Province Introduces Amendments To Police Services ActNovember 29, 2021 – “The Manitoba government is introducing amendments to the Police Services Act that would strengthen the Independent Investigations Unit (IIU) and support greater responsiveness and accountability in policing across the province”
Government Introduces Legislative Amendments That Would Address MMIWG National Inquiry Calls For JusticeNovember 26, 2021 – “The Manitoba government has introduced amendments to the Path to Reconciliation Act that would establish the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) as a key component of the government’s approach to advancing truth and reconciliation”
Manitoba Government Will Repeal The Public Services Sustainability ActNovember 24, 2021 “The Public Services Sustainability Act was introduced and passed in 2017 but was never in force. While the constitutionality of this never-proclaimed legislation raises important issues on the range of legislative tools open to government – as it manages the economic pressures facing all Manitobans – it is now time for a different approach, the minister noted.”
Manitoba Confirms No Appeal in Carbon Tax Case November 17, 2021 – “Manitoba will not be filing an appeal from the recent Federal Court decision on its challenge of Ottawa’s original assessment of the Made-in-Manitoba Climate and Green Plan, Premier Heather Stefanson announced today. Manitoba is developing its policy approach to the new federal legislative and regulatory framework with its Dec. 31, 2022, timeline and looks forward to constructive negotiations over the months ahead, Stefanson noted.”
“Over the coming decades, the law surrounding motor vehicles is going to go through profound changes as autonomous vehicles become common and issues of law deriving from advances in technology inevitably arise. A new area of law will be needed, and with it, an assessment of how the current law can be adapted. Autonomous Vehicles: Self-Driving Cars and the Law of Canada will serve as a ready resource as courts and litigants begin the journey down this new road.”
“Discrimination Stories: Exclusion, Law, and Everyday Life explores diverse legal cases brought before courts and human rights tribunals to help us understand the development of anti-discrimination law in Canada. Drawing on the complexity and power of discrimination stories, this book is designed to expand our collective knowledge of the evolving legal concepts at the heart of equality law.”
Book Reviews
Review taken from the Canadian Law Library Review Volume 46, No. 3
“A strong point of this book is that the cases are all relevant and interesting, and each analysis differs enough from the original opinion. Each rewritten judgment makes enough relevant points that it is easy for readers to wish that they had been the actual decisions.”
This session will get participants to “think outside the box” to go beyond the traditional legal information tools and resources (CanLII, Quicklaw, Westlaw, etc.) and will cover the following topics: – Understanding the basic concepts of “archives” and “records”; – Identifying various kinds of archival materials or resources that may be useful in legal research; – Locating reliable and trustworthy sources; – Benefits of using archives and non-traditional resources.
Please RSVP (PRE-REGISTRATION IS REQUIRED) to the Manitoba Bar Association online at www.cbapd.org.
Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse),2021 SCC 43 : Discrimination claim brough on behalf of a public figure with disability against a professional comedian who mocked some of his physical disabilities. SCC split 5-4. PerWagner C.J. and Moldaver, Côté, Brown and Rowe JJ:
[7] In this case, we are of the opinion that the elements of a discrimination claim under the Quebec Charter have not been established. We would therefore allow the appeal.
Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting):
[119] For the reasons that follow, we would dismiss the appeal. The central question is whether the impairment of the equal exercise of the right to dignity is sufficiently serious, or whether it is justified by the comedian’s freedom of expression. In the circumstances of this case, the widely disseminated taunting of a 10 to 13 year‑old disabled child that plays on dehumanizing notions associated with his disability clearly meets this threshold.
Madison Holdings Ltd. v Winnipeg (City of),2021 MBCA 94: Appeal by City re decision of the Land Value Appraisal Commission for expropriation of the applicant’s business. Issues concern assessment of disturbance damages and how to address the principle of betterment. Detailed analysis of calculation of disturbance damages and compensation for time spent by owner on their involvement in the expropriation. City’s appeal allowed in part, reducing disturbance damages award to give credit for market value of expropriated property and deducting award for owners’ time. Respondent Madison is substantially successful; Spivak, J.A. grants solicitor-client costs.
Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada,2021 SCC 47: Issue of promissory estoppel and waiver by conduct in defending a motor vehicle accident. Insured was killed in a motorcycle accidence. His insurer proceeded to defend his estate in two lawsuits filed by two people injured in the accident. Three years after the accident, the insurer learned that the insured had been drinking just prior to the accident and ceased defending his estate and denied coverage. Trial judge found waiver by conduct and did not consider estoppel argument; found that insurer had waived its right to deny full coverage. Court of Appeal overturned. SCC dismissed the appeal.
Beaulieu et al. v. Winnipeg (City of) et al.,2021 MBCA 93: Motion for admission of further evidence. Analysis of the test for the admissibility of further evidence in civil appeal cases. Issue of conflict of interest when joint defence (city and a police officer) may prefer one party’s interests over the other. Motion dismissed.
Tataskweyak Cree Nation v. Intact Insurance Company,2021 MBCA 91: Defendant appeals dismissal of motion for delay. Two actions were consolidated, but consent consolidation was not filed in the Court. Motion judge found agreement to consolidate constituted a “significant advance”. CA found no merit to appeal; appeal dismissed.
Capitol Steel Corporation v. R. Litz & Sons Company Ltd. and F.A. Roberts & Associates Ltd. et al, 2021 MBQB 238: Two motions filed by the defendant. The first, to dismiss for delay, and the second to strike certain portions of the affidavit evidence filed in defence of the delay motion. Evidence to be struck include confidential mediation materials and other documents over which defendants claim settlement privilege. Some documents are struck while the rest will be allowed. Motion to dismiss for delay denied.
Gray v. Attorney General of Canada et al.,2021 MBQB 235: Motion by defendant to dismiss due to delay. Incident happened in 2003; statement of claim was filed in 2005. Examination of new Queen’s Bench Rule 24.02, the “long delay” rule; analysis of the “three year period of inactivity”. Motion granted; action dismissed.
Garang v. Grimolfson,2021 MBQB 234: Motion by defendant to strike statement of claim in its entirety pursuant to Queen’s Bench Rule 25.11(1). Plaintiff’s statement of claim seeks $5 million for intentional and prolonged infliction of emotional and psychological suffrage plus a declaration of parentage and custodial relief. Events occurred in 2006. Claim struck.
Bird Construction Group v. Trotter and Morton Industrial Contracting Inc.,2021 MBQB 233: Dispute over liens filed by respondent over contract performance. Applicant requested an order vacating the liens upon providing lien bonds with face values equivalent to the two liens. Respondent opposed the application. Project is on Crown land; lien is “registered” against owner’s holdback account. Issue is whether the security should be in the form of cash or a lien bond. Partial payment of cash paid to court; remainder to be held in lien bond.
BP General Partner Ltd. et al v. Aztekk Concrete Works Ltd.,2021 MBQB 232: Motion to set aside default judgment and noting of default. Defendant states it has an arguable defence and intends to file a counterclaim, and no prejudice or irreparable harm will result to the plaintiff. Analysis of Queen’s Bench Rule 19.08 re court’s discretion to set aside default judgments. Defendants are successful.
Centum Above All Financial Inc. et al v. Canada Revenue Agency,2021 MBQB 230: Plaintiffs filed a statement of claim against the defendant seeking general damages of $1.4 million. Defendant brought a motion to strikeout the amended statement of claim in its entirety, without leave to amend. Claim alleges a number of unparticularized torts; defendant claims it fails to disclose a reasonable cause of action, is scandalous, frivolous or vexatious, and is an abuse of process. Analysis of Queen’s Bench Rule 25.06(1) and 25.11(1). Motion granted.
