The Manitoba Legislature has resumed sitting. Click on “Provincial” under Legislation to view the latest bills. Previous bills introduced in November now have the text added.
Research Assistantship – the CBA Judges Section is seeking a research assistant for the preparation of a guidance document for its members on tips for managing reserve judgments. Please see the attachment for details.
The Law Society is looking for Legal Counsel to join the Complaints Resolution Department.
The Canadian Law of Architecture and Engineering — 3rd Edition
Co-authored by Beverley McLachlin, the former Chief Justice of the Supreme Court of Canada, and seasoned lawyer Arthur Grant, The Canadian Law of Architecture and Engineering, 3rd Edition is an essential guide for architects, engineers and those in the construction industry – including their legal advisors – as it examines the legal principles governing the practice of these professions.
Updated to include new and significant judicial decisions as well as legislative and administrative amendments, this latest edition is sure to become an indispensable reference. In addition to revised content, this text provides readers with practical precedents of forms and contracts that they can use as templates, as well as useful tables setting out the applicable professional code of ethics for each province and territory so architects and engineers understand their duties and obligations.
New Online Titles
From Deslibris
Canadian Competition Law and Policy provides a succinct and accessible analysis of the Competition Act and related legislation, regulations, enforcement guidelines, and other guidance issued by the Competition Bureau. The discussion provides extensive case examples drawn from Canadian, American, European, and other competition law authorities to illuminate concepts and legal tests. The book seeks to offer students, lawyers, and others interested in the subject a practical guide to the context, objectives, and evolution of the Canadian competition law scheme by providing an overview of the jurisprudential and legislative history; an approachable outline of key economic concepts; and a review of methods and approaches applied by economists and lawyers to the analysis of competition law problems.
Book Reviews
Reviews taken from the Canadian Law Library Review Volume 46, no. 1
“An Introduction to the Canadian Law of Restitution and Unjust Enrichment is a concise book that could be described as a 217-page distillation on the subject. As someone unfamiliar with private law, I found this a dense read that took a good amount of energy to digest. It achieves the goal of providing an overview of the subject and offers a fair and objective analysis. The author acknowledges conflicting theories in the law, makes it clear when he is offering his point of view on a concept or theory that is disputed, and leaves it to the reader to draw their own conclusions. This book is recommended for law practitioners working in the areas of contract and tort law.”
Substantive Law
Administrative Law
Levin v. Manitoba Public Insurance Corporation et al,2021 MBCA 16: Application for leave to appeal decision of AICAC. Applicant has a right to appeal the commission’s decision on a question of jurisdiction or of law. None of the arguments the applicant raised fall under these categories, so application dismissed.
Inkster v. The Workers Compensation Board of Manitoba et al,2021 MBCA 14: Applicant applied for compensation for a work-related injury and was denied. His appeal to the WCB Appeal Commission was also denied, and request for judicial review dismissed as well. Issues to consider: did the application judge choose the correct standard, and was it applied properly. Standard was reasonableness. Appeal dismissed.
David Phillip Jones, Q.C. The Year In Review in Administrative Law, December 2020. As presented at the Manitoba Bar Association Midwinter Conference, January 2021.
Bankruptcy Law
Bannerman Lumber Ltd. et al v. Goodman, 2021 MBCA 13: Application by respondent for an extension of time to file and serve notice of an appeal of a finding under s. 178(1)(e) of the BIA. Bannerman had been awarded an arbitration award against Mr. Goodman in 2013. Mr. Goodman made an assignment in bankruptcy in July 2014 which was discharged in 2017. Bannerman made an application to have the award survive the discharge. They were successful, and Goodman did not appeal in time. Discussion of test for an extension of time to appeal. Important criterion is whether there are arguable grounds of appeal. Application dismissed.
… A third form of restructuring transaction, which has come to be referred to as a “reverse vesting transaction,” has recently emerged to facilitate the acquisition of the shares of a restructured debtor company. …
Civil Litigation
Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District,2021 SCC 7: Appeal of arbitration award concerning breach of contract for disposal of waste. Examination of duty to exercise contractual discretion in good faith. From the headnotes: Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Where a party to a contract exercises its discretion unreasonably, that is, in a manner not connected to the underlying purposes of the discretion granted by the contract, its conduct amounts to a breach of the duty to exercise contractual discretionary powers in good faith. Metro’s exercise of discretion was not unreasonable with regard to the purposes for which the discretion was granted and was therefore not a breach of the duty. Accordingly, the arbitrator’s award cannot stand, whether the standard of review is correctness or reasonableness. Additional reasons from Côté, Brown and Rowe JJ, concurring.
Samborski Environmental Ltd. V. Government of Manitoba,2021 MBCA 11: Two related appeals heard at once. Defendant (GOM) appealed chambers judge’s order granting plaintiff an extension of time to file an appeal. Plaintiff appealed motion judge’s dismissal of their claim. Issue is an environmental license in relation to a proposed garden supplies facility with composting component. Previous owner of property had received a license for a composting facility but never went ahead with it. Both appeals dismissed.
Sher-Bett Construction (Manitoba) Inc. v. The Co-operators General Insurance Company,2021 MBCA 10: Appeal over the interpretation and application of an exclusion clause in a builders’ risk broad form insurance policy. Policy had a “frost or freezing” exclusion which was used to deny the claim. Focus of appeal is the meaning of the phrase “caused directly”. Appeal allowed.
Broadband Communications North Inc. v. 6901001 Manitoba Ltd.,2021 MBQB 25: Appeal of arbitration award. Leave to appeal on three specific issues was granted at 2017 MBQB 146. Parties settled one issue and applicant raised additional issues which were not allowed to be added. Discussion of standard of review for commercial arbitration. Both parties have some measure of success.
McLeod Estate v. Cole et al.,2021 MBQB 24: Estate is seeking an order of rescission voiding the sale transaction of certain parcels of land. Estate claims that the deceased lacked the necessary capacity to engage in the contract of sale. Analysis of mental capacity to perform a legal act; professional standard of care; fiduciary duty; fair market value of the lands for sale. Claim dismissed.
Wolfe et al. v. Taylor et al.,2021 MBQB 16: Analysis of intercompany debt claim in a liquidation matter. Liquidator argues that the amount of intercompany debt is confirmed by the materials filed in court. Respondent argues that a full accounting is required. Toews, J. agrees with liquidator and decides that the intercompany debt claim in the amount filed should be accepted by the court.
Aleshka v. Fettes et al.,2021 MBQB 14: Motion for judgment enforcing alleged agreement under Rule 49.09. Applicant states that Respondent Greg Fettes breached an agreement to settle the application. Respondent says a non-binding “framework of an agreement” is all that was agreed to. From a review of the actions of the parties, Kroft, J. cannot conclude that the evidence establishes the three elements required for a binding settlement agreement. Motion dismissed.
“Despite its importance, legal research is often a line item that comes under close scrutiny when a court awards costs to a successful litigant. Two recent cases demonstrate why legal research comes under such scrutiny.”
Criminal Law
R. v. Esseghaier, 2021 SCC 9: Whether the curative proviso is available for jury selection errors. Accused were charged with a series of terrorism offences. Appeal after conviction was bifurcated to deal with jury selection issue first. CA allowed appeal and ordered a new trial, determining that trial judge had erred. SCC allowed appeal and restored convictions. From the headnotes:
The jury for both E and J was improperly constituted. The trial judge erred in both his primary and alternative conclusions with respect to J’s application. The common law discretion to exclude prospective jurors while using rotating triers existed, and the trial judge’s refusal to exercise his discretion was unreasonable. However, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code can be applied to cure the trial judge’s error.
Reasons delivered by Moldaver and Brown, JJ.
R. v. W.O.,2021 SCC 8: Appeal of conviction for sexual assault, incest, and sexual interference (2020 ONCA 392). Per Côté J. — We are all of the view that the appeal should be dismissed, substantially for the reasons of Hoy A.C.J. Main issues on appeal were the significance of a complainant’s failure to make a timely complaint, and insufficiency of reasons.
R. v. C.P.,2021 MBCA 9: Sentence appeal after pleading guilty to robbery and other offences, on the grounds that the sentencing judge imposed an illegal sentence. Crown and defence filed a joint factum and consent to conducting appeal in writing. Joint submissions are accepted, leave to appeal the sentence is granted and appeal allowed.
R. v. McKenzie,2021 MBCA 8: Appellant entered a guilty plea to discharging a firearm with intent and was sentenced as an adult to six years, eight months in custody. He seeks leave to appeal his conviction on the basis that his guilty plea should not have been accepted and the sentence was not fit. Onus is on accused to demonstrate that there is a valid reason to set aside the guilty plea. Appellant had counsel and is not suggesting he had ineffective assistance of counsel. Both leaves to appeal granted but dismissed.
R. v. Sandhu,2021 MBQB 22: Appeal by accused of mandatory minimum sentence and seeks an order that his constitutional challenge to the sentence be heard. Appellant, a foreign national, pleaded guilty, in 2018, in Provincial Court to driving over .08. His sentencing was delayed in order to facilitate completion of his application for a permanent resident visa. Application continued to be delayed, and he was sentenced in January 2020. MMS prevented him from seeking a discharge giving rise to a deportation order. Appeal granted; new sentencing hearing will proceed.
R. v. K.D.M.,2021 MBQB 21: Trial of accused charged with several offences said to have taken place between July 2009 and November 2016 against his biological daughter. Credibility of witnesses is critical. Complainant is more credible than accused and he is found guilty of all offences.
R. v. Moar,2021 MBQB 9: Second degree murder trial. Analysis of post-offence (or after-the-fact) conduct and its role as circumstantial evidence. Careful examination of eye witness testimony to determine which of two parties fired the fatal shot, and whether it was accidental, self-defence, or intentional. Accused found guilty of second degree murder.
R. v. Moar,2021 MBQB 8: Voir dire re admissibility of two video statements in trial for second degree murder. Police were unable to locate witness to serve a subpoena upon him. Both statements were presumptively inadmissible. Necessity was established and only issue to be decided was threshold reliability. Analysis of threshold reliability, procedural reliability, and substantive reliability. Grammond, J. admitted the first statement but not the second.
Beam v. Attorney General of Canada,2021 MBQB 7: Application to quash a production order relating to documents pertaining to an historical sexual assault. Applicant is an elder in a religious order. Standard of review is whether the authorizing judge “could have” granted the authorization, as stated in R. v. Vice Media Canada Inc., 2018 SCC 53 at para. 69. Applicant claims religious privilege. Analysis of whether religious privilege exists in this instance. Production order is upheld and the document is to be disclosed to the RCMP to examine to determine if criminal charges are warranted.
R. v. Gold,2021 MBQB 5: Appeal from summary conviction in provincial court over pointing a firearm. Issues of reliability and credibility of complainant and accused, reasonableness of guilty verdict among other issues raised on appeal. Appeal dismissed.
R. v. K.D.M.,2021 MBQB 2: Ruling on admissibility of complainant’s videotaped statement. Statement was made five years after the offences ended. Accused’s counsel opposes admitting statement on the grounds that it was not made within a reasonable time after the alleged offence. Issue is whether the timing of the taking of the statement and the date of the last alleged incident is reasonable within the meaning of s.715.1(1). Analysis of the meaning of “within a reasonable time”. Statement is admitted.
R. v. K.D.M.,2021 MBQB 1: Ruling on voluntariness of accused’s statement. Accused charged with numerous offences include assault, sexual interference and incest. Crown seeks admissibility of accused’s video-recorded statement to WPS for the purpose of cross-examination. Accused’s counsel claims statement was not made voluntarily. Discussion of excessive interviewing tactics. Statement allowed.
