eLex July 2020

Table of Contents

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

News


In the News

COVID-19 Content on CanLII and How to Find it

… CanLII now has more than 2,290 pieces of content relating to COVID-19, which include at least 2,000 cases and 150 pieces of legislation. CanLII continues to update its collection as documents are made available by courts and tribunals. …

Family Law Manitoba 

The first phase of a new single-window Family Resolution Service. “The new Family Resolution Service delivers a seamless continuum of affordable services to all Manitobans, and expands front-end support and out of court options.” 


Court Notices & Practice Directions

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

Notice

Manitoba Court of Appeal

Resumption of in-person appeal hearings and chambers motions (June 24, 2020)

Manitoba Court of Queen’s Bench

Scheduling Protocols for family division motions and case conferences via teleconference or video conference (June 23, 2020)

Triage Screening List

Provincial Court (Winnipeg Centre)

COVID-19 suspension ad re-opening of additional courts (June 24, 2020)

Child Protection Hearings (June 23, 2020)

Update to the Judges and Judicial Justice of the Peace Weekend Bail Courts (May 28, 2020)

Pre-Trial Coordinator Timelines (May 28, 2020)

Teleconference Availability in Provincial Court courtrooms (May 26, 2020)


Discipline Digests

Jhanji, Vibhu Raj

New Library Resources

Emond Publications Criminal Law Series – several titles are already been updated. This e-book series is available to all Law Society members. Sign in to the Members Portal, click on “Library Resources” at the bottom of the left-hand navigation pane and then select the series. All 15 titles are written from the point of view of prosecution and defence. 

Substantive Law


Administrative Law

3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103: Appeal of CRTC findings on Notice of Violation (NOV) that appellant had committed four violations of CASL and the resulting fines. Appellant also asserted that CASL is unconstitutional. Parties agreed that CRTC has the jurisdiction to determine the constitutional question. Standard of review is correctness on the constitutional question, and standard of palpable and overriding error on NOV. Appeal dismissed. 

Entertainment Software Assoc. v. Society Composers, 2020 FCA 100: Issue of the appropriateness of a tariff on music from a streaming service. Analysis of s. 2.4(1.1) as added by the Copyright Modernization Act, S.C. 2012, c.20. Discussion of Vavilov and its effect on setting the standard of review for administrative decisions. FCA determined that the Copyright Board’s interpretation of s. 2.4(1.1) cannot stand. Appropriate remedy is to quash the decision and grant costs to the applicants. 

The College of Pharmacists v. Jorgenson, 2020 MBQB 88: Request for summary judgment in claim for a permanent injunction and damages over defamation. Defendant published a variety of statements claiming the plaintiffs were responsible for the deaths of several Indigenous people in Northern Manitoba. Defendant did not provide any evidence backing up his assertions. Summary judgment is granted, along with significant costs. 

Qualico Developments (Winnipeg) Ltd. v. Winnipeg (City of) et al., 2020 MBQB 87: Application for judicial review and an order of mandamus to amend the 2019 assessment and tax rolls of the applicant. Applicant sold a strip of property to the city, resulting in an amendment to the assessment of the property’s value. Applicant did not appeal future assessments, relying on the carry forward principle. Applicant was assessed on higher value. Standard of review is reasonableness, not correctness. Application granted.


Bankruptcy Law


Civil Litigation

Uber Technologies Inc. v. Heller, 2020 SCC 16 : Respondent started a class proceeding in Ontario for violations of employment standards législation. Appellant brought motion to stay the class based on the arbitration clause. Motion judge stayed the proceeding, holding that the arbitration agreement’s validity had to be determined by arbitration. ONCA allowed the appeal. Many issues to resolve : Is the arbitration clause unconscionable? Is there an inequality of bargaining power? Does the Ontario International Commercial Arbitration Act apply or the Arbitration Act? Is there an issue of accessibility? Appeal dismissed : per Wagner C.J. and Abella, Moldaver, Karakatsanis, Rowe, Martin and Kasirer JJ; Côté J. dissenting. 

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13: Minority language education rights. Analysis of s. 23 of The Charter and its remedial purpose. Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: Appeal allowed in part; Brown and Rowe JJ. dissenting in part. 

Winnipeg Condominium Corporation 479 v. 520 Portage Avenue Ltd et al, 2020 MBCA 66: Appeal of decision of application judge transferring ownership of parking area from the developer to the condominium corporation. Developer retained ownership of parking area as a unit, then leased it to the corporation. Purchasers of condominiums thought it was part of the common elements. Intervenor held three registered mortgages against the parking unit. Appellant (Developer) believed matter should proceed by trial, not application. Appeal dismissed. 

Samborski Environmental Ltd. v. The Government of Manitoba et al, 2020 MBCA 63: Motion for an extension of time to file and serve a notice of appeal. Issue of whether an environmental license allowing a composting operation on the property was valid or not. Detailed analysis of s. 90(1)(a) of The Court of Queen’s Bench Act concerning when leave to appeal is required for a consent order. Motion granted. 

Rebillard v. Winnipeg (Police Service) et al, 2020 MBCA 59: Appeal of dismissal of lawsuit alleging false arrest, false imprisonment and malicious prosecution. Plaintiff had history of animosity with her neighbour. WPS obtained warrant for her arrest; Crown later stayed all charges. Appeal centred on whether defendants had grounds to arrest and charge her; trial judge erred in evidentiary rulings; and trial judge failed to assist her as a self-represented litigant. Appeal dismissed, except for order for throwaway costs, which were allowed. 

Sagkeeng v. Government of Manitoba et al., 2020 MBQB 83: Applicant alleges that the respondents breached the duty to consult and accommodate in respect of a project permitting construction on traditional and ancestral territory. Minister of Sustainable Development had issued a license to Manitoba Hydro permitting the construction pursuant to s.12 of The Environment Act. Applicant is seeking judicial review of the minister’s licensing decision. Explanation of the duty to consult as well as a detailed review of the facts. Application dismissed. 

