eLex November 2022

News

Discipline Digests

Manitoba Law Society Decisions

 

New Library Resources

New Online Titles

Indigenous People and the Criminal Justice System, 2nd Edition

“The second edition contains a new chapter devoted to Fetal Alcohol Spectrum Disorder (FASD) and the experiences of FASD-affected individuals in the Canadian Criminal Justice system. It also includes a practical review of the 2019 Final Reports by the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) and the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress. This bestseller also features expanded coverage of overrepresentation, sentencing, plea bargains, Gladue principles, and Charter challenges. 

Practitioners using this guide will be equipped with invaluable tools and the most up-to-date information designed to help them navigate cases involving Indigenous people within the Canadian criminal justice system.

This text is Volume 7 in Emond’s Criminal Law Series.”

 

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 2

Canadian Animal Law. by V. Victoria Shroff. Toronto: LexisNexis Canada, 2021. 518 p. Includes table of contents, appendices, and index. ISBN 9780433507017 (softcover) $135.00.

Reviewed by Julie A. Lavigne, Legal Studies Librarian MacOdrum Library Carleton University

As one of the leaders in the field, Shroff draws on her experiences over the last 20-plus years in the courtroom, classroom, and media to show how animal law intersects with other, more traditional areas of law. Shroff makes the argument that, rather than a traditional, property-based conceptualization of how animals should be treated by the law, animal law should adopt a rights-based framework wherein animals are sentient beings with intrinsic worth.

While an interesting read, if you can only afford one text on animal law, this book may not be it. The lack of a complete, separate bibliography and paucity of academic citations limits its utility as a resource. However, it does provide a good overview of the legal landscape in animal law. It also makes a strong case for the idea that moving to a rights-based framework will help the law view animals as more than just mere property…”

 

Events

2022 Joint Wills and Estates Program: Fundamentals of Estate Planning and Will Drafting

December 1 & 2, 2022    |    9:00 a.m. – 4:00 p.m.   |   Law Society Classroom

In-person or Video Webinar

 

12 CPD Hours / 1.5 EPPM Hours Planning is well underway for a two-day CPD program of interest to lawyers who practice in the area of wills and estates. Preparing wills can seem deceptively easy to new practitioners, however, an aging population and the growth of estate litigation show that preparing wills can be fraught with hidden traps. With a slate of experienced practitioners to guide you, this program is here to help!

See below for more upcoming events.

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Substantive Law

Administrative Law

Manitoba Public Insurance Corp. v. Manitoba (Public Utilities Board) et al, 2022 MBCA 86: Motion by application for leave to appeal an order of the PUB involving changes to the driver safety rating system. Application argues the orders were issued outside the jurisdiction of the PUB. PUB ordered MPI to bring forward a plan, including implementation, for any changes to the driver safety rating model. Discussion of the role of PUB based on three interrelated statutes: The MPIC Act, The Crown Corporations Governance and Accountability Act, and The PUB Act. Appeal dismissed.

 Winnipeg (City of) et al v. Winnipeg Chinatown Development (1981) Corporation et al, 2022 MBCA 82: Chambers motion by appellant (City) seeking leave to appeal an order of the Municipal Board reducing the assessment of two properties. The Municipal Assessment Act, s. 63 allows for leave to appeal an order on a question of law or jurisdiction only (Gardentree Village Inc. v. Winnipeg (City) Assessor), 2008 MBCA 117). Application dismissed.

Colavito v. Manitoba (Workers Compensation Board), 2022 MBKB 203: Application to set aside Decision 75/21 and remit the matter back to the Commission for reconsideration. Standard of review is reasonableness. Grammond, J. restates the general principles articulated in Vavilov. Application dismissed.

 Paul Daly. A Defence of Administrative Law Doctrine, 2022 CanLIIDocs 3431.

 In this paper, I tackle one of the issues which featured in my first discussions with Professor Allan and subsequently animated many of our seminar sessions: doctrinal analysis in administrative law.

Civil Litigation

Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36: Issue of constructive taking of private property by a public authority. Appellant compiled a large parcel of land over decades with the intention of developing it. Respondent municipality adopted a planning strategy including these lands, to guide development. A portion was reserved for possible future inclusion in a regional park. Review of Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5. Per Wagner C.J. and Moldaver, CôtéBrown and Rowe JJ:

 [1] This appeal calls upon the Court to clarify the circumstances in which state regulation of land use may effect a de facto or (as we will refer to it) “constructive” taking of private property.

