“The law of property is the most commonly encountered area of law because we rely on it every day. Within a legal context, the word property refers to the rights that people have to their things, not to the things themselves. Property law serves as a framework for sharing our things with others, and thus often intrudes on various other areas of law: it intersects with the law of contracts whenever people buy and sell things; the wrongful interference with property may be a tort or a crime; and the power to make laws concerning property involves constitutional law.”
United Nations Law, Politics, and Practice – Alexandre Tavadian
The result of a 300-year-long experiment, the United Nations has preserved its position as an indispensable actor on the world stage. As Kofi Annan famously remarked, “more than ever before in human history, we share a common destiny. We can master it only if we face it together. And that, my friends, is why we have the United Nations.” Since its formation, the international community of states averted a third World War, replaced colonialism with self-determination, reduced poverty and hunger, eradicated many diseases, and established mechanisms for promoting and protecting human rights. Yet, the way the United Nations operates to achieve these objectives is not well known. There has yet to be a comprehensive and accessible text that presents a holistic overview of the United Nations as an institution through a multidisciplinary approach to the study of the UN rather than an exclusively legal or political analysis.
Canadian Class Action Law Review – Volume 16, Issue 2
Introduction. Harvey T Strosberg
Book Review: Defending Class Actions in Canada: A Guide for Defendant. Michael A Crystal and Maria Khan
Flash Boys Class Actions: Civil Fraud, Conspiracy, and the Certifiability of High-Frequency Trading Cases in Canada. Lindsay Frame
An Overview of Class Actions and COVID-19 in Ontario’s Long-Term Care Facilities. Jordan Assaraf
The Unworkability of the Workable Methodology Standard. Kate Boyle and Nicholas Hooper
United We Stand, Divided We Fall: Class Actions and Corporate Hegemony. Rebecca Meharchand
The Limits of Case Management: A Review and Principled Approach to the Court’s General Management Powers. Paul-Erik Veel, Adil Abdulla, and Angela Hou
Determining a Fair Price for Carriage?: Applying a “Fee-Driven” Factor and Reverse Auctions to Adjudicating Carriage Motions in Ontario. Timothy Law
Book Reviews
Reviews taken from the Canadian Law Library Review Volume 46, no. 1
New Technologies for Human Rights Law and Practice. Edited by Molly K. Land & Jay D. Aronson. Cambridge: Cambridge University Press, 2018. xiv, 318 p. Includes table of contents, bibliographical references, and index. ISBN 978-1-107-17963-9 (hardcover) $126.95; ISBN 978-1-316-63141-6 (softcover) $40.95. Open access (PDF) via doi.org/10.1017/9781316838952 Reviewed by Katarina Daniels
New Technologies for Human Rights Law and Practice is a brilliantly edited collection of essays that looks at both promising and problematic uses of technology in relation to human rights. It pursues the overarching goal of “articulat[ing] a human rights-based approach to understanding the impact of technological change on human rights” (p. 2). The diverse group of contributing authors includes law professors, practitioners, researchers, and technology specialists. These authors regularly refer to and rely on human rights law and accountability strategies in practice, as well as adopt ideas and concepts from cyberlaw and science and technology studies within the book.
Substantive Law
Administrative Law
Jordan v. Director, Winnipeg West,2021 MBCA 43: Applicant seeks leave to appeal the decision of the Social Services Appeal Board confirming that she had been overpaid assistance because she had been living in an undisclosed common-law relationship. Appeal can take place only on a question of jurisdiction or a point of law. Application dismissed.
Michelle A. Alton, Suman Furmah, Kayla Seyler. Adapting the Role of Tribunal Counsel to Promote Access to Justice: How Far Can We Go? 34 Can. J. Admin. L & Prac. 27. (WLNC – request a copy.)
Bankruptcy Law
Royal Bank of Canada v. 6382330 Manitoba Ltd. et al., 2021 MBQB 72: Motion seeking leave to commence an action against the Receiver as a result of gross negligence. Test for leave is based on a “strong prima facie case”. Leave denied.
Civil Litigation
Ontario (Attorney General) v. Clark,2021 SCC 18: Issue of whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors. Three officers with the Toronto Police Service sued the Ontario Attorney General for negligence and misfeasance in public office. Officers were accused of beating an accused during arrest and prosecutors stayed the charges. The stay application was widely reported in the media. Later investigation found the accusations were not substantiated; officers claimed reputational harm.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution, and misfeasance cannot be used to get around this reality.
PerCôté J. (dissenting): The appeal should be dismissed. Prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers who suffered harm as a result of deliberate and unlawful conduct by prosecutors in connection with serious criminal allegations of police misconduct.
Zaki v. University of Manitoba,2021 MBCA 46: Appeal from a decision of a motion judge refusing a mandatory interlocutory injunction. Motion judge concluded applicant had not met the requirement of showing a strong likelihood of success. Appeal court agreed; appeal dismissed.
Business Development Bank of Canada v. Cohen,2021 MBCA 41: Defendant appeals an order for summary judgment in favour of the plaintiff for the amount owing under two personal guarantees. Defendant alleged the plaintiff sold certain real property below fair market value, resulting in the sale being commercially unreasonable. Each party provided an expert report supporting their position. Court of Appeal found that motion judge did not provide an explanation for his determinations, such that summary judgment was not appropriate and allowed the appeal.
Lockport Taxi Ltd. v. The Rural Municipality of East St Paul et al.,2021 MBCA 40: Appeal of a decision of an application judge on the interpretation of The Local Vehicles For Hire Act. Key issue is one of statutory interpretation, therefore standard of review is correctness. The Act delegates discretionary powers to municipalities to make by-laws regulating the operation of vehicles for hire in their jurisdiction. The four respondent municipalities have not yet passed by-laws. Applicant had requested an order of mandamus requiring the municipalities to draft by-laws to regulate the industry, which was denied. Court of Appeal agreed with the application judge’s reasons; appeal dismissed.
Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government,2021 MBCA 36: Appeal of an order of mandamus; reviewing judge granted application of MGEU to appoint an arbitration board. Issue on appeal is whether the Minister’s refusal to order the appointment of an arbitration board was reasonable. Extensive analysis of Vavilov and the standard of review by Steel, J.A. Examination and interpretation of s. 48 of The Civil Service Act. The mandamus order is confirmed, requiring the Minister to appoint an arbitration board.
Zaki v. University of Manitoba,2021 MBCA 35: Motion by respondent to adjourn applicant’s appeal in a student disciplinary decision. Chambers judge determined she did not have jurisdiction to adjourn the appeal.
Weremy v. The Government of Manitoba,2021 MBCA 34: Motion for leave to appeal by defendant (Manitoba) of an order certifying a class proceeding. Issue is whether the certification judge relied on inadmissible hearsay evidence to define the class period. Action is over systemic negligence and breach of fiduciary duty for operation of the Manitoba Developmental Centre in Portage la Prairie. Significant analysis of the evidentiary standard on a motion for certification. Motion dismissed.
Winnipeg (City) v. Caspian Projects Inc. et al.,2021 MBCA 33: Appeal of order for the production of documents in the possession of a non-party (the RCMP). Discussion of Queen’s Bench Rule 30.10(1) for factors regarding production, and its intersection with s. 490(15) of the Criminal Code. Decision is subject to review on the standard of deference. Appeal dismissed.
Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 77: Application to seek leave to appeal a decision of an arbitrator. Issue of what constitutes the record to be considered while seeking leave. Parties intentionally did not create an official record of the proceedings to keep the arbitration private. Analysis of whether Vavilov changes the standard of review on appeals taken from arbitration decisions. Discussion of “homemade transcript” and proportionality. Joyal, C.J.Q.B. determined the documents that could be included in the evidentiary record so that the appeal could be scheduled.
