Province Introduces Amendments To Police Services ActNovember 29, 2021 – “The Manitoba government is introducing amendments to the Police Services Act that would strengthen the Independent Investigations Unit (IIU) and support greater responsiveness and accountability in policing across the province”
Government Introduces Legislative Amendments That Would Address MMIWG National Inquiry Calls For JusticeNovember 26, 2021 – “The Manitoba government has introduced amendments to the Path to Reconciliation Act that would establish the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) as a key component of the government’s approach to advancing truth and reconciliation”
Manitoba Government Will Repeal The Public Services Sustainability ActNovember 24, 2021 “The Public Services Sustainability Act was introduced and passed in 2017 but was never in force. While the constitutionality of this never-proclaimed legislation raises important issues on the range of legislative tools open to government – as it manages the economic pressures facing all Manitobans – it is now time for a different approach, the minister noted.”
Manitoba Confirms No Appeal in Carbon Tax Case November 17, 2021 – “Manitoba will not be filing an appeal from the recent Federal Court decision on its challenge of Ottawa’s original assessment of the Made-in-Manitoba Climate and Green Plan, Premier Heather Stefanson announced today. Manitoba is developing its policy approach to the new federal legislative and regulatory framework with its Dec. 31, 2022, timeline and looks forward to constructive negotiations over the months ahead, Stefanson noted.”
“Over the coming decades, the law surrounding motor vehicles is going to go through profound changes as autonomous vehicles become common and issues of law deriving from advances in technology inevitably arise. A new area of law will be needed, and with it, an assessment of how the current law can be adapted. Autonomous Vehicles: Self-Driving Cars and the Law of Canada will serve as a ready resource as courts and litigants begin the journey down this new road.”
“Discrimination Stories: Exclusion, Law, and Everyday Life explores diverse legal cases brought before courts and human rights tribunals to help us understand the development of anti-discrimination law in Canada. Drawing on the complexity and power of discrimination stories, this book is designed to expand our collective knowledge of the evolving legal concepts at the heart of equality law.”
Book Reviews
Review taken from the Canadian Law Library Review Volume 46, No. 3
“A strong point of this book is that the cases are all relevant and interesting, and each analysis differs enough from the original opinion. Each rewritten judgment makes enough relevant points that it is easy for readers to wish that they had been the actual decisions.”
This session will get participants to “think outside the box” to go beyond the traditional legal information tools and resources (CanLII, Quicklaw, Westlaw, etc.) and will cover the following topics: – Understanding the basic concepts of “archives” and “records”; – Identifying various kinds of archival materials or resources that may be useful in legal research; – Locating reliable and trustworthy sources; – Benefits of using archives and non-traditional resources.
Please RSVP (PRE-REGISTRATION IS REQUIRED) to the Manitoba Bar Association online at www.cbapd.org.
Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse),2021 SCC 43 : Discrimination claim brough on behalf of a public figure with disability against a professional comedian who mocked some of his physical disabilities. SCC split 5-4. PerWagner C.J. and Moldaver, Côté, Brown and Rowe JJ:
[7] In this case, we are of the opinion that the elements of a discrimination claim under the Quebec Charter have not been established. We would therefore allow the appeal.
Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting):
[119] For the reasons that follow, we would dismiss the appeal. The central question is whether the impairment of the equal exercise of the right to dignity is sufficiently serious, or whether it is justified by the comedian’s freedom of expression. In the circumstances of this case, the widely disseminated taunting of a 10 to 13 year‑old disabled child that plays on dehumanizing notions associated with his disability clearly meets this threshold.
Madison Holdings Ltd. v Winnipeg (City of),2021 MBCA 94: Appeal by City re decision of the Land Value Appraisal Commission for expropriation of the applicant’s business. Issues concern assessment of disturbance damages and how to address the principle of betterment. Detailed analysis of calculation of disturbance damages and compensation for time spent by owner on their involvement in the expropriation. City’s appeal allowed in part, reducing disturbance damages award to give credit for market value of expropriated property and deducting award for owners’ time. Respondent Madison is substantially successful; Spivak, J.A. grants solicitor-client costs.
Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada,2021 SCC 47: Issue of promissory estoppel and waiver by conduct in defending a motor vehicle accident. Insured was killed in a motorcycle accidence. His insurer proceeded to defend his estate in two lawsuits filed by two people injured in the accident. Three years after the accident, the insurer learned that the insured had been drinking just prior to the accident and ceased defending his estate and denied coverage. Trial judge found waiver by conduct and did not consider estoppel argument; found that insurer had waived its right to deny full coverage. Court of Appeal overturned. SCC dismissed the appeal.
Beaulieu et al. v. Winnipeg (City of) et al.,2021 MBCA 93: Motion for admission of further evidence. Analysis of the test for the admissibility of further evidence in civil appeal cases. Issue of conflict of interest when joint defence (city and a police officer) may prefer one party’s interests over the other. Motion dismissed.
Tataskweyak Cree Nation v. Intact Insurance Company,2021 MBCA 91: Defendant appeals dismissal of motion for delay. Two actions were consolidated, but consent consolidation was not filed in the Court. Motion judge found agreement to consolidate constituted a “significant advance”. CA found no merit to appeal; appeal dismissed.
Capitol Steel Corporation v. R. Litz & Sons Company Ltd. and F.A. Roberts & Associates Ltd. et al, 2021 MBQB 238: Two motions filed by the defendant. The first, to dismiss for delay, and the second to strike certain portions of the affidavit evidence filed in defence of the delay motion. Evidence to be struck include confidential mediation materials and other documents over which defendants claim settlement privilege. Some documents are struck while the rest will be allowed. Motion to dismiss for delay denied.
Gray v. Attorney General of Canada et al.,2021 MBQB 235: Motion by defendant to dismiss due to delay. Incident happened in 2003; statement of claim was filed in 2005. Examination of new Queen’s Bench Rule 24.02, the “long delay” rule; analysis of the “three year period of inactivity”. Motion granted; action dismissed.
Garang v. Grimolfson,2021 MBQB 234: Motion by defendant to strike statement of claim in its entirety pursuant to Queen’s Bench Rule 25.11(1). Plaintiff’s statement of claim seeks $5 million for intentional and prolonged infliction of emotional and psychological suffrage plus a declaration of parentage and custodial relief. Events occurred in 2006. Claim struck.
Bird Construction Group v. Trotter and Morton Industrial Contracting Inc.,2021 MBQB 233: Dispute over liens filed by respondent over contract performance. Applicant requested an order vacating the liens upon providing lien bonds with face values equivalent to the two liens. Respondent opposed the application. Project is on Crown land; lien is “registered” against owner’s holdback account. Issue is whether the security should be in the form of cash or a lien bond. Partial payment of cash paid to court; remainder to be held in lien bond.
BP General Partner Ltd. et al v. Aztekk Concrete Works Ltd.,2021 MBQB 232: Motion to set aside default judgment and noting of default. Defendant states it has an arguable defence and intends to file a counterclaim, and no prejudice or irreparable harm will result to the plaintiff. Analysis of Queen’s Bench Rule 19.08 re court’s discretion to set aside default judgments. Defendants are successful.
Centum Above All Financial Inc. et al v. Canada Revenue Agency,2021 MBQB 230: Plaintiffs filed a statement of claim against the defendant seeking general damages of $1.4 million. Defendant brought a motion to strikeout the amended statement of claim in its entirety, without leave to amend. Claim alleges a number of unparticularized torts; defendant claims it fails to disclose a reasonable cause of action, is scandalous, frivolous or vexatious, and is an abuse of process. Analysis of Queen’s Bench Rule 25.06(1) and 25.11(1). Motion granted.
Bradley Brown et al. v. General Electric Canada Company,2021 MBQB 227: Motion to compel certain of the plaintiffs to answer certain questions in examinations for discovery. Issue is governed by Rule 31.06(1) of the Queen’s Bench Rules. Plaintiffs argue that they are not required to answer the questions because they seek evidence that is irrelevant and inadmissible in the action. Defendant argues that the concept of relevance must be broadly construed. Motion granted.
Alvare v. St. Boniface Hospital Inc. et al.,2021 MBQB 220: Application for an interim injunction requiring respondents to remove a DNR order and provide all life-sustaining care to applicant. Discussion of legal principles involved and physician’s obligations as set out in the College of Physicians and Surgeons of Manitoba Standard of Practice regarding withholding and withdrawing life-sustaining treatment. Motion dismissed.
295 Garry Street Inc. v. Mittal et al.,2021 MBQB 215: Twin motions for summary judgment. Plaintiff initiated an action for trespass and demand removal of certain equipment including a diesel generator; defendants say equipment is within their easement. Conflict arises over vagueness of easement agreement. Plaintiff’s summary judgment motion allowed.
R. v. Albashir,2021 SCC 48: Issue of whether the result of the unconstitutionality of s. 212(1)(j) of the Criminal Code as found in Canada (Attorney General) v. Bedford, 2013 SCC 72 should be applied retroactively. Accused were charged with numerous offences, some occurring during the one-year period of suspension. Trial judge quashed the charges. Court of Appeal allowed the Crown’s appeals and entered convictions. SCC held appeals should be dismissed. From the headnotes:
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: In light of the purpose animating the suspension of the declaration of invalidity in Bedford, the presumption of retroactivity of a declaration of invalidity is rebutted by necessary implication. The purpose of a suspension must be considered in determining whether the declaration must logically operate retroactively or purely prospectively. In Bedford, the Court’s remedy was purely prospective, because the purpose of the suspension — avoiding deregulation that would leave sex workers vulnerable — would be frustrated by a retroactive remedy.
Criminal Law
R. v. Parranto,2021 SCC 46: Appeal on sentencing ranges. Accused pleaded guilty to various drug trafficking offences. SCC found the sentences at trial were demonstrably unfit and Court of Appeal’s intervention was appropriate. Per Wagner C.J. and Brown, Martin and Kasirer JJ:
[3] The appellants and several interveners sought to discredit the starting‑point approach by arguing that it has undesirable results, including higher rates of incarceration for Indigenous and other offenders. These criticisms lose their force, however, if starting points are properly treated as non‑binding guidance by both sentencing and appellate courts…
[4] Accordingly, there is no need to disavow the starting‑point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence.
PerMoldaver and Côté JJ.(concurring):
[84] I would dismiss the appeals from sentence and uphold the sentences of 10 years and 14 years imposed by the Court of Appeal. The sentences imposed by the sentencing judges in both cases were demonstrably unfit….
[86] I find it necessary, however, to write separately to raise what I believe to be an issue of overriding concern in these cases. Specifically, I wish to focus on the gravity of largescale trafficking in fentanyl for personal gain and the need to impose severe penalties, ranging from mid‑level double digit penitentiary terms up to and including life imprisonment, for those who do so.
PerRowe, J. (concurring):
[102] These appeals provide an opportunity for this Court to resolve the “issue of importance” it identified in R. v. Friesen, 2020 SCC 9, at para. 41: are “starting points . . . a permissible form of appellate guidance”? I would answer this question in the negative. The starting‑point approach pioneered by the Court of Appeal of Alberta is, in theory and in practice, contrary to Parliament’s sentencing regime and this Court’s jurisprudence…
[105] My colleagues say that they are putting forth “a revised understanding” of starting points (Brown and Martin JJ.’s reasons, at para. 3). I am skeptical, however, as to the impact this so‑called revised approach will have. This Court has provided guidance on numerous prior occasions, yet the Court of Appeal’s approach has remained unchanged (R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; Friesen). As a result, in my view, to offer yet more helpful suggestions to ameliorate the problems inherent in starting-point methodology is naïve. The problems are baked into the methodology and they are rooted in the purposes for which it was developed and for which it has been maintained. There is only one effective response: to say that starting-point methodology can no longer be used. Being definitive in so saying is long overdue.
Per Abella and Karakatsanis, J.J. (dissenting):
[206] In my view, neither trial judge made an error in principle, nor was either sentence demonstrably unfit. In both appeals, the Court of Appeal did not act with restraint and deference but rather assumed a scrutineering, interventionist posture. The trial judges were faulted for their reasonable exercises of discretion, their factual findings were disregarded, and their demonstrated appreciations of the gravity of the offences before them were ignored. Both appeals should therefore be allowed with the original sentences restored.
R. v. Cowan,2021 SCC 45: Appeal by accused as of right and appeal by Crown. Accused was arrested in relation to a robbery by others and acquitted. Court of Appeal set aside the acquittal and ordered a new trial, limited to the question of the accused’s guilty as a party. Per Wagner C.J. and Moldaver, Côté, Martin and Kasirer JJ.:
[7] For the reasons that follow, I would dismiss Mr. Cowan’s appeal and allow the Crown’s appeal. I am in agreement with the majority of the Court of Appeal that the trial judge committed an error of law in his analysis of party liability, which had a material bearing on the acquittal. The appropriate remedy is therefore to set aside the acquittal and order a new trial. However, in my respectful view, the new trial must be a full retrial.
Per Brown and Rowe JJ. (dissenting):
[75] I would allow the appeal by Mr. Cowan and restore his acquittal. I would do so for the dissenting reasons of Justice Jackson, which I adopt, except for para. 61.
R. v. Abdisalam, 2021 MBCA 97: Appeal of sentence for conviction of robbery with a weapon. Accused believes judge did not take into account consequences based on his immigration statuts, overemphasized his youth record and underemphasized his undiagnosed PTSD. Court of Appeal found no error and that the sentence, although on the high side, was fit. Leave to appeal granted; appeal dismissed.
R. v. Roulette,2021 MBCA 95: Appeal by accused of conviction and sentence. Issue on conviction is whether trial judge unreasonably dismissed an available inference that should have led to reasonable doubt, i.e. it was an accident. Crown agrees and joins in asking for an acquittal. Conviction is set aside and acquittal entered; sentence appeal dismissed as being moot.
R. v. Lewyc-Sullivan,2021 MBCA 92: Request for leave to appeal sentence, arguing that judge failed to give sufficient weight to principle of rehabilitation. Accused was found guilty of possession of cocaine for the purpose of trafficking. Standard of review for sentencing decisions is deferential. Despite accused’s rehabilitation, judge concluded that deterrence and denunciation were paramount considerations. Judge imposed a sentence below the appropriate sentencing range. Leave to appeal granted, appeal dismissed.