[4] We would allow Annapolis’ appeal. The Court of Appeal, in our respectful view, misapplied CPR and summary judgment principles. Read in harmony with the jurisprudence upon which it was decided, CPR signifies that a constructive taking occurs where: (1) a beneficial interest — understood as an advantage — in respect of private property accrues to the state, which may arise where the use of such property is regulated in a manner that permits its enjoyment as a public resource; and (2) the impugned regulatory measure removes all reasonable uses of the private property at issue. Further, the Court of Appeal erred by holding that Halifax’s intention is irrelevant to applying the second part of that analysis. This leaves genuine issues of material fact arising from Annapolis’ claim to be tried.

Per Karakatsanis, Martin, Kasirer and Jamal JJ. (dissenting):

 [83] Annapolis Group Inc. has asked this Court to depart from this precedent. It urges the Court to allow its appeal from the order of the Nova Scotia Court of Appeal granting partial summary judgment dismissing its claim against Halifax Regional Municipality for a de facto taking of its lands. Annapolis invited — and needs — this Court to depart from CPR for its claim to proceed to trial.

[90] In our view, this appeal should be dismissed. There is no material fact in dispute on either branch of the CPR test for a de facto taking. First, Halifax has acquired no beneficial interest in the Annapolis Lands or flowing from them. It has simply refused to up-zone the lands. Second, the uncontradicted evidence is that Annapolis has been deprived of no reasonable uses — let alone all reasonable uses — of its lands. The zoning and uses of the Annapolis Lands remain entirely unchanged. 

O’Connor v. Amenity Pharmacy Inc. et al, 2022 MBCA 88: Appeal by defendants of motion judge’s dismissal of their request for summary judgment. Motion judge determined a trial was necessary. Appeal dismissed.

Brandon Condominium Corporation No. 68 v. T.J.R. Investment Holdings Ltd., 2022 MBCA 87: Motion for rehearing under r. 46.2 of the Court of Appeal rules on the basis that there was a misapprehension of the evidence. Dispute over amount of parking available for commercial units in a condominium complex. Parties each submitted a plan of the parking lot showing available units. In their argument for a rehearing, respondent enlarged their map showing better detail indicating that their interpretation of available parking units was correct. Reference sent to a Master to account for parking revenue owing to the condominium corporation.

Beaulieu v. Winnipeg (City of), 2022 MBCA 81: Appeal of decision finding the City and a member of WPS guilty of torts committed against the plaintiffs. Plaintiffs cross appeal trial judge’s finding that the son was not falsely imprisoned, as well as the award of damages. CA found that trial judge did not have all the evidence necessary to properly assess the credibility of the police officers. Explanation of the test for the admission of further evidence on appeal in a civil case. Discussion of the possible remedies: ordering a new trial or CA making its own assessment of the evidence and final determination of the issues. New trial ordered. 

StorageVault Canada Inc. v. Keystone Western Inc., 2022 MBKB 206: Claim over unpaid rent; issue of whether the defendant entitled to terminate their lease because of the landlord’s noncompliance with the City of Winnipeg’s by-laws. Plaintiff landlord purchased a building with multi-tenants. Defendant stayed on and entered into a new lease, but left before it expired. Plaintiff discovered it was not in compliance with the city and set out to rectify it. Martin, J. found the lease was not void or unenforceable based on principles of illegality. Plaintiff is entitled to damages for unpaid rent plus interest.

Perdue v. MacDonald, 2022 MBKB 204: Plaintiff suing doctor over unsuccessful knee surgery using a graft from a deceased donor, which subsequently became infected. Plaintiff claims that she was not fully informed of the planned procedure. To be successful, plaintiff must prove that the doctor failed in obtaining consent; that a reasonable person would not have consented to the procedure; and that the procedure caused the infection. Bond, J. concluded that the plaintiff failed on all three counts. Claim dismissed. 

Tuxedo Yards Development Corp., et al v. Canadian National Railway Company, 2022 MBKB 193: Motion for dismissal of action for long delay (Rules 24.01 and 24.02). Analysis reviews Court of Appeal decisions of Buhr v. Buhr, 2021 MBCA 63 and WRE Development Ltd. v. Lafarge Canada Inc., 2022 MBCA 11. Master Goldenberg applied the functional test as defined in Buhr. Action dismissed for long delay.

Canadian Federation of Students et al. v. The University of Manitoba Students’ Union, 2022 MBKB 197: Motion for interlocutory injunction to prohibit UMSU from conducting a referendum. Test is the one set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311. Motion dismissed.

Amanda Jerome. “Rights-of-way” Easement from 1930s Limited to Construction of Water Pipeline, Court Rules. The Lawyer’s Daily, 13 October 2022. Dismissal of application for a declaration confirming that a written easement for a parcel of land next to a farm permits construction and maintenance of an access road for residential purposes. Comment on Bairn Corporation v. Gabert, 2022 ABKB 668.

