Court Notices & Practice Directions

Court of Appeal

• November 3, 2022 – Practice Direction – Remote Hearings – Changes to Court of Appeal Rules

Court of King’s Bench

Practice Directions

• October 26, 2022 – Civil Uncontested List Telephone Appearances by MB Counsel outside of Winnipeg

Discipline Digests

Manitoba Law Society Decisions

• The Law Society of Manitoba v GOLDBERG, 2022 MBLS 10

New Library Resources

New Online Titles

Available in the Library Resources section of the Member’s Portal

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

See below for more upcoming events.

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, Côté, Brown 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. (4^th) 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-Cook, 2016 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.

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