Bradley Brown et al. v. General Electric Canada Company,2021 MBQB 227: Motion to compel certain of the plaintiffs to answer certain questions in examinations for discovery. Issue is governed by Rule 31.06(1) of the Queen’s Bench Rules. Plaintiffs argue that they are not required to answer the questions because they seek evidence that is irrelevant and inadmissible in the action. Defendant argues that the concept of relevance must be broadly construed. Motion granted.
Alvare v. St. Boniface Hospital Inc. et al.,2021 MBQB 220: Application for an interim injunction requiring respondents to remove a DNR order and provide all life-sustaining care to applicant. Discussion of legal principles involved and physician’s obligations as set out in the College of Physicians and Surgeons of Manitoba Standard of Practice regarding withholding and withdrawing life-sustaining treatment. Motion dismissed.
295 Garry Street Inc. v. Mittal et al.,2021 MBQB 215: Twin motions for summary judgment. Plaintiff initiated an action for trespass and demand removal of certain equipment including a diesel generator; defendants say equipment is within their easement. Conflict arises over vagueness of easement agreement. Plaintiff’s summary judgment motion allowed.
R. v. Albashir,2021 SCC 48: Issue of whether the result of the unconstitutionality of s. 212(1)(j) of the Criminal Code as found in Canada (Attorney General) v. Bedford, 2013 SCC 72 should be applied retroactively. Accused were charged with numerous offences, some occurring during the one-year period of suspension. Trial judge quashed the charges. Court of Appeal allowed the Crown’s appeals and entered convictions. SCC held appeals should be dismissed. From the headnotes:
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: In light of the purpose animating the suspension of the declaration of invalidity in Bedford, the presumption of retroactivity of a declaration of invalidity is rebutted by necessary implication. The purpose of a suspension must be considered in determining whether the declaration must logically operate retroactively or purely prospectively. In Bedford, the Court’s remedy was purely prospective, because the purpose of the suspension — avoiding deregulation that would leave sex workers vulnerable — would be frustrated by a retroactive remedy.
Criminal Law
R. v. Parranto,2021 SCC 46: Appeal on sentencing ranges. Accused pleaded guilty to various drug trafficking offences. SCC found the sentences at trial were demonstrably unfit and Court of Appeal’s intervention was appropriate. Per Wagner C.J. and Brown, Martin and Kasirer JJ:
[3] The appellants and several interveners sought to discredit the starting‑point approach by arguing that it has undesirable results, including higher rates of incarceration for Indigenous and other offenders. These criticisms lose their force, however, if starting points are properly treated as non‑binding guidance by both sentencing and appellate courts…
[4] Accordingly, there is no need to disavow the starting‑point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence.
PerMoldaver and Côté JJ.(concurring):
[84] I would dismiss the appeals from sentence and uphold the sentences of 10 years and 14 years imposed by the Court of Appeal. The sentences imposed by the sentencing judges in both cases were demonstrably unfit….
[86] I find it necessary, however, to write separately to raise what I believe to be an issue of overriding concern in these cases. Specifically, I wish to focus on the gravity of largescale trafficking in fentanyl for personal gain and the need to impose severe penalties, ranging from mid‑level double digit penitentiary terms up to and including life imprisonment, for those who do so.
PerRowe, J. (concurring):
[102] These appeals provide an opportunity for this Court to resolve the “issue of importance” it identified in R. v. Friesen, 2020 SCC 9, at para. 41: are “starting points . . . a permissible form of appellate guidance”? I would answer this question in the negative. The starting‑point approach pioneered by the Court of Appeal of Alberta is, in theory and in practice, contrary to Parliament’s sentencing regime and this Court’s jurisprudence…
[105] My colleagues say that they are putting forth “a revised understanding” of starting points (Brown and Martin JJ.’s reasons, at para. 3). I am skeptical, however, as to the impact this so‑called revised approach will have. This Court has provided guidance on numerous prior occasions, yet the Court of Appeal’s approach has remained unchanged (R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; Friesen). As a result, in my view, to offer yet more helpful suggestions to ameliorate the problems inherent in starting-point methodology is naïve. The problems are baked into the methodology and they are rooted in the purposes for which it was developed and for which it has been maintained. There is only one effective response: to say that starting-point methodology can no longer be used. Being definitive in so saying is long overdue.
Per Abella and Karakatsanis, J.J. (dissenting):
[206] In my view, neither trial judge made an error in principle, nor was either sentence demonstrably unfit. In both appeals, the Court of Appeal did not act with restraint and deference but rather assumed a scrutineering, interventionist posture. The trial judges were faulted for their reasonable exercises of discretion, their factual findings were disregarded, and their demonstrated appreciations of the gravity of the offences before them were ignored. Both appeals should therefore be allowed with the original sentences restored.
R. v. Cowan,2021 SCC 45: Appeal by accused as of right and appeal by Crown. Accused was arrested in relation to a robbery by others and acquitted. Court of Appeal set aside the acquittal and ordered a new trial, limited to the question of the accused’s guilty as a party. Per Wagner C.J. and Moldaver, Côté, Martin and Kasirer JJ.:
[7] For the reasons that follow, I would dismiss Mr. Cowan’s appeal and allow the Crown’s appeal. I am in agreement with the majority of the Court of Appeal that the trial judge committed an error of law in his analysis of party liability, which had a material bearing on the acquittal. The appropriate remedy is therefore to set aside the acquittal and order a new trial. However, in my respectful view, the new trial must be a full retrial.
Per Brown and Rowe JJ. (dissenting):
[75] I would allow the appeal by Mr. Cowan and restore his acquittal. I would do so for the dissenting reasons of Justice Jackson, which I adopt, except for para. 61.
R. v. Abdisalam, 2021 MBCA 97: Appeal of sentence for conviction of robbery with a weapon. Accused believes judge did not take into account consequences based on his immigration statuts, overemphasized his youth record and underemphasized his undiagnosed PTSD. Court of Appeal found no error and that the sentence, although on the high side, was fit. Leave to appeal granted; appeal dismissed.
R. v. Roulette,2021 MBCA 95: Appeal by accused of conviction and sentence. Issue on conviction is whether trial judge unreasonably dismissed an available inference that should have led to reasonable doubt, i.e. it was an accident. Crown agrees and joins in asking for an acquittal. Conviction is set aside and acquittal entered; sentence appeal dismissed as being moot.
R. v. Lewyc-Sullivan,2021 MBCA 92: Request for leave to appeal sentence, arguing that judge failed to give sufficient weight to principle of rehabilitation. Accused was found guilty of possession of cocaine for the purpose of trafficking. Standard of review for sentencing decisions is deferential. Despite accused’s rehabilitation, judge concluded that deterrence and denunciation were paramount considerations. Judge imposed a sentence below the appropriate sentencing range. Leave to appeal granted, appeal dismissed.
R. v. B. (H.E.J.E.),2021 MBQB 223: Accused found guilty on two counts of second degree murder, committed when he was 16 years old. Crown applies for an order that he be sentenced as an adult. Legal principles summarized by Hamilton, J.A. in R. v. McClements, 2017 MBCA 104. Evidence submitted included the facts essential to the jury’s guilty verdict; two Gladue reports; Manitoba Corrections Incident Reports as well as a victim impact statement. Crown application granted.
