaches of a debenture agreement. Defence argues this is not an appropriate case for summary judgment and raises defence of estoppel. Extensive analysis of the test for summary judgment and whether additional oral evidence should be entered. Discussion of the parol evidence rule. Summary judgment granted.

Dowd et al. v. Skip the Dishes Restaurant Services Inc., 2020 MBQB 155: Appeal of Master’s decision dismissing plaintiffs’ motion for an interim order for preservation of property. Plaintiffs claim co-creation of the online ordering system of the defendant. Master dismissed motion because plaintiffs had not demonstrated the property, as they defined it, could be the subject of an order for preservation. Analysis of Queen’s Bench Rule 45.01. Also consideration of whether the Master’s decision would impact discovery. Appeal dismissed.

Bill C-12 can demonstrate environmental leadership to Canadian business”. Janis Sarra, The Lawyers Daily, November 25, 2020.


Criminal Law

R. v. Slatter, 2020 SCC 36: Appeal of 2019 ONCA 807 based on sufficiency of reasons by trial judge in a sexual assault trial. Complainant has an intellectual and developmental disability. Appeal allowed; conviction restored.

Moldaver J. — We are all of the view that the appeal must be allowed, for the reasons of Justice Pepall, with which we agree.

R. v. Kishayinew, 2020 SCC 34: Appeal from 2019 SKCA 127 on issue of subjective consent via circumstantial evidence. Delivered orally by Moldaver, J.:

“A majority of the Court is of the view that, when read in context, the trial judge’s reasons make it clear that he was satisfied, beyond a reasonable doubt, that the complainant did not subjectively consent to any sexual activity with Mr. Kishayinew.”

R. v. Langan, 2020 SCC 33: Appeal from 2019 BCCA 467 over the admission of text messages into evidence. Oral decision delivered by Abella, J.:

“A majority is of the view to allow the appeal for the reasons of Chief Justice Bauman. Justices Côté and Brown would dismiss substantially for the reasons of Justice Stromberg-Stein. “

R. v. Riley, 2020 SCC 31: Oral decision delivered by Karakatsanis, J. allowing the appeal for the reasons of Scanlan, J.A. in dissent, 2019 NSCA 94. Issue of whether giving a Vetrovec caution was an error and if so, could the appeal be dismissed by the curative proviso?

R v. Amyotte, 2020 MBCA 116: Appeal of sentence. Accused submits sentencing judge misunderstood the terms of a joint recommendation; that he failed to apply the totality principle; and that he failed to give sufficient weight to Gladue factors. Crown agreed that it is apparent from the sentencing judge’s reasons that he erred. Issue reviewed at appeal court is whether this had a material difference on the sentence imposed. Sentence appeal is dismissed.

R v. Kirton, 2020 MBCA 113: Accused seeks leave to appeal, and appeal, his sentence for six offences. He was designated a dangerous offender and sentenced to an indeterminate sentence. Standard of review is that set out in R. v. Sanderson, 2018 MBCA 63, para. 8. Appeal of dangerous offender designation and indeterminate sentence dismissed.

R v. Coutu, 2020 MBCA 106: Leave to appeal by the Crown of a sentence for a warrantless search of a backpack. Accused was discovered with a backpack of firearms when police were in pursuit of another suspect similarly dressed. Trial judge declared arrest and search illegal but did not exclude the weapons evidence. Instead, he reduced the sentence from five and a half years in prison to five years, to send a “message” to the police. Standard of review allows appeal court to sentence afresh based on its own analysis, giving deference to the sentencing judge’s finding of fact to the extent that they are not affected by an error in principle (para 8). Crown’s appeal allowed and sentence is increased.

R. v. S. (D.), 2020 MBQB 163: Sentence for charge of sexual interference under s. 151 of the Criminal Code. Accused is stepfather of 14 year old complainant. References R. v. Friesen as setting out applicable principles of proportionality. Rempel, J. determines denunciation and deterrence are the primary considerations, in imposing a sentence of nine years of incarceration.

An Application for a General Warrant, s. 487.01 and a Sealing Order, s. 487.3, 2020 MBPC 62: Request to use an automated licence plate reader (ALPR) to identify and track a suspected drug trafficker. Discussion of the reasonable expectation of privacy when police are gathering information. Application denied.

