Looseleaf Updates – April

The Law of Costs – Mark M. Orkin and Robert G. Shipper
Release #1

What’s New?

Party-to-Party Costs – The Courts of Justice Act – Costs to be Fixed or Assessed – Introduction – In judgments rendered in the Alberta Court of King’s Bench the court awarded damages of $165,166,431 with prejudgment interest to the plaintiff against the defendants. The parties were unable to agree on costs. After adjusting its claim to acknowledge the legitimacy of points made by the defendants, the plaintiff sought costs in the amount of $4,801,339.41. In this case the court reviewed the meaning of “reasonable and proper costs”: Remington Development Corporation v. Canadian Pacific Railway Company, 2023 ABKB 591 (Alta. K.B.)

Party-to-Party Costs – The Courts of Justice Act – Costs to be Fixed or Assessed – The Reasonable Expectations of the Parties – Proportionality – The main focus of the jury trial was whether the defendant was liable to the plaintiff under the Occupier’s Liability Act (Ont.). Of particular significance as it related to this matter was the apportionment of liability against the plaintiff. An award of costs that exceeds the amount of damages assessed by the jury might be seen by some as disproportionate. While an award of costs must be proportionate it must also be seen to be reasonable and fair. It must also reflect an amount that the losing party might reasonably have anticipated paying in the event of non-success at trial: Lawless v. Joanovits, 2024 ONSC 1561 (Ont. S.C.J.)

Party-to-Party Costs – Several Plaintiffs – Class actions – Legal Fees – This appeal in the Court of Appeal for Ontario involved the fees to be paid to class counsel following the settlement of a class action concerning unpaid overtime work. Class counsel was a consortium of three law firms. The motion judge awarded class counsel $25 million in fees for obtaining a $153 million settlement over the course of 15 years. After other deductions, this left $106 million to be allocated to the class. The appellant class counsel was requesting a $19 million increase for a total of $44 million in class counsel fees. This amount reduced the class portion of the settlement to $86 million for 31,000 class members. The appeal was dismissed: Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628 (Ont. C.A.).

Party-to-Party Costs – Dismissal and Discontinuance of Actions – Where Plaintiff Discontinues Action – The province of Ontario issued exploration permits allowing the defendant Q Inc., one of the two companies owned by the defendant prospector M, to conduct mining exploration activities in an area near the plaintiff’s reserve. The plaintiff obtained an interim injunction prohibiting M and two companies from engaging in any exploration activities in the area pending determination of an application for interlocutory relief. The interim injunction was later extended as against the two companies, but not as against M. M who was acting on behalf of himself and the companies claimed costs on a substantial indemnity basis the amount of $115,598.60. The court on that application found that parties would bear their own costs on the motion, given the divided success in the matter. The plaintiff sought a new interlocutor injunction against M and his companies. The judge on that motion denied the plaintiff’s requested adjournment and the plaintiff withdrew its application. M sought costs on a substantial indemnity basis in the amount of $44,383,50 plus disbursements. The judge reviewed the issue of costs when an action has been discontinued as well as costs for a self-represented litigant: Ginoogaming First Nation v. HMTK, 2024 A.C.W.S. 1561 (Ont. S.C.J.).

The Law of Costs – Mark M. Orkin and Robert G. Shipper
Release #3

What’s New?

Party-to-Party Costs – Costs Payable by Solicitor – Conduct of Solicitor – The Ontario Superior Court judge had declared a mistrial. The court was now dealing with whether or not the lawyer for the plaintiff should be held personally liable for costs. The mistrial was declared largely as a result of the non-disclosure of a conflict of interest involving the lawyer for the plaintiff, her husband, her husband’s company, and the retainer by her husband’s company of two doctors who prepared medical legal reports for the lawyer’s law firm. This was one of those rare and exceptional cases where the conduct of the lawyer required the Court to exercise its responsibility to supervise the conduct of a lawyer where the conduct was of such a nature that it both frustrated and interfered with the administration of justice. The mistrial was entirely avoidable. Regrettably, in this case, the judge stated that the lawyer’s actions were a complete misunderstanding of what the word candour means. Candour required disclosure of the conflict to the client, to the defendant of the court. Candour required full disclosure of the inflated cost of the doctor’s invoice to the client, the defendants and to the court. None of this happened. This was the rare case where the court exercised its discretion to award costs of the mistrial against the lawyer. To do otherwise would be to countenance such conduct and to potentially have the client pay the mistrial costs which would be patently unfair to the client where his conduct in no way caused the mistrial. Ashrafian v. Kavarana, 2024 ONSC 240; 2024 A.C.W.S. 2060 (Ont. S.C.J.)