Weremy v. The Government of Manitoba, 2020 MBQB 85: Action for class action certification relating to allegations of physical and sexual abuse of the residents of the Manitoba Developmental Centre (MDC). Detailed analysis of all the issues under s.4 of The Class Proceedings Act, Certification of a Class Proceeding. Claim is certified.


Corporate & Commercial Law

Canada v. Cameco Corporation, 2020 FCA 112: Appeal of decision of Tax Court on the issue of s.247(2)(b) and (d) of the Income Tax Act. The decision of the Tax Court reversed the Minister’s allocation of the profit of a foreign subsidiary of a Canadian corporation to the parent Canadian corporation. Main focus was the application of the transfer price rules in s.247. Appeal dismissed.

Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108: Order on intervenors. Six parties have moved to intervene in this appeal. In a no-nonsense order, Stratas, J.A. sets out the terms for the parties. First, they are collected into groups based on broadly similar submissions. Each group is allowed to submit one memorandum of fact and law. They cannot add to the evidentiary record. Oral submissions will be determined by the panel hearing the appeal. 

Zohar Levy and Nicholas Carmichael. Covid-19 as a Force Majeure, and Other Contractual Considerations. Business Law Reports (2020), 2 B.L.R. (6th) 32 (WLNC – request a copy).  

Teresa Scassa, Amy Salyzyn, Jena McGill, Suzanne Bouclin. Developing Privacy Best Practices for Direct-to-Public Legal Apps: Observations and Lessons Learned, (2020) 18 Can. J. L. & Tech. 1 (WLNC – request a copy). 

Alexi N. Wood and Jennifer Saville. Tort of Harassment: Crying Out for a Remedy, (2020) 38 Adv J. No. 4, 26 – 28 (LAQL – request a copy). 


Criminal Law

R. v. Zora, 2020 SCC 14: Whether mens rea for offence of failure to comply with conditions of undertaking is to be assessed on a subjective or objective standard. Appellant was charged under s. 145(3) of the Criminal Code for breaching his curfew and breaching his condition to answer the door. Analysis of subjective and objective mens rea. Appeal allowed; new trial ordered. Decision delivered by Martin, J.

R. v. Li, 2020 SCC 12: Companion case to R. v. Ahmad, 2020 SCC 11. No entrapment this time. Guilty plea entered, matter remitted for sentencing. Oral decision of the Court. 

R v. Dhaliwal, 2020 MBCA 65: Appeal of sentence after conviction for fraud and forgery. Accused is a citizen of India and permanent resident of Canada. Based on his sentence he suffered collateral immigration consequences. Counsel should have brought this to the attention of the judge, however, it is also the judge’s duty to take this into consideration. Sentence was varied to six months less a day, with the restitution remaining. 

R. v. J.A.W., 2020 MBCA 62: Appeal of conviction and sentence for sexual assault. Accused based appeal on a misapprehension of the evidence by the trial judge. Court noted that it must be careful to not retry the case. “An evaluation of testimony may only be interfered with where it cannot be supported by any reasonable view of the evidence” (para. 13). Appeals dismissed. 

R. v. Singh et al, 2020 MBCA 61: Appeals of convictions and sentences for sexual assault. Main focus of appeal is that the trial judge misapprehended the DNA evidence. CA found that trial judge took into account the limitations of the forensic evidence. Both appeals dismissed. 

R. v. Bonni, 2020 MBCA 64: Appeal of sexual assault conviction. Accused argues four errors: judge applied a higher level of scrutiny of the evidence of the defence; he misapprehended the evidence; that he improperly considered the accused’s prior relationship with the complainant; and he should not have allowed the Crown to call rebuttal evidence. Appeal dismissed. 

R. v. Brar, 2020 MBCA 58: Appeal from conviction of sexual assault on grounds that trial judge erred in dismissing his motion for a stay under s.11(b) of the Charter. Argument for stay was conducted after trial, going against court recommendations (but with consensus of counsel). Judge issued a 28 page endorsement with reasons for dismissing motion. Monnin, J.A. issued comment on inappropriateness of such a long endorsement (paras 41-45). Appeal dismissed.

R. v. McLeod, 2020 MBQB 80: Appeal of conviction for assaulting a peace officer engaged in the execution of her duties. Accused argues First Nation safety officer was not acting as a peace officer in law when the assault took place, therefore he should be just convicted of the included offence of assault. Explanation of the three sources of authority for the statutory scheme governing First Nation safety officers.  As issue is a question of law, standard of review is correctness. Appeal dismissed. 

Tim Quigley. R. v. Friesen: Sentencing Guidance from the Supreme Court of Canada (2020), 62 C.R. (7th) 77 (WLNC – request a copy).

The primary role of our highest court is, of course, to act as the court of last resort in deciding individual cases. The Court, however, also plays an influential role by providing guidance to lower courts. It does not always accept this role in a comprehensive manner but it certainly has in R. v. Friesen. To state the ratio decidendi of the case would be relatively simple: The Manitoba Court of Appeal erred in finding that the sentencing judge in a case of sexual interference against a young child had erred in principle. However, it is much more likely that Friesen will become authority for the proposition that sentences for sexual offences against children must increase. That is certainly a prominent part of the message delivered by the Court. At the same time, though, the Court seized the opportunity to re-state or to re-formulate several other principles that should govern the sentencing process.

Rowan Kunitz. At the Mercy of the Court: Canadian Sentencing Principles and the Concept of Mercy. (2020) 25 Can. Crim. L. Rev. 1 (WLNC – request a copy). 

Understood via its sentencing versus pardon, administrative, or constitutional lenses, mercy remains understudied in Canada’s courtroom context. This has resulted in a gap between Mercy’s theoretical underpinnings and its courtroom application. This gap is rooted in mercy’s theoretical and historical definitions, corrective versus sentencing understandings, and limited Canadian focused legal scholarship.