R. v. B. (H.E.J.E.),2021 MBQB 223: Accused found guilty on two counts of second degree murder, committed when he was 16 years old. Crown applies for an order that he be sentenced as an adult. Legal principles summarized by Hamilton, J.A. in R. v. McClements, 2017 MBCA 104. Evidence submitted included the facts essential to the jury’s guilty verdict; two Gladue reports; Manitoba Corrections Incident Reports as well as a victim impact statement. Crown application granted.
R. v. Assi,2021 MBQB 217: Sentencing decision; appropriate period of parole ineligibility for conviction for second degree murder and appropriate sentence for count of attempt to commit murder. Crown seeks parole ineligibility raised to 13 years and a 10 year concurrent sentence. Defence ask that parole ineligibility remain at the minimum of 10 years and an eight year concurrent sentence. Discussion of s.745.4 of the Criminal Code for factors to be considered. After considering mitigating and aggravating factors, Turner J. sentences accused to life imprisonment without eligibility for parole 11 years, plus 8 years concurrent for the other charge.
R. v. Franklin,2021 MBPC 58: Sentencing decision where accused pled guilty to aggravated assault. Accused is Indigenous with multiple mental health diagnoses and a substance abuse disorder. Detailed analysis of sentencing ranges for the offence as well as the effect of the accused’s life experiences as mitigation. Sentence is effectively three years plus two years probation, calculated as 330 days pre-sentence custody, two years less a day custodial plus two years probation.
R. v. Hanakowski,2021 MBPC 56: Trial for the offences of child luring and making sexually explicit material available to a child. Three elements to the offence of luring, and each element must be established beyond a reasonable doubt (R. v. Legare, 2009 SCC 56). Central issue is whether the Crown has proven that the accused believed the “child” (an undercover RCMP officer) he was texting was under 16. Accused testified in his defence, stating that the text messages were a joke. Accused found guilty.
R. v. Silva,2021 MBPC 54: Sentencing decision where accused pled guilty to causing bodily harm while driving impaired. He is a permanent resident from Portugal and now faces deportation. Sentencing objectives are denunciation and deterrence as well as proportionality. Victim was seriously injured; accused’s blood alcohol level was extremely high. Extensive analysis of case law, noting that none considered collateral immigration consequences. Sentenced to six months less a day to avoid being unable to appeal a deportation order, and six months supervised probation.
Bonneteau v. Bonneteau,2021 MBQB 237: Master’s report on Family Property Act accounting. Only issue left is the shareability of the business interests of the respondent. Parties had signed a pre-nuptial agreement in 1992. Master is only to determine if the agreement extended to cover the business assets at issue. Issue of interpretation of the contract based on its language and other evidence when the language is ambiguous. Master finds that part of the assets are covered, while the other part is not.
Nolin v. Nolin,2021 MBQB 222: Master’s report on family property accounting. Reference order sets the date of valuation at January 1, 2015. Most of the listed assets and liabilities were resolved; only contested issues were a vehicle and its loan, the respondent’s Visa account and the respondent’s shares in a Manitoba corporation.
Nicholson v. Nicholson,2021 MBQB 214: Issues of child support; respondent requests a retroactive adjustment. Detailed s.9 analysis of the Child Support Guidelines. Thomson, J. found this was not an appropriate case for a retroactive adjustment to child support in the respondent’s favour.
An Act respecting First Nations, Inuit and Métis children, youth and families (the Act) came into force in January of 2020, containing many innovative provisions aimed at affirming the jurisdiction of Indigenous peoples and providing services for Indigenous families. Groundbreaking provisions within the Act create a positive obligation on the government to provide services to Indigenous children who otherwise would have been apprehended due to their socioeconomic status. However, the Act lacks a concrete funding provision. This legislative comment conducts an exercise in statutory interpretation to conclude that the current omission of a funding provision within the legislation is at odds with the nature, purposes, and context of the legislation.
Wills, Trusts & Estates
Kuchinka v. Davies,2021 MBQB 224: Applicant moves for declaration that the respondent has breached her fiduciary duty as executrix and trustee for the estate of the deceased. Applicant is the great-grandaughter of the testator who died in 2002 and left a residual bequest that was to be given to her when she turned 18. Respondent did not respond to queries by applicant’s mother over the years as to how the inheritance was invested. Applicant is successful; entitled to solicitor and her own client costs payable personally by respondent.
Genevieve Cantin. Liberals reintroduce bill to streamline and add sanctions to federal judicial discipline process. The Lawyer’s Daily. November 11, 2021. – “The new bill would, according to its summary, amend the federal Judges Act to establish a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge’s removal from office, and change the process via which the Canadian Judicial Council (CJC) recommends to the federal minister of justice that a judge be removed.”
Federal
House of Commons
Second reading
Government bills
C-2An Act to provide further support in response to COVID-19 C-3 An Act to amend the Criminal Code and the Canada Labour Code
Senate
Second reading
Government bills
S-2 An Act to amend the Parliament of Canada Act and to make consequential and related amendments to other Acts S-3 An Act to amend the Judges Act C-4An Act to amend the Criminal Code (conversion therapy)
Lawyers and the public can now use the main entrance located at 408 York Avenue. The new entrance provides better accessibility, signage, and improved security screening areas. Please note that current COVID-19 protocols limit access to Manitoba court buildings to those dealing with court matters.
Manitoba Government making changes to Family Maintenance Act to include parentage legislation for children conceived through assisted reproduction.
First criminal conviction for forcibly coughing on someone with the intention of spreading COVID-19 has been decided in Alberta Provincial Court.
Notices
Court Notices & Practice Directions
All COVID-19 Notices and Practice Directions are available here.
A new eBook celebrating the 50th anniversary of the Federal Court of Appeal has been added to our online Irwin Law Collection on vLex.
“This book was prepared for the celebration of the fiftieth anniversary of the Federal Courts in 2021. Seventy-eight current and retired judges and prothonotaries on the two courts were interviewed and are referred to throughout the book. The authors present a brief history of these courts and their predecessor — the Exchequer Court of Canada — and an overview of the courts’ jurisdiction, decision-making trends, and unique attributes. There are chapters on each of the courts’ specialties — administrative law, immigration and refugee law, intellectual property, security and intelligence, Indigenous issues, the environment, admiralty, labour and human rights, and tax.”
From Heinonline
“HeinOnline has made a special arrangement with Edward Elgar Publishing to offer comprehensive coverage of selected Elgar legal journals. 12 Elgar titles have been added to HeinOnline’s Law Journal Library with a three-year embargo.”
This collection has already had new journals added to it including Competition Law & Policy Debate, Renewable Energy Law and Policy Review, and European Energy & Climate Journal
Book Reviews
Review taken from the Canadian Law Library Review Volume 46, No. 3
By the Court: Anonymous Judgments at the Supreme Court of Canada. By Peter McCormick and Marc D Zanoni. Vancouver: UBC Press, 2019. xv, 252p. Includes bibliographic references and index. ISBN 9780774861717 (hardcover) $89.95. ISBN 9780774861724 (softcover) $32.95. ISBN 9780774861748 (EPUB) $32.95. ISBN 9780774861731 (PDF) $32.95.
Reviewed by Ann Marie Melvie
“Marc D Zanoni, with Peter McCormack as his thesis supervisor, was working on a Master of Arts degree in political science at the University of Lethbridge. Zanoni’s thesis topic involved “an examination of the Supreme Court of Canada’s By the Court decisions—those decisions that are not attributed to any specific individual but mysteriously and cryptically to the Court” (p xi). During his literature review, Zanoni was surprised to discover that there was no academic literature on the topic! There were no books, no articles, and no “focused discussion” of the phenomenon. After various twists, turns, and discoveries in the research process, Zanoni and McCormick ended up writing this book, a well-researched exploration of By the Court decisions of the Supreme Court of Canada (SCC).”
2021 Isaac Pitblado Lectures: A Shot in the Arm – Can We Achieve Client Immunity in Contract Law? – November 26, 2021
Jointly presented by The Law Society of Manitoba, the Manitoba Bar Association and the University of Manitoba, Faculty of Law
Whether you graduated in this century or the last, contract law has changed since you were in law school. The 2021 Pitblado Lectures will provide a comprehensive update on an array of contracts topics. From the rights and obligations arising from the duty of good faith, to the validity of e-signatures, to what an international arbitration clause really means for your client, the sessions will offer thought-provoking discussion and useful take-aways. The Lectures will also address COVID-related concerns, particularly in the employment law context, as we start to move out of the pandemic.
Please join us for a day all about contract law updates with a focus on issues that will be of particular interest to anyone with a solicitor’s practice.
Lall v. Manitoba Public Insurance Corporation et al,2021 MBCA 89: Appellant seeks leave to appeal decision of AICAC declining to extend 90 day time limit for filing appeal. Decision of internal reviewing officer was issued in May 2016. Notice of appeal filed in April 2020. Explanation of delay included difficulty navigating the process. After reviewing her medical file, appellant realized the reviewing officer was missing a relevant document.
The Law Society of Manitoba v. Brian A. Langford,2021 MBCA 87: Appeal from conviction by Discipline Committee and penalty of disbarment. Appellant has statutory right to appeal. Standard of review as described in Housen v. Nikolaisen, Vavilov, and Histed v. Law Society of Manitoba at para. 34-37. Pfeutzner, J.A. found no merit to the appeal.
Waraich v. Director of Employment Standards,2021 MBCA 82: Question of issue estoppel in a civil proceeding as a result of a decision in a prior administrative proceeding. This is a dispute over unpaid wages, where an employment standards officer found the “employer” was the claimant in her personal capacity as opposed to a corporation. There were five orders in total, two of which were appealed and resolved through mediation. The other three were never appealed, and the Director filed the orders which then became an enforceable judgment. The Director garnished funds from the claimant’s personal bank account to satisfy the judgment. Claimant then commenced a claim under The Court of Queen’s Bench Small Claims Practices Act and was successful. Question being decided in the civil claim was the same as the administrative proceeding under TheEmployment Standards Code. Appeal allowed.
Manitoba Public Insurance Corporation v. The City of Winnipeg,2021 MBQB 212: Appeal of decision by respondent designating a property owned by the applicant as a historical resource. Applicant’s position claims that as an agent of the Crown its assets can’t be bound. Respondent accepts this position but submits that the court should dismiss the matter. Issue is a question of law. Appeal allowed.
Bankruptcy Law
Wolfe et al. v. Taylor et al.,2021 MBCA 83 : Appeal of decision related to the validity and amount of intercompany debt as found by the liquidator. Appellant alleges that the liquidation judge erred in approving the intercompany debt. Two issues to be determined: Should there be a full hearing with an in-depth audit; and how to resolve the intercompany debt issue. Appeal dismissed.
The Bankruptcy of Steven Otto Galloway, 2021 MBQB 213: Application for discharge from bankruptcy opposed by Trustee and OSB on basis applicant has not accurately disclosed his income. Bankrupt acknowledged that he did not provide information on a monthly basis but indicated there was a change in his trustee part way through and he didn’t understand he was obligated to do so. He also disagrees with the OSB estimate of his income. Registrar finds he did not adequately report his income, makes his discharge conditional upon payment of $5,000 to the Trustee and suspended his discharge for six months.
Civil Litigation
Nelson (City) v. Marchi,2021 SCC 41: Plaintiff was injured climbing over a snowbank left by municipality’s snow-clearing efforts. She sued city for negligence; trial judge dismissed her claim. Court of Appeal concluded trial judge erred and ordered a new trial. Appeal dismissed. Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Martin and Kasirer JJ.
[5] We agree with the Court of Appeal that the trial judge erred on all three conclusions. On duty of care, the relevant City decision was not a core policy decision immune from negligence liability. The City therefore owed Ms. Marchi a duty of care. On standard of care and causation, the trial judge’s analysis was tainted by legal errors. As key factual findings are required, this Court is not well placed to determine the standard of care and causation issues. We would therefore dismiss the appeal and order a new trial in accordance with these reasons.
6362222 Canada Inc. v. Prelco Inc.,2021 SCC 39: Issue over doctrine of breach of fundamental obligation in a contract: Is a non-liability clause in a contract valid in respect of a breach of fundamental obligation in Quebec civil law? Wagner C.J. and Kasirer J. (Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe and Martin JJ. concurring).
[4] Although the Court of Appeal was right to refer to public order and absence of a cause in support of its analysis of the validity of the clause at issue, we nonetheless conclude that the appeal should be allowed. Respectfully stated, neither of the legal bases for the doctrine suffices to negate the non‑liability clause to which the parties freely consented in the case at bar, as neither public order nor the non‑existence of the obligation can be successfully argued in this appeal.
Lall v. Manitoba Public Insurance Corporation et al,2021 MBCA 89: Appellant seeks leave to appeal decision of AICAC declining to extend 90 day time limit for filing appeal. Decision of internal reviewing officer was issued in May 2016. Notice of appeal filed in April 2020. Explanation of delay included difficulty navigating the process. After reviewing her medical file, appellant realized the reviewing officer was missing a relevant document. Lemaistre, J.A. concluded appellant has not demonstrated an arguable case requiring a more thorough examination; appeal dismissed.
Sagkeeng v. Government of Manitoba et al., 2021 MBCA 88: Issues related to a government’s duty to consult and accommodate in relation to Aboriginal and treaty rights under s.35 of the Constitution Act, 1982. Appellant Sagkeeng is appealing dismissal of its application for judicial review of the decision to grant a license authorizing Manitoba Hydro to construct a transmission line crossing Treaty 1 land. Application judge dismissed on the basis that there was an adequate alternative remedy. Discussion and analysis of the role of an appeal to the Lieutenant Governor in Council as a remedy. Appeal dismissed.
Royal Bank of Canada v. Pauls, 2021 MBCA 86: Appeal by defendant of summary judgment re outstanding principal and interest owed to the plaintiff under a line of credit and credit card. Defendant entered into contracts with the plaintiff but disputed changes to interest rates based on not receiving sufficient notice. Motion judge agreed, and granted summary judgment to the plaintiff for the amounts claimed less the increased interest charged during the period of insufficient notice. Appeal dismissed.