Security for Costs – Appeals – General – This decision from the Ontario Court of Appeal is in respect to an appeal from the decision of the Superior Court of Justice reported at 2024 ONSC 1964. The appellant M, appeals from the decision of the judge of the Superior Court of Justice who granted summary judgement in favour of the respondent B, who was M’s former lawyer. Judgement was granted in the sum of $2,850,500 on account of outstanding legal fees. The respondent B applied to the Ontario Court of Appeal for security for costs and security for judgement against appellant M. As the Court of Appeal noted from earlier appeal decisions, the ordering of security for costs is discretionary; a two-step reasoning process is involved. The first question is whether the requirements pf rile 61.06(1)(a), (b), or (c) are met. If so the second question is whether it would be just to order security, considering the circumstances and the interests of justice. Security for judgement is an “extraordinary remedy”. Trying to get money that rests on reserve comes very close, if not crosses over the line into what the Court of Appeal had earlier said cannot be done by virtue of section 89 of the Indian Act. In total, the appellant M was ordered to pay into court security for costs in the total amount of $115,026.90. Bogue v. Miracle, 2024 ONCA 643 (Ont. C.A.)

Remedies in Tort – Lewis N. Klar et al.
Release #3

What’s New?

In Sickel Estate v. Gordy, 2008 SKCA 100, there was a fatal traffic accident caused by employee of the company contracted to provide food service to carnival. The accident occurred while the employee driving truck owned by one of her employer’s partners in convoy was moving to the next carnival location. Since the accident occurred while the employee was performing her regular employment duties, the employer was held to be vicariously accountable.

In John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27, the plaintiffs were victims of abuse while resident at orphanage operated by Christian Brothers. They unsuccessfully tried claiming that the Catholic Church was vicariously liable for non-feasance of orphanage’s parish priest in preventing abuses, but no evidence was established. On appeal, the Court of Appeal upheld the trial judge’s determination respecting the Archdiocese’s vicarious liability for the parish priest’s non-feasance but overturned the trial judge’s determination respecting the Archdiocese’s vicarious liability for the Christian Brother’s sexual abuse of appellants when children in the orphanage supervised by the Christian Brothers.

Conflicts of Interest – Eugene A.G. Cipparone and Ted Tjaden
Release #1

What’s New?

A revised and updated Chapter 20: Motions to Disqualify Counsel for Conflicts of Interest. The updated commentary and case law includes 48 new, recent lawyer disqualification decisions. In addition, Appendix F:22. Model Factum in Support of or in Opposition to a Motion to Disqualify Counsel of Conflicts of Interest.

Manitoba King’s Bench Rules Annotated – Jonathan M. Woolley
Release #1

What’s New?

Year in Review – The Year in Review discusses some of the notable trends and developments in civil litigation in Manitoba from October 2023 to December 31, 2024 with a review of Practice Directions issued by the Court of King’s Bench and Court of Appeal in 2024 and commentary on notable decisions of the Manitoba Courts dealing with various civil procedure issues including: Dismissal for Delay; Costs Awards and Solicitor-Client Privilege.

Manitoba King’s Bench Rules – Rule 19.08 – Default Proceedings-Setting Aside – Generally – The factors generally considered by the Court in a motion to set aside default are: whether the defendant had an ongoing intention to defend; the defendant’s explanation for why defence was not filed; whether the failure to file a defence was willful; whether the motion to set aside was brought with dispatch; and whether there was undue prejudice to the plaintiff. While proof of a meritorious defence is not a pre-condition to set aside the noting of default, it is a relevant factor for the Court to consider in exercising its discretion. Ultimately, the factors into consideration should not be considered in isolation but should be weighed together in the Court’s decision. While recognizing that the circumstances of every case must be analysed, the onus is generally considered to be low when it comes to setting aside default. Schaworski v. Unrau, 2024 MBKB 150, 2024 CarswellMan 334 (man. K.B.), per Patterson Associate J.