R. v. T.A., 2020 MBPC 59: Opposition by defence counsel to Crown’s application to file a videotaped statement of a 10 year old child involving sexual offences allegedly committed by her stepfather. Crown relies on s.715.1 of the Criminal Code; issue is whether the recording was made “within a reasonable time after the alleged offence”. Devine, P.J. sets out the four-part test to determine admissibility and finds the statement admissible.

R. v. Berent, 2020 MBPC 53: Motion for an order allowing the accuseds to attend their trial remotely by video link from California. Accuseds would have to quarantine for two weeks upon return to Manitoba and assert staying in Manitoba for a lengthy period of time would impose a hardship on them. Analysis of s.650 of the Criminal Code re the requirement for the accused to appear in court in person. Krahn, A.C.J. concluded that it would not be fair for a trial this complex to go ahead with the accused only appearing by video. 

Lauren Sapic. “The Criminalization of Non-Assimilation and Property Rights in the Canadian Prairies”. (2020) 43-5 M.L.J. 95.
The tragic case of Colten Boushie, a young Indigenous man from Saskatchewan, has become an inflection point in Canadian law due to the intersection of Indigenous rights and property law.


Family Law

Fijala v. Fijala, 2020 MBQB 162: Petitioner applies for an order deleting any and all arrears for child support, as well as late penalties and/or cost recovery fees and an order that the respondent pay her any overpayments. Petitioner had been ordered to pay child support to respondent for arrears, and then payments were to go to child. Confusion over who received what money. Application dismissed.

Ducharme v. Burym, 2020 MBQB 160: Divorce proceedings contesting custody arrangements for the parties’ four children and child support. Income imputed to father. Detailed consent order by MacPhail, J. at para. 66. Divorce granted.

“No legislative gap in assisted human reproduction legislation, B.C. Court of Appeal says.” Ian Burns, The Lawyers Daily, December 2, 2020. Case commentary on L.T. v. D.T. Estate, 2020 BCCA 328.

“Indigenous children and the child welfare system in Canada”. Darlene Rites. The Lawyers Daily, December 2, 2020. Case commentary on A.M. v. Ministry of Social Services, 2020 SKCA 114.


Labour & Employment

Engel v. Southern – Santé Sud Regional Health Authority,2020 MBQB 157: Applicant claims his right to perform surgery in the respondent’s hospitals was terminated without due process. Respondent says the process set out in the By-law doesn’t apply. Question of if the issue relates to the decision to terminate operating time or the process followed, and standard of review. Analysis of definition of “complaint” and “privileges”, and whether the By-law is delegated legislation. Decision terminating applicant’s right to be on the surgical rota is quashed; Greenberg, J. suggests parties proceed to arbitration which is the next step in the process.


Legislation


Federal

43rd Parliament, 2nd Session

C-232 An Act respecting a Climate Emergency Action Framework Short Title: Climate Emergency Action Act
Progress: Introduction and First Reading in the House of Commons Show Details

C-7 An Act to amend the Criminal Code (medical assistance in dying)
Progress: Concurrence at Report Stage in the House of Commons Show Details

C-259 An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985 (pension plans and group insurance programs)
Progress: Introduction and First Reading in the House of Commons Show Details

C-258 An Act to amend the Canada Labour Code (replacement workers)
Progress: Introduction and First Reading in the House of Commons Show Details

C-15 An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples Short Title: United Nations Declaration on the Rights of Indigenous Peoples Act
Progress: Introduction and First Reading in the House of Commons Show Details

S-212 An Act to amend the Criminal Code (disclosure of information by jurors)
Progress: Introduction and First Reading in the Senate Show Details

S-213 An Act to amend the Department for Women and Gender Equality Act
Progress: Introduction and First Reading in the Senate Show Details

C-3An Act to amend the Judges Act and the Criminal Code
Progress: First Reading in the Senate Show Details