R. Solomon, A. Sohrevardi, E. Dumschat, L. MacLeod. Cannabis and Driving : The Provincial and Territorial Legislative Mosaic. 2020 68 C.L.Q. 165 (WLNC – request a copy). The provinces and territories have recently amended their drug-related driving legislation, established retail cannabis distribution systems and enacted related regulatory controls. This legislative flurry has been driven and shaped by three major changes in the federal criminal law that came into force in 2018.
Elyk v. Elyk,2021 MBQB 26: Trial over family property. Parties separated several years ago, and managed to settle many issues prior to trial. Significant analysis of the definition of occupation rent, and whether it applies in this case. Divorce judgment also granted.
Church v. Church,2021 MBQB 20: Respondent’s motion to vary child support in an evolving split custodial regime. Payor is an Indigenous person with treaty status earning income on a reserve. Issues are what are the incomes of the parties; and is a retroactive adjustment to child support appropriate. In order to vary child support, there must be a change in circumstances; this is easily met. Determination of income of the parties; respondent’s estimate is down from previous years due to pandemic. Explanation of whether there should be a retroactive adjustment, as per D.B.S.. Variation allowed.
Carmyn Alyson Aleshka vs. Gregory Fettes,2021 MBQB 19: Parties have been part of the case flow management process. Husband seeks divorce through a summary determination. Wife opposes, seeking a severance of the issues. Examination of the co-existence of the rule for severance and the rules for summary judgment. Dueck, J. determines it may take another two years for the parties to deal with their property settlement issues. Following analysis of previous legal proceedings, order allowed.
Tomsic v. Bilyk,2021 MBQB 18: Request for variation of Protection Order. October 2018 Protection Order was for mother alone. In August 2019 mother requested a second protection order. Father had supervised access to children. There were no concerns by the supervisor regarding father’s conduct with children. Father had various breaches of order and was sentenced to a period of incarceration. Analysis of the role of a protection order in order to prevent domestic violence and it is not to be used to deal with parenting issues. Success mixed.
Ross v. Berens,2021 MBQB 10: Supplemental reasons to an oral decision at the hearing of an emergency motion. Respondent applied for a protection order on behalf of both himself and their child on a without notice basis. He did not tell JJP that the petitioner had already filed a petition and served the respondent. Motion for urgent relief granted allowing mother contact with the child, and protection order is set aside.
Ken Nathens.Battle of the Experts, The Lawyers Daily, February 26, 2021. Clarification on the use of experts in family law. Comment on Frondall v. Frondall,2020 SKCA 135.
Nicholas Bala. Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act. (2020) 39 C.F.L.Q. 45 (WLNC – request a copy). … Bill C-78 will have only limited impact on those Canadian family lawyers and parents who have already adopted child-focused, less litigious approaches to the resolution of family disputes. However, the amendments should have an impact on practitioners who have not made that shift, as well as on self-represented litigants who may look to the Divorce Act for guidance. Further, the relocation scheme in Bill C-78 will substantially change the law governing this contentious issue.
Wills, Trusts & Estates
Syryk v. Kuharski,2021 MBQB 13: Plaintiff’s action to recover money lent to her brother during his lifetime, from his estate. Plaintiff does not have an accurate ledger indicating exactly how much money she lent. Defendant executor relies on statute of limitations to bar most of the claims. Menzies, J. determines this can be determined through summary judgment. Only a small amount of loans are deemed to be still outstanding.
BCSC rules that B.C. is the appropriate location to hear a defamation suit against Twitter: Guistra v. Twitter, Inc., 2021 BCSC 54. Commentary from The Lawyers Daily.
The 2021 Annual Joint Family Law program is open for registration. Topics will include:
High conflict parenting disputes
Valuation of property and support obligations
Rule amendments and new court forms relating to the Divorce Act
Effective virtual advocacy
How to remain resilient and have a rewarding career
The Great Library is open again! Please knock or call (204-945-1958) to be let in.
Court Notices & Practice Directions
All COVID-19 Notices and Practice Directions are available here.
Recently added titles include A Guide to Mental Disorder Law in Canadian Criminal Justice and Judicial Review of Immigration Decisions. As well as new editions of Lawyer’s Professional Liability — 4th ed., General Principles of Canadian Insurance Law — 3rd ed., A Guide to Canadian Money-Laundering Legislation — 6th ed., and Nathan and Goldfarb’s Company Meetings for Share Capital — 12th ed.
Stadler v. Director St. Boniface/St. Vital, 2021 MBCA 7: Applicant seeks leave to appeal an order of the Social Services Appeal Board confirming a decision to suspend the applicant’s income assistance benefits until the respondent has received confirmation that the applicant has applied for OAS and GIS. Leave for appeal allowed on two questions of law.
Cox v. Director St. Boniface/St. Vital,2021 MBCA 2: Applicant seeking leave to appeal an order of the Social Services Appeal Board re overpayment of assistant to the applicant under the Employment and Income Assistance Program. Applicant had gone to Germany for a medical consultation and did not advise the program. When they found out, her file was closed. She reapplied upon return and was approved, but was assessed an overpayment for benefits received while she was out of the country. Motion for leave to appeal dismissed.
Paul Daly. Administrative Law Matters – Regulations and Reasonableness Review, January 29, 2021 as viewed on February 4, 2021. Analysis of standard of review of regulations.
Bankruptcy Law
Economical Mutual Insurance v. Guilbert,2020 MBQB 179: Applicant seeks declaration that judgment issued against respondent will not be released by an order of discharge in bankruptcy. Respondent was found responsible in a civil court for the loss of his business due to arson. Analysis of s. 178(1)(a) and (e) of the Bankruptcy and Insolvency Act. Menzies, J. finds for the applicant.
Justice David M. Brown. Insolvency Routes of Appeal: A Quick Primer. Canadian Bankruptcy Reports (Articles) (2020) 76 C.B.R. (6th) 197 (WLNC, request a copy).
Civil Litigation
Armstrong v. Ward, 2021 SCC 1: Oral decision re medical negligence. Appeal allowed for the dissenting reasons of Justice van Rensburg in 2019 ONCA 936; trial decision restored.
Canada v. MacDonald, 2021 FCA 6: Costs decision. Mr. MacDonald was successful at trial in the Tax Court, and was awarded costs. Crown appealed and was successful and awarded costs. Mr. MacDonald appealed to SCC and lost again, with costs. Prior to appeal hearing at FCA, he had sought an enhanced costs award because of a settlement offer. Crown now appeals, seeking enhanced costs for a settlement offer it made. Analysis of the doctrine of relitigation. Appeal dismissed.
Canada (Attorney General) v. Utah, 2020 FCA 224: Action for damages for failing to process request for refugee protection in a timely manner. Defendants moved for summary dismissal on limitations grounds at trial. All agree that limitation period is two years. FCC dismissed the motion; FCA allowed appeal and dismissed motion. Key provision is Alberta’s Limitations Act, para. 3(1)(a). Further commentary below.
Viscount Gort Motor Hotel Ltd. v. Pre-Con Builders Ltd. et al, 2021 MBCA 5: Appeal by applicant over dismissal of application to extend the limitation period under Part II of The Limitation of Actions Act. Applicant sought to file a claim for breach of contract and negligence. Judge determined applicant ought to have known of the cause of action more than 12 months before filing the application. Appeal notes there are two claims, one of which should have been known but the other was not. Appeal allowed in respect of one set of deficiencies.
B.N. v. Anglican Church, 2020 MBCA 127: Appeal by defendant that it was vicariously liable for two sexual assaults, as well as the damage award. Defendant argues that trial judge didn’t consider the inconsistencies in the plaintiff’s evidence and misconstrued the totality of the evidence. Issues on appeal raise issues of fact and mixed fact and law, which are reviewable only for palpable and overriding error. Court determines that defendant has failed to demonstrate decisions warrants appellate intervention. Appeal dismissed.
Crescent View Farms Ltd. et al. v. ULS Industries Ltd. et al.,2020 MBQB 191: Litigation over repairs to a manure storage facility. ULS seeks leave to amend its third party claim to add the Government of Manitoba plus several Manitoba Conservation employees. Analysis of The Proceedings Against the Crown Act and Crown liability in determining whether the government can be added. Leave denied to add particular employees; leave granted to add the government.
Agropur MSI, LLC v. The Winning Combination Inc.,2020 MBQB 188: Motion for summary judgment for breaches of a settlement agreement. Conflict over description of relationship: plaintiff believed parties had a manufacturing and supply agreement, while defendant claimed there was never any written contract; instead they sent purchases orders to the plaintiff and the plaintiff sent order confirmations. Parties also entered into a third party logistics services agreement. Perlmutter, A.C.J. rules that this argument requires a full trial.
CropConnect v. Bank of Montreal et al.,2020 MBQB 186: Issue arising out of an attempted fraud directing payment to the respondent. Fraud was caught before money disappeared and is now held by court. Applicant seeks an order that the money belongs to them and asks for it to be returned. Respondent says that it is also an innocent victim of the fraud. Harris, J. finds that respondent must bear the loss as it was in a better position to prevent the fraud. Funds to be returned to the applicant, as well as costs.
Chris Armstrong, Mike Preston. Black Spot or Big Chill: Consequences of J. Cote v. Burnaby. 2020 J. Can. C. Construction Law. 1 (WLNC – request a copy).
The case of J. Cote & Son Excavating Ltd. v. Burnaby (City) (2019 BCCA 168) raised a question: can government impose a bidding ban (a “Reprisal Policy”) against contractors who have sued that government?
Corporate & Commercial Law
Canadian Imperial Bank of Commerce v. Canada,2021 FCA 10: Supply of a financial service is an exempt supply under the GST/HST. Appellant sought rebates of tax if paid on fees charged by Visa for the supply CIBC received as a participant in the Visa payment system. MNR denied rebate claims. Appeal to Tax Court was dismissed, concluding that the supply was an administrative, not a financial service. Analysis of statutory definition of “financial service”. Appeal allowed, referred back to MNR for reconsideration and reassessment.
Barkley v. Canada,2021 FCA 5: Issue over whether legal expenses incurred by an individual to defend a claim re employment income are deductible under para. 8(1)(b) of the Income Tax Act. Appellants’ income derived from shares in family corporation. Analysis of the new provision added to the ITA adopted in 1990. Appeals dismissed.
6486976 Manitoba Ltd. v. 7344989 Manitoba Ltd.,2020 MBQB 192: Motion for summary judgment by defendant to dismiss claim by plaintiff. Parties had entered into an agreement as vendor and purchaser of commercial condominiums. Disagreement over whether property had been developed as outlined in the contract. Analysis of appropriateness of summary judgment to resolve the issue; Edmond, J. determines it is and finds in favour of the defendant.
Andrew Botterell. Case Comment: 1688782 Ontario Inc. v. Maple Leaf Foods Inc.Canadian Cases on the Law of Torts (Articles). (2021) 69 C.C.L.T. (4th) 137. (WLNC – request a copy.)
1688782 Ontario Inc. v. Maple Leaf Foods Inc. is an important and welcome decision that has the potential to substantially change the way in which negligence liability is understood in Canada.
Criminal Law
R. v. T.J.M.,2021 SCC 6: Issue of which court has jurisdiction to grant judicial interim release to a young person. Provincial Court of Alberta is the designated youth court, but because the Crown gave notice of intention to pursue an adult sentence, accused was entitled to elect mode of trial. He chose a superior court sitting without a jury. Discussion of exclusive versus concurrent jurisdicition. From the headnotes: Section 33(8) of the YCJAconfers exclusive jurisdiction upon “a youth justice court judge” to release a young person charged with an offence referred to in s. 522 of the Criminal Code, which incorporates s. 469 offences, from custody. It does not qualify the term “youth justice court judge” so as to include only those superior court justices deemed under ss. 13(2) and 13(3) to be youth justice court judges. Just as ss. 13(2) and 13(3) of the YCJAdeem a superior court judge to be a youth justice court judge, s. 13(1) also designates as a youth justice court judge a judge sitting in the court established by the province as a youth justice court. Accordingly, the jurisdiction is concurrent, and not exclusive to either of them.
