The latest edition of eLex has just been published. Check it out for new online books, upcoming events, and our “legal research question of the month”.
Highlights:
Two decisions on leases for cottages
CFS decision on which agency should represent the child where one parent is Indigenous and the other is not
Decision on the use of artificial intelligence in an immigration order
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.
Reviewed by Julie A. Lavigne, Legal Studies Librarian MacOdrum Library Carleton University
“Asoneoftheleadersinthefield,Shroffdrawsonherexperiencesoverthelast20-plusyears in thecourtroom,classroom,andmediatoshowhowanimallawintersectswithother,moretraditionalareasoflaw.Shroffmakestheargumentthat,ratherthanatraditional,property-basedconceptualizationofhowanimalsshouldbetreatedbythelaw,animallawshouldadoptarights-basedframeworkwhereinanimalsaresentientbeingswithintrinsicworth.
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
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!
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.
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.
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 Freedomsis 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. PerKarakatsanis, Rowe, Martin, Kasirer and Jamal JJ.:
[6] This appeal requires this Court to determine whether Parliament complied with the Canadian Charter of Rights and Freedomswhen 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 theSex 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.
PerKarakatsanis 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.
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.
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
Retirement Gala for the Chief Justice of Manitoba, Richard Chartier – The Honourable Richard Chartier is retiring this fall as Chief Justice of Manitoba. Do not miss this special evening with guest speaker The Right Honourable Richard Wagner, P.C., Chief Justice of Canada.
New Probate Rule Amendments Coming Into Effect – On October 1, 2022, amendments to King’s Bench Rules 74 and 75, regarding Probate, come into effect. The primary objective of the new rules is to eliminate jargon and use plain language to make the rules easier to understand. See our blog post for more info.
"With a growing number of Canadians facing loss of capacity, the need to protect those who are no longer capable of managing their own affairs has never been greater. In this second edition of Power of Attorney Litigation, leading estate litigators Ian M. Hull and Suzana Popovic-Montag provide a comprehensive yet concise overview of power of attorney law and the litigation process, enhanced by discussion of the leading caselaw.
By comparing the applicable legislation in multiple provinces and providing direct and insightful explanations of legal concepts like capacity, the duties of attorneys and gifting, authors Hull and Popovic-Montag not only make this complex area of law accessible, but also engaging. Power of Attorney Litigation, 2nd Edition additionally explores procedural matters inherent in power of attorney litigation, including procedure, costs, remedies, and strategy." - from publisher's website
New Online Titles
These new titles from Irwin Law are now available on vLex.
International Law, Doctrine, Practice, and Theory – Third edition By CraigForcese. Irwin Law Inc., 2022 – “International Law: Doctrine, Practice, and Theory is an innovative and unique volume which crosses the traditional boundaries between textbook, casebook, and scholarly monograph. The book is designed primarily as an introduction to the system and substance of international law. It is also a convenient and comprehensive reference work on the most important aspects of this burgeoning field. The book includes introductory materials on the nature, history, and theory of international law from an international relations, as well as a legal, perspective. Carefully selected and edited primary materials — including treaties, UN documents, and cases — take readers to the very sources of the rules and principles that comprise modern international law. ” – publisher’s decription
Criminal Law — 8th edition By KentRoach Irwin Law Inc., 2022 – “Since the publication of the first edition in 1996, Criminal Law by Kent Roach has become one of the most highly regarded titles in Irwin Law’s Essentials of Canadian Law series. Professor Roach’s account of the current state of substantive criminal law in Canada has become essential reading not only in law schools, but also among judges, practitioners, and others involved in the criminal justice system. The eighth edition of Criminal Law has been thoroughly updated to include new developments. It includes a detailed discussion of R v Brown striking down restrictions on the extreme intoxication defence and the likely parliamentary reply, and Parliament’s reply in Bill C-28. It also examines changes in jury selection upheld in R v Chouhan; important decisions on fault, such as R v Zora, R v Javanmardi, R v Chung, and R v Goforth; and assesses R v Cowan on parties. The discussion of sexual assault has been updated to take into account R v Barton and the possible implications of R v Morrison. The Supreme Court’s first decision under the amended self-defence provisions in R v Khill is reviewed. This new edition also has been revised to include important decisions from the Ontario and Nova Scotia Courts of Appeal on sentencing Black offenders, as well as the Supreme Court’s striking down of mandatory minimum fine surcharges and stacking of twenty-five-year periods of parole ineligibility.”
Book Reviews
Review taken from the Canadian Law Library Review, Vol. 47 Issue 2
Performing Copyright: Law, Theatre and Auhorship.ByLukeMcDonagh.Oxford,U.K.:Hart,2021.xxix,202p.Includesbibliographicreferences,tableofcases,tableoflegislation,andindex.ISBN9781509927036(hardcover)$135.85;ISBN9781509949168(softcover)$69.75;ISBN9781509927050(ePUB&Mobi)$108.68;ISBN9781509927043(PDF)$108.68.
Reviewed By Domininque Garingan.Library Manager, Calgary Parlee McLaws LLP
The Law Society of Manitoba is excited to partner with the Manitoba Bar Association and the University of Manitoba for the third annual National Access to Justice Week. Together Manitoba will offer four free engaging virtual events open to the public.
OnTuesday, October 25the Law Society will host a conversation highlighting the latest research findings onPeople-Centred Data Collectionstudies featuring Susan McDonald from Justice Canada.
More Upcoming Events October 24 – 28, 2022
Monday, Oct 24
12 noon – 1:30 p.m. (CDT)
Dispute Resolution at Administrative Tribunals in Manitoba Hosted by the Manitoba Bar Association
Tuesday, Oct 25
12 noon – 2:00 p.m. (CDT)
People-Centred Data Collection Hosted by The Law Society of Manitoba
Wednesday, Oct 26
12 noon – 1:00 p.m. (CDT)
Access to Justice Clinics and Organizations in Manitoba: Where law students assist with the A2J crisis Hosted by the University of Manitoba- Faculty of Law
Friday, Oct 28
12 noon – 1:30 p.m. (CDT)
Flat Rates, Unbundling and Coaching: An Overview of Alternative Private Bar Legal Services Provision Hosted by the Manitoba Bar Association
Jhanji v. The Law Society of Manitoba, 2022 MBCA 78: Appeal of professional discipline proceeding that found the appellant was incompetent to practice law. Three main areas under appeal: the finding of incompetence, disqualification of counsel for the respondent, and the fairness of the discipline proceeding. Discussion of when party can file further argument after the perfecting of the appeal, as well as further submissions while the case is under reserve. Appeal dismissed.
Winnipeg (City of) v. Manitoba (Director, Contaminated Sites Remediation Act) et al,2022 MBCA 72: Chambers proceeding raising the administrative law issue of prematurity. City (applicant) seeks leave to appeal a decision of the respondent upholding the Director’s designation of the City as a potentially responsible person (PRP) under the Act (s.48) for remediation of an impacted site. Analysis of the threshold for demonstrating exceptional circumstances in order for leave to appeal to be granted, citing Neufeld et al v. The Manitoba Securities Commission, 2018 MBCA 101. Application dismissed.
College of Registered Nurses of Manitoba v. Hancock,2022 MBCA 70: Appeal of misconduct, penalty and costs decisions. Appellate jurisdiction is statutory and governed by s. 131 (1) and (2) of The Regulated Health Professions Act, C.C.S.M. c. R117. Standard of appeal is deferential (Law Society of Saskatchewan v. Abrametz). Court has no jurisdiction to determine appellant’s arguments regarding the misconduct decision. No reversible errors in the penalty and costs decision. Appeal dismissed.
Warraich, Re,2022 MBCA 66: Appeal from findings of an Inquiry Committee of College of Physicians and Surgeons that the appellant was guilty of professional misconduct, displayed a lack of skill, knowledge and judgment, and breached by-laws, as well as the penalty. Since this is a statutory review, standard of review is that expressed in Housen v. Nikolaisen. Panel is owed a high level of deference. Appeal dismissed.
The WSD v. City of Winnipeg et al., 2022 MBKB 184: Statutory appeal over assessments made regarding liability to pay municipal taxation. Issue of statutory interpretationof s. 22(1)(d) of The Municipal Assessment Act, C.C.S.M. c. M226. Canvas of various decisions addressing the principles of interpretation of tax legislation. Review of definitions in The Public Schools Act, C.C.S.M. c. P250. Examination of the historical record on the reasons behind school assessment. Edmond, J. concludes that some of the real property in this appeal is exempt.
Springfield Taxpayers Rights Corp. v. Rural Municipality of Springfield and Berger Peat Moss Ltd.,2022 MBKB 180: Application for judicial review of decision refusing to quash development permits. Issue is whether a property owner can rely on permits and authorizations issued by governmental agencies and authorities to develop and build on their land. Applicants did not seek an injunction in a reasonable length of time. Rempel, J. found that the delay in filing the application constituted an abuse of process. Considerable analysis of the meaning of inordinate delay and the prejudice it brings to the respondent. Application dismissed.
Mark Manicini. The Sunday Evening Administrative Review.Issue #60: October 2, 2022. “This week’s newsletter … consists solely of cases pertaining to adequacy of reasons.”
Civil Litigation
Bonnefield Canadian Farmland Evergreen LP v. Fat Cat Farms Ltd.,2022 MBCA 77: Appeal by defendant of decision of trial judge regarding a written lease of farmland between the parties. Claim was over unpaid rent and damages due to the condition in which the defendant left the property. CA finds no reviewable error in the trial judge’s interpretation of the lease; no palpable and overriding error was established; trial judge applied the correct legal test for contractual interpretation. Appeal dismissed.
Knight. v. Daraden Investments Ltd. et al,2022 MBCA 69: Defendants move for leave to appeal an interlocutory order as required under s. 25.2(1) of The Court of Appeal Act, C.C.S.M. c. C240. First opportunity for the Court to consider the test to be applied to such a motion. Claim for damages for personal injuries suffered in a slip and fall. Pfuetzner, J.A. agrees with both counsel that the test is the one set out by SKCA in Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (para 6). Leave to appeal dismissed.
Sarrasin v. Sokal,2022 MBCA 67: Appeal of order striking out plaintiff’s statement of claim for disclosing no reasonable cause of action without leave to amend. Plaintiff alleged defamation, malicious prosecution and workplace harassment, but only appeals the order as it relates to defamation. CA finds that motion judge’s determination that plaintiff’s pleadings do not show that the words in issue refer to him; appeal dismissed.
Vanessa Di Feo. CM Callow v Zollinger, Reconceptualized Through the Tort of Negligent Misrepresentation. (2022) 27 Appeal 103.
This article argues that CM Callow Inc v Zollinger was wrongly decided, and that the Supreme Court of Canada unnecessarily expanded the duty of honest contractual performance established in Bhasin v Hrynew. In this decision, the Supreme Court applied a contract law analysis to a fact scenario that did not entirely call for it. This is to say that the contract that Mr. Callow hoped to incentivize through freebie work never came into existence, so it should not have been assessed through the lens of the duty of honesty.
Anna SP Wong. Duty of Honest Performance: A Tort Dressed in Contract Clothing. (2022) 100 – 1 C.B.R. 95.
In CM Callow Inc v Zollinger, the latest installment from the Supreme Court of Canada on the duty of honest performance, the Court insisted that it is a contractual duty rather than a tortious one. This article contends that the duty to act honestly, a welcome addition as it is to the realm of private-law obligations, represents an infusion of tort logic into contract law.
Criminal Law
R. v. Spotted Eagle,2022 MBCA 75: Appeal of conviction for possession of methamphetamine for the purpose of trafficking. Accused seeks to have conviction set aside or, in the alternative, substitute a conviction for simple possession. He argues that the evidence was insufficient to find a conviction for trafficking. Appeal dismissed.
R.v. Tarapaski,2022 MBCA 74: Appeal of conviction of possession of a non-restricted firearm without being a holder of a licence, and two counts of possession of firearms when bound by an order prohibiting it. Item in question was an improvised firearm, not an inoperable commercially manufactured firearm (para 19). Analysis of the limits of a statutory definition. Test set out in R. v. Covin, [1983] 1 S.C.R. 725 and summarized in R. v. Vader, 2012 ABQB 288. Appeal dismissed.
R. v. Meilleur,2022 MBCA 71: Appeal of conviction of manslaughter and sentence of 13 years imprisonment, after trial by judge and jury. Accused submits that the trial judge erred in admitting an inculpatory statement he gave to police. He appeals sentence on the basis that it was harsh and excessive. Conviction appeal dismissed; leave to appeal sentence granted and also dismissed.
R. v. Ostamas, 2022 MBCA 68: Appeal of sentence ordered in 2016 for pleading guilty to three counts of second degree murder. Accused was sentenced to life imprisonment with 25-year periods of parole ineligibility consecutively. Accused argues that given s. 745.51 has been found unconstitutional (R. v. Bissonnette), the 25-year periods should be made concurrent rather than consecutive. Crown agrees. Appeal allowed.
R. v. Sinclair,2022 MBCA 65: Accused seeks leave to appeal and appeals sentence of five years’ incarceration on charges including luring, possession of child pornography, making child pornography and others. Crown agrees that errors were committed warranting appellate intervention, but that sentence should be increased, not decreased. Steel, J.A. makes a considerable analysis of the requirements for determining an appropriate sentence after Friesen. Discussion of the principle of proportionality and moral culpability of offender. Sentence increased to eight years.
