eLex September 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
New Library ResourcesCriminal Law 
Book ReviewsFamily Law 
Labour and Employment Law 
 Wills, Trusts & Estates 
  

News


In the News

Events

Legal Research with vLex and Irwin Law Webinar

Tuesday, September 28, 2021, 12:00 p.m.—1:00 p.m.
Irwin Law’s comprehensive Essentials of Canadian Law series is moving from desLibris onto the vLex platform. Learn how to incorporate these texts, vLex and the AI assistant Vincent into your legal research with this free webinar. Eligible for 1 hour of CPD.

Email library@lawsociety.mb.ca to register. You will need to have Zoom installed on your device. Zoom link will be sent the day before the webinar.


Commemorating 150 Years of Treaty 1 and Treaty 2: What You Need to Know

September 17, 2021 , 12:00 noon – 1:15 p.m. Video Webinar
August 2021 marks the 150th anniversaries of the signing of Treaties No. 1 and 2 in Manitoba. In honour of this important milestone, Dr. Niigaanwewidam (Niigaan) Sinclair will discuss the history of the two treaties, the significance of Section 35 of the Constitution Act, 1982 which entrenches treaty rights, and why an understanding of the treaties and the obligations and benefits that flow from them is essential knowledge for all Manitoba lawyers, regardless of your area of practice.

Presenter: Dr. Niigaanwewidam (Niigaan) James Sinclair


Understanding the Dynamics of Domestic Violence for Family Law Practitioners

September 20 @ 8:00 am – September 23 @ 12:00 pm
This training will provide an overview of the dynamics of domestic violence in the context of separation, divorce, and child custody and access. All are welcome to attend. The training will take place over 4 mornings (8 am – 12 pm Saskatchewan time), Monday, September 20 – Thursday, September 23. The training will be held using Zoom.


National Day for Truth and Reconciliation

In June, the federal government announced Sept. 30 as a new annual statutory day to reflect on the history and ongoing trauma caused by residential schools and to honour those who were lost and the survivors, families and communities who continue to grieve.

The National Centre for Truth and Reconciliation is presenting a 5-day national online event of workshops, videos, and activities. Register here or click to see a full schedule.


For a full list of all upcoming events, click here for our Library Events Calendar

Court Notices & Practice Directions

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

Court of Queen’s Bench

COVID related notices and directives

Practice directions

Notices

Provincial Court

COVID related notices and directions

Practice Directives

Notices

Court of Appeal

Covid Related notices and directions

Practice Direction


New Library Resources

New in Print

Sentencing — 10th ed. by Clayton Ruby
This book canvasses the law of sentencing in a way that no other books on criminal law and sentencing are able: it succinctly outlines all of the significant facets of sentencing principles and procedure, and provides the reader with a comprehensive range of sentencing for various offences.

Executive Legislation — 3rd ed. by John Mark Keyes
Examines what constitutes executive legislation, considers the constitutional framework for delegating executive legislative authority and the institutional controls on the delegation and exercise of this authority, and considers how executive legislation is made and operates within this context and provides a comparative law perspective ranging not only throughout Canada, but also across comparable Commonwealth jurisdictions.

Bidding and Tendering: What is the Law — 6th ed. By Paul Sandori and William M. Pigott
Helps readers learn from the moves and mistakes of others. This edition not only explains the basic legal principles but also fully updates readers on changes to construction law since publication of the widely referenced fifth edition in 2015.

Misrepresentation and (Dis)Honest Performance in Contract — 2nd ed. by Bruce MacDougall 
A comprehensive, practical guide that offers critical information in an easy-to-use format. Devoted exclusively to the very specific yet crucial area of misrepresentation in contract law and the duty of honest performance.

Drafting Trusts and Will Trusts in Canada — 5th Edition by James Kessler, Fiona Hunter
This book examines both the general and the technical issues that can arise in this area of the law, and deftly combines advice on the substantive law with useful drafting direction from experts in the field.

Canadian Administrative Law — 3rd ed. by Guy Régimbald
This third edition provides an updated look at administrative law in Canada, taking the new case law into account while providing readers with a comprehensive guide to the subject. It is a valuable reference for anyone involved in the practice or study of administrative law.