Manitoba King’s Bench Rules Annotated – Jonathan M. Woolley
Release #2

What’s New?

Manitoba King’s Bench Rules – Rule 24.01 Dismissal for Delay – Significant Prejudice and Delay – Inordinate and Inexcusable Delay – When assessing delay, the Court must determine whether it has been both inordinate and inexcusable. An assessment of whether or not the delay was inordinate may involve consideration of the nature of the issues in the action, the complexity of the issues, the current status of the litigation as compared to a reasonable comparator and the role of each party in the overall delay. If the delay is found to be inordinate, the onus then shifts to the plaintiff to justify the delay (i.e., a consideration of whether the delay can be excusable). If the delay is found to be both inordinate and inexcusable, there is a rebuttable presumption of significant prejudice. Even if the delay is not inordinate and excusable, the Court may still dismiss a claim in a case where significant prejudice has occurred. In exceptional circumstances, the Court may refuse to dismiss the action even where it finds delay and significant prejudice. Forsythe v. Johnson, 2024 MBCA 104 per Spivak, J.A.

Manitoba King’s Bench Rules – Rule 57.01(2) – Costs – Costs Against Successful Party – The Court’s discretion with respect to costs must be
exercised in accordance with the principle and the rules governing the exercise of all judicial discretion –
it is not to be exercised in a harsh or arbitrary manner. However, the discretion is unfettered and untrammeled and will be governed by the special circumstances of the case. For the Court to award costs to an unsuccessful party, that party must persuade the court that the proceeding contained some special element to justify such an order. Examples include cases where the successful party engaged in misconduct (such as failure to make proper
disclosure). However, courts have also granted costs in cases of significant public interest. Polischuk v. The City of Winnipeg, 2024 MBKB 156 per Martin J.

Lawyers & Ethics: Professional Responsibility and Discipline –Gavin MacKenzie
Release #1

What’s New?

WP:131 – Professional Misconduct (B.C.) Professional misconduct…represents a marked departure from proper professional practice, but is not necessarily associated with moral turpitude or with intentional wrongdoing.

Gregory v. The Law Society of British Columbia, 2024 CarswellBC 3060, 2024 BCCA 350 (B.C. C.A.) Groberman J.A. (Fenlon and Fitch JJ.A. concurring) at para. 65

  • Model Code of Professional Conduct, as amended April 2024.
  • National Discipline Standards, Approved by Council October 14, 2023).
  • Model Rule on Client Identification and Verification (Adopted by the Council of the Federation of Law Societies of Canada, March 20, 2008; amended December 12, 2008; amended October 19, 2018; amended March 14, 2023).
  • National Requirement (Amended March 12, 2024; in force January 1, 2029).

The Regulation of Professions in Canada – James T. Casey
Release #2

What’s New?

Chapter 3 – The Canadian Charter of Rights and Freedoms – In an important Charter case, the Ontario Divisional Court upheld a tribunal’s decision finding a physician guilty of professional misconduct for spreading Covid-19 misinformation. The Court held that the tribunal had properly balanced the physician’s freedom of expression with the statutory objective of protecting the public: Trozzi v. College of Physicians and Surgeons of Ontario, 2024 ONSC 6096.

Chapter 6 – Compliance with Statutory Provisions – The Saskatchewan Court of Appeal upheld a decision finding that a provision in a bylaw requiring notice of an AGM to be served by mail was directory rather than mandatory. As a result, the service of the notice of the AGM by email did not invalidate the results of the AGM: Haas v. The Saskatchewan Veterinary Medical Association, 2024 SKCA 110.

Chapter 8 – Procedural Rights at a Disciplinary Hearing – The denial of an adjournment was upheld even though there was concurrent civil litigation addressing the same issues. The Court found that the tribunal had properly balanced potential prejudice to the member with the public interest in completing disciplinary proceedings: Bauhuis v. Association of Professional Engineers and Geoscientists of Alberta, 2024 ABKB 603.