Tataskweyak Cree Nation v. Intact Insurance Company,2021 MBQB 66: Appeal from Master’s decision dismissing action for long delay. Events surround construction of a sewage lagoon. Company that was awarded the contract withdrew in spring 2012. Intact is the surety under a performance bond on the contract. All parties agreed to consolidate the two actions and signed a consent order but counsel for one of the parties forgot to file it. Appeal allowed.
Erika Chamberlain. Case Annotation: Caplan v. Atas. (2021) 77 C.C.L.T. (4th) 124. (WLNC – request a copy.)
… Caplan v. Atasadds the new tort of “harassment in internet communications” to this milieu. It responded, in this case, to a prolonged and outrageous campaign of character assassination against a range of persons with whom the defendant had perceived grievances, as well as their loved ones, lawyers, and business associates.
The case illustrates “the perils associated with a landowner selling interests in the land to more than one party in more than one transaction,” Court of Appeal supernumerary Justice Eileen Gillese wrote for the majority, including Justice Mary Lou Benotto.
“The appeals raise many legal issues, one of which is the little-known equitable doctrine of estoppel by convention,” she added. “In Canada, this doctrine finds its roots in Ryan v. Moore 2005 SCC 38. As you will see, estoppel by convention plays a critical role in the resolution of these appeals.”
The B.C. Court of Appeal has issued a ruling in a case involving a dispute over the cleanup of a former gas station that lawyers are saying helps to clear up some of the confusion in the law about how legal costs are apportioned in environmental remediation cases, but could lead to more issues down the road.
Criminal Law
R. v. Desautel,2021 SCC 17: Issue of whether Aboriginal people located outside of Canada can assert Aboriginal rights under the Canadian Constitution. Respondent is an American citizen who was charged with hunting without a license in British Columbia. His defence was based on having an Aboriginal right to hunt protected by s. 35(1) of the Constitution Act, 1982.
Per Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1) of the Constitution Act, 1982. On a purposive interpretation of s. 35(1), the expression “aboriginal peoples of Canada” means the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include Aboriginal groups that are now outside Canada.
PerCôté J. (dissenting): The appeal should be allowed and the constitutional question answered in the negative. The constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982, does not extend to an Aboriginal group located outside of Canada. And even if it did, D cannot establish that he was exercising an Aboriginal right to hunt in the Sinixt traditional territory in British Columbia, as the modern group’s claim lacks continuity with the pre‑contact group’s practices.
Per Moldaver J. (dissenting): Even assuming that the majority is correct in holding that, as a member of an Aboriginal collective located outside Canada, D is entitled to claim the constitutional protection provided by s. 35(1) of the Constitution Act, 1982, there is agreement with Côté J. that in this case, D has not met the onus of establishing the continuity element of his claim, under the test for Aboriginal rights pursuant to Van der Peet.
R. v. Smith,2021 SCC 16: Appeal from 2020 BCCA 271. Issue of whether the trial judge’s failure to deal properly with the prior inconsistent statements does not mean she failed to consider or give effect to them.
Brown J. — We would allow the appeal, set aside the order for a new trial and restore the respondent’s conviction for sexual assault, substantially for the reasons of Dickson J.A. … … While testimonial inconsistencies may be relevant when assessing a witness’s credibility and reliability, only some are of such significance that failing to consider them will meet this standard.
R. v. Ramos,2021 SCC 15: Appeal from 2020 MBCA 111 over whether the trial judge gave adequate reasons in his assessment of the credibility of the witnesses.
The Chief Justice — We are all of the view, for the reasons of Justice Mainella of the Court of Appeal of Manitoba, to dismiss the appeal.
R. v. Antczak, 2021 MBCA 39: Crown seeks leave to appeal sentence for possession of fentanyl for the purpose of trafficking. Crown claims the sentence is demonstrably unfit. Examination of the principles of sentencing, especially the role of rehabilitation. Leave to appeal allowed, appeal dismissed.
R. v. Telfer,2021 MBCA 38: Appeal of conviction for first degree murder under s.8 of the Charter (unreasonable search and seizure). Did the accused have a reasonable expectation of privacy in information provide to WPS by Budget Rent-a-Car? Appeal dismissed.
R. v. Thorassie,2021 MBCA 37: Appeal of conviction for assault and other charges, and application for leave to appeal sentence. Accused argued that the trial judge misapprehended the evidence and erred in his application of the law of self-defence. Trial judge reviewed video evidence and stills from the video to reach his conclusions. Conviction appeal dismissed. Leave granted to appeal the sentence and sentence appeal dismissed.
R. v. St. Paul, 2021 MBCA 31: Appeal of sentence; whether the judge conducted a meaningful Gladue analysis. Accused was convicted of second degree murder and sentenced to life imprisonment. Accused appeals imposition of a 15-year period of parole ineligibility as being overly harsh. In determining sentence, trial judge found that the killing was “close to first degree murder”. Court found that both mitigating and aggravating factors were properly considered; appeal dismissed.
R. v. Leslie,2021 MBCA 29: Accused appeals his conviction for one count of sexual assault; Crown applies for leave to appeal sentence. One ground of appeal for accused is ineffective assistance of counsel. Cameron, J.A. admits fresh evidence in support of this ground of appeal and allows the appeal. New trial ordered. Crown’s application for leave to appeal sentence is moot. Discussion of the rule in Browne v. Dunn, [1894] 6 R 67.
R. v. Pohl,2021 MBQB 74: Motion by accused for an order of disclosure of a mirrored image of a seized hard drive. Hard drive contains primary evidence against the accused. McCarthy, J. references Stinchcombe and R. v. Smith for the court’s consideration of the balancing of interests required in a disclosure application. Motion granted under strict trust conditions.
R. v. G.K.B.,2021 MBQB 78: Accused charged with one count of sexual assault for two incidents that took place over 10 years ago. No corroborating witnesses or physical evidence; testimony of complainant and accused was consistent. Neither was more persuasive than the other, leading Leven, J. to a finding of reasonable doubt. Accused acquitted.
R. v. Bunn,2021 MBQB 71: Sentencing decision for conviction of one count of sexual assault. Based on the offence, deterrence and denunciation are the paramount sentencing factors. Victim was sleeping at time of offence is an aggravating factor; no mitigating factors except for Gladue factors. Accused is sentenced to 28 months incarceration followed by two years of supervised probation.
Hall v. Independent Investigation Unit of Manitoba, 2021 MBQB 67: Application for an order revoking an ex parte order granted by a JJP requiring the applicant to produce two reports to the IIU. RCMP asserts the reports are prohibited from production. IIU says reports are not “notes” within the meaning of s. 11 of Man. Reg. 99/2015. Issues are standard of review to revoke production order; would production of reports disclose information that is protected from disclosure; did the constable impliedly waive privilege; is there a discretion not to revoke the production order. Analysis of the difference between a supplementary occurrence report (SOR) and a subject behaviour – officer response report (SB/OR). SOR determined to be “notes” while SB/OR is not. Production order varied to remove the requirement to produce the SOR.
R. v. J.C.M.,2021 MBQB 65: Application by accused about admissibility of evidence of previous sexual activity under s.276(2) of the Criminal Code. Discussion of test enumerated in R. v. Goldfinch, 2019 SCC 38. Accused’s motion granted in part.
Family Law
Lievaart v. Smith,2021 MBQB 73: Request for variation of child support payments as ordered in a final order of 2014. Low income family, mother received income assistance because father did not pay child support. Discussion of imputing income, whether or not to waive arrears. Some variation allowed.
Malko v. Beck,2021 MBQB 68: Accounting and equalization of assets under The Family Property Act, as well as issue of a protection order, a preservation order and spousal support. Everett, J. ordered a reference to the Master for a family property accounting but neither party proceeded with it. Hatch, A.C.J. comments on non-compliance with Rule 70.25 and sanctions that can be invoked when a party fails to comply.