R. v. Devos,2022 MBKB 185: Accused was convicted of impaired driving causing death and dangerous driving causing death. Crown requested a sentence of four years; defence submitted three years of supervised probation, or an intermitten sentence of up to 90 days. Accused had a clean record and his pre-sentence report indicated he was a very low risk to re-offend. Thorough review of the case law on convictions for similar offences. Leven, J. orders a sentence of six months in prison, followed by three years of supervised probation.
R. v. Crate,2022 MBKB 182: Appeal of conviction for having care and control of a motor vehicle while impaired. Main issue on appeal relates to infringement of appellant’s bail rights after arrest. Appellant was arrested in Norway House, held for over 24 hours before her first appearance, and then transferred to Thompson for her bail hearing. Question of whether the trial judge erred by failing to find a systemic constitutional violation. Grammond, J. concluded that such a finding is a mixed question of fact and law; applicable standard of review is correctness. Considerable analysis of Charter breaches and what appropriate remedies are available. Grammond, J. found that the appellant’s bail rights were breached in multiple ways but this was not one of the clearest cases, and a stay of proceedings was refused.
R. v. Saunders,2022 MBKB 177: Sentencing decision for conviction by a jury for second degree murder. Conviction carries a mandatory sentence of life imprisonment with no right to apply for parole for at least 10 years. Crown submits that parole ineligibility period should be 16 years; accused submits 10 years should apply. Kroft, J. considers the nature of the offence, the character of the offender, the principles of sentencing and finds 13 years parole ineligibility is appropriate.
R. v. M. (H.),2022 MBPC 42: Sentencing decision for manslaughter. Accused was just under 18 at the time of the offence. Crown requests accused be sentenced as an adult; defence argues that the Crown has not rebutted the presumption of diminished moral culpability. Considerable evidence and reports filed including FASD Centre multidisciplinary report, several Psychological Forensic Assessment reports, Gladue report, book of victim impact statements, and youth criminal record of accused. Devine, P.J. gives a lengthy explanation and analysis of the sentencing principles for young people under the Youth Criminal Justice Act. First prong of test not satisfied (presumption of reduced moral culpability rebutted). Second prong is whether the maximum youth sentence adequate to hold the accused accountable. Defence is suggesting a three year IRCS order. Devine, P.J. imposes the maximum youth sentence of three years’ IRCS.
Michael R. Dambrot. Section 8 of the Canadian Charter of Rights and Freedoms. (2022) 26 C.R. (3d) 97 (WLC – LSM members can request a copy).
Section 8 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982 [en. by Canada Act, 1982 (Eng.), c. 11] provides that “everyone has the right to be secure against unreasonable search or seizure.” When this section is coupled with the discretion contained in s. 24(2) to exclude from criminal proceedings evidence obtained in a manner that infringes s. 8, it can readily be seen that these few words will have a dynamic impact on the course of criminal prosecutions in Canada.
Briscoe v. Briscoe,2022 MBCA 76: Appeal of dismissed motion re severing divorce from the balance of relief in the pleadings. Motion judge dismissed the husband’s motion, determining that it was not proportionate. Severance is a discretionary remedy and not a matter of right. CA found no error in trial judge’s exercise of discretion. Appeal dismissed.
Emes v. Emes,2022 MBKB 186: Petitioner’s motion for a final order of spousal support. Parties had agreed to an all-encompassing separation agreement with a defined term of spousal support that did not allow for variation or review. Respondent has not made any payments as required under the agreement. Thatcher, J. conducts a thorough Miglin analysis and orders the respondent to pay the petitioner the amount determined under the original separation agreement as well as arrears.
Michif CFS v. S.A.S. and J.A.A.M.,2022 MBKB 176: Application by agency for a permanent order of guardianship of two year old child, by summary judgment. Parents oppose request for summary judgment, arguing there are genuine issues for trial. Parents seek return of the child to their care. Test for summary judgment articulated in Dakota Ojibway Child and Family Services et al v. M.B.H., 2019 MBCA 91. Child is Indigenous, therefore provisions of An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, S.C. 2019, c. 24 need to be considered. Abel, J. determines that summary judgment is acceptable, and motion is granted.
Claire Houston. Case Annotation: A. v. A., (2022) 81 C.C.L.T. (4th) 130 (WLC – LSM members can request a copy).
This decision communicates an important message: family violence causes substantial harm and is wrong. To recognize this wrong, Mandhane J. held that family courts should not allow “no-fault” divorce to shield abusers from civil liability, and that family courts ought to adjudicate family violence tort claims alongside claims for property division, spousal and child support, and parenting decision-making responsibility and parenting time.
David Frenkel, Yunjae Kim. Separation Date Principles and Assessment Guide. (2022) 40 C.F.L.Q. 335. (WLC – LSM members can request a copy).
When a couple gets married, the date of the wedding is easy to remember, even after many years have passed. … However, when a couple separates, the circumstances are usually very different, and the recollection of those events can get hazy.
Jodi Lazare, Kelsey Warr. A Gender-Based Approach to Historical Child Support: Comment on Colucci v. Colucci. (2022) 34 – 2 Can. J. Fam. L. 209.
In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law.
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
McLeod Estate v. Cole et al,2022 MBCA 73: Plaintiffs’ appeal of dismissal of their claim that the defendants sold their father’s property for less than market value prior to his death, asserting that he did not have sufficient mental capacity. Appeal’s argument centred on the trial judge made a litany of palpable and overriding errors in his assessment of the evidence. Explanation of the doctrine of suspicious circumstances. Appeal dismissed.
John E.S. Poyser. Case Comment: Sandwell v. Sayers – The State of Unconscionable Procurement in British Columbia. (2022) 76 E.T.R. (4th) 249. (WLC – LSM members can request a copy)
Sandwell v. Sayers bears comment as it touches on the prospective place of “unconscionable procurement” as an attack on gifts, suggesting that modern Canadian courts may wish to pause before accepting the doctrine as part of the current law.
Legislation
Federal
Recent Activity
Bill Number
Title
Status
C-31
An Act respecting cost of living relief measures related to dental care and rental housing
At second reading in the House of Commons
C-244
An Act to amend the Copyright Act (diagnosis, maintenance and repair)
At consideration in committee in the House of Commons
C-230
An Act to amend the Criminal Code (intimidation of health care professionals)
Bill defeated
C-237
An Act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act
Bill defeated
S-236
An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)
At third reading in the Senate
C-253
An Act to amend the Bank of Canada Act and to make consequential amendments to other Acts
At second reading in the House of Commons
C-30
An Act to amend the Income Tax Act (temporary enhancement to the Goods and Services Tax/Harmonized Sales Tax credit)
At third reading in the House of Commons
S-227
An Act to establish Food Day in Canada
At second reading in the House of Commons
S-9
An Act to amend the Chemical Weapons Convention Implementation Act
At second reading in the House of Commons
S-8
An Act to amend the Immigration and Refugee Protection Act, to make consequential amendments to other Acts and to amend the Immigration and Refugee Protection Regulations
At second reading in the House of Commons
C-299
An Act to amend the Criminal Code (life imprisonment)
Outside the Order of Precedence
S-222
An Act to amend the Department of Public Works and Government Services Act (use of wood)
At third reading in the Senate
S-241
An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals)
At second reading in the Senate
C-29
An Act to provide for the establishment of a national council for reconciliation
At consideration in committee in the House of Commons
S-252
An Act respecting Jury Duty Appreciation Week
At second reading 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 second reading in the House of Commons
C-252
An Act to amend the Food and Drugs Act (prohibition of food and beverage marketing directed at children)
At consideration in committee in the House of Commons
R. v. Boily, 2022 ONCA 611: Sentence appeal regarding the imposition of a driving prohibition where accused pled guilty to a single count of criminal negligence causing death, contrary to s. 220 of the Criminal Code. Appellant argued that since there is no reference in s. 320.24(4) of the Criminal Code to criminal negligence causing death, then the driving prohibition cannot be imposed. Fairburn, A.C.J.O. conducts a thorough statutory review of the amendments to the Criminal Code under Bill C-46. Appeal allowed and the driving prohibition was set aside.
All COVID-19 Notices and Practice Directions are available here.
Court of King’s Bench
September 8, 2022 – Change of Court Name – pursuant to s. 3 of The Court of Queen’s Bench Act, the Court in name and in all documents and proceedings shall be designated and described as the Court of King’s Bench.
The Law Society of Manitoba v. Burwash, 2022 MBLS 8
New Library Resources
New In Print
Law of evidence in Canada – 6th ed. – “This new edition of the seminal work offers current and in-depth coverage of the Canadian law of evidence, and has been updated to include significant recent developments. It is the only major Canadian treatise with in-depth coverage of both civil and criminal evidence.”
Directors’ duties in Canada – “The 7th edition of Directors’ Duties in Canada addresses directors’ duties as they arise in the context of public and private companies, Crown corporations, investment funds and not-for-profit organizations. This updated and enhanced edition offers current, practical and accessible guidance, intended for directors and for those who advise them, on a broad range of specific topics including what directors’ duties are, best practices in discharging those duties, and how directors can avoid liability and embarrassment.”
Agriculture Law in Canada, 2nd Edition – “Introducing the second edition of Agriculture Law in Canada the only Canadian treatise on agricultural law offering comprehensive, national coverage of the legal issues facing this critical industry. Farming and its related industries have undergone many changes since the first edition was released in 1999. This new edition has been significantly updated to reflect the statutory and case law developments of the past 20 years.”
Canadian Personal Property Security Law — 2nd ed. – “A comprehensive, up-to-date treatise covering personal property secured transactions law in Canada, this resource deals with all significant statutory and regulatory provisions applicable under the Personal Property Security Act (PPSA), the Securities Transfer Act and the Bank Act. The treatise also provides a comprehensive coverage of case law.”
Updated
Oppression remedy – “This work explains the principles of corporate governance with emphasis on shareholder disputes. It is a critical resource for advising corporations, boards or shareholders and creditors about their rights and duties. An expansive array of topics helps you to understand the details of proceedings under the oppression remedy provisions.”
New Online Titles
These new titles from Irwin Law are now available on vLex.
Canadian Family Law – 9th edition – “This new edition incorporates fundamental legislative changes to the Divorce Act. The most fundamental legislative changes replace the loaded terminology of “custody” and “access” orders in favour of “parenting orders” that focus on parenting time and decision-making authority and “contact orders” with respect to third parties. They also establish a detailed non-exhaustive list of criteria to assist courts in determining the “best interests of the child”; call upon prospective litigants and their lawyers to address the feasibility of using out-of-court family dispute resolution services; introduce measures to effectively assist courts in addressing family violence; and create a framework for situations where one parent wishes to relocate a child of the marriage.”
Child Support Guidelines in Canada, 2022 –“Child Support Guidelines in Canada, 2022 continues the tradition of presenting comprehensive, current caselaw and analysis in a very practical and easily accessible format. Relevant cases from every Canadian province and territory are cited in support of the principles set out in the textual commentary. Significant changes have been introduced in chapters 11 and 13 with respect to retroactive child support orders and remission of child support arrears following the Supreme Court of Canada’s judgments in Michel v Graydon and Colucci v Colucci.”
Personal Property Security Law – Third Edition – “This book examines the legal framework for secured credit set out in the Personal Property Security Act (PPSA). First proclaimed by Ontario in 1976, the PPSA is in force today in all nine common law provinces and the three federal territories. This third edition updates the area of personal property security law in Canada with new caselaw, and considers the important legislative amendments that have been recently introduced in several provinces.”
Book Reviews
Review taken from the Canadian Law Library Review, Vol. 47 Issue 2
Big Data Surveillance and Security Intelligence: The Canadian Case.Edited by David Lyon & David Murakami Wood. Vancouver: UBC Press, 2021. xii, 290 p. Includes bibliographic references and index. ISBN 9780774864176 (hardcover) $89.95; ISBN 9780774864183 (softcover) $32.95; ISBN 9780774864206 (ePUB) $32.95.
Reviewed By Erica Friesen
“This wide-ranging collection interrogates the intelligence- gathering practices of Canadian security agencies in the shift to “big data” surveillance methods.
Multidisciplinary in nature, this book draws on expertise from an array of fields, including law, information science, communications, criminology, social justice, and surveillance studies. Lyon and Wood’s introduction accomplishes the enormous task of both contextualizing big data practices in surveillance and situating Canadian security intelligence within a global context.
Substantive Law
Administrative Law
Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association,2022 SCC 30: Judicial review of s.2.4(1.) of the Copyright Act as it pertains to online music services. Copyright Board concluded that the section allows for two royalties to be payable when a work is distributed online. FCA overturned the Board. Per Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ.:
[8] The Board’s interpretation is not required by art. 8 of the WIPO Copyright Treaty. The Board’s interpretation of s. 2.4(1.1) would fulfill Canada’s obligations under art. 8. But other interpretations of s. 2.4(1.1) that are more consistent with its text, context, and purpose also conform to art. 8. In my view, s. 2.4(1.1) clarifies two things: (1) s. 3(1)(f) applies to on-demand technologies, and (2) a work is performed as soon as it is made available for online streaming. This interpretation of s. 2.4(1.1) is technologically neutral and allows Canada to fulfill its obligations under art. 8 through a combination of the performance, reproduction, and authorization rights in s. 3(1). If a work is streamed or made available for on-demand streaming, the author’s performance right is engaged. If a work is downloaded, the author’s reproduction right is engaged. If a work is made available for downloading, the author’s right to authorize reproductions is engaged. There are no gaps in protection.