R. v. Waterman, 2021 SCC 5: Unreasonable verdict appeal of a jury trial. Issue over credibility of complainant. Events took place between 1977 and 1981. SCC allowed the appeal, set aside the acquittals and restored the convictions. 2020 NLCA 18.
Moldaver J. — The only issue on this unreasonable verdict appeal is whether the inconsistencies in the complainant’s testimony are so significant that a conviction registered on the basis of his evidence is unreasonable as a matter of law. Although some of the inconsistencies are troubling, a majority of the Court is satisfied that the jury acted reasonably in believing the complainant.
R. v. Murtaza, 2021 SCC 4: Appeal of conviction over selling cocaine to an undercover officer. Issue over whether officer relied on his own memory of the face of the appellant or if he was influenced by a review of a short video of the transaction. ABCA dismissed appeal; SCC dismissed substantially for the reasons of Rowbotham, J.A. (2020 ABCA 158):
[15] I agree with my colleague Wakeling JA that the appeal should be dismissed for the reasons set out in his judgment, with the exception of his discussion at footnote 3. The issue of how a trial judge should address the accused’s change of appearance between the offence and trial was not argued in the court below. There is no ground of appeal that raises this issue. We did not receive submissions, either written or oral and we did not give counsel the opportunity to provide submissions.
[16] In order to preserve the independence and impartiality of the appeal courts, the ability of appeal judges to raise new issues is limited in that it is permissible “only in rare circumstances” when “failing to do so would risk an injustice”: R v Mian, 2014 SCC 54 at paras 39 and 41.
[17] This is not the rare circumstance contemplated by the Supreme Court and there is no risk of injustice. In my view, it is inappropriate for this court to opine on this issue.
R. v. Deslauriers,2021 SCC 3: Crown appeal as of right on questions of law.
A majority of this Court would dismiss the appeal for the reasons given by Chamberland J.A.
Judge Roy erred in law in denying Mr. Deslauriers the right to obtain and, if need be, file documents relating to the existence of three criminal investigations and a report from the Centre jeunesse des Laurentides involving the victim. There was a likely and reasonable possibility that the information in question could assist Mr. Deslauriers in exercising his right to make full answer and defence.
Abella and Brown JJ. would have allowed the appeal and restored the guilty verdict.
R. v. Yusuf,2021 SCC 2: Oral decision on delay. Unanimous decision dismissing appeal.
In doing so, we have chosen to leave for another day various legal issues that arise from this Court’s decisions in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, including whether and in what circumstances multiple accused should be treated communally as opposed to individually when assessing defence delay under s. 11(b); whether discrete events as defined in Jordan attributable to a particular accused should be deducted only from the accused responsible for those events or be deducted communally from the co-accused as well; and whether a s. 11(b) application can be brought post‑conviction and if so, whether a remedy other than a stay of proceedings is available.
R. v. Sinclair,2021 MBCA 6: Accused seeks leave to appeal her sentence on the basis that the sentencing judge failed to give sufficient weight to mitigating and Gladue factors, erred in assessing the accused’s moral culpability and imposed a sentence that was harsh and unfit. Standard of review is deferential. Leave to appeal granted, but appeal dismissed.
R. v. Olenick,2021 MBCA 4: Appeal of custodial sentence which also imposed a lifetime weapons ban. Accused submits that the lifetime weapons prohibition is an illegal sentence. Crown agrees that maximum prohibition available is 10 years. Leave to appeal granted and 10 year weapons prohibition is substituted. Rest of the sentence remains the same.
R.v. S.C.C.,2021 MBCA 1: Appeal by Crown for sentence for offences of distribution of an intimate image without consent and failure to comply with a recognizance. Crown argues that judge erred in her approach to parity and proportionality and that the sentence is demonstrably unfit. Leave for appeal granted, sentence varied to be increased to two years less a day.
R. v. Belyk,2021 MBQB 12: Accused is charged with second degree murder. Issue over whether he had the intent to commit murder, or if he should be convicted of manslaughter. Accused had ingested a variety of intoxicants prior to the attack. Numerous witnesses testified, describing his behaviour, both expert and civilian. McKelvey, J. found him guilty of manslaughter.
R. v. D.A.B.,2021 MBQB 6: Application under s.276 of the Criminal Code for leave to cross-examine the complainant on her prior sexual history with him. Onus is on defence to show how the proposed evidence is relevant to the accused’s defence of honest but mistaken belief. Crown wishes to introduce evidence of the parties’ use of a “safe word”. Greenberg, J. determines that both sets of evidence are admissible.
R. v. Wood,2021 MBQB 4: Sentencing decision for conviction of manslaughter in a case of domestic violence. Although accused was charged with murder, Martin, J. concluded the Crown did not prove beyond a reasonable doubt that he knew his actions would lead to the death of his wife. Martin, J. also comments on the tragedy of violence suffered by Aboriginal women. Aggravating factors are significant while mitigating factors are few. Accused is sentenced to 18 years’ incarceration, with credit for 4 ½ years for time spent in custody since his arrest.
R. v. A.A.J.T.,2021 MBQB 3: Sentencing decision for conviction of several sexual offences against a four year old child, including sexual interference and making and distributing child pornography. Detailed examination of the principles involved in sentencing where there were many aggravating and few mitigating factors. Counsel did not request a pre-sentence report and there were no Gladue considerations. Under principle of totality, Rempel, J. sentenced accused to 30 years, 6 months reduced to 22 years.
The Director of Criminal Property and Forfeiture v. Gurniak et al.,2020 MBQB 184: Three motions concerning violation of Charter rights: ss. 8 and 10 over seizure of property. Motion by Director for a ruling on the propriety of questions put to one defendant during his examination for discovery.
[4]There are four general areas of controversy arising from these motions. The first area of controversy involves the question as to whether the Director is exposed at all to a Charter challenge of the nature made here. The second area of controversy involves a question concerning the procedure to be followed when an alleged Charter violation is raised in an action brought by the Director pursuant to The Criminal Property Forfeiture Act, C.C.S.M. c. C306 (hereinafter “the CPFA”). The third area of controversy examines whether any Charter breaches actually occurred. The fourth area of controversy arises only if a Charter breach has been found to have occurred and involves a consideration as to the appropriate remedy, if any, to be granted.
Dewar, J. leaves the Charter breaches to be determined by the trial judge; motion by Director is allowed.
R. v. Alcorn,2020 MBQB 183: Sentencing decision for conviction for obtaining sexual services from a person under the age of 18. Offence took place on June 30, 2015, when s.286.1(2) of the Criminal Code was amended in response to Canada (Attorney General) v. Bedford. Crown seeks a penitentiary term of five years; defence seeks a term of one year imprisonment followed by two years’ probation. Suche, J. orders a sentence of 15 months imprisonment with no probation.
R. v. Truthwaite, 2020 MBQB 180: Appeal of conviction for having care and control of a motor vehicle while impaired. Appellant claims verdict was unreasonable. Offence of care and control of a motor vehicle is based on former s. 258 of the Criminal Code which was in effect at the time of the offence. Onus is on appellant to rebut the presumption of care and control. Bond, J. determined that the verdict was reasonable and dismissed the appeal.
R. v. L.S.,2020 MBPC 63: Allegations of sexual misconduct of an historical nature. Complainants are sisters of the accused and events span 1991 to 1996. Accused has an alibi for some of the time frame of the charges. Case must be assessed pursuant to R. v. W. (D.). Crown relied on testimony of both complainants; defence called accused. Evidence also included documentary evidence relating to domestic proceedings between the accused and his former partner, and the divorce of the parents. Court finds that reasonable doubt is raised, and accused is acquitted.
Joel Hechter. The Presumption of Privacy: A Modest Proposal to Legislatively Regulate Police Access to Privately Generated Surveillance Video. (2020) 25 Can. Crim. L. Rev. 83 (WLNC – request a copy).
As I will explain in this article, our courts have paved the way for Parliament to enact limits on state access to privately generated surveillance video: giving police the powers they need to preserve and obtain important evidence, while protecting all Canadians’ privacy. I discuss the problem, and propose the outline of a legislative solution.
Janelle Marchand, Louise Bond-Fraser and Ian Fraser. The Knowledge and Beliefs of Jurors and Non-Jurors Concerning the Fallibility of Memory: Is this Information Common Knowledge? 2020 68 C.L.Q. 93 (WLNC – request a copy).
Since the advent of DNA evidence in the courtroom and the resultant exonerations, which revealed that more than 70% of the erroneous convictions were due in whole or in part to faulty eyewitness testimony, the problem with eyewitness memory has become a topic for debate. The question is whether or not reminders of the fallibility of eyewitness testimony are necessary in the courtroom and, if so, who should provide them?
Family Law
Pandey v. Pandey,2021 MBCA 3: Respondent appeals a property order; petitioner appeals a support order. Both parties seek to enter fresh evidence. Parties had appeared to settle their property dispute by consent, but the order was not filed within 30 days. Respondent raised concern that the calculations were wrong. Parties made a new appointment to settle. Respondent did not approve of the order, although judge signed it as both parties had consented. On issues of child and spousal support, petitioner was represented by counsel. Court of Appeal sees no reason to interfere. Property order is set aside, appeal on support order dismissed; neither party allowed to enter further evidence.
Ross v. Berens,2021 MBQB 10: Reasons to an emergency motion filed by the petitioner for variation or setting aside of a protection order, order of joint custody, and an order returning the child to the petitioner. Parties were involved in a physical altercation, investigated by WPS and resulting in two charges of assault laid against the petitioner. Respondent appearead before a JJP asking for a protection order, but did not give full and frank disclosure. Motion granted.
Draho v. Cardno,2020 MBQB 190: Request by respondent for setting aside noting of default and default judgment pursuant to Rule 19. Parties and their counsel had been communicating throughout December. Court has a broad discretion to set aside noting of default on such terms as are just. Test is summarized as 1. Was there a bona fide intention to defend; 2. Was there any undue delay that would cause irreparable harm to the petitioner; and 3. Is there evidence of a meritorious defence? Thomson, J. finds for the respondent.
Michif CFS v. K.L.B. and A.P.,2020 MBQB 182: Application by Agency for a six-month temporary guardianship order, by summary judgment. Mother opposes application and wants children returned to her care. Discussion of whether summary judgment is appropriate; Abel, J. determines it is. Agency bears evidential burden of establishing that there is no genuine issue requiring a trial. Issue of whether temporary order should be four or six months. Agency originally applied for a four month order, then changed it to six. Court ordered a four month temporary order.
Marzoff v. Marzoff,2020 MBQB 178: Master’s decision on undertakings from discoveries in a family proceeding. Motion by wife to compel husband to respond to all undertakings and file a new financial statement. Husband’s response was delayed, and incomplete for some. Review of the undertakings in dispute and analysis. Wife’s motion is granted, with costs to be determined later.
Sarah Pringle. The “Threat” of Marriage Fraud: A Story of Precarity, Exclusion, and Belonging. Allan Falconer Memorial Student Essay. (2020) 33 Can. J. Fam. L. 1 (WLNC – request a copy).
Rachel Birnbaum. Virtual Parent-Child Contact Post-Separation: Hearing from Multiple Perspectives on the Risks and Rewards. (2020) 39 C.F.L.Q. 75.
There is an increasing focus on the use of virtual technology to promote and facilitate parent-child contact post-separation. For example, texting, instant messaging, videoconferencing, webcams and other related internet tools are used to promote and facilitate contact post-separation. Yet, little is understood and written about whether and how using virtual technology impacts parent-child relationships post-separation, specifically from the perspectives of children and youth, parents, mental health professionals, and lawyers.
