New articles from these journals are now available for Law Society members upon request. For a pdf copy of these or other legal journal articles email us at library@lawsociety.mb.ca.
Provincial Judges Journal
Introduction: Establishing an Effective Process for Judicial Compensation 44 Prov Judges J 16 Susan Dawes
Judicial Independence, Judicial Compensation and Responsible Government: Finding a more appropriate balance 44 Prov Judges J 22 Dr. Paul G. Thomas
Recent Developments in Judicial Independence: Judicial compensation commissions 44 Prov Judges J 62 Notes for Remarks of The Honourable Frank Iacobucci, C.C., Q.C.
It’s Not Just About Compensation: Some other thoughts on judicial independence 44 Prov Judges J 90 Judge Mayland McKimm
McGill Journal of Law and Health (also available on CanLII.org)
A Reflection on the Duty to Warn after Létourneau v JTI-MacDonald: A Future for Obesity Litigation in Canada? 14 McGill J. L. & Health 89 Jacob J Shelley
Book Note: Deveault, Audrey & Michaël Lessard, dir, Mourir au 21 Siècle: Entre Corporalités et Technologies, Montréal, Québec, Éditions Yvon Blais, 2020 15 McGill J. L. & Health 1 Jean-Frédéric Ménard
Homologation du Mandat de Protection en cas D’Inaptitude Partielle du Mandant: 10 ans Après LP c FH, où en Sommes-Nous Rendus? 15 McGill J. L. & Health 5 Anne-Isabelle Cloutier
Canadian Journal of Law and Technology
Reframing Technology-Facilitated Gender-Based Violence at the Intersections of Law & Society 19 Can. J. L. & Tech. 209 Jane Bailey, Carys Craig, Suzie Dunn, Sonia Lawrence
Onlife Harms: Uber and Sexual Violence 19 Can. J. L. & Tech. 277 Amanda Turnbull
“I Bet You Don’t Get What We Get”: An Intersectional Analysis of Technology-Facilitated Violence Experienced by Racialized Women Anti-Violence Online Activists in Canada 19 Can. J. L. & Tech. 217 Nasreen Rajani
Responding to Deficiencies in the Architecture of Privacy: Co-Regulation as the Path Forward for Data Protection on Social Networking Sites 19 Can. J. L. & Tech. 411 Laurent Crépeau
Dignity, Intersectional Gendered Harm, and a Flexible Approach: Analysis of the Right to One’s Image in Quebec 19 Can. J. L. & Tech. 307 Yuan Stevens
Mike Zajko, Telecom Tension: Internet Service Providers and Public Policy in Canada 19 Can. J. L. & Tech. 505 Matt Malone
On the Internet, Nobody Knows You Are a Dog: Contested Authorship of Digital Evidence in Cases of Gender-Based Violence 19 Can. J. L. & Tech. 371 Suzie Dunn, Moira Aikenhead
Bringing Section 8 Home: An Argument for Recognizing a Reasonable Expectation of Privacy in Metadata Collected from Smart Home Devices 19 Can. J. L. & Tech. 457 Ana Qarri
Intimate Images and Authors’ Rights: Non-Consensual Disclosure and the Copyright Disconnect 19 Can. J. L. & Tech. 333 Meghan Sali
“Don’t Take on the Responsibilty of Somebody Else’s Fu**ed up Behavior”: Responding to Online Abuse in the Context of Barriers to Support 19 Can. J. L. & Tech. 249 Chandell Gosse
Artificial Intelligence in Canadian Healthcare: Will the Law Protect Us from Algorithmic Bias Resulting in Discrimination? 19 Can. J. L. & Tech. 475 Bradley Henderson, Colleen M. Flood, Teresa Scassa
Manitoba Law Journal (also available on CanLII.org)
Decades in Crisis: A Critical Analysis of the Underuse of Sections 81 and 84 of the Corrections and Conditional Release Act and Its Role in the Systemic Neglect of Indigenous Rehabilitation and Reintegration 44 Man. L.J. 96 Madison Parker
A Tale of Two Countries: Constitutionalizing the Mandatory Minimum Sentence 44 Man. L.J. 149 Bryton M.P. Moen
Making an ‘ASH’ Out of Gladue: The Bowden Experiment 44 Man. L.J. 1 Jane Dickson
Reconsidering Luxton in the Post-Nur Revolution: A Brief Qualitative and Quantitative Analysis of Recent Challenges to Mandatory Minimums and Other Sentencing Provisions 44 Man. L.J. 124 Stacey M. Purser
The Devil’s Playground: A Case Study of Elgin-Middlesex Detention Centre (EMDC) Demonstrating the Systemic Failings of the Ontario Corrections Regime 44 Man. L.J. 60 Nicole Kelly
Legal Data and Information in Practice provides readers with an understanding of how to facilitate the acquisition, management, and use of legal data in organizations such as libraries, courts, governments, universities, and start-ups. Legal organizations are looking at how to develop data-driven insights for a variety of purposes and it is vital that they have the necessary skills to facilitate this work. This book will assist in this endeavour by providing an international perspective on the issues affecting access to legal data and clearly describing methods of obtaining and evaluating it.