[9] As this interpretation of s. 2.4(1.1) is more consistent with its text, context, and purpose, I would adopt it over the Board’s. If a work is downloaded or made available for downloading, s. 3(1)(f) is not engaged. If a work is made available for streaming and later streamed, s. 3(1)(f) is only engaged once. It follows that I would dismiss the appeal.
Per Karakatsanis and Martin JJ (concurring):
[118] In my view, a faithful application of the Vavilov framework can only result in one conclusion — the standard of review in this case is reasonableness. Even so, the Copyright Board of Canada’s decision cannot be upheld. The reasons are unreasonable in light of the statutory context and this Court’s precedents.
Law Society of Saskatchewan v. Abrametz,2022 SCC 29: Appeal arising from disciplinary proceedings leading to the disbarment of the respondent. Respondent applied for a stay of proceedings on the basis of inordinate delay. Appeal addresses the doctrine of abuse of process by delay in the administrative context, as well as clarifying the standard of review applicable in statutory appeals. Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: appeal allowed.
[4] I would allow the appeal. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly. The Hearing Committee did not err when it concluded that there was no abuse of process.
Per Côté J. in dissent:
[128] I have had the opportunity to read the reasons of my colleague Rowe J. I disagree with the majority’s disposition of this appeal. In my view, the delay in these proceedings amounted to an abuse of process, and the Saskatchewan Court of Appeal did not err in quashing the penalty for professional misconduct imposed on the respondent, Peter V. Abrametz (2020 SKCA 81 ). My disagreement with the majority, however, also extends to the legal principles governing the assessment of inordinate delay in administrative proceedings.
Mohr v. National Hockey League,2022 FCA 145: Appellant commenced a class proceeding alleging that the respondents conspired to limit the opportunities of hockey players to play in Canadian major junior and professional hockey leagues. Respondents moved to strik on the basis if disclosed no reasonable cause of action. Question of statutory interpretation of s. 45 and s. 48 of the Competition Act. Appeal dismissed.
Normandeau v. Rond’s Marine Ltd. et al,2022 MBCA 62: Appeal re applicable limitation period for a claim regarding a leaky boat. Plaintiff purchased a new boat from the defendant in 2015. After two voyages, the boat sank and was a total loss. Plaintiff began an action for breach of contract in January, 2018, more than two years after the loss. Issue is whether the claim is over an “injury to chattels” which has a two year limitation period, or if there is a six year limitation period. Trial judge concluded relevant question was whether the claim was one of “injury to chattels” which is a question of law. Examination of section 2(1)(g) of The Limitation of Actions Act. Appeal dismissed.
Viceversa Developments Inc. v. The City of Winnipeg,2022 MBQB 169: Action by plaintiff alleging the City was negligent in completing certain steps necessary to bring into force amendments to a zoning by-law, causing it damage. Plaintiff purchased a distinctive piece of land from CNR (a railway bridge) that he hoped to redevelop into residential housing. City required the parcel be rezoned. Plaintiff had 24 months to complete the application, and received two extensions, but failed to complete it. Bock, J. found the City was negligent in paring a Zoning Agreement, but it didn’t cause the plaintiff any legally compensable damage.
Smith v. Lehmann et al.,2022 MBQB 155: Dispute over remedial work completed on a condominium after purchasing. Defendant purchased condo from foreclosure, then renovated it and sold it. Condo was previously a storage unit and did not have an occupancy permit. Plaintiff purchased it and later learned it needed to be upgraded to obtain an occupancy permit. Condominium Corporation performed the work and claims against the plaintiff. Action resolved by summary judgment. Grammond, J. dismisses plaintiff’s claim and grants Condo Corp.’s counterclaim in part.
Capitol Steel Corporation v. White Owl Properties Limited,2022 MBQB 170: Interpretation of a commercial lease. Dispute over who is responsible for paying for the structural and capital repairs and replacements required at the leased premises as well as whether there is relief against forfeiture. Building is over a century old and components have reached the end of their useful life. Analysis of work that constitutes a “repair” and work that constitutes a “replacement or improvement” to a leased premise. Examination of whether forfeiture of the lease is appropriate. Plaintiff is largely successful.
Tilbury v. Tilbury,2022 MBQB 129: Application for order dissolving partnership between brothers of a farming operation. Request for method to distribute assets be referred to a master or alternatively, assets sold. Parties had attempted to distribute the assets themselves but the negotiations broke down. Abel, J. determines the date of dissolution and gives the parties 60 days to resolve ownership of the land or there will be a reference to a master for directions for the conduct of the sale.
Pride Real Estate Inc. et al. v. 5610550 Manitoba Ltd. et al.,2022 MBQB 51: Action over whether agreement reached in purchase and sale of shares, and whether defendant defamed plaintiff. Parties negotiated SPA over several years, and some money was paid. Trial necessary to see if facts showed that agreement was reached. Discussion of the test to prove there was a valid contract. Lanchbery, J. finds there was a valid contract, sets out damages. For defamation claim, he finds the plaintiff was defamed and orders general damages of $150,000 and punitive damages of $50,000.
R. v. Kirkpatrick,2022 SCC 33: Consent as it applies to sexual activity. Complainant consented to sex as long as accused wore a condom. Accused applied to have charge dismissed by a no-evidence motion. Trial judge granted motion; CA allowed Crown’s appeal, set aside acquittal and ordered a new trial, although the three judges split on the reasoning. Accused appeals re the setting aside of his acquittal. Appeal dismissed.
Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.:
[2] I conclude that when consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom. Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom. This approach respects the provisions of the Criminal Code, this Court’s consistent jurisprudence on consent and sexual assault and Parliament’s intent to protect the sexual autonomy and human dignity of all persons in Canada. Since only yes means yes and no means no, it cannot be that “no, not without a condom” means “yes, without a condom”. If a complainant’s partner ignores their stipulation, the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated.
[3] Here, the complainant gave evidence that she had communicated to the appellant that her consent to sex was contingent on condom use. Despite the clear establishment of her physical boundaries, the appellant disregarded her wishes and did not wear a condom. This was evidence of a lack of subjective consent by the complainant — an element of the actus reus of sexual assault. As a result, the trial judge erred in granting the appellant’s no evidence motion. Accordingly, I would dismiss the appeal and uphold the order of the Court of Appeal for British Columbia setting aside the acquittal and remitting the matter to the Provincial Court of British Columbia for a new trial.
Wagner C.J. and Côté, Brown and Rowe JJ., concurring.
[109] We agree with our colleague Martin J. on the proper disposition of this appeal. We, too, would dismiss Mr. Kirkpatrick’s appeal and uphold the order of the Court of Appeal for British Columbia for a new trial.
…
[111] But that is not what this appeal is about. This appeal asks whether this Court may interpret the same provision of the Criminal Code, R.S.C. 1985, c. C‑46, twice, in radically different ways, without overturning itself. Our colleague says it can. We say it cannot
R.v. Lafrance,2022 SCC 32: Issue of detention and right to counsel. Police suspected accused might have been involved in the death of the victim. They executed a search warrant and was interviewed. Three weeks later he was arrested, interviewed again and eventually confessed to killing the victim. At trial, accused sought to exclude his confession for a break of his right to counsel. Convicted by a jury of second-degree murder; appeal allowed and new trial ordered. Per Karakatsanis, Brown, Martin, Kasirer and JamalJJ.: appeal dismissed.
[5] I would dismiss the appeal. The police detained Mr. Lafrance on March 19, then breached s. 10(b) by failing to inform him of his right to counsel. They committed another breach of s. 10(b) on April 7 by refusing to allow him to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10(b), being “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights” (Sinclair, at para. 26, citing R. v. Manninen, 1987 CanLII 67 (SCC) , [1987] 1 S.C.R. 1233, at pp. 1242-43). These were serious breaches, substantially impacting Mr. Lafrance’s Charter‑protected interests, and admitting the evidence thereby obtained would bring the administration of justice into disrepute.
Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting:
[104] This case involves what should be a straightforward application of this Court’s jurisprudence under ss. 9 (the right against arbitrary detention), 10(b) (the right to retain and instruct counsel on detention) and 24(2) (exclusion of unconstitutionally obtained evidence when its admission would bring the administration of justice into disrepute) of the CanadianCharter of Rights and Freedoms. The majority of this Court begins its analysis by acknowledging this, but proceeds to adopt interpretations of those sections that depart from that jurisprudence. We cannot agree with that approach and the proposed outcome of this case.
R.v. Sundman, 2022 SCC 31: Issue of whether accused should be convicted of first or second degree murder. Victim was unlawfully confined, but escaped before being murdered. Trial judge convicted on second degree murder, reasoning that the time between escape and murder meant he was no longer unlawfully confined. CA overturned, holding that the unlawful confinement was temporally and causally connected to the murder, making it a single transaction. Appeal dismissed. Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ:
[5] I would dismiss the appeal. In my view, Mr. McLeod was still unlawfully confined when he escaped from the truck and ran for his life. Even though Mr. McLeod was not physically restrained outside the truck, he continued to be coercively restrained through violence, fear, and intimidation. He was deprived of his liberty and was not free to move about according to his inclination and desire. The appellant then murdered him while unlawfully confining him. These two distinct criminal acts were part of a continuous sequence of events forming a single transaction. They were close in time and involved an ongoing domination of Mr. McLeod that began in the truck, continued when he escaped from the truck and ran for his life, and ended with his murder. The appellant is therefore guilty of first degree murder under s. 231(5)(e) of the Criminal Code.
R.v. Mazhari-Ravesh,2022 MBCA 63: Appeal by accused of his conviction on six counts of sexual assault involving six different patients at his medical clinic. Accused and Crown apply for leave to appeal his sentence. Grounds for appeal include ineffective assistance of counsel, misapprehension of some of the expert’s evidence, and sentence imposed was harsh and excessive. Crown argues that the sentence was unfit.
R.v. Z. (M.J.),2022 MBCA 61: Appeal of conviction of historical sexual assaults on the sole ground that the trial judge erred by dismissing his motion for a stay of proceedings under section 24(1) of the Charter based on a section 7 breach. CA found that trial judge did not make an express finding concerning a breach, but that a finding of no breach is implicit in her reasons. Error in law by failing to conclude there had been a section 7 violation. However, applying the correct law and balancing the seriousness of the charges, this is not a case where the exceptional remedy of a stay of proceedings is warranted. Appeal dismissed.
R.v. McLean,2022 MBCA 60: Appeal of conviction for possession of a controlled substance for the purpose of trafficking and request for leave to appeal sentence. Accused was considered a courier at a mid-level of trafficking. Accused sought to have the drug evidence excluded, but was unsuccessful after a Garofoli review. Analysis of whether the trial judge incorrectly applied an adverse inference. Key sentencing controversy was parity. Extensive comparison and analysis of sentencing ranges for a mid-level courier. Conviction appeal denied; sentence reduced to nine years versus 12 years.
R.v. M.A.R.-S.,2022 MBQB 165: Sentencing decision after accused found guilty of sexual assault, sexual interference and sexual touching. Complainant was a child between the ages of 9-11 at the time. Principles of denunciation and deterrence are given primacy. Accused is considered to be a manageable risk in the community and a suitable candidate for supervised probation. Crown seeks a global sentence of eight years’ incarceration; defence submitted a global sentence of two years plus a further probationary period of three years. Bock, J. determines appropriate sentence is four years, six months.
R.v. Scott and Jack,2022 MBQB 164: Trial over charge of first degree murder. Crown relies on significant video evidence from cameras in the vicinity as well as inadvertently through aand unrelated surveillance. Use of GPS tracking technology on vehicle used by accused. Evidence circumstantial; McKelvey, J. finds Scott as a principal and Jack as a participant, guilty of second degree murder.
R.v. Onakpoya,2022 MBQB 158: Written reasons for denial of a stay of proceedings alleging a breach of right to be tried within a reasonable time. Accused charged June 26, 2019; trial rescheduled to September 26, 2022. Accused is representing herself. Parties agree that total delay is 39 months and two weeks. Grammond, J. determines net delay is 24 months and two weeks.
R.v. Sinclair, 2022 MBPC 40: Sentencing decision for conviction of communicating with a person under 18 for the purpose of sexual exploitation, commonly known as luring. Maximum jail sentence for s. 172.1(2) of the Criminal Code is 14 years and minimum is one year. Defense counsel challenges constitutionality of the mandatory minimum sentence. Crown argues for sentence of 3-5 years. Considerable analysis of relevant caselaw, including Friesen to determine which sentencing principles have priority. Accused sentenced to three years.
R.v. Harper,2022 MBPC 37: Sentencing decision for offences of dangerous operation of a vehicle and assault with a weapon in incident of road rage. Accused pleaded guilty. Crown requests three years’ incarceration; defence requests nine months’ custody. No case law similar to the facts at bar. Martin, P.J. determines circumstances of offence require a custodial sentence; concurrent 10-month custodial sentence followed by 12 months of supervised probation.