Labour & Employment
6586856 Canada Inc. (Loomis Express) v. Fick,2021 FCA 2: Appeal from decision of FCC allowing respondent’s application for judicial review over a complaint of unjust dismissal. Adjudicator dismissed the complaint after finding that the respondent was engaged as an independent contractor and not an employee. Standard of review is reasonableness. Discussion of whether the adjudicator considered certain evidence and whether the process was fair. FCA agrees with adjudicator and allows appeal.
Wills, Trusts & Estates
The Estate of Treasure Alna Ellison,2021 MBQB 11: Master’s report flowing from a reference order of Justice Grammond. Some issues of valuation of liability due to removing respondent as executrix of the estate. Respondent had failed to cooperate with disclosure and master is not certain that all funds have been accounted for. Also issues with fees paid to lawyer from the estate.
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Court Notices & Practice Directions
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National Security Law – 2nd ed. by Craig Forcese and Leah Westis
This text 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, threats, information, response, and accountability –Publisher’s description.
Substantive Law
Civil Litigation
C.M. Callow Inc. v. Zollinger,2020 SCC 45: Issue of whether exercise of termination clause constituted a breach of duty of honest performance. Group of condominium corporations (Baycrest) entered into a two year winter maintenance contract and a separate summer maintenance contract with the appellant, C.M. Callow. Baycrest did not renew winter contract when it was up for renewal, misleading Callow during the period of the summer contract. Appeal allowed and decision of trial judge reinstated.
The duty of honest performance in contract, formulated in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, applies to all contracts and requires that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. In determining whether dishonesty is connected to a given contract, the relevant question is whether a right under that contract was exercised, or an obligation under that contract was performed, dishonestly. While the duty of honest performance is not to be equated with a positive obligation of disclosure, in circumstances where a contracting party lies to or knowingly misleads another, a lack of a positive obligation of disclosure does not preclude an obligation to correct a false impression created through that party’s own actions. (from the headnotes)
Interlake Reserves Tribal Council Inc, et al v. The Government of Manitoba, 2020 MBCA 126: Appeal by defendant of an order granting interlocutory injunctive relief from carrying out further work on an all-season road. Manitoba Metis Federation (MMF) and the Assembly of First Nations (AFN) move to intervene. Project is the construction of two permanent outlet channels to direct flood waters in the Interlake region. Leave to intervene is governed by Rule 46.1. AFN argument includes reference to UNDRIP. Motion by both parties to intervene in the appeal are dismissed.
The Workers Compensation Board v. Ali,2020 MBCA 122: Appeal of decision denying motion by the defendant to dismiss the claim for delay. Statement of claim for negligence on the part of the defendant was filed in April 2007. Statement of defence was filed in March 2009. Analysis of the interpretation of former Rule 24.01. Appeal allowed.
Bayview Construction Ltd. v. 6681485 Manitoba Ltd.,2020 MBQB 173: Expedited action under Rule 20(A). Parties are involved in construction of a 55 unit condominium project. Plaintiff commenced action to collect remaining balance on contract; defendant counterclaims alleging breach of contract. Abra, J. notes this is “the antithesis of an expedited action” (para. 8). Judgment granted to plaintiff Bayview with interest.
Martens v. The Manitoba Public Insurance Corporation, 2020 MBQB 158: Motor vehicle accident from 1998. Liability was resolved in 2012. Current issue is whether MPI acted in bad faith. Analysis of bad faith as a stand alone claim and whether it rises to an actionable wrong. Court agrees with plaintiff that claims process rises to level of egregiousness and punitive damages are warranted.
Constitutional Law
Springs of Living Water Centre Inc. v. The Government of Manitoba, 2020 MBQB 185: Emergency Charter challenge to authority of order under the Public Health Act to restrict attendance at religious ceremonies. Onus that applicant must meet to obtain a stay of legislation is extremely high. Analysis of statutory interpretation of a Public Health Order. Application denied.
Corporate & Commercial Law
Resolute FP Canada Inc. v. Hydro-Québec,2020 SCC 43: Issue of assignment of contracts. Original contract entered into in 1926 between previous entities. Over time, the contract was assigned to Hydro-Québec through the nationalization of electricity in Québec. Respondent relied on a clause from the original 1926 contract to increase the price of electricity purchased from it by the appellant. SCC is asked to reconsider the conditions for and effects of assignment of contract. From the headnotes:
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Martin and Kasirer JJ.: The 1965 contract effected an assignment of the 1926 contract. As a result, Hydro‑Québec is a party to the 1926 contract and can therefore invoke art. 20 of that contract with respect to Resolute. Because the two levies at issue are a “tax or charge” on electricity generated from water power within the meaning of that same art. 20, the 1926 contract applies to them and they are therefore payable by Resolute to Hydro‑Québec under that agreement.
Per Côté and Rowe JJ. (dissenting): The appeal should be allowed and the Superior Court’s decision restored. The trial judge did not make a reviewable error in finding that Gatineau Power had not assigned the 1926 contract to Hydro‑Québec and that the 1965 contract had instead made Hydro‑Québec a mandatary of Gatineau Power.
Canada v. BCS Group Business Services Inc.,2020 FCA 205: Appeal from decision of Tax Court granting respondent corporation leave to be represented by its sole shareholder and director, and not a lawyer. Analysis of TCC General Procedure Rule 17.1 (right to appear). Standard of review of a question of law is correctness. Discussion of corporation as a legal person and whether it can appear “in person”. Appeal allowed.
Dennis v. The Attorney General of Canada et al,2020 MBCA 118: Potential class action by a proposed class of farmers who sold grain to the Canadian Wheat Board. Appeal of a judgment of a motion judge striking out its claim without leave to amend, on the basis that it doesn’t disclose a reasonable cause of action. Appeal allowed.
Ackron Egg Farms Ltd. v. Manitoba Egg Farmers et al.,2020 MBQB 187: Dispute over regulatory decisions in a supply management system. Explanation of the key concepts underlying supply management and the ownership of quotas. Crisis developed during the pandemic, when there was a surge of demand for eggs in their shell versus eggs for processing. Application for judicial review of decisions of Manitoba Egg Farmers (MEF). Application dismissed.
Criminal Law
R. v. Cortes Rivera,2020 SCC 44: Appeal from 2020 ABCA 76, conviction for sexual assault. Issues included whether the trial erred in declining to hold a s.276.1 hearing, and admitting certain evidence.
The Court — We would dismiss the appeal. The parties did not dispute that the trial judge erred in dismissing the accused’s application under s. 276.1 of the Criminal Code, R.S.C. 1985, c. C-46, to cross‑examine the complainant. In our view, this error did not lead to a miscarriage of justice and falls within the curative proviso under s. 686(1)(b) because the evidence was otherwise overwhelming and a conviction was inevitable.
R. v. W.M.,2020 SCC 42: Appeal from 2020 ONCA 236, conviction for sexual interference and sexual assault of accused’s daughter over materiality of the trial judge’s misapprehension of the evidence. CA ordered a new trial; B.W. Miller, J.A. in dissent would dismiss the appeal.
The Chief Justice — We are all of the view that the appeal must be allowed for the reasons of Justice Miller.
R. v. Mehari,2020 SCC 40: Appeal from 2020 SKCA 37, conviction of sexual assault related to admissibility and assessment of the evidence. CA overturned trial decision and ordered a new trial. Appeal allowed.
The Court — This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law. In any event, we see no error in respect of this argument that would have warranted intervention on appeal.
R. v. Delmas, 2020 SCC 39: Appeal from 2020 ABCA 152, that essentially the verdict was unreasonable in a sexual assault conviction. Appeal dismissed (oral decision).
Moldaver J. — A majority of the Court would dismiss the appeal. The trial judge did not engage in stereotypical reasoning in his assessment of the appellant’s evidence. (Justice Côté dissenting).
R. v. Roulette,2020 MBCA 125: Appeal of conviction by a jury for three counts of aggravated assault. Basis of conviction was that accused was a party to the offence through a common intention to commit an assault. Review of jury instructions on a standard of adequacy not perfection. Appeal dismissed.
R. v. Buckels,2020 MBCA 124: Appeal of both conviction and sentence for possession of cocaine and methamphetamine for the purposes of trafficking, as well as other offences. Conviction appeal dismissed. Sentence was not demonstrably unfit taking into account migitating factors, so leave to appeal denied.
R. v. VanEindhoven,2020 MBCA 123: Leave to appeal sentence for assault on domestic partner, based on ineffective assistance from counsel and errors by the sentencing judge. Accused also asks to admit fresh evidence. Appeal dismissed.
R. v. Overby, 2020 MBCA 121: Accused appeals conviction by a jury for second degree murder. Appeal is based on very narrow grounds. Accused argued that the circumstances warranted a finding of manslaughter. Appeal dismissed.
R. v. Richards, 2020 MBCA 120: Sentence appeal. Accused is a permanent resident of Canada but not a citizen, and received a six month custodial sentence after pleading guilt to one count of break and enter. At sentencing hearing, judge was not made aware that this sentence would make him subject to a removal order, whereas a sentence of six months less a day would allow him to appeal the removal order. Appeal allowed.
R. v. Abbasi,2020 MBCA 119: Appeal by accused for convictions of a number of sexual offences and seeks leave to appeal his sentence. Analysis of actual and innocent collusion in witness testimony and its admissibility. Appeal dismissed.
R. v. Simon, 2020 MBCA 117: Appeal of conviction for sexual assault and sentence (sentence appeal abandoned). Grounds for appeal: trial judge unevenly scrutinized the evidence; trial judge misapprehended the evidence; trial judge considered prohibited evidence when assessing credibility. Key issue at trial was consent and case turned on credibility. Appeal dismissed.
R. v. Ducharme,2020 MBQB 177: Accused is charged with first degree murder in the killing of another inmate at Stony Mountain Institute. Crown’s position is that the accused aided in the planning and carrying out of the murder, and disposing of the murder weapon. Evidence is circumstantial. Crown’s evidence is a silent video of the activities of the accused and others on the range for eight hours leading up to and after the murder. Defence interprets evidence differently. McCarthy, J. does not find the Crown has proved its case beyond a reasonable doubt and the accused is acquitted.
R. v. Cure, 2020 MBQB 175: Appeal of summary conviction for driving while impaired. Appellant argues trial judge erred in finding that arresting officer had reasonable grounds to make a breath demand; in finding that officer did not breach appellant’s Charter right under s. 10(b) to speak to counsel of choice; and in finding he was in care or control of the vehicle. Significant analysis of s.10(b); appeal dismissed.
R. v. Airmaster Sales Ltd.,2020 MBQB 174: Appeal of convictions re two provincial offence notices for speeding (photoradar). Accused’s personal representative had been denied authorization to act on his behalf; accused then did not turn up for rescheduled hearing; JJP entered default convictions. Accused argues that JJP erred when she did not allow his representative to act; Crown argues that issue is accused was convicted because he did not appear. Analysis of interpretation of “representative” (s. 53 of the Provincial Offences Act). Appeal dismissed.
The Canadian Broadcasting Corporation v. Morrison, 2020 MBQB 169: Application for an order of certiorari to quash a publication ban issued by Provincial Court in 2019. Matter is a private prosecution re charges of defamatory libel. Applicant is acting as a third party news organization and not a party to the prosecution. Argument is over the open courts principle. Issues are whether the applicant has the status to bring the application and if so, is certiorari available in these particular circumstances. Analysis of applicant’s standing. Application denied.
R. v. Farley,2020 MBQB 167: Appeal of conviction in Provincial Court for impaired driving. Accused claims a Charter breach of infringement of his right to counsel and that arresting officer should have inquired if he had drunk alcohol recently. Appeal dismissed.
R. v. F. (J.M.),2020 MBQB 161: Application by Crown for an order that the accused be sentenced as an adult. He was convicted of first degree murder. At the time of the murder he was almost 17 years old. He is now 20. Principles to be applied are s. 72(1) of the YCJA and relevant case law (noted in para. 6). Onus rests with the Crown. Order granted.