G.W.E.G. v. A.S.D.,2021 MBQB 64: Cross motions between guardian applicants and the biological father over interim guardianship and care and control. Trial dates are set for February 2022. Mother is deceased, and maternal uncle and partner took child into their care. Father requests custody. Horst, J. finds both parties can provide suitable care for the child; law in Manitoba states that “so long as the child’s best interests can be met by the parent, then that relationship must be given priority by the court” (para 13). Schedule for transition to father’s care is set.
On April 23, a B.C. court ordered that a second mother in a polyamorous triad relationship be declared a legal parent. British Columbia Birth Registration No. 2018-XX-XX5815 2021 BCSC 767 is the first case of its kind in B.C. and groundbreaking, not only for polyamorous relationships, but also for the evolving legal concept of parentage.
[3] On April 1, 2020, as a result of the Cost Reduction Program, Ms. Kosteckyj’s base salary was reduced from $154,800 to $139,320, Paramount’s contribution to her RRSP, based on 6% of her salary, was suspended, and her bonus status was unknown. In addition, her access to seminars and training was curtailed. Ms. Kosteckyj took no steps to accept or reject the changes resulting from the implementation of the Cost Reduction Program.
[4] In a further cost-cutting measure, to achieve a 15% reduction in Paramount’s workforce, Ms. Kosteckyj, along with a number of other Paramount employees, was terminated, without cause, on April 22, 2020.
[5] Paramount acknowledges that Ms. Kosteckyj was a valued employee, with 6½ years of service, and that she is entitled to damages in lieu of reasonable notice of termination. Both parties agree that the leading case on determining the period of reasonable notice is Bardal v The Globe & Mail Ltd (1960), 1960 CanLII 294 (ON SC), 24 DLR (2d) 140. Both parties assert that Ms. Kosteckyj was terminated in an economic downturn, but each has a different position regarding the relevance of that fact.
Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook — 2nd Edition by Grace Hession David, Ian Smith, and Jonathan Shime
“Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook, 2nd Edition prepares readers to properly litigate fraud cases, examining both prosecutorial and defence perspectives. Guiding readers step by step throughout the process of a fraud case, this practical resource weaves strategic information with case law analysis and relevant provisions of the Criminal Code.”
Search and Seizure by Nader Hasan, Mabel Lai, David Schermbrucker, and Randy Schwartz
“This all-in-one comprehensive guide analyzes every perspective, including those of the rights-holder, the police officer conducting a search or seizure, prosecutors and defence counsel, and judges reviewing police conduct after the fact.”
Book Reviews
Reviews taken from the Canadian Law Library Review Volume 46, no. 1
“In the Shadow of International Law: Secrecy and Regime Change in the Postwar World explores a theoretical argument that might explain why world leaders often pursue regime change surreptitiously. Author Michael Poznansky is an assistant professor in international affairs and intelligence studies cross-appointed to the political science department at the University of Pittsburgh. He explores the role that international laws addressing violations of sovereignty have played in post-WWII America’s increase in covert interventions intent on altering the domestic authority structures of another state. Simply put, the book tests Poznansky’s theory that non-intervention principles and provisions lead to intentionally covert actions to overthrow foreign regimes.”
Substantive Law
Administrative Law
Hancock v. College of Registered Nurses of Manitoba,2021 MBCA 20: Appeal of finding of a panel of the College of Registered Nurses’ Discipline Committee that the appellant was guilty of professional misconduct, as well as the penalty and the order of costs. Appellant was found to have inappropriately accessed medical records. Appeal dismissed.
The Deputy Minister of Finance v. Cutting Edge Athletic Supplies Inc.,2021 MBQB 38: Two matters adjudicated in one application. Appeal by Deputy Minister of Finance re calculation of retail sales tax payable, and appeal by Cutting Edge Athletic Supplies of assessment of liability against director. Analysis of burden of proof in tax appeals. Finance is successful in its appeal; TAC’s decision on director’s liability affirmed.
John M. Evans. Reviewing Delegated Legislation after Vavilov: Vires or Reasonableness? 34 Can. J. Admin. L. & Prac. 1. (WLNC – request a copy).
This article explores the basis on which courts review the validity of delegated legislation in Canada. They have traditionally employed ultra vires as the ground of review by construing the legal scope of the enabling clause and determining whether the delegated legislation falls within it, with no deference to the delegate. However, when the challenge is to the exercise of the power itself raising a question of inextricably mixed fact and law, delegated legislation may also be set aside as ultra vires if it is so unreasonable as to be beyond the intent of the Legislature in delegating the power. More recently, the Supreme Court has been divided on whether the Dunsmuir framework, with its default reasonableness standard on questions of law, applies to the review of delegated legislation. Vavilov may suggest that it does. The author argues that the Dunsmuir/Vavilov framework was primarily designed for the review of adjudicative decisions and is a poor fit for reviewing delegated legislation
Civil Litigation
Jack v. McLean,2021 FCA 65: Related to McLean et al. v. Canada (Attorney General), 2021 MBCA 15. Appeal re fee approval order which declined to adjudicate appellants’ request for fees in class action proceeding. FC found that there was no fee sharing agreement before the Court to approve and action was never certified. Appeal dismissed.
CIBC v. Ahmed, 2021 MBCA 25: Appeal from summary judgment order to pay the outstanding balance on her credit card issued by the plaintiff, plus interests and costs. Basis of appeal is that the motion judge erred in dismissing her motion for recusal, and failed to conduct the hearing in a fair and impartial manner, giving rise to a reasonable apprehension of bias. Appeal dismissed; costs in favour of the plaintiff set at $1,500 all inclusive of disbursements.
The Director of Criminal Property and Forfeiture v. Ramdath et al.,2021 MBCA 23: Interpretation of the stand of proof required for an interim preservation order under s.7(2) of The Criminal Property Forfeiture Act. Defendant (appellant) had embezzled millions of dollars from his employer. Director obtained an interim preservation order which froze funds in a GIC and TFSA in the name of the defendant. Under this Act, standards of proof change at different stages of legal proceedings. Explanation of all the different standards of proof from proof beyond a reasonable doubt to reasonable suspicion. Appeal dismissed.
The Director of Criminal Property and Forfeiture v. Nguyen et al.,2021 MBCA 19: Defendant appeals an order of forfeiture of his residence.First opportunity for Court of Appeal to interpret and apply s.14(1) of The Criminal Property Forfeiture Act. Residence was used for a marihuana grow operation. Defendant pleaded guilty; part of the sentence included a forfeiture order of all the seized items. Director (plaintiff) initiated additional proceedings to request forfeiture of the residence. Trial judge weighed factors for and against forfeiture, as outlined in the Act. Appeal dismissed.
Interlake Reserves Tribal Council Inc et al. v. Government of Manitoba, 2021 MBCA17: Appeal of order granting interlocutory injunctions. Project is to build a permanent flood control management system to replace the Lake St. Martin emergency outlet channel constructed in 2011. Injunctions sought in support of their review of three administrative decisions relating to environmental assessment. Issue of whether adequate consultation or effective notice took place. Decision to grant or refuse an interlocutory injunction is entitled to a “high degree of deference” on appeal. Appeal allowed.
McLean et al. v. Canada (Attorney General),2021 MBCA 15: Appeal by both parties of motion judge’s order setting aside the discontinuance of this action, a class proceeding re residential schools. Plaintiffs and defendant are taking the same position on appeal. Discussion of definition of “class proceeding”, i.e. statutory interpretation, and history of s.35(1) of The Class Proceedings Act. Proceeding had not been certified, therefore it remained subject to discontinuance under Rule 23.01(1) of the Queen’s Bench rules. Appeal allowed. Also at issue was whether the moving parties (former lawyers of record) had standing to file the motion.