Executors and Trustees – Carmen S. Thériault
Release #3

What’s New?

Mutual Wills – Evidence of Agreement – The marriage of the testator and the defendant was a second marriage for both. The defendant and the plaintiff, the deceased’s child from his first marriage, had a difficult relationship. The testator and the defendant had kept their finances separate and had made new wills which made the other the sole beneficiary with gift overs to their respective children in equal shares. After the testator died the defendant made a new will, revoking prior wills, and leaving the residue of her estate to her biological children. The plaintiff brought an action against the defendant to seek variation of the deceased’s will for failure to provide adequate, just and equitable provision for her. She also sought leave to bring an action against the defendant because she changed her will. The plaintiff’s application was dismissed. The court found there was no evidence that the testator and the defendant had intended to bind each other to mutual wills, saying at para. 37:

37 The doctrine of mutual wills requires there to be an agreement between the parties which satisfies the requirements of a binding contract. The agreement must be proven by clear and satisfactory evidence and it must include an agreement not to revoke the wills: Edell v. Sitzer, 55 O.R. (3d) 198 at para.58, 2001 CanLII 27989 (O.N.S.C.); Brynelsen Estate v. Verdeck, 2002 BCCA 187. When two persons agree to make mutual wills, they agree that once the wills are made that no changes may be made by either party, without the other’s consent, and when one person dies, the surviving party cannot change the disposition made in their will. There must be clear and unequivocal evidence of an enforceable agreement between the parties that the survivor cannot change their will after the death of the first person.

43 The decision of Moyer v. Moyer Estate, 2018 BCSC2225, is similar to the circumstances of this case. Justice Crossin sets out the principles of a mutual will agreement: A mutual will agreement imposes an onerous obligation on the surviving testator, who is left unable to deal freely with their property during the remainder of their lifetime and is compelled to dispose of it in a certain way at their death. For this reason, in order for the court to find the existence of an enforceable agreement, there must be clear and unequivocal evidence, including clarity of terms.

Byron v. Cress, 2024 BCSC 1152, 2024 CarswellBC 1913 (B.C. S.C.).

Estate Assets – Pets – Establishing Ownership – An estate trustee applied for a declaration that a dog was owned by the deceased at the time of his death and was therefore an asset of the estate. The dig had been taken by the respondent, who had been in an intermittent relationship with the deceased. In granting the application, the court set out the law relating to pet ownership, saying at para. 24 et seq:

24 Dogs are personal property much like other chattels (albeit indivisible), even when purchased during the course of a relationship. The question is one of ownership, not who wants the dog more, who loves the dog more or who would be the best owner.

25 Traditionally, the question of pet ownership focused narrowly on who paid for the animal. More recent cases have taken a broader approach, looking at the relationship between the parties and the dog and considered an non-exclusive list of factors.

26 The Coates decision [Coates v. Dickson, 2021 ONSC 992, 2021 CarswellOnt 1430] contemplates the following factors:

  1. Whether the animal was owned or possessed by one of the people before the relationship began;
  2. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
  3. The nature of the relationship between people contesting ownership at the time the animal was first acquired;
  4. Who purchases and/or raised the animal;
  5. Who exercised care and control of the animal;
  6. Who bore the burden of the care and comfort of the animal;
  7. Who paid for the expenses related to the animal’s upkeep;
  8. Whether at any point the animal was gifted by the original owner to the other person;
  9. What happened to the animal after the relationship between the litigants changed; and
  10. Any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal. [footnotes removed]

Carvalho v. Verma, 2024 ONSC 1183, 2024 CarswellOnt 2458 (Ont. S.C.J.), additional reasons 2024 ONSC 3915, 2024 CarswellOnt 10262 (Ont. S.C.J.).

Looseleaf Updates – February

Widdifield on Executors and Trustees – Carmen S. Thériault
Release #1 

What’s New?