Erika Chamberlain. Case Annotation: Aylmer Meat Packers Inc. v. Ontario. (2022) 85 C.C.L.T. (4th) 57 (WLC – LSM members can request a copy.)

 Aylmer Meat Packers Inc. v. Ontario [2022 ONCA 579] is one of the rare decisions that has imposed a duty of care on a public authority based on its close and direct interactions with the plaintiff. It is also one of the rare decisions in which the plaintiff’s private interests were not trumped by the defendant’s obligation to protect the overarching public interest. Instead, the Ontario Court of Appeal affirmed and applied the principle that, “[a]s a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual.”

Criminal Law

R. v. Sharma, 2022 SCC 39: Whether an offender can plead guilty to the offence of importing cocaine and receive a conditional sentence. In 2012, Parliament amended conditional sentencing to exclude certain serious offences; these amendments prevented the accused from receiving a conditional sentence. PerWagner C.J. and Moldaver, Côté,Brown and Rowe JJ.:

 [3] We would allow the appeal and restore the sentencing judge’s order. The impugned provisions do not limit Ms. Sharma’s s. 15(1) rights. While the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders, as she must show at the first step of the s. 15(1) analysis.

 [4]  Nor do the impugned provisions limit Ms. Sharma’s s. 7 rights. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences and categories of offences. And that is what they do. Maximum sentences are a reasonable proxy for the seriousness of an offence and, accordingly, the provisions do not deprive individuals of their liberty in circumstances that bear no connection to their objective.

Per Karakatsanis, Martin, Kasirer and Jamal JJ. (dissenting):

 [115] Sentencing law cannot erase this country’s colonial past. Nor can it remove the causes behind an offender’s crime. But it is uniquely positioned to ameliorate — or aggravate — the racial inequalities in our criminal justice system. Ensuring that Canadian sentencing provisions are consistent with the liberty and equality guarantees under the Canadian Charter of Rights and Freedoms is therefore essential. This case requires us to do so.

[119] As the Crown has justified neither infringement under s. 1 of the Charter, I would conclude that the provisions are unconstitutional and would uphold the Court of Appeal’s declaration that they are of no force and effect under s. 52(1) of the Constitution Act, 1982. I would, accordingly, dismiss the appeal.

R. v. Ndhlovu, 2022 SCC 38: Challenge to the constitutionality of mandatory lifetime registration in the national sex offender registry created by SOIRA. Per Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ.:

[6] This appeal requires this Court to determine whether Parliament complied with the Canadian Charter of Rights and Freedoms when it chose to remove prosecutorial and judicial discretion from s. 490.012 and introduced, under s. 490.013(2.1), lifetime registration for offenders convicted of more than one designated sexual offence. Through s. 490.012, Parliament sought to capture information about offenders that may assist police prevent and investigate sexual offences. Similarly, s. 490.013(2.1) is designed to give police a longer period of access to information on offenders at a greater risk of reoffending.

[12] We would allow the appeal and declare ss. 490.012 and 490.013(2.1) of no force or effect under s. 52(1) of the Constitution Act, 1982. A one-year suspension of the declaration is appropriate for mandatory registration, given concerns about public safety and the many ways Parliament could remedy the provision’s overbreadth. An immediate declaration, however, is warranted for lifetime registration for offenders convicted of more than one offence.

Per Wagner C.J. and Moldaver, Côté and Brown JJ. (dissenting in part):

[145] I depart from the majority, however, on the constitutionality of s. 490.012. In finding it unconstitutional, my colleagues fixate on the removal of judicial discretion to exempt offenders who do not pose an “increased risk” to reoffend. But the exercise of discretion was the very problem that prompted Parliament to amend the Criminal Code to provide for automatic registration of sex offenders under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). Specifically, many judges had exercised their discretion to exempt offenders in a manifestly improper manner, and the Registry’s low inclusion rate undermined its efficacy. The evidence is clear that even low risk sex offenders, relative to the general criminal population, pose a heightened risk to commit another sexual offence. It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.

R. v. Nahanee, 2022 SCC 37: Contested sentencing hearing: after pleading guilty, judge imposed a sentence that exceeded the range proposed by the Crown. Issue of whether the sentencing judge was required to give notice to the parties if they intended to impose a sentence in excess of the range proposed by the Crown. PerWagner C.J. and Moldaver, Brown, Rowe, Martin, Kasirer and Jamal JJ.:

 [1] Where the Crown and the defence propose a specific agreed-upon sentence to a judge in exchange for an accused’s guilty plea, a stringent test, known as the “public interest” test, exists to protect that submission. The test, adopted by this Court in R. v. Anthony-Cook2016 SCC 43, [2016] 2 S.C.R. 204, instructs judges not to depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise contrary to the public interest. Sentencing judges must not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.