Family Law

Smederovac v Eichkorn, 2020 MBCA 57: Appeal of order for child support and order for costs after a two day trial. Trial was focused on determination of income. Appeal over judge ordering an amount of child support over and above the set-off amount in a shared custody regime. Standard of review re child support is highly deferential; analysis of s.9 of the Guidelines. Appeal allowed; trial judge erred in ordering an increased set-off amount without explaining how she arrived at that figure. Parties still have some issues to be settled, so matter is sent back to Family Division. Costs are reassessed. 

Peters v. Peters, 2020 MBQB 94: Motion to vary final order, allowing termination of spousal support, retroactive reduction in child support and remission of arrears of child and spousal support. Threshold requirement of a material change in circumstances has been met. Respondent’s financial disclosure is inadequate; Petitioner requests income be impugned to him. Thomson, J. grants reduction of annual income for support purposes but not to the level the respondent requested. 

Dueck v. Dueck, 2020 MBQB 89: Motion by father to increase his periods of care and control. Father is on probation from assaulting mother, and is not allowed to have direct contact with her. Mother has agreed to an Interim Order on care and control to facilitate father’s access. Father seeks shared care and control. Mother is not opposed to the care and control schedule but opposes shared care and control. Interim Order is granted allowing father a little more time with the child. 

Nicholas Bala. Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act. (2020) 39 CFLQ 45 (WLNC – request a copy). 

Since the Report of the Special Parliamentary Committee in 1998, it has been widely acknowledged that the parenting provisions of Canada’s Divorce Act were in need of reform. After a couple of unsuccessful efforts to enact reforms in the early years of this century, in May 2018 the Liberal government introduced Bill C-78, proposing significant changes to the law governing post-divorce parenting. The Bill had widespread support from family lawyers, judges, and scholars, as well as mediators, and mental health professionals. There was, however, controversy about some parts of Bill C-78 at the Parliamentary Hearings, and minor amendments were made as a result of the Committee process.


Labour & Employment

The Portage la Prairie Teachers’ Association v. The Portage la Prairie School Division, 2020 MBQB 93: Application for an order quashing the award of an arbitration panel determining that a directive that teachers remain in school and available until 4:00 p.m., whether they have been assigned duties after the end of the instructional day at 3:20 p.m. Panel concluded that the directive was fair and reasonable. Neither the collective agreement nor legislation governs the directive. Award upheld, application dismissed. 

Manitoba Federation of Labour et al v. The Government of Manitoba, 2020 MBQB 92: Argument over whether The Public Services Sustainability Act, S.M. 2017 c. 24, violates the Plaintiffs’ right to freedom of association. The Act was passed in 2017 but has not yet been proclaimed. McKelvey, J. issued a 288 page decision that ultimately decided in the plaintiffs’ favour. 

UNIFOR and its Local 100 v. Canadian National Railway, 2020 MBQB 91: Application for judicial review of an arbitration decision. Employee was involved in a near-miss accident, and was tested for drugs and alcohol as per CNR policy. Oral fluid sample tested positive for marihuana and cocaine; employee was terminated. Several issues discussed: standard of review; breach of duty of procedural fairness; misapprehension of evidence; failure to apply the collective agreement and the employer’s policy in determining the employee’s responsibility. Application denied. 

Gaucher v. Manitoba Public Insurance Corporation, 2020 MBQB 84: Claim for wrongful dismissal. Plaintiff claims defendant had no cause to terminate her without notice; defendant claims she was terminated for just cause. Issues include cannabis in the workplace before legalization, condoning a subordinate’s illegal conduct, losing trust of the employer. Defendant is successful. Perlmutter, A.C.J.Q.B includes damages he would have assessed if plaintiff had been successful.  

Sarah Marsden. “Who Bears the Burden of Enforcement: The Regulation of Workers and

Employers in Canada’s Migrant Work Programs” (2019) 22:1 C.L.E.L.J. 1. (Available on HeinOnline). 


Wills, Trusts & Estates

John E.S. Poyser. Annotation: Geluch v. Geluch Estate. (2020) 55 E.T.R. (4th) 133 (WLNC – requst a copy). 

The decision in Geluch Estate is interesting for three different reasons. First, dealing with capacity, the decision is a rare example of a court expressly addressing the analytical framework applicable to a combination of inter vivos and testamentary instruments intertwined into a single estate plan. Second, dealing with knowledge and approval, the court struck down a residue clause contained in a will based on the so-called “doctrine of righteousness.” Third, dealing with remedy, the court struck down the residue clause but allowed the remaining clauses in the will, including bequests, to go to probate, effectively severing the bad from the good.

Legislation


Federal

43rd Parliament, 1st Session

43rd Parliament, 1st Session
C-19
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title
Appropriation Act No. 3, 2020-21
Statute of Canada: 2020, c. 10
Progress: Royal Assent
Show Details
43rd Parliament, 1st Session

C-18
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title
Appropriation Act No. 2, 2020-21
Statute of Canada: 2020, c. 9
Progress: Royal Assent
Show Details

43rd Parliament, 1st Session
S-214
An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation
Progress: Introduction and First Reading in the Senate
Show Details

43rd Parliament, 1st Session
S-208
An Act to amend the Criminal Code (independence of the judiciary)
Progress: Introduction and First Reading in the Senate
Show Details

Provincial

42nd Legislature, 2nd Session

House adjourned May 27, 2020 until the call of the Speaker. No new activity.

eLex June 2020

Table of Contents

News Substantive Law Legislation
In the News Administrative Law Federal
Court Notices & Practice Directions Bankruptcy Law Provincial
Discipline Digests Civil Litigation  
New Library Resources Corporate & Commercial  
  Criminal Law  
  Family Law  
  Labour & Employment  
  Wills, Trusts & Estates  

News


In the News


Court Notices & Practice Directions

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

Notice
Provincial Court (Winnipeg Centre)
Re: Scheduling of Criminal Code Dispositions


New Library Resources

Trotter, Gary T. The Law of Bail in Canada, 3rd ed.
All aspects of judicial interim release from all jurisdictions in Canada.