Winnipeg (City) v. Caspian Projects Inc. et al.,2021 MBQB 63: Motion (by some defendants) to discover two non-party RCMP members. Based on evidence brought forward, moving parties have not established necessities under Queen’s Bench Rules 31.10(1) and 31.10(2) to justify an examination by a non-party.
Shelter Canadian Properties Limited v. Christie Building Holding Company, Limited, 2021 MBQB 59: Applicant seeks judgment enforcing award of arbitrator; respondent has filed two applications: leave to appeal the arbitrator’s award; and a stay of enforcement of any judgment respecting the award. Balance of convenience favours paying the award to the applicant.
Farmers Edge Inc. v. Precision Weather Solutions Inc.,2021 MBQB 58: Motion by defendant PWS for an interim and interlocutory injunction. PWS claims damages in excess of $1.2 million over and above general damages and fears there is a risk FE would not be able to pay such a damages award. Motion dismissed.
Vale v. Schwartz et al.,2021 MBQB 49 : Damages following summary judgment decision of August 27, 2020 (2020 MBQB 127). McCarthy, J. requested written submissions setting out each party’s position on the appropriate date for losses to be assessed, the method of valuation and appropriate value, and the appropriate conversion into Canadian dollars. London Metal Exchange (LME) price is determined to be the best indication available of the fair market value of the stolen nickel.
Vale v. Schwartz et al.,2021 MBQB 46 : Motion by some defendants (Urbanmine defendants) to add another party (ELG Metals) as a third party. ELG opposes the motion on the basis that Manitoba courts do not hold jurisdiction for the dispute between Urbanmine and ELG. Interpretation of court’s jurisdiction: presence-based, consent-based, or assumed jurisdiction. Manitoba is the appropriate jurisdiction. Next step is whether leave should be granted to add a third party. Test is set out in Loeppky et al v. Taylor McCaffrey LLP et al.,2019 MBQB 59. Leave granted.
Lou Anna Roberts v. The Government of Manitoba,2021 MBQB 43: Suit for damages pursuant to The Occupiers’ Liability Act. Plaintiff fell while exiting a building owned, occupied and managed by the provincial government. Parties agree on special damages but disagree on apportionment of degrees of negligence. Also disagree on quantum of non-pecuniary general damages. Negligence is set at 50-50. General damages of $90,000 awarded.
Maquinay v. Greatway Financial Inc. et al., 2021 MBQB 35: Plaintiff seeks to set aside Master’s decision to strike her Statement of Claim as a whole with leave to amend portions of some of the causes of action. Harris, J. found that the claim contravenes the rules of pleading in significant ways. Plaintiff allowed leave to amend part of the claim.
WRE Development Ltd. v. Lafarge Canada Inc.,2021 MBQB 37: Appeal of dismissal of motion to dismiss the action due to long delay. Standard of review is a hearing de novo. Interpretation of Queen’s Bench rule 24.02(1) as amended effective January 1, 2018. No significant action moving the file forward in over three years. Plaintiff was waiting for additional documents from the defendant after discovery. Analysis of what constitutes “significant advance”. Bock, J. finds for defendant; even though delay was due to defendant’s lack of response, plaintiff’s counsel could have compelled the defendant for undertakings.
Frenchie’s Farm and Ranch Ltd. v. Peace Hills Insurance Company,2021 MBQB 33: Insurance claim over fire loss that occurred in 2011. Insurance company has denied coverage for plaintiff making false statements in the statutory declaration for the proof of loss and has not provided information to support the existence of the items lost. Plaintiff claims all such records were lost in the fire. Credibility of witnesses a significant factor in finding for the defendant.
Consbec Inc. v. Hollow Water Weri Construction Ltd.,2021 MBQB 32: Plaintiff seeks to amend statement of claim by adding WERI as a defendant. Claim is for remaining payment due under contract. Defendant filed a counterclaim for problems with the initial contract. Proposed amendment would require piercing the corporate veil. Motion dismissed.
Shinoff v. The Province of Manitoba et al.,2021 MBQB 31: Summary judgment request by defendants. Plaintiff is suing based on her experience as a child in foster care in the 1960s. Question is whether the relationship between the plaintiff’s foster mother and the defendants sufficiently close that vicarious liability could be imposed. Also discussion of limitation period that applies. Summary judgment granted.
Glenwood Label & Box Mfg. Ltd. v.Brunswick Label Systems Inc. et al.,2021 MBQB 30: Claim by defendant for costs in case that was dismissed for delay. Plaintiff disputes entitlement due to costs of counterclaim. Analysis of Queen’s Bench Rule 23.03 and 23.05. Litigation had been ongoing for 25 years.
In applying established principles of insurance contract interpretation to this new area, the Court of Appeal ruled that Co-operators General Insurance Company of Guelph, Ont., did not owe a duty to defend Brockville, Ont.-based Family and Children’s Services of Lanark, Leeds and Grenville (FCSLLG) or Peterborough, Ont. consulting firm Laridae Communications Inc. in two lawsuits stemming from an April 2016 data hack that targeted FCSLLG. The hacker took a confidential report that contained details about case files and investigations involving 285 people and posted a hyperlink to the report on two Facebook pages.
The appellant was seriously injured when he slipped and fell on black ice on a sidewalk adjacent to the respondents’ residential property. The summary trial judge found that it was appropriate to sever the issues of liability and damages and resolve the duty of care question on summary trial. She dismissed the claim on the basis that the respondents did not owe a duty of care. On appeal, the appellant recast the nature of the duty alleged, focusing on the obligation of property owners to clear snow and ice from sidewalks to comply with a municipal bylaw. He argued that a property owner owes a duty of care to users of municipal sidewalks to take reasonable care with respect to removal of snow and ice from adjacent sidewalks. Held: Appeal dismissed. While the weight of authority has rejected the existence of such a duty of care, no court has undertaken an Anns/Cooper analysis and the authorities are not binding on this Court. Applying the Anns/Cooper analysis, the risk of harm was foreseeable, but the appellant is unable to establish a sufficient relationship of proximity and it would not be just or fair to impose a duty of care in these circumstances. The judge did not err in deciding the issue on a summary trial application.
[3] The issue put forward by the appellants on this appeal was: did the motion judge err in granting the respondent’s motion for summary judgment because there was no genuine issue requiring a trial about the scope of the appellants’ liability to the respondent under their personal guarantees? The appellants submit that there was a genuine issue requiring a trial, as the respondent misrepresented to them that their liability under their personal guarantees was joint and several with a collective exposure limited to $600,000. [4] For the reasons that follow, I agree that the motion judge erred and would remit for trial the narrow issue of determining the amount that each appellant owes to the respondent under their respective personal guarantees.
Constitutional Law
Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11: Division of powers of federal and provincial governments in climate legislation. Reference to the distinctly Canadian concept of peace, order and good government (POGG) that we learned in Canadian history class. Discussion of federalism as a foundational principle of the Canadian Constitution.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: The GGPPA is constitutional. It sets minimum national standards of GHG price stringency to reduce GHG emissions. Parliament has jurisdiction to enact this law as a matter of national concern under the peace, order, and good government (“POGG”) clause of s. 91 of the Constitution Act, 1867.
Per Côté J. (dissenting in part):There is agreement with the majority with respect to the formulation of the national concern test. There is also agreement that Parliament has the power to enact constitutionally valid legislation establishing minimum national standards of price stringency to reduce GHG emissions. However, the GGPPAis, in its current form, unconstitutional. It cannot be said to accord with the matter of national concern formulated by the majority because the breadth of the discretion that it confers on the Governor in Council results in no meaningful limits on the power of the executive. Minimum standards are set by the executive, not the GGPPA.