Provincial

Third Session, Forty-Second Legislature

Government Bills

No.Sponsored byAs proposed(Click PDF for the bilingual version)
As enacted
37Hon. Ms. Squires
Minister of Municipal Relations
The Planning Amendment and City of Winnipeg Charter Amendment ActPDF 
38Hon. Ms. Squires
Minister of Municipal Relations
The Building and Electrical Permitting Improvement Act (Various Acts Amended and Permit Dispute Resolution Act Enacted)PDF 
39Hon. Mr. Fielding
Minister of Finance
The Supplementary Appropriation Act, 2020 (COVID-19 Response)PDFSM 2020, c. 17
40Hon. Mr. Wharton
Minister of Crown Services
The Manitoba Liquor and Lotteries Corporation Amendment and Liquor, Gaming and Cannabis Control Amendment ActPDF 
41Hon. Mr. Eichler
Minister of Economic Development and Training
The Fair Registration Practices in Regulated Professions Amendment ActPDF 
42Hon. Mr. Cullen
Minister of Justice
The Remote Witnessing and Commissioning Act (Various Acts Amended)PDF 
43Hon. Mr. Helwer
Minister responsible for the Civil Service
The Civil Service Superannuation Amendment Act *PDFSM 2020, c. 16
44Hon. Mr. PallisterThe Employment Standards Code Amendment ActPDFSM 2020, c. 18

eLex November 2020

Table of Contents

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

News


In the News

The Great Library is closed while Winnipeg is under Code Red restrictions. 

Funding awarded for Access to Justice Co-ordinator.


Court Notices & Practice Directions

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

Manitoba Court of Appeal
Notice – All Hearings of the Court of Appeal will be conducted remotely until further Notice (November 2, 2020)

Court of Queen’s Bench
Masters’ Court – Notice – Procedural Update (MEP)  (November 4, 2020)
Notice – Additional Measures in respect of attendance at the Law Courts Complex (November 2, 2020)
Notice – Scheduling Protocols (October 1, 2020)

Provincial Court

Notice – Contested Bail applications before Judicial Justices of the Peace (JJPs) (November 9, 2020)
Notice – COVID-19 – Update (November 2, 2020)
Notice – COVID-19 – Suspension and Reopening of Courts (October 30)
Notice – COVID-19 – Update to Judicial Justice of the Peace Weekday Bail Dockets (October 22, 2020)


Discipline Digests

Notice of Disbarment – Paul Richard Hesse
Notice of Undertaking – Ryan William Fawcett
Notice of Restrictions – John Sinclair

Reasons for Decision: Douglas Albert Mayer – Quality of Service/Failure to notify insurer


New Library Resources

New Online Titles

Emond’s Criminal Law Series

Prosecuting and Defending Sexual Offence Cases – 2nd ed. by Daniel Brown and Jill Witkin

This edition contains new chapters on historical sexual offences and cross-examination on private records, and reflects changes in Bill C-51 pertaining to third party records, other sexual history, and consent. Analysis of case law and relevant Criminal Code provisions have been integrated throughout in order to effectively guide readers through the flow of a sexual offence case.

From DesLibris

The Law of Contracts – 3rd ed. by John McCamus

The Law of Contracts, third edition, is a thorough revision of this authoritative text in Irwin Law’s Essentials of Canadian Law series. It includes discussion of recent jurisprudential developments in a variety of topics. The book also incorporates reference to recent Canadian cases on doctrines such as estoppel, privity, interpretation, and appellate review, and discussion of recent leading authorities dealing with such matters as contractual interpretation and the application of the basic principles of formation to e-commerce.”

New Print Titles

Picture of Sopinka on the Trial of an Action

Sopinka on the Trial of an Action – 4th Edition, by J. Kenneth McEwan

Sopinka on the Trial of an Action, 4th Edition remains a go-to reference for best practices and strategies in the courtroom at the trial level. The book covers everything from the structure of the trial, trial preparation, presenting the case at trial and trials where the case goes to the jury. Also included is a plethora of useful and handy appendices ranging from sample opening statements, cross examination techniques, addresses and questions to the jury, to many more.”

picture of Liability Insurance Law in Canada

Liability Insurance Law in Canada – 7th Edition, by Gordon G. Hilliker

Follows the same format as earlier editions and covers all aspects of liability insurance (excluding automobile), from general principles of insurance law and insurance contracts to specific clauses and types of policies. Hilliker examines the similarities and differences between the legislative regimes of each province; analyzes the jurisprudence and identifies preferred approaches; presents a select body of U.S. case law that can be used to fill in the gaps in Canadian jurisprudence; and includes a useful set of Insurance Bureau of Canada commercial liability policy forms.”