New Online Titles

From Heinonline

HeinOnline has added several new journal titles from Emerald Publishing to the Law Journal Library collection. This includes full text for all past issues of the journals, excluding the 2 most recent years, which are indexed only

  • International Journal of Law and Management
  • Journal of Financial Crime
  • Journal of International Trade Law and Policy
  • Journal of Property, Planning and Environmental Law
  • Policing: An International Journal of Police Strategies & Management

Book Review

Review taken from the Canadian Law Library Review Volume 46, No. 2.

The Canadian Law of Obligations: Access to Justice
Edited by Hilary Young. Toronto: LexisNexis Canada, 2020. xxx, 255 p. Includes illustrations, bibliographic references, and index. ISBN 9780433505754 (softcover) $130.00.
Review by Emily Nickerson

“…a product of the second biennial Canadian Law of Obligations conference held at the University of New Brunswick in 2019. This conference brought together legal scholars who presented and discussed how the Canadian law of obligations should evolve, particularly in light of the need for greater access to justice.
…this book serves as a timely addition to the existing body of literature covering contracts, torts, and restitution. The papers in this volume invite readers to challenge the status quo and re-examine current assumptions on how traditional problems relating to contracts, torts, property, unjust enrichment, and civil procedure are addressed.”

Substantive Law


Administrative Law

Histed v. Law Society of Manitoba, 2021 MBCA 70: Appeal of conviction by a discipline panel of the respondent concerning four counts of professional misconduct. Appellant contends that the Panel erred in finding his conduct uncivil and constituted professional misconduct. Standard of review is that set out in Housen v. Nikolaisen. Appeal dismissed.

McHale et al. v. Manitoba (Education and Training), 2021 MBQB 190: Reasons comparable to Stone v. Manitoba (Education and Training) below.

Stone v. Manitoba (Education and Training), 2021 MBQB 187: Application for judicial review concerning a complaint dismissed by the Manitoba Human Rights Commission. Complaint concerns discrimination by failing to include materials on gender identity and sexual orientation in the kindergarten to grade 12 curriculum. The Commission investigated the complaint and submitted an investigation report, recommending that the complaint be referred to adjudication. The Commission dismissed the complaint. Kroft, J. finds the Commission’s decision is unreasonable due to insufficient reasons and directs them to reconsider the complaint.

Michele Santarsieri Inc. et al. v. Manitoba (Deputy Minister of Finance), 2021 MBQB 174: Appeal of decision of the Tax Appeals Commission regarding assessments of payroll tax. Applicant claims bias, questions whether there was adequate evidence to make credibility findings, and appeals whether the test under s. 2(4.1) of HPSEA was properly applied. Substantive analysis of judicial consideration of reasonable apprehension of bias. Standard of review for issue of test application is palpable and overriding error. Grammond, J. affirmed the decision of the TAC.


Civil Litigation

Mirage Consulting Ltd. v. 5573344 Manitoba Ltd. et al., 2021 MBQB 186: Defendants’ motions for summary judgment on the grounds that there is no genuine issue requiring a trial. Issue is over interpretation of a restrictive covenant in a consulting agreement. McCawley, J. concluded that the consulting agreement expired, therefore the restrictive covenant did not come into effect. Motion granted.

Fisher River Cree Nation et al. v. Ochekwi-Sipi First Nation Personal Care Home Inc., 2021 MBQB 181: Application for a remedy under s. 234 of The Corporations Act regarding the repeal of a bylaw and passing of a new bylaw. Applicants must establish they have standing and that the conduct of the directors has been oppressive. Judicial consideration of oppression and whether it applies in this instance. Applicants are successful; remedy is to invalidate the second bylaw, and reinstate the initial one.

Private Trading Group, LLC v. The Government of Manitoba et al, 2021 MBQB 180: Motion by defendant Sinclair for an order striking out the amended statement of claim against him. Plaintiff included him in its suit against the government for non-payment of a portion of its contract for the purchase of N95 masks. Plaintiff stated that defendant was acting in his capacity as a public officer as Deputy Minister of Central Services. Standard to have the claim struck is very high. Motion dismissed.

4508841 Manitoba Association Inc. v. Stuart Olson Construction Ltd. et al., 2021 MBQB 179: Application for leave to begin an action pursuant to The Limitation of Actions Act, s.  14(1). The respondents were responsible for constructing a seniors’ housing project in Ste. Anne in 2006. Applicants became aware of all material facts on or about July 21, 2016 and filed an application on June 16, 2017. Respondents opposed application on the basis that the applicant has not proven it has a cause of action with a reasonable chance of success. Application dismissed.