Meryl Friedland and Dr. Andrew Haag. You Have the Right to be Read Something That You Probably Won’t Understand: Comprehensibility of the Right to Counsel. 2022 70 C.L.Q. 485 (WLC – LSM members can request a copy).
Without receiving a comprehensible right to counsel, detainees may not be receiving important protections relevant to significant choices that impact upon their liberty. A person who has been arrested or detained is immediately vulnerable relative to the state. They need to quickly make decisions that can affect the rest of their lives. With one misstep or misspeak, they can unknowingly incriminate themselves regardless of their actual innocence. While the right to counsel provides an opportunity to get advice on these decisions, a detainee cannot be expected to assert a right that they do not understand. The power imbalance that exists on arrest remains of the utmost importance in the discussion of Charter rights on arrest, and their purposive interpretation. The risks of false confessions that may follow a lack of legal advice, and wrongful convictions that can flow from this, loom large.
Janine Benedet. Amending Section 33.1: Extreme Intoxication and Sexual Assault. (2022) 80 C.R. (7th) 71. (WLC – LSM members can request a copy).
The new s. 33.1 applies to the same category of offences that the old provision did: general intent offences that contain an element of “an assault or any other interference or threat of interference by a person with the bodily integrity of another person.” This would mean all levels of assault and sexual assault, manslaughter and uttering threats. Other general intent offences would have access to the defence of extreme intoxication without restrictions, while those charged with specific intent offences such as murder and theft can still invoke the standard common law intoxication defence.
Family Law
Manitoba (Director of Child and Family Services) v. M.K. and C.J.O.,2022 MBQ 175: Fate of a child apprehended at birth from her mother. Agency is seeking a permanent order of guardianship so it can place child for adoption with foster parents. Parents of child are of African origin. Mother’s previous two children were also apprehended at birth and placed with the same foster family who adopted them. Dunlop, J. found child was in need of protection when he was apprehended, but the Agency failed in its treatment of the mother. Permanent order of guardianship only option available at this point in time. Order made with significant conditions.
Wright v. Wright,2022 MBQB 174: Issues of spousal support and division of family property in a long term marriage. Parties have had major financial downtowns since separation. Petitioner (wife) stayed home and cared for children; respondent (husband) built his career and business during the marriage. Leven, J. orders indefinite spousal support at the low end of the scale, but at a reduced rate for one year. Property will be divided equally with a generous amount of time to pay.
Briscoe v. Briscoe,2022 MBQB 173: Assessment of costs following a hearing to set aside a protection order. Petitioner/respondent is self-represented. Reference to previous decision of Thomson, J. re costs for SRL, Penner v. McCutcheon, 2019 MBQB 109 at para. 14. Applicant’s case had no merit; order for costs for $4,000 all inclusive.
Wilson v. Wilson,2022 MBQB 172: Final order issued in November 2021 resolved most issues; issues for trial were child support for a specified period; spousal support, if any; and payment of any arrears. Petitioner is an independent contractor and collects business income, not employment income. Respondent has salaried employment as well farming income. Significant analysis of the case law on support.
Esler v Busch,2022 MBQB 171: Family proceeding began in 2015. Parties were not married so The Family Maintenance Act applied. Respondent filed answer in 2016 requesting spousal support, which was not mentioned in the petition. No significant activity between 2018 and 2021; petitioner moved to dismiss the action. Master ruled that the litigation about spousal support could be dismissed for delay but the litigation about family property could continue. Leven, J. disagreed – the entire litigation is dismissed.
C.M.D. v. S.T.,2022 MBQB 166: Primary focus of decision is mobility of children. Other issues are care and control, decision making authority, income, child support, spousal support and whether protective relief should be granted. Parties are not married, relatively short term relationship. Father lives in Alberta, mother lives with children in Manitoba. Thorough review of financial disclosure, with imputation of income (mother) and non-taxable benefits grossed up and added to father’s income for child support purposes. Extensive discussion and analysis of assessment report prepared for the court.
J.P. v. C.F.S. of Central Manitoba,2022 MBQB 161: Applicant seeks records relating to charge of child abuse. Agency will be requesting that her name be placed on the Child Abuse Registry. Applicant requests records from various agencies including RCMP records, child’s school disciplinary reports, child’s health records. Antonio, J. orders any records directly related to the abuse charges must be produced in unredacted form.
Corbett v. Corbett,2022 MBQB 160: Reference re Family Property Act. Long term marriage, very comfortable lifestyle. Reference includes each party’s furnishings, disposal of a family trust which included a cottage and its equipment, value of family home, debts owed to parties by their children and a prepaid vacation.
D.L. v. ANCR,2022 MBQB 109: Respondent seeks to have applicant’s name registered on the Manitoba Child Abuse Registry. Applicant submits that Agency has not proven abuse. Victim was applicant’s foster child. Agency has burden of proof on a balance of probabilities. Antonio, J. found evidence was insufficient to satisfy Court.
Georgialee Lang. Appeal Court Considers Role of Foster Parents and Customary Care Arrangements. CanLII Connects, August 27, 2022. Case comment on M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240.
Labour and Employment Law
DHRW Electrical Projects GP v. The International Brotherhood of Electrical Workers, Local Union 2085 et al.,2022 MBQB 168: Application for judicial review of two decisions of a labour arbitrator for being denied procedural fairness and that the decisions are unreasonable. Applicant contends that the Union’s members performed electrical work negligently, resulting in a large number of deficiencies. Issue is over the responsibility for the cost to repair these deficiencies. Grievance was referred to an arbitrator for final and binding arbitration. Application dismissed.
Oluwafifehan Ogunde. The Labour Mobility and Fair Registration Practices Act 2022: A Brief Commentary. 2022 CanLIIDocs 1681.
Saskatchewan’s provincial government, in its growth plan for the 2020-2030 decade, has outlined as a goal the addition of 100,000 jobs. In furtherance of this goal, the government introduced The Labour Mobility and Fair Registration Practices Act (“the Act”) on April 6, 2022, with the intent of attracting skilled labour to Saskatchewan from within and outside Saskatchewan. According to the provincial government, the Act will reduce barriers to working in the province, and also assist employers in filling jobs across key sectors of the Saskatchewan economy. The aim of this article is to briefly highlight and discuss the provisions of the Act, particularly in the context of prevalent labour market issues.
Wills, Trusts & Estates
Estate of Swanlund v. Lester, 2022 MBQB 167: Master’s report on family property accounting. Petitioner and respondent had separated after cohabiting since 2005 but petitioner passed away before report was completed. Assets include Swanlund home, RRSPs, stock portfolio, and several other accounts. Petitioner provided comprehensive account statements determining which assets were shareable and which were not. Respondent’s financial disclosure is incomplete. Costs to the petitioner at Class II tariff.
Suzana Popovic-Montag. Playing It Safe: How to Proceed as Executor When a Will may be Invalid. (LSM members can request a copy.)
M. Jasmine Sweatman and Kimberly A. Whaley. Incapable and Capable Rights: The Rights of Adults in Vulnerable Circumstances – Sledgehammer v. Swiss Army Knife. (LSM members can request a copy.)
Legislation
Federal
BILLS – 44TH PARLIAMENT, 1ST SESSION
Bill Number
Title
Latest Activity
S-10
An Act to give effect to the Anishinabek Nation Governance Agreement, to amend the Sechelt Indian Band Self-Government Act and the Yukon First Nations Self-Government Act and to make related and consequential amendments to other Acts
Royal assent received
C-14
An Act to amend the Constitution Act, 1867 (electoral representation)
Royal assent received
C-19
An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures
Royal assent received
C-24
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023
Royal assent received
C-25
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023
Royal assent received
C-28
An Act to amend the Criminal Code (self-induced extreme intoxication)
Royal assent received
C-11
An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
At second reading in the Senate
C-21
An Act to amend certain Acts and to make certain consequential amendments (firearms)
At consideration in committee in the House of Commons
S-236
An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)
At report stage in the Senate
C-5
An Act to amend the Criminal Code and the Controlled Drugs and Substances Act
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
Senate bill awaiting first reading in the House of Commons
S-6
An Act respecting regulatory modernization
At second reading in the House of Commons
C-297
An Act to amend the Canada Elections Act (Indigenous languages)
Outside the Order of Precedence
C-29
An Act to provide for the establishment of a national council for reconciliation
At second reading in the House of Commons
C-245
An Act to amend the Canada Infrastructure Bank Act
Bill defeated
C-226
An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice
At consideration in committee in the House of Commons
C-224
An Act to establish a national framework for the prevention and treatment of cancers linked to firefighting
At consideration in committee 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 consideration in committee in the House of Commons
From P.E.I.’s Court of Appeal: R. v. Skye View Farms Ltd. et al., 2022 PECA 1. River flooded and dead fish were found. Fisheries officers collected water and soil samples from a farmer’s field abutting the river. What is the proper test to apply for a s.8 Charter infringement? Interpretation of s. 49(1) (inspection) and s. 49.1 (investigation) of the Fisheries Act as well as degree of privacy a commercial farmer can reasonably expect.
Court Notices & Practice Directions
All COVID-19 Notices and Practice Directions are available here.
A Practical Guide to Distribution Agreements – “Because distribution agreements cover a diverse range of products and are applicable across the commercial sector, A Practical Guide to Distribution Agreements is essential reading for anyone providing or purchasing goods for distribution. It not only includes an in-depth discussion of the numerous complex issues that can arise in distribution agreements, but also provides step-by-step guidance through the elements of a proper distribution contract – from the parties and the structure, to the scope of the agreement.”
Canadian Tort Law, 12th Edition – “When Canadian Tort Law was first published in 1972, it became the first treatise on the law of torts in Canada. The twelfth edition continues the standard of excellence achieved by each previous edition. As the treatise most commonly cited by the Supreme Court of Canada and other Canadian courts, Canadian Tort Law has greatly influenced the development of tort law in Canada. The text has been updated and in places substantially re-written to reflect changes in tort law in the past few years”
The Law of Unincorporated Associations in Canada – “Unincorporated associations include everything from political parties, sports associations and trade unions, to religious associations and social clubs. Despite the critical role that many of these organizations play in Canadian society, Stephen Aylward explains that, “[s]trictly speaking, unincorporated associations do not exist in the eyes of the law.” Unlike partnerships and corporations, unincorporated associations are not governed by any specific legislation and, as a result, this area of the law has developed primarily through the courts and the application of the law of contract, agency and trusts. In The Law of Unincorporated Associations in Canada, Aylward takes this patchwork quilt of authorities and creates a synthesized manual that lawyers can rely on when advising clients in this space.”
The Construction of Statutes, 7th Edition – “Part art, part science – that’s the essence of effective statutory interpretation. And understanding that balance is precisely the kind of insight you’ll glean from this latest edition of the industry-leading resource, The Construction of Statutes. This is a volume that no lawyer can afford to be without: knowing how to read and apply statutes, and to construct sound arguments regarding statutory interpretation, is a critical skill to possess, regardless of specialty or area of practice. This seventh edition offers a comprehensive and up-to-date examination of the rules and principles governing statutory interpretation, including the latest cases and developments.”
“Indigenous people are the most over-represented population in Canada’s criminal justice system. Their experiences within the system are interwoven with issues of colonialism and discrimination. Indigenous People and the Criminal Justice System, 2nd Edition, examines these issues and their impact to provide lawyers and judges with a deeper understanding of this area of the law. “
Book Reviews
Review taken from the Canadian Law Library Review, Vol. 47 Issue 2
Reviewed by Kim Clarke, Bennett Jones Law Library University of Calgary
“One often struggles to find connections between works in collections of essays. That is not the case with this book. Its narrow focus on millennials and the repetition of themes of their collaborative nature, technological leaning, and ability to relate to law students (most of whom are millennials) provides a smooth flow between the essays.”
Stadler v. St. Boniface/St. Vital (Director),2022 MBCA 56: Dispute over when a disabled individual receiving income assistance must apply for federal retirement or old age benefits. First dispute was when the appellant turned 60 – CA ruled he did not have to apply for benefits until age 65 (2020 MBCA 46). In this matter he wishes to delay applying until age 70. Appeal is based on the following questions of law: Did the Board err in confirming the decision to suspend income assistance benefits pending confirmation he had applied for OAS/GIS; Did the Board err in determining that it does not have jurisdiction to review the constitutionality of its own legislation. Appeal dismissed.
Pensions/Constitutional Law: Tribunal Jurisdiction re Constitutional Issues; s.15. Supreme Advocacy: Court of Appeal Decision of the Week, June 22, 2022. Comment on Stadler v. St. Boniface/St. Vital (Director).
Paul Daly. The Ages of Administrative Law, Public Law Conference, University College Dublin, July 2022. 2022 CanLIIDocs 1400.
In this paper, I tell the story of the administrative state from two perspectives in a tale spanning three distinct periods. One perspective is that of the structure of the state, which is focused on the entities created to carry out legislative policy. The other is the perspective of judicial review of administrative action. This is the story of how the courts came to oversee the administrative state.
British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27: Issue of whether an organization can maintain an action via public interest standing.
[3] In this appeal, the Council of Canadians with Disabilities (“CCD”) seeks public interest standing to challenge the constitutionality of certain provisions of British Columbia’s mental health legislation. CCD originally filed its claim alongside two individual plaintiffs who were directly affected by the impugned provisions. The individual plaintiffs discontinued their claims, leaving CCD as the sole plaintiff. CCD sought public interest standing to continue the action on its own.