Rutherford v. Wiens,2021 MBCA 84: Appeal of 2020 MBQB 35 re medical malpractice. Should the trial judge have determined the cause in fact of the injury to the plaintiff before deciding if there had been a breach of the standard of care? Issue of whether the rarity of a resulting injury factors in to a finding of negligence. Discussion of the elements of a negligence claim under the “traditional approach” (para 25) and exceptions to it (e.g. Armstrong v. Royal Victoria Hospital). Burnett and leMaistre, J.J.A. dismiss the appeal, Monnin, J.A. in dissent.
Green v. Bell et al,2021 MBCA 81: Chambers motion seeking leave to appeal a decision of summary judgment granted to defendants dismissing plaintiff’s statement of claim. Plaintiff was prohibited from continuing proceedings unless he obtained leave from a justice of the Court of Appeal. Motion denied.
Gateway Bible Baptist Church et al. v. Manitoba et al.,2021 MBQB 219: Challenge to constitutionality of Emergency Public Health Orders restricting public gatherings, gatherings in private residences and temporary closure of places of worship. Applicants contend these infringe ss. 2(a), 2(b), 2(c), 7 and 15 of the Charter. See paragraph 24 and for description of determinations and paragraph 361 for conclusions. Application dismissed.
Gateway Bible Baptist Church et al. v. Manitoba et al.,2021 MBQB 218: Challenge to constitutionality of Emergency Public Health Orders made addressing the public health threat of COVID-19. This application seeks a declaration that ss. 13 and 67 of the PHA violate an unwritten constitutional principle that only the legislative assembly can make laws of general application. Joyal, C.J.Q.B. determines that the statutory delegation is constitutional. Applicants challenge is dismissed.
Evanson v. Fort La Bosse School et al.,2021 MBQB 216 : Action in negligence re injury to plaintiff. Issue is visibility through door commonly used by students and teachers. Door must be unlocked with a key from the outside, but can be opened by pushing a crash bar from the inside. Liability is placed only on school division. Damages of just under $80,000 awarded.
Business Development Bank of Canada v. 5809836 Manitoba Ltd. et al.,2021 MBQB 211: Motion for summary judgment over guaranteed repayment of a loan. Defendant claims that plaintiff failed to follow its own lending procedures. Perlmutter, A.C.J.Q.B. finds that under the terms of the agreement, plaintiff has discretion to advance funds. In this case, exceptional circumstances that can give rise to a duty by a lender do not exist (para 13). Motion granted.
Loeppky et al. v. Taylor McCaffrey LLP et al.,2021 MBQB 208 : Issue of duty of care of lawyer in a business transaction. Plaintiff received independent legal advice in transaction involving purchase and sale of shares with insufficient security. Conflict over whether plaintiff was advised of the possibility of loss. All claims dismissed.
McIvor v. Dakota Tipi First Nation,2021 MBQB 206: Motion for summary judgment in an action for breach of contract and damages. Parties had an agreement to share a rebate for the sale of tobacco on Dakota Tipi First Nation. They entered into a new agreement which expressly provided that it is subject to approval by a band council resolution which was never enacted. Defendant stopped paying the plantiff his share. Toews, J. finds it is not an appropriate case for summary judgment. Parties are ordered to amend their pleadings prior to all issues being referred to trial.
Bonnefield Canadian Farmland Evergreen LP v. Fat Cat Farms Ltd.,2021 MBQB 202: Action for unpaid rent and damages. Dispute is over amount plaintiff is claiming to rectify the condition of the property so it could be leased again. Defendant counterclaims that plaintiff breached its obligations under the lease. McCawley, J. found for the plaintiff.
In the first known Canadian ruling on a defence motion for legal costs against non-party lenders who helped fund a plaintiff’s case, an Ontario judge has refused to order four litigation loan companies to pay to the defendants in a personal injury class action a $3.5-million costs award made against the foreign plaintiff who has no assets in Canada.
Constitutional Law
Toronto (City) v. Ontario (Attorney General),2021 SCC 34: Appeal over the exercise of provincial legislative authority over municipalities: does the constitution restrain a provincial legislature from changing the way municipal councils are elected. Events arose from the Ontario government’s decision to reduce the number of wards in the city of Toronto in the middle of an election campaign. Wagner C.J. and Brown J. (Moldaver, Côté and Rowe JJ. concurring); Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring) in dissent.
[4] None of these arguments have merit, and we would dismiss the City’s appeal. In our view, the Province acted constitutionally. As to the s. 2(b) claim, the City seeks access to a statutory platform which must be considered under the framework stated in Baier. The change to the ward structure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure in the 69 days between the Act coming into force and the election day. There was no substantial interference with the claimants’ freedom of expression and thus no limitation of s. 2(b).
Criminal Law
R. v. Khill, 2021 SCC 37: Accused was found not guilty in his trial for second degree murder. Court of Appeal overturned his acquittal and ordered a new trial. Omission of accused’s “role in the incident” as a discrete factor in jury charge was a material error. Appeal dismissed. Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ; Moldaver, Brown and Rowe JJ, concurring; Côté J. in dissent.
[5] In the present case, this jury was not instructed to consider the effect of Mr. Khill’s role in this incident on the reasonableness of his response and I am satisfied this was an error of law that had a material bearing on the jury’s verdict.
R. v. J.G.C.,2021 MBQB 221: Accused is charged with several accounts under the Criminal Code, including sexual interference, common assault, and uttering a death threat. Complainants are his former common law partner and her children. Credibility of testimony is crucial. Accused is convicted of some charges and acquitted on others.
R. v. Williams,2021 MBQB 205: Accused is charged with second degree murder. Sole issue to decide is whether the Crown has proven beyond a reasonable doubt that the accused had the requisite intention for murder. Accused testified and called expert evidence. If accused’s evidence is accepted, then judge must acquit of second degree murder and convict for manslaughter. Evidence must be assessed as a whole and not piecemeal. McCarthy, J. finds that accused was likely suffering from methamphetamine-induced psychosis and lacked the necessary mens rea for murder. He is found guilty of manslaughter.
R. v. Moar,2021 MBQB 203: Sentencing decision re conviction for second degree murder. Criminal Code calls for a mandatory life sentence. Issue is what period of parole ineligibility should be imposed. Crown asks for 17 years, defence requests 10. Defence notes Gladue factors to take into account, as well as cognitive deficits and lack of impulse control. Grammond J. finds that nature of offence as well as accused’s personal circumstances warrant increased parole ineligibility. She sets it at 15 years.
R. v. Kehler,2021 MBQB 198: Trial of driver charged with impaired driving and failing to stop at the scene of an accident. Agreed fact that even a sober driver could not have avoided the accident. Analysis of presumption of intent where a driver fails to offer assistance by failing to stop at the scene. Crown must show proof of intent to escape civil or criminal responsibility. Accused found guilty of failure to stop at the scene of an accident, but not guilty of impaired driving.
R. v. Favell,2021 MBPC 53: Charge of sexual assault and voyeurism with respect to two separate complainants. Motion by accused to sever the counts with respect to each complainant. Crown opposes. Test for determining if severance is required in the interest of justice is articulated in R. v. Last, 2009 SCC 45. Motion granted.
R. v. Perry,2021 MBPC 52: Impaired driving charge. Accused was asleep across the back seat of a parked motor vehicle with the engine running. Judge found accused’s ability to operate a motor vehicle was impaired by alcohol, and her blood alcohol level exceeded the legal limit, but that she did not have “care or control” of the parked motor vehicle when she was observed by police. Accused acquitted.
R. v. Krywonizka,2021 MBPC 49: Offender pleaded guilty to six counts of firearms-related offences including the possession of prohibited firearms and the unlawful importing of firearms-related paraphernalia. Crown seeks a global disposition of six years imprisonment; defence concedes that a prison term is warranted but asks that it be of a length that it could be served conditionally in the community. Canvas of previous decisions regarding the sentencing objectives of firearms offences. Conditional sentence appropriate.
R. v. Harper,2021 MBPC 47: Sentencing decision for conviction of residential break and enter, assault and possession of a weapon (bear spray). Gladue principles involved. Discussion of purpose of sentencing and effect on Indigenous people, as well as proportionality. Crown seeks five years in a penitentiary; defence seeks three years plus probation. Both counsel agree custodial sentence should be reduced by time accused has been in custody on remand. Devine, P.J. sentences him to a three year custodial sentence followed by a period of probation.
R. v. Kipling,2021 MBPC 46: Sentencing decision for conviction after trial of charge of aggravated assault. Accused struck a teenager with a hammer to the back of his head with such force that the claw of the hammer was embedded in his skull. Many aggravating factors, few mitigating factors. Accused is sentenced to a global sentence of 10 years, nine months.
M.R.G.R. v. Kinosao Sipi Minisowin Agency,2021 MBQB 195: Application opposing entry on Manitoba Child Abuse Registry. Agency received report of possible sexual abuse which was investigated, and the applicant was arrest and charged with sexual interference. Some charges were stayed and he was acquitted of another. The Agency’s Child Abuse Committee decided to proceed to have the applicant’s name entered on the Registry. Petersen, J. found on a balance of probabilities that the applicant accused the child. Application dismissed.
Northern Regional Health Authority v. Horrocks,2021 SCC 42: Whether the exclusive jurisdiction of a labour arbitrator appointed under a collective agreement extends to adjudicating human rights disputes arising from a collective agreement. Employee filed a discrimination complaint; employer contested adjudicator’s jurisdiction. On judicial review, reviewing judge found error in essential character of dispute. CA allowed appeal. Wagner C.J. and Abella, Côté, Brown, Rowe and Kasirer JJ; Karakatsanis, J. in dissent.
[5] For the reasons that follow, I find myself in respectful disagreement with the adjudicator and the Court of Appeal. Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed.
Manitoba Federation of Labour et al v. The Government of Manitoba, 2021 MBCA 85: Question of constitutionality of legislation to prevent collective bargaining on wages for a limited period of time (re The Public Services Sustainability Act). Trial judge said unconstitutional; appeal court disagreed. Review of the analytical framework of s.2(d) of The Charter “as it relates to the right to associate in order to collectively pursue workplace goals” (para. 21). Appeal allowed.
Wills, Trusts & Estates
Dickson v. The Humane Society of Canada,2021 MBQB 200: Motion by executor for advice and direction of the court in distributing residue of estate. One of the charitable organizations gifted in the will lost its charitable status. Issue is whether that beneficiary existed at the time of the Testatrix’s death or if its share should be divided among the other residual beneficiaries. Analysis involves consideration of the subjective intent of the Testatrix. McCawley, J. finds that the Humane Society is no longer a beneficiary.
A proclamation has been received from Her Excellency the Governor General that summons Parliament to meet for the dispatch of business at 1:00 p.m. ET. on Monday, November 22, 2021.
The election of the Speaker will be the first order of business when the House of Commons meets.
In this 60 minute webinar, our speakers will focus on the key drivers and trends in legal project management.
In the webinar, our speakers will consider: – Best practices for LPM to better manage client portfolios and matters. – Examples of practice areas where LPM is being applied successfully (i.e. complex litigation, transactions). – How does having an LPM function add value to clients and help law firms gain competitive advantage?
Professors Ruby Dhand and David Ireland, two of the authors of ‘Law and Disability in Canada: Cases and Materials’, available now on the LexisNexis Canada Bookstore, will be presenting a live interactive webinar discussing selected topics from their book including access to justice for people with mental health disabilities and addiction, and disability in the criminal justice system.
DATE: Tuesday, October 26, 2021 Time: 12:00 Noon – 1:30pm Location: Zoom Video Conference TOPIC: A general overview of various insolvency and restructuring options for small and medium sized businesses SPEAKERS: Rick Schwartz, Partner, Tapper Cuddy LLP Ross McFadyen, Partner, Thompson Dorfman Sweatman LLP John Fritz, trustee, Deloitte
Court Notices & Practice Directions
All COVID-19 Notices and Practice Directions are available here.
New in the 2022 edition: The 2022 Annotated Tremeear’s Criminal Code features all the latest legislative amendments, including those introduced by the following:
An Act to amend the Criminal Code (medical assistance in dying), S.C. 2021, c. 2 (former Bill C-7)
The Canada – United States – Mexico Agreement Implementation Act, S.C. 2020, c. 1 (former Bill C-4)
Canada Regulation 2021-44 – amending the Controlled Drugs and Substances Act
Martin’s Annual Criminal Code, 2022 Edition
Whats New in this edition:
Ahmad v. R., 2020 SCC 11 – The Supreme Court of Canada held that, where police call a number suspected to be connected to a crime, they cannot offer an opportunity to commit an offence to the person who answers the call without first having formed reasonable suspicion that that person is engaged in criminal activity.
Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 – According to the Supreme Court of Canada, s. 12 of the Charter does not protect corporations from cruel and unusual treatment or punishment.
R. v. R.V., 2021 SCC 10 – The Crown may seek to reconcile seemingly inconsistent verdicts, such as a conviction for sexual interference coupled with an acquittal for sexual assault charges involving the same event, by establishing a legal error in the jury instructions that had material bearing on the acquittal and not on the conviction, and by showing that the jury did not indeed find the accused both guilty and not guilty of the same conduct.
T.J.M. v. R., 2021 SCC 6 – The Supreme Court of Canada held a superior court justice to have jurisdiction to hear and decide an application for judicial interim release brough by a young person in Youth Criminal Justice Act proceedings – such jurisdiction is held concurrently with the judges of the designated youth court of the province.
Zora v. R., 2020 SCC 14 – According to the Supreme Court of Canada, the Crown must prove that the accused had breached a condition of an undertaking, recognizance or order knowingly or recklessly – this offence has a subjective mens rea.
New Online Titles
On vLex
National Security Law — 2nd ed. by Craig Forcese and Leah West
“National Security Law, 2e, is about the law governing the Canadian state’s response to serious crises — that is, events that jeopardize its national security. The book approaches national security law as a system, organizing its discussion of law around five themes: structure (the mandate and roles of national security agencies); threats (aggression, terrorism, interference, proliferation, and emergencies); information (domestic and international intelligence collection, sharing, and information secrecy); response (including security screening and assessment, aviation “no fly” listings, passport revocation, immigration detention and removals, peace bonds, preventive detention, threat reduction, defensive and offensive cyber, criminal prosecutions, and use of force); and accountability (national security review).