Paterson et al. v. Walker et al., 2021 MBQB 172 : Application for judicial review. Statement of claim was issued in August 2013. Dispute concerns the development of a lot at Falcon Lake; four main issues to be reviewed. Application for review concerns the plaintiffs’ complaints with the defendants’ regulatory decision making. Standard of review is reasonableness as set out in Vavilov. Consideration of The Provincial Parks Act, C.C.S.M. c. P20 and the Parks Activities Regulation, no. 141/96, as well as The Cottager’s Handbook, 3rd ed. Edmond, J. denies plaintiffs’ application to quash the site plan permit; finds the decision to issue a retroactive variance was reasonable; quashes a decision of the province not requiring defendants (Walkers) to comply with a 2018 order; and last order requiring the Walkers to reduce their development footprint by 244 square feet is reasonable. Divided success on the application; costs remain in the cause.

Sarrasin v. Sokal, 2021 MBQB 171: Defendant’s motion to strike statement of claim of plaintiff without leave to amend. Plaintiff filed a claim of the following torts: defamation, malicious prosecution, and workplace harassment. Parties worked together at Canada Post and were active union members. Analysis of Queen’s Bench rule 25.06(1) and 25.11(1). Keyser, J. found that the claim must be struck in its entirety.

Wilde et al. v. The Rural Municipality of Taché et al., 2021 MBQB 166: Application seeking leave for an extension of time to bring an action under The Limitations of Actions Act. Issue is over the design and construction of the applicants’ residence. Contract to build home was signed in 2007 and applicants moved in in 2008. Significant defects were not discovered until 2018. Analysis of s.20(2), (3) and (4) of the LAA. McCawley, J. found that the parties should have known all material facts more than 12 months before seeking leave to being their action. Application dismissed.

Erika Chamberlain. Case Annotation: Caplan v. Atas, (2021) 71 C.C.L.T. (4th) 124). (WLNC – request a copy.) “This remarkable case continues the recent trend in Ontario of recognizing new intentional torts: intrusion on seclusion, public disclosure of private embarrassing facts, and publicity placing the plaintiff in a false light. All of these, but especially the last two, respond to the potential for defendants to inflict serious reputational harm and mental distress on plaintiffs by posting false, misleading, intimate, or humiliating matters on the internet.”

Cindy Kou. Barring New Bids from Contractors Who Have Made Claims Against Municipal Owners, (2021) 8 C.L.R. (5th) 170. (WLNC – request a copy.) “May municipal owners exclude bids from contractors who have previously sued the owners? Would it be unconstitutional or contrary to public policy for a municipality to do so?”


Criminal Law

R. v. Hjorleifson, 2021 MBCA 69: Accused seeks leave to appeal his conviction for one count of assault and one count of uttering threats. Accused and victim were involved in divorce proceedings. Leave to appeal can only be granted on questions of law. Accused raised several grounds of appeal, but only one, inffective assistance of counsel, was a question of law. Appeal allowed on this ground only.

R. v. Letkeman, 2021 MBCA 68: Appeal by Crown of non-custodial sentence given to an RCMP officer for criminal negligence causing bodily harm. Offence was committed while accused was following a vehicle he suspected was being operated by an impaired driver. Passenger in the vehicle suffered severe and lifelong injuries. Court of Appeal found that the trial judge made errors in principle, leading to the imposition of an unfit sentence (para. 58). New sentence includes a three month period of incarceration (stayed). Burnett, J.A., in dissent, would have sentenced the accused to 36 months incarceration (para. 159).

Anderson (Re), 2021 MBPC 38: Inquest under The Fatality Inquiries Act re Kevin Anderson. Death was caused by a train derailment. Mr. Anderson was the conductor. Track collapsed as the train travelled over it due to the wash out of the roadbed surface. Transportation Safety Board report summarized all the facts of the event and made several recommendations. Chief Medical Examiner directed the Chief Judge to call an inquest. Issues are 1) the respective roles of the Inquest Judge and the CME in setting the scope of an inquest; and 2) is the derailment a circumstance in which Mr. Anderson’s death occurred must be further investigated.