 [5] In the instant case, the sentencing judge imposed a global sentence of eight years on Mr. Nahanee for repeated sexual assaults of his two teenage nieces. This sentence exceeded the upper end of the sentencing range proposed by the Crown by two years. The sentencing judge did not provide notice that she planned to exceed the upper end of the Crown range, nor did she provide an opportunity for further submissions. Nonetheless, in my view, Mr. Nahanee has not shown that there was information he could have provided that would have impacted on the sentence; nor do the reasons of the sentencing judge disclose error. I would accordingly dismiss the appeal.

  Per Karakatsanis and Côté JJ. (dissenting):

 [74] Sentencing is a dynamic process in which the art of advocacy, the adversarial context, and the parties’ legitimate expectations play an important role; the parties are entitled to put their best foot forward to respond to the case they must meet. They must be able to address a point of fact or law that is of concern to the sentencing judge, and which could result in a more severe deprivation of liberty. Where this is not done, there is a breach of the duty of procedural fairness which, in itself, will generally warrant appellate intervention. In such a case, the appellate court should conduct a fresh assessment to determine a fit sentence.

 

R. v. Tessier, 2022 SCC 35: Admissibility of statements under the confessions rule; when suspects should receive a caution when speaking with police. Issue of when police considered person a suspect. Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ:

 [3] The principal issue raised on appeal to the Court is whether the Crown met its heavy burden to show, beyond a reasonable doubt, that Mr. Tessier’s statements were voluntary pursuant to the common law confessions rule. The Court of Appeal said the trial judge failed to address the key question in this case: whether, in the absence of a caution, Mr. Tessier had been denied a meaningful choice to speak to the police “knowing that he was not required to answer police questions, or that anything he did say would be taken down and could be used in evidence” (2020 ABCA 289, 12 Alta. L.R. (7th) 55, at para. 54 (emphasis in original)). The appeal bears upon two related doctrinal questions under the confessions rule: first, the requirements of the operating mind doctrine and, second, the impact of the absence of a caution on voluntariness prior to detention or arrest.

[13] For the reasons that follow, I propose to restore Mr. Tessier’s conviction for first degree murder rendered by the jury. I agree with the Court of Appeal that some of the trial judge’s explanations of the voluntariness rule were incomplete. However, with the utmost respect, I disagree that these amounted to reviewable legal errors that undermined the finding at trial that Mr. Tessier’s statements to the police were voluntarily made. Even in the absence of a caution, and even if one were to consider Mr. Tessier to have been a suspect at the time of questioning, the record confirms that the trial judge’s determination on voluntariness should not have been disturbed on appeal.

 Per Brown and Martin, JJ. (dissenting):

 [126] Applying our restated test, the question in this case becomes whether Mr. Tessier spoke to police voluntarily with awareness about what was at stake. In our view, he did not. When the police contacted him to secure information in relation to their homicide investigation, he was not initially informed that he was not required to speak to police and that what he said could be used as evidence. Further, both the officer’s adversarial questioning and the information pointing to Mr. Tessier as a suspect increased his objective risk of self-incrimination. As the majority acknowledges (at para. 61), the trial judge committed palpable errors by ignoring key information that would have raised a reasonable suspicion that Mr. Tessier committed the crime. The Crown failed to rebut the presumption of involuntariness, and the statements should not have been admitted. We would therefore dismiss the appeal and confirm the judgment of the Court of Appeal setting aside the conviction and ordering a new trial.

R. v. Schneider, 2022 SCC 34: Admissibility of hearsay evidence; whether trial judge erred in admitting overheard statements into evidence. Analysis of the legal framework for admissibility of evidence in a criminal trial and discussion of exclusionary rules. Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ:

 [6] The Crown asks this Court to allow the appeal and restore the conviction. I would do so. The trial judge did not err in admitting this part of the brother’s evidence. There is no basis in law to differentiate between “micro” and “macro” context when determining whether evidence is capable of meaning and, therefore, relevant. All the evidence is capable of informing a judge’s analysis of this question.

 Per Karakatsanis and Brown JJ (dissenting):

 [89]  We would dismiss this appeal. We do not disagree with our colleagues’ framework for assessing relevance and probative value. What divides us is its application here. In our view, for the reasons of Justice Goepel at the Court of Appeal, a jury could not ascertain the meaning or relevance of the overheard statements (2021 BCCA 41, 400 C.C.C. (3d) 131). As well, their prejudicial effect outweighed any tenuous probative value they may have had. The overheard statements were inadmissible.