Given the evolution of Canadian law in these areas, this second edition is a comprehensive rewrite of the first edition, first published in 2007.
Readers may be interested in this primer course on national security law that the authors have created in support of the book.”
Book Reviews
Review taken from the Canadian Law Library Review Volume 46, No. 2.
Managing Privacy in a Connected World. By Éloïse Gratton & Elisa Hendry. Toronto: LexisNexis Canada, 2020. 488p. Includes bibliographic references and index. ISBN 9780433503651 (softcover) $190.00.
Reviewed by Stef Alexandru
“Managing Privacy in a Connected World expertly ties together privacy and emerging practice areas with technologies that are shaping our environment. In recent years, privacy law has developed and extended into new and exciting areas like artificial intelligence, blockchain, the Internet of Things, and smart and connected devices. Although this book has a wide scope in considering a variety of existing and developing legal issues interrelated with privacy, it masterfully captures the essence of each issue.”
Substantive Law
Administrative Law
Cann v. Fort Garry/River Heights (Director),2021 MBCA 75: Appeal of an order of the Social Services Appeal Board, where the appellant’s benefits were clawed back after he received a payment under the CERB program. Issue is whether the payment should be considered “earned income” or a “liquid asset”. Receivers of income assistance can receive up to $4,000 in the form of liquid assets. Appeal allowed.
Haile v. The Workers Compensation Board of Manitoba et al.,2021 MBQB 192: Application for judicial review of decision denying applicant’s claim for benefits beyond January 11, 2016. Applicant suffered a workplace injury on January 6, 2016 and returned to work January 11. Appeal Commission determined she had materially recovered by the time she returned to work. Standard of review is reasonable; issue is whether the Appeal Commission’s decision that the applicant’s difficulties were not the result of her workplace injury was reasonable. Reminder that the court’s role is to review the Appeal Commission’s reasons not to decide the issue itself. Application dismissed.
Paul Daly. The Shaky Foundations of the Supreme Court of Canada’s Public/Private Divide: Chartier v. Métis Nation, Saskatchewan – 2021 MBQB 142. Administrative Law Matters, published September 8, 2021, viewed September 9, 2021.
“In a series of recent decisions, the Supreme Court of Canada has erected a divide between public and private law. First, judicial review of private organizations was restricted in Wall … , a restriction subsequently extended to judicial enforcement of private organizations’ constitutive documents in Aga …”
Civil Litigation
Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33: Issue of whether the court retains jurisdiction to reconsider publication ban orders after merits of criminal proceedings decided. A publication ban had been placed on an affidavit filed in a criminal matter before the court of appeal pending a decision as to its admissibility as new evidence. CA dismissed the motion for new evidence but ordered that the publication ban remain in effect indefinitely. CBC brought a motion to set aside the publication ban; CA declined to hear the motion citing functus officio.
Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.: The Court of Appeal had jurisdiction to consider the CBC’s motion to set aside the publication ban. While the court could not rehear the appeal on the merits and while the doctrine of functus officio precluded it from reconsidering the substance of the appeal, the court retained the authority to supervise access to the record of its own proceeding, which allowed it to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed.
Per Abella J. (dissenting): The appeals should be dismissed. The CBC is not entitled to reconsideration of the publication ban as a result of its undue and unjustified delay.
Wolfe et al v. Taylor et al,2021 MBCA 72 : Chambers motion re appeal of dismissal of motion for leave to commence a claim in negligence and breach of fiduciary duty. Liquidator seeks an order for security for costs on the appeal and an order requiring the appellants to pay the costs awarded against them before prosecuting the appeal. Parties have been involved in proceedings since 2017, over sale of two parcels of land to another party. Motion for security order granted; motion for an order to pay the awarded costs dismissed.
Shinoff v. The Province of Manitoba et al,2021 MBCA 73: Appeal of dismissal of statement of claim by summary judgement. Plaintiff alleged defendants were vicariously liable for the care she received in foster care between 1966 and 1969. Court of Appeal agreed with motion judge in applying K.L.B. v. British Columbia,2003 SCC 51 (paras 18-17), and following the legislation in place at the time. Court left to another day whether the claims of negligence were statute-barred under The Limitation of Actions Act.
Owen v. Little Grand Rapids First Nation et al,2021 MBQB 201: Motion by plaintiff to strike statements of defence without leave to amend on the basis that neither discloses a reasonable defence. Issue involves dismissal of councillor by band when band didn’t have the authority to dismiss him. Master Goldenberg finds some parts of the defence must be struck and allows defendants to amend statement.
52000 Manitoba Ltd. and 4472048 Manitoba Ltd. v. 5806497 Manitoba Ltd. et al,2021 MBQB 194: Motions by plaintiffs for summary judgment re statement of claim against defendant; motion by defendant for summary judgment dismissing the actions; motion for order by plaintiffs striking out a portion of an affidavit. McKelvey, J. dismissed all motions.
[43] I am not satisfied that a fair and just adjudication is possible on a summary basis. There are genuine issues requiring a trial which have not been resolved through these proceedings.
Widmer v. Scott, 2021 MBQB 193: Action by lawyer for payment of legal fees. Defendants do not dispute that tasks on the bills were done, they simply refused to pay. Action succeeds for plaintiff under summary judgment, although request for charging order against several properties of the defendants was denied.
Constitutional Law
Richard D. Lindgren. Annotation to: References re Greenhouse Gas Pollution Pricing Act, (2021) 39 C.E.L.R. (4th) 454. (WLNC – request a copy).
The majority opinion of the Court concludes that the “national concern” branch of Parliament’s “peace, order and good government” (POGG) power under s. 91 of the Constitution Act, 18672 provides the constitutional basis of the GGPPA. (2021 SCC 11).
Criminal Law
R. v. K.G.P.,2021 MBCA 79: Appeal by accused of conviction for sexual assault. Victim has significant mental health issues, including a dissociative identity disorder. Accused was aware of her condition. Trial judge rejected accused’s defence of an honest but mistaken belief in consent. Court of Appeal decides there is no basis for appellate intervention. Appeal dismissed.
R. v. Burg and Khan,2021 MBCA 77: Whether the Crown’s preferring a direct indictment violated the rights of the accused under s.7 or 11(b) of the Charter. Accused basing their position on Jordan. They argue that the direct indictment was for the sole purpose of moving the case from Provincial Court to the Court of Queen’s Bench, thus giving the Crown a longer period of time to prepare for the trial. Appeals dismissed.
R. v. Lariviere,2021 MBCA 76: Appeal of conviction for sexual assault, making child pornography and extortion. Appeal turns on standard of appellate review in relation to findings of credibility. Only ground of appeal of sufficient merit is submission that the trial judge improperly drew an adverse inference because the accused failed to pursue or call corroborative evidence. Appeal dismissed.
R. v. Onakpoya aka Kerrhs, 2021 MBCA 74: Appeal of motion by accused to quash a direct indictment on a charge of aggravated assault and have proceedings dismissed or remitted back to Provincial Court for a preliminary inquiry. Crown applied to quash the notice of appeal on the basis that this Court has no jurisdiction to hear the appeal because it is from an interlocutory decision. Court agrees with Crown; appeal dismissed.
R. v. R.W., 2021 MBCA 71: Accused seeks leave to appeal and, if granted, appeals sentence imposed following conviction for two counts of sexual interference. Accused asserts trial judge erred in the application of the principle of totality. Standard of review is deferential. Court followed the test set out in R. v. Draper, 2010 MBCA 35 (para 30). Court found that trial judge erred in the application of the principle of totality, but not so much that the sentence was unfit. Leave granted, but appeal dismissed.
R. v. Devos,2021 MBQB 189: Trial for charges of impaired driving causing death, dangerous driving causing death, and driving over .08. Accused had a graduated licence prohibiting him from driving with any blood alcohol. He drove his truck around a field, it fishtailed and rolled over. Driver was wearing a seatbelt, passenger was not. Passenger died. Discussion of “bolus drinking”. Accused found guilty of impaired driving casuing death, dangerous driving causing death, and not guilty of driving over .08.
R. v. D.A.B.,2021 MBQB 185: Trial of sexual assault causing bodily harm. Accused has a different version of events, and says that the complainant consented. Issues turn on credibility of the parties. Greenberg, J. use the framework of W.(D.) to analyze the evidence. Accused found not guilty.
R. v. Oke,2021 MBPC 39: Sentencing decision re use of excessive force by RCMP in arrest of Indigenous man. Accused pled guilty. Issue is appropriate sentence for offender and the offence, an assault against a vulnerable person. Analysis of authorities for sentencing a police officer. Thompson, P.J. sentences the accused to a conditional discharge with supervised probation.
Nicole M. Myers and David Ireland. Unpacking Manitoba Bail Practices: Systemic Discrimination, Conditions of Release and the Potential to Reduce the Remand Population. (2021) 69 C.L.Q. 26 (WLNC – request a copy.)
In Manitoba, 68.9% of the provincial jail population is in pre-trial detention. While Manitoba is not alone in having a pre-trial detention population that exceeds the provincially sentenced population, this is the highest proportion in the country. Using data collected from bail court observations in Manitoba, we examine routine bail practices and the implications of current bail trends.
Paul L. Moreau. “Trouble for Starting Points?”, (2021) 68 C.R. (7th) 129. (WLNC – request a copy.)
In the recent decision of R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada has again grappled with the thorny issue of starting points in sentencing. This has long been a point of friction, particularly with the Alberta Court of Appeal, who has been the leading advocates for this type of appellate guidance since at least 1982.
Family Law
Walshe v. Walshe,2021 MBQB 197: Reference order for an accounting with respect to disputed assets and liabilities. Parties own a construction business. Dispute over value of business at time of separation. Husband’s net worth statement is not accepted and accuracy of statement wife relies on is questionable. Detailed analysis of how the master arrived at the accounting.
L.L.L. and C.A.L. v. L.M.S. and R.J.M.,2021 MBPC 42: Costs decision over a guardianship application. Respondent, who was successful, takes the position he should have his costs. Applicants believe each party should bear their own costs. Provincial Court rules provide that Queen’s Bench Rules (57.01) are applicable in the Provincial Court (Family Division). Citing Gabb v. Gabb, 2001 MBCA 19, Wiebe, C.J. finds costs award to R.J.M.
M.G. v. The Director of Child and Family Services, 2021 MBPC 40: Application by the Agency compelling police to disclose records relating to an investigation of historic allegations against M.G. prior to him reaching adulthood. M.G. opposes, his right to privacy should take priority over Agency’s interest in his records. M.G. has an upcoming child abuse registry hearing. Parties agree that records held under the YCJA are generally not disclosable. Issues (para. 5): What constitutes the record being sought? How should the records be classified? Are the records disclosable based on how they are classified? Rolston, P.J. finds the records are not disclosable.
McLeod Estate v. Cole et al.,2021 MBCA 80 : Chambers motion by plaintiffs for leave to file a 43-page factum. Court of Appeal rules sets a 30 page limit for a factum although Rule 29(3) provides judicial discretion to deal with factums of an excessive length. Plaintiffs’ notice of appeal notes 17 grounds of appeal. Mainella, J.A. outlines the principles to exercising discretion as to whether to grant leave to file a lengthier factum. Motion dismissed.
Legislation
Federal
Results of the Monday, September 20, 2021, general election will remain unofficial until the Chief Electoral Officer has confirmed the name of the member of Parliament elected in each constituency.
The expected date for the return of the election writs is Monday, October 11, 2021.
“Bill 42, the Remote Witnessing and Commissioning Act, which became law in December 2020, amended the six statutes included in the temporary order and enabled alternatives to physical attendance on a permanent rather than temporary basis.
The new regulations establish processes for the use of videoconferencing as an alternative to in-person attendance when witnessing and commissioning certain legal documents.”
Tuesday, September 28, 2021, 12:00 p.m.—1:00 p.m. Irwin Law’s comprehensiveEssentials of Canadian Lawseries is moving from desLibris onto the vLex platform. Learn how to incorporate these texts, vLex and the AI assistant Vincent into your legal research with this free webinar. Eligible for 1 hour of CPD.
Email library@lawsociety.mb.ca to register. You will need to have Zoom installed on your device. Zoom link will be sent the day before the webinar.
September 17, 2021 , 12:00 noon – 1:15 p.m. Video Webinar August 2021 marks the 150th anniversaries of the signing of Treaties No. 1 and 2 in Manitoba. In honour of this important milestone, Dr. Niigaanwewidam (Niigaan) Sinclair will discuss the history of the two treaties, the significance of Section 35 of the ConstitutionAct, 1982 which entrenches treaty rights, and why an understanding of the treaties and the obligations and benefits that flow from them is essential knowledge for all Manitoba lawyers, regardless of your area of practice.
September 20 @ 8:00 am – September 23 @ 12:00 pm This training will provide an overview of the dynamics of domestic violence in the context of separation, divorce, and child custody and access. All are welcome to attend. The training will take place over 4 mornings (8 am – 12 pm Saskatchewan time), Monday, September 20 – Thursday, September 23. The training will be held using Zoom.
National Day for Truth and Reconciliation
In June, the federal government announced Sept. 30 as a new annual statutory day to reflect on the history and ongoing trauma caused by residential schools and to honour those who were lost and the survivors, families and communities who continue to grieve.
Sentencing — 10th ed. by Clayton Ruby This book canvasses the law of sentencing in a way that no other books on criminal law and sentencing are able: it succinctly outlines all of the significant facets of sentencing principles and procedure, and provides the reader with a comprehensive range of sentencing for various offences.
Executive Legislation — 3rd ed. by John Mark Keyes Examines what constitutes executive legislation, considers the constitutional framework for delegating executive legislative authority and the institutional controls on the delegation and exercise of this authority, and considers how executive legislation is made and operates within this context and provides a comparative law perspective ranging not only throughout Canada, but also across comparable Commonwealth jurisdictions.
Canadian Administrative Law — 3rd ed. by Guy Régimbald This third edition provides an updated look at administrative law in Canada, taking the new case law into account while providing readers with a comprehensive guide to the subject. It is a valuable reference for anyone involved in the practice or study of administrative law.