Substantive Law


Administrative Law

Canada (Attorney General) v. Poirier, 2020 FCA 98. Appeal from Appeal Division of the Social Security Tribunal. Respondent applied for disability pension under CPP but was denied by General Division which determined that he had residual work capacity, but his attempts to find alternative work weren’t serious. Appeal division concluded the General Division made an error of fact and reversed the decision. For judicial review, the standard of review is reasonableness. Locke, J.A. allowed the appeal and remitted it for reconsideration by a differently-constituted panel of the Appeal Division. 

Jhanji v. The Law Society of Manitoba, 2020 MBCA 48. Applicant was suspended from the practice of law pending completion of disciplinary proceedings. Court of Queen’s Bench judge dismissed his appeal of the interim suspension. Applicant now appeals that appeal. Applicant has not shown any basis to intervene in the discretionary decision of the Complaints Investigation Committee. Appeal dismissed. 

Stadler v. Director, St Boniface/St Vital, 2020 MBCA 46. Does requiring a disabled recipient of income assistance to apply for CPP retirement benefits early (age 60) pursuant to s.12.1(2) of Manitoba Assistance Regulation infringe on his equality rights under s.15 of The Charter? Appellant original appealed to the Social Services Appeal Board which determined it did not have the jurisdiction to hear the Charter arguments. In 2017 this court determined that it did (2017 MBCA 108). A new panel of the Board upheld the decision, and the appellant appealed again. Appeal allowed. 

Alejandro Gonzalez, The Evolution of the Duty to Consult: A Framework for Improving Consultations, Negotiations, and Reconciliation, 2020 10-1 Western Journal of Legal Studies 1, 2020 CanLIIDocs 680, retrieved on 2020-06-04. 

Alice Woolley and Amy Salyzyn, Protecting the Public Interest: Law Society Decision-Making After Trinity Western University, 2019 97-1 Canadian Bar Review 70, 2019 CanLIIDocs 1599, retrieved on 2020-06-04.


Bankruptcy Law

9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10. Appeal from Quebec of an ongoing proceeding instituted under the Companies Creditors Arrangement Act. Two decisions by the supervising judge are at issue: whether a supervising judge has the discretion to bar a creditor from voting on a plan of arrangement where they determine that the creditor is acting for an improper purpose; and whether the supervising judge can approve litigation funding as interim financing. Analysis of s.11 of the CCAA. Appeal allowed, supervising judge’s order reinstated. SCC determined that the Court of Appeal failed to treat the supervising judge’s decisions with the appropriate degree of deference. Joint reasons for judgment: Wagner C.J. and Moldaver J. (Abella, Karakatsanis, Côté, Rowe and Kasirer JJ. concurring).

Bannerman Lumber Ltd. et al. v. Goodman, 2020 MBQB 76. Application for a declaration under s. 178(1) of the BIA that a debt should survive discharge of bankruptcy. The specific provision states that an order of discharge does not release the bankrupt from any debt or liability resulting from obtaining property or services under false pretences. “An issue of importance in the present case is the degree of knowledge required to establish deceit.” (para. 10). Applicants are successful. 

Tyler McNaughton. Case Comment – Re Brennan. Canadian Bankruptcy Reports (Articles) (2020) 77 C.B.R. (6th) 20 (WLNC, request a copy). (2019 ONSC 4712). 


Civil Litigation

Albo v The Winnipeg Free Press et al, 2020 MBCA 50. Appeal regarding contractual interpretation. Parties negotiated a contract for consultation leading to the defendant publishing a series of articles. Opportunity arose to compile the articles into a book. Plaintiff was unaware and sued for royalties. Analysis of “good faith performance of the contract” (para 43). Appeal dismissed. 

Green v University of Winnipeg, 2020 MBCA 49. Applicant seeks leave to appeal an order declaring him a vexatious litigant. Leave denied. 

Linda R. Rothstein. Inside the Woodshed: Preparing the Direct Examination of a Key Witness in a Civil Trial, 38 Adv. J. No. 4, 20-22 (Spring 2020) (LAQL – request a copy). 

Carla L. Maclean, Lynn Smith & Itiel E. Dror. Experts on Trial: Unearthing Bias in Scientific Evidence, (2020) 53 U.B.C. L. Rev. 101 – 139 (LAQL – request a copy). 


Corporate & Commercial Law

Laliberté v. Canada, 2020 FCA 97. Appeal of whether a trip to the International Space Station is a shareholder benefit versus a stunt-type promotional event. Minister of National Revenue (MNR) assessed the appellant with a shareholder benefit equal to the cost of the trip. Tax Court ordered that the appellant be reassessed based on a shareholder benefit equal to 90% of the cost of the trip. Appeal dismissed. 

Roofmart Ontario Inc. v. Canada (National Revenue), 2020 FCA 85. Appeal of order under the “unnamed persons requirement” (UPR) of the ITA and ETA. MNR was investigating compliance in the residential construction industry. Studies have estimated that as much as 20% of residential construction is unreported. CRA identified the appellant as the subject of a UPR due to the size of its business, its clientele and its location. Appellant raised three objections: that the application is ultra vires; the Federal Court erred in its application of the statutory criteria; and the Court applied the incorrect burden of proof. Appeal dismissed. 

State Industries Ltd. et al. v. Summers Equipment Inc. et al., 2020 MBQB 77. Defendants are seeking the setting aside of an Anton Piller Order (APO) authorized in September 2018. The plaintiffs claim the defendants breached the implied terms of their employment agreements. Onus is on defendants to satisfy the court that the APO should be set aside on the basis that the plaintiffs failed to comply with their duty of candor and disclosure. Analysis of the evidence presented to grant the APO along with the counter-argument. Bond, J. determined that order should not be set aside. 