R. v. Krywonizka, 2022 MBCA 85: Appeal by Crown of conditional sentence imposed following guilty plea to six counts of firearms-related offences. Judicial consideration of the proper approach to sentencing for multiple offences, thus determining whether a sentence should be concurrent or consecutive. Leave to appeal the sentence granted, appeal dismissed.

R. v. Soroush et al, 2022 MBCA 84: Appeal of convictions by a jury for first degree murder (3) and second degree murder (1). Issues raised include the sufficiency of the jury charge and correctness of certain rulings. Some issues overlap different accused and could affect all convictions. CA analysed each issue separately. Appeal dismissed.

R. v. Neak Ngen, 2022 MBCA 83: Appeal of conviction for sexual assault alleging ineffective assistance from trial counsel. Accused alleges he asked for an interpreter when meeting with his lawyer and did not understand why he was not given the option to testify. Trial counsel denies they had difficulty communicating. Appeal dismissed.

R. v. Barca, 2022 MBCA 80: Accused appealing conviction for careless use of a firearm, and seeking leave to appeal his sentence. Crown is appealing acquittal of reckless discharge of a firearm. RCMP arrived at a rural residence in response to a 911 hang up wellness call. Accused shot at them; they left then returned with backup. Significant analysis of judicial consideration of “recklessness”. Examination of possible remedies. Accused appeals dismissed; Crown appeal allowed, CA determined sentence.

R. v. Lavallee, 2022 MBCA 79: Appeal over conviction for criminal contempt of court and request for leave to appeal sentence. This decision only concerns the conviction. Contemnor entered a guilty plea to the offence of contempt. Defence argued that she essentially purged that contempt. CA agreed with trial judge; conviction appeal dismissed.

R. v. Fox, 2022 MBKB 207: Sentencing decision for conviction of second-degree murder. The offence carries a mandatory life sentence, with the only issue left to determine is the length of time before the accused is eligible for parole. Crown argues for 16 years; defence argues it should remain at the 10 year minimum. Discussion of whether a sentencing decision is an appropriate vehicle to comment on systemic racism in the parole system. Champagne, J. decides it is not appropriate. Considering aggravating and mitigating factors, appropriate period of parole ineligibility is determined to be 15 years.

R. v. V. (R.), 2022 MBKB 190: Sentencing decision for conviction for several sexual offences against a child. Crown seeks a custodial sentence of 12 years; defence seeks six to seven years in custody. Objectives of denunciation and deterrence are the primary considerations; statutory prescribed minimum and maximum sentences of one year and 14 years must also be taken into consideration. Consideration of the guidelines as set out in R. v. Friesen, 2020 SCC 9. Taking into account aggravating and mitigating factors, Kroft, J. imposes a 10 year custodial sentence.

R. v. Gamblin, 2022 MBKB 187: Accused tried for second degree murder. Question in this case is whether the Crown proved the accused is the person responsible. Analysis of the witnesses’ testimony and video evidence presented by the police. Keyser, J. found Crown successfully proved guilt beyond a reasonable doubt.

R. v. Desilva, 2022 MBPC 51: Decision on validity of search warrant. ITO was based on information from a confidential informant. Accused argues information in the ITO did not disclose reasonable grounds to believe that an offence was committed. Summary of test as set out in R. v. Pilbeam, 2018 MBCA 128. Analysis of the credibility of the information as well as whether it was corroborated. Based on totality of the circumstances, judge found that the ITO was not sufficient and the search breached the accused’s s.8 Charter rights.

R. v J.W., 2022 MBPC 49: Sentencing decision where accused was found guilty of assault causing bodily harm after a trial. Victim was his 21 month old stepson. Denunciation and deterrence are the primary sentencing objectives for offences involving the abuse of children. Crown seeks a sentence of four years; defence argues one year followed by two years of supervised probation is appropriate. Frederickson, P.J. orders a custodial sentence of 22 months, followed by a period of supervised probation for two years.

R. v L.J.D., 2022 MBPC 48: Sentencing decision after accused entered guilty pleas to charges for sexual interference and aggravated assault. Offences took place separated by a number of years. Victim of sexual interference was a young child. Victim of assault was severely injured and is now paraplegic. Harvie, P.J. considered caselaw, aggravating and mitigating factors and the principle of totality. Accused is sentenced to 10 years for aggravated assault served consecutively to the sexual interference sentence of four years. Sexual interference sentence reduced by one year for totality.

R. v. Caribou and Olenick, 2022 MBPC 45: Accused are jointly charged with possessing stolen property and multiple firearms offences. They were pulled over on a traffic stop. Vehicle (a scooter) was determined to be stolen. Search of a purse and backpack turned up firearms. Ms. Caribou pleaded guilty to some of her charges and testified; Mr. Olenick did not. Credibility of witness’s testimony at issue. Lord, A.C.P.J. accepted her explanations. Mr. Olenick convicted of all charges.