4:7 General Rule in Estate Litigation: Costs Follow Event – In Joy Estate v. McGrath, 2022 ONCA 119, 2022 CarswellOnt 1457 (Ont. C.A.), Gillese J.A. commented upon the process to be followed where public policy considerations arise:

The jurisprudence is clear: at first instance, when deciding costs in estate litigation, the court must begin by carefully scrutinizing the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate. It is worthy of note that this approach is not a balancing of the public policy considerations against the rationale for costs rules that ordinarily apply to civil litigation.  Rather, it is a sequential analysis, the first step of which is to determine whether one or more of the public policy considerations apply.  If so, generally the parties’ reasonable costs should be payable from the estate.  A departure from this general principle requires justification on the part of the court.

4:15 Special Costs – The court will order special costs in exceptional circumstances where the conduct is reprehensible, which encompasses scandalous or outrageous conduct (such as conduct tantamount to fraud or an abuse of process), as well as milder forms of misconduct deserving of reproof or rebuke: Kirouac Esate, 2024 BCSC 1119, 2024 CarswellBC 1847 (B.C. S.C.)

4:24 Solicitor Appointed as Executor/Trustee –  In Re Parkinson Estate, 2024 MBCA 52, 2024 CarswellMan 217 (Man. C.A.), the court awarded $110,139.17 in solicitor and client costs against an executor who was a lawyer.  The court was highly critical of the executor’s conduct, including a dispute over compensation which the court viewed as being wholly due to the executor seeking an unreasonable level of compensation and then attempting to bolster his position by issuing invoices for unsubstantial legal services when his executor compensation was questioned.

The Regulation of Professions in Canada – James T. Casey
Release #1
 

What’s New?

The Applicability of the Duty of Fairness – Appendix 7A – Case Digest – A section has been added to the Appendices in Chapter 7 – 7A:6.10 Mortgage Brokers.  The following case digest has been added:

Professions and occupations – Mortgage brokers – Organization and regulation of profession – Financial Services Regulatory Authority issued notice of proposal to revoke license of applicant mortgage broker and principal – Broker filed request for hearing – Broker’s motion for request to be published on website of authority was dismissed – Broker brought application to quash or amend proposal, and challenge transparency guidance regarding authority to take regulatory action against, as mandamus relief was not available – Portions of application seeking declaration with respect to publication of proposal were not struck, leaving that issue open to Divisional Court – Broker brought motion to vary order, and to restore application regarding relief sought – Motion dismissed – Trial judge correctly held that it was plain and obvious that application to strike or amend proposal could no succeed as it was premature – Tribunal hearing provided adequate alternative remedy, and broker would get full and fair hearing de novo to resolve any alleged procedural fairness issues – Exceptional circumstances bring rule of law into disrepute, going beyond breaching procedural fairness or acting without jurisdiction, were not present – Balance of judicial review application dismissed – Decisions at issue were not statutory powers of decision and were not amenable to judicial review – To be subject to judicial review decision must affect legal rights or obligations – Although applicants had interest in their reputation, publication of allegations  by regulator did not give rise to right to judicial review: Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Office), 2024 CarswellOnt 12109, 2024 ONSC 4464 (Ont. S.C.J. (Div. Ct.)).

New Journal Issues Update

We are able to provide pdf copies of journal articles from Westlaw and Quicklaw for members of the Law Society of Manitoba. Email us at library@lawsociety.mb.ca for a copy of any of the following articles. If you are looking for information on a specific issue, let us know and we can look for relevant articles and commentary.

Click on the journal title for the current issue’s content.

Canadian Criminal Law Review

  • Are Limits on Granting Credit for Time Served on Remand Constitutional?” 27 Can. Crim. L. Rev. 129 Colton Fehr
  • Surreptitious Recordings by Civilians in Criminal Trials: Challenging Their Admissibility at Common Law and under the Charter” 27 Can. Crim. L. Rev. 113 Robert Diab
  • Forty Years of the Charter: What We Still Don’t Know” 27 Can. Crim. L. Rev. 149 Steve Coughlan
  • L’Effet Friesen: Vers une Plus Grande Répression Pénale des Délinquants Atteints de Troubles Mentaux?” 27 Can. Crim. L. Rev. 185 Gabriel Lefebvre