[4] The Attorney General of British Columbia (“AGBC”) applied for dismissal of CCD’s action on a summary trial. He argued that the lack of an individual plaintiff was fatal to CCD’s claim for public interest standing because, without such a plaintiff, CCD could not adduce a sufficient factual setting to resolve the constitutional issue. In response, CCD filed an affidavit in which it promised to adduce sufficient facts at trial. The Supreme Court of British Columbia granted the AGBC’s application, declined to grant CCD public interest standing, and dismissed CCD’s claim. The Court of Appeal allowed CCD’s appeal and remitted the matter to the Supreme Court of British Columbia for fresh consideration. The AGBC appeals that decision.
[5] For the reasons that follow, I would dismiss the appeal, but grant CCD public interest standing, with special costs in this Court and in the courts below.
Henderson v. The Manitoba Public Insurance Corporation,2022 MBCA 57: Appeal by defendant MPI of dismissal of motion relating to the availability of the remedy for damages. Plaintiff is arguing breach of contract and/or negligent advice over purchase of motor vehicle insurance. Issues are: Is MPI liable for either breach of contract or negligence; if liability is found, what is the appropriate remedy; quantification of damages, if entitled. Motion judge’s role is to determine the essential character of the dispute; trial judge has the jurisdiction to determine the action (i.e. liability). Appeal dismissed.
6191763 Manitoba Inc. et al. v. 5801916 Manitoba Ltd.,2022 MBQB 82: Competing motions for summary judgment over oral contract dispute. Plaintiff and defendants negotiated an oral agreement to develop a piece of property. After hearing the evidence (both affidavit and live) Lanchbery, J. determined a trial was necessary.
Rempel v. Gentek,2022 MBQB 128: Motion by defendant to dismiss plaintiff’s wrongful dismissal action for delay (Rule 24.02(1)). Issue of whether three or more years have passed without a “significant advance” in the action. Governing test set out in Buhr v. Buhr, 2021 MBCA 63. McCarthy, J. finds that the preparation and filing of the pre-trial brief was a significant step and therefore, constituted a significant advance. Motion dismissed.
CB Dinners Inc. v. J. Brandt Enterprises (2013) Ltd.,2022 MBQB 126: Dispute over the purchase of a refurbished long-haul trick. Plaintiff seeks damages equal to the aggregate costs incurred to address the engine failure and other repairs. Plaintiff assumed two year warranty on sales invoice referred to the entire truck, not just the replaced “engine inframe”. Issue of contractual interpretation. Kroft, J. finds that the plaintiff has not established on the evidence that the defendant is responsible for the damage.
Gzebowski v. Ogwal,2022 MBQB 121: Application to determine the value of a property jointly owned by the parties, so that the applicants can buy out the respondent’s interest. Greenberg, J. must determine approximately how much each party contributed; neither party has complete documentation. Parties had hoped to sell the property but there was no interest in it. Matter had been ongoing for several years. Court sets the amount owing, applicants are awarded costs at the Tariff amount (Class III).
Knutson Building Ltd. v. Winnipeg Environmental Remediations Inc. et al,2022 MBQB 119: Motion for dismissal for long delay (Rule (24.02(1)). Issues of whether the appeal should be deemed abandoned; whether fresh evidence should be permitted; whether the claim should be dismissed for long delay; and whether the court should exercise discretion to ensure justice is done. Plaintiff’s lawyer was dealing with personal and professional problems during the matter. Appeal brief was filed two weeks later than the rules allowed. Martin, J. revived the appeal. Application to admit fresh evidence denied. Claim dismissed for long delay. Court does not exercise discretion to revive it.
Ostrowski v. 4445211 Manitoba Ltd. o/a Tan FX et al.,2022 MBQB 112: Plaintiff seeking judgment for amount representing deposits she had paid for the purchase of a tanning salon. Defendant’s position is that the defendants were entitled to retain the deposits. Issue of contractual interpretation. Summary judgment is appropriate in this case where facts are agreed to. Plain reading of contract allows defendant to retain deposit but must return remaning funds to plaintiff.
Capital Commercial Real Estate Services Inc. v. Bibeau, 2022 MBQB 105: Matter between two parties who disagree on an oral contract. Plaintiff claims defendant agreed to pay him $300,000; defendant says it was $200,000. Parties had extensive business relationship, which was why there was no written agreement. Plaintiff put forth several documents defendant would have reviewed. Grammond, J. found no consistency between the documents such that the defendant could have misunderstood the fee. Claim dismissed.
McIntyre v. Potter,2022 MBQB 103: Motions to add a group of third parties to a matter. Test is set out in Loeppky et al v. Taylor McCaffrey LLP et al., 2019 MBQB 59. Also considered Vale v. Schwartz et al., 2021 MBQB 46. Plaintiffs sued two sets of defendants in contract and tort, but filed a notice of discontinuance against the second set of defendants. Plaintiffs also signed a release, releasing the second set of defendants from all liability. Motions granted.
Supel v. Cunningham,2022 MBQB 96: Claim in defamation. Plaintiff sued defendant for an injunction and damages; defendant was noted in default. Plaintiff moved for judgment, and defendant moved to set aside the noting of default so she could file a defence. Motion denied. Matter proceeded to default judgment hearing. Defamation was via social media posts. Analysis reviewed Crookes v. Newton, 2011 SCC 47, Grant v. Torstar Corp.,2009 SCC 61, and Rainy River (Town) v. Olsen,2017 ONCA 605. Martin, J. awarded general damages of $25,000, aggravated damages of $10,00 and punitive damages of $10,000 plus special damages of $262.50; costs of double Tariff A, Class 2, plus full disbursements.
Ostrowski v. Dubois, 2022 MBQB 95: Defendant seeks order that plaintiff’s claim be dismissed due to delay. Action started when plaintiff sued defendants for breach of contract for money he had lent her. Defendant claims monies advanced were a gift, not loans. Parties executed a settlement agreement in May 2012. Analysis of Queen’s Bench rules 24.02(1), 24.02(1)(a), 24.02(1)(e) and 24.01, all centering around “long delay”. Motion dismissed.
Stewart v. 6551450 Manitoba Ltd. et al; 6551450 Manitoba Ltd. v. Spence, 2022 MBQB 84: Litigation involving two claims related to efforts to sell a parcel of land. One claim is a dispute over a loan made between Stewart and 6551450 MB (“655”); other claim is between 655 and Peguis First Nation for breaching fiduciary and contractual duties. Stewart loaned 655 $600,000 as noted in meeting minutes and a promissory note but no loan agreement. 655 claimed there was no loan. Harris, J. found there was enough documentary evidence to show there was a loan. Breach of fiduciary duty was over purchase agreement. Deal required approval by the RM to develop a quarry on the parcel of land. Harris found no breach; claim dismissed.
Flette et al. v. The Government of Manitoba et al.,2022 MBQB 104: Four proceedings combined addressing common issues of the constitutional validity of legislation and certain actions of Manitoba dealing with provincial funding of child protection and welfare. Proceedings allege inappropriate conduct by Manitoba relating to the Children’s Special Allowance (CSA). Manitoba directed CFS Agencies within some First Nations authorities to remit the CSA to Manitoba. Some agencies refused. Issue is over whether the allowance should be remitted to the province or if it is to be remitted to the agency for use on behalf of the child. Edmond, J. lays out the context respecting the constitutional challenges (para 61). Analysis of the intermingling of The Budget Implementation and Tax Statutes Amendment Act, 2020, S.M. 2020 c. 21 (BITSA and CSA.
Criminal Law
R. v. J.J., 2022 SCC 28: Challenge to the constitutionality of ss. 278.92 to 278.94 of the Criminal Code, dealing with the record screening regime for sexual offences. Includes definition of a “record” (para. 34). Crown’s appeal should be allowed, J.’s cross-appeal dismissed, S.’s (complainant) appeal allowed and application judges’ rulings quashed.
PerWagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Before determining the constitutionality of the impugned provisions, it is necessary to interpret them. First, it must be determined what qualifies as a “record” for private record applications, using s. 278.1 as the starting point. The definition of “record” creates two distinct groups: (1) records that fall within enumerated categories; and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy.
Per Brown J. (dissenting in part): The record screening regime enacted under ss. 278.92 to 278.94 of the Criminal Codelimits the accused’s rights under ss. 11(c), 11(d) and 7 of the Charter. These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. Therefore, ss. 278.92 to 278.94 should be struck down, with immediate effect, but only as those sections relate to the record screening regime.
PerRowe J. (dissenting in part): On the merits, there is agreement with Brown J. that ss. 278.92 to 278.94 of the Criminal Code are unconstitutional and of no force and effect except in so far as they apply to the existing s. 276 regime. The legislation restricts the fair trial rights of accused persons by placing limits on how they can conduct the cross‑examination of Crown witnesses and what evidence they can introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants.
Per Côté J. (dissenting in part): There is agreement with Brown J. that the record screening regime does not come close to passing constitutional muster. There is also agreement with Rowe J.’s analytical approach in respect of s. 7 of the Charter. However, there is disagreement with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. A narrow interpretation should be preferred.
R. v. Goforth, 2022 SCC 25: Issue of charge to jury and whether it may have misled the jury. Appeal allowed and convictions restored.
PerWagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Kasirer JJ.: The jury was properly instructed. The jury charge functionally conveyed the mens rea requirements such that there is no reasonable possibility that the jury would have been confused. The charge also sufficiently recited the evidence about the circumstances that the accused argued prevented him from foreseeing the risk of harm to the children. As well, the jury was well‑equipped to make a common sense assessment of whether failing to provide food or fluids to young children constituted a marked departure from the conduct of a reasonably prudent person.
Per Brown, Martin and Jamal JJ.: The jury charge, when viewed from the functional perspective required by the jurisprudence, did not properly equip the jury to decide the case according to law. However, as no substantial wrong or miscarriage of justice flowed from the deficient instructions, the curative proviso should be applied. There is therefore agreement with the majority that the appeal should be allowed and the convictions restored.
R. v. Hall,2022 MBCA 59: Sentence appeal; accused argues it is demonstrably unfit as it is harsh and excessive. He received a nine year sentence for four counts of robbery with a weapon. Leave to appeal denied.
R. v. Reimer,2022 MBCA 55: Appeal of dismissal of application for an order of habeas corpusand mandamus. Accused is charged with two counts of second-degree murder and plans to assert a defence of not criminally responsible. Crown obtained an order for an assessment but it can’t be completed within the 30-day time frame. Assessment order had lapsed by the time came before the application judge; it was dismissed as moot. Appeal dismissed.
R. v. Cleveland,2022 MBCA 54: Appeal of conviction on a charge of first degree murder. Accused is self represented. Grounds of appeal are the trial judge’s decision to admit similar fact evidence; adequacy of the charge to the jury; and ineffective assistance of counsel at trial. Appeal dismissed.
R. v. Siwicki,2022 MBCA 53: Appeal of order dismissing appellant’s application re a request to change the venue of sentencing. Critical question is whether a court maintains oversight of such requests. Analysis of interpretation of s. 479 of the Criminal Code. Analysis of concepts of “jurisdiction over the offence” and “jurisdiction over the person”. CA found that Court, not parties, has the final word on where a sentencing hearing will occur.
R. v. F. (J.M.),2022 MBCA 52: Appeal for conviction for first degree murder, and leave to appeal sentence. Trial judge convicted the appellant based on circumstantial evidence. Issue of admissibility of a cellphone and its contents. Trial judge found a breach of s. 10(b) of the Charter, but after conducting a s. 24(2) analysis, admitted the evidence. CA determined trial judge should have considered the provisions of s. 146 of the YCJA. Conviction and sentence set aside; matter remitted back to trial court for a new trial.
R. v. D.L.,2022 MBQB 127: Accused charged with sexual assault. Complainant testified she was intoxicated and had no memory of the events. Accused testified that she wasn’t overly drunk and there was consent. Court must consider a W.(D.) analysis. Leven, J. found accused was not credible; accused guilty as charged.
R. v. Williams,2022 MBQB 125: Sentencing decision for conviction of manslaughter. Accused was in a drug-induced psychosis at the time. Many aggravating factors and no mitigating factors in terms of the offence itself. McCarthy, J. takes judicial notice of Gladue factors impacting the offender. None of the case law provided by Crown and defence counsel was directly on point. Due to violent nature of crime, accused is sentenced to life in prison.
R. v. Pierpoint et al.,2022 MBQB 117: Request that indictment be stayed due to delay. Applicants were released after their arrest and have remained out-of-custody throughout the proceedings. Crown argues that the delay was caused by the impact of COVID-19, courts were closed for out-of-custody trials for five months. Both parties provided an extensive factual underpinning relevant to the court’s consideration. Determination that the systemic impact of the pandemic is an exceptional circumstance, and that this is a complex case also giving rise to exceptional circumstances. Application dismissed.