R. v. Assi,2021 MBQB 217: Sentencing decision; appropriate period of parole ineligibility for conviction for second degree murder and appropriate sentence for count of attempt to commit murder. Crown seeks parole ineligibility raised to 13 years and a 10 year concurrent sentence. Defence ask that parole ineligibility remain at the minimum of 10 years and an eight year concurrent sentence. Discussion of s.745.4 of the Criminal Code for factors to be considered. After considering mitigating and aggravating factors, Turner J. sentences accused to life imprisonment without eligibility for parole 11 years, plus 8 years concurrent for the other charge.
R. v. Franklin,2021 MBPC 58: Sentencing decision where accused pled guilty to aggravated assault. Accused is Indigenous with multiple mental health diagnoses and a substance abuse disorder. Detailed analysis of sentencing ranges for the offence as well as the effect of the accused’s life experiences as mitigation. Sentence is effectively three years plus two years probation, calculated as 330 days pre-sentence custody, two years less a day custodial plus two years probation.
R. v. Hanakowski,2021 MBPC 56: Trial for the offences of child luring and making sexually explicit material available to a child. Three elements to the offence of luring, and each element must be established beyond a reasonable doubt (R. v. Legare, 2009 SCC 56). Central issue is whether the Crown has proven that the accused believed the “child” (an undercover RCMP officer) he was texting was under 16. Accused testified in his defence, stating that the text messages were a joke. Accused found guilty.
R. v. Silva,2021 MBPC 54: Sentencing decision where accused pled guilty to causing bodily harm while driving impaired. He is a permanent resident from Portugal and now faces deportation. Sentencing objectives are denunciation and deterrence as well as proportionality. Victim was seriously injured; accused’s blood alcohol level was extremely high. Extensive analysis of case law, noting that none considered collateral immigration consequences. Sentenced to six months less a day to avoid being unable to appeal a deportation order, and six months supervised probation.
Bonneteau v. Bonneteau,2021 MBQB 237: Master’s report on Family Property Act accounting. Only issue left is the shareability of the business interests of the respondent. Parties had signed a pre-nuptial agreement in 1992. Master is only to determine if the agreement extended to cover the business assets at issue. Issue of interpretation of the contract based on its language and other evidence when the language is ambiguous. Master finds that part of the assets are covered, while the other part is not.
Nolin v. Nolin,2021 MBQB 222: Master’s report on family property accounting. Reference order sets the date of valuation at January 1, 2015. Most of the listed assets and liabilities were resolved; only contested issues were a vehicle and its loan, the respondent’s Visa account and the respondent’s shares in a Manitoba corporation.
Nicholson v. Nicholson,2021 MBQB 214: Issues of child support; respondent requests a retroactive adjustment. Detailed s.9 analysis of the Child Support Guidelines. Thomson, J. found this was not an appropriate case for a retroactive adjustment to child support in the respondent’s favour.
An Act respecting First Nations, Inuit and Métis children, youth and families (the Act) came into force in January of 2020, containing many innovative provisions aimed at affirming the jurisdiction of Indigenous peoples and providing services for Indigenous families. Groundbreaking provisions within the Act create a positive obligation on the government to provide services to Indigenous children who otherwise would have been apprehended due to their socioeconomic status. However, the Act lacks a concrete funding provision. This legislative comment conducts an exercise in statutory interpretation to conclude that the current omission of a funding provision within the legislation is at odds with the nature, purposes, and context of the legislation.
Wills, Trusts & Estates
Kuchinka v. Davies,2021 MBQB 224: Applicant moves for declaration that the respondent has breached her fiduciary duty as executrix and trustee for the estate of the deceased. Applicant is the great-grandaughter of the testator who died in 2002 and left a residual bequest that was to be given to her when she turned 18. Respondent did not respond to queries by applicant’s mother over the years as to how the inheritance was invested. Applicant is successful; entitled to solicitor and her own client costs payable personally by respondent.
Genevieve Cantin. Liberals reintroduce bill to streamline and add sanctions to federal judicial discipline process. The Lawyer’s Daily. November 11, 2021. – “The new bill would, according to its summary, amend the federal Judges Act to establish a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge’s removal from office, and change the process via which the Canadian Judicial Council (CJC) recommends to the federal minister of justice that a judge be removed.”
Federal
House of Commons
Second reading
Government bills
C-2An Act to provide further support in response to COVID-19 C-3 An Act to amend the Criminal Code and the Canada Labour Code
Senate
Second reading
Government bills
S-2 An Act to amend the Parliament of Canada Act and to make consequential and related amendments to other Acts S-3 An Act to amend the Judges Act C-4An Act to amend the Criminal Code (conversion therapy)
Cases in Brief are short summaries of the Court’s written decisions drafted in reader-friendly language, so that anyone interested can learn about the decisions that affect their lives. They are prepared by communications staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.
These summaries cover decisions from 2018 on. This looks like a handy resource to refer to clients or self represented litigants who need to understand a decision but are struggling to read the legalese. Or lawyers who want to be up on the law and it’s not in their area of practice.
Lawyers and the public can now use the main entrance located at 408 York Avenue. The new entrance provides better accessibility, signage, and improved security screening areas. Please note that current COVID-19 protocols limit access to Manitoba court buildings to those dealing with court matters.
Manitoba Government making changes to Family Maintenance Act to include parentage legislation for children conceived through assisted reproduction.
First criminal conviction for forcibly coughing on someone with the intention of spreading COVID-19 has been decided in Alberta Provincial Court.
Notices
Court Notices & Practice Directions
All COVID-19 Notices and Practice Directions are available here.
A new eBook celebrating the 50th anniversary of the Federal Court of Appeal has been added to our online Irwin Law Collection on vLex.
“This book was prepared for the celebration of the fiftieth anniversary of the Federal Courts in 2021. Seventy-eight current and retired judges and prothonotaries on the two courts were interviewed and are referred to throughout the book. The authors present a brief history of these courts and their predecessor — the Exchequer Court of Canada — and an overview of the courts’ jurisdiction, decision-making trends, and unique attributes. There are chapters on each of the courts’ specialties — administrative law, immigration and refugee law, intellectual property, security and intelligence, Indigenous issues, the environment, admiralty, labour and human rights, and tax.”
From Heinonline
“HeinOnline has made a special arrangement with Edward Elgar Publishing to offer comprehensive coverage of selected Elgar legal journals. 12 Elgar titles have been added to HeinOnline’s Law Journal Library with a three-year embargo.”
This collection has already had new journals added to it including Competition Law & Policy Debate, Renewable Energy Law and Policy Review, and European Energy & Climate Journal
Book Reviews
Review taken from the Canadian Law Library Review Volume 46, No. 3
By the Court: Anonymous Judgments at the Supreme Court of Canada. By Peter McCormick and Marc D Zanoni. Vancouver: UBC Press, 2019. xv, 252p. Includes bibliographic references and index. ISBN 9780774861717 (hardcover) $89.95. ISBN 9780774861724 (softcover) $32.95. ISBN 9780774861748 (EPUB) $32.95. ISBN 9780774861731 (PDF) $32.95.
Reviewed by Ann Marie Melvie
“Marc D Zanoni, with Peter McCormack as his thesis supervisor, was working on a Master of Arts degree in political science at the University of Lethbridge. Zanoni’s thesis topic involved “an examination of the Supreme Court of Canada’s By the Court decisions—those decisions that are not attributed to any specific individual but mysteriously and cryptically to the Court” (p xi). During his literature review, Zanoni was surprised to discover that there was no academic literature on the topic! There were no books, no articles, and no “focused discussion” of the phenomenon. After various twists, turns, and discoveries in the research process, Zanoni and McCormick ended up writing this book, a well-researched exploration of By the Court decisions of the Supreme Court of Canada (SCC).”