Brandon Trask and Evan Podaima. Blurred Lines: A Critical Examination of the Use of Police Officers and Police Employees as Expert Witnesses in Criminal Trials. (2021) 44-6 Man. L. J. 48.

This paper analyzes recent Canadian case law in relation to the use of expert witnesses and determines that structure-related concerns ultimately pertaining to bias have played a significant role in court determinations as to the admissibility of expert evidence. Guided by this finding, the authors propose a new two-stream expert structure in order to present a model for proactively reducing concerns relating to impartiality, independence, and bias about experts called by the Crown.

 Lisa Silver. What did you say? Making Sense of the Admissibility of Evidence in R. v. Schneider. ABlawg.ca, 13 October 2022. Case comment on R. v. Schneider, 2022 SCC 34.

Family Law

K.T.S. v. CFS Central Manitoba, 2022 MBKB 201: Application opposing entry of name on the Child Abuse Registry. Issue is whether the applicant abused the child within the meaning of The Child and Family Services Act, C.C.S.M. c. C80, s.19(3.7). Decision is final and not subject to appeal. Agency has the burden of proof on a balance of probabilities. Abel, J. found that the applicant had abused the child, therefore her name will be placed on the registry.

 J.D.R. v. A.N.R., 2022 MBKB 200: Respondent seeks to vary a final order made by consent in 2020. Order provided that the parties shared care and control of their child and that the child continue to attend school in a particular location. Respondent requests this provision be deleted and replaced with a term granting her the right to make the final decision re education, and to change the location of the child’s school. Thomson, J. finds that there has not been a material change in circumstances; motion dismissed.

 Ryan v. Ryan, 2022 MBKB 198: Request by petitioner for respondent’s counsel and her firm to be disqualified as solicitors of record; and a determination whether a Master has jurisdiction to adjudicate motions for removal of counsel. Petitioner first approached a lawyer at respondent’s family business law firm and shared financial and property information with him. Lawyer prepared a Homestead Notice. Lawyer eventually realized there was a conflict and advised petitioner to seek new counsel. Respondent sought representation from same law firm. Master declined to hear petitioner’s motion for disqualification of the law firm. Hatch, A.C.J. found that the Master does have jurisdiction to adjudicate motions for removal of counsel due to a conflict of interest; and respondent’s lawyer and law firm are disqualified from acting against the petitioner.

 Loader v. Loader, 2022 MBKB 195: Dispute about Master’s jurisdiction to determine the nature of a bank account, in petitioner’s name. Respondent alleges the account is joint property. Petitioner alleges that he is holding the money in trust for his mother. Respondent wants the matter referred to the Master along with other issues that will be referred to the Master. Petitioner says the Master has no jurisdiction. Leven, J. agrees with respondent that it is allowed under the Rules, and is the option most consistent with proportionality.

 Katherine Cooligan, Brad Yaeger. A Look at Recent Developments in the Law of Contempt. (2022) 41 C.F.L.Q. 77. (WLC – LSM members can request a copy.)

 This discussion paper offers a combination of narrative commentary and empirical research, based on a comprehensive and ongoing review of recent jurisprudence across Canada. I provide a high-level overview of recent developments in the law, consolidate some of the key principles emerging from the jurisprudence and comment briefly on how select cases have applied (or neglected to apply) those principles. This review reveals both notable trends and some disparity in judicial treatment. 

 Terry Davidson. N.B. Appeal Court Ruling Examines Delay in Timelines in Child Protection Matters: Lawyer. The Lawyer’s Daily, 6 October 2022. Comment on R. D. v. The Minister of Social Development, 2022 NBCA 56. Judicial analysis of delay where children had been taken into protective custody.

Labour and Employment Law

Bartel-Zobarich v. Manitoba Association of Health Care Professionals (MAHCP-Bargaining Unit) et al, 2022 MBCA 64: Application for an extension of time to file notices of appeal. Respondents were successful in having motions granted to strike out the notice of application and statement of claim without leave to amend as well as declaring the applicant to be a vexatious litigant. Applicant was terminated for cause in January 2012; grievance was settled in January 2014. Applicant takes position grievance was settled without her knowledge. Analysis of whether the applicant showed a continuous intention to appeal and whether she had a reasonable explanation for the delay. Motion denied.