Michelle Biddulph. “The Privacy Paradox: Marakah, Mills, and the Diminished Protections of Section 8.” (2020) 43:5 Man L J 161.
This article challenges the understanding of Marakah as a progressive decision, suggesting that Marakah has created a privacy paradox. By significantly expanding the scope of section 8 of the Charter, the Court in Marakah has created a right that is both extremely broad and practically illusory.
Sonia Lawrence, Debra Parkes. “R. v. Turtle: Substantive Equality Touches Down in Treaty 5 Territory”. (2020) 66 C.R. (7th) 430. (WLNC – request a copy).
…However, in R. v. Turtle, a provincial court sentencing proceeding for impaired driving that involved a constitutional challenge brought by six Indigenous women (Sherry Turtle, Audrey Turtle, Loretta Turtle, Cherilee Turtle, Rocelyn Moose and Tracey Strang), Canadian substantive equality touched down in Treaty 5 Territory. The women had all been convicted of a second impaired driving offence, and were facing mandatory minimum sentences of not more than 90 days. They were also eligible under the terms of s. 732 of the Criminal Code to serve these sentences intermittently.
Family Law
Hart v. Pownall, 2020 MBQB 168: Motion by respondent for suspension of final order, or variation of child and spousal support pending trial. Petitioner filed a motion in opposition. Parties had signed a final order in 2016 dealing with all property and support obligations. As a result of the complexity of the issues, trial is set for May 2021. Respondent’s motion is dismissed.
M.K. v. Child and Family All Nations Coordinated Response Network, 2020 MBQB 156: Application in opposition to Notice of Intended Entry on the Child Abuse Registry. Applicant was found by WPS in vehicle with a 14 year old girl who acknowledged she was a sex trade worker. Discussion of hearsay rule as outlined in D.L. v. Child and Family All Nations Coordinated Response Network, 2014 MBCA 86. Significant analysis of credibility of testimony of applicant and its inconsistency in his statements to various investigators as well as at trial. Application dismissed.
Claire Houston. “Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts”. (2020) 33:1 Can J Fam L 103.
Family court judges are increasingly being asked to resolve parenting disputes involving conflict over a child’s gender expression or identity. These disputes ask whether it is in the best interests of children to support their gender nonconformity, including any decision to transition to a gender different from the one they were assigned at birth. Despite more of these cases coming before family courts, judges have little guidance on how to resolve these cases in the best interests of children.
Labour & Employment
Pokornik v. SkipTheDishes Restaurant Services Inc.,2020 MBQB 181: Class action over whether the plaintiff’s relationship with the defendant is one of employment or independent contractor. Defendant states that arbitration clause in the plaintiff’s contract mandates that disputes be resolved by arbitration. Chartier, J. agrees that defendant may bring its application to stay the claim under The Arbitration Act before any further steps are taken.
In a rare Saturday sitting, Chief Justice Glenn Joyal dismissed an application for a temporary stay of enforcement of the public health order regarding drive-in church services.
Introducing New Practice Resources – Have you seen The Law Society’s newly relaunched Practice Resource Library? This comprehensive collection of resources is now conveniently available at the click of your mouse, free of charge. While designed to support all Manitoba lawyers in their practice, these resources have been developed with solo and small firm practitioners particularly in mind.
Substantive Law
Administrative Law
Court v. Canada (Attorney General),2020 FCA 199: Request for judicial review of a decision of the Appeal Division of the Social Security Tribunal. Applicant was terminated from employment during her pregnancy and received maternity and parental leave benefits. She also sued her employer for wrongful dismissal and breach of contract, reaching a settlement of $50,000. Employment Insurance Commission notified the applicant that the settlement represented earnings and meant she received an overpayment of benefits and had to pay them back. Analysis of the legislative meaning of s.45 of the Employment Insurance Act and s.35 of the Regulations. Application dismissed, no awarding of costs.
Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship),2020 FCA 196: Appeal and cross-appeal re two applications for judicial review challenging the designation of four Jurisprudential Guides (JG) by the Chairperson of the IRB. Appeal dismissed and cross-appeal granted.
[4] The Federal Court certified the two following serious questions of general importance, as contemplated by paragraph 74(d) of the IRPA: 1. Does the Chairperson of the Immigration and Refugee Board have the authority pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act to issue jurisprudential guidelines that include factual determinations? 2. Do the Jurisprudential Guides that the Chairperson issued with respect to Nigeria, Pakistan, India and China unlawfully fetter the discretion of members of the Refugee Protection Division and the Refugee Appeal Division to make their own factual findings, or improperly encroach upon their adjudicative independence?
Kevin W. Gray. “A Separate Head of Judicial Review: Divergent Paths in Common Law Rights Review”, 33 Can. J. Admin. L. & Prac. 305 (Sept. 2020). (WLNC – request a copy.) “This paper argues that proportionality review, if adopted in Canada as a separate head of review, would provide a more robust form of rights protection.”
Civil Litigation
Hydro-Québec v. Matta, 2020 SCC 37: Property rights – Servitudes; whether original acquisition of servitude allowing Hydro-Québec to set up a transmission line between two substations in the 1970s allowed for additional work to be carried out on the servient land. Trial judge ruled for Hydro-Québec; appeal overturned. SCC allowed appeal.
Kuny v. Pullan Kammerloch Frohlinger et al, 2020 MBCA 114: Request for extension of time to file an appeal re summary judgment decision granted to defendants re claims by plaintiff alleging negligence and professional misconduct by two law firms. Leave granted.
Ian Dmytriw et al v, Jonah N.K. Odim et al, 2020 MBCA 112: Appeal by defendants of motion judge’s refusal to dismiss action for delay. Motion was previously dismissed by a Master then overturned by a judge. Simonsen, J. concludes that motion judge erred in law by applying the former rule rather than the current one, made a palpable and overriding error in determining the period of unexplained delay and did not properly deal with inherent prejudice. Appeal allowed. Chronology of events included, as well as discussion of differences to Rule 24.01.
Wesco Distribution Canada GP Inc. v. Fenchurch General Insurance Company, 2020 MBQB 166: Motion for preliminary determination of whether the limitation period in The Insurance Act applies to a labour and payment bond. Question depends on whether the bond is a contract of insurance under the Act. Defendant claims the limitation period was one year while the plaintiff states it is two years. Analysis of the definition of a “contract of insurance”. Greenberg, J. agrees with plaintiffs.
Grumm v. Warkentin, 2020 MBQB 164: Defendant’s motion to dismiss plaintiff’s action due to delay. Plaintiff issued a statement of claim for personal injuries sustained in an assault, in October 2006. Defendant responded in October 2007. Replay and counterclaim by the plaintiff in October 2010. Two issues: Should motion precede under current rules for delay amended on January 1, 2018 or under the old rules; should action be dismissed. Matter was not unduly complex; Chartier, J. found that plaintiff did not provide any reasonable explanation for the delay. Motion granted.
Gomes v. Laporte, 2020 MBQB 152: Two actions combined: civil action concerning an unprovoked assault, and an allegation of malicious prosecution and civil conspiracy. Plaintiff in assault pursued criminal charges which were dropped. Civil action on assault dismissed; damages awarded for the other action.
Kennedy et al. v. McKenzie, 2020 MBQB 139: Contested applications over the appointment of a committee responsible for making decisions about property and personal care. Applications are between the respondent’s common-law husband and his mother, and her own mother. Respondent suffered a traumatic brain injury after being hit by a vehicle. Analysis of legal test as set out in Yaremko v. Manitoba (Director of Psychiatric Services (2001 MBQB 85). Turner, J. concludes that respondent’s mother is the best choice.
Jerred Kiss. “The Newest Member of the Family: A Comment on Leitch v. Novac”. 64 C.C.L.T. (4th) 279. 2020 ONCA 257. (WLNC – request a copy.)
… Of these remaining economic torts, unlawful means conspiracy is perhaps the one characterized by the most uncertainty. While it is now clear that the tort’s “unlawful means” element is not restricted to civilly actionable wrongs both its general scope and elements of liability remain unclear. Thankfully, in Leitch v. Novac the Ontario Court of Appeal has now addressed the former issue, holding that while unlawful means conspiracy may be considered an “economic tort,” plaintiffs are not necessarily barred from pleading it in the family law context. …
Michael McGowan. “Annotation to OZ Merchandizing Inc. v. Canadian Professional Soccer Association”. 35 C.P.C. (8th) 396. (WLNC – request a copy.) 2019 ONSC 3882
OZ Merchandizing is an uncommon example of a closing address to a jury containing such numerous, serious, and varied flaws that the trial judge was unable to remedy the situation by correcting instructions to the jury. Although trial counsel should represent his/her client fearlessly and with vigor, the line was clearly crossed in this case.
Constitutional Law
Ontario (Attorney General) v. G, 2020 SCC 38: Right to equality re Ontario’s sex offender registry. Accused found not criminally responsible on account of mental disorder for sexual offences can never be removed from the sex offender registry even after receiving an absolute discharge from a review board. Review of ss. 7 and 15(1) of the Charter. Appeal dismissed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Christopher’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter. These discriminatory distinctions cannot be justified in a free and democratic society. The remedy granted by the Court of Appeal was appropriate, and its orders should be upheld.
Quebec (Attorney General) v. 9147-0732 Québec inc.,2020 SCC 32: Does fining a corporation constitute cruel and unusual punishment? Corporation was fined the mandatory minimum fine for an offence under s.46 of Quebec’s Building Act. The corporation challenged the fine under s. 12 of the Charter. Analysis of the meaning of “cruel and unusual” and whether it applies to corporations as well as human beings.
Per Abella, Karakatsanis and Martin JJ.: The purpose of s. 12 of the Charter is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.
Stephanie Williams. “The Powers of the CSE after C-59: Are Privacy Rights at Risk?” 40 Nat’l J. Const. L. 131. (WLNC – request a copy.)
In 2019, Canada’s national security legislation was overhauled. A significant part of this overhaul was the creation of the Communications Security Establishment Act, providing a complete legislative framework for Canada’s nearly 80-year-old signals intelligence agency, the Communications Security Establishment (the CSE). This new legislation also brings many concerns for Canadians’ privacy.
Corporate & Commercial Law
1688782 Ontario Inc. v. Maple Leaf Foods Inc.,2020 SCC 35: Issue of the tort of pure economic loss. In 2008 Maple Leaf was forced to recall meat products processed at one of its factories due to a listeria outbreak. Following the outbreak, franchisees of Mr. Sub experienced a shortage of product for six to eight weeks. A class action on behalf of the franchisees against Maple Leaf was certified, but overturned on appeal. From the headnote:
Per Moldaver, Côté, Brown, Rowe and Martin JJ.: Maple Leaf does not owe a duty of care to the franchisees in respect of these matters. … Pure economic loss is economic loss that is unconnected to a physical or mental injury to the plaintiff’s person, or physical damage to property. Per Wagner C.J. and Abella, Karakatsanis and Kasirer JJ. (dissenting): … it is just and fair to impose a novel duty of care on Maple Leaf in the circumstances, and the appeal should therefore be allowed.
Sensible Capital Corp. v. Galton Corporation,2020 MBQB 159: Motion for summary judgment by the plaintiff re various alleged breaches of a debenture agreement. Defence argues this is not an appropriate case for summary judgment and raises defence of estoppel. Extensive analysis of the test for summary judgment and whether additional oral evidence should be entered. Discussion of the parol evidence rule. Summary judgment granted.
Dowd et al. v. Skip the Dishes Restaurant Services Inc.,2020 MBQB 155: Appeal of Master’s decision dismissing plaintiffs’ motion for an interim order for preservation of property. Plaintiffs claim co-creation of the online ordering system of the defendant. Master dismissed motion because plaintiffs had not demonstrated the property, as they defined it, could be the subject of an order for preservation. Analysis of Queen’s Bench Rule 45.01. Also consideration of whether the Master’s decision would impact discovery. Appeal dismissed.