2021 Isaac Pitblado Lectures: A Shot in the Arm – Can We Achieve Client Immunity in Contract Law? – November 26, 2021
Jointly presented by The Law Society of Manitoba, the Manitoba Bar Association and the University of Manitoba, Faculty of Law
Whether you graduated in this century or the last, contract law has changed since you were in law school. The 2021 Pitblado Lectures will provide a comprehensive update on an array of contracts topics. From the rights and obligations arising from the duty of good faith, to the validity of e-signatures, to what an international arbitration clause really means for your client, the sessions will offer thought-provoking discussion and useful take-aways. The Lectures will also address COVID-related concerns, particularly in the employment law context, as we start to move out of the pandemic.
Please join us for a day all about contract law updates with a focus on issues that will be of particular interest to anyone with a solicitor’s practice.
Lall v. Manitoba Public Insurance Corporation et al,2021 MBCA 89: Appellant seeks leave to appeal decision of AICAC declining to extend 90 day time limit for filing appeal. Decision of internal reviewing officer was issued in May 2016. Notice of appeal filed in April 2020. Explanation of delay included difficulty navigating the process. After reviewing her medical file, appellant realized the reviewing officer was missing a relevant document.
The Law Society of Manitoba v. Brian A. Langford,2021 MBCA 87: Appeal from conviction by Discipline Committee and penalty of disbarment. Appellant has statutory right to appeal. Standard of review as described in Housen v. Nikolaisen, Vavilov, and Histed v. Law Society of Manitoba at para. 34-37. Pfeutzner, J.A. found no merit to the appeal.
Waraich v. Director of Employment Standards,2021 MBCA 82: Question of issue estoppel in a civil proceeding as a result of a decision in a prior administrative proceeding. This is a dispute over unpaid wages, where an employment standards officer found the “employer” was the claimant in her personal capacity as opposed to a corporation. There were five orders in total, two of which were appealed and resolved through mediation. The other three were never appealed, and the Director filed the orders which then became an enforceable judgment. The Director garnished funds from the claimant’s personal bank account to satisfy the judgment. Claimant then commenced a claim under The Court of Queen’s Bench Small Claims Practices Act and was successful. Question being decided in the civil claim was the same as the administrative proceeding under TheEmployment Standards Code. Appeal allowed.
Manitoba Public Insurance Corporation v. The City of Winnipeg,2021 MBQB 212: Appeal of decision by respondent designating a property owned by the applicant as a historical resource. Applicant’s position claims that as an agent of the Crown its assets can’t be bound. Respondent accepts this position but submits that the court should dismiss the matter. Issue is a question of law. Appeal allowed.
Bankruptcy Law
Wolfe et al. v. Taylor et al.,2021 MBCA 83 : Appeal of decision related to the validity and amount of intercompany debt as found by the liquidator. Appellant alleges that the liquidation judge erred in approving the intercompany debt. Two issues to be determined: Should there be a full hearing with an in-depth audit; and how to resolve the intercompany debt issue. Appeal dismissed.
The Bankruptcy of Steven Otto Galloway, 2021 MBQB 213: Application for discharge from bankruptcy opposed by Trustee and OSB on basis applicant has not accurately disclosed his income. Bankrupt acknowledged that he did not provide information on a monthly basis but indicated there was a change in his trustee part way through and he didn’t understand he was obligated to do so. He also disagrees with the OSB estimate of his income. Registrar finds he did not adequately report his income, makes his discharge conditional upon payment of $5,000 to the Trustee and suspended his discharge for six months.
Civil Litigation
Nelson (City) v. Marchi,2021 SCC 41: Plaintiff was injured climbing over a snowbank left by municipality’s snow-clearing efforts. She sued city for negligence; trial judge dismissed her claim. Court of Appeal concluded trial judge erred and ordered a new trial. Appeal dismissed. Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Martin and Kasirer JJ.
[5] We agree with the Court of Appeal that the trial judge erred on all three conclusions. On duty of care, the relevant City decision was not a core policy decision immune from negligence liability. The City therefore owed Ms. Marchi a duty of care. On standard of care and causation, the trial judge’s analysis was tainted by legal errors. As key factual findings are required, this Court is not well placed to determine the standard of care and causation issues. We would therefore dismiss the appeal and order a new trial in accordance with these reasons.
6362222 Canada Inc. v. Prelco Inc.,2021 SCC 39: Issue over doctrine of breach of fundamental obligation in a contract: Is a non-liability clause in a contract valid in respect of a breach of fundamental obligation in Quebec civil law? Wagner C.J. and Kasirer J. (Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe and Martin JJ. concurring).
[4] Although the Court of Appeal was right to refer to public order and absence of a cause in support of its analysis of the validity of the clause at issue, we nonetheless conclude that the appeal should be allowed. Respectfully stated, neither of the legal bases for the doctrine suffices to negate the non‑liability clause to which the parties freely consented in the case at bar, as neither public order nor the non‑existence of the obligation can be successfully argued in this appeal.
Lall v. Manitoba Public Insurance Corporation et al,2021 MBCA 89: Appellant seeks leave to appeal decision of AICAC declining to extend 90 day time limit for filing appeal. Decision of internal reviewing officer was issued in May 2016. Notice of appeal filed in April 2020. Explanation of delay included difficulty navigating the process. After reviewing her medical file, appellant realized the reviewing officer was missing a relevant document. Lemaistre, J.A. concluded appellant has not demonstrated an arguable case requiring a more thorough examination; appeal dismissed.
Sagkeeng v. Government of Manitoba et al., 2021 MBCA 88: Issues related to a government’s duty to consult and accommodate in relation to Aboriginal and treaty rights under s.35 of the Constitution Act, 1982. Appellant Sagkeeng is appealing dismissal of its application for judicial review of the decision to grant a license authorizing Manitoba Hydro to construct a transmission line crossing Treaty 1 land. Application judge dismissed on the basis that there was an adequate alternative remedy. Discussion and analysis of the role of an appeal to the Lieutenant Governor in Council as a remedy. Appeal dismissed.
Royal Bank of Canada v. Pauls, 2021 MBCA 86: Appeal by defendant of summary judgment re outstanding principal and interest owed to the plaintiff under a line of credit and credit card. Defendant entered into contracts with the plaintiff but disputed changes to interest rates based on not receiving sufficient notice. Motion judge agreed, and granted summary judgment to the plaintiff for the amounts claimed less the increased interest charged during the period of insufficient notice. Appeal dismissed.
Rutherford v. Wiens,2021 MBCA 84: Appeal of 2020 MBQB 35 re medical malpractice. Should the trial judge have determined the cause in fact of the injury to the plaintiff before deciding if there had been a breach of the standard of care? Issue of whether the rarity of a resulting injury factors in to a finding of negligence. Discussion of the elements of a negligence claim under the “traditional approach” (para 25) and exceptions to it (e.g. Armstrong v. Royal Victoria Hospital). Burnett and leMaistre, J.J.A. dismiss the appeal, Monnin, J.A. in dissent.
Green v. Bell et al,2021 MBCA 81: Chambers motion seeking leave to appeal a decision of summary judgment granted to defendants dismissing plaintiff’s statement of claim. Plaintiff was prohibited from continuing proceedings unless he obtained leave from a justice of the Court of Appeal. Motion denied.