R. v. D.J.S.,2022 MBQB 116: Sentencing decision for conviction of one count of sexual assault. Rempel, J. explained the difficulties in determining a fair and just sentence. Complainant was 14 and on the autism spectrum; accused was 23 and diagnosed with schizophrenia. Review of role of sentencing, including Gladue and Ipeelee factors. Primary consideration must be given to the objectives of deterrence and denunciation. Crown is seeking a sentence of five years less pre-sentence credit. Defence argues five years would be crushing to the accused due to his mental illness and ability to receive treatment. They argue two years less a day plus a significant period of probation would be appropriate. Court imposed a period of incarceration of three years and six months plus ancillary orders.
R. v. P.K.,2022 MBQB 107: Application to terminate a SOIRA order under s. 490.015(1)(b) of the Criminal Code. Accused was required to be registered for a period of 20 years. Onus is on the accused to satisfy the requirements for termination on the balance of probabilities. Keyser, J. sets out the test as found in R. v. D.D., 2020 BCCA 169. Order terminated.
R. v. Muskego,2022 MBQB 101: Accused charged with possession of a prohibited weapon, unlawful storage of a firearm and intentionally discharging a firearm. Trial raises the issue of false confessions. Consideration of R. v. Pearce (M.L.), 2014 MBCA 70. Accused found guilty of discharging a firearm; other charges withdrawn.
R. v. A.C.,2022 MBQB 99: Trial for charges of assault, assault with a weapon and sexual assault between domestic partners. Assaults took place over many years; complainant had difficulty determining exact dates. Leven, J. considers R. v. Barton and R. v. W.(D) in his analysis. Accused found guilty of sexual assault, common assault, and not guilty of assault with a weapon.
R. v. Parker,2022 MBQB 66: Sentencing decision after guilty plea for possession of a loaded prohibited firearm, breach of a weapons prohibition order and assault. Accused committed offences while under the influence of various drugs. He was released on a strict curfew and enrolled in a treatment program on his own initiative. Crown is seeking a total sentence of 42 months imprisonment; defence seeks a total sentence of two years less a day, conditionally. Overarching principle is proportionality. Drug addiction is both an aggravating and mitigating factor. Suche, J. considers numerous cases on sentencing both for and against imprisonment. Court determines a conditional sentence following by three years probation will be effective.
R. v. Mamula,2022 MBPC 34: Application for a stay of proceedings due to delay. Total delay is 33 months and 25 days. Crown argues that but for the COVID pandemic, the trial would have occurred in September 2020. Defence argues that the Crown failed to take reasonable steps to mitigate the delay. Devine, P.J. finds that the court and the Crown did take mitigating steps; application dismissed.
R. v. Shamrat,2022 MBPC 33: Application to stay proceedings due to delay. Trial has been adjourned and rescheduled six times, due to restrictions during the pandemic. Arrest was on September 7, 2019. Applicant has been out of custody since his arrest. Total delay is 33 months and 21 days. Delay by defence amounts to 53 days. Analysis of other jurisdictions’ responses to the impact of the pandemic to trial schedules and whether six adjournments counts as “exceptional” and a “discrete event”. Carlson, P.J. finds delay attributable to exceptional circumstances amounts to 24 months.
R. v. S.A.,2022 MBPC 28: Sentencing decision re guilty plea for distribution of intimate images. Extensive canvas of treatment of other offenders from different jurisdictions, as well as two from MBCA. Deterrence and denunciation are the primary sentencing objectives. Both aggravating and mitigating factors to take into consideration. Heinrichs considered a Conditional Sentence Order but determined the aggravating factors warranted a custodial sentence. Sentence of nine months in custody and a two year order of supervised probation.
R. v. Shuvera,2022 MBPC 27: Sentencing decision for one count of dangerous driving causing bodily harm. Accused pleaded guilty. Complainant received serious injuries from the collision. Review of authorities indicates a sentencing range of no jail to significant jail. Custodial sentence of eight months followed by two years of supervised probation.
R. v. Dew,2022 MBPC 26: Trial of accused charged with luring based on text communications with a 15 year old. Only issue is whether the communication constituted the offence of luring. Explanation of operation and purpose of the offence of luring set out in R. v. Legare, 2009 SCC 56. Accused found guilty.
R. v. Genaille,2022 MBPC 25: Voir dire decision re application to admit co-accused’s hearsay statement for truth. Accused Richard provided a video statement to the police denying accused Genaille’s involvement. Crown did not seek to tender the comments at trial. Application dismissed; threshold reliability has not been established.
Ryan Clements. Cross Country Noteup – Criminal Appeals. CanLIIConnects. Short summaries of criminal appeals from all jurisdictions published on a monthly basis.
Steve Coughlan. R. v. McKenzie: Continuing Confusion on Common Law Powers, (2022) 77 C.R. (7th) 330. (WLC – LSM members can request a copy.)
In most ways the result in McKenzie[2022 MBCA 3] is unremarkable. Police observed a known gang member who was known to carry weapons and who seemed to be concealing one at that moment, detained him, found the weapon, and he was convicted. Once the accused’s challenge on appeal to the trial judge’s findings that underlay the relevant legal tests failed, there was no other plausible result than that the detention and search would be found to be lawful. At the same time, the case illustrates the confusion inherent in common law powers such as investigative detention and search incident to investigative detention. Some aspects of this are commented on by the Manitoba Court of Appeal, while others are demonstrated by the decision.
A.A.O. nka T.L.K. v. N.O.O. et al.,2022 MBCA 58: Respondent appeals order granting petitioner sole custody, setting child and spousal support, and apportioning daycare expenses. Key to the sole custody order was that the respondent had been charged criminally with aggravated assault of an infant in her care. Family law orders are entitled to considerable deference absent an error in principle, a significant misapprehension of the evidence or an award that is clearly wrong. None of those apply; appeal dismissed.
C.E.S. v. S.O.S.,2022 MBQB 120: Issue of the allocation and form of parenting time petitioner is to have with the parties’ daughter. Petitioner wants equal time; respondent says current arrangement, limited time and supervised, should remain the same. Complex family history; petitioner made claims to Child and Family Services resulting in abuse investigations of the respondent. Agency determined that children were at risk of harm with petitioner, instead. Thomson, J. orders minor adjustments to support paid under the interim orders and current parenting arrangements remain.
Lukianchuk v. Lukianchuk,2022 MBQB 115: Motion to rescind a variation order filed pursuant to Rule 37.11(1). Petitioner (wife) was in the middle of changing counsel when the order was filed. Respondent (husband) asked for arrears to be set at $0.00. No one disclosed that Maintenance Enforcement Program had issued a creditor statement of account stating that there was an enforceable balance of arrears of child support owed by the husband in the amount of $64,415.68. Analysis of petitioner’s actions show she did not proceed “promptly”. Application dismissed.
Chen v. Ma,2022 MBQB 114: Issue re child support as provided in a written agreement made between the parties in 2016. Daycare expenses not included in consent final order and divorce judgment but included in agreement. Parties are to share the expense on a 50/50 basis. Issue is whether it should be gross daycare expenses or net (after deduction for expenses under the Income Tax Act). Thomson, J. rules that the plain meaning of the agreement means the net expense, agreeing with the defendant.
Blanchard v. Maxwell,2022 MBQB 113: Dispute over child support, timing and location of weekly exchanges and imputation of income. Parties had an interim court order for child support. Mother wished to make changes to pick-up/drop-off due to difficulties of current arrangement; father did not want to make any changes. Mother had detailed proposal for alternatives, father did not. Leven, J. imputed income for both parties to arrive at new child support award of $812/month, plus arrears.
CFS Western MB v. M.L.K. and T.D.R.,2022 MBQB 106: Agency seeks a permanent order for a child apprehended in 2019. Mother’s father and father’s sister seek guardianship (separately). Mother and father oppose order sought by Agency, and want the child returned to them. Child is Indigenous; Abel, J. takes into consideration the provisions of An Act respecting First Nations, Inuit and Métis Children Youth and Families, S.C. 2019 c. 24 which has a more expansive list of factors to be considered when determining the best interest of a child. Neither parent is able to provide adequate care at this time. Discussion of whether a permanent order, a temporary order or an alternate placement order would be best.
Trojnar v. Trojnar,2022 MBQB 102: Motion to set aside a variation order for spousal support. Order had been pronounced after two lengthy JADR sessions. Issue over a term that the lump sum spousal support payments could be used as a deduction on the petitioner’s tax returns for two years. He later discovered he could not obtain the tax refunds he anticipated. Motion pleaded “common mistake”, and also relied on Queen’s Bench Rule 59.06(2)(a). Motion dismissed.
Wright v. Wright,2022 MBQB 97: Master’s decision on disputed property issues. Contested issues included vehicles, valuation of a family-controlled small business corporation, and RRSPs. Master Patterson commented on the lack of evidence for parties’ respective positions as jeopardizing a desired outcome.
Stephanie Dickson, Melanie Battaglia. Child Support for Adult Children and Children with a Disability: The Impact of ODSP, the Disability Tax Credit, RDSP and RESP. (2022) 40 C.F.L.Q. 169 (WLC – LSM members may request a copy.)
In this article, we provide a summary of the primary types of public benefits, tax credits and social assistance programs available to the family when supporting an adult “child” with a disability. In particular, we discuss the Ontario Disability Support Program (“ODSP”), the Federal Disability Tax Credit (“DTC”), Registered Disability Savings Plan (“RDSP” — as distinguished from the Registered Education Savings Plan, “RESP”), and Ontario’s Passport Funding.
Canada (Attorney General) v. Collins Family Trust, 2022 SCC 26: Interpretation of attribution rules in s. 75(2) and inter-corporate dividend deduction in s. 112(1) of the Income Tax Act. Tax Court of Canada interpreted s. 75(2) differently than was commonly accepted by tax professionals and CRA. Reassessment of the trusts’ returns led to unanticipated tax liability. Trusts petitioned for the equitable remedy of rescission.
Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: Taxpayers should be taxed based on what they actually agreed to do and did, and not on what they could have done or later wished they had done. A determination that equity can relieve a tax mistake is barred by a limiting principle of equity and by principles of tax law stated in Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55, Accordingly, the trusts are barred from obtaining rescission of the transactions.
PerCôté J. (dissenting): The appeal should be dismissed. Rescission is, in strictly limited circumstances, an available remedy that can be used to unwind transactions that were undertaken on the basis of a mistaken assumption, even if permitting it would effectively relieve the taxpayer from payment of unexpected taxes.
Re Estate of Marjorie Doreen Pelletier; Ratt v. Pelletier et al.,2022 MBQB 123: Application for an order that a testamentary document executed by the deceased be declared fully effective. Document is a codicil that was not incompliance with the Wills Act. Review of the circumstances leading to the writing of the codicil, and discussion of the competence of the deceased when it was written. Steps a court must follow set out in Schrof v. Schrof et al.,2017 MBQB 51. Analysis of whether suspicious circumstances exist. Chartier, J. finds for the applicant.
Nicol v. Nicol,2022 MBQB 111: Defendant was executor of the estate of his mother. Plaintiff, his sister, did not accept payment of her share of the residue in 2005, as she was on social assistance and did not want it to affect her benefits. Defendant eventually divided the remaining residue to the other beneficiaries, including himself. Plaintiff now asks for an order for summary judgment alleging that the defendant committed a breach of trust and fraud. Abel, J. finds that the plaintiff has not met her evidential burden that there is no genuine issue for trial and that the defendant did not commit fraud. He allows the plaintiff to make further submissions at another hearing. Aubrie Girou, Catherine Bunio. B.C. Bill-21 and Electronic Wills: Progressive or Problematic? (2022) 41 Est. Tr. & Pensions J. 152. (LSM members may request a copy).
An Act to give effect to the Anishinabek Nation Governance Agreement, to amend the Sechelt Indian Band Self-Government Act and the Yukon First Nations Self-Government Act and to make related and consequential amendments to other Acts
Royal assent received
C-14
An Act to amend the Constitution Act, 1867 (electoral representation)
Royal assent received
C-19
An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures
Royal assent received
C-24
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023
Royal assent received
C-25
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023
Royal assent received
C-28
An Act to amend the Criminal Code (self-induced extreme intoxication)
Royal assent received
C-11
An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
At second reading in the Senate
C-21
An Act to amend certain Acts and to make certain consequential amendments (firearms)
At consideration in committee in the House of Commons
Bill Number
Title
Status
S-236
An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)
At report stage in the Senate
C-5
An Act to amend the Criminal Code and the Controlled Drugs and Substances Act
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
Senate bill awaiting first reading in the House of Commons
S-6
An Act respecting regulatory modernization
At second reading in the House of Commons
C-297
An Act to amend the Canada Elections Act (Indigenous languages)
Outside the Order of Precedence
C-29
An Act to provide for the establishment of a national council for reconciliation
At second reading in the House of Commons
C-245
An Act to amend the Canada Infrastructure Bank Act
Bill defeated
C-226
An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice
At consideration in committee in the House of Commons
C-224
An Act to establish a national framework for the prevention and treatment of cancers linked to firefighting
At consideration in committee 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 consideration in committee in the House of Commons
S-9
An Act to amend the Chemical Weapons Convention Implementation Act
Senate bill awaiting first reading in the House of Commons
S-4
An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)
Senate bill awaiting first reading in the House of Commons
The Emergency Medical Response and Stretcher Transportation Amendment Act clause 2(a) insofar as it repeals the definitions “air ambulance”, “ambulance operator”, “grant” and “municipality”clauses 2(b) and (c)sections 3 and 6 to 11clause 13(1)(c)subsections 13(2) to (4)sections 14 and 15
The Regional Health Authorities Amendment Act (Health System Governance and Accountability) section 74 insofar as it enacts sections 79.2 and 79.3sections 83, 92 and 98clauses 134(a) and (b)
Remedies in Tort – “five-volume work has a total of 28 chapters that are constantly updated with the most recent guidelines and court decisions.”