Ontario court decisions on CanLII now display artificial intelligence generated classification. The AI feature uses machine learning technology to automatically generate practice area labels. The labels appear in grey at the bottom of a search result, underneath the italicized subject keywords. Read the full post here
Legal research tool Rangefindr has recently released a free sentencing guide for transgender offenders. The guide summarizes material on the sentencing of transgender and gender nonconforming offenders. Members of the Law Society of Manitoba have access to Rangefindr’s criminal sentencing resources through the Member’s Portal. Read the full post here
I Love to Read Month
February is I Love to Read Month! We are recommending the following titles all about legal history in Manitoba.
Judicious Restraint: The Life and Law of Justice Marshall E. Rothstein, Lisa M. Kelly and Ivo Entchev
A biography of Manitoba-born, former Justice of the Supreme Court of Canada, Justice Marshall E. Rothstein.
Paths to the Bench: The Judicial Appointment Process in Manitoba, 1870-1950, Dale Brawn
Uncovers the political nature of the judicial appointment processes and the history of the legal profession in Manitoba from 1870-1950.
A Partnership of Equals: the struggle for reform of family law in manitoba, berenice b. sisler
Traces the struggle to reform Manitoba’s family law during the years 1975-78, to achieve equality for married women.
The queen v. louis riel, introduction by desmond morton
Following Morton’s introduction, this work includes text from the Reports of Cases 1885 and the Law Reports 1885 with text of the trial.
Contact the Great Library to arrange pickup of any of our titles for loan.
Book Reviews
Review taken from the Canadian Law Library Review, Vol. 46 Issue 3
“Jacqueline L King, a partner at Shibley Righton LLP, is the author of 25 Rules for Success… and 10 Tips to Help youEnjoy the Practice of Law. She is a respected litigation lawyer, a sought-after continuing legal education speaker, an astute collaborator in any committees she sits on, and oh yeah, a mother who also gets involved in her children’s lives. In this book, the author explains how she stays on top of commitments while giving her best in all that she sets her mind to.
As the Honourable Ian Binnie writes in the Foreword, this book applies to both early and mid-career legal practitioners who seek to improve their practice of law by way of alleviating stress and anxiety.” – reviewed by Vicki J Leung
The series continues the forum’s core focus on how the intersection of business and law is evolving.
The webinars are accredited for professionalism credits from the LSO and CPD credits from the LSBC. They are free to view and simply require registration to attend.
Webinar Topics, Dates + Registration Links:
***note all Webinars run from 12pm-1pm Eastern Time***
Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19: Appeal of decision by Pest management Regulatory Agency (PMRA) re continued registration of glyphosate products for use in Canada. Safe Food Matters applied to Federal Court for judicial review (dismissed). FCA allowed appeal and remitted decision back to PMRA for reconsideration. Judicial review is in accordance with Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. Question is whether the decision is reasonable.
Dhalla v. College of Physicians and Surgeons of Manitoba,2022 MBCA 7: Appeal of penalty imposed after finding of professional misconduct, and costs decision. Appellant was reprimanded and his licence to practice medicine was suspended for two months. He was ordered to pay costs of $85,000 as a contribution to the costs of the investigation and hearing. Analysis of the civil standards of review and penalty standards of review. Appeal dismissed.
Mohammadi v. Compensation Appeal Board, 2022 MBQB 20: Application for reconsideration of decision advising applicant she was not eligible for wage loss benefits under the Compensation Appeal Board. Applicant had been receiving a non-earner income replacement indemnity due to a car accident prior to being a victim of crime. Grounds of appeal are on a question of law or jurisdiction. Kroft, J. finds it is a question of law and thus the standard of review is correctness. Central question is whether applicant was employed or self-employed at the time of the incident. Appeal dismissed.