Gateway Bible Baptist Church et al. v. Manitoba et al.,2021 MBQB 219: Challenge to constitutionality of Emergency Public Health Orders restricting public gatherings, gatherings in private residences and temporary closure of places of worship. Applicants contend these infringe ss. 2(a), 2(b), 2(c), 7 and 15 of the Charter. See paragraph 24 and for description of determinations and paragraph 361 for conclusions. Application dismissed.
Gateway Bible Baptist Church et al. v. Manitoba et al.,2021 MBQB 218: Challenge to constitutionality of Emergency Public Health Orders made addressing the public health threat of COVID-19. This application seeks a declaration that ss. 13 and 67 of the PHA violate an unwritten constitutional principle that only the legislative assembly can make laws of general application. Joyal, C.J.Q.B. determines that the statutory delegation is constitutional. Applicants challenge is dismissed.
Evanson v. Fort La Bosse School et al.,2021 MBQB 216 : Action in negligence re injury to plaintiff. Issue is visibility through door commonly used by students and teachers. Door must be unlocked with a key from the outside, but can be opened by pushing a crash bar from the inside. Liability is placed only on school division. Damages of just under $80,000 awarded.
Business Development Bank of Canada v. 5809836 Manitoba Ltd. et al.,2021 MBQB 211: Motion for summary judgment over guaranteed repayment of a loan. Defendant claims that plaintiff failed to follow its own lending procedures. Perlmutter, A.C.J.Q.B. finds that under the terms of the agreement, plaintiff has discretion to advance funds. In this case, exceptional circumstances that can give rise to a duty by a lender do not exist (para 13). Motion granted.
Loeppky et al. v. Taylor McCaffrey LLP et al.,2021 MBQB 208 : Issue of duty of care of lawyer in a business transaction. Plaintiff received independent legal advice in transaction involving purchase and sale of shares with insufficient security. Conflict over whether plaintiff was advised of the possibility of loss. All claims dismissed.
McIvor v. Dakota Tipi First Nation,2021 MBQB 206: Motion for summary judgment in an action for breach of contract and damages. Parties had an agreement to share a rebate for the sale of tobacco on Dakota Tipi First Nation. They entered into a new agreement which expressly provided that it is subject to approval by a band council resolution which was never enacted. Defendant stopped paying the plantiff his share. Toews, J. finds it is not an appropriate case for summary judgment. Parties are ordered to amend their pleadings prior to all issues being referred to trial.
Bonnefield Canadian Farmland Evergreen LP v. Fat Cat Farms Ltd.,2021 MBQB 202: Action for unpaid rent and damages. Dispute is over amount plaintiff is claiming to rectify the condition of the property so it could be leased again. Defendant counterclaims that plaintiff breached its obligations under the lease. McCawley, J. found for the plaintiff.
In the first known Canadian ruling on a defence motion for legal costs against non-party lenders who helped fund a plaintiff’s case, an Ontario judge has refused to order four litigation loan companies to pay to the defendants in a personal injury class action a $3.5-million costs award made against the foreign plaintiff who has no assets in Canada.
Constitutional Law
Toronto (City) v. Ontario (Attorney General),2021 SCC 34: Appeal over the exercise of provincial legislative authority over municipalities: does the constitution restrain a provincial legislature from changing the way municipal councils are elected. Events arose from the Ontario government’s decision to reduce the number of wards in the city of Toronto in the middle of an election campaign. Wagner C.J. and Brown J. (Moldaver, Côté and Rowe JJ. concurring); Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring) in dissent.
[4] None of these arguments have merit, and we would dismiss the City’s appeal. In our view, the Province acted constitutionally. As to the s. 2(b) claim, the City seeks access to a statutory platform which must be considered under the framework stated in Baier. The change to the ward structure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure in the 69 days between the Act coming into force and the election day. There was no substantial interference with the claimants’ freedom of expression and thus no limitation of s. 2(b).
Criminal Law
R. v. Khill, 2021 SCC 37: Accused was found not guilty in his trial for second degree murder. Court of Appeal overturned his acquittal and ordered a new trial. Omission of accused’s “role in the incident” as a discrete factor in jury charge was a material error. Appeal dismissed. Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ; Moldaver, Brown and Rowe JJ, concurring; Côté J. in dissent.
[5] In the present case, this jury was not instructed to consider the effect of Mr. Khill’s role in this incident on the reasonableness of his response and I am satisfied this was an error of law that had a material bearing on the jury’s verdict.
R. v. J.G.C.,2021 MBQB 221: Accused is charged with several accounts under the Criminal Code, including sexual interference, common assault, and uttering a death threat. Complainants are his former common law partner and her children. Credibility of testimony is crucial. Accused is convicted of some charges and acquitted on others.
R. v. Williams,2021 MBQB 205: Accused is charged with second degree murder. Sole issue to decide is whether the Crown has proven beyond a reasonable doubt that the accused had the requisite intention for murder. Accused testified and called expert evidence. If accused’s evidence is accepted, then judge must acquit of second degree murder and convict for manslaughter. Evidence must be assessed as a whole and not piecemeal. McCarthy, J. finds that accused was likely suffering from methamphetamine-induced psychosis and lacked the necessary mens rea for murder. He is found guilty of manslaughter.
R. v. Moar,2021 MBQB 203: Sentencing decision re conviction for second degree murder. Criminal Code calls for a mandatory life sentence. Issue is what period of parole ineligibility should be imposed. Crown asks for 17 years, defence requests 10. Defence notes Gladue factors to take into account, as well as cognitive deficits and lack of impulse control. Grammond J. finds that nature of offence as well as accused’s personal circumstances warrant increased parole ineligibility. She sets it at 15 years.
R. v. Kehler,2021 MBQB 198: Trial of driver charged with impaired driving and failing to stop at the scene of an accident. Agreed fact that even a sober driver could not have avoided the accident. Analysis of presumption of intent where a driver fails to offer assistance by failing to stop at the scene. Crown must show proof of intent to escape civil or criminal responsibility. Accused found guilty of failure to stop at the scene of an accident, but not guilty of impaired driving.
R. v. Favell,2021 MBPC 53: Charge of sexual assault and voyeurism with respect to two separate complainants. Motion by accused to sever the counts with respect to each complainant. Crown opposes. Test for determining if severance is required in the interest of justice is articulated in R. v. Last, 2009 SCC 45. Motion granted.
R. v. Perry,2021 MBPC 52: Impaired driving charge. Accused was asleep across the back seat of a parked motor vehicle with the engine running. Judge found accused’s ability to operate a motor vehicle was impaired by alcohol, and her blood alcohol level exceeded the legal limit, but that she did not have “care or control” of the parked motor vehicle when she was observed by police. Accused acquitted.
R. v. Krywonizka,2021 MBPC 49: Offender pleaded guilty to six counts of firearms-related offences including the possession of prohibited firearms and the unlawful importing of firearms-related paraphernalia. Crown seeks a global disposition of six years imprisonment; defence concedes that a prison term is warranted but asks that it be of a length that it could be served conditionally in the community. Canvas of previous decisions regarding the sentencing objectives of firearms offences. Conditional sentence appropriate.
R. v. Harper,2021 MBPC 47: Sentencing decision for conviction of residential break and enter, assault and possession of a weapon (bear spray). Gladue principles involved. Discussion of purpose of sentencing and effect on Indigenous people, as well as proportionality. Crown seeks five years in a penitentiary; defence seeks three years plus probation. Both counsel agree custodial sentence should be reduced by time accused has been in custody on remand. Devine, P.J. sentences him to a three year custodial sentence followed by a period of probation.