Substantive Law


Administrative Law

Cann v. Director, Fort Garry/River Heights, 2020 MBCA 101: Application for leave to appeal an order of the Social Services Appeal Board clawing back income assistance during the pandemic. Applicant was receiving income and shelter assistance due to a disability, and applied to the CERB for additional assistance, which he reported. He received $2,000 but ultimately returned $1,260 to the federal government. Director advised he did not qualify for the CERB and thus he had been overpaid in income assistance. Board concluded that CERB was earned income. Mainella, J.A. determined this was a question of law of significant importance for many Manitobans that it required a more thorough inquiry by a panel of the Court of Appeal. Also issued an order for assistance from Legal Aid counsel.

Paul Daly. Administrative Law Matters: Rates and Reserves: Manitoba (Hydro-Electric Board v. Manitoba (Public Utilities Board), 2020 MBCA 60. Case commentary, published Oct. 13, 2020.


Bankruptcy Law

Chandos Construction Ltd. v. Deloitte Restructuring Inc., 2020 SCC 25: Analysis of the anti-deprivation rule.  Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ:  “The test under the anti-deprivation rule has two parts: the relevant clause is triggered by an event of insolvency or bankruptcy, and the effect of the clause is to remove value from the insolvent’s estate.” – from the summary. Per Côté J. (dissenting): “A purely effects-based test gives too little weight to freedom of contract, party autonomy, and the elbow-room which the common law traditionally accords for the aggressive pursuit of self-interest.”

The Bankruptcy of Stanley Frank Ostrowski, 2020 MBQB 147: Motion by the bankrupt to annul his assignment in bankruptcy. Bankrupt realized he made a mistake and shouldn’t have made an assignment. At the time he didn’t disclose that he would be filing a suit for wrongful conviction, which, if successful, would allow him to pay off his creditors. Trustee and representative of OSB do not take a position. Creditors were given notice and none participated in proceedings. Motion granted.


Civil Litigation

Desjardins Financial Services Firm Inc. v. Asselin, 2020 SCC 30: Whether Court of Appeal was justified in intervening in Superior Court’s decision re class action. Per Wagner C.J. and Abella, Karakatsanis, Brown, Martin and Kasirer JJ.: Appeal should be allowed in part for the sole purpose of varying paras. 8 and 9 … to clarify the scope of the claim for punitive damages. Threshold for authorizing a class action in Quebec is a low one. Per Moldaver, Côté and Rowe JJ. (dissenting in part): Authorization again the Firm should be denied, and authorization against Management should be granted, but only on the claim for compensatory damages. 

Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29: Post-incorporation contracts – Test is the same for post-incorporation contracts as for any other agreement. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Martin and Kasirer JJ.: “…the applicable test for finding that a post-incorporation contract exists is the same as the one for finding that any other agreement exists at common law. The test is objective, and the offer, acceptance, consideration and terms may be inferred from the parties’ conduct and from the surrounding circumstances….” Rowe J. dissenting in part. 

Sagkeeng v. Government of Manitoba et al, 2020 MBCA 100: Application to increase length of factum from 30 pages to 47 pages as set out in QB Rule 29(1). Due to COVID-19, parties’ argument will be based solely on written materials. Applicant argues that two proceedings are being addressed in its appeal. Motion dismissed. 

Klimack et al v. Kroeker et al, 2020 MBCA 98: Appeal on decision over prescriptive easements: unregistered access road affecting three cottage properties. Extensive examination and analysis of prescriptive easements in Manitoba; use relied upon by claimant must be “as of right”. Appeal dismissed.

Penner v. Montcalm (Rural Municipality), 2020 MBCA 97: Motion for extension of time to file appeal book and factum re summary judgment decision on a tax sale. Plaintiff was having difficulties preparing materials due to pandemic. He had no access to the internet or libraries where he could access the internet. While Court recognized difficulty of preparation of materials in rural communities, notice of appeal does not demonstrate an arguable ground of appeal. Motion dismissed. 