Nygard International Partnership v. Canadian Broadcasting Corporation et al., Nygard International Partnership v. Prowse, Nygard International Partnership v. Neal, 2020 MBQB 71. Three motions to dismiss for delay, in accordance with Queen’s Bench Rules 24.01 and 24.02. Summary of the principles to review in determining if the delay is unreasonable or not is set out in para. 18. Master Clearwater found mixed results.


Ryan Morasiewicz. Should an Outdoor/Adventure Business Adopt a COVID-19-Specific Liability Waiver?, MLT Aikins (Vancouver), published May 9, 2020.


Criminal Law

R. v. Ahmad, 2020 SCC 11. Two appeals combined on the application of the law of entrapment.  In each appeal police received an unsubstantiated tip that a particular phone number was used in a drug operation. Police officers called the numbers and requested drugs and arranged meetings with the person who answered. At trial, both accused argued that the charges should be stayed on the basis of entrapment. SCC held that appeal by A. should be dismissed; appeal by W. should be allowed. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. Dissenting on W.: Wagner, C.J., Moldaver, Côté, and Rowe JJ.

R. v. Neepin, 2020 MBCA 55. Appeal of manslaughter sentence. At issue is whether the trial judge erred in principle in findings of fact, how he addressed the accused’s the moral culpability in light of these factors and the Gladue factors, and whether the sentence is harsh and excessive. Appeal allowed and sentence reduced to seven years. 

R. v. Nelson, 2020 MBCA 53. Appeal of convictions for aggravated assault, robbery with a firearm, and three weapons offences. The victim in this instance was unable to identify the accused but a witness did and gave a videotaped statement. The witness did not show up for trial until she was detained on a material witness warrant. The witness declined to review her statement and could not recall some details while testifying. Key issue at trial was whether there was proof beyond a reasonable doubt of the identity of the attackers. Issue on appeal is whether the trial judge erred in allowing the witness to testify after reviewing her prior statement. Appeal dismissed. 

R. v. K.N.D.W., 2020 MBCA 52. Crown appeal against sentence. Accused was convicted of sexual assault and sentenced to two years less a day. Crown argues that the sentencing judge erred by underemphasizing the brutal nature of the sexual assault and the risk posed by the accused given his prior record, and failing to take into account the traumatic impact on the children. Appeal allowed, sentence increased to five years. 

R. v. Thompsett, 2020 MBCA 47. Accused seeks leave to appeal his sentence and a restitution order. Accused breached his judicial interim release by leaving a residential treatment program on the day he arrived. He asserts the sentencing judge erred in principle by considering the breach conviction as an aggravating factor. On reconsideration of restitution order, fresh evidence showed the amount should be varied as requested, with Crown consenting. Leave to appeal allowed, appeal from sentence dismissed. 

R. v. Miles, 2020 MBCA 45. Accused appeals conviction for second degree murder on the basis that the verdict was unreasonable. He  argues that the trial judge erred in assessing the evidence of a key witness, erred in the application of the law regarding inferences and post-offence conduct, and erred in the finding that the accused’s intoxication did not negate the intent to commit murder. Appeal dismissed. 

Re DNA Warrant for Malcolm, 2020 MBPC 23. Reasons for the need of a police officer to swear an information to obtain a DNA warrant before a provincial court judge. Reconsideration of decision of Judge Pollack from 2010 (Winnipeg (City) Police Service (Re)). Krahn, A.C.P.J. determines it is acceptable for police officers to submit their informations to obtain DNA warrants sworn before a commissioner for oaths. 

R v Jachetta, 2020 MBPC 21. Decision on legal test to stand fitness for trial. Accused had been disbarred for misappropriation of trust funds and then charged by police with criminal breach of trust, fraud, false pretences and theft. “For accused to be fit, he must possess the ability to engage with the trial process in a meaningful way” (para 35). Krahn, A.C.P.J. finds he is unfit to stand trial. 

Paul L. Moreau. COVID-19 and the Tertiary Ground.“This article examines the considerations of Canadian jurists of the impact of the pandemic on decisions of judicial interim release.” 2020 CanLIIDocs 676

Adelina Iftene and Jocelyn Downie. End-of-Life Care for Federally Incarcerated Individuals in Canada, 2020 14-1 McGill Journal of Law and Health 1, 2020 CanLIIDocs 551, retrieved on 2020-06-04.


Family Law

Usman v Usman, 2020 MBCA 54. Appeal of two orders made by chambers judge regarding the division of property acquired during the marriage. Appellant was found in contempt of the first order (Everett order) and given an extension to comply with it. When the matter came up again, he had still not complied with it (Dueck order) so respondent was given carriage to sell the property. Appellant has continued to refuse to cooperate. Appeal dismissed, costs to the respondent and appellant was ordered to pay costs to the court because he did not include a copy of reasons from one judge for his appeal book. 

CFS Western Manitoba v. C.J.P. et al., 2020 MBQB 74. Children had been placed with grandparents and great-grandparents under temporary orders. Issue is whether children, being returned to mother, need to continue to be in need of protection. Onus is on Agency to prove children are still in need of protection. Order is based on the best interests of the children. Abel, J. also comments on use of judicial resources in resolving this matter, and effect of COVID-19. 

Gray v. Gray, 2020 MBQB 69. Father seeks order on issues related to property, interim child support including a contribution towards special or extraordinary expenses; mother seeks interim spousal support and a no contact or communication order. Father has primary care and control of children. Trial on the issues is set for end of November 2020. Some issues determined on summary judgment. 

Cory Giordano.  Family Law: Stays; Child-Custody & Access. CanLII ConnectsCase Comment: Jonzon v. Yuill, 2020 ABCA 219

Kathleen Hammond. Relationally Speaking: The Implications of Treating Embryos as Property in a Canadian Context, (2019) 32 Can. J. Fam. L. 323 – 386. (LAQL – request a copy).