Canadian Family Law Quarterly

  • Private-based Mediation in Family Disputes: Mediator and Client Experiences in Ontario” 42 C.F.L.Q. 131 Rachel Birnbaum
  • The Ontario Court of Appeal’s Decision in Ahluwalia v. Ahluwalia — Prudence? Or Opportunity Missed?” 42 C.F.L.Q. 107 Mary-Jo Maur
  • Motions for Children’s Counselling Records in Ontario: A Complex and Uneven Terrain” 42 C.F.L.Q. 163 Ian Ross; Samantha Wisnicki
  • Child Support Obligations of Stepparents in Canada: “Standing in the Place of a Parent” & the C.S.G s. 5” 42 C.F.L.Q. 197 Nicholas Bala

Canadian Journal of Administrative Law and Practice

  • A Conversation with Justice Rosalie Silberman Abella on Being Awarded the 2023 CCAT Medal” 36 Can. J. Admin. L. & Prac. 161
  • Re-Locating Discretion Amidst Artificial Administration: An Analysis of Emerging System-Level Bureaucracies in Canada’s Federal Government” 36 Can. J. Admin. L. & Prac. 169 Sarah Grieve
  • Appointment to the Federal Court of Canada” 36 Can. J. Admin. L. & Prac. 159 Margaret Leighton, Editor in Chief
  • Wall at Five: A Cautious Defence and a Way Forward” 36 Can. J. Admin. L. & Prac. 199 Robert Boissonneault
  • Case Comment: McAnsh v. Ontario, 2023 ONSC 3537″ 36 Can. J. Admin. L. & Prac. 221 Brian Cook, Gary Yee

Criminal Law Quarterly

  • R. v. Stephan: Failing to Provide the Necessaries of Life in Canadian Criminal Law” 71 C.L.Q. 434 Alexandra Heine
  • Revisiting the Role of the Jury, the Concept of Prejudice, and Standards of Review” 71 C.L.Q. 466 Christopher Nowlin
  • Bailing Them Out Early: Moving Upstream in the Search for Solutions to the Over-Representation of Indigenous Peoples in Canadian Prisons” 71 C.L.Q. 524 Cheryl Marie Webster
  • Correcting Miscarriages of Justice at Sentencing: The Role of a Criminal Cases Review Commission” 71 C.L.Q. 502 Julian V. Roberts and Umar Azmeh

Intellectual Property Journal

  • “Drafting Copyright Exceptions: From the Law in Books to the Law in Action by Emily Hudson (Cambridge University Press 2020)” 35 I.P.J. 237 Aviv Gaon , Idan Rosenblum
  • “Nova v. Dow: Intuition or Principle in the Accounting of Profits Remedy, Part I” 35 I.P.J. 249 Norman Siebrasse
  • “Interviews with Public Officials: Would Donald J. Trump v. Bob Woodward Be Decided Differently in Canada?” 35 I.P.J. 193 Sheldon Burshtein

Insolvency Institute of Canada Articles

  • “Stranger Things: Recent Developments in Recognition Proceedings” I.I.C. Art. Vol. 12-8
  • “The Treatment of Contracts Under Insolvency Law” I.I.C. Art. Vol. 12-9
  • “Key Considerations in Structuring Insolvency Transactions” I.I.C. Art. Vol. 12-4
  • “Reverse Vesting Orders: Did We Forget About Creditor Democracy?” I.I.C. Art. Vol. 12-7
  • “Good Faith or Just Not Bad Faith? Breaking Down the Good Faith Doctrine in Insolvency Law” I.I.C. Art. Vol. 12-3
  • “Challenges in the CCAA with the Varying Treatment of Pre-Post Set-Off Rights” I.I.C. Art. Vol. 12-1
  • “Recent Developments under Section 178(1)(a) and (e) of the Bankruptcy and Insolvency Act: A Case Study of Poonian v. British Columbia (Securities Commission)” I.I.C. Art. Vol. 12-6
  • “Court-Ordered Charges: Reflections on Issues for Secured Creditors” I.I.C. Art. Vol. 12-2
  • “Pullin’ Back the Reins: Considerations in the Selection of a Stalking Horse bidder and the decision in FreshLocal Solutions Inc. — Are we on the right trail?” I.I.C. Art. Vol. 12-5
  • “Third-party Releases in Canada and the United States: A Comparison of the Development of the Jurisprudence with a Comment on the Decision In re Purdue Pharma LP” I.I.C. Art. Vol. 12-10