The Director of Criminal Property and Forfeiture v. Gurniak et al, 2020 MBCA 96: Appeal from action for the civil forfeiture of criminal property: when should a stay be granted in a civil proceeding when there are concurrent criminal proceedings. By the time this appeal was heard the matter was moot, but CA agreed to hear it. Principal concern of motion judge was that derivative evidence could be obtained in the civil case that could be used in the criminal matter. Discussion of the difference between use immunity doctrine and derivative use immunity doctrine. Appeal allowed.

Lagimodiere et al. v. The Wawanesa Mutual Insurance Company et al., 2020 MBQB 154: Application for permission to add a party as defendant in this action, and application by one of the defendants for leave to file a third party claim against that party. Defendant FirstOnSite Restoration had sought creditor protection under the CCAA. FOS made an assignment in bankruptcy and was discharged Dec. 2019. No distribution was made to any unsecured creditors. Motions partially successful. 

Vincent et al. v. Red River Mutual, 2020 MBQB 153: Order by applicants seeking appointment of a dispute resoution representative. Respondent opposes, arguing no action for recovery under the policy was started prior to the limitation date, resulting in lapsing of applicants’ right to use dispute resolution process. Issue is over disagreement in amount of compensation paid and restoration of personal property after a house fire. Analysis of the limitation period in s.136.2(2) of The Insurance Act. Application dismissed. 

Kozak et al. v. Core Life Inc. et al., 2020 MBQB 149: Motion by defendants re jurisdiction. Plaintiffs live in Manitoba and Alberta; plaintiff corporation is a Manitoba corporation. Defendant is an Ontario company. Plaintiffs purchased shares in defendant’s corporation; negotiated an agreement that the indemnity would be construed under the laws of Manitoba. Motion dismissed.

Trunzo v. Satgunam, 2020 MBQB 144: Order seeking extension of limitation period to file a statement of claim for damages. Plaintiffs purchased house from defendant in 1998. In 2014, they had water damage which they fixed. In 2018, they discovered more extensive damage, leading to an expert opinion that the house posed a real and substantial danger to the occupants. Extensive analysis of The Limitations of Actions Act, s. 14(1). Leave granted. 

DSTB Inc. v. McGregor Landscaping & Design et al., 2020 MBQB 142: Issue of garnishment over assignment. Plaintiff obtained an order of garnishment over accounts receivable of defendant. Third party JCFS seeks a declaration that it purchased the receivables with a series of assignment agreements. Importance of decision: agreements were not drafted by a lawyer, yet the intent was discernible; there isn’t much judicial consideration of garnishment vs. assignment; argument of s. 347(1) of the Criminal Code (interest at a criminal rate); whether this constituted fraud. Detailed analysis by Grammond, J. on all points. 

6165347 Manitoba Inc. et al. v. The City of Winnipeg et al., 2020 MBQB 141: Motion by applicants to vary a previous order and motion by respondents to expunge some of the applicants’ evidence. Respondents’ motion is dismissed. Threshold to vary an order is very high. Grammond, J. varies para. 4 of her previous order to order that the SPC hold a fresh public meeting. Applicants request fine for respondents as a sanction; judge declines to so order. Enhanced costs to the applicants. 

Desrochers v. Desrochers, 2020 MBQB 140: Parties are tenants in common of three parcels of land. Plaintiff is asking for an order of sale; defendant opposes but is requesting an order of partition. Reference to Chevalier v. Chevalier as setting out the law of partition and sale. No way to fairly partition the land, therefore Menzies, J. issues an order for sale. 

Winnipeg (City) v. Caspian Projects Inc. et al., 2020 MBQB 131: Motion under QB Rule 63 for a stay of an Order pending appeal, relating to access and production of certain documents in the possession of a non-party. Only the “clearest of cases” deserve a stay of an interlocutory order. Includes test for determining answer. Applicants must prove there is an arguable case that the judgment under appeal is wrong. Appeal dismissed. 

