The Manitoba government is seeking feedback from the public on proposed measures to combat rural crime and metal theft through a new online questionnaire
A social impact bond is a social policy tool that brings together government, the private sector, not-for-profits and other stakeholders to deliver effective and prevention-focused solutions. Private investment is used to fund the programs initially, and then is repaid if social outcomes and cost savings are realized. These types of programs allow the government to explore more innovative solutions without financial risk, with the ultimate goal of delivering better outcomes for Manitobans.
In the newest addition to our Legal Ease Guides, we provide you with a helpful summary and quick tutorial of tracing the legislative history of federal and provincial acts.
Discover how to track changes to an act, find amendments, and discover the originating acts of current statutes.
New Online Titles
Information and Privacy Law in Canada by Barbara von Tigerstrom ”Explores how we can access information held by public bodies, what governments and other organizations can do with information about us, and how we can use the courts or other mechanisms to hold others accountable when they violate our privacy or misuse our personal information.”
Mergers, Acquisitions and Other Changes of Corporate Control – 3rd ed. by Christopher C. Nicholls “This book offers a succinct and insightful discussion of the principal laws governing mergers and acquisitions transactions conducted in Canada. This third edition discusses the implications of a host of recent legal and regulatory developments since the publication of the second edition, including, in particular, the ground-breaking changes introduced by National Instrument 62-104 in 2016.”
The Canadian Investor: Challenge and Change in Canadian Capital Markets by Anita Indira Anand “This book examines all aspects of the many different institutions, programs, actors, and laws that affect investors’ rights. A detailed and accessible analysis of the Canadian landscape that explores securities commissions and other regulatory institutions through a contemporary lens, The Canadian Investor is currently unique in Canada.”
Criminal Procedure — 4th ed. by Steve Coughlan “This book sets out and examines the law governing criminal procedure in Canada. This fourth edition updates the law in all areas of criminal procedure. Most notably, it incorporates significant discussion of Bill C-75, which has made changes to a great many areas of the Criminal Code. In addition, it includes discussion of significant new SCC cases.”
Anatomy of an Election: Canada’s Federal General Election of 2019 Through the Lens of Political Law by Gregory Tardi “Anatomy of an Election takes a comprehensive and interdisciplinary look at Canada’s 2019 federal election as an example of a democratic election. This book is unique in its explanation of elections and electioneering. It sets the scene by enumerating the foundational elements of Canada’s electoral system, focusing on the constitutional principles, the legislation, and the major court judgments.”
Substantive Law
Administrative Law
Brown v. Canada (Citizenship and Immigration), 2020 FCA 130: Challenge to the enforcement of removal orders by the Canada Border Services Agency on behalf of the Immigration Division of the Immigration and Refugee Board of Canada. Appellant was found to be inadmissible to Canada on the basis of criminal convictions. He was held in correction facilities for five years before being deported. Appellant challenged constitutionality of detention under ss. 57 and 58 of IRPA, claiming it violates ss. 7, 9, 12 and 15 of The Charter. Although appellant had been removed from Canada and thus the challenge was moot, Federal Court exercised its discretion to hear the application in the public interest. FC dismissed the Charter challenge. Appeal is based on the following certified question:
Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?
Decision is a further examination of Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. Appeal is dismissed.
The College of Pharmacists of Manitoba v. Jorgenson, 2020 MBCA 80: Plaintiff applies for security for costs for defendant’s appeal and leave to serve its motion electronically and retroactively. This was an issue of defamation which had been decided for the plaintiff under summary judgment. Defendant claimed financial impecuniosity, but provided no evidence. Motion allowed; defendant ordered to pay security for costs in the amount of $5,000.
The Civilian Director of the Independent Investigation Unit v. The Winnipeg Police Service,2020 MBQB 125: Application for an order of mandamus requiring WPS to provide notes made by Cadets at an incident IIU is investigating. Order of mandamus is an extraordinary remedy granted only in exceptional circumstances. Analysis considers the legislative interpretation of “Cadet”. Neither the Independent Investigations Regulation nor The Police Services Act mention cadets. Grammond, J. concludes that IIU is entitled to product of cadet notes made relative to the incident being investigated.
Enns v. Rosenort Housing Corp. Inc. et al., 2020 MBQB 124: Motion by defendant for summary judgment. Claim for damages under The Occupiers’ Liability Act for a slip and fall on an icy driveway resulting in a broken ankle. Claim against R.M. of Morris and Cousin’s Gravel & Surfacing was dropped. Defendant Rosenort Housing must meet standard of reasonable care as imposed by the Act. Plaintiff feels there is a genuine issue for trial, Bond, J. disagrees. Summary judgment granted.