R. v. Slatter,2020 SCC 36: Appeal of 2019 ONCA 807 based on sufficiency of reasons by trial judge in a sexual assault trial. Complainant has an intellectual and developmental disability. Appeal allowed; conviction restored.
Moldaver J. — We are all of the view that the appeal must be allowed, for the reasons of Justice Pepall, with which we agree.
R. v. Kishayinew, 2020 SCC 34: Appeal from 2019 SKCA 127 on issue of subjective consent via circumstantial evidence. Delivered orally by Moldaver, J.:
“A majority of the Court is of the view that, when read in context, the trial judge’s reasons make it clear that he was satisfied, beyond a reasonable doubt, that the complainant did not subjectively consent to any sexual activity with Mr. Kishayinew.”
R. v. Langan, 2020 SCC 33: Appeal from 2019 BCCA 467 over the admission of text messages into evidence. Oral decision delivered by Abella, J.:
“A majority is of the view to allow the appeal for the reasons of Chief Justice Bauman. Justices Côté and Brown would dismiss substantially for the reasons of Justice Stromberg-Stein. “
R. v. Riley, 2020 SCC 31: Oral decision delivered by Karakatsanis, J. allowing the appeal for the reasons of Scanlan, J.A. in dissent, 2019 NSCA 94. Issue of whether giving a Vetrovec caution was an error and if so, could the appeal be dismissed by the curative proviso?
R v. Amyotte,2020 MBCA 116: Appeal of sentence. Accused submits sentencing judge misunderstood the terms of a joint recommendation; that he failed to apply the totality principle; and that he failed to give sufficient weight to Gladue factors. Crown agreed that it is apparent from the sentencing judge’s reasons that he erred. Issue reviewed at appeal court is whether this had a material difference on the sentence imposed. Sentence appeal is dismissed.
R v. Kirton, 2020 MBCA 113: Accused seeks leave to appeal, and appeal, his sentence for six offences. He was designated a dangerous offender and sentenced to an indeterminate sentence. Standard of review is that set out in R. v. Sanderson, 2018 MBCA 63, para. 8. Appeal of dangerous offender designation and indeterminate sentence dismissed.
R v. Coutu, 2020 MBCA 106: Leave to appeal by the Crown of a sentence for a warrantless search of a backpack. Accused was discovered with a backpack of firearms when police were in pursuit of another suspect similarly dressed. Trial judge declared arrest and search illegal but did not exclude the weapons evidence. Instead, he reduced the sentence from five and a half years in prison to five years, to send a “message” to the police. Standard of review allows appeal court to sentence afresh based on its own analysis, giving deference to the sentencing judge’s finding of fact to the extent that they are not affected by an error in principle (para 8). Crown’s appeal allowed and sentence is increased.
R. v. S. (D.),2020 MBQB 163: Sentence for charge of sexual interference under s. 151 of the Criminal Code. Accused is stepfather of 14 year old complainant. References R. v. Friesen as setting out applicable principles of proportionality. Rempel, J. determines denunciation and deterrence are the primary considerations, in imposing a sentence of nine years of incarceration.
An Application for a General Warrant, s. 487.01 and a Sealing Order, s. 487.3, 2020 MBPC 62: Request to use an automated licence plate reader (ALPR) to identify and track a suspected drug trafficker. Discussion of the reasonable expectation of privacy when police are gathering information. Application denied.
R. v. T.A.,2020 MBPC 59: Opposition by defence counsel to Crown’s application to file a videotaped statement of a 10 year old child involving sexual offences allegedly committed by her stepfather. Crown relies on s.715.1 of the Criminal Code; issue is whether the recording was made “within a reasonable time after the alleged offence”. Devine, P.J. sets out the four-part test to determine admissibility and finds the statement admissible.
R. v. Berent, 2020 MBPC 53: Motion for an order allowing the accuseds to attend their trial remotely by video link from California. Accuseds would have to quarantine for two weeks upon return to Manitoba and assert staying in Manitoba for a lengthy period of time would impose a hardship on them. Analysis of s.650 of the Criminal Code re the requirement for the accused to appear in court in person. Krahn, A.C.J. concluded that it would not be fair for a trial this complex to go ahead with the accused only appearing by video.
Lauren Sapic. “The Criminalization of Non-Assimilation and Property Rights in the Canadian Prairies”. (2020) 43-5 M.L.J. 95. The tragic case of Colten Boushie, a young Indigenous man from Saskatchewan, has become an inflection point in Canadian law due to the intersection of Indigenous rights and property law.
Family Law
Fijala v. Fijala, 2020 MBQB 162: Petitioner applies for an order deleting any and all arrears for child support, as well as late penalties and/or cost recovery fees and an order that the respondent pay her any overpayments. Petitioner had been ordered to pay child support to respondent for arrears, and then payments were to go to child. Confusion over who received what money. Application dismissed.
Ducharme v. Burym, 2020 MBQB 160: Divorce proceedings contesting custody arrangements for the parties’ four children and child support. Income imputed to father. Detailed consent order by MacPhail, J. at para. 66. Divorce granted.
Engel v. Southern – Santé Sud Regional Health Authority,2020 MBQB 157: Applicant claims his right to perform surgery in the respondent’s hospitals was terminated without due process. Respondent says the process set out in the By-law doesn’t apply. Question of if the issue relates to the decision to terminate operating time or the process followed, and standard of review. Analysis of definition of “complaint” and “privileges”, and whether the By-law is delegated legislation. Decision terminating applicant’s right to be on the surgical rota is quashed; Greenberg, J. suggests parties proceed to arbitration which is the next step in the process.
Reasons for Decision: Douglas Albert Mayer – Quality of Service/Failure to notify insurer
New Library Resources
New Online Titles
Emond’s Criminal Law Series
Prosecuting and Defending Sexual Offence Cases – 2nd ed. by Daniel Brown and Jill Witkin
This edition contains new chapters on historical sexual offences and cross-examination on private records, and reflects changes in Bill C-51 pertaining to third party records, other sexual history, and consent. Analysis of case law and relevant Criminal Code provisions have been integrated throughout in order to effectively guide readers through the flow of a sexual offence case.
From DesLibris
The Law of Contracts – 3rd ed. by John McCamus
“The Law of Contracts, third edition, is a thorough revision of this authoritative text in Irwin Law’s Essentials of Canadian Law series. It includes discussion of recent jurisprudential developments in a variety of topics. The book also incorporates reference to recent Canadian cases on doctrines such as estoppel, privity, interpretation, and appellate review, and discussion of recent leading authorities dealing with such matters as contractual interpretation and the application of the basic principles of formation to e-commerce.”
New Print Titles
Sopinka on the Trial of an Action – 4th Edition, by J. Kenneth McEwan
“Sopinka on the Trial of an Action, 4th Edition remains a go-to reference for best practices and strategies in the courtroom at the trial level. The book covers everything from the structure of the trial, trial preparation, presenting the case at trial and trials where the case goes to the jury. Also included is a plethora of useful and handy appendices ranging from sample opening statements, cross examination techniques, addresses and questions to the jury, to many more.”
Liability Insurance Law in Canada – 7th Edition, by Gordon G. Hilliker
“Follows the same format as earlier editions and covers all aspects of liability insurance (excluding automobile), from general principles of insurance law and insurance contracts to specific clauses and types of policies. Hilliker examines the similarities and differences between the legislative regimes of each province; analyzes the jurisprudence and identifies preferred approaches; presents a select body of U.S. case law that can be used to fill in the gaps in Canadian jurisprudence; and includes a useful set of Insurance Bureau of Canada commercial liability policy forms.”
Substantive Law
Administrative Law
Cann v. Director, Fort Garry/River Heights, 2020 MBCA 101: Application for leave to appeal an order of the Social Services Appeal Board clawing back income assistance during the pandemic. Applicant was receiving income and shelter assistance due to a disability, and applied to the CERB for additional assistance, which he reported. He received $2,000 but ultimately returned $1,260 to the federal government. Director advised he did not qualify for the CERB and thus he had been overpaid in income assistance. Board concluded that CERB was earned income. Mainella, J.A. determined this was a question of law of significant importance for many Manitobans that it required a more thorough inquiry by a panel of the Court of Appeal. Also issued an order for assistance from Legal Aid counsel.
Chandos Construction Ltd. v. Deloitte Restructuring Inc., 2020 SCC 25: Analysis of the anti-deprivation rule. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ: “The test under the anti-deprivation rule has two parts: the relevant clause is triggered by an event of insolvency or bankruptcy, and the effect of the clause is to remove value from the insolvent’s estate.” – from the summary. Per Côté J. (dissenting): “A purely effects-based test gives too little weight to freedom of contract, party autonomy, and the elbow-room which the common law traditionally accords for the aggressive pursuit of self-interest.”
The Bankruptcy of Stanley Frank Ostrowski,2020 MBQB 147: Motion by the bankrupt to annul his assignment in bankruptcy. Bankrupt realized he made a mistake and shouldn’t have made an assignment. At the time he didn’t disclose that he would be filing a suit for wrongful conviction, which, if successful, would allow him to pay off his creditors. Trustee and representative of OSB do not take a position. Creditors were given notice and none participated in proceedings. Motion granted.
Civil Litigation
Desjardins Financial Services Firm Inc. v. Asselin, 2020 SCC 30: Whether Court of Appeal was justified in intervening in Superior Court’s decision re class action. Per Wagner C.J. and Abella, Karakatsanis, Brown, Martin and Kasirer JJ.: Appeal should be allowed in part for the sole purpose of varying paras. 8 and 9 … to clarify the scope of the claim for punitive damages. Threshold for authorizing a class action in Quebec is a low one. Per Moldaver, Côté and Rowe JJ. (dissenting in part): Authorization again the Firm should be denied, and authorization against Management should be granted, but only on the claim for compensatory damages.
Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29: Post-incorporation contracts – Test is the same for post-incorporation contracts as for any other agreement. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Martin and Kasirer JJ.: “…the applicable test for finding that a post-incorporation contract exists is the same as the one for finding that any other agreement exists at common law. The test is objective, and the offer, acceptance, consideration and terms may be inferred from the parties’ conduct and from the surrounding circumstances….” Rowe J. dissenting in part.
Sagkeeng v. Government of Manitoba et al,2020 MBCA 100: Application to increase length of factum from 30 pages to 47 pages as set out in QB Rule 29(1). Due to COVID-19, parties’ argument will be based solely on written materials. Applicant argues that two proceedings are being addressed in its appeal. Motion dismissed.
Klimack et al v. Kroeker et al,2020 MBCA 98: Appeal on decision over prescriptive easements: unregistered access road affecting three cottage properties. Extensive examination and analysis of prescriptive easements in Manitoba; use relied upon by claimant must be “as of right”. Appeal dismissed.
Penner v. Montcalm (Rural Municipality),2020 MBCA 97: Motion for extension of time to file appeal book and factum re summary judgment decision on a tax sale. Plaintiff was having difficulties preparing materials due to pandemic. He had no access to the internet or libraries where he could access the internet. While Court recognized difficulty of preparation of materials in rural communities, notice of appeal does not demonstrate an arguable ground of appeal. Motion dismissed.
The Director of Criminal Property and Forfeiture v. Gurniak et al, 2020 MBCA 96: Appeal from action for the civil forfeiture of criminal property: when should a stay be granted in a civil proceeding when there are concurrent criminal proceedings. By the time this appeal was heard the matter was moot, but CA agreed to hear it. Principal concern of motion judge was that derivative evidence could be obtained in the civil case that could be used in the criminal matter. Discussion of the difference between use immunity doctrine and derivative use immunity doctrine. Appeal allowed.