WRE Development Ltd. v. Lafarge Canada Inc.,2022 MBCA 11: Plaintiff’s appeal of dismissal for long delay under Queen’s Bench Rule 24.02(1). Motion judge concluded that there was no significant advance in the action for a period in excess of three years. Action involves the construction of an apartment building built between 2010 and 2012. Plaintiff sought damages re product supplied and installed by the defendant. Explanation of the difference between the old and new rule 24. Analysis of the test for whether an action has been significantly advanced. Appeal dismissed.
Frenchie’s Farm and Ranch Ltd v. Peace Hills Insurance Company,2022 MBCA 10: Plaintiff appeals dismissal of claim for payment under an insurance policy relating to a fire loss. Plaintiff argues error by the trial judge. Court of Appeal determined that the trial judge correctly noted that a false statement will violate statutory condition 7. Appeal dismissed.
Chartier v. Bibeau,2022 MBCA 5: Appeal of civil jury award of damages in the amount of $500,000 for a defamation suit. Award reduced to $50,000 for general and aggravated damages.
Bibeau et al v. Chartier et al,2022 MBCA 2: Appeal from dispute regarding the terms of an oral contract. Parties disagree about the extent of the interest purchased by the plaintiff. Statement of claim included allegations of breach of contract and breach of fiduciary duty. Standard of review is discretionary, reviewed on a deferential standard. Plaintiffs’ appeals are dismissed; defendants’ cross appeals are allowed in part.
85 Academy Road Development Corporation et al. v. Rona Inc. et al.,2022 MBQB 15: Request for reconsideration of decision to refuse to direct payment to Rona of trust funds. Basis for reconsideration request is Toromont CAT v. Erickson Construction (1975) Ltd. et al,2021 MBQB 75, not referenced previously by either party in the original submissions. Reasons of November 16, 2021 are revised.
Andrews v. Grammond,2022 MBQB 11: Claim for professional negligence for advice given before lawyer became a sitting judge, brought under the Small Claims Act. Issue is whether it is an excluded proceeding, as defined under s. 3(4). Joyal, C.J.Q.B. finds that it is and claimant will have to find another forum for relief. Significant analysis and discussion of this section.
Ostrowski v. Weinstein et al, 2022 MBQB 3 : Motion for summary judgment to dismiss plaintiff’s wrongful conviction claim due to it not being filed within the limitation period. Action had to have been initiated within two years. Contentious issue is when the two year limitation period started to run. Extensive analysis of when the limitation period started. Greenberg, J. determined that the limitation period expired in May 2006. Claim dismissed.
R.S. Distribution Services Ltd. v. MTS Inc. et al.,2022 MBQB 2: Action for breach of contract. Issue over whether there was an agreement to deliver services with a minimum amount over the term. Defendant felt that the minimum guaranteed amount of the previous contract had been too high. Plaintiff used an internal memo that had been attached to the hard copy of the contract constituted the new agreed minimum amount. Toews, J. concluded that the memo was not part of the contract and dismissed the action.
Wilson et al v. Kornelsen,2022 MBQB 1: Issue of prescriptive rights over a certain property in the Town of Stonewall. Test for a party asserting a dominant tenement and easement is set out in Limack et al v. Kroeker et al, 2020 MBCA 98 at para 16. As well, the period of usage must be over 20 years. Most of the evidence is in the form of hearsay. Toews, J. sets out a detailed order of which rights belong to which property.
Knight v. Daraden Investments Ltd. et al.,2021 MBQB 279: Appeal from master’s decision dismissing plaintiff’s action under Rule 24.02(1), long delay. Action over defendants’ failure to take reasonable care resulting in physical injury to the plaintiff through a slip and fall. Parties disagree over whether there was an agreement to delay proceedings. Bock, J. agrees that there has been an inordinate delay within the meaning of Rules 24.01(2) and (3) but blame is shared by both parties and thus excusable.
Tataskweyak Cree Nation et al. v. Canada (A.G.);, Curve Lake First Nation et al. v. Canada (A.G.),2021 MBQB 276: Order and reasons for approval of class counsel’s legal fees. Fees for prosecuting the actions have been negotiated separately from the settlement agreement. The Class is not responsible for paying legal fees. Analysis of whether the fees suggested ($53 million plus $5 million for future work) are fair and reasonable and in the best interests of the class. Fees approved.