Winnipeg (City) v. Caspian Projects Inc. et al., 2020 MBQB 120: Plaintiff’s motion for non-party production pursuant to QB Rule 30.10 and defendants’ motion to strike significant portions of plaintiff’s supporting affidavits. Further to redevelopment of former Canada Post Building to use as WPS headquarters. City wants possession of documents that are in the possession of the RCMP. Legal framework includes the test applicable to a s.490(15) of the Criminal Code as articulated by Bond, J. in Canada Post Corporation v. Canada (A.G.), 2018 MBQB 87 at para. 17. Defendants’ motion to strike dismissed; City is entitled to the production order.
Corporate & Commercial Law
Desrochers v. Desrochers, 2020 MBQB 123: Reference to the Master for accounting and valuation of assets of a farming partnership. Parties had not documented in writing material agreements. Primary issue is disposition of three half sections of farmland which will be resolved by trial. Parties agree on value; plaintiff wishes to purchase defendant’s share, defendant wishes to purchase some or all or plaintiff’s share or an order for partition and sale. Reference evaluates contested secondary issues.
R. v. Poperechny, 2020 MBCA 81: Appeal of summary conviction reinstating charges that had been stayed due to delay in which delay was actually under the presumptive 18 month ceiling. Onus is on accused to establish that s.11(b) Charter Rights were infringed. Second level appeal pursuant to s.839 of the Criminal Code. Standard of review is correctness. LeMaistre, JA did not endorse appeal judge’s reasoning but agreed that the motion judge made a legal error and her decisions is not owed deference. CA conducted its own analysis of the delay and dismissed the appeal.
R. v. Slotta, 2020 MBCA 79: Request for leave to appeal and appeal of an eight year sentence of incarceration as a result of a guilty plea for one charge of importing fentanyl. Companion case to R. v. Petrowski. Accused requests a reduction in sentence, Crown asks that Court set sentencing ranges of double to triple the amount established in R. v. Rocha, 2009 MBCA 26. Appeal dismissed; Court also declined to set sentencing ranges.
R. v. Petrowski, 2020 MBCA 78: Similar to R. v. Slotta, request for leave to appeal and appeal of 10 year sentence of incarceration for charge of importing fentanyl. Accused argues that sentence is unfit and asks for reduction; Crown argues sentence should be longer due to the dangerousness of fentanyl. Both appeals dismissed.
R. v. Fisher, 2020 MBCA 75: Accused seeks to set aside a deemed abandonment of his appeal and to extend the time to file his motion. Accused filed notice of appeal of his conviction and sentence but due to issues with legal aid and the pandemic, was unable to respond in time. Crown has no objection to an extension. Accused bears onus to establish that he had a continuous intention to hear the appeal. Motion granted by appeal dismissed. LeMaistre, JA found no arguable error.
R v. E. Moar, 2020 MBQB 121: Sentencing hearing for accused who pled guilty to one count of manslaughter in the death of his mother. Aggravating factors include a recent criminal record, brutal and vicious assault leading to victim’s death, assault witnessed by victim’s young children, accused is assessed at a very high risk to reoffend. Mitigating factors include guilty plea (at the last minute), Gladue factors, family support. Crown seeks 14 years less time in custody, defence asks for go forward sentence of two years, taking into account time in custody. Sentence of incarceration of 8 years with a credit of 47 months for time in custody.
R. v. McIvor, 2020 MBQB 117: Appropriate sentence for conviction of intentionally discharging a firearm. Two accused involved; different sentences recommended. Crown argues that this accused has a higher moral culpability as well as a more substantial record, therefore his sentence should be longer. Defence argues for parity with other accused. Judge sentences accused to a year longer than co-accused.
R. v. Russell, 2020 MBQB 41: Trial where accused is charged with sexual assault. Events took place in 2006, when complainant was 12 years old. Toews, J. analyses the evidence using the three-step test set out in R. v. W.(D.). Accused is convicted.
R. v. Tarapaski, 2020 MBPC 36: Trial for charges of uttering threats, mischief, possession someone else’s identity documents, possession a firearm and more. Police found an “alleged makeshift firearm”. Discussion of interpretation of “possession” of the firearm as well as what is a firearm. Accused is found guilty of some of the counts and not guilty of others.
R. v. Bohemier, 2020 MBPC 33: Sentencing reasons for arson, assault, and assaulting a police officer. Accused is a vulnerable adult under the care of the Manitoba Trustee. On the night of the offence he was in a psychotic state brought about by schizophrenia. Analysis of principle of proportionality when crafting a sentence as well as other relevant sentencing principles. Accused was sentenced to two years for arson, concurrent sentence of six months for assault less time currently spent in custody.