Lagimodiere et al. v. The Wawanesa Mutual Insurance Company et al.,2020 MBQB 154: Application for permission to add a party as defendant in this action, and application by one of the defendants for leave to file a third party claim against that party. Defendant FirstOnSite Restoration had sought creditor protection under the CCAA. FOS made an assignment in bankruptcy and was discharged Dec. 2019. No distribution was made to any unsecured creditors. Motions partially successful.
Vincent et al. v. Red River Mutual,2020 MBQB 153: Order by applicants seeking appointment of a dispute resoution representative. Respondent opposes, arguing no action for recovery under the policy was started prior to the limitation date, resulting in lapsing of applicants’ right to use dispute resolution process. Issue is over disagreement in amount of compensation paid and restoration of personal property after a house fire. Analysis of the limitation period in s.136.2(2) of The Insurance Act. Application dismissed.
Kozak et al. v. Core Life Inc. et al.,2020 MBQB 149: Motion by defendants re jurisdiction. Plaintiffs live in Manitoba and Alberta; plaintiff corporation is a Manitoba corporation. Defendant is an Ontario company. Plaintiffs purchased shares in defendant’s corporation; negotiated an agreement that the indemnity would be construed under the laws of Manitoba. Motion dismissed.
Trunzo v. Satgunam, 2020 MBQB 144: Order seeking extension of limitation period to file a statement of claim for damages. Plaintiffs purchased house from defendant in 1998. In 2014, they had water damage which they fixed. In 2018, they discovered more extensive damage, leading to an expert opinion that the house posed a real and substantial danger to the occupants. Extensive analysis of The Limitations of Actions Act, s. 14(1). Leave granted.
DSTB Inc. v. McGregor Landscaping & Design et al.,2020 MBQB 142: Issue of garnishment over assignment. Plaintiff obtained an order of garnishment over accounts receivable of defendant. Third party JCFS seeks a declaration that it purchased the receivables with a series of assignment agreements. Importance of decision: agreements were not drafted by a lawyer, yet the intent was discernible; there isn’t much judicial consideration of garnishment vs. assignment; argument of s. 347(1) of the Criminal Code (interest at a criminal rate); whether this constituted fraud. Detailed analysis by Grammond, J. on all points.
6165347 Manitoba Inc. et al. v. The City of Winnipeg et al.,2020 MBQB 141: Motion by applicants to vary a previous order and motion by respondents to expunge some of the applicants’ evidence. Respondents’ motion is dismissed. Threshold to vary an order is very high. Grammond, J. varies para. 4 of her previous order to order that the SPC hold a fresh public meeting. Applicants request fine for respondents as a sanction; judge declines to so order. Enhanced costs to the applicants.
Desrochers v. Desrochers, 2020 MBQB 140: Parties are tenants in common of three parcels of land. Plaintiff is asking for an order of sale; defendant opposes but is requesting an order of partition. Reference to Chevalier v. Chevalier as setting out the law of partition and sale. No way to fairly partition the land, therefore Menzies, J. issues an order for sale.
Winnipeg (City) v. Caspian Projects Inc. et al.,2020 MBQB 131: Motion under QB Rule 63 for a stay of an Order pending appeal, relating to access and production of certain documents in the possession of a non-party. Only the “clearest of cases” deserve a stay of an interlocutory order. Includes test for determining answer. Applicants must prove there is an arguable case that the judgment under appeal is wrong. Appeal dismissed.
Fraser v. Canada (Attorney General),2020 SCC 28: Discrimination based on sex: claimants are retired members of the RCMP who took maternity leave in the 1990s. They expected that job-sharing would be eligible for full pension credits but it wasn’t. They were unable to purchase full-time pension credit for their job-sharing service. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ: “…This arrangement has a disproportionate impact on women and perpetuates their historical disadvantage. It is a clear violation of their right to equality under s. 15(1) of the Charter.” – from summary. Côté, Brown and Rowe JJ. Dissenting.
Criminal Law
R. v. Reilly, 2020 SCC 27: Appeal of a stay of charges of assault causing bodily harm, granted because of systemic problems in the bail system in Alberta. Oral decision by Brown, J.: “…no basis for the Court of Appeal to interfere with the trial judge’s exercise of discretion…”
R. v. Herntier, 2020 MBCA 95: Appeal of conviction by a jury of second degree murder, and the parole ineligibility term of accused’s sentence. Beard, J.A. reduces the number of grounds for appeal from 19 to 7. Also considers whether a juror can provide fresh evidence on appeal. This is a lengthy decision with significant analysis of many points, but in the end, the appeal was dismissed.
R. v. Dram,2020 MBCA 93: Appeal of sentence for possession of methamphetamine for the purpose of trafficking. Accused received sentence of four years’ incarceration and a concurrent sentence of 20 days for breach of recognizance. Accused asserts that sentencing judge erred by considering unproven aggravating facts, overemphasizing general deterrence, underemphasizing Gladue factors and imposed an unfit sentence. Standard of review is deferential. Leave for appeal granted, but appeal dismissed.
R. v. Mason, 2020 MBQB 151: Trial for manslaughter. Accused relies on defence of self-defence. She suffered from PTSD and exhibited the symptoms of Battered Woman Syndrome. Crown must establish beyond a reasonable doubt that the accused did not act in self-defence. Crown submits that the stabbing was precipitated by anger and revenge. Expert evidence admitted in forensic pathology and clinical and forensic psychology, in particular with regards to PTSD and battered women syndrome. Ultimately, McKelvey, J. did not believe Crown had proved its case beyond a reasonable doubt; accused is acquitted.
R. v. Pearase,2020 MBQB 138: Accused is charged with one count of sexual assault. Issue is whether the accused had an honest but mistaken belief that complainant had communicated consent. McCarthy, J. found that the Crown proved that complainant lacked the requisite capacity to consent. Analysis moves to whether accused had an honest but mistaken belief that she had consented. Evidence led included video of event. Accused is found guilty.
R. v. Oghieakhe, 2020 MBPC 58:Sentencing decision for accused after being found guilty of sexual assault after trial. Issue of appropriate sentence also will take in to account that accused will likely be subject to removal after the completion of his sentence. Court determined accused had high moral blameworthiness but also perceived him as an excellent candidate for rehabilitation. Sentence of two years less a day plus 24 months’ supervised probation.
R. v. J.J.D.,2020 MBPC 54: Sentencing decision for Aboriginal youth with no prior criminal record. Accused was originally charged with manslaughter, but pled guilty to assault causing bodily harm. He participated in a beating instigated by another youth that led to the death of the victim. Given credit of 1.25 days for 251 days of pre-trial detention; sentence of 9 months in custody (no further custody necessary) plus supervised probation order for next two years.
R. v. Bigl, 2020 MBPC 51: Did Crown prove beyond a reasonable doubt that accused had knowledge and control of drugs seized by police and whether money seized can be proven to be proceeds from drug trafficking. Accused did not own either the vehicle or house where property was found. Accused is acquitted.
R. v. Plaha, 2020 MBPC 50: Voir dire re impaired driving charge and driving with an alcohol reading of .08 or more. Charter motion alleging violation of right to counsel (s.10(b)) and application to exclude the breath sample evidence. At end of trial Crown stayed the impaired driving charge but other charge remained. RCMP had received a third party complaint about possible impaired driving and pulled over a driver and requested an ASD screening. Analysis of meaning of being offered “right to counsel” and satisfaction with it. Evidence is excluded.
R. v. Bear,2020 MBPC 46: Dangerous offender application. Respondent admits that this offence was a serious personal injury offence and that he has a high likelihood of harmful recidivism, but that his conduct should not be designated as dangerous but rather as a long-term offender. Respondent has been consistently non-compliant with probation supervision programs. Risk assessment places him at a high risk of reoffending violently. Decision on sentencing is between a determinate sentence followed by long-term supervision or an indeterminate sentence. Mr. Bear is sentenced to an indeterminate sentence.
R. v. C.P.,2020 MBPC 45: Sentencing decision for a youth who pleaded guilty to robbery and other charges. Crown is seeking a custodial sentence followed by a year of probation. Defence requests a probationary sentence. Victim Impact Statement by victim of armed robbery shows extent of terror he still feels. Mitigating factors include youth’s guilty plea, Gladue factors, and compliance with strict release conditions as well as remorse. Devine, P.J. determines to give accused least restrictive sentence that is capable of achieving the purpose of holding him accountable, most likely to rehabilitate and reintegrate him into society and promote a sense of responsibility.
R. v. Harder,2020 MBPC 43: Voir dire to determine whether accused’s Charter rights had been violated over impaired driving arrest before being administered an ASD. Court found no breach of s.8 or s. 10(b).
R. v. Wood, 2020 MBPC 42: Application for delay based on Jordan where trial is scheduled to take place 17 months and 27 days after the charge was laid. Crown agrees that defence was diligent in moving the case to trial. Crown’s position is that the net delay is less than 13 months. Includes analysis of the issue of attributing co-accused delay as well as whether the time to trial markedly exceeded what is reasonable. Court determined it did not; application dismissed.
Family Law
J.D.B. v. D.K.M.,2020 MBCA 102: Further hearing in appeal of review of final order made in 2018. Review order was found to be in error regarding custody of daughter. Appeal allowed in part.
Zilke v. Epp, 2020 MBCA 99: Respondent is requesting an adjournment for the appeal of an order finding her in contempt of court orders dealing with custody and access, as well as the penalty imposed. Petitioner is opposed, as appeal was filed over a year ago. Court invited parties to resolve the matter which they were able to do. Appeal granted, varying the order.
Marrese v. Dyck,2020 MBCA 94: Respondent appealed a final order made under The Family Maintenance Act, requiring him to pay child support plus a further amount towards arrears. Issue over financial disclosure; respondent claimed expenses not supported by the amount he claimed in income. Trial judge identified evidence explaining why he accepted that the respondent’s true income was much higher than what he reported. Appeal dismissed.
Zheng v. Yang,2020 MBQB 146: Divorce Act proceeding, with a number of issues resolved before trial. Remaining matters are income quantification of petitioner to determine child support obligation; income determination of respondent to assess entitlement and quantum of spousal support; and whether money given to parties to purchase family home was a gift or a loan. Parties had been supported financially by petitioner’s parents. Now petitioner presented a promissory note signed between him and his parents indicating that money used to purchase family home was a loan and not a gift. Respondent claims she thought it was a gift and would not have accepted it if it had been a loan. Analysis of credibility of all witnesses. Thomson, J. finds respondent has made her case that the money was a gift.
Labour & Employment
Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26: Appeal re constructive dismissal –whether damages for breach of duty to provide reasonable notice include incentive bonus. “This appeal bears on the redress available to an employee who, by reason of the circumstances of his departure from a job he had held for many years, is treated in law as if he were dismissed. By extension, it concerns some of the proper contours of an employer’s common law right to determine the composition of its workforce.” – para. 1. Appeal allowed. Kasirer J. (Wagner C.J. and Moldaver, Côté, Brown, Rowe and Martin JJ. concurring).
Isaacson et al v. Credential Insurance Services Inc., 2020 MBCA 103: Appeal of dismissal of claim for distribution of commissions post-termination. Plaintiff claims commissions vested with them. Issue of contractual interpretation in employment contracts and Agency Distribution Agreement. Appeal dismissed.
Wills, Trusts & Estates
Dobrowolski v. Dobrowolski, 2020 MBCA 105: Appeal over dispute between estate of deceased and one of the deceased’s children. Issue is over whether deceased invested in property with as tenants in common or gifted the investment. Trial judge relied in hearsay as parties to intent had passed away. Reliability and weight of hearsay evidence was evaluated along with any corroborative evidence. Trial judge had found that deceased had documented a business relationship, leading him to find for the plaintiff. Analysis of the treatment of hearsay evidence. Also appeal of award of double costs. Appeal dismissed.