Pokornik v. SkipTheDishes Restaurant Services Inc., 2022 MBKB 178: Action seeking various heads of relief including a declaration that the plaintiff is an employee and not an independent contractor, and an order certifying this proceeding as a class action. Defendant moves for an order staying the action in favour of arbitration. Plaintiff originally contracted with the defendant in 2014. Original agreement contained no arbitration agreement. In 2018, agreement was changed to require disputes be resolved through arbitration. Plaintiff was required to accept the change in order to continue to offer services through the app. Analysis of s. 7(1) of The Arbitration Act to determine which agreement governs the relationship. Chartier, J. decides in favour of the plaintiff.

Scope of the Inquest Hearing Decision (Anderson), 2022 MBPC 46: Motion by the City of Thompson and Thompson Fire and Emergency Services to modify the scope of the inquest to remove the issue of determining whether Mr. Anderson’s death was preventable if there had been more timely medical intervention; and whether the original scope should be revised to have as its primary focus a review of the coordination of a multi-agency response to a serious incident in a remote setting in Manitoba. Situation arose over the death of the conductor of a freight train after the train derailed in a remote area of the rail line. Review of the law concerning the scope of an inquest. Opinion of the Chief Medical Examiner changed after the inquest was called; Killeen, P.J. finds that to be a material change, and scope is changed.

Eric Tucker. Competition and Labour Law in Canada: Patrolling the Boundaries. (preprint – published as Competition and Labour Law in Canada: The Contestable Margins of Legal Toleration, in S. Paul, S. McCrystal, & E. McGaughey (Eds.), The Cambridge Handbook of Labour in Competition Law (Cambridge Law Handbooks, pp. 127-140, 2022)).

In Canada, as in most advanced capitalist countries, the right of workers to engage in collective action has been partially immunized from competition law, one of the basic norms of capitalist legality. The “zone of toleration”, however, has been contested over time and poses a recurring regulatory dilemma that stems from labour’s commodity status in capitalism.

Wills, Trusts & Estates

Estate of Mike Tarabalka Senior, 2022 MBKB 199: Application to pass accounts for a modest estate. One beneficiary is contesting it. Accounts approved. The Master ordered half of the lawyer’s fees to be paid from the contesting party’s share.

 Estate of Walter Konyk, 2022 MBKB 192: Dispute over validity of will. Deceased rewrote his will a year before passing away, making major changes. A beneficiary and proposed executor of a previous will applied to challenge the will based on lack of capacity and undue influence. Discussion of whether a trial is required. Application included lengthy briefs as well as oral arguments. Suche, J. found that the will is valid, and application dismissed.

 Trevor Courtis. One Rule, Less Golf: Clublink kand the Rule Against Perpetuities. 2022 100-2 C.B.R. 316.

 The article surveys the rule against perpetuities in Canada and its recent application by the Court of Appeal for Ontario in Ottawa (City) v. ClubLink Corporation ULC. The application of the rule across Canada is a complex patchwork as the traditional common law rule has been modified or abolished by statute in many jurisdictions. The article summarizes the approaches that have been taken in the various Canadian provinces. The article concludes that the decision in ClubLink provides helpful clarity on determining whether an interest in land has been created and when the rule against perpetuities applies.

Legislation

Federal

Recent Activity

Bill Number

LongTitle

StatusName

S-245

An Act to amend the Citizenship Act (granting citizenship to certain Canadians)

At second reading in the House of Commons

C-32

An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 3, 2022 and certain provisions of the budget tabled in Parliament on April 7, 2022

At second reading in the House of Commons

C-27

An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts

At second reading in the House of Commons

S-246

An Act respecting Lebanese Heritage Month

At consideration in committee in the Senate

S-242

An Act to amend the Radiocommunication Act

At consideration in committee in the Senate

S-238

An Act to amend the Criminal Code and the Canadian Victims Bill of Rights (information about the victim)

At consideration in committee in the Senate

S-231

An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act

At consideration in committee in the Senate

S-230

An Act to amend the Corrections and Conditional Release Act

At consideration in committee in the Senate

S-212

An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation

At consideration in committee in the Senate

S-220

An Act to amend the Languages Skills Act (Governor General)

At second reading in the Senate

S-236

An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)

At consideration in committee in the Senate

S-5

An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act

At consideration in committee in the House of Commons

C-5

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act

At third reading in the Senate

C-31

An Act respecting cost of living relief measures related to dental care and rental housing

At consideration in committee in the Senate

C-20

An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments

At second reading in the House of Commons

C-228

An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985

At report stage in the House of Commons

 