Labour & Employment

Lairenjam v. Unifor National Council 4000, 2020 FCA 96. Complaint with Canada Industrial Relations Board alleging Union had breached its duty of fair representation. Applicant lost his job when Ministry of Transportation issued a ticket for failing to maintain his truck in a safe operating condition. Union declined to support his grievance because he already had four Step 3 discipline assessments. CIRB dismissed the complaint, then six months later the applicant asked for reconsideration due to new developments. CIRB declined to review; this is a an application for judicial review. Standard of review is reasonableness. Review dismissed. 

Brandon (City) et al. v. Brandon Professional Firefights’/Paramedics’ Association, 2020 MBQB 73. Application for order quashing an arbitrator’s award regarding banked overtime. Standard of review is reasonableness as articulated in Vavilov. City argued that arbitrator exceeded her jurisdiction and erred by imposing a split onus on the issue; Union argued that while it, as the grievor, bore the legal onus of proof, the arbitrator properly imposed a shifting evidential burden of proof (para 11 and 12). Application is dismissed and the award upheld. 


Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government of Manitoba, The Honourable Scott Fielding, 2020 MBQB 68. Application for an order of mandamus to appoint an arbitration board to settle matters respecting the collective agreement renewal. Keyser, J. concluded that MGEU is entitled to the mandamus relief.


Wills, Trusts & Estates

Durand v. Durand et al., 2020 MBQB 70. Application by widow of deceased to remove one co-executor, due to a conflict of interest, and replace him with another. The estate is a farm corporation. Widow is dependent on payments from the spousal trust to supplement her pension. All other beneficiaries support mother’s application. Application granted. 

Estates, Trusts and Pensions Journal, (2020) Vol. 39, No. 3. (Request a copy). 

Legislation


Federal

43rd Parliament, 1st Session
C-16
An Act to amend the Canadian Dairy Commission Act
Statute of Canada: 2020, c. 8
Progress: 
Show Details

43rd Parliament, 1st Session
C-15
An Act respecting Canada emergency student benefits (coronavirus disease 2019)
Short Title
Canada Emergency Student Benefit Act
Statute of Canada: 2020, c. 7
Progress: 
Show Details

43rd Parliament, 1st Session
C-242
An Act to amend the Employment Insurance Act (illness, injury or quarantine)
Progress: 
Show Details

43rd Parliament, 1st Session
C-14
A second Act respecting certain measures in response to COVID-19
Short Title
COVID-19 Emergency Response Act, No. 2
Statute of Canada: 2020, c. 6
Progress: 
Show Details


Provincial

42nd Legislature, 2nd Session

House adjourned May 27, 2020 until the call of the Speaker. 

60Hon. Mr. Fielding
Minister of Finance
The Appropriation Act, 2020 (COVID-19 Response)PDFSM 2020, c. 14
61Hon. Mr. Fielding
Minister of Finance
The Loan Act, 2020PDFSM 2020, c. 15
62Hon. Mr. Fielding
Minister of Finance
The Fuel Tax Amendment and Retail Sales Tax Amendment ActPDFSM 2020, c. 12

eLex May 2020

Table of Contents

News Substantive Law Legislation
In the News Administrative Law Federal
Court Notices & Practice Directions Bankruptcy Law Provincial
Discipline Digests Civil Litigation  
New Library Resources Corporate & Commercial  
  Criminal Law  
  Family Law  
  Labour & Employment  
  Wills, Trusts & Estates  

News


In the News

COVID-19


Court Notices & Practice Directions

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

New Library Resources

Substantive Law


Administrative Law

ImagineAbility Inc. v. City of Winnipeg, 2020 MBCA 39 – Appeal of order of mandamus granted by the reviewing judge requiring tax collector for the City to correct tax rolls. Discussion of s.340 of The City of Winnipeg Charter, S.M. 2002, c. 39 and reasonableness. Appeal allowed. 

The Law Society of Manitoba v. Kalo, 2020 MBCA 37 – Appeal of costs award for an appeal of a permanent injunction. Court found no merit to the appeal and ordered costs against the respondent, including additional costs intended to censure the respondent’s behaviour in court. 

Manitoba Metis Federation Inc. v. Brian Pallister et al., 2020 MBQB 49 – Request for judicial review of Cabinet’s decision to issue a directive aligning the government’s policies with Manitoba Hydro practices regarding agreements with Indigenous communities. The review takes into account questions surrounding the lawful exercise of Cabinet’s stewardship role over Hydro, the honour of the Crown and whether MMF was entitled to special procedural rights in relation to a Cabinet policy decision. Joyal, C.J.Q.B. dismissed the application. 

Canada (Attorney General) v. Zalys, 2020 FCA 81 – Appeal of judgment granting judicial review of decision of an adjudicator regarding respondent’s grievance where he sought to have service pay included in the lump sum payout of annual leave he received upon retiring. Standard of review for an appeal of a judicial review application is reasonableness. Dissent includes an explanation of who to include in the style of cause for judicial review.   

Vavilov Hits the Road, Paul Daly, Administrative Law Matters, updated to April 24, 2020. 

Waiting for Godot: Canadian Administrative Law in 2019, Paul Daly, 33 Can. J. Admin. L. & Prac. 1. Year in review paper covering the Supreme Court’s trilogy of decisions on standard of review and more. (WLNC – request a copy.) 


Bankruptcy Law

White Oak Commercial Finance, LLC v. Nygård Holdings (USA) Limited et al., 2020 MBQB 58 – Application for appointment of Richter Advisory Group as receiver without security of all assets, undertakings and properties of the respondents. Court reserved its decision and ordered the respondent to continue to fully comply with the terms of its credit agreement. Court is satisfied that the applicant has met the test for appointment of a receiver. 

Insolvency Routes of Appeal: A Quick Primer, Justice David M. Brown, (2020) 76 C.B.R. (6th) 197. (Originally presented to the Ontario Bar Association – Insolvency Section, January 2020, WLNC, request a copy.) 