The Estate of Denise Joanne Pynenburg et al. v. Donald Rocan Salkeld, 2020 MBQB 150: Motion for summary judgment by estate. Parties were in a common law relationship for 21 years, ending in August 2003. They entered into a settlement agreement signed in 2007. Denise died three years later and her estate sued to enforce defendant’s obligations under the agreement. He contends the obligation ended upon the death of Denise. Rempel, J. is satisfied this can be resolved by summary judgment through affidavit evidence and cross-examination on the affidavits. Plaintiffs were mostly successful.
Sentencing in Canada : Essays in Law, Policy, and Practice edited by David Cole and Julian Roberts
“A unique collection of essays that explore all key aspects of sentencing. The volume is not simply a statement of the law—instead, the chapters examine the wider context in which sentencing and parole decisions are taken. The volume also incorporates findings from the latest empirical research into sentencing policy and practice in Canada, including important issues such as sentencing Indigenous persons.”
Financial Skills for Professionals by Vern Krishna
“This book uses clear, concise explanations and simple numerical examples of what lawyers and professional persons need to know to understand financial law and statements.”
The Law of Evidence – 8th ed. by David Paciocco, Palma Paciocco, and Lee Stuesser
“Canada’s leading text in evidentiary law in both criminal and civil cases. In this newest edition of this frequently cited book, the authors continue the practice of organizing, explaining, and illustrating the law of evidence clearly, simply, and practically. The Law of Evidence, 8e, provides authoritative analyses of new cases, and portions of the book have been rewritten or reorganized to enhance discussion of the most important topics in evidentiary law.”
Canadian Family Law – 8th ed. by Julien D. Payne and Marilyn A. Payne
“The eighth edition of Canadian Family Law is a companion volume to Payne and Payne, Child Support Guidelines in Canada, 2020. Previous editions of both of these texts have been cited in hundreds of judicial decisions across Canada, including the Supreme Court of Canada and appellate courts from coast to coast. Canadian Family Law has also been adopted as required reading in family law courses presented by several colleges and universities across Canada.”
Substantive Law
Administrative Law
Bell Canada v. British Columbia Broadband Association, 2020 FCA 140: Appeals of order issued by the CRTC retroactively setting final rates that large telephone and cable companies can charge for aggregated wholesale high speed access services. While the appeal is consolidated, the telephone companies and the cable companies have different arguments. Telephone companies argue that the CRTC erred in law or jurisdiction; cable companies argue the CRTC committed one or more legal jurisdictional errors. Respondents represent or are independent internet service providers. Analysis of the legislative framework of the Telecommunications Act. Appeals dismissed.
… On this issue, two common law apex courts have recently divided: the United Kingdom Supreme Court taking one view, the High Court of Australia a very different view. …
Civil Litigation
Bent v. Platnick,2020 SCC 23: Appeal concerning s.137.1 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Appellant sent an email to members of the OTLA listserv naming the respondent and alleging that he altered doctors’ reports and changed a doctor’s decision. Respondent commenced a lawsuit in defamation. Appellant filed a motion under s.137.1 of the CJA to dismiss; motion judge allowed, appeal court set it aside and remitted defamation claim to the Superior Court for consideration. Held: Appeals should be dismissed. Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ: Claim in defamation should be allowed to continue. It deserves to be adjudicated on its merits. Appellant has met her threshold burden that her email constitutes an expression relating to a matter of public interest; respondent has also discharged his burden that the proceeding has substantial merit. Abella, Karakatsanis, Martin and Kasirer JJ. dissent.
1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22: Litigation on same section of the Courts of Justice Act, different conclusion. Appellant brought action against respondent in breach of contract; respondent moved to rely on s.137.1 to have action dismissed. Respondent opposed a proposed subdivision development by the appellant and testified at a hearing of the Ontario Municipal Board. Significant analysis of statutory interpretation. Appeal dismissed. Côté J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. concurring).
Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19) (CA), 2020 FCA 137: Response to Attorney General regarding meaning and application of s.6 in order to reduce uncertainty. Attorney General submits that s.6 suspends retroactively all time limits established by or under an Act of Parliament between March 13 and September 13, 2020. Court issues a direction under Rule 54 to clarify.
John Deere Financial Inc. v. Macdonald (Rural Municipality), 2020 MBCA 90: Respondent municipality appealed an order declaring the applicant the lawful owner of seized property and requiring it to be returned. The RM seized two front-end loaders leased from the applicant by the owner of property in a land-use dispute. Appeal dismissed.
Rylaarsdam v. Balcaen, 2020 MBCA 91: Appeal by respondent of decision appointing applicant (her brother) as sole attorney for Arie Jacob Rylaarsdam, requiring him to provide an annual accounting to her and an accounting to the Master every two years. Respondent raised numerous grounds of appeal relating to the conduct of the hearing and the decision itself. Appeal dismissed.
Carlson v. Dunn et al,2020 MBCA 85: Defendants’ appeal of finding of liability in personal injury decision. Plaintiff suffered severe injuries falling off the roof of the defendants’ garage while inspecting work done by one of the defendants. Defendants argue that trial judge made errors in factual findings, findings of negligence and order of costs. Appeal partially allowed, setting aside judge’s finding of liability against Dunn.
Evans v. Norway House Fisherman’s Co-op Ltd. et al,2020 MBCA 83: Appeal of denial of application for judicial review. Applicant’s membership in the Co-op was terminated. Applicant claims application judge should have ruled on his claim that the Co-op breach his right to procedural fairness. Application judge ordered a trial of the oppression claim against respondent Saunders. Appeal dismissed.
Winnipeg (City) v. Caspian Projects Inc. et al.,2020 MBQB 129: Series of contested motions: defendants’ motion to strike the plaintiff’s statement of claim; defendants’ motion for further and better particulars (argued in the alternative to their motion to strike the statement of claim); plaintiff’s motion to amend its statement of claim; motion brought by the “Sheegl defendants” for severance; and a motion brought by the “Sheegl defendants” to strike the cross-claim brought by the “Consultant Defendants”. Summary of determinations: defendants’ motion to strike the City’ s statement of claim is dismissed; defendants’ motion for further and better particulars is dismissed; City’s motion to amend its statement of claim is granted; Sheegl Defendants’ motion to sever is granted; Sheegl Defendants’ motion to strike the cross-claim of the Consultant Defendants is dismissed.
Vale v. Schwartz et al.,2020 MBQB 127: Motion for summary judgement. Plaintiff alleges that some defendants stole nickel from the plaintiff’s mining operation and unlawfully converted it to nickel; other defendants bought the stolen nickel and sold it. Motion is successful; damages will be argued later.
Michael A. Skene, Dirk Laudan. Canadian Construction Law Reform: A Survey of Recent Developments in Builders Liens, Prompt Payment, Interim Adjudication and Mandatory Construction Bonding. 2020 J. Can. C. Construction Law 93. (WLNC – request a copy.)
Corporate & Commercial Law
Fire Sky Energy Inc. v. EverGro Energy Corporation, 2020 MBQB 133: Both parties claim a leasehold interest in petroleum located near Virden. Plaintiff claims defendant’s lease expired January 2016 and theirs came in to effect in February 2017. Defendant contends its interpretation of the lease is that it remains valid. Lessor agrees with plaintiff. Analysis of the terms of the lease. Plaintiff is successful but no damages awarded.
R. v. McDonald, 2020 MBCA 92: Appeal of conviction for first degree murder. He is seeking a manslaughter verdict or a new trial. Ground of appeal is that it is unreasonable; accused argues that trial judge’s decision was based on two key findings not supported by the evidence. Steel, JA found that the trial judge carefully reviewed and evaluated all the evidence and provided reasons for what he accepted. Trial judge’s reasons are entitled to deference. Appeal dismissed.
R. v. Contois, 2020 MBCA 89: Appeal of conviction for second degree murder and request for leave to appeal the sentence for that offence. Main issue is narrow – whether the accused should have known that when he discharged a firearm, death would be the result. Analysis of s.229(c) of the Criminal Code and the assessment of the subjective knowledge of the accused. Appeal dismissed.
R. v D.T., 2020 MBCA 88: Appeal of conviction for sexual assault. Accused argues that trial judge misapprehended the medical evidence. Court cites R. v. Morrissey and R. v. J.A.W. as authority on test for determining whether there was a misapprehension of evidence amounting to a miscarriage of justice. Appeal dismissed.
R. v. Thorassie,2020 MBCA 87: Motion by accused for an extension of time to file an appeal regarding his convictions and an extension to file an application for leave to appeal his sentence. Accused was convicted of offences of aggravated assault endangering life, possession of a knife, and carrying a concealed weapon. Burden is on applicant to show why he should receive an extension. Difficulties with completing the application for appeal on time appeared to be administrative, and grounds for appeal had merit; both motions allowed.
R. v J.G.H.W.,2020 MBCA 86: Request for appeal by the Crown re probationary sentence received by young person for sexual offences. Crown had recommended two years custody followed by one year probation; defence asked for two years supervised probation. Sentencing judge concluded there were alternatives to custody and sentenced him to probation. CA determined that sentencing judge erred in principle in imposing a sentence holding the young person accountable through meaningful consequences and added a period of incarceration. At time of hearing, accused had been compliant with the terms of his supervised probation for several years. Sentence was varied, adding a 12-month custody and probation order, which was then stayed.
R. v. Thomas,2020 MBCA 84: Decision adjourning an appeal. Accused pleaded guilty to second degree murder in 2011 and was sentenced to life imprisonment. A year later she filed a motion for an extension of time to appeal the conviction, which was heard in 2016, making a claim of “ineffective assistance of counsel”. Very little movement on file since then. Appeal adjourned until later date in fall.
R. v. Okemow,2020 MBQB 128: Sentencing decision for conviction of second degree murder. Plain language decision from Martin, J. taking into account a Gladue report, presentence report and various psychiatric fitness reports as well as victim impact statements. Delivered at God’s Lake Narrows First Nation. Also considers whether harsh nature of RCMP cells during trial should be taken into account in mitigation. Accused given sentence of life in prison, serving 16 years before asking for release, reduced by two months.
Leila Gaind. A Rose by Any Other Name: Well-Being Checks, a New Manifestation of Discriminatory Policing? (2020) 25 Appeal 3.
… Across jurisdictions, the data reveals that street checks disproportionately target Black, Indigenous, and other racialized and marginalized persons. … Now, street checks are a way for officers to check in on the “well-being” of marginalized community members. In Vancouver, the VPD has framed this practice as promoting a social good, but this article contends that well-being checks are another manifestation of arbitrary street checks.
Don Stuart. Labillois: The New Power to Demand an ASD without Reasonable Suspicion: What of Section 8?(2020) 63 C.R. (7th) 243. (WLNC – request a copy.)
Family Law
Michel v. Graydon, 2020 SCC 24: Retroactive variation of child support order under provincial legislation. Further clarification of the rule in D.B.S. Per the summary, “a court must analyze the statutory scheme in which the application was brought, and the different policy choices made by the federal and provincial governments must be respected.” Respondent father had understated his income for child support purposes; mother was dependent on social assistance and assigned her rights to receive child support to the Minister. Minister never authorized an application to review child support. In 2015 mother applied to retroactively vary child support (terminated in 2012). Delay was reasonable – father had engaged in blameworthy conduct by failing to accurately disclose his income. Appeal allowed. Majority reasons (Moldaver, Côté, Brown, Rowe and Kasirer, J.J.) delivered by Brown, J. (paras. 1-37); concurring reasons of Wagner, C.J. and Martin, J. delivered by Martin, J. (paras. 38-135); further concurring reasons of Abella and Karakatsanis, JJ., delivered by Abella, J. (para. 136).
Rachel Birnbaum. Virtual Parent-Child Contact Post-Separation: Hearing from Multiple Perspectives on the Risks and Rewards. (2020) 39 C.F.L.Q. 75 (WLNC – request a copy.)
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