R. v. Kipling,2021 MBPC 46: Sentencing decision for conviction after trial of charge of aggravated assault. Accused struck a teenager with a hammer to the back of his head with such force that the claw of the hammer was embedded in his skull. Many aggravating factors, few mitigating factors. Accused is sentenced to a global sentence of 10 years, nine months.
M.R.G.R. v. Kinosao Sipi Minisowin Agency,2021 MBQB 195: Application opposing entry on Manitoba Child Abuse Registry. Agency received report of possible sexual abuse which was investigated, and the applicant was arrest and charged with sexual interference. Some charges were stayed and he was acquitted of another. The Agency’s Child Abuse Committee decided to proceed to have the applicant’s name entered on the Registry. Petersen, J. found on a balance of probabilities that the applicant accused the child. Application dismissed.
Northern Regional Health Authority v. Horrocks,2021 SCC 42: Whether the exclusive jurisdiction of a labour arbitrator appointed under a collective agreement extends to adjudicating human rights disputes arising from a collective agreement. Employee filed a discrimination complaint; employer contested adjudicator’s jurisdiction. On judicial review, reviewing judge found error in essential character of dispute. CA allowed appeal. Wagner C.J. and Abella, Côté, Brown, Rowe and Kasirer JJ; Karakatsanis, J. in dissent.
[5] For the reasons that follow, I find myself in respectful disagreement with the adjudicator and the Court of Appeal. Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed.
Manitoba Federation of Labour et al v. The Government of Manitoba, 2021 MBCA 85: Question of constitutionality of legislation to prevent collective bargaining on wages for a limited period of time (re The Public Services Sustainability Act). Trial judge said unconstitutional; appeal court disagreed. Review of the analytical framework of s.2(d) of The Charter “as it relates to the right to associate in order to collectively pursue workplace goals” (para. 21). Appeal allowed.
Wills, Trusts & Estates
Dickson v. The Humane Society of Canada,2021 MBQB 200: Motion by executor for advice and direction of the court in distributing residue of estate. One of the charitable organizations gifted in the will lost its charitable status. Issue is whether that beneficiary existed at the time of the Testatrix’s death or if its share should be divided among the other residual beneficiaries. Analysis involves consideration of the subjective intent of the Testatrix. McCawley, J. finds that the Humane Society is no longer a beneficiary.
A proclamation has been received from Her Excellency the Governor General that summons Parliament to meet for the dispatch of business at 1:00 p.m. ET. on Monday, November 22, 2021.
The election of the Speaker will be the first order of business when the House of Commons meets.
September 30, 2021 marked the first National Day for Truth and Reconciliation. The federal government called on Canadians to don orange shirts bearing the message Every Child Matters and to reflect on the impacts of Canada’s residential school system.
One day earlier, the Federal Court issued its decision in Canada v. First Nations Child and Family Caring Society dismissing the federal government’s latest effort to avoid paying compensation for its chronic underfunding of child and families services on reserve.
The Court’s decision highlights the gap between Canada’s public commitments to Indigenous Peoples and its failure to carry out the hard work that reconciliation requires.
What it is about
For decades, First Nations have fought for increased funding to support Indigenous children and families living on reserve.
In 2007, two Indigenous-led organizations filed a complaint with the Canadian Human Rights Commission alleging that Canada’s failure to properly fund the delivery of child and family services to First Nations on reserve violated the Canadian Human Rights Act.
In 2016, the Canadian Human Rights Tribunal found First Nations children and families were denied equal access to child and family services due to Canada’s failure to adequately fund services on reserve.
Over the next 5 years, the Tribunal issued a series of decisions setting out how affected First Nations children and families would be compensated for Canada’s discriminatory treatment. Canada brought an application for judicial review at Federal Court challenging the Tribunal’s decisions.
What the Court said
The Federal Court dismissed Canada’s application and reaffirmed that the federal government must compensate First Nations for its failure to provide adequate funding for the delivery of child and family services on reserve.
Justice Favel, writing for the Court, went on to reflect on the concept of reconciliation, which he described as part of an ongoing process of “nation-building” based on the foundational, evolving relationship between the Crown and Indigenous Peoples.
Drawing on both Supreme Court decisions and the words of Pitikwahanapiwin (Chief Poundmaker), Justice Favel concluded that when viewed in the context of nation-building, a shared commitment to reconciliation has the potential to “remedy unprecedented discrimination” and lead to the “re-establishment, on a proper foundation, of broken or damaged relationships between Indigenous people and Canada.”
Why it is important
Last summer, the Tk’emlúps te Secwépemc announced they had located the remains of hundreds of children who attended the former Kamloops Indian Residential School. Since then, the unmarked graves of thousands more children have been identified. In the wake of these announcements, the federal government finally acknowledged that Canada’s treatment of Indigenous children amounted to genocide, and established September 30 as a national day to honour survivors of residential schools.
Critically, the Truth and Reconciliation Commission of Canada placed child welfare, including the provision of adequate resources to enable First Nations to keep Indigenous families together in safe, culturally appropriate environments, first among its 94 Calls to Action.
It is within this context that Canada sought to avoid its obligations to pay compensation for failing to adequately fund the delivery of much-needed services to children and families living on reserves.
The Federal Court’s decision is an important vindication for First Nations and Indigenous organizations who have spent decades fighting for better funding for health and family services for Indigenous children and families. It also underscores the connection between Canada’s treatment of Indigenous children at residential schools, and the ongoing discrimination that continues to exist in the child welfare system.
Looking ahead
Canada as a country is founded on the state’s systematic destruction of Indigenous families and cultures.
If we are to move beyond this legacy, the federal government must do more than issue apologies and call on the public to honour the memory of children who have been lost. As Tk’emlúps te Secwépemc Kukpi7 (Chief) Rosanne Casimir recently advised the Prime Minister, “we are not interested in apologies that don’t lead to institutional and widespread change.”
As a first step, Canada must fulfil its legal – and moral – obligations to Indigenous children in Canada today, including by compensating First Nations who have suffered as a result of Canada’s underfunding of Indigenous child and family services, and providing accessible, properly funded services to First Nations on reserve in accordance with the TRC’s Calls to Action.
At a time when the concept of ‘reconciliation’ has increasingly become hollow, the federal government would also do well to take the recent Federal Court decision to heart. As Justice Favel’s words remind us, reconciliation need not be a matter of empty rhetoric – it can be an important, positive part of rebuilding the flawed foundation on which Canada was established.
As always, it will be the federal government’s choice whether to continue on its current path or to take new steps to repair both the past and present-day impacts of colonization on Indigenous children and families.
Canada has 30 days from the date of the Federal Court’s decision to apply for leave to appeal.
First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
In this 60 minute webinar, our speakers will focus on the key drivers and trends in legal project management.
In the webinar, our speakers will consider: – Best practices for LPM to better manage client portfolios and matters. – Examples of practice areas where LPM is being applied successfully (i.e. complex litigation, transactions). – How does having an LPM function add value to clients and help law firms gain competitive advantage?
Professors Ruby Dhand and David Ireland, two of the authors of ‘Law and Disability in Canada: Cases and Materials’, available now on the LexisNexis Canada Bookstore, will be presenting a live interactive webinar discussing selected topics from their book including access to justice for people with mental health disabilities and addiction, and disability in the criminal justice system.