PerBrown J. (dissenting): The Greenhouse Gas Pollution Pricing Act (“Act”)cannot be supported by any source of federal authority, and it is therefore wholly ultra vires Parliament. The Act’s subject matter falls squarely within provincial jurisdiction. The fact that the Act’s structure and operation is premised on provincial legislatures having authority to enact the same scheme is fatal to the constitutionality of the Actunder Parliament’s residual authority to legislate with respect to matters of national concern for the peace, order, and good government of Canada under the Constitution Act, 1867.
Per Rowe J.(dissenting): The national concern doctrine is a residual power of last resort. Faithful adherence to the doctrine leads inexorably to the conclusion that the national concern branch of the POGG power cannot be the basis for the constitutionality of the Greenhouse Gas Pollution Pricing Act (“Act”). Accordingly, there is agreement with Brown J.’s analysis and with his conclusion that the Act is ultra vires in whole.
Kimberly A. Poffenroth. New Brunswick’s Precedent Setting Election: Conducting a 28-day Snap Election During a Global Pandemic. 15 J. Parliamentary & Pol. L. 15. (WLNC – request a copy). …While working from home in the early spring of 2020, the staff of Elections NB began developing plans to conduct provincial by-elections and the postponed municipal council, district education council and regional health authority board elections. Based on when legislative sessions have historically begun in New Brunswick, Elections NB anticipated that the postponed provincial by-elections would be held later in 2020, once COVID-related restrictions were lifted. It was unclear whether the postponed “local elections” would be held in 2020, but in any event, they would have to be held no later than May 10, 2021. …
Criminal Law
R. v. R.V.,2021 SCC 10: Unreasonable and inconsistent verdict; whether legal error in jury instructions can reconcile apparently inconsistent verdicts; appropriate remedy. Accused was convicted of sexual interference and invitation to sexual touching, but acquitted of sexual assault based on the same evidence. Accused appealed, verdicts unreasonable; Crown cross-appealed, charge to jury was confusing. CA held no legal error in jury instruction and acquitted.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ.: The trial judge misdirected the jury on the charge of sexual assault. This legal error was material to the acquittal, did not impact on the convictions, and reconciles the apparent inconsistency in the verdicts. As the verdicts are not actually inconsistent, the convictions are not unreasonable on the basis of inconsistency. V’s convictions should therefore be restored. The acquittal on the charge of sexual assault should be set aside and in the circumstances of this case, a stay of proceedings should be entered on that charge.
Per Brown and Kasirer JJ. (dissenting in part): There is agreement with the majority that the verdicts in this case are inconsistent. There is also agreement that the jury was misdirected, and that the misdirection amounted to legal error that might reasonably be thought to have had a material bearing on the acquittal. However, the only available remedy in response to the Crown appeal in the present case is the order of a new trial. To avoid putting V in jeopardy for something for which he was convicted, a new trial on all three charges is necessary.
R. v. Airmaster Sales Ltd.,2021 MBCA 30: Motion for leave to appeal decision of summary conviction judge dismissed accused’s appeal from default convictions for two speeding infractions. Accused’s representative had been removed by the JJP which caused an adjournment. Accused stated that he was confused as to the date of his trial and missed it. Motion dismissed.
R. v. Meeches,2021 MBCA 26: Appellant seeks leave to appeal adult sentence of life imprisonment for second degree murder. Review of sentencing judge’s assessment of PSR and Gladue factors. Interpretation of “accountability” in determining length of sentence. Leave to appeal granted, appeal dismissed.
R. v. Courchene,2021 MBCA 24: Appeal of conviction for breaking, entering and stealing a firearm on the basis that the verdict was unreasonable. Discussion of the definition of “firearm”. Appeal dismissed.
R. v S.A.D.F.,2021 MBCA 22: Crown seeks leave to appeal sentence following accused’s guilty plea to two counts of sexual interference. Grounds are that sentencing judge failed to appreciate the gravity of the offences and the moral blameworthiness of the accused. Spivak, J.A. allows appeal and increases sentence, Burnett, J. A. Concurring. Monnin, J.A. in dissent.
R. v. Bernier,2021 MBCA 21: Appeal of dismissal of a summary conviction appeal challenging the constitutionality of s.229 of The Highway Traffic Act (photo radar speeding tickets). Accused argued that s.229 was unconstitutional because it created a presumption that he was the driver. This appeal was heard by a panel of five judges, in case these circumstances overturned the Court’s previous decision on this issue in R. v. Gray, 1988 CanLII 1374. Appeal dismissed.
R. v. Ibrahim,2021 MBCA 12: Appeal of conviction for possession of cocaine, asserting that the search violated the accused’s s.8 Charter rights. CA agreed that trial judge erred in her statement of one of the facts supporting her finding, but that the misapprehension did not constitute an overriding error. Appeal dismissed.
R. v. Ginter,2021 MBQB 56: Appeal by appellant of prohibition of owning firearms for a five year period. Issues on appeal are: 1. Did the hearing judge commit a reviewable error in her assessment of any evidentiary issues; and 2. Did the hearing judge err in concluding the prohibition order was necessary in the interests of public safety. Appeal dismissed.
R. v. McKenzie,2021 MBQB 54: Voir dire re search which found the accused in possession of a loaded handgun, methamphetamines and fentanyl, and cash. Discussion of the standard of “reasonable suspicion” as well as the test for a valid investigative detention and warrantless search. Motion to exclude evidence dismissed.
R. v. J.C.,2021 MBQB 52: Sentencing decision for guilty plea to assault. Charges of uttering a threat and sexually assaulting the complainant were stayed. PSR assessed the accused as a medium risk to re-offend, and that he is a suitable candidate for community supervision. Primary sentencing objectives are denunciation and deterrence; custodial sentence of 9 to 12 months is appropriate; conditional sentence imposed.
R. v. M.V.R.,2021 MBQB 47: Trial of charges of historic sexual assault, threats and forcible entry. Some charges relate to a period where the complainant was a child of approximately 12 years old. Credibility and reliability of witnesses is of major concern in cases of this nature. Verdict of not guilty; judge has reasonable doubt as to the accused’s guilt.
R. v. Assi,2021 MBQB 44: Pretrial motion challenging the constitutionality of a limitation placed on the defence of provocation to be heard prior to trial (s.232 of the Criminal Code. Applicant is charged with murder and attempted murder. Application dismissed.
R. v. Siwicki,2021 MBQB 42: Application for an order of certiorari quashing decision of a Provincial Court judge denying a request to transfer a matter from St. Boniface Judicial Centre to Winnipeg Judicial Centre. Matter consisted of a guilty plea and sentencing. Defence had consent of Crown to request transfer. Provincial Court judge relied on practice directive to refuse transfer. Review is limited to whether the judge exceeded his jurisdiction. Interpretation of s.479 of the Criminal Code. Discussion of the Chief Judge’s administrative powers as delivered through practice directives. Application dismissed.
R. v. Barca,2021 MBQB 40 : Charges of two counts of intentionally discharging a firearm and one count of storing a firearm in a reckless manner. Accused did not testify; he gave a videotaped interview to police which was admitted into evidence. Edmond, J. applied the analysis set out in R. v. W. (D.) to determine if the Crown had proven guilt beyond a reasonable doubt. Accused is found guilty of some counts and not guilty on others.
R. v. Denis,2021 MBQB 39: Appeal of conviction of driving while impaired; grounds are that the judge erred in finding that the Crown had proven compliance with s. 320.31(1)(a) of the Criminal Code (alcohol standard was certified by an analyst). Appellant requests that the conviction is quashed and an acquittal is ordered. This is a transitional case and must be considered in the context of s. 320.31(1). Standard of review is correctness. Discussion of the interpretation of “certified by an analyst”. Appeal allowed.