Widdifield on Executors and Trustees – “a comprehensive exposition of the law relating to the exercise of the duties and prerogatives of the executor or trustee in Canadian law.”
The Regulation of Professions – “A comprehensive synthesis of the law relating to the regulation of Canadian professions…reviews both the legislative framework and the significant body of case law that interprets this subject.”
The Oppression Remedy – “a critical resource for advising corporations, boards or shareholders and creditors about their rights and duties.”
Fertility: 40 Years of Change By Maureen A. McTeer – analyses how Canada has responded to the many legal and societal opportunities this foundational reproductive technology has created, such as new types of human relationships; the treatment of infertility; human embryo research; and the revolutionary possibilities for society raised by the combination of reproductive and genetic technologies
Every Cyclist’s Guide to Canadian Law – 2nd ed. By Christopher Waters – provides a comprehensive overview of the Canadian law on bicycles. The book covers rules of the road, purchasing and using bikes, what to do in the case of a crash or a stolen bike, starting up your own cycling club, racing your bike, and much more.
Child Victims in Canada’s Justice System By Loree Armstrong Beniuk – a thoroughly researched resource that will be useful for anyone working with or establishing public policy with respect to children who have experienced sexual abuse.
Canadian Policing. Why and How It Must ChangeBy Kent Roach – a comprehensive and critical examination of Canadian policing from its colonial origins to its response to the February 2022 blockades and occupations.
Book Reviews
Review taken from the Canadian Law Library Review, Vol. 47 Issue 1.
Smart Contracts: Technological, Business and Legal Perspectives. Edited by Marcelo Corrales Compagnucci, Mark Fenwick & Stefan Wrbka. Oxford, U.K.: Hart Publishing, 2021. 204 p. ISBN 9781509937028 (hardcover) $150.95; ISBN 9781509937035 (PDF) $135.85; ISBN 9781509937042 (EPUB) $135.85.
Reviewed by Susannah Tredwell
“The book consists of eight chapters exploring such areas as data provision and privacy laws, the sharing of healthcare data, and unfair contract terms, and it concludes with a discussion of the future of smart contracts. Since each chapter is written by a different author or authors, there is a certain amount of repetition when it comes to subjects addressing what smart contracts and blockchain are, although the slants do vary. The consensus seems to be that “smart contract” is a bit of a misnomer since smart contracts are generally neither smart nor really contracts.”
Events
Call to the Bar June 16, 2022
The Mass Call to the Bar ceremony is returning to an in person format this year after being conducted virtually for the last two years due to the pandemic restrictions. This year’s distinguished guest speaker is the Chief Justice of Manitoba, the Honourable Chief Justice Richard Chartier. Members of the profession are invited to attend this ceremony and are asked to contact Lisa Ehnes at lehnes@lawsociety.mb.ca to obtain tickets to sit in the audience or to advise that you would like to participate in the procession at the beginning of the ceremony and be seated in an area set aside for members of the Bar. Please note that if you wish to participate in the procession, you will be required to wear court robes. If you have any other questions regarding the Call ceremony, please contact Joan Holmstrom at 204-926-2017 or by email at jholmstrom@lawsociety. mb.ca.
SPEAKER: SENATOR KIM PATE, INDEPENDENT SENATOR FOR ONTARIO, TERRITORY OF THE ALGONQUIN ANISHINABEG
Three senators are calling for the exoneration of twelve Indigenous women they say endured significant injustices in their interactions with the criminal justice system in a report issued May 16, 2022. The report identifies a number of problematic cases. The lawmakers said the findings in the report are “alarming” and reveal a pattern of systemic racism, misogyny, and abuses of mandatory minimums penalties. Join us as we discuss the report with Senator Kim Pate, which builds a case for a group conviction review and exoneration by the Department of Justice, and calls for the repeal of all mandatory minimums penalties.
Keurig Canada Inc. v. Canada (Border Services Agency), 2022 FCA 100: Is it a “coffee maker” or an “electro-thermic appliance”? Appeal of tariff classification of certain goods imported by Keurig. Canadian International Trade Tribunal (CITT) classified it as a “coffee maker” in December 2014. In July 2018, Keurig applied for a refund of duties, claiming it should be classified as “other electro-thermic devices” since it makes tea, hot cholate and other hot drinks besides coffee. Includes a concise description of the Keurig brewing system. Appeal dismissed. No word on whether the Court was offered a demonstration.
McCare Global Healthcare Services Inc. v. The Workers Compensation Board of Manitoba, 2022 MBCA 50: Appeal of judicial review of assessment dispute. Applicant is a health care service provider placement agency. WCB assessed the applicant as the employer of the service providers; applicant claimed that the service providers were independent contractors. WCB Appeal Commission determined that the service providers were workers for the purposes of coverage, and that the applicant was the employer. Judicial review agreed with Appeal Commission (standard of “reasonableness”). Discussion of s.60(2.1) (deemed worker and employer). Appeal dismissed.
Michelle Flaherty and Morgan Teeple Hopkins. Self-Represented Litigants and Active Adjudication: The Duties of Adjudicators. (2022) 35 Can J. Admin. L. & Prac. 177 (WLC – LSM Members can request a copy.)
The work of adjudicators has shifted in the face of increased numbers of self-represented litigants (“SRLs”) in our justice system. Fair and proportionate adjudication has always been expected of decision-makers. However, the current context requires more. One of the guiding principles that arises from the jurisprudence is that decision-makers must recognize and accommodate the SRL’s unfamiliarity with the legal process. It is no longer appropriate for adjudicators to act as passive participants in the hearing. They are now expected to use their role to ensure the hearing process is both fair and accessible to all litigants, including SRLs.
Civil Litigation
Urbanmine Inc. et al v. ELG Metals Inc.,2022 MBCA 51: Appeal concerning the application of s.2(1)(c) of The Tortfeasors and Contributory Negligence Act on a motion to commence a claim against a third party. Discussion of the history of negligence acts. CA found no error in motion judge’s conclusion that defendants established a prima facie case that they have a statutory right to contribution from the third party. Appeal dismissed.
Wolfe et al v. Taylor et al,2022 MBCA 48: Appeal of dismissal of motion for leave to commence a claim in negligence against court-appointed liquidator. Applicant must establish a strong prima facie case before leave will be granted. Appeal dismissed.
7602678 Manitoba Ltd. v. 6399500 Manitoba Ltd.,2022 MBQB 89: Hearing re costs in relation to three previous Orders, instead of in the cause. Law Society of Manitoba seeks costs in its role as intervenor as a party; its involvement in this matter is over. Review of s. 96 of The Court of Queen’s Bench Act and Queen’s Bench Rules 57.01(1) and (3). Costs are awarded to the Law Society following Class II of Tariff A. Defendant 6399500 is awarded costs at Class III of Tariff A for orders that have been completed.
Fletcher v. Bradbury (MHRC) (No. 2),2022 MBQB 73: Issue of whether applicant is entitled to access of portions of the Offer or Lease of property held by the Manitoba Housing and Renewal Corporation (MCHR). Applicant requested to view some portions which were redacted. Exception to disclosure is discretionary; public body may refuse disclosure if a reasonable expectation of probable harm is shown. Test is that set out in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (headnotes). MHRC ordered to release the information.
Dennis v. Canada (AG) et al. (No. 2),2022 MBQB 72: Proceedings under The Class Proceedings Act. Plaintiff filed a class action on behalf of a proposed class of grain producers who sold grain through the Canadian Wheat Board during two crop years (2010-2012). Issue is over regulations passed by the Canadian government increasing the CWB contingency fund cap from $60 million to $200 million. Motion for certification is granted. Proposed Class and Common Issues set out in Appendix A attached to this decision.
Irina Ceric and Jasminka Kalajdzic. Policing Protest via the Civil Law: Class Actions, Injunctions, and the “Freedom Convoy”. (2022) 70 C.L.Q. 247. (WLC – request a copy)
In the aftermath of the so-called Freedom Convoy and the blockades in Ottawa, Windsor, and Coutts, Alberta, crucial questions have emerged about the implication of the use of the civil law to demobilize and criminalize protest movements. Injunctions have long been wielded by governments and corporations against movements for Indigenous and environmental justice, but their invocation by local residents and small businesses against a lengthy and disruptive protest is unusual.
R. v. Bissonnette, 2022 SCC 23: Challenge to the constitutionality of s. 745.51 of the Criminal Code re punishment that is cruel and unusual by nature. Accused had been sentenced to consecutive 25-year parole ineligibility periods in a case involving multiple first degree murder convictions. Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):
[3] More specifically, the question before the Court is whether s. 745.51 of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), which was introduced in 2011 by the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, S.C. 2011, c. 5, s. 5, is contrary to ss. 7 and 12 of the Charter. The impugned provision authorizes the imposition of consecutive parole ineligibility periods in cases involving multiple murders. In the context of first degree murders, the application of this provision allows a court to impose a sentence of imprisonment without eligibility for parole for a period of 50, 75, 100 or even 150 years. In practice, the exercise of the court’s discretion will inevitably result in imprisonment for life without a realistic possibility of parole for every offender concerned who has been convicted of multiple first degree murders. Such a criminal sentence is one whose severity is without precedent in this country’s history since the abolition of the death penalty and corporal punishment in the 1970s. … [7] The provision challenged in this case allows the imposition of a sentence that falls into this latter category of punishments that are cruel and unusual by nature. All offenders subjected to stacked 25‑year ineligibility periods under s. 745.51 Cr. C. are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.
R. v. Safdar, 2022 SCC 21: Decision delivered orally by Brown, J. At the conclusion of evidence and submissions, the accused applied for a stay based on a breach of his right to be tried within a reasonable time. The trial judge heard the application while preparing his decision on the trial proper. He reserved his decision and granted the stay. Court of Appeal set aside the stay order.
We agree with the Court of Appeal that K.G.K. is dispositive of the central issue in this appeal. For the purposes of determining whether the total delay exceeded the Jordan presumptive ceiling, the time between the conclusion of evidence and argument, and the bringing of the s. 11(b) application in this case, should not have been counted (K.G.K., at paras. 31 and 33; R. v. J.F., 2022 SCC 17 , at para. 27).
R. v. Sullivan, 2022 SCC 19: Also known as Sullivan and Chan. Heard with R. v. Brown, 2022 SCC 18 (below). Constitutionality of s. 33.1 of the Criminal Code in defence of extreme self-induced intoxication akin to automatism. Court of Appeal held that S. and C. were entitled to raise the defence of automatism. S’s convictions were set aside and acquittals entered; new trial ordered for C. Appeals dismissed. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
[5] In R. v. Brown, 2022 SCC 18, released concurrently with the reasons for judgment in these appeals, I conclude that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is equally applicable to the Crown’s appeals in the cases at bar.
[6] As respondent, Mr. Sullivan has raised an issue relating to the character and force of a s. 52(1) declaration of unconstitutionality issued by a superior court. He argued before us that the trial judge had been bound by a previous declaration by a superior court judge in the province that held s. 33.1 to be of no force and effect. The issue raised by Mr. Sullivan provides an opportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis apply. As I shall endeavour to explain, stare decisis does apply and the trial judge was only bound to that limited extent on the question of the constitutionality of s. 33.1.
R. v. Brown, 2022 SCC 18: Defence of extreme intoxication. Constitutionality of s. 33.1 of the Criminal Code. Appeal allowed, acquittal restored. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
[3] Mr. Brown’s appeal before this Court turns on the circumstances in which persons accused of certain violent crimes can invoke self‑induced extreme intoxication to show that they lacked the general intent or voluntariness ordinarily required to justify a conviction and punishment. Similar matters are at the heart of the Crown appeals in R. v. Sullivan and R. v. Chan, for which judgments are rendered simultaneously with this case (R. v. Sullivan, 2022 SCC 19) (the “Sullivan and Chan appeals”). … [4] These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, taken alone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generally associated with drunkenness. As I note below, there is good reason to believe Parliament understood that alcohol alone is unlikely to bring about the delusional state akin to automatism it sought to regulate in enacting s. 33.1 of the Criminal Code, R.S.C. 1985, c. C‑46. … I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault. … [13] The violations of the rights of the accused in respect of the principles of fundamental justice and the presumption of innocence occasioned by s. 33.1 are grave. Notwithstanding Parliament’s laudable purpose, s. 33.1 is not saved by s. 1 of the Charter. The legitimate goals of protecting the victims of these crimes and holding the extremely self-intoxicated accountable, compelling as they are, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliament has created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in some respect, is innocent of the offence as charged according to the requirements of the Constitution.
R. v. J.F., 2022 SCC 17: Right to be tried within a reasonable time – whether the presumptive ceilings established in Jordan apply to retrial delay. Further explanation of the Jordan framework. Appeal allowed. Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.:
[2] This appeal affords the Court an opportunity to decide whether the Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. Two questions arise: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay? … [4] The ceilings set in Jordan apply to retrial delay. The framework established in that case protects the right of an accused to be tried within a reasonable time pursuant to s. 11(b), and that provision equally guarantees this right to an accused who is tried a second time. Although it is generally accepted that retrials must be prioritized when scheduling hearings and that they will be shorter than first trials, I do not think it is appropriate to adopt different presumptive ceilings for retrials. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried.