DATE: Tuesday, October 26, 2021 Time: 12:00 Noon – 1:30pm Location: Zoom Video Conference TOPIC: A general overview of various insolvency and restructuring options for small and medium sized businesses SPEAKERS: Rick Schwartz, Partner, Tapper Cuddy LLP Ross McFadyen, Partner, Thompson Dorfman Sweatman LLP John Fritz, trustee, Deloitte
Court Notices & Practice Directions
All COVID-19 Notices and Practice Directions are available here.
New in the 2022 edition: The 2022 Annotated Tremeear’s Criminal Code features all the latest legislative amendments, including those introduced by the following:
An Act to amend the Criminal Code (medical assistance in dying), S.C. 2021, c. 2 (former Bill C-7)
The Canada – United States – Mexico Agreement Implementation Act, S.C. 2020, c. 1 (former Bill C-4)
Canada Regulation 2021-44 – amending the Controlled Drugs and Substances Act
Martin’s Annual Criminal Code, 2022 Edition
Whats New in this edition:
Ahmad v. R., 2020 SCC 11 – The Supreme Court of Canada held that, where police call a number suspected to be connected to a crime, they cannot offer an opportunity to commit an offence to the person who answers the call without first having formed reasonable suspicion that that person is engaged in criminal activity.
Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 – According to the Supreme Court of Canada, s. 12 of the Charter does not protect corporations from cruel and unusual treatment or punishment.
R. v. R.V., 2021 SCC 10 – The Crown may seek to reconcile seemingly inconsistent verdicts, such as a conviction for sexual interference coupled with an acquittal for sexual assault charges involving the same event, by establishing a legal error in the jury instructions that had material bearing on the acquittal and not on the conviction, and by showing that the jury did not indeed find the accused both guilty and not guilty of the same conduct.
T.J.M. v. R., 2021 SCC 6 – The Supreme Court of Canada held a superior court justice to have jurisdiction to hear and decide an application for judicial interim release brough by a young person in Youth Criminal Justice Act proceedings – such jurisdiction is held concurrently with the judges of the designated youth court of the province.
Zora v. R., 2020 SCC 14 – According to the Supreme Court of Canada, the Crown must prove that the accused had breached a condition of an undertaking, recognizance or order knowingly or recklessly – this offence has a subjective mens rea.
New Online Titles
On vLex
National Security Law — 2nd ed. by Craig Forcese and Leah West
“National Security Law, 2e, is about the law governing the Canadian state’s response to serious crises — that is, events that jeopardize its national security. The book approaches national security law as a system, organizing its discussion of law around five themes: structure (the mandate and roles of national security agencies); threats (aggression, terrorism, interference, proliferation, and emergencies); information (domestic and international intelligence collection, sharing, and information secrecy); response (including security screening and assessment, aviation “no fly” listings, passport revocation, immigration detention and removals, peace bonds, preventive detention, threat reduction, defensive and offensive cyber, criminal prosecutions, and use of force); and accountability (national security review).
Given the evolution of Canadian law in these areas, this second edition is a comprehensive rewrite of the first edition, first published in 2007.
Readers may be interested in this primer course on national security law that the authors have created in support of the book.”
Book Reviews
Review taken from the Canadian Law Library Review Volume 46, No. 2.
Managing Privacy in a Connected World. By Éloïse Gratton & Elisa Hendry. Toronto: LexisNexis Canada, 2020. 488p. Includes bibliographic references and index. ISBN 9780433503651 (softcover) $190.00.
Reviewed by Stef Alexandru
“Managing Privacy in a Connected World expertly ties together privacy and emerging practice areas with technologies that are shaping our environment. In recent years, privacy law has developed and extended into new and exciting areas like artificial intelligence, blockchain, the Internet of Things, and smart and connected devices. Although this book has a wide scope in considering a variety of existing and developing legal issues interrelated with privacy, it masterfully captures the essence of each issue.”
Substantive Law
Administrative Law
Cann v. Fort Garry/River Heights (Director),2021 MBCA 75: Appeal of an order of the Social Services Appeal Board, where the appellant’s benefits were clawed back after he received a payment under the CERB program. Issue is whether the payment should be considered “earned income” or a “liquid asset”. Receivers of income assistance can receive up to $4,000 in the form of liquid assets. Appeal allowed.
Haile v. The Workers Compensation Board of Manitoba et al.,2021 MBQB 192: Application for judicial review of decision denying applicant’s claim for benefits beyond January 11, 2016. Applicant suffered a workplace injury on January 6, 2016 and returned to work January 11. Appeal Commission determined she had materially recovered by the time she returned to work. Standard of review is reasonable; issue is whether the Appeal Commission’s decision that the applicant’s difficulties were not the result of her workplace injury was reasonable. Reminder that the court’s role is to review the Appeal Commission’s reasons not to decide the issue itself. Application dismissed.
Paul Daly. The Shaky Foundations of the Supreme Court of Canada’s Public/Private Divide: Chartier v. Métis Nation, Saskatchewan – 2021 MBQB 142. Administrative Law Matters, published September 8, 2021, viewed September 9, 2021.
“In a series of recent decisions, the Supreme Court of Canada has erected a divide between public and private law. First, judicial review of private organizations was restricted in Wall … , a restriction subsequently extended to judicial enforcement of private organizations’ constitutive documents in Aga …”
Civil Litigation
Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33: Issue of whether the court retains jurisdiction to reconsider publication ban orders after merits of criminal proceedings decided. A publication ban had been placed on an affidavit filed in a criminal matter before the court of appeal pending a decision as to its admissibility as new evidence. CA dismissed the motion for new evidence but ordered that the publication ban remain in effect indefinitely. CBC brought a motion to set aside the publication ban; CA declined to hear the motion citing functus officio.
Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.: The Court of Appeal had jurisdiction to consider the CBC’s motion to set aside the publication ban. While the court could not rehear the appeal on the merits and while the doctrine of functus officio precluded it from reconsidering the substance of the appeal, the court retained the authority to supervise access to the record of its own proceeding, which allowed it to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed.
Per Abella J. (dissenting): The appeals should be dismissed. The CBC is not entitled to reconsideration of the publication ban as a result of its undue and unjustified delay.
Wolfe et al v. Taylor et al,2021 MBCA 72 : Chambers motion re appeal of dismissal of motion for leave to commence a claim in negligence and breach of fiduciary duty. Liquidator seeks an order for security for costs on the appeal and an order requiring the appellants to pay the costs awarded against them before prosecuting the appeal. Parties have been involved in proceedings since 2017, over sale of two parcels of land to another party. Motion for security order granted; motion for an order to pay the awarded costs dismissed.
Shinoff v. The Province of Manitoba et al,2021 MBCA 73: Appeal of dismissal of statement of claim by summary judgement. Plaintiff alleged defendants were vicariously liable for the care she received in foster care between 1966 and 1969. Court of Appeal agreed with motion judge in applying K.L.B. v. British Columbia,2003 SCC 51 (paras 18-17), and following the legislation in place at the time. Court left to another day whether the claims of negligence were statute-barred under The Limitation of Actions Act.
Owen v. Little Grand Rapids First Nation et al,2021 MBQB 201: Motion by plaintiff to strike statements of defence without leave to amend on the basis that neither discloses a reasonable defence. Issue involves dismissal of councillor by band when band didn’t have the authority to dismiss him. Master Goldenberg finds some parts of the defence must be struck and allows defendants to amend statement.