New Online Titles
From Heinonline
HeinOnline has added several new journal titles from Emerald Publishing to the Law Journal Library collection. This includes full text for all past issues of the journals, excluding the 2 most recent years, which are indexed only
International Journal of Law and Management
Journal of Financial Crime
Journal of International Trade Law and Policy
Journal of Property, Planning and Environmental Law
Policing: An International Journal of Police Strategies & Management
Book Review
Review taken from the Canadian Law Library Review Volume 46, No. 2.
The Canadian Law of Obligations: Access to Justice Edited by Hilary Young. Toronto: LexisNexis Canada, 2020. xxx, 255 p. Includes illustrations, bibliographic references, and index. ISBN 9780433505754 (softcover) $130.00. Review by Emily Nickerson
“…a product of the second biennial Canadian Law of Obligations conference held at the University of New Brunswick in 2019. This conference brought together legal scholars who presented and discussed how the Canadian law of obligations should evolve, particularly in light of the need for greater access to justice. …this book serves as a timely addition to the existing body of literature covering contracts, torts, and restitution. The papers in this volume invite readers to challenge the status quo and re-examine current assumptions on how traditional problems relating to contracts, torts, property, unjust enrichment, and civil procedure are addressed.”
Substantive Law
Administrative Law
Histed v. Law Society of Manitoba, 2021 MBCA 70: Appeal of conviction by a discipline panel of the respondent concerning four counts of professional misconduct. Appellant contends that the Panel erred in finding his conduct uncivil and constituted professional misconduct. Standard of review is that set out in Housen v. Nikolaisen. Appeal dismissed.
McHale et al. v. Manitoba (Education and Training),2021 MBQB 190: Reasons comparable to Stone v. Manitoba (Education and Training) below.
Stone v. Manitoba (Education and Training),2021 MBQB 187: Application for judicial review concerning a complaint dismissed by the Manitoba Human Rights Commission. Complaint concerns discrimination by failing to include materials on gender identity and sexual orientation in the kindergarten to grade 12 curriculum. The Commission investigated the complaint and submitted an investigation report, recommending that the complaint be referred to adjudication. The Commission dismissed the complaint. Kroft, J. finds the Commission’s decision is unreasonable due to insufficient reasons and directs them to reconsider the complaint.
Michele Santarsieri Inc. et al. v. Manitoba (Deputy Minister of Finance),2021 MBQB 174: Appeal of decision of the Tax Appeals Commission regarding assessments of payroll tax. Applicant claims bias, questions whether there was adequate evidence to make credibility findings, and appeals whether the test under s. 2(4.1) of HPSEA was properly applied. Substantive analysis of judicial consideration of reasonable apprehension of bias. Standard of review for issue of test application is palpable and overriding error. Grammond, J. affirmed the decision of the TAC.
Civil Litigation
Mirage Consulting Ltd. v. 5573344 Manitoba Ltd. et al.,2021 MBQB 186: Defendants’ motions for summary judgment on the grounds that there is no genuine issue requiring a trial. Issue is over interpretation of a restrictive covenant in a consulting agreement. McCawley, J. concluded that the consulting agreement expired, therefore the restrictive covenant did not come into effect. Motion granted.
Fisher River Cree Nation et al. v. Ochekwi-Sipi First Nation Personal Care Home Inc.,2021 MBQB 181: Application for a remedy under s. 234 of The Corporations Act regarding the repeal of a bylaw and passing of a new bylaw. Applicants must establish they have standing and that the conduct of the directors has been oppressive. Judicial consideration of oppression and whether it applies in this instance. Applicants are successful; remedy is to invalidate the second bylaw, and reinstate the initial one.
Private Trading Group, LLC v. The Government of Manitoba et al,2021 MBQB 180: Motion by defendant Sinclair for an order striking out the amended statement of claim against him. Plaintiff included him in its suit against the government for non-payment of a portion of its contract for the purchase of N95 masks. Plaintiff stated that defendant was acting in his capacity as a public officer as Deputy Minister of Central Services. Standard to have the claim struck is very high. Motion dismissed.
4508841 Manitoba Association Inc. v. Stuart Olson Construction Ltd. et al.,2021 MBQB 179: Application for leave to begin an action pursuant to The Limitation of Actions Act, s. 14(1). The respondents were responsible for constructing a seniors’ housing project in Ste. Anne in 2006. Applicants became aware of all material facts on or about July 21, 2016 and filed an application on June 16, 2017. Respondents opposed application on the basis that the applicant has not proven it has a cause of action with a reasonable chance of success. Application dismissed.
Paterson et al. v. Walker et al.,2021 MBQB 172 : Application for judicial review. Statement of claim was issued in August 2013. Dispute concerns the development of a lot at Falcon Lake; four main issues to be reviewed. Application for review concerns the plaintiffs’ complaints with the defendants’ regulatory decision making. Standard of review is reasonableness as set out in Vavilov. Consideration of The Provincial Parks Act, C.C.S.M. c. P20 and the Parks Activities Regulation, no. 141/96, as well as The Cottager’s Handbook, 3rd ed. Edmond, J. denies plaintiffs’ application to quash the site plan permit; finds the decision to issue a retroactive variance was reasonable; quashes a decision of the province not requiring defendants (Walkers) to comply with a 2018 order; and last order requiring the Walkers to reduce their development footprint by 244 square feet is reasonable. Divided success on the application; costs remain in the cause.
Sarrasin v. Sokal,2021 MBQB 171: Defendant’s motion to strike statement of claim of plaintiff without leave to amend. Plaintiff filed a claim of the following torts: defamation, malicious prosecution, and workplace harassment. Parties worked together at Canada Post and were active union members. Analysis of Queen’s Bench rule 25.06(1) and 25.11(1). Keyser, J. found that the claim must be struck in its entirety.
Wilde et al. v. The Rural Municipality of Taché et al.,2021 MBQB 166: Application seeking leave for an extension of time to bring an action under The Limitations of Actions Act. Issue is over the design and construction of the applicants’ residence. Contract to build home was signed in 2007 and applicants moved in in 2008. Significant defects were not discovered until 2018. Analysis of s.20(2), (3) and (4) of the LAA. McCawley, J. found that the parties should have known all material facts more than 12 months before seeking leave to being their action. Application dismissed.
Erika Chamberlain. Case Annotation: Caplan v. Atas, (2021) 71 C.C.L.T. (4th) 124). (WLNC – request a copy.) “This remarkable case continues the recent trend in Ontario of recognizing new intentional torts: intrusion on seclusion, public disclosure of private embarrassing facts, and publicity placing the plaintiff in a false light. All of these, but especially the last two, respond to the potential for defendants to inflict serious reputational harm and mental distress on plaintiffs by posting false, misleading, intimate, or humiliating matters on the internet.”
Cindy Kou. Barring New Bids from Contractors Who Have Made Claims Against Municipal Owners, (2021) 8 C.L.R. (5th) 170. (WLNC – request a copy.) “May municipal owners exclude bids from contractors who have previously sued the owners? Would it be unconstitutional or contrary to public policy for a municipality to do so?”
Criminal Law
R. v. Hjorleifson,2021 MBCA 69: Accused seeks leave to appeal his conviction for one count of assault and one count of uttering threats. Accused and victim were involved in divorce proceedings. Leave to appeal can only be granted on questions of law. Accused raised several grounds of appeal, but only one, inffective assistance of counsel, was a question of law. Appeal allowed on this ground only.
R. v. Letkeman, 2021 MBCA 68: Appeal by Crown of non-custodial sentence given to an RCMP officer for criminal negligence causing bodily harm. Offence was committed while accused was following a vehicle he suspected was being operated by an impaired driver. Passenger in the vehicle suffered severe and lifelong injuries. Court of Appeal found that the trial judge made errors in principle, leading to the imposition of an unfit sentence (para. 58). New sentence includes a three month period of incarceration (stayed). Burnett, J.A., in dissent, would have sentenced the accused to 36 months incarceration (para. 159).
Anderson (Re),2021 MBPC 38: Inquest under The Fatality Inquiries Act re Kevin Anderson. Death was caused by a train derailment. Mr. Anderson was the conductor. Track collapsed as the train travelled over it due to the wash out of the roadbed surface. Transportation Safety Board report summarized all the facts of the event and made several recommendations. Chief Medical Examiner directed the Chief Judge to call an inquest. Issues are 1) the respective roles of the Inquest Judge and the CME in setting the scope of an inquest; and 2) is the derailment a circumstance in which Mr. Anderson’s death occurred must be further investigated.
R. v. Hooke; Plamandon,2021 MBPC 34: Sentencing decision re conviction for the interprovincial transport of stolen restricted firearms. Several severe aggravating factors applicable to both accused. Mr. Hooke has some mitigating factors while Mr. Plamandon has very few. Sentencing centers on the moral culpability of the offenders.
R. v. Graham,2021 MBPC 33: Motion to have charges for a sexual assault stayed due to delay. Charges were laid 10 years ago and accused was not arrested until 2019 despite the RCMP being aware of his location in 2012 and 2014. Accused caused some delay by fleeing Thompson, but the Crown and RCMP are also responsible for some. Total delay from charge to trial is 10 years and 3 months; net delay is over eight years. Cawley, P.J. stayed the charge.
Michelle I. Bertrand, David Ireland, Richard Jochelson and Kathleen Kerr-Donohue. Dispensing Digital Justice: COVID-19, Courts and the Potentially Diminishing Role of Jury Trials. The Annual Review of Interdisciplinary Justice Research, Vol. 10, 2021.
Family Law
G.R.M. et al. v. The Director of Child and Family Services et al.,2021 MBQB 182: Defendants appeal decision of Master dismissing motion to strike out the plaintiffs’ statement of claim on the basis that it is an abuse of process. Appeal from a decision of a master is a fresh hearing. Issue is over apprehension of a child by the defendant. Appeal dismissed.
Chapman v. Russell et al.,2021 MBQB 173 : Application by grandmother for guardianship under The Child and Family Services Act, s.77, as well as interim child support. Child is now 17 and has lived with grandmother for several years. Father lives in B.C. Grandmother’s motion included a request for financial disclosure. Order by MacPhail, J. that father’s income be imputed at $150,000 and that be used to determine his child support obligation pursuant to the B.C. Table.
Smith v. Smith,2021 MBQB 169: Written reasons of the terms of a Final Order for relief corollary to a divorce that had been previously pronounced. Property issues had been settled. Child custody, support and spousal support to be settled by summary judgment. Analysis of application of current case law to a “parenting order”. Parties reached a settlement on custody issues and relocation via an interim order. Children were apprehended by CFS in Ontario; new order for custody filed by summary judgment. Johnston, J. finds that summary judgment is an appropriate method for a fair and just determination of the matter (para 27).
Wardrop v. Ericsson Canada Inc.,2021 MBQB 183: Motion by defendant seeking an order to stay the action in favour of arbitration. Defendant (employer) argues that the parties had an agreement to arbitrate the issue in dispute and thus the court has no jurisdiction. Plaintiff was terminated, given working notice and 78 weeks severance. Issue is whether Sales Incentive Plan payments should be included in his severance. Discussion of the “competence-competence principle” and significant analysis of when the court has discretion to retain jurisdiction and validity of agreement to arbitrate. Rempel, J. grants employer’s motion for a stay of the action commenced by the plaintiff.
People Corporation v. Mansbridge, 2021 MBQB 170: Motion for injunctive relief. Plaintiff seeks an interim, interlocutory and permanent injunction from defendant using plaintiff’s contacts to solicit business. Analysis of the test for granting an interlocutory injunction in the case of restrictive covenants in an employment contract. Harris, J. finds plaintiff has not established a strong prima facie case, as set out in the test in RJR-MacDonald.
Wills, Trusts & Estates
The Estate of William Alfred Kirkup,2021 MBQB 184: Reference re passing of accounts in case where respondent acted as attorney for deceased prior to his death but there was no power of attorney document. Respondent ordered to account for all money received and disbursed while the deceased was incompetent and incapable of managing his affairs but there are no or very few receipts. Bank statements do not cover the entire period. Sr. Master Clearwater is unable to determine a reasonable opening inventory for the estate or a reasonable closing inventory. Parties agree on some expenses and others are excluded.
C. David Freedman. Conflicts when Acting as Trustee and Lawyer. 40 Est. Tr. & Pensions J. 347. (Request a copy.)
Legislation
Federal
August 15, 2021
Her Excellency the Governor General, at the recommendation of the Prime Minister, issued a proclamation to dissolve the 43rd Parliament. For more information, please consult the section entitled “Dissolution” in Our Procedure.
The general election will be held on Monday, September 20, 2021.
“The law of property is the most commonly encountered area of law because we rely on it every day. Within a legal context, the word property refers to the rights that people have to their things, not to the things themselves. Property law serves as a framework for sharing our things with others, and thus often intrudes on various other areas of law: it intersects with the law of contracts whenever people buy and sell things; the wrongful interference with property may be a tort or a crime; and the power to make laws concerning property involves constitutional law.”
United Nations Law, Politics, and Practice – Alexandre Tavadian
The result of a 300-year-long experiment, the United Nations has preserved its position as an indispensable actor on the world stage. As Kofi Annan famously remarked, “more than ever before in human history, we share a common destiny. We can master it only if we face it together. And that, my friends, is why we have the United Nations.” Since its formation, the international community of states averted a third World War, replaced colonialism with self-determination, reduced poverty and hunger, eradicated many diseases, and established mechanisms for promoting and protecting human rights. Yet, the way the United Nations operates to achieve these objectives is not well known. There has yet to be a comprehensive and accessible text that presents a holistic overview of the United Nations as an institution through a multidisciplinary approach to the study of the UN rather than an exclusively legal or political analysis.