Tataskweyak Cree Nation et al. v. Canada (A.G.);, Curve Lake First Nation et al. v. Canada (A.G.),2021 MBQB 275: Motion to approve the First Nations Drinking Water Settlement Agreement. Both Federal Court and the Manitoba Court of Queen’s Bench have jurisdiction. Sets out the key provisions of the settlement agreement: retrospective and prospective compensation; class and class period; and implementing the “Long-Term Drinking Water Advisory Action Plan”. Class counsel fees will be subject to a different order and reasons.
Bryan Schwartz, Monica Adeler, Mike Myschyshyn and Robert Walichnowski. Asper Review of International Business and Trade Law, Vol. 21 Special Edition:Cybersecurity and Law Firms. 2021 CanLIIDocs 988 Guide to cybersecurity for lawyers from a Canadian perspective.
Criminal Law
R. v. Ali,2022 SCC 1: Issue of legality of a strip search of the accused resulting in the seizure of cocaine. Moldaver, Brown, Rowe and Jamal JJ; Concurrence: Côté J. Appeal dismissed.
[2] A majority of this Court agrees with the conclusion of the majority of the Court of Appeal and would dismiss the appeal. Where a strip search is conducted as an incident to a person’s lawful arrest, there must be reasonable and probable grounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest (see Golden, at para. 99). These grounds are met for the strip search where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest (see Golden, at paras. 94 and 111).
R. v. Bourassa,2022 MBCA 9: Request for leave to appeal a seven year sentence for four weapons-related offences. Argues that judge did not adequately apply the principle of totality. Standard of review is highly deferential. Leave to appeal granted but appeal dismissed.
R. v. Morrissette,2022 MBCA 8: Appeal of convictions for several offences involving firearms. Appellant also seeks leave to appeal the custodial portion of his sentence. He argues there was no direct evidence of possession and that the circumstantial evidence was insufficient to convict him. Conviction appeal dismissed and application for leave to appeal the sentence denied.
R. v. Derksen,2022 MBCA 6: Appeal of sentence of nine and a half years’ incarceration for three firearms charges. Leave to appeal was denied, however parties asked that appeal be granted to clarify one aspect of the individual sentences related to the totality principle. Clarification added; appeal dismissed.
R. v. Bear,2022 MBCA 4: Appeal of Crown’s application for designation of the accused as a dangerous offender. Accused’s principal submission is that the sentencing judge erred at the designation stage. Leave to appeal granted; appeal dismissed.
R. v. McKenzie,2022 MBCA 3: Appeal of case re common law police powers; whether the law relating to ss. 8, 9 and 24(2) of the Charter were applied correctly. Analysis of the common law power of investigative detentions. Appeal dismissed.
R. v. Hurdon,2022 MBPC 7: Trial for possession of fentanyl for the purpose of trafficking, simple possession of methamphetamine, and possession of property under $5,000 from the sale of drugs. Expert opinion evidence on what quantity of drugs is likely to be for personal use versus trafficking. Accused testified but was not a credible witness. Accused convicted.
R. v. Maytwayashing,2022 MBPC 6: Sentencing decision after accused was found guilty after trial of robbing a taxi driver, driving while impaired and refusing to provide a breath sample. Gladue factors considered. Discussion of the fundamental principles of sentencing. Relevant sentencing objectives in this case are denunciation, general deterrence and rehabilitation. Sentence for robbery is 18 months of custody; concurrent sentence of seven days for the other offences.
R. v. Watson-Langley,2022 MBPC 5: Decision on voir dire re s.9 violation. Accused seeks exclusion of all evidence obtained by police, in particular the seizure of a set of car keys which included key fobs for two apartment blocks. Harvie, P.J. admits the evidence.
R. v. Millan,2022 MBPC 1: Sentencing decision for the offences of making and possessing child pornography, and breaching a condition of his release order. Overall issue is to assess the seriousness of the offences committed and the accused`s degree of moral culpability. Accused has prior convictions for sexual offences. Sentencing objectives in this case include denunciation and deterrence, as well as the objective of separating the offender from society. Total sentence of three and a half years, less time served in remand custody credited at 1.5 days, followed by three years of supervised probation.
R. v. Lohr-Mansbridge,2021 MBPC 62: Accused charged with hunting at night without a permit, and hunting on private land without permission of the owner. Conservation officers were on duty patrolling an area where people were known to hunt at night. Accused were found in a vehicle at midnight, slowly driving in the area and arrested for hunting at night. Although Carlson, P.J. found that they were likely guilty, it didn`t reach the criminal standard of beyond a reasonable doubt. Both accused were acquitted.