R. v. Hooke; Plamandon, 2021 MBPC 34: Sentencing decision re conviction for the interprovincial transport of stolen restricted firearms. Several severe aggravating factors applicable to both accused. Mr. Hooke has some mitigating factors while Mr. Plamandon has very few. Sentencing centers on the moral culpability of the offenders.

R. v. Graham, 2021 MBPC 33: Motion to have charges for a sexual assault stayed due to delay. Charges were laid 10 years ago and accused was not arrested until 2019 despite the RCMP being aware of his location in 2012 and 2014. Accused caused some delay by fleeing Thompson, but the Crown and RCMP are also responsible for some. Total delay from charge to trial is 10 years and 3 months; net delay is over eight years. Cawley, P.J. stayed the charge.

Michelle I. Bertrand, David Ireland, Richard Jochelson and Kathleen Kerr-Donohue. Dispensing Digital Justice: COVID-19, Courts and the Potentially Diminishing Role of Jury Trials. The Annual Review of Interdisciplinary Justice Research, Vol. 10, 2021.


Family Law

G.R.M. et al. v. The Director of Child and Family Services et al., 2021 MBQB 182: Defendants appeal decision of Master dismissing motion to strike out the plaintiffs’ statement of claim on the basis that it is an abuse of process. Appeal from a decision of a master is a fresh hearing. Issue is over apprehension of a child by the defendant. Appeal dismissed.

Chapman v. Russell et al., 2021 MBQB 173 : Application by grandmother for guardianship under The Child and Family Services Act, s.77, as well as interim child support. Child is now 17 and has lived with grandmother for several years. Father lives in B.C. Grandmother’s motion included a request for financial disclosure. Order by MacPhail, J. that father’s income be imputed at $150,000 and that be used to determine his child support obligation pursuant to the B.C. Table.

Smith v. Smith, 2021 MBQB 169: Written reasons of the terms of a Final Order for relief corollary to a divorce that had been previously pronounced. Property issues had been settled. Child custody, support and spousal support to be settled by summary judgment. Analysis of application of current case law to a “parenting order”. Parties reached a settlement on custody issues and relocation via an interim order. Children were apprehended by CFS in Ontario; new order for custody filed by summary judgment. Johnston, J. finds that summary judgment is an appropriate method for a fair and just determination of the matter (para 27).

Barb Cotton and Christine Silverberg. Recent Alberta cases illustrate child support obligations of stepparent. The Lawyer’s Daily, 31 August 2021. Case comment re Friesen v. Friesen, 2020 ABQB 103 and Nyereyegona v. Schofield, 2021 ABQB 662.


Labour and Employment Law

Wardrop v. Ericsson Canada Inc., 2021 MBQB 183: Motion by defendant seeking an order to stay the action in favour of arbitration. Defendant (employer) argues that the parties had an agreement to arbitrate the issue in dispute and thus the court has no jurisdiction. Plaintiff was terminated, given working notice and 78 weeks severance. Issue is whether Sales Incentive Plan payments should be included in his severance. Discussion of the “competence-competence principle” and significant analysis of when the court has discretion to retain jurisdiction and validity of agreement to arbitrate. Rempel, J. grants employer’s motion for a stay of the action commenced by the plaintiff.

People Corporation v. Mansbridge, 2021 MBQB 170: Motion for injunctive relief. Plaintiff seeks an interim, interlocutory and permanent injunction from defendant using plaintiff’s contacts to solicit business. Analysis of the test for granting an interlocutory injunction in the case of restrictive covenants in an employment contract. Harris, J. finds plaintiff has not established a strong prima facie case, as set out in the test in RJR-MacDonald.


Wills, Trusts & Estates

The Estate of William Alfred Kirkup, 2021 MBQB 184: Reference re passing of accounts in case where respondent acted as attorney for deceased prior to his death but there was no power of attorney document. Respondent ordered to account for all money received and disbursed while the deceased was incompetent and incapable of managing his affairs but there are no or very few receipts. Bank statements do not cover the entire period. Sr. Master Clearwater is unable to determine a reasonable opening inventory for the estate or a reasonable closing inventory. Parties agree on some expenses and others are excluded. C. David Freedman. Conflicts when Acting as Trustee and Lawyer. 40 Est. Tr. & Pensions J. 347. (Request a copy.)