Canadian Class Action Law Review – Volume 16, Issue 2
Introduction. Harvey T Strosberg
Book Review: Defending Class Actions in Canada: A Guide for Defendant. Michael A Crystal and Maria Khan
Flash Boys Class Actions: Civil Fraud, Conspiracy, and the Certifiability of High-Frequency Trading Cases in Canada. Lindsay Frame
An Overview of Class Actions and COVID-19 in Ontario’s Long-Term Care Facilities. Jordan Assaraf
The Unworkability of the Workable Methodology Standard. Kate Boyle and Nicholas Hooper
United We Stand, Divided We Fall: Class Actions and Corporate Hegemony. Rebecca Meharchand
The Limits of Case Management: A Review and Principled Approach to the Court’s General Management Powers. Paul-Erik Veel, Adil Abdulla, and Angela Hou
Determining a Fair Price for Carriage?: Applying a “Fee-Driven” Factor and Reverse Auctions to Adjudicating Carriage Motions in Ontario. Timothy Law
Book Reviews
Reviews taken from the Canadian Law Library Review Volume 46, no. 1
New Technologies for Human Rights Law and Practice. Edited by Molly K. Land & Jay D. Aronson. Cambridge: Cambridge University Press, 2018. xiv, 318 p. Includes table of contents, bibliographical references, and index. ISBN 978-1-107-17963-9 (hardcover) $126.95; ISBN 978-1-316-63141-6 (softcover) $40.95. Open access (PDF) via doi.org/10.1017/9781316838952 Reviewed by Katarina Daniels
New Technologies for Human Rights Law and Practice is a brilliantly edited collection of essays that looks at both promising and problematic uses of technology in relation to human rights. It pursues the overarching goal of “articulat[ing] a human rights-based approach to understanding the impact of technological change on human rights” (p. 2). The diverse group of contributing authors includes law professors, practitioners, researchers, and technology specialists. These authors regularly refer to and rely on human rights law and accountability strategies in practice, as well as adopt ideas and concepts from cyberlaw and science and technology studies within the book.
Substantive Law
Administrative Law
Jordan v. Director, Winnipeg West,2021 MBCA 43: Applicant seeks leave to appeal the decision of the Social Services Appeal Board confirming that she had been overpaid assistance because she had been living in an undisclosed common-law relationship. Appeal can take place only on a question of jurisdiction or a point of law. Application dismissed.
Michelle A. Alton, Suman Furmah, Kayla Seyler. Adapting the Role of Tribunal Counsel to Promote Access to Justice: How Far Can We Go? 34 Can. J. Admin. L & Prac. 27. (WLNC – request a copy.)
Bankruptcy Law
Royal Bank of Canada v. 6382330 Manitoba Ltd. et al., 2021 MBQB 72: Motion seeking leave to commence an action against the Receiver as a result of gross negligence. Test for leave is based on a “strong prima facie case”. Leave denied.
Civil Litigation
Ontario (Attorney General) v. Clark,2021 SCC 18: Issue of whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors. Three officers with the Toronto Police Service sued the Ontario Attorney General for negligence and misfeasance in public office. Officers were accused of beating an accused during arrest and prosecutors stayed the charges. The stay application was widely reported in the media. Later investigation found the accusations were not substantiated; officers claimed reputational harm.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution, and misfeasance cannot be used to get around this reality.
PerCôté J. (dissenting): The appeal should be dismissed. Prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers who suffered harm as a result of deliberate and unlawful conduct by prosecutors in connection with serious criminal allegations of police misconduct.
Zaki v. University of Manitoba,2021 MBCA 46: Appeal from a decision of a motion judge refusing a mandatory interlocutory injunction. Motion judge concluded applicant had not met the requirement of showing a strong likelihood of success. Appeal court agreed; appeal dismissed.
Business Development Bank of Canada v. Cohen,2021 MBCA 41: Defendant appeals an order for summary judgment in favour of the plaintiff for the amount owing under two personal guarantees. Defendant alleged the plaintiff sold certain real property below fair market value, resulting in the sale being commercially unreasonable. Each party provided an expert report supporting their position. Court of Appeal found that motion judge did not provide an explanation for his determinations, such that summary judgment was not appropriate and allowed the appeal.
Lockport Taxi Ltd. v. The Rural Municipality of East St Paul et al.,2021 MBCA 40: Appeal of a decision of an application judge on the interpretation of The Local Vehicles For Hire Act. Key issue is one of statutory interpretation, therefore standard of review is correctness. The Act delegates discretionary powers to municipalities to make by-laws regulating the operation of vehicles for hire in their jurisdiction. The four respondent municipalities have not yet passed by-laws. Applicant had requested an order of mandamus requiring the municipalities to draft by-laws to regulate the industry, which was denied. Court of Appeal agreed with the application judge’s reasons; appeal dismissed.
Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government,2021 MBCA 36: Appeal of an order of mandamus; reviewing judge granted application of MGEU to appoint an arbitration board. Issue on appeal is whether the Minister’s refusal to order the appointment of an arbitration board was reasonable. Extensive analysis of Vavilov and the standard of review by Steel, J.A. Examination and interpretation of s. 48 of The Civil Service Act. The mandamus order is confirmed, requiring the Minister to appoint an arbitration board.
Zaki v. University of Manitoba,2021 MBCA 35: Motion by respondent to adjourn applicant’s appeal in a student disciplinary decision. Chambers judge determined she did not have jurisdiction to adjourn the appeal.
Weremy v. The Government of Manitoba,2021 MBCA 34: Motion for leave to appeal by defendant (Manitoba) of an order certifying a class proceeding. Issue is whether the certification judge relied on inadmissible hearsay evidence to define the class period. Action is over systemic negligence and breach of fiduciary duty for operation of the Manitoba Developmental Centre in Portage la Prairie. Significant analysis of the evidentiary standard on a motion for certification. Motion dismissed.
Winnipeg (City) v. Caspian Projects Inc. et al.,2021 MBCA 33: Appeal of order for the production of documents in the possession of a non-party (the RCMP). Discussion of Queen’s Bench Rule 30.10(1) for factors regarding production, and its intersection with s. 490(15) of the Criminal Code. Decision is subject to review on the standard of deference. Appeal dismissed.
Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 77: Application to seek leave to appeal a decision of an arbitrator. Issue of what constitutes the record to be considered while seeking leave. Parties intentionally did not create an official record of the proceedings to keep the arbitration private. Analysis of whether Vavilov changes the standard of review on appeals taken from arbitration decisions. Discussion of “homemade transcript” and proportionality. Joyal, C.J.Q.B. determined the documents that could be included in the evidentiary record so that the appeal could be scheduled.
Tataskweyak Cree Nation v. Intact Insurance Company,2021 MBQB 66: Appeal from Master’s decision dismissing action for long delay. Events surround construction of a sewage lagoon. Company that was awarded the contract withdrew in spring 2012. Intact is the surety under a performance bond on the contract. All parties agreed to consolidate the two actions and signed a consent order but counsel for one of the parties forgot to file it. Appeal allowed.
Erika Chamberlain. Case Annotation: Caplan v. Atas. (2021) 77 C.C.L.T. (4th) 124. (WLNC – request a copy.)
… Caplan v. Atasadds the new tort of “harassment in internet communications” to this milieu. It responded, in this case, to a prolonged and outrageous campaign of character assassination against a range of persons with whom the defendant had perceived grievances, as well as their loved ones, lawyers, and business associates.
The case illustrates “the perils associated with a landowner selling interests in the land to more than one party in more than one transaction,” Court of Appeal supernumerary Justice Eileen Gillese wrote for the majority, including Justice Mary Lou Benotto.
“The appeals raise many legal issues, one of which is the little-known equitable doctrine of estoppel by convention,” she added. “In Canada, this doctrine finds its roots in Ryan v. Moore 2005 SCC 38. As you will see, estoppel by convention plays a critical role in the resolution of these appeals.”
The B.C. Court of Appeal has issued a ruling in a case involving a dispute over the cleanup of a former gas station that lawyers are saying helps to clear up some of the confusion in the law about how legal costs are apportioned in environmental remediation cases, but could lead to more issues down the road.
Criminal Law
R. v. Desautel,2021 SCC 17: Issue of whether Aboriginal people located outside of Canada can assert Aboriginal rights under the Canadian Constitution. Respondent is an American citizen who was charged with hunting without a license in British Columbia. His defence was based on having an Aboriginal right to hunt protected by s. 35(1) of the Constitution Act, 1982.
Per Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1) of the Constitution Act, 1982. On a purposive interpretation of s. 35(1), the expression “aboriginal peoples of Canada” means the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include Aboriginal groups that are now outside Canada.
PerCôté J. (dissenting): The appeal should be allowed and the constitutional question answered in the negative. The constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982, does not extend to an Aboriginal group located outside of Canada. And even if it did, D cannot establish that he was exercising an Aboriginal right to hunt in the Sinixt traditional territory in British Columbia, as the modern group’s claim lacks continuity with the pre‑contact group’s practices.
Per Moldaver J. (dissenting): Even assuming that the majority is correct in holding that, as a member of an Aboriginal collective located outside Canada, D is entitled to claim the constitutional protection provided by s. 35(1) of the Constitution Act, 1982, there is agreement with Côté J. that in this case, D has not met the onus of establishing the continuity element of his claim, under the test for Aboriginal rights pursuant to Van der Peet.
R. v. Smith,2021 SCC 16: Appeal from 2020 BCCA 271. Issue of whether the trial judge’s failure to deal properly with the prior inconsistent statements does not mean she failed to consider or give effect to them.
Brown J. — We would allow the appeal, set aside the order for a new trial and restore the respondent’s conviction for sexual assault, substantially for the reasons of Dickson J.A. … … While testimonial inconsistencies may be relevant when assessing a witness’s credibility and reliability, only some are of such significance that failing to consider them will meet this standard.
R. v. Ramos,2021 SCC 15: Appeal from 2020 MBCA 111 over whether the trial judge gave adequate reasons in his assessment of the credibility of the witnesses.
The Chief Justice — We are all of the view, for the reasons of Justice Mainella of the Court of Appeal of Manitoba, to dismiss the appeal.
R. v. Antczak, 2021 MBCA 39: Crown seeks leave to appeal sentence for possession of fentanyl for the purpose of trafficking. Crown claims the sentence is demonstrably unfit. Examination of the principles of sentencing, especially the role of rehabilitation. Leave to appeal allowed, appeal dismissed.
R. v. Telfer,2021 MBCA 38: Appeal of conviction for first degree murder under s.8 of the Charter (unreasonable search and seizure). Did the accused have a reasonable expectation of privacy in information provide to WPS by Budget Rent-a-Car? Appeal dismissed.
R. v. Thorassie,2021 MBCA 37: Appeal of conviction for assault and other charges, and application for leave to appeal sentence. Accused argued that the trial judge misapprehended the evidence and erred in his application of the law of self-defence. Trial judge reviewed video evidence and stills from the video to reach his conclusions. Conviction appeal dismissed. Leave granted to appeal the sentence and sentence appeal dismissed.
R. v. St. Paul, 2021 MBCA 31: Appeal of sentence; whether the judge conducted a meaningful Gladue analysis. Accused was convicted of second degree murder and sentenced to life imprisonment. Accused appeals imposition of a 15-year period of parole ineligibility as being overly harsh. In determining sentence, trial judge found that the killing was “close to first degree murder”. Court found that both mitigating and aggravating factors were properly considered; appeal dismissed.
R. v. Leslie,2021 MBCA 29: Accused appeals his conviction for one count of sexual assault; Crown applies for leave to appeal sentence. One ground of appeal for accused is ineffective assistance of counsel. Cameron, J.A. admits fresh evidence in support of this ground of appeal and allows the appeal. New trial ordered. Crown’s application for leave to appeal sentence is moot. Discussion of the rule in Browne v. Dunn, [1894] 6 R 67.
R. v. Pohl,2021 MBQB 74: Motion by accused for an order of disclosure of a mirrored image of a seized hard drive. Hard drive contains primary evidence against the accused. McCarthy, J. references Stinchcombe and R. v. Smith for the court’s consideration of the balancing of interests required in a disclosure application. Motion granted under strict trust conditions.
R. v. G.K.B.,2021 MBQB 78: Accused charged with one count of sexual assault for two incidents that took place over 10 years ago. No corroborating witnesses or physical evidence; testimony of complainant and accused was consistent. Neither was more persuasive than the other, leading Leven, J. to a finding of reasonable doubt. Accused acquitted.
R. v. Bunn,2021 MBQB 71: Sentencing decision for conviction of one count of sexual assault. Based on the offence, deterrence and denunciation are the paramount sentencing factors. Victim was sleeping at time of offence is an aggravating factor; no mitigating factors except for Gladue factors. Accused is sentenced to 28 months incarceration followed by two years of supervised probation.
Hall v. Independent Investigation Unit of Manitoba, 2021 MBQB 67: Application for an order revoking an ex parte order granted by a JJP requiring the applicant to produce two reports to the IIU. RCMP asserts the reports are prohibited from production. IIU says reports are not “notes” within the meaning of s. 11 of Man. Reg. 99/2015. Issues are standard of review to revoke production order; would production of reports disclose information that is protected from disclosure; did the constable impliedly waive privilege; is there a discretion not to revoke the production order. Analysis of the difference between a supplementary occurrence report (SOR) and a subject behaviour – officer response report (SB/OR). SOR determined to be “notes” while SB/OR is not. Production order varied to remove the requirement to produce the SOR.
R. v. J.C.M.,2021 MBQB 65: Application by accused about admissibility of evidence of previous sexual activity under s.276(2) of the Criminal Code. Discussion of test enumerated in R. v. Goldfinch, 2019 SCC 38. Accused’s motion granted in part.
Family Law
Lievaart v. Smith,2021 MBQB 73: Request for variation of child support payments as ordered in a final order of 2014. Low income family, mother received income assistance because father did not pay child support. Discussion of imputing income, whether or not to waive arrears. Some variation allowed.
Malko v. Beck,2021 MBQB 68: Accounting and equalization of assets under The Family Property Act, as well as issue of a protection order, a preservation order and spousal support. Everett, J. ordered a reference to the Master for a family property accounting but neither party proceeded with it. Hatch, A.C.J. comments on non-compliance with Rule 70.25 and sanctions that can be invoked when a party fails to comply.
G.W.E.G. v. A.S.D.,2021 MBQB 64: Cross motions between guardian applicants and the biological father over interim guardianship and care and control. Trial dates are set for February 2022. Mother is deceased, and maternal uncle and partner took child into their care. Father requests custody. Horst, J. finds both parties can provide suitable care for the child; law in Manitoba states that “so long as the child’s best interests can be met by the parent, then that relationship must be given priority by the court” (para 13). Schedule for transition to father’s care is set.