Civil Litigation

Outland Camps Inc. v. M&L General Contracting Ltd. et al., 2020 MBCA 42 – Appeal of order re money paid into court under s. 55(2) of The Builders’ Liens Act. Issue is whether the funds were security for lien claims, trust claims or both. Subcontractor did not file a lien within the limitation date so has no lien claim. Analysis of whether the fund paid into court was a trust fund. Appeal dismissed. 

Gray-McKay et al. v. Whiteway et al., 2020 MBQB 62 – Three separate motions by defendants for summary judgment based on a limitations defence, plus request to expunge certain documents. Statement of claim originally filed in Ontario in May 2012 and discontinued November 2012. Statement of claim also filed in Manitoba in July 2012 for breach of contract, negligence, and negligent misrepresentation for a project from summer and fall 2009. Defendants’ motion was successful. 

6165347 Manitoba Inc. et al. v. The City of Winnipeg et al., 2020 MBQB 60 – Request by respondents for reconsideration or setting aside of a contempt order. Respondents were found in contempt for failing to process applicants’ secondary plan application at a public meeting. Significant analysis of a contempt finding in a civil matter. 

Zubriski v. Bachewich, 2020 MBQB 56 – Request for summary judgment by plaintiff to recover money lent to the defendant for the purchase of a car. Defendant argues that the transaction wasn’t a loan but was an agreement to purchase the defendant’s home. Issues are the nature of the agreement (called an “equitable mortgage”); is the agreement conscionable; what is the remedy. Narratives of both parties vary widely; Court preferred defendant over the plaintiff. 

Canadian Construction Law Reform: A Survey of Recent Developments in Builders Liens, Prompt Payment, Interim Adjudication and Mandatory Construction Bonding, Michael A. Skene, Dirk Laudan, 2020 J. Can. C. Construction Law 93. (WLNC – request a copy.)

Bringing order from chaos: Some thoughts on recent judicial approaches to online libel cases, Mark Donald, (2019) 38 Adv. J. No. 3, 36-38. (LNQL – request a copy.) 


Corporate & Commercial Law

Wolfe et al v. Taylor et al, 2020 MBCA 44 – Appeal of orders from a liquidation proceedings. Parties had been farming together since 2008 using two corporate entities. Considerable analysis of the doctrine of marshalling. 

Loblaw Financial Holdings Inc. v. Canada, 2020 FCA 79 – Decision on issue of foreign accrual property income provisions in the Income Tax Act. MNR issued reassessments on Loblaw Financial for a holding in Barbados. Loblaw Financial appealed the reassessment to the Tax Court and appeals that decision. Question to be determined is whether the Tax Court erred in concluding that the subsidiary did not conduct business principally with arm’s length persons. Court concluded that the Tax Court made reviewable errors and decision should be set aside. 

York University v. The Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA 77 – Appeal by York re enforcement of interim tariff covering the copying of protected works in post-secondary educational institutions. Decision reviews all the great copyright decisions of the past 15 years, as well as the modernized Copyright Act. Court found that the tariff was not mandatory and Access Copyright could not maintain a copyright infringement action. York’s counterclaim re fair dealing as a relief was also dismissed. 

Responsibilities and Liabilities of Directors in Manitoba, Kristen Wittman and Kelby Loeppky 2020 CanLIIDocs 567

Federal Court of Appeal Deals Access Copyright Huge Blow as It Overturns York University Copyright Decision, Michael Geist, michaelgeist.ca, April 23, 2020. 


Criminal Law

R. v. Friesen, 2020 SCC 9 Appeal from MBCA. Sentencing appeal re sexual offence against children and extortion of mother. Court of Appeal found that sentencing judge had erred in principle and conducted a fresh analysis, reducing the sentence. Crown appealed from CA’s interference. Appeal allowed, original sentence restored. 

R. v. Jorowski, 2020 MBCA 43 – Request for leave to appeal two orders of the same proceeding. Initial incident was a speeding ticket issued by photo radar. Accused initially filed an application for a stay due to delay, and when that was denied, pleaded guilty and paid the fine. She then filed a notice of appeal to set aside her conviction and requested that she be represented by a non-lawyer. This motion was also denied. Leave for appeal in this application was also denied.

R. v. Castel, 2020 MBCA 41 – Appeal of conviction for second degree murder. Sole issue at trial was whether Crown proved beyond a reasonable doubt that the accused had the required intent for second degree murder. Appeal dismissed. 

R. v. J.C.W., 2020 MBCA 40 – Request for leave to appeal sentence of eight years’ incarceration for a guilty plea for one count of sexual assault. Crown stayed a charge of incest upon entering of guilty plea. Charge is on the high side for the offence, however, issue is whether it is harsh and excessive. Leave to appeal allowed, appeal dismissed. 

R. v. Ward, 2020 MBCA 38Appeal of conviction, and request for leave to appeal sentence. Accused was convicted of various firearms offences, including discharging a firearm with intent and was sentenced to a 9 year custodial sentence. Conviction appeal dismissed, leave for appeal of the sentence allowed, sentence appeal denied. At the time of the accused’s sentencing, he was serving a prior sentence with an unexpired portion. Trial judge declined to consider unexpired portion as part of the totality analysis. Appeal court determined that despite this error, the sentence was fit. 

R. v. Guimond, 2020 MBQB 63 – Sentencing decision on guilty plea to two counts of second degree murder. Court agreed with counsels’ joint recommendation for a concurrent sentence of life imprisonment with eligibility for parole after 14 years. 

R v N. G. D., 2020 MBPC 17 – Charge of sexual assault where issue focused on consent. Only witnesses were the complainant and the accused. Court referred to R. v. W. (D.) for the three-step process to ensure the trier of fact remains focused on the principle of reasonable doubt where the accused testifies. Accused is found guilty. 