Family Law
Van Easton v. Wur, 2020 MBCA 82: Appeal of charge of criminal contempt. Petitioner (mother) initiated a civil contempt proceeding based on father’s disobedience of a custody order. Court issued a criminal contempt proceeding due to father’s interaction with motion judge during the civil contempt proceeding. CA concluded that rules of natural justice had not been followed and quashed the criminal contempt charge.
CFS Western MB v. C.D.C. and W.D.V. et al.,2020 MBQB 118: Application by agency for an order for summary judgment to place child with paternal grandparents. Mother is opposed, arguing that the child should be returned to her care. Father of child has consented to the order placing the child with his parents. Concern relates to mother’s addiction issues and ability to parent the child. Analysis of whether summary judgment is fair and just in this situation; Abel, J. finds that it is. Agency’s motion is granted, with a guardianship order for six months.
WRCFS v. R.V.S. and D.D.T.,2020 MBPC 32: Due to previous involvement with the Agency, child was apprehended at birth. Issue is whether the Agency had reasonable and probable grounds to believe that the child was in need of protection. Court found that the Agency based its decision on speculation of harm. No direct caselaw on how to interpret serious harm in a non-emergency situation. Significant analysis of K.L.W. v. Winnipeg Child and Family Services,
Waraich v. Director of Employment Standards, 2020 MBCA 76: Motion for leave to appeal a decision of Small Claims Court. Leave can only proceed on a question of law or jurisdiction. Claimant had been issued five payment-of-wages orders. She referred two to the Manitoba Labour Board but not the other three. Director filed certificates under the Employment Standards Code making them enforceable as judgments of the court and collected the amounts by a third-party demand on the claimant’s bank. Director argued that trial judge erred in law in disposing of the payment-of-wages orders. Motion to appeal is allowed but only on the question of whether the trial judge applied the correct legal test in quashing two of the orders.
Klassen v. Rosenort Cooperative Limited, 2020 MBQB 116: Action for wrongful dismissal. Employment terminated for breach of confidentiality by providing a local manufacturer with an internal pricelist. Plaintiff is successful, and was awarded damages in lieu of notice, as well as aggravated and punitive damages.
Wills, Trusts & Estates
Preston et al v. Wachniak, 2020 MBCA 77: Motion by respondent seeking an extension of time to file a factum. Applicant held power of attorney for her mother, who moved in to a personal care home. Applicant applied for a writ of possession for her mother’s home, where the respondent (brother) resided, in order to sell it to fund her mother’s care. Writ of possession was granted, but stayed for 90 days in order for respondent to find new accommodations. Mother passed away and the writ of possession was set aside. Mother’s will divided her assets equally between all her children. New order for writ of possession was issued, and not appealed, making original appeal moot. Appeal dismissed.
Legislation
Federal
43rd Parliament, 1st Session (Parliament has been prorogued)
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Upcoming CPD: Your Legal Research Toolkit: How the Manitoba Law Library Can Help September 24, 2020 12:00 noon – 1:00 p.m. (webinar) Details and Registration
Court Notices & Practice Directions
State of Emergency and Public Health Orders All COVID-19 Notices and Practice Directions are available here.
Commissions of Inquiry by Stephen Goudge & Heather MacIvor, “Co-authored by the former Commissioner of the Public Inquiry into Pediatric Forensic Pathology, this book explores the powers and procedures of federal and provincial Commissions of Inquiry and their impact on our daily lives.”
Legal and Legislative Drafting – 2nd ed. by J. Paul Salembier, “This title tackles the challenge of drafting complex legal and legislative documents. This book goes far beyond simply discussing the principles; it provides readers with a step-by-step guide that helps them put those principles into action.”
The Canadian Law of Mortgages – 3rdEdition by Joseph E. Roach, “The third edition of this book, cited numerous times by the court in every major Canadian jurisdiction, fully updates you on the law of mortgages in Canadian common law jurisdictions. Author Joseph Roach delves into problems and questions that real estate practitioners tackle on a daily basis.”
Substantive Law
Administrative Law
Ewanek v. Winnipeg (City of) et al., 2020 MBQB 98: Application for judicial review of a decision of the City of Winnipeg Appeal Committee concerning a zoning variance. The property to be rezoned is next door to the applicant. Appeal Committee had previously turned down the application in 2017. Appeal provision for this committee is on a question of law. Standard of review will be correctness. Other issues raised are reviewed under reasonableness. Application dismissed.