University of Toronto Faculty of Law Review

  • “Unlocking Pandora’s Box?”: Resolving the Clash of Infrastructure Amidst the Risks of Jury Secrecy” 81 U.T. Fac. L. Rev. 191 Nik Khakhar
  • “Ten Years Later and Limited Evidence of Progress: An Empirical Analysis of the Effect of R v Ipeelee on the Sentencing of Indigenous Offenders Convicted of Manslaughter” 81 U.T. Fac. L. Rev. 161 David Côté
  • “Le Profilage Racial: À L’Ombre des Organes de L’Administration Publique au Québec” 81 U.T. Fac. L. Rev. 119 Manar Choukair , Rhita Harim

New Journals Update

Estates Trusts & Pensions Journal, Volume 42 Number 4. August 2023

From the law reports

  • “Case comment on Grattan Estates” 42 ETPJ 387

“The court in Grattan Estate, Referenced the Manitoba Court of Appeal’s decision in George v. Daily, where it was stated that ‘the crucial question to be answered is whether there was a deliberate or fixed and final expression of intention as to the disposal of his or her property on death.'”

Articles

  • “A Coach and Four Horses: Roaming the Legislative Gap of British Columbia’s Wills Variation Regime” 42 ETPJ 394
  • “Alberta’s New Trustee Act” 42 ETPJ 418
  • “Dispositive Delusions Affecting Wills: Part One – The Legal Perspective and Challenges Posed by Definitions” 42 ETPJ 435

“Capacity assessment and litigation in estate matters frequently involve collaboration between lawyers and physicians. While ‘delusion’ is a term that appears frequently in both legal and medical work, the professions differ in their understanding of the definition.'”

For a copy of these articles, law society members can email us at
library@lawsociety.mb.ca to request a pdf copy.

We also have other journals available through Westlaw and Quicklaw. Here are the newest issues of popular titles.

Canadian Criminal Law Review

  • “The Ties That Bind Us Together: Precedent and the Role of Appellate Courts in Setting Sentencing Ranges and Starting Points” 27 Can. Crim. L. Rev. 1
  • “Is the Right to Counsel a Nuisance?” 27 Can. Crim. L. Rev. 37
  • “State Action in Action: The Charter’s Application in Criminal Investigations” 27 Can. Crim. L. Rev. 61
  • “Survol des Facteurs Circonstanciels Relatifs à la Possession en Matière Criminelle” 27 Can. Crim. L. Rev. 97

Canadian Journal of Law and Technology

  • “The Future of Data Protection Enforcement in Canada: Lessons from the GDPR”21 Can. J. L. & Tech. 1
  • “Slouching Toward Regulation: Assessing Bill 88 as a Solution for Workplace Surveillance Harms” 21 Can. J. L. & Tech. 23
  • “When Your Boss Is an Algorithm: Preserving Canadian Employment Standards in the Digital Economy” 321 Can. J. L. & Tech. 47
  • “The Challenge Designing Intermediary Liability Laws” 21 Can. J. L. & Tech. 67
  • “The Need for Cyber Resilience of Space Assets: Law and Policy Considerations of Ensuring Cybersecurity in Outer Space” 21 Can. J. L. & Tech. 99

University of Toronto Law Journal

  • “How Victims Matter: Rethinking the Significance of the Victim in Criminal Theory” 73 U. Toronto L.J. 263
  • “Rethinking Relational Architecture: Interpersonal Justice Beyond Private Law” 73 U. Toronto L.J. 293
  • “Flexibility, Choice, and Labour Law: The Challenge of On-Demand Platforms” 73 U. Toronto L.J. 348

New ‘Criminal Law Series’ Online Platform

Our collection of Emond’s Criminal Law Series has moved to it’s new home on the digital VitalSource platform. These eBooks are still available through the Library Resources section of the Member’s Portal, but they have been improved with a new reader interface.