On April 23, a B.C. court ordered that a second mother in a polyamorous triad relationship be declared a legal parent. British Columbia Birth Registration No. 2018-XX-XX5815 2021 BCSC 767 is the first case of its kind in B.C. and groundbreaking, not only for polyamorous relationships, but also for the evolving legal concept of parentage.
[3] On April 1, 2020, as a result of the Cost Reduction Program, Ms. Kosteckyj’s base salary was reduced from $154,800 to $139,320, Paramount’s contribution to her RRSP, based on 6% of her salary, was suspended, and her bonus status was unknown. In addition, her access to seminars and training was curtailed. Ms. Kosteckyj took no steps to accept or reject the changes resulting from the implementation of the Cost Reduction Program.
[4] In a further cost-cutting measure, to achieve a 15% reduction in Paramount’s workforce, Ms. Kosteckyj, along with a number of other Paramount employees, was terminated, without cause, on April 22, 2020.
[5] Paramount acknowledges that Ms. Kosteckyj was a valued employee, with 6½ years of service, and that she is entitled to damages in lieu of reasonable notice of termination. Both parties agree that the leading case on determining the period of reasonable notice is Bardal v The Globe & Mail Ltd (1960), 1960 CanLII 294 (ON SC), 24 DLR (2d) 140. Both parties assert that Ms. Kosteckyj was terminated in an economic downturn, but each has a different position regarding the relevance of that fact.
Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook — 2nd Edition by Grace Hession David, Ian Smith, and Jonathan Shime
“Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook, 2nd Edition prepares readers to properly litigate fraud cases, examining both prosecutorial and defence perspectives. Guiding readers step by step throughout the process of a fraud case, this practical resource weaves strategic information with case law analysis and relevant provisions of the Criminal Code.”
Search and Seizure by Nader Hasan, Mabel Lai, David Schermbrucker, and Randy Schwartz
“This all-in-one comprehensive guide analyzes every perspective, including those of the rights-holder, the police officer conducting a search or seizure, prosecutors and defence counsel, and judges reviewing police conduct after the fact.”
Book Reviews
Reviews taken from the Canadian Law Library Review Volume 46, no. 1
“In the Shadow of International Law: Secrecy and Regime Change in the Postwar World explores a theoretical argument that might explain why world leaders often pursue regime change surreptitiously. Author Michael Poznansky is an assistant professor in international affairs and intelligence studies cross-appointed to the political science department at the University of Pittsburgh. He explores the role that international laws addressing violations of sovereignty have played in post-WWII America’s increase in covert interventions intent on altering the domestic authority structures of another state. Simply put, the book tests Poznansky’s theory that non-intervention principles and provisions lead to intentionally covert actions to overthrow foreign regimes.”
Substantive Law
Administrative Law
Hancock v. College of Registered Nurses of Manitoba,2021 MBCA 20: Appeal of finding of a panel of the College of Registered Nurses’ Discipline Committee that the appellant was guilty of professional misconduct, as well as the penalty and the order of costs. Appellant was found to have inappropriately accessed medical records. Appeal dismissed.
The Deputy Minister of Finance v. Cutting Edge Athletic Supplies Inc.,2021 MBQB 38: Two matters adjudicated in one application. Appeal by Deputy Minister of Finance re calculation of retail sales tax payable, and appeal by Cutting Edge Athletic Supplies of assessment of liability against director. Analysis of burden of proof in tax appeals. Finance is successful in its appeal; TAC’s decision on director’s liability affirmed.
John M. Evans. Reviewing Delegated Legislation after Vavilov: Vires or Reasonableness? 34 Can. J. Admin. L. & Prac. 1. (WLNC – request a copy).
This article explores the basis on which courts review the validity of delegated legislation in Canada. They have traditionally employed ultra vires as the ground of review by construing the legal scope of the enabling clause and determining whether the delegated legislation falls within it, with no deference to the delegate. However, when the challenge is to the exercise of the power itself raising a question of inextricably mixed fact and law, delegated legislation may also be set aside as ultra vires if it is so unreasonable as to be beyond the intent of the Legislature in delegating the power. More recently, the Supreme Court has been divided on whether the Dunsmuir framework, with its default reasonableness standard on questions of law, applies to the review of delegated legislation. Vavilov may suggest that it does. The author argues that the Dunsmuir/Vavilov framework was primarily designed for the review of adjudicative decisions and is a poor fit for reviewing delegated legislation
Civil Litigation
Jack v. McLean,2021 FCA 65: Related to McLean et al. v. Canada (Attorney General), 2021 MBCA 15. Appeal re fee approval order which declined to adjudicate appellants’ request for fees in class action proceeding. FC found that there was no fee sharing agreement before the Court to approve and action was never certified. Appeal dismissed.
CIBC v. Ahmed, 2021 MBCA 25: Appeal from summary judgment order to pay the outstanding balance on her credit card issued by the plaintiff, plus interests and costs. Basis of appeal is that the motion judge erred in dismissing her motion for recusal, and failed to conduct the hearing in a fair and impartial manner, giving rise to a reasonable apprehension of bias. Appeal dismissed; costs in favour of the plaintiff set at $1,500 all inclusive of disbursements.
The Director of Criminal Property and Forfeiture v. Ramdath et al.,2021 MBCA 23: Interpretation of the stand of proof required for an interim preservation order under s.7(2) of The Criminal Property Forfeiture Act. Defendant (appellant) had embezzled millions of dollars from his employer. Director obtained an interim preservation order which froze funds in a GIC and TFSA in the name of the defendant. Under this Act, standards of proof change at different stages of legal proceedings. Explanation of all the different standards of proof from proof beyond a reasonable doubt to reasonable suspicion. Appeal dismissed.
The Director of Criminal Property and Forfeiture v. Nguyen et al.,2021 MBCA 19: Defendant appeals an order of forfeiture of his residence.First opportunity for Court of Appeal to interpret and apply s.14(1) of The Criminal Property Forfeiture Act. Residence was used for a marihuana grow operation. Defendant pleaded guilty; part of the sentence included a forfeiture order of all the seized items. Director (plaintiff) initiated additional proceedings to request forfeiture of the residence. Trial judge weighed factors for and against forfeiture, as outlined in the Act. Appeal dismissed.
Interlake Reserves Tribal Council Inc et al. v. Government of Manitoba, 2021 MBCA17: Appeal of order granting interlocutory injunctions. Project is to build a permanent flood control management system to replace the Lake St. Martin emergency outlet channel constructed in 2011. Injunctions sought in support of their review of three administrative decisions relating to environmental assessment. Issue of whether adequate consultation or effective notice took place. Decision to grant or refuse an interlocutory injunction is entitled to a “high degree of deference” on appeal. Appeal allowed.
McLean et al. v. Canada (Attorney General),2021 MBCA 15: Appeal by both parties of motion judge’s order setting aside the discontinuance of this action, a class proceeding re residential schools. Plaintiffs and defendant are taking the same position on appeal. Discussion of definition of “class proceeding”, i.e. statutory interpretation, and history of s.35(1) of The Class Proceedings Act. Proceeding had not been certified, therefore it remained subject to discontinuance under Rule 23.01(1) of the Queen’s Bench rules. Appeal allowed. Also at issue was whether the moving parties (former lawyers of record) had standing to file the motion.
Winnipeg (City) v. Caspian Projects Inc. et al.,2021 MBQB 63: Motion (by some defendants) to discover two non-party RCMP members. Based on evidence brought forward, moving parties have not established necessities under Queen’s Bench Rules 31.10(1) and 31.10(2) to justify an examination by a non-party.
Shelter Canadian Properties Limited v. Christie Building Holding Company, Limited, 2021 MBQB 59: Applicant seeks judgment enforcing award of arbitrator; respondent has filed two applications: leave to appeal the arbitrator’s award; and a stay of enforcement of any judgment respecting the award. Balance of convenience favours paying the award to the applicant.
Farmers Edge Inc. v. Precision Weather Solutions Inc.,2021 MBQB 58: Motion by defendant PWS for an interim and interlocutory injunction. PWS claims damages in excess of $1.2 million over and above general damages and fears there is a risk FE would not be able to pay such a damages award. Motion dismissed.
Vale v. Schwartz et al.,2021 MBQB 49 : Damages following summary judgment decision of August 27, 2020 (2020 MBQB 127). McCarthy, J. requested written submissions setting out each party’s position on the appropriate date for losses to be assessed, the method of valuation and appropriate value, and the appropriate conversion into Canadian dollars. London Metal Exchange (LME) price is determined to be the best indication available of the fair market value of the stolen nickel.
Vale v. Schwartz et al.,2021 MBQB 46 : Motion by some defendants (Urbanmine defendants) to add another party (ELG Metals) as a third party. ELG opposes the motion on the basis that Manitoba courts do not hold jurisdiction for the dispute between Urbanmine and ELG. Interpretation of court’s jurisdiction: presence-based, consent-based, or assumed jurisdiction. Manitoba is the appropriate jurisdiction. Next step is whether leave should be granted to add a third party. Test is set out in Loeppky et al v. Taylor McCaffrey LLP et al.,2019 MBQB 59. Leave granted.
Lou Anna Roberts v. The Government of Manitoba,2021 MBQB 43: Suit for damages pursuant to The Occupiers’ Liability Act. Plaintiff fell while exiting a building owned, occupied and managed by the provincial government. Parties agree on special damages but disagree on apportionment of degrees of negligence. Also disagree on quantum of non-pecuniary general damages. Negligence is set at 50-50. General damages of $90,000 awarded.
Maquinay v. Greatway Financial Inc. et al., 2021 MBQB 35: Plaintiff seeks to set aside Master’s decision to strike her Statement of Claim as a whole with leave to amend portions of some of the causes of action. Harris, J. found that the claim contravenes the rules of pleading in significant ways. Plaintiff allowed leave to amend part of the claim.
WRE Development Ltd. v. Lafarge Canada Inc.,2021 MBQB 37: Appeal of dismissal of motion to dismiss the action due to long delay. Standard of review is a hearing de novo. Interpretation of Queen’s Bench rule 24.02(1) as amended effective January 1, 2018. No significant action moving the file forward in over three years. Plaintiff was waiting for additional documents from the defendant after discovery. Analysis of what constitutes “significant advance”. Bock, J. finds for defendant; even though delay was due to defendant’s lack of response, plaintiff’s counsel could have compelled the defendant for undertakings.
Frenchie’s Farm and Ranch Ltd. v. Peace Hills Insurance Company,2021 MBQB 33: Insurance claim over fire loss that occurred in 2011. Insurance company has denied coverage for plaintiff making false statements in the statutory declaration for the proof of loss and has not provided information to support the existence of the items lost. Plaintiff claims all such records were lost in the fire. Credibility of witnesses a significant factor in finding for the defendant.
Consbec Inc. v. Hollow Water Weri Construction Ltd.,2021 MBQB 32: Plaintiff seeks to amend statement of claim by adding WERI as a defendant. Claim is for remaining payment due under contract. Defendant filed a counterclaim for problems with the initial contract. Proposed amendment would require piercing the corporate veil. Motion dismissed.
Shinoff v. The Province of Manitoba et al.,2021 MBQB 31: Summary judgment request by defendants. Plaintiff is suing based on her experience as a child in foster care in the 1960s. Question is whether the relationship between the plaintiff’s foster mother and the defendants sufficiently close that vicarious liability could be imposed. Also discussion of limitation period that applies. Summary judgment granted.
Glenwood Label & Box Mfg. Ltd. v.Brunswick Label Systems Inc. et al.,2021 MBQB 30: Claim by defendant for costs in case that was dismissed for delay. Plaintiff disputes entitlement due to costs of counterclaim. Analysis of Queen’s Bench Rule 23.03 and 23.05. Litigation had been ongoing for 25 years.
In applying established principles of insurance contract interpretation to this new area, the Court of Appeal ruled that Co-operators General Insurance Company of Guelph, Ont., did not owe a duty to defend Brockville, Ont.-based Family and Children’s Services of Lanark, Leeds and Grenville (FCSLLG) or Peterborough, Ont. consulting firm Laridae Communications Inc. in two lawsuits stemming from an April 2016 data hack that targeted FCSLLG. The hacker took a confidential report that contained details about case files and investigations involving 285 people and posted a hyperlink to the report on two Facebook pages.
The appellant was seriously injured when he slipped and fell on black ice on a sidewalk adjacent to the respondents’ residential property. The summary trial judge found that it was appropriate to sever the issues of liability and damages and resolve the duty of care question on summary trial. She dismissed the claim on the basis that the respondents did not owe a duty of care. On appeal, the appellant recast the nature of the duty alleged, focusing on the obligation of property owners to clear snow and ice from sidewalks to comply with a municipal bylaw. He argued that a property owner owes a duty of care to users of municipal sidewalks to take reasonable care with respect to removal of snow and ice from adjacent sidewalks. Held: Appeal dismissed. While the weight of authority has rejected the existence of such a duty of care, no court has undertaken an Anns/Cooper analysis and the authorities are not binding on this Court. Applying the Anns/Cooper analysis, the risk of harm was foreseeable, but the appellant is unable to establish a sufficient relationship of proximity and it would not be just or fair to impose a duty of care in these circumstances. The judge did not err in deciding the issue on a summary trial application.
[3] The issue put forward by the appellants on this appeal was: did the motion judge err in granting the respondent’s motion for summary judgment because there was no genuine issue requiring a trial about the scope of the appellants’ liability to the respondent under their personal guarantees? The appellants submit that there was a genuine issue requiring a trial, as the respondent misrepresented to them that their liability under their personal guarantees was joint and several with a collective exposure limited to $600,000. [4] For the reasons that follow, I agree that the motion judge erred and would remit for trial the narrow issue of determining the amount that each appellant owes to the respondent under their respective personal guarantees.
Constitutional Law
Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11: Division of powers of federal and provincial governments in climate legislation. Reference to the distinctly Canadian concept of peace, order and good government (POGG) that we learned in Canadian history class. Discussion of federalism as a foundational principle of the Canadian Constitution.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: The GGPPA is constitutional. It sets minimum national standards of GHG price stringency to reduce GHG emissions. Parliament has jurisdiction to enact this law as a matter of national concern under the peace, order, and good government (“POGG”) clause of s. 91 of the Constitution Act, 1867.