Katherine Hardie. Deference after the Trilogy: What is the Impact of a “Culture of Justification”? 33 Can. J. Admin. L & Prac. 145. (WLNC – request a copy).
This article looks at the meaning of the reasonableness standard post-trilogy and, in particular, the differences between the majority’s approach and that of the minority, as well as the impact of a “culture of justification” on the reasonableness standard.
Civil Litigation
Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19: Appeal of certification for class action on the basis of whether the plaintiffs` claims disclose a reasonable cause of action. Plaintiffs are relying on waiver of tort, breach of contract and unjust enrichment, seeking a gains-based award. Plaintiffs claim that VLTs are inherently dangerous and deceptive. NLSC and NLCA both certified the action; SCC allowed the appeal.
From the headnotes:
Held (Wagner C.J. and Karakatsanis, Martin and Kasirer JJ. dissenting in part): The appeals should be allowed, the certification order set aside and the plaintiffs’ statement of claim struck in its entirety.Per Abella, Moldaver, Côté, Brown and Rowe JJ. : Each claim that the plaintiffs have pleaded is bound to fail because it discloses no reasonable cause of action.
Salt Canada Inc. v. Baker, 2020 FCA 127: Appeal of a judgment from the Federal Court for an order directing the Commissioner of Patents to vary the records to reflect a new owner of a particular patent. FCC stated it did not have jurisdiction, believing this to be an issue of contractual interpretation; FCA disagreed. Analysis of s.52 of the Patent Act as well as comparisons to other statutes.
The Rural Municipality of MacDonald v. Zettler et al., 2020 MBQB 108: Motion by plaintiff for summary judgment granting relief with a permanent injunction against the defendants. Long history of litigation between the parties concerning use of property as a landscaping business. Includes analysis of s. 180 of The Planning Act. Also includes an order re remediation of the property. Summary judgment granted.
Buhr v. Buhr, 2020 MBQB 107: Motion to dismiss action due to delay. Events occurred in July 2010, statement of claim was filed in 2012, examinations for discovery began and ended in September 2016. Defendants submit action must be dismissed pursuant to Queen’s Bench Rule 24.02(1) (long delay rule) or 24.01(1) (presumption of significant prejudice). Bock, J. provides analysis under both circumstances in dismissing the plaintiff’s action.
Fougere v. Rural Municipality of Lac du Bonnet et al., 2020 MBQB 102: Action seeking financial compensation over sale of property in a tax sale proceedings. Two actions combined by consent: action against the RM and action against the lawyer acting on her behalf. Both actions dismissed.
Ladco Company Limited v. The City of Winnipeg, 2020 MBQB 101: Applications for judicial review of City of Winnipeg’s Impact Fee By-law (127/2016) and a related resolution. Issues: Are the by-law and resolution ultra vires; whether the by-law creates an indirect tax or whether it imposes a fee. Starting point for analysis of standard of review is reasonableness. Significant analysis of the difference between an indirect tax and a regulatory fee. Edmond, J. finds for the applicants.
Bibeau et al. v. Chartier et al.,2020 MBQB 100: Request to reconsider a decision. Extraordinary circumstances must be present as set out in Abraham v. Wingate Properties Ltd., (1985 MBCA). Motion to reconsider dismissed.
Jones v. Roller, 2020 MBQB 97: Action in defamation. This is a motion to seeking further portions of the Statement of Claim struck. Some portions struck; plaintiff is given 20 days to provide additional particulars in other areas.
Silpit Industries Co. Ltd. v. Rady et al., 2020 MBQB 96: Appeal by applicant of arbitration award. Parties have right of appeal on question of law alone. Issue is over legal fees that were added into the award. Both parties referred to SCC decision of Teal Cedar Products Ltd. v. British Columbia. Application dismissed.
Jerred Kiss. The Newest Member of the Family: A Comment on Leitch v. Novac. (2020) 64 C.C.L.T. (4th) 297 (WLNC – request a copy). The economic torts are in a “state of flux.”1 While the Supreme Court of Canada brought much needed clarity to the unlawful means tort in Bram Enterprises Ltd. v. A.I. Enterprises Ltd., questions concerning the nature and scope of the other economic torts — such as inducing breach of contract, unlawful means conspiracy, and intimidation — continue. Leitch v. Novac, 2020 ONCA 257.
Constitutional Law
Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21: Companion case to 2020 SCC 20. Issue of whether confidential Cabinet documents can form part of the record on a review, pursuant to Bodner v. Alberta. SCC (9:0) allowed the appeal in part; and the motion judge’s