Ontario Court of Appeal Criminal Notes, Jeanette Gevikoglu, Amanda Hauk, Lisa Mathews and David Quayat, 2020 CanLIIDocs 566

Bail in the Time of COVID-19, Lisa Mathews, 2020 CanLIIDocs 564

Jeremy Bentham and Canadian Evidence Law: The Utilitarian Perspective on Mistrial Applications, Alanah Josey, (2019) 42 Man.L.J. 292, 2019 CanLIIDocs 2810


Family Law

A.D.D. v. The Director of Child and Family Services, 2020 MBQB 67 – Agency seeking to place a mother on the Child Abuse Registry on the basis of omission or failure to protect her child from sexual exploitation. Consideration given to the meaning of “omission” in the context of abuse as defined in The Child and Family Services Act. Agency is successful and mother’s name is entered on the registry. 

Flood v. Dale, 2020 MBQB 64 – Request for enforcement of arbitration award. Parties had agreed to arbitration to resolve their outstanding issues. Both parties received independent legal advice as to the meaning of the arbitration agreement. The court’s power to enforce an arbitration award is the same as enforcing one of its own orders. 

Statutory Recognition of Indigenous Custom Adoption: Its Role in Strengthening Self-Governance Over Child Welfare, Celeste Cuthbertson, 28 Dalhousie Journal of Legal Studies 29, 2019 CanLIIDocs 2938

The Cost of Shared Parenting: An Analysis of Section 9 from 2016 to 2017, Beth Ambury, (2020) 39 CFLQ 1 (WLNC, request a copy). 


Labour & Employment

McCallum v. Saputo, 2020 MBQB 66 – Wrongful dismissal with claims for damages in lieu of notice, expenses incurred in mitigation, bad faith damages and punitive damages. Plaintiff claims that defendant failed to communicate its corporate policies and used unwritten policies to justify the dismissal of the plaintiff. The Defendant claims this is a simple matter of theft giving rise to the breakdown of the employment relationship. Plaintiff’s claims dismissed; defendant was entitled to terminate his employment for just cause and without notice.

eText on Wrongful Dismissal and Employment Law, Peter M. Neumann and Jeffrey Sack, Lancaster House, 2012 CanLIIDocs 1, updated to 2019-10-02. 


Wills, Trusts & Estates

Hubschi Estate (Re), 2019 BCSC 2040, Annotation, J. Jeffrey Locke: Extreme example of non-compliant testamentary document being “cured”.  (2020) 52 E.T.R. (4th) 231 (WLNC – request a copy). 

Legislation


Federal

43rd Parliament, 1st Session

C-15
An Act respecting Canada emergency student benefits (coronavirus disease 2019)
Short Title
Canada Emergency Student Benefit Act
Progress: 
Show Details

C-242
An Act to amend the Employment Insurance Act (illness, injury or quarantine)
Progress: 
Show Details

C-14
A second Act respecting certain measures in response to COVID-19
Short Title
COVID-19 Emergency Response Act, No. 2
Statute of Canada: 2020, c. 6
Progress: 
Show Details

C-13
An Act respecting certain measures in response to COVID-19
Short Title
COVID-19 Emergency Response Act
Statute of Canada: 2020, c. 5
Progress: 
Show Details


Provincial

42nd Legislature, 2nd Session

54Hon. Mr. Schuler
Minister of Infrastructure
The Emergency Measures Amendment Act
 • amendment(s) adopted at Committee Stage
PDFSM 2020, c. 6
55Hon. Mr. Fielding
Minister of Finance
The Employment Standards Code Amendment ActPDFSM 2020, c. 7
56Hon. Mr. Cullen
Minister of Justice
The Family Maintenance Amendment ActPDFSM 2020, c. 8
57Hon. Mr. Friesen
Minister of Health, Seniors and Active Living
The Regulated Health Professions Amendment ActPDFSM 2020, c. 9
58Hon. Mr. Fielding
Minister of Finance
The Residential Tenancies Amendment ActPDFSM 2020, c. 10
59Hon. Mr. Friesen
Minister of Health, Seniors and Active Living
The Public Health Amendment ActPDFSM 2020, c. 11

Interested in the Work of the Law Society? Become a Bencher.

Information Session –
Open Invitation
Thurs. February 20, 2020
12:00 noon

The policy work of the Law Society is conducted by both benchers and committee members. If you are interested in learning about this work, volunteering for a committee or running/applying to be a bencher, please join us for a light lunch in the Law Society classroom on February 20, 2020 at 12:00 noon. 

To help us accommodate the number of attendees, please
RSVP your interest in attending to ekinchen@lawsociety.mb.ca

If you have any questions in advance, please contact any one of the following: 

Kristin Dangerfield
Chief Executive Officer 
204-926-2013 
kdangerfield@lawsociety.mb.ca 

Leah Kosokowsky 
Director – Regulation 
204-926-2030 
lkosokowsky@lawsociety.mb.ca 

Anita Southall 
President 
204-957-8303 
alsouthall@fillmoreriley.com 

Lynda Troup 
Vice President 
204-934-2337 
lkt@tdslaw.com 

Kathy Bueti 
Past President 
204-989-0084 
kathybueti@bwwlaw.ca

Registration closes on Oct. 30th ~ 2019 Isaac Pitblado Lectures ~ Capacity to Decide: Planning for Death and Dying

Jointly presented by the Manitoba Bar Association, The University of Manitoba Faculty of Law & The Law Society of Manitoba

The 2019 Isaac Pitblado Lectures
Capacity to Decide: Planning for Death and Dying

November 8, 2019 │ 9:00 a.m. – 4:30 p.m.
Fort Garry Place Conference Centre, Grand Ballroom

Registration closes on October 30th 

Register Now 

6 CPD hours, including 1.5 EPPM hours

Visit the Pitblado Lectures website for information about the diverse range of presenters who will provide thought provoking presentations as well as concrete guidance for practitioners on topics including:

– Testamentary Capacity
– Predatory Marriages
– Medical Perspective on Capacity
– Capacity Assessments
– Video Recording Will Instructions
– Assisted Dying – constitutional, philosophical and ethical issues
– How Medical Assistance in Dying (MAID) works in Manitoba