Per Côté J. (dissenting in part):There is agreement with the majority with respect to the formulation of the national concern test. There is also agreement that Parliament has the power to enact constitutionally valid legislation establishing minimum national standards of price stringency to reduce GHG emissions. However, the GGPPAis, in its current form, unconstitutional. It cannot be said to accord with the matter of national concern formulated by the majority because the breadth of the discretion that it confers on the Governor in Council results in no meaningful limits on the power of the executive. Minimum standards are set by the executive, not the GGPPA.
PerBrown J. (dissenting): The Greenhouse Gas Pollution Pricing Act (“Act”)cannot be supported by any source of federal authority, and it is therefore wholly ultra vires Parliament. The Act’s subject matter falls squarely within provincial jurisdiction. The fact that the Act’s structure and operation is premised on provincial legislatures having authority to enact the same scheme is fatal to the constitutionality of the Actunder Parliament’s residual authority to legislate with respect to matters of national concern for the peace, order, and good government of Canada under the Constitution Act, 1867.
Per Rowe J.(dissenting): The national concern doctrine is a residual power of last resort. Faithful adherence to the doctrine leads inexorably to the conclusion that the national concern branch of the POGG power cannot be the basis for the constitutionality of the Greenhouse Gas Pollution Pricing Act (“Act”). Accordingly, there is agreement with Brown J.’s analysis and with his conclusion that the Act is ultra vires in whole.
Kimberly A. Poffenroth. New Brunswick’s Precedent Setting Election: Conducting a 28-day Snap Election During a Global Pandemic. 15 J. Parliamentary & Pol. L. 15. (WLNC – request a copy). …While working from home in the early spring of 2020, the staff of Elections NB began developing plans to conduct provincial by-elections and the postponed municipal council, district education council and regional health authority board elections. Based on when legislative sessions have historically begun in New Brunswick, Elections NB anticipated that the postponed provincial by-elections would be held later in 2020, once COVID-related restrictions were lifted. It was unclear whether the postponed “local elections” would be held in 2020, but in any event, they would have to be held no later than May 10, 2021. …
Criminal Law
R. v. R.V.,2021 SCC 10: Unreasonable and inconsistent verdict; whether legal error in jury instructions can reconcile apparently inconsistent verdicts; appropriate remedy. Accused was convicted of sexual interference and invitation to sexual touching, but acquitted of sexual assault based on the same evidence. Accused appealed, verdicts unreasonable; Crown cross-appealed, charge to jury was confusing. CA held no legal error in jury instruction and acquitted.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ.: The trial judge misdirected the jury on the charge of sexual assault. This legal error was material to the acquittal, did not impact on the convictions, and reconciles the apparent inconsistency in the verdicts. As the verdicts are not actually inconsistent, the convictions are not unreasonable on the basis of inconsistency. V’s convictions should therefore be restored. The acquittal on the charge of sexual assault should be set aside and in the circumstances of this case, a stay of proceedings should be entered on that charge.
Per Brown and Kasirer JJ. (dissenting in part): There is agreement with the majority that the verdicts in this case are inconsistent. There is also agreement that the jury was misdirected, and that the misdirection amounted to legal error that might reasonably be thought to have had a material bearing on the acquittal. However, the only available remedy in response to the Crown appeal in the present case is the order of a new trial. To avoid putting V in jeopardy for something for which he was convicted, a new trial on all three charges is necessary.
R. v. Airmaster Sales Ltd.,2021 MBCA 30: Motion for leave to appeal decision of summary conviction judge dismissed accused’s appeal from default convictions for two speeding infractions. Accused’s representative had been removed by the JJP which caused an adjournment. Accused stated that he was confused as to the date of his trial and missed it. Motion dismissed.
R. v. Meeches,2021 MBCA 26: Appellant seeks leave to appeal adult sentence of life imprisonment for second degree murder. Review of sentencing judge’s assessment of PSR and Gladue factors. Interpretation of “accountability” in determining length of sentence. Leave to appeal granted, appeal dismissed.
R. v. Courchene,2021 MBCA 24: Appeal of conviction for breaking, entering and stealing a firearm on the basis that the verdict was unreasonable. Discussion of the definition of “firearm”. Appeal dismissed.
R. v S.A.D.F.,2021 MBCA 22: Crown seeks leave to appeal sentence following accused’s guilty plea to two counts of sexual interference. Grounds are that sentencing judge failed to appreciate the gravity of the offences and the moral blameworthiness of the accused. Spivak, J.A. allows appeal and increases sentence, Burnett, J. A. Concurring. Monnin, J.A. in dissent.
R. v. Bernier,2021 MBCA 21: Appeal of dismissal of a summary conviction appeal challenging the constitutionality of s.229 of The Highway Traffic Act (photo radar speeding tickets). Accused argued that s.229 was unconstitutional because it created a presumption that he was the driver. This appeal was heard by a panel of five judges, in case these circumstances overturned the Court’s previous decision on this issue in R. v. Gray, 1988 CanLII 1374. Appeal dismissed.
R. v. Ibrahim,2021 MBCA 12: Appeal of conviction for possession of cocaine, asserting that the search violated the accused’s s.8 Charter rights. CA agreed that trial judge erred in her statement of one of the facts supporting her finding, but that the misapprehension did not constitute an overriding error. Appeal dismissed.
R. v. Ginter,2021 MBQB 56: Appeal by appellant of prohibition of owning firearms for a five year period. Issues on appeal are: 1. Did the hearing judge commit a reviewable error in her assessment of any evidentiary issues; and 2. Did the hearing judge err in concluding the prohibition order was necessary in the interests of public safety. Appeal dismissed.
R. v. McKenzie,2021 MBQB 54: Voir dire re search which found the accused in possession of a loaded handgun, methamphetamines and fentanyl, and cash. Discussion of the standard of “reasonable suspicion” as well as the test for a valid investigative detention and warrantless search. Motion to exclude evidence dismissed.
R. v. J.C.,2021 MBQB 52: Sentencing decision for guilty plea to assault. Charges of uttering a threat and sexually assaulting the complainant were stayed. PSR assessed the accused as a medium risk to re-offend, and that he is a suitable candidate for community supervision. Primary sentencing objectives are denunciation and deterrence; custodial sentence of 9 to 12 months is appropriate; conditional sentence imposed.
R. v. M.V.R.,2021 MBQB 47: Trial of charges of historic sexual assault, threats and forcible entry. Some charges relate to a period where the complainant was a child of approximately 12 years old. Credibility and reliability of witnesses is of major concern in cases of this nature. Verdict of not guilty; judge has reasonable doubt as to the accused’s guilt.
R. v. Assi,2021 MBQB 44: Pretrial motion challenging the constitutionality of a limitation placed on the defence of provocation to be heard prior to trial (s.232 of the Criminal Code. Applicant is charged with murder and attempted murder. Application dismissed.
R. v. Siwicki,2021 MBQB 42: Application for an order of certiorari quashing decision of a Provincial Court judge denying a request to transfer a matter from St. Boniface Judicial Centre to Winnipeg Judicial Centre. Matter consisted of a guilty plea and sentencing. Defence had consent of Crown to request transfer. Provincial Court judge relied on practice directive to refuse transfer. Review is limited to whether the judge exceeded his jurisdiction. Interpretation of s.479 of the Criminal Code. Discussion of the Chief Judge’s administrative powers as delivered through practice directives. Application dismissed.
R. v. Barca,2021 MBQB 40 : Charges of two counts of intentionally discharging a firearm and one count of storing a firearm in a reckless manner. Accused did not testify; he gave a videotaped interview to police which was admitted into evidence. Edmond, J. applied the analysis set out in R. v. W. (D.) to determine if the Crown had proven guilt beyond a reasonable doubt. Accused is found guilty of some counts and not guilty on others.
R. v. Denis,2021 MBQB 39: Appeal of conviction of driving while impaired; grounds are that the judge erred in finding that the Crown had proven compliance with s. 320.31(1)(a) of the Criminal Code (alcohol standard was certified by an analyst). Appellant requests that the conviction is quashed and an acquittal is ordered. This is a transitional case and must be considered in the context of s. 320.31(1). Standard of review is correctness. Discussion of the interpretation of “certified by an analyst”. Appeal allowed.
R. v. Tessier,2021 MBPC 14: Motion for unreasonable delay where the pre-trial delay is below the 18 month presumptive ceiling. Accused was charged with two offences of operating a conveyance while impaired.
R. v. Budd,2021 MBPC 13: Sentencing decision with a Charter challenge. Accused spent a considerable amount of time in lockup. He was extremely intoxicated and didn’t remember his original phone call with a lawyer. He was denied an additional call. Defence counsel alleges breaches of Charter sections 7, 9, 10(b) and 11(e). Harvie, P.J. concluded that accused’s Charter rights were breached and the appropriate remedy is a $1 fine for each charge, along with one year supervised probation.
R. v. Rakesh, 2021 MBPC 12: Sentencing decision for bank robbery by accused, a gambling addict with no prior criminal record. Crown seeks a total sentence of 20 years with a reduction for a total of 9 years, less credit for time in custody. Defence seeks four years and argues that rehabilitation plays an important role. Analysis of mitigating and aggravating factors, including the need for deterrence when sentencing for a bank robbery. Harvie, P.J. sentenced accused to 5 years, less credit for presentence custody plus 3 years probation.
R. v. Kipling,2021 MBPC 11: Accused charged with aggravated assault. Incident involved attacker hitting a teenager over the head with a hammer, and then fled the scene. Issue is over identity of the attacker from video surveillance. No forensic evidence was found. Crown relied on opinion evidence of two recognition witnesses as well as circumstantial evidence. Analysis includes test to qualify recognition witnesses. Accused found guilty.
R. v. Soriano,2021 MBPC 6: Application by Crown for admission of statement of accused for use in cross-examination should accused testify. Defence seeks exclusion of statement. Analysis of whether accused’s s.10(b) Charter right to counsel were breached. Pullan, J. ruled that she had reasonable doubt that the statement was voluntary and excluded it.
R. v. Blair,2021 MBPC 4 (FASD Court): Sentencing decision after accused pleaded guilty to two armed robberies. Crown is seeking a sentence of six years concurrent for each of the robberies, plus one year consecutive for using an imitation firearm. Defence is seeking three years followed by probation. Analysis of the effect of FASD on accused’s moral culpability, aggravating and mitigating factors. Total sentence of 30 months minus time already spent in custody.
[7] I would allow JC’s appeal. With respect to the first alleged error, the trial judge’s improper reliance on stereotype had a material effect on his rejection of JC’s evidence about securing HD’s consent. This finding, in turn, played an important role in the trial judge’s overall evaluation of JC’s credibility. This error cannot be treated as harmless or as not occasioning a miscarriage of justice in what was a pure credibility case. [8] I would also find that the trial judge committed the second alleged error by incorrectly characterizing JC’s motive theory as based on stereotype, and by relying on stereotype and the willingness of HD to endure a criminal trial in rejecting JC’s motive theory. [9] Because of these errors, I would set aside the convictions and order a new trial.
Family Law
Métis Child, Family and Community Services v. H.D.G.J.,2021 MBCA 18: Agency appeals decision of the trial judge granting an order that the child in question be placed with her maternal grandmother without transfer of guardianship, and that the agency continue to be the child’s legal guardian. Ultimate issue is whether there should be a permanent order of guardianship. Appeal court found that trial judge erred in a number of ways; appeal allowed, Agency appointed as permanent guardian.
Youssef v. Letourneau,2021 MBQB 57: Interjurisdictional case for child support from August 2015, based on father’s imputed income. Petitioner (mother) lives in Manitoba and respondent (father) lives in Washington state. Mother originally filed a petition under The Family Maintenance Act seeking child support, and then submitted an application under The ISO Act. Child support arrears and continuing obligations are determined after income imputed.
Maquimot v. Maquimot,2021 MBQB 41: Request to set aside a without notice protection order. Respondent asserts that applicant failed to make full and frank disclosure of all relevant particulars to the JJP. Application dismissed.
In the latest edition: • Weaponizing the Internet: The (New) Tort of Internet Harassment • Sharing (actually not sharing) Post-Separation Increases in Income • Virtual Cross-Examination Etiquette; Rule 1: Don’t Lie
Labour and Employment Law
White Bear First Nation v. Bird, 2021 FCA 50: Appeal of termination, allegedly for cause. Respondent had worked for nearly 14 years at appellant’s on-reserve school, first as a teacher and then as principal, with a clean employment record. Adjudicator found employer had just cause to terminate. Respondent sought judicial review in FC. Application granted, court found that adjudicator erred in failing to apply the correct legal test among other reasons. Justice Diner also found that respondent had been denied an opportunity to respond to complaints against him prior to termination. Appeal dismissed.
Dolski v. Staples Canada ULC,2021 MBQB 29: Plaintiff was dismissed without cause by the defendant, who required her to sign a standard form “Full and Final Release”, which she did. She claims reimbursement from the defendant for travel expenses incurred prior to her termination. The request occurred several months after signing the release. Defendant refuses to pay. Legitimacy of expenses is not questions. Discussion of the nature of a release as a form of contract. Plaintiff’s action allowed.
Chris Drinovz. Can an Employer Require Employees to Get the COVID-19 Vacine (BC)?2021 CanLIIDOCS 228. This has been a hot topic since the news of the first-approved vaccine. Currently in British Columbia there is no specific legislation requiring employees to get vaccinated. However, please note that this could evolve once the vaccine is underway and available to the public at large. The short answer to this question is yes, generally non-unionized employers (and in some cases unionized employers) can require employees to get the vaccine (with certain exceptions discussed below).
Wills, Trusts & Estates
Nicol v. Nicol Estate,2021 MBQB 50: Dispute over administration of estate by Trustee in the disposition of parcels of land included in the estate. Applications request direction from the court in interpreting the provisions of the testator’s will regarding purchasing the parcels of land. Application dismissed.
Re Clark Estate,2021 MBQB 23: Dispute between the deceased’s mother and his former common-law partner over letters of administration. Deceased passed away in the Turks & Caicos Islands. Discusses the differences between jurisdiction simpliciter and the doctrine of forum non conveniens. Turner, J. concludes that the Turks & Caicos Islands are the appropriate forum.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
Printing and Photocopying
If you need to use the library’s printing and photocopying services you will need to create an account. See us at the front desk for assistance.
Great LEXpectations RSS Feed