Legislation


Federal

August 15, 2021

Her Excellency the Governor General, at the recommendation of the Prime Minister, issued a proclamation to dissolve the 43rd Parliament.
For more information, please consult the section entitled “Dissolution” in Our Procedure.

The general election will be held on Monday, September 20, 2021.


Provincial

The House adjourned on June 1, 2021.

The 3rd Session of the 42nd Legislature will reconvene on Wednesday, October 6, 2021 at 1:30 p.m.


Adding Foreign Content to your Legal Research

When should you consider reviewing decisions from foreign jurisdictions when conducting legal research? Does it depend on the issue – is it so localized that only Manitoba decisions will be persuasive? Or is it national in scope, so looking at other Canadian jurisdictions is helpful? Or, do you need to go even further, to international common law jurisdictions?

The authors of A Global Community of Courts? Modelling the Use of Persuasive Authority as a Complex Network examined the contents of the vLex database (available to you behind the Members Portal) “to quantify the flow of jurisprudence across the countries in our corpus and to explore the factors that may influence a judge’s selection of foreign jurisprudence.”

If judges are looking at it, shouldn’t you? Our subscription to vLex includes Canadian, U.S. and U.K. decisions. If you need help using it, review our guide or view the introductory webinar available after signing in to the members portal.

There is a growing discussion in the legal literature of an emerging global community of courts composed of a network of increasing judicial dialogue across national borders. We investigate the use of foreign persuasive authority in common law countries by analyzing the network of citations to case law in a corpus of over 1.5 million judgments given by the senior courts of twenty-six common law countries.

A Global Community of Courts? Modelling the Use of Persuasive Authority as a Complex Network

The Value of Detailed Notes

Lawyers are taught to take detailed notes. Every conversation with a client, whether in person or by telephone, or written in a document or email, is recorded in order to back up actions taken and matters billed. It’s what you turn to when your client says “I didn’t tell you to do that” and you face a complaint.

Recent estates litigation in Ontario turned on the exemplary note taking of Solicitor Barry Smith. As noted by Gans, J.:

[32]      I digress to make one observation. Smith, who had been Helen’s, if not Eugene’s, solicitor for at least 7 years by the Spring of 2011, would best be described as an ‘old-school’ solicitor. He was not only a generalist, who made ‘house calls’, but was a man who was involved or involved himself with every aspect of a client’s affairs. He made copious notes to file, which I found to be unassailable in terms of providing me with the details of the events as they unfolded during the Spring and into the Summer of 2011.

This case involved all the usual suspects: a large estate, a testator recently diagnosed with Alzheimer’s, a power of attorney clash, and undisclosed codicils. But it was the note-taking by Mr. Smith that persuaded the judge that Mrs. Kates was competent.

When reading Kates Estate, 2020 ONSC 7046, don’t ignore the footnotes. There are some very interesting comments there as well.

The Importance of Keeping Good Notes”, Richard Worsfold and Reshma Kishnani, The Lawyers Daily, January 29, 2021.

Judicial Consideration of Mandatory Roadside Breath Tests

If you practice impaired driving law, you may want to review this decision from Saskatchewan Provincial Court on the constitutional validity of mandatory roadside breath tests as implemented by Bill C-46.

In R. v. Morrison, 2020 SKPC 28, M.M. Baniak, J. delivers a discerning judgment on a variety of issues: notice for delay, a voir dire re Charter challenges blended into the trial itself, analysis of s. 320.27(2) of the Criminal Code including a discussion of Parliament’s legislative intent by analysing the words of the preamble to Bill C-46, and a discussion of the judicial meaning of “immediately”.

[172]      Obviously, s. 320.27(2) also has a deleterious effect.  Every person in a free and democratic society should, to the greatest extent possible, be free from a warrantless search or seizure especially when no grounds or reasonable suspicion exist.  This becomes even more concerning when that search or seizure incriminates the person.

[173]      However, the new provision, even though it eliminates the reasonable suspicion requirement, is grounded to an extent on the premise that it is a supplemental investigative tool that is not determinative of a person’s guilt and is subject to judicial review.  The search is restricted to provision of breath samples.  It does not extend to a person’s belongings or his living space.

Even if it’s not applicable in Manitoba, I think it’s a good example of all the elements that can be considered in a decision.

Additional Commentary:

Saskatchewan court rules mandatory roadside breath testing constitutional / Kyla Lee (The Lawyers Daily, August 24, 2020)

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