R. v. Tessier,2021 MBPC 14: Motion for unreasonable delay where the pre-trial delay is below the 18 month presumptive ceiling. Accused was charged with two offences of operating a conveyance while impaired.
R. v. Budd,2021 MBPC 13: Sentencing decision with a Charter challenge. Accused spent a considerable amount of time in lockup. He was extremely intoxicated and didn’t remember his original phone call with a lawyer. He was denied an additional call. Defence counsel alleges breaches of Charter sections 7, 9, 10(b) and 11(e). Harvie, P.J. concluded that accused’s Charter rights were breached and the appropriate remedy is a $1 fine for each charge, along with one year supervised probation.
R. v. Rakesh, 2021 MBPC 12: Sentencing decision for bank robbery by accused, a gambling addict with no prior criminal record. Crown seeks a total sentence of 20 years with a reduction for a total of 9 years, less credit for time in custody. Defence seeks four years and argues that rehabilitation plays an important role. Analysis of mitigating and aggravating factors, including the need for deterrence when sentencing for a bank robbery. Harvie, P.J. sentenced accused to 5 years, less credit for presentence custody plus 3 years probation.
R. v. Kipling,2021 MBPC 11: Accused charged with aggravated assault. Incident involved attacker hitting a teenager over the head with a hammer, and then fled the scene. Issue is over identity of the attacker from video surveillance. No forensic evidence was found. Crown relied on opinion evidence of two recognition witnesses as well as circumstantial evidence. Analysis includes test to qualify recognition witnesses. Accused found guilty.
R. v. Soriano,2021 MBPC 6: Application by Crown for admission of statement of accused for use in cross-examination should accused testify. Defence seeks exclusion of statement. Analysis of whether accused’s s.10(b) Charter right to counsel were breached. Pullan, J. ruled that she had reasonable doubt that the statement was voluntary and excluded it.
R. v. Blair,2021 MBPC 4 (FASD Court): Sentencing decision after accused pleaded guilty to two armed robberies. Crown is seeking a sentence of six years concurrent for each of the robberies, plus one year consecutive for using an imitation firearm. Defence is seeking three years followed by probation. Analysis of the effect of FASD on accused’s moral culpability, aggravating and mitigating factors. Total sentence of 30 months minus time already spent in custody.
[7] I would allow JC’s appeal. With respect to the first alleged error, the trial judge’s improper reliance on stereotype had a material effect on his rejection of JC’s evidence about securing HD’s consent. This finding, in turn, played an important role in the trial judge’s overall evaluation of JC’s credibility. This error cannot be treated as harmless or as not occasioning a miscarriage of justice in what was a pure credibility case. [8] I would also find that the trial judge committed the second alleged error by incorrectly characterizing JC’s motive theory as based on stereotype, and by relying on stereotype and the willingness of HD to endure a criminal trial in rejecting JC’s motive theory. [9] Because of these errors, I would set aside the convictions and order a new trial.
Family Law
Métis Child, Family and Community Services v. H.D.G.J.,2021 MBCA 18: Agency appeals decision of the trial judge granting an order that the child in question be placed with her maternal grandmother without transfer of guardianship, and that the agency continue to be the child’s legal guardian. Ultimate issue is whether there should be a permanent order of guardianship. Appeal court found that trial judge erred in a number of ways; appeal allowed, Agency appointed as permanent guardian.
Youssef v. Letourneau,2021 MBQB 57: Interjurisdictional case for child support from August 2015, based on father’s imputed income. Petitioner (mother) lives in Manitoba and respondent (father) lives in Washington state. Mother originally filed a petition under The Family Maintenance Act seeking child support, and then submitted an application under The ISO Act. Child support arrears and continuing obligations are determined after income imputed.
Maquimot v. Maquimot,2021 MBQB 41: Request to set aside a without notice protection order. Respondent asserts that applicant failed to make full and frank disclosure of all relevant particulars to the JJP. Application dismissed.
In the latest edition: • Weaponizing the Internet: The (New) Tort of Internet Harassment • Sharing (actually not sharing) Post-Separation Increases in Income • Virtual Cross-Examination Etiquette; Rule 1: Don’t Lie
Labour and Employment Law
White Bear First Nation v. Bird, 2021 FCA 50: Appeal of termination, allegedly for cause. Respondent had worked for nearly 14 years at appellant’s on-reserve school, first as a teacher and then as principal, with a clean employment record. Adjudicator found employer had just cause to terminate. Respondent sought judicial review in FC. Application granted, court found that adjudicator erred in failing to apply the correct legal test among other reasons. Justice Diner also found that respondent had been denied an opportunity to respond to complaints against him prior to termination. Appeal dismissed.
Dolski v. Staples Canada ULC,2021 MBQB 29: Plaintiff was dismissed without cause by the defendant, who required her to sign a standard form “Full and Final Release”, which she did. She claims reimbursement from the defendant for travel expenses incurred prior to her termination. The request occurred several months after signing the release. Defendant refuses to pay. Legitimacy of expenses is not questions. Discussion of the nature of a release as a form of contract. Plaintiff’s action allowed.
Chris Drinovz. Can an Employer Require Employees to Get the COVID-19 Vacine (BC)?2021 CanLIIDOCS 228. This has been a hot topic since the news of the first-approved vaccine. Currently in British Columbia there is no specific legislation requiring employees to get vaccinated. However, please note that this could evolve once the vaccine is underway and available to the public at large. The short answer to this question is yes, generally non-unionized employers (and in some cases unionized employers) can require employees to get the vaccine (with certain exceptions discussed below).
Wills, Trusts & Estates
Nicol v. Nicol Estate,2021 MBQB 50: Dispute over administration of estate by Trustee in the disposition of parcels of land included in the estate. Applications request direction from the court in interpreting the provisions of the testator’s will regarding purchasing the parcels of land. Application dismissed.
Re Clark Estate,2021 MBQB 23: Dispute between the deceased’s mother and his former common-law partner over letters of administration. Deceased passed away in the Turks & Caicos Islands. Discusses the differences between jurisdiction simpliciter and the doctrine of forum non conveniens. Turner, J. concludes that the Turks & Caicos Islands are the appropriate forum.
Guest post byMelanie R. Bueckert, Legal Research Counsel – Manitoba Court of Appeal
I am very thankful for all of the excellent resources that the Great Library provides through our Law Society Member Portal. My gratitude has increased greatly during the pandemic, while I have been unable to access the law school’s library. While I often use HeinOnline to locate articles that I have already determined are relevant to my research, I hesitate to run searches of their databases, as the volume of results can be overwhelming. However, in at least two cases in the past few months, my research has been improved substantially by their “More Like This” feature. In case you haven’t used it yet, I will walk you through the very simple process.
Once you have located a relevant article in HeinOnline, look at the top of the document for the “More Like This” button. Click it. It will bring you to a list of results related to your article. If you find that they are not particularly helpful, you can tweak the “Interesting Words” weighting on the left-hand side of the screen or remove some of those words. You can also enter a new filtering term in the “Enter new term” box underneath the “Interesting Words”. You can also limit your results by date range.
According to HeinOnline:
More Like This uses a program which finds ‘interesting words’ in an article, as determined by an algorithm that analyzes the article’s text. …
More Like This compares all articles in HeinOnline and ranks them in order based on which articles’ interesting words are most similar to the first article. Results include the top 50 most relevant articles available in HeinOnline.
The Manitoba Legislature has resumed sitting. Click on “Provincial” under Legislation to view the latest bills. Previous bills introduced in November now have the text added.
Research Assistantship – the CBA Judges Section is seeking a research assistant for the preparation of a guidance document for its members on tips for managing reserve judgments. Please see the attachment for details.
The Law Society is looking for Legal Counsel to join the Complaints Resolution Department.