R. v. Campbell, 2021 MBPC 59: Sentencing decision for accused found guilty of several violent offences. Crown and defence make the same recommendations for the most serious matters but different on the lesser offences. Gladue factors are also considered. Discussion of the approach required when sentencing multiple offences at the same time. Totality of sentences is nine years imprisonment.
Tim Quigley. “Sadly, No RIP for Starting-Point Sentences”, (2022) 75 C.R. (7th) 306. (WLNC – request a copy). Analysis of R. v. Parranto, 2021 SCC 46 in an analysis of starting points as a form of appellate guidance to sentencing judges.
Nicole M. Myers and David Ireland. “Unpacking Manitoba Bail Practices: Systemic Discrimination, Conditions of Release and the Potential to Reduce the Remand Population.” (2021) 69 C.L.Q. 26. (WLNC – request a copy)
Family Law
Pedersen v. Pedersen,2022 MBQB 6: Master’s report on family property accounting. Both parties operated under a limited retainer. Conflicts over the value of a farm corporation. Both parties retained an expert to value the corporation. Master also directed to determine the discount rate to be applied as a result of potential tax liability associated with the husband’s real property, RRSPs and his interest in the corporation. Petitioner is the successful party.
Gadea v. Rath,2022 MBQB 5: Mother requests return of the parties’ child to Costa Rica under the “Hague Convention”. Father denies that the removal or retention of the child was wrongful. Mother submits that the wrongful removal took place in either April 2020 or September 2021. Date of removal is vital to determining which section of Article 12 applies. Jurisdiction for custody and access issues is based on habitual residence. Hatch, A.C.J. determines the child had been habitually resident in Manitoba for either date. Application dismissed.
Rollie Thompson, Q.C. Retroactive Support after Colucci, (2021) 40 C.F.L.Q. 61 (WLNC – request a copy). Case comment on Colucci v. Colucci,2021 SCC 24, resolving the confusion about how to apply D.B.S. to retroactive variations downward.
Wills, Trusts & Estates
Weiss Estate v. Weiss; Weiss v. Weiss Estate,2022 MBQB 13: Combined applications relating to the will of the testator. First application seeks to rectify will to correct errors; cross application states that if rectification is allowed, the will must be declared invalid. Issue is over the residue clause. Kroft, J. grants the application to rectify the will.
Estate of George Czyzewski,2022 MBQB 8: Application by executor to pass accounts. Testator died over 11 years ago. Probate was granted in 2011. Total value of estate at time of death was close to $3 million. Executor ignored several requests for an accounting over the years. Executor has yet to obtain a clearance certificate from CRA. Discussion of the requirement for executors to remain neutral in the discharge of their duties. Master Berthaudin found both the executor and his lawyer delayed the winding up of this matter. Executor must return funds he withdrew against the estate and will receive no compensation for his work.
The Manitoba government has appointed 11 Manitoba lawyers as Queen’s counsel to recognize their extraordinary contributions to the practice of law […] Queen’s counsel is an honorary title given to a lawyer by the lieutenant-governor in council, based on recommendations made by the minister of justice following consultation with an advisory council. […] After stopping these appointments in 2001, the Legislative Assembly of Manitoba passed the Queen’s Counsel Act in 2018 and restored Queen’s counsel appointments for Manitoba lawyers.
The Manitoba government has appointed Judge Donovan Dvorak as an associate chief judge of the provincial court of Manitoba […] Dvorak was appointed to the provincial court of Manitoba in 2013 and currently sits in Brandon. He was previously appointed to the provincial court of Saskatchewan in 2018. […] Dvorak replaces Associate Chief Judge Malcolm McDonald, who retired earlier this month.
The House adjourned on December 2nd 2021 and stands adjourned until March 2nd, 2022, or to the call of the Speaker.
“Effective immediately, all criminal charges originating from Stony Mountain Institution will be dealt with in Winnipeg and will no longer appear on the Stonewall Provincial Court docket. This change reflects the public interest in ensuring matters requiring a heightened level of security are heard in the most appropriate court venue. This Notice applies to all appearances including trials, preliminary hearings and dispositions.”
Additional protocols and information are available in the notice.
All Provincial Court news and announcements are available here.
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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