Simply log in to the portal and, in the library resources section, click on the Criminal Law Series image to get started.

When accessing the new platform, users may be greeted with a log in screen. Simply choose “Continue without an account” to gain access to the collection

Navigate over to the “Explore” tab to see the entire Emond’s Criminal Law Series. Click on a title and the “Open book” option to start reading. A helpful pop-up will appear to explain the icons and features available when reading.

Members can also register their own account to save bookmarks, annotations, and preferences, or download the app on desktop or mobile for offline reading.

New Journals Update

journal cover

The latest edition of Estates Trusts & Pensions Journal (Volume 42 Number 3) has arrived. Members can request pdf copies of articles, or borrow the print version.

This month’s contents:

FROM THE LAW REPORTS

  • “A paradigm shift in the protection and representation of vulnerable persons in Quebec” Lauren Flam 259

ARTICLES

  • “Is the Grass Always Greener in the Offshore Tax Haven? A Comparison of Offshore Trust Specific Anti-avoidance Rules
  • in Canada, the United States, the United Kingdom and France” Elizabeth Bozek 265
  • “Goodbye and Good Riddance to the Doctrines of “Fraud on a Power” and “The Entire Substratum”…Now if only we could figure out the “Proper Purpose” Rule” Joel Nitikmon 281
  • “The Impact of Alcohol on Testamentary Capacity (Installment Two — The Medical Picture and Practice Recommendations) Dr. Arlin Pachet, John E. S. Poyser, and Ryan H.K. Gorlick 329”
  • “Estate and Post-Mortem Tax Planning with Wills, Multiple Wills, and Alter Ego or Joint Partner Trusts” Wendy 0. Templeton 350
We also provide articles from other journals from Westlaw and Quicklaw upon request. Below are the journals with the latest contents. Click on the title for more information.

Intellectual Property Journal

  • “Balancing Freedom of Expression, Copyright, and Trademark Rights: Art or Science?” 35 I.P.J. 141 Daniel R. Bereskin, C.M., K.C.
  • ““Inducing” Copyright Infringement in Canada: Is It a Thing?” 35 I.P.J. 171 David Vaver
  • “Against Balancing” 35 I.P.J. 181 Norman Siebrasse
  • “Lessons from ArriveCAN: Access to Information and Justice During a Glitch” 35 I.P.J. 99 Matt Malone

Canadian College of Construction Lawyers

  • “Collaborative Solutions in Construction: Rising to the Challenges Facing International Construction” 2023 J. Can. C. Construction Law. 1 Professor Doug Jones, AO
  • “Privilege, Confidentiality and Related Concepts–A Discussion Paper to Help with Common Challenges” 2023 J. Can. C. Construction Law. 109 Gregory A.C. Moores, David A. Barry
  • “Considering Consideration: The Role of Fresh Consideration in Unilateral Amendments to Construction Contracts”  2023 J. Can. C. Construction Law. 75 Catriona M.L. Otto-Johnston, Elisa J. Stewart
  • “Construction Law in the Age of Vavilov”  2023 J. Can. C. Construction Law. 57 James D. MacNeil, Katie Short
  • “Why Hurry up and Wait: The Benefits and Risks of Employing a Pacing Strategy on a Construction Projects” 2023 J. Can. C. Construction Law. 23 Seema Lal
  • “Drastic Remedies for Drastic Problems: Frustration, Mistake, Misrepresentation, and Repudiatory Breach”  2023 J. Can. C. Construction Law. 39 Brian Samuels, K.C. , Stephanie McHugh

Please note: The library will be closing early on Thursday, April 17th at 11:00AM for a special event.  Regular library service will resume Tuesday, April 22nd at 8:30AM.

The Winnipeg Court Complex will be closed April 18th and April 21st. Manitoba Law Library staff will not be onsite during the holiday, but will be available by email on Monday, April 21st. Regular library service will resume Tuesday, April 22nd at 8:30AM.

Please note: The Winnipeg Law Courts will be closed April 18th and April 21st. The Library is closed Friday. Manitoba Law Library staff will be available by email on Monday, April 21st. Regular library service will resume Tuesday, April 22nd at 8:30AM.