The Canadian Law of Architecture and Engineering — 3rd Edition
Co-authored by Beverley McLachlin, the former Chief Justice of the Supreme Court of Canada, and seasoned lawyer Arthur Grant, The Canadian Law of Architecture and Engineering, 3rd Edition is an essential guide for architects, engineers and those in the construction industry – including their legal advisors – as it examines the legal principles governing the practice of these professions.
Updated to include new and significant judicial decisions as well as legislative and administrative amendments, this latest edition is sure to become an indispensable reference. In addition to revised content, this text provides readers with practical precedents of forms and contracts that they can use as templates, as well as useful tables setting out the applicable professional code of ethics for each province and territory so architects and engineers understand their duties and obligations.
New Online Titles
From Deslibris
Canadian Competition Law and Policy provides a succinct and accessible analysis of the Competition Act and related legislation, regulations, enforcement guidelines, and other guidance issued by the Competition Bureau. The discussion provides extensive case examples drawn from Canadian, American, European, and other competition law authorities to illuminate concepts and legal tests. The book seeks to offer students, lawyers, and others interested in the subject a practical guide to the context, objectives, and evolution of the Canadian competition law scheme by providing an overview of the jurisprudential and legislative history; an approachable outline of key economic concepts; and a review of methods and approaches applied by economists and lawyers to the analysis of competition law problems.
Book Reviews
Reviews taken from the Canadian Law Library Review Volume 46, no. 1
“An Introduction to the Canadian Law of Restitution and Unjust Enrichment is a concise book that could be described as a 217-page distillation on the subject. As someone unfamiliar with private law, I found this a dense read that took a good amount of energy to digest. It achieves the goal of providing an overview of the subject and offers a fair and objective analysis. The author acknowledges conflicting theories in the law, makes it clear when he is offering his point of view on a concept or theory that is disputed, and leaves it to the reader to draw their own conclusions. This book is recommended for law practitioners working in the areas of contract and tort law.”
Substantive Law
Administrative Law
Levin v. Manitoba Public Insurance Corporation et al,2021 MBCA 16: Application for leave to appeal decision of AICAC. Applicant has a right to appeal the commission’s decision on a question of jurisdiction or of law. None of the arguments the applicant raised fall under these categories, so application dismissed.
Inkster v. The Workers Compensation Board of Manitoba et al,2021 MBCA 14: Applicant applied for compensation for a work-related injury and was denied. His appeal to the WCB Appeal Commission was also denied, and request for judicial review dismissed as well. Issues to consider: did the application judge choose the correct standard, and was it applied properly. Standard was reasonableness. Appeal dismissed.
David Phillip Jones, Q.C. The Year In Review in Administrative Law, December 2020. As presented at the Manitoba Bar Association Midwinter Conference, January 2021.
Bankruptcy Law
Bannerman Lumber Ltd. et al v. Goodman, 2021 MBCA 13: Application by respondent for an extension of time to file and serve notice of an appeal of a finding under s. 178(1)(e) of the BIA. Bannerman had been awarded an arbitration award against Mr. Goodman in 2013. Mr. Goodman made an assignment in bankruptcy in July 2014 which was discharged in 2017. Bannerman made an application to have the award survive the discharge. They were successful, and Goodman did not appeal in time. Discussion of test for an extension of time to appeal. Important criterion is whether there are arguable grounds of appeal. Application dismissed.
… A third form of restructuring transaction, which has come to be referred to as a “reverse vesting transaction,” has recently emerged to facilitate the acquisition of the shares of a restructured debtor company. …
Civil Litigation
Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District,2021 SCC 7: Appeal of arbitration award concerning breach of contract for disposal of waste. Examination of duty to exercise contractual discretion in good faith. From the headnotes: Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Where a party to a contract exercises its discretion unreasonably, that is, in a manner not connected to the underlying purposes of the discretion granted by the contract, its conduct amounts to a breach of the duty to exercise contractual discretionary powers in good faith. Metro’s exercise of discretion was not unreasonable with regard to the purposes for which the discretion was granted and was therefore not a breach of the duty. Accordingly, the arbitrator’s award cannot stand, whether the standard of review is correctness or reasonableness. Additional reasons from Côté, Brown and Rowe JJ, concurring.
Samborski Environmental Ltd. V. Government of Manitoba,2021 MBCA 11: Two related appeals heard at once. Defendant (GOM) appealed chambers judge’s order granting plaintiff an extension of time to file an appeal. Plaintiff appealed motion judge’s dismissal of their claim. Issue is an environmental license in relation to a proposed garden supplies facility with composting component. Previous owner of property had received a license for a composting facility but never went ahead with it. Both appeals dismissed.
Sher-Bett Construction (Manitoba) Inc. v. The Co-operators General Insurance Company,2021 MBCA 10: Appeal over the interpretation and application of an exclusion clause in a builders’ risk broad form insurance policy. Policy had a “frost or freezing” exclusion which was used to deny the claim. Focus of appeal is the meaning of the phrase “caused directly”. Appeal allowed.
Broadband Communications North Inc. v. 6901001 Manitoba Ltd.,2021 MBQB 25: Appeal of arbitration award. Leave to appeal on three specific issues was granted at 2017 MBQB 146. Parties settled one issue and applicant raised additional issues which were not allowed to be added. Discussion of standard of review for commercial arbitration. Both parties have some measure of success.
McLeod Estate v. Cole et al.,2021 MBQB 24: Estate is seeking an order of rescission voiding the sale transaction of certain parcels of land. Estate claims that the deceased lacked the necessary capacity to engage in the contract of sale. Analysis of mental capacity to perform a legal act; professional standard of care; fiduciary duty; fair market value of the lands for sale. Claim dismissed.
Wolfe et al. v. Taylor et al.,2021 MBQB 16: Analysis of intercompany debt claim in a liquidation matter. Liquidator argues that the amount of intercompany debt is confirmed by the materials filed in court. Respondent argues that a full accounting is required. Toews, J. agrees with liquidator and decides that the intercompany debt claim in the amount filed should be accepted by the court.
Aleshka v. Fettes et al.,2021 MBQB 14: Motion for judgment enforcing alleged agreement under Rule 49.09. Applicant states that Respondent Greg Fettes breached an agreement to settle the application. Respondent says a non-binding “framework of an agreement” is all that was agreed to. From a review of the actions of the parties, Kroft, J. cannot conclude that the evidence establishes the three elements required for a binding settlement agreement. Motion dismissed.
“Despite its importance, legal research is often a line item that comes under close scrutiny when a court awards costs to a successful litigant. Two recent cases demonstrate why legal research comes under such scrutiny.”
Criminal Law
R. v. Esseghaier, 2021 SCC 9: Whether the curative proviso is available for jury selection errors. Accused were charged with a series of terrorism offences. Appeal after conviction was bifurcated to deal with jury selection issue first. CA allowed appeal and ordered a new trial, determining that trial judge had erred. SCC allowed appeal and restored convictions. From the headnotes:
The jury for both E and J was improperly constituted. The trial judge erred in both his primary and alternative conclusions with respect to J’s application. The common law discretion to exclude prospective jurors while using rotating triers existed, and the trial judge’s refusal to exercise his discretion was unreasonable. However, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code can be applied to cure the trial judge’s error.
Reasons delivered by Moldaver and Brown, JJ.
R. v. W.O.,2021 SCC 8: Appeal of conviction for sexual assault, incest, and sexual interference (2020 ONCA 392). Per Côté J. — We are all of the view that the appeal should be dismissed, substantially for the reasons of Hoy A.C.J. Main issues on appeal were the significance of a complainant’s failure to make a timely complaint, and insufficiency of reasons.
R. v. C.P.,2021 MBCA 9: Sentence appeal after pleading guilty to robbery and other offences, on the grounds that the sentencing judge imposed an illegal sentence. Crown and defence filed a joint factum and consent to conducting appeal in writing. Joint submissions are accepted, leave to appeal the sentence is granted and appeal allowed.