Civil Litigation: Factum Length in the Court of Appeal, Supreme Advocacy – Court of Appeal Decision of the Week; Case comment on Sagkeeng v. Government of Manitoba et al


Constitutional Law

Fraser v. Canada (Attorney General), 2020 SCC 28: Discrimination based on sex: claimants are retired members of the RCMP who took maternity leave in the 1990s. They expected that job-sharing would be eligible for full pension credits but it wasn’t. They were unable to purchase full-time pension credit for their job-sharing service. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ: “…This arrangement has a disproportionate impact on women and perpetuates their historical disadvantage. It is a clear violation of their right to equality under s. 15(1) of the Charter.” – from summary. Côté, Brown and Rowe JJ. Dissenting.


Criminal Law

R. v. Reilly, 2020 SCC 27: Appeal of a stay of charges of assault causing bodily harm, granted because of systemic problems in the bail system in Alberta. Oral decision by Brown, J.: “…no basis for the Court of Appeal to interfere with the trial judge’s exercise of discretion…” 

R. v. Herntier, 2020 MBCA 95: Appeal of conviction by a jury of second degree murder, and the parole ineligibility term of accused’s sentence. Beard, J.A. reduces the number of grounds for appeal from 19 to 7. Also considers whether a juror can provide fresh evidence on appeal. This is a lengthy decision with significant analysis of many points, but in the end, the appeal was dismissed. 

R. v. Dram, 2020 MBCA 93: Appeal of sentence for possession of methamphetamine for the purpose of trafficking. Accused received sentence of four years’ incarceration and a concurrent sentence of 20 days for breach of recognizance. Accused asserts that sentencing judge erred by considering unproven aggravating facts, overemphasizing general deterrence, underemphasizing Gladue factors and imposed an unfit sentence. Standard of review is deferential. Leave for appeal granted, but appeal dismissed. 

R. v. Mason, 2020 MBQB 151: Trial for manslaughter. Accused relies on defence of self-defence. She suffered from PTSD and exhibited the symptoms of Battered Woman Syndrome. Crown must establish beyond a reasonable doubt that the accused did not act in self-defence. Crown submits that the stabbing was precipitated by anger and revenge. Expert evidence admitted in forensic pathology and clinical and forensic psychology, in particular with regards to PTSD and battered women syndrome. Ultimately, McKelvey, J. did not believe Crown had proved its case beyond a reasonable doubt; accused is acquitted. 

R. v. Pearase, 2020 MBQB 138: Accused is charged with one count of sexual assault. Issue is whether the accused had an honest but mistaken belief that complainant had communicated consent. McCarthy, J. found that the Crown proved that complainant lacked the requisite capacity to consent. Analysis  moves to whether accused had an honest but mistaken belief that she had consented. Evidence led included video of event. Accused is found guilty. 

R. v. Oghieakhe, 2020 MBPC 58: Sentencing decision for accused after being found guilty of sexual assault after trial. Issue of appropriate sentence also will take in to account that accused will likely be subject to removal after the completion of his sentence. Court determined accused had high moral blameworthiness but also perceived him as an excellent candidate for rehabilitation. Sentence of two years less a day plus 24 months’ supervised probation. 

R. v. J.J.D., 2020 MBPC 54: Sentencing decision for Aboriginal youth with no prior criminal record. Accused was originally charged with manslaughter, but pled guilty to assault causing bodily harm. He participated in a beating instigated by another youth that led to the death of the victim. Given credit of 1.25 days for 251 days of pre-trial detention; sentence of 9 months in custody (no further custody necessary) plus supervised probation order for next two years. 

R. v. Bigl, 2020 MBPC 51: Did Crown prove beyond a reasonable doubt that accused had knowledge and control of drugs seized by police and whether money seized can be proven to be proceeds from drug trafficking. Accused did not own either the vehicle or house where property was found. Accused is acquitted. 

R. v. Plaha, 2020 MBPC 50: Voir dire re impaired driving charge and driving with an alcohol reading of .08 or more. Charter motion alleging violation of right to counsel (s.10(b)) and application to exclude the breath sample evidence. At end of trial Crown stayed the impaired driving charge but other charge remained. RCMP had received a third party complaint about possible impaired driving and pulled over a driver and requested an ASD screening. Analysis of meaning of being offered “right to counsel” and satisfaction with it. Evidence is excluded. 

R. v. Bear, 2020 MBPC 46: Dangerous offender application. Respondent admits that this offence was a serious personal injury offence and that he has a high likelihood of harmful recidivism, but that his conduct should not be designated as dangerous but rather as a long-term offender. Respondent has been consistently non-compliant with probation supervision programs. Risk assessment places him at a high risk of reoffending violently. Decision on sentencing is between a determinate sentence followed by long-term supervision or an indeterminate sentence. Mr. Bear is sentenced to an indeterminate sentence. 

R. v. C.P., 2020 MBPC 45: Sentencing decision for a youth who pleaded guilty to robbery and other charges. Crown is seeking a custodial sentence followed by a year of probation. Defence requests a probationary sentence. Victim Impact Statement by victim of armed robbery shows extent of terror he still feels. Mitigating factors include youth’s guilty plea, Gladue factors, and compliance with strict release conditions as well as remorse. Devine, P.J. determines to give accused least restrictive sentence that is capable of achieving the purpose of holding him accountable, most likely to rehabilitate and reintegrate him into society and promote a sense of responsibility. 

R. v. Harder, 2020 MBPC 43: Voir dire to determine whether accused’s Charter rights had been violated over impaired driving arrest before being administered an ASD. Court found no breach of s.8 or s. 10(b). 

R. v. Wood, 2020 MBPC 42: Application for delay based on Jordan where trial is scheduled to take place 17 months and 27 days after the charge was laid. Crown agrees that defence was diligent in moving the case to trial. Crown’s position is that the net delay is less than 13 months. Includes analysis of the issue of attributing co-accused delay as well as whether the time to trial markedly exceeded what is reasonable. Court determined it did not; application dismissed.


Family Law

J.D.B. v. D.K.M., 2020 MBCA 102: Further hearing in appeal of review of final order made in 2018. Review order was found to be in error regarding custody of daughter. Appeal allowed in part. 

Zilke v. Epp, 2020 MBCA 99: Respondent is requesting an adjournment for the appeal of an order finding her in contempt of court orders dealing with custody and access, as well as the penalty imposed. Petitioner is opposed, as appeal was filed over a year ago. Court invited parties to resolve the matter which they were able to do. Appeal granted, varying the order. 

Marrese v. Dyck, 2020 MBCA 94: Respondent appealed a final order made under The Family Maintenance Act, requiring him to pay child support plus a further amount towards arrears. Issue over financial disclosure; respondent claimed expenses not supported by the amount he claimed in income. Trial judge identified evidence explaining why he accepted that the respondent’s true income was much higher than what he reported. Appeal dismissed. 

Zheng v. Yang, 2020 MBQB 146: Divorce Act proceeding, with a number of issues resolved before trial. Remaining matters are income quantification of petitioner to determine child support obligation; income determination of respondent to assess entitlement and quantum of spousal support; and whether money given to parties to purchase family home was a gift or a loan. Parties had been supported financially by petitioner’s parents. Now petitioner presented a promissory note signed between him and his parents indicating that money used to purchase family home was a loan and not a gift. Respondent claims she thought it was a gift and would not have accepted it if it had been a loan. Analysis of credibility of all witnesses. Thomson, J. finds respondent has made her case that the money was a gift.


Labour & Employment

Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26: Appeal re constructive dismissal –whether damages for breach of duty to provide reasonable notice include incentive bonus. “This appeal bears on the redress available to an employee who, by reason of the circumstances of his departure from a job he had held for many years, is treated in law as if he were dismissed. By extension, it concerns some of the proper contours of an employer’s common law right to determine the composition of its workforce.” – para. 1. Appeal allowed. Kasirer J. (Wagner C.J. and Moldaver, Côté, Brown, Rowe and Martin JJ. concurring). 

Isaacson et al v. Credential Insurance Services Inc., 2020 MBCA 103: Appeal of dismissal of claim for distribution of commissions post-termination. Plaintiff claims commissions vested with them. Issue of contractual interpretation in employment contracts and Agency Distribution Agreement. Appeal dismissed.