Côté J. (dissenting):
[81] This appeal concerns the interaction between the culture shift introduced by this Court since R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the presumptive ceilings within which an accused must be brought to trial, and the situation — not contemplated by Jordan — in which a new trial is ordered. We must propose a pragmatic solution that respects the right of an accused to be tried within a reasonable time while also remaining true to the principles established in Jordan when analyzing delay in the context of a retrial. … [84] Of course, the Court’s purpose in Jordan was not to provide second‑rate justice to accused persons, but rather to ensure that their constitutional right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, is respected. Where the prosecution breaches its duty and infringes this fundamental right, a stay of proceedings is the only possible remedy (R. v. Rahey, 1987 CanLII 52 (SCC) , [1987] 1 S.C.R. 588, at p. 614; Jordan, at paras. 35 and 47; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 24).
R. v. Kinnavanthong,2022 MBCA 49: Appeal of conviction after a jury trial for the offences of manslaughter, aggravated assault and discharge of a firearm, and appeal of designation as a dangerous offender and the imposition of an indeterminate sentence. Grounds for appeal are that trial judge erred in finding no air of reality to the defence of self-defence; instructing the jury to disregard his submission that it was an accident; and imposing an indeterminate sentence. Both appeals dismissed.
R. v. A.A.J.T.,2022 MBCA 47: Request for leave to appeal sentence for conviction of sexual interference, child pornography offences and more. Accused claims he received a sentence that was harsh and excessive and that the judge did not analyze or properly apply the principle of totality. Leave to appeal granted, appeal dismissed.
R. v. Wood,2022 MBCA 46: Application for leave to appeal sentence for conviction of manslaughter. Argues that sentence is inconsistent with principle of parity and errors of trial judge caused him to impose an unfit sentence. Sentencing judges are to be afforded wide latitude. Vulnerability of the deceased important factor in determining sentence. Leave to appeal granted, appeal dismissed.
R. v. D.A.B., 2022 MBCA 45: Appeal by Crown of acquittal of sexual assault causing bodily harm and choking to overcome resistance. Crown’s right to appeal restricted to questions of law alone. Appeal dismissed.
R. v. Pietz,2022 MBQB 93: Application for stay of proceedings due to violation of Charter rights by police conduct. Accused argues that his s.7, 9 and 10(b) rights were violated by the police and requests a stay of proceedings. Bond, J. finds that rights were not violated, and even if they were, a stay would not be the appropriate remedy. Application dismissed.
R. v. C.P.R.,2022 MBQB 71: Sentencing for accused who was convicted of several sexual assault and child pornography offences. Harris, J. noted there is little guidance on sentences based on the facts in this case (para 39). Review of cases decided since Friesen. Court finds an extremely high level of moral blameworthiness of the accused. Appropriate sentence is 14 years, but reduced to 10 when taking into respect the principle of proportionality.
R. v. Unrau,2022 MBQB 67: Appeal of conviction in provincial court for dangerous driving, driving while impaired and driving over .08. Appeal based on errors in law over several issues; standard of review is correctness. Significant analysis of whether s.11(b) delay was calculated correctly. Appeal dismissed.
R. v. K.S.S.,2022 MBPC 22: Sentencing decision for intimate partner aggravated assault. Accused has drug addiction issues and faces immigration consequences. Partner was an unwilling participant and required a witness warrant. Aggravating factors include impact to partner and her children, it was committed in the family home; mitigating factors include lack of prior record, rehabilitative efforts and expression of remorse. Martin, P.J. finds that a sentence of three years incarceration is appropriate.
R v J.O.,2022 MBPC 19: Hearing to determine admissibility of certain evidence. Criteria for admissibility set out in s. 276 of the Criminal Code. Some is admitted, while other evidence is not. Rolston, P.J. leaves room to readdress this during trial.
R. v. McLachlan,2022 MBPC 13: Sentencing decision for conviction of sexual interference, examining the impact of R. v. Friesen on case law pre-dating that decision. Discussion of sentencing principles under s. 718 of the Criminal Code. Primary consideration is to the objectives of denunciation and deterrence, as offence was against a vulnerable female child under the age of 18. Offending is on the very high end of the spectrum (para. 24). Martin, P.J. finds an appropriate sentence is 13 years’ incarceration for sexual interference and a concurrent sentence of 10 years for invitation to sexual touching.
Tim Quigley. “Sadly, No RIP for Starting-Point Sentences”. (2022) 75 C.R. (7th) 306 (WLC – LSM members can request a copy).
In a recent article, Paul Moreau made a compelling case for the abolition of starting-point sentences. Sadly, in R. v. Parranto, a majority of the Supreme Court rejected the arguments to rid our sentencing process of these pernicious approaches. Indeed, as I shall argue below, the Court has shown more than mere acceptance of starting points as a form of appellate guidance to sentencing judges. Rather, the Court’s position reinforces both starting-point sentencing and the imposition of long prison sentences. This is despite strong pronouncements in favour of appellate deference in sentencing review and the role that starting-points may play in that review.
Family Law
B.J.T. v. J.D.,2022 SCC 24: Child custody – child was found in need of protection from mother. Maternal grandmother and child’s father submitted competing parenting plans. Hearing judge awarded custody to the grandmother; majority of the Court of Appeal reversed the decision and awarded custody to the father. Appeal allowed, the hearing judge made no legal errors that warranted appellate intervention and that decision was entitled to deference. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
[2] At the conclusion of the appeal, we unanimously allowed the appeal. We set aside the decision of the Court of Appeal and restored the order of the hearing judge awarding the permanent custody and guardianship to the grandmother pursuant to s. 38(2)(e) of the Child Protection Act.Under the terms of the hearing judge’s final disposition, the grandmother was immediately entitled to the custody and guardianship of the child in P.E.I., and the Director was required to return him to the grandmother … at the expense of the Director.
Barendregt v. Grebliunas, 2022 SCC 22: Appeal of relocation order, where father admitted additional evidence on appeal. Primary residence of children was awarded to the mother at trial; appeal court overturned based on additional evidence. Analysis of the Palmer test for the admission of new evidence and whether it can be applied in a family law case. Karakatsanis J. (Wagner C.J. and Moldaver, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):
[3] In my view, the test in Palmer v. The Queen, 1979 CanLII 8 (SCC) , [1980] 1 S.C.R. 759, applies whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial. Appellate courts must apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice, regardless of when the evidence, or fact, came into existence.
[4] In cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life. At the same time, finality and order are critically important in family proceedings, and factual developments that occur subsequent to trial are usually better addressed through variation procedures.
[5] In this case, the Court of Appeal for British Columbia held that Palmer did not strictly govern the admission of new evidence on appeal. Instead, it applied a different test and admitted the evidence. It erred in doing so.
Côté J. (dissenting):
[193] … I disagree with my colleague’s application of Palmer to the facts of this case. Appellate courts that strictly apply the Palmer test tend to focus too narrowly on the potential for further evidence to distort the appellate standard of review rather than properly focusing on the best interests of the child as the overriding consideration. The Palmer test must be applied flexibly in all cases involving the welfare of children. My colleague recognizes this well‑established principle, yet her application of Palmer is devoid of flexibility.
[194] On a proper application of Palmer, I would admit the new evidence and remand the appeal to the trial court for reconsideration of the children’s best interests in light of the new information regarding the father’s financial situation and the condition of the West Kelowna home. The effect of holding otherwise would be to relocate 2 children 1,000 km away from their father based on an inaccurate picture of reality.
Metis Child, Family and Community Services v. C.P.R. et al, 2022 MBCA 40: Private guardianship dispute. Motion by Peguis First Nation CFS for leave to intervene in the appeal of an order of guardianship in relation to A.D.R. Reference made to new federal Indigenous child and family services legislation, An Act Respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24. Motion granted.
Swerid v. Swerid,2022 MBQB 94: Variation proceeding over post-majority support for two children with no relationship with the payor parent. Discussion of the onus of proving “child of the marriage”. Analysis of the effect of the change in circumstances. Respondent had onus of proving that the children were children of the marriage after their 18th birthday. Mirwaldt, J. found she did not meet that. Final Order varied ending child support at children’s 18th birthday; various respondent must repay child support overpaid; petitioner owes education costs he agreed to in separation order.
Mann v. Mitchell, 2022 MBQB 92: Motion by respondent for various forms of relief in high conflict proceedings, including security for costs, an order that petitioner be declared a vexatious litigant, an order of sole custody as well as others. Petitioner’s motion for recalculation of child support payments, change in location of periods of care and control and other relief, is dismissed. Both parties are self-represented. Trial dates have been postponed several times due to the pandemic, but are now set for February 2023. Motion dismissed.
Gerrow v. Minty,2022 MBQB 91: Trial to determine child support and amount of income to impute to mother (respondent). Parents had switched from mother having majority parenting time to shared parenting time (50-50). Mother manages property for her father, as well as a few private clients. Leven, J. imputes income at minimum wage for full time work. Father claims increased costs, e.g. cost of gas, child care but his evidence is sparse. After set-off, child support ordered at $520/month.
Johnson v. Miazga,2022 MBQB 90: Application for summary judgment to divide family property based on the terms of a purported agreement reached between the parties at a case conference. Respondent claims there was no “meeting of the minds” due to medical incapacity, even though she was represented by senior counsel at the time. Secondary issue of a request for a variation of drop-off and pick-up of children. Analysis of whether summary judgement is an appropriate method, whether the respondent was temporarily incapacitated, and whether the agreement reached was unconscionable. Petersen, J. granted summary judgment.
Pedersen v. Pedersen, 2022 MBQB 86: Respondent’s motions opposing confirmation of Master’s Report and request to admit fresh evidence. Master’s Report will be adjudicated at trial in the fall. Thomson, J. relies on the test (would the evidence, if presented at trial probably have changed the result; and could the evidence have been obtained before trial by the exercise of reasonable diligence) in dismissing the respondent’s motion.
Wright v. Wright, 2022 MBQB 78: Request by respondent for leave to amend answer to petition for divorce to request an unequal division of family property. Bar for unequal division of property is a high one, relying on Moskal v. Costco Wholesale Corporation, 2015 MBCA 108. Motion granted.
Esler v. Busch,2022 MBQB 76: Decision re request by petitioner for dismissal due to delay of an answer (not a petition) filed on behalf of respondent. Petition originally filed in September 2015; respondent filed an answer in December 2016. Pre-trial held in April 2018, and a consent order pronounced in August 2018. No further activity on the file. Significant discussion of Rules 24.01 and 24.02 and how they apply in family proceedings. Master Patterson found that there was a delay that was not to be condoned, as per Hryniak. Husband is successful.
Lesy v. Lesy,2022 MBQB 68: Application for grandparent access under The Child and Family Services Act. Grandparents want substantial contact with their granddaughter; father wants no contact, or in the alternative, limited supervised visits. Grandparents initially brought application in Saskatchewan which was unsuccessful. Analysis of the doctrine of res judicata as well as other grandparent access cases. Grandparents were successful in receiving some supervised in-person access as well as telephone or video contact.
Hussey v. Bell Mobility Inc., 2022 FCA 95: Appeal over the application of the reasonableness standard in a wrongful dismissal case. Appellant appeals dismissal of an application for judicial review of an adjudicator appointed under the Canada Labour Code. Adjudicator found she had been unjustly dismissed but declined to reinstate her. Instead, she was awarded compensation as well as partial costs. Respondent employer cross appeals on the issue of costs. Statutory provision at issue is ss.242(4). Analysis of the common law approach versus the fixed term approach to unjust dismissal (para 25-31). Both appeal and cross-appeal dismissed.
Labour Arbitration Cases are now on CanLII! CanLII is pleased to announce the completion of a project to scan and add the decisions that were published in Labour Arbitration Cases (LAC) to CanLII.org!
Legislation
Federal
Recent Activity
Bill
Long Title
Status
S-249
An Act respecting the development of a national strategy for the prevention of intimate partner violence
At second reading in the Senate
C-25
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023
House of Commons bill awaiting first reading in the Senate
C-24
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023
House of Commons bill awaiting first reading in the Senate
C-19
An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures
At third reading in the House of Commons
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
C-23
An Act respecting places, persons and events of national historic significance or national interest, archaeological resources and cultural and natural heritage
At second reading in the House of Commons
S-233
An Act to develop a national framework for a guaranteed livable basic income
At second reading in the Senate
S-246
An Act respecting Lebanese Heritage Month
At second reading in the Senate
S-248
An Act to amend the Criminal Code (medical assistance in dying)
At second reading in the Senate
C-246
An Act to amend the Constitution Act, 1867 (representation in the House of Commons)
At second reading in the House of Commons
C-241
An Act to amend the Income Tax Act (deduction of travel expenses for tradespersons)
At second reading in the House of Commons
C-240
An Act to amend the Income Tax Act (donations involving private corporation shares or real estate)
At second reading in the House of Commons
S-206
An Act to amend the Criminal Code (disclosure of information by jurors)
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