Provincial

Recently Passed Bills

No. Sponsored by As proposed   (Click PDF for the bilingual version)
13 Hon. Ms. Squires
Minister of Families
The Social Services Appeal Board Amendment Act PDF
14 Hon. Mr. Goertzen
Minister of Justice
The Drivers and Vehicles Amendment, Highway Traffic Amendment and Manitoba Public Insurance Corporation Amendment Act PDF
22 Hon. Mr. Wharton
Minister of Environment, Climate and Parks
The Environment Amendment Act (Pesticide Restrictions) PDF
24 Hon. Mr. Helwer
Minister of Labour, Consumer Protection and Government Services
The Real Property Valuation Board and Related Amendments Act PDF
36 Hon. Mr. Friesen
Minister of Finance
The Manitoba Hydro Amendment and Public Utilities Board Amendment Act
 amendment(s) adopted at Committee Stage
PDF
40 Hon. Ms. Squires
Minister of Families
The Hospitality Sector Customer Registry Act and Amendments to The Child and Family Services Act and The Child Sexual Exploitation and Human Trafficking Act
 amendment(s) adopted at Committee Stage
PDF
43 Hon. Ms. Squires
Minister of Families
The Disclosure to Protect Against Intimate Partner Violence Act PDF
45 Hon. Mr. Friesen
Minister of Finance
The Budget Implementation and Tax Statutes Amendment Act, 2022 PDF
46 Hon. Mr. Piwniuk
Minister of Transportation and Infrastructure
The Highway Traffic Amendment Act PDF
47 Hon. Mr. Friesen
Minister of Finance
The Appropriation Act, 2022 PDF
208 Ms. Lamoureux The Teachers’ Pensions Amendment Act PDF
233 Mr. Wishart The Engineering and Geoscientific Professions Amendment Act PDF
240 Mr. Schuler The Jewish Heritage Month Act PDF

 

REGULATIONS

Number Title Registered Published
126/2022 Moose Conservation Closure Regulation, amendment 14 Oct. 2022 14 Oct. 2022
127/2022 Court of Appeal Rules, amendment 31 Oct. 2022 31 Oct. 2022
128/2022 Allocation of Hunting Licences Regulation, amendment 3 Nov. 2022 3 Nov. 2022
129/2022 General Hunting Regulation, amendment 3 Nov. 2022 3 Nov. 2022
130/2022 Hunting Seasons and Bag Limits Regulation, amendment 3 Nov. 2022 3 Nov. 2022
131/2022 Airport Vicinity Protection Area Regulation, amendment 4 Nov. 2022 4 Nov. 2022
132/2022 Pharmaceutical Regulation, amendment 4 Nov. 2022 4 Nov. 2022

ONSC on service to Google

Google reviews – you either love ’em or hate ’em. Negative reviews can do unimaginable harm to your reputation and there is often little you can do to remove them. One company in Ontario, however, is trying to do just that. This Pre-Claim Injunction explains the interaction between Rules 37.17 and 16.01 of the Rules of Civil Procedure in determining whether email notification is acceptable as personal service.

[17]           In most cases, I would not be satisfied that when Myers J. sent the motion back to Obsidian’s counsel to be brought “on notice”, he meant notice by something other than the personal service required for an originating process. This was, after all, the first missive in this action (or proposed action) that Google, as defendant, would have received. However, Google is an unusual respondent in certain respects, and its uniqueness may impact on the way in which the ambiguity between Rule 16.01 and Rule 37.17 is interpreted.

Since Google has three dedicated email addresses dealing with litigation, Morgan, J. accepted that notice had been given. The interim injunction and Norwich Order sought was granted.

Obsidian Group Inc. v. Google LLC, 2022 ONSC 848

New from CanLII: AI generated subject classification for Ontario case law

A helpful new feature just launched on CanLII.org. Going forward, Ontario court decisions on CanLII will 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:

screen shot of CanLII search result that contains the AI generated label "Public Administration"

The feature offers a quick way for users to determine under which practice area a case has been classified. The Ontario AI project is the second jurisdiction to receive this feature, after CanLII launched the feature for Saskatchewan case law last year.

Read more about the new Ontario project here.

Supreme Court Adds Plain Language Summaries

New to me (but not that new) – Cases in Brief:

Cases in Brief are short summaries of the Court’s written decisions drafted in reader-friendly language, so that anyone interested can learn about the decisions that affect their lives. They are prepared by communications staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

Supreme Court of Canada website

These summaries cover decisions from 2018 on. This looks like a handy resource to refer to clients or self represented litigants who need to understand a decision but are struggling to read the legalese. Or lawyers who want to be up on the law and it’s not in their area of practice.

eLex September 2021

Table of Contents

News Substantive Law Legislation
In the News Administrative Law Federal
Court Notices &
Practice Directions
Civil Litigation Provincial
New Library Resources Criminal Law  
Book Reviews Family 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

Practice directions

Notices

Provincial Court

Practice Directives

Notices

Court of Appeal

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