R. v. McKenzie,2021 MBCA 8: Appellant entered a guilty plea to discharging a firearm with intent and was sentenced as an adult to six years, eight months in custody. He seeks leave to appeal his conviction on the basis that his guilty plea should not have been accepted and the sentence was not fit. Onus is on accused to demonstrate that there is a valid reason to set aside the guilty plea. Appellant had counsel and is not suggesting he had ineffective assistance of counsel. Both leaves to appeal granted but dismissed.
R. v. Sandhu,2021 MBQB 22: Appeal by accused of mandatory minimum sentence and seeks an order that his constitutional challenge to the sentence be heard. Appellant, a foreign national, pleaded guilty, in 2018, in Provincial Court to driving over .08. His sentencing was delayed in order to facilitate completion of his application for a permanent resident visa. Application continued to be delayed, and he was sentenced in January 2020. MMS prevented him from seeking a discharge giving rise to a deportation order. Appeal granted; new sentencing hearing will proceed.
R. v. K.D.M.,2021 MBQB 21: Trial of accused charged with several offences said to have taken place between July 2009 and November 2016 against his biological daughter. Credibility of witnesses is critical. Complainant is more credible than accused and he is found guilty of all offences.
R. v. Moar,2021 MBQB 9: Second degree murder trial. Analysis of post-offence (or after-the-fact) conduct and its role as circumstantial evidence. Careful examination of eye witness testimony to determine which of two parties fired the fatal shot, and whether it was accidental, self-defence, or intentional. Accused found guilty of second degree murder.
R. v. Moar,2021 MBQB 8: Voir dire re admissibility of two video statements in trial for second degree murder. Police were unable to locate witness to serve a subpoena upon him. Both statements were presumptively inadmissible. Necessity was established and only issue to be decided was threshold reliability. Analysis of threshold reliability, procedural reliability, and substantive reliability. Grammond, J. admitted the first statement but not the second.
Beam v. Attorney General of Canada,2021 MBQB 7: Application to quash a production order relating to documents pertaining to an historical sexual assault. Applicant is an elder in a religious order. Standard of review is whether the authorizing judge “could have” granted the authorization, as stated in R. v. Vice Media Canada Inc., 2018 SCC 53 at para. 69. Applicant claims religious privilege. Analysis of whether religious privilege exists in this instance. Production order is upheld and the document is to be disclosed to the RCMP to examine to determine if criminal charges are warranted.
R. v. Gold,2021 MBQB 5: Appeal from summary conviction in provincial court over pointing a firearm. Issues of reliability and credibility of complainant and accused, reasonableness of guilty verdict among other issues raised on appeal. Appeal dismissed.
R. v. K.D.M.,2021 MBQB 2: Ruling on admissibility of complainant’s videotaped statement. Statement was made five years after the offences ended. Accused’s counsel opposes admitting statement on the grounds that it was not made within a reasonable time after the alleged offence. Issue is whether the timing of the taking of the statement and the date of the last alleged incident is reasonable within the meaning of s.715.1(1). Analysis of the meaning of “within a reasonable time”. Statement is admitted.
R. v. K.D.M.,2021 MBQB 1: Ruling on voluntariness of accused’s statement. Accused charged with numerous offences include assault, sexual interference and incest. Crown seeks admissibility of accused’s video-recorded statement to WPS for the purpose of cross-examination. Accused’s counsel claims statement was not made voluntarily. Discussion of excessive interviewing tactics. Statement allowed.
R. Solomon, A. Sohrevardi, E. Dumschat, L. MacLeod. Cannabis and Driving : The Provincial and Territorial Legislative Mosaic. 2020 68 C.L.Q. 165 (WLNC – request a copy). The provinces and territories have recently amended their drug-related driving legislation, established retail cannabis distribution systems and enacted related regulatory controls. This legislative flurry has been driven and shaped by three major changes in the federal criminal law that came into force in 2018.
Elyk v. Elyk,2021 MBQB 26: Trial over family property. Parties separated several years ago, and managed to settle many issues prior to trial. Significant analysis of the definition of occupation rent, and whether it applies in this case. Divorce judgment also granted.
Church v. Church,2021 MBQB 20: Respondent’s motion to vary child support in an evolving split custodial regime. Payor is an Indigenous person with treaty status earning income on a reserve. Issues are what are the incomes of the parties; and is a retroactive adjustment to child support appropriate. In order to vary child support, there must be a change in circumstances; this is easily met. Determination of income of the parties; respondent’s estimate is down from previous years due to pandemic. Explanation of whether there should be a retroactive adjustment, as per D.B.S.. Variation allowed.
Carmyn Alyson Aleshka vs. Gregory Fettes,2021 MBQB 19: Parties have been part of the case flow management process. Husband seeks divorce through a summary determination. Wife opposes, seeking a severance of the issues. Examination of the co-existence of the rule for severance and the rules for summary judgment. Dueck, J. determines it may take another two years for the parties to deal with their property settlement issues. Following analysis of previous legal proceedings, order allowed.
Tomsic v. Bilyk,2021 MBQB 18: Request for variation of Protection Order. October 2018 Protection Order was for mother alone. In August 2019 mother requested a second protection order. Father had supervised access to children. There were no concerns by the supervisor regarding father’s conduct with children. Father had various breaches of order and was sentenced to a period of incarceration. Analysis of the role of a protection order in order to prevent domestic violence and it is not to be used to deal with parenting issues. Success mixed.
Ross v. Berens,2021 MBQB 10: Supplemental reasons to an oral decision at the hearing of an emergency motion. Respondent applied for a protection order on behalf of both himself and their child on a without notice basis. He did not tell JJP that the petitioner had already filed a petition and served the respondent. Motion for urgent relief granted allowing mother contact with the child, and protection order is set aside.
Ken Nathens.Battle of the Experts, The Lawyers Daily, February 26, 2021. Clarification on the use of experts in family law. Comment on Frondall v. Frondall,2020 SKCA 135.
Nicholas Bala. Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act. (2020) 39 C.F.L.Q. 45 (WLNC – request a copy). … Bill C-78 will have only limited impact on those Canadian family lawyers and parents who have already adopted child-focused, less litigious approaches to the resolution of family disputes. However, the amendments should have an impact on practitioners who have not made that shift, as well as on self-represented litigants who may look to the Divorce Act for guidance. Further, the relocation scheme in Bill C-78 will substantially change the law governing this contentious issue.
Wills, Trusts & Estates
Syryk v. Kuharski,2021 MBQB 13: Plaintiff’s action to recover money lent to her brother during his lifetime, from his estate. Plaintiff does not have an accurate ledger indicating exactly how much money she lent. Defendant executor relies on statute of limitations to bar most of the claims. Menzies, J. determines this can be determined through summary judgment. Only a small amount of loans are deemed to be still outstanding.
These changes have come about as a result of the Divorce Act amendments.
DIVORCE ACT AMENDMENTS RULES On January 29, 2021, The Queen’s Bench Statutory Rules Committee met and passed Queen’s Bench Rule Amendments dealing with Rule 70 amendments, required by the Divorce Act amendments which come into effect on March 1, 2021. It includes an overview of the changes to Rule 70.
The full text of the amendments along with the forms, Man. Reg. 7/2021, are posted on the Manitoba Laws website.
VERSION 6 OF THE MANDATORY STANDARD CLAUSES FOR FAMILY DIVISION ORDERS The use of Standard Clauses in Family Division orders has been mandatory since 1998 [see Court of Queen’s Bench Rules 70.31(11), (12) and (13). Standard Clauses reflect the intent of a judge’s decision in a consistent way and make the terms of orders more readily understood by parties and agencies dealing with the order.
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.
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