Wills, Trusts & Estates

Dobrowolski v. Dobrowolski, 2020 MBCA 105: Appeal over dispute between estate of deceased and one of the deceased’s children. Issue is over whether deceased invested in property with as tenants in common or gifted the investment. Trial judge relied in hearsay as parties to intent had passed away. Reliability and weight of hearsay evidence was evaluated along with any corroborative evidence. Trial judge had found that deceased had documented a business relationship, leading him to find for the plaintiff. Analysis of the treatment of hearsay evidence. Also appeal of award of double costs. Appeal dismissed.

The Estate of Denise Joanne Pynenburg et al. v. Donald Rocan Salkeld, 2020 MBQB 150: Motion for summary judgment by estate. Parties were in a common law relationship for 21 years, ending in August 2003. They entered into a settlement agreement signed in 2007. Denise died three years later and her estate sued to enforce defendant’s obligations under the agreement. He contends the obligation ended upon the death of Denise. Rempel, J. is satisfied this can be resolved by summary judgment through affidavit evidence and cross-examination on the affidavits. Plaintiffs were mostly successful.


Legislation


Federal

43rd Parliament, 2nd Session

C-9 An Act to amend the Income Tax Act (Canada Emergency Rent Subsidy and Canada Emergency Wage Subsidy)
Progress: Third Reading in the House of Commons
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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 Commons
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43rd Parliament, 2nd Session
S-1001 An Act respecting Girl Guides of Canada
Short Title: Girl Guides of Canada Act
Progress: Second Reading in the Senate
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43rd Parliament, 2nd Session
C-228 An Act to establish a federal framework to reduce recidivism
Short Title: Reduction of Recidivism Framework Act
Progress: Introduction and First Reading in the House of Commons
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43rd Parliament, 2nd Session
C-251 An Act to continue VIA Rail Canada Inc. under the name VIA Rail Canada and to make consequential amendments to other Acts
Short Title: VIA Rail Canada Act
Progress: Introduction and First Reading in the House of Commons
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43rd Parliament, 2nd Session
S-2 An Act to amend the Chemical Weapons Convention Implementation Act
Progress: Introduction and First Reading in the Senate
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43rd Parliament, 2nd Session
S-213 An Act to amend the Department for Women and Gender Equality Act
Progress: Introduction and First Reading in the Senate
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43rd Parliament, 2nd Session
S-216 An Act to enact the Modern Slavery Act and to amend the Customs Tariff
Short Title: Modern Slavery Act
Progress: Introduction and First Reading in the Senate
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43rd Parliament, 2nd Session
S-217 An Act to amend the Canada Labour Code (successive contracts for services)
Progress: Introduction and First Reading in the Senate
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43rd Parliament, 2nd Session
S-207 An Act to amend the Criminal Code (independence of the judiciary)
Progress: Introduction and First Reading in the Senate
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Provincial

42nd Legislature, 3rd Session

No.Sponsored byAs proposed   (Click PDF for the bilingual version)As enacted
1Hon. Mr. PallisterAn Act respecting the Administration of Oaths of Office — FORMAL BILL (not printed)
2Hon. Mr. Fielding
Minister of Finance
The Budget Implementation and Tax Statutes Amendment Act, 2020
 • amendment(s) adopted at Committee Stage
PDF 
3Hon. Mr. Helwer
Minister responsible for the Civil Service
The Public Service ActPDF 
4Hon. Mr. Fielding
Minister of Finance
The Retail Business Hours of Operation Act (Various Acts Amended or Repealed)PDF 
5Hon. Mr. Cullen
Minister of Justice
The Liquor, Gaming and Cannabis Control Amendment Act (Cannabis Social Responsibility Fee)PDF 
6Hon. Mr. Cullen
Minister of Justice
The Liquor, Gaming and Cannabis Control Amendment ActPDF 
7Hon. Ms. Squires
Minister of Municipal Relations
The Planning Amendment ActPDF 
8Hon. Mr. Fielding
Minister of Finance
The Pension Benefits Amendment ActPDF 
9Hon. Mr. Cullen
Minister of Justice
The Opioid Damages and Health Care Costs Recovery ActPDF 
10Hon. Mr. Friesen
Minister of Health, Seniors and Active Living
The Regional Health Authorities Amendment Act (Health System Governance and Accountability)PDF 
11Hon. Mr. Fielding
Minister of Finance
The Workplace Safety and Health Amendment ActPDF

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