52000 Manitoba Ltd. and 4472048 Manitoba Ltd. v. 5806497 Manitoba Ltd. et al,2021 MBQB 194: Motions by plaintiffs for summary judgment re statement of claim against defendant; motion by defendant for summary judgment dismissing the actions; motion for order by plaintiffs striking out a portion of an affidavit. McKelvey, J. dismissed all motions.
[43] I am not satisfied that a fair and just adjudication is possible on a summary basis. There are genuine issues requiring a trial which have not been resolved through these proceedings.
Widmer v. Scott, 2021 MBQB 193: Action by lawyer for payment of legal fees. Defendants do not dispute that tasks on the bills were done, they simply refused to pay. Action succeeds for plaintiff under summary judgment, although request for charging order against several properties of the defendants was denied.
Constitutional Law
Richard D. Lindgren. Annotation to: References re Greenhouse Gas Pollution Pricing Act, (2021) 39 C.E.L.R. (4th) 454. (WLNC – request a copy).
The majority opinion of the Court concludes that the “national concern” branch of Parliament’s “peace, order and good government” (POGG) power under s. 91 of the Constitution Act, 18672 provides the constitutional basis of the GGPPA. (2021 SCC 11).
Criminal Law
R. v. K.G.P.,2021 MBCA 79: Appeal by accused of conviction for sexual assault. Victim has significant mental health issues, including a dissociative identity disorder. Accused was aware of her condition. Trial judge rejected accused’s defence of an honest but mistaken belief in consent. Court of Appeal decides there is no basis for appellate intervention. Appeal dismissed.
R. v. Burg and Khan,2021 MBCA 77: Whether the Crown’s preferring a direct indictment violated the rights of the accused under s.7 or 11(b) of the Charter. Accused basing their position on Jordan. They argue that the direct indictment was for the sole purpose of moving the case from Provincial Court to the Court of Queen’s Bench, thus giving the Crown a longer period of time to prepare for the trial. Appeals dismissed.
R. v. Lariviere,2021 MBCA 76: Appeal of conviction for sexual assault, making child pornography and extortion. Appeal turns on standard of appellate review in relation to findings of credibility. Only ground of appeal of sufficient merit is submission that the trial judge improperly drew an adverse inference because the accused failed to pursue or call corroborative evidence. Appeal dismissed.
R. v. Onakpoya aka Kerrhs, 2021 MBCA 74: Appeal of motion by accused to quash a direct indictment on a charge of aggravated assault and have proceedings dismissed or remitted back to Provincial Court for a preliminary inquiry. Crown applied to quash the notice of appeal on the basis that this Court has no jurisdiction to hear the appeal because it is from an interlocutory decision. Court agrees with Crown; appeal dismissed.
R. v. R.W., 2021 MBCA 71: Accused seeks leave to appeal and, if granted, appeals sentence imposed following conviction for two counts of sexual interference. Accused asserts trial judge erred in the application of the principle of totality. Standard of review is deferential. Court followed the test set out in R. v. Draper, 2010 MBCA 35 (para 30). Court found that trial judge erred in the application of the principle of totality, but not so much that the sentence was unfit. Leave granted, but appeal dismissed.
R. v. Devos,2021 MBQB 189: Trial for charges of impaired driving causing death, dangerous driving causing death, and driving over .08. Accused had a graduated licence prohibiting him from driving with any blood alcohol. He drove his truck around a field, it fishtailed and rolled over. Driver was wearing a seatbelt, passenger was not. Passenger died. Discussion of “bolus drinking”. Accused found guilty of impaired driving casuing death, dangerous driving causing death, and not guilty of driving over .08.
R. v. D.A.B.,2021 MBQB 185: Trial of sexual assault causing bodily harm. Accused has a different version of events, and says that the complainant consented. Issues turn on credibility of the parties. Greenberg, J. use the framework of W.(D.) to analyze the evidence. Accused found not guilty.
R. v. Oke,2021 MBPC 39: Sentencing decision re use of excessive force by RCMP in arrest of Indigenous man. Accused pled guilty. Issue is appropriate sentence for offender and the offence, an assault against a vulnerable person. Analysis of authorities for sentencing a police officer. Thompson, P.J. sentences the accused to a conditional discharge with supervised probation.
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.)
In Manitoba, 68.9% of the provincial jail population is in pre-trial detention. While Manitoba is not alone in having a pre-trial detention population that exceeds the provincially sentenced population, this is the highest proportion in the country. Using data collected from bail court observations in Manitoba, we examine routine bail practices and the implications of current bail trends.
Paul L. Moreau. “Trouble for Starting Points?”, (2021) 68 C.R. (7th) 129. (WLNC – request a copy.)
In the recent decision of R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada has again grappled with the thorny issue of starting points in sentencing. This has long been a point of friction, particularly with the Alberta Court of Appeal, who has been the leading advocates for this type of appellate guidance since at least 1982.
Family Law
Walshe v. Walshe,2021 MBQB 197: Reference order for an accounting with respect to disputed assets and liabilities. Parties own a construction business. Dispute over value of business at time of separation. Husband’s net worth statement is not accepted and accuracy of statement wife relies on is questionable. Detailed analysis of how the master arrived at the accounting.
L.L.L. and C.A.L. v. L.M.S. and R.J.M.,2021 MBPC 42: Costs decision over a guardianship application. Respondent, who was successful, takes the position he should have his costs. Applicants believe each party should bear their own costs. Provincial Court rules provide that Queen’s Bench Rules (57.01) are applicable in the Provincial Court (Family Division). Citing Gabb v. Gabb, 2001 MBCA 19, Wiebe, C.J. finds costs award to R.J.M.
M.G. v. The Director of Child and Family Services, 2021 MBPC 40: Application by the Agency compelling police to disclose records relating to an investigation of historic allegations against M.G. prior to him reaching adulthood. M.G. opposes, his right to privacy should take priority over Agency’s interest in his records. M.G. has an upcoming child abuse registry hearing. Parties agree that records held under the YCJA are generally not disclosable. Issues (para. 5): What constitutes the record being sought? How should the records be classified? Are the records disclosable based on how they are classified? Rolston, P.J. finds the records are not disclosable.
McLeod Estate v. Cole et al.,2021 MBCA 80 : Chambers motion by plaintiffs for leave to file a 43-page factum. Court of Appeal rules sets a 30 page limit for a factum although Rule 29(3) provides judicial discretion to deal with factums of an excessive length. Plaintiffs’ notice of appeal notes 17 grounds of appeal. Mainella, J.A. outlines the principles to exercising discretion as to whether to grant leave to file a lengthier factum. Motion dismissed.
Legislation
Federal
Results of the Monday, September 20, 2021, general election will remain unofficial until the Chief Electoral Officer has confirmed the name of the member of Parliament elected in each constituency.
The expected date for the return of the election writs is Monday, October 11, 2021.
“Bill 42, the Remote Witnessing and Commissioning Act, which became law in December 2020, amended the six statutes included in the temporary order and enabled alternatives to physical attendance on a permanent rather than temporary basis.
The new regulations establish processes for the use of videoconferencing as an alternative to in-person attendance when witnessing and commissioning certain legal documents.”
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
Printing and Photocopying
If you need to use the library’s printing and photocopying services you will need to create an account. See us at the front desk for assistance.
Please note: The library will be closing early on Friday, December 13th at 11:00AM for a special event. Regular library service will resume Monday, December 16th at 8:30AM.
Please note: The library will be closed on Monday, November 11th, 2024. Regular library service will resume Tuesday, November 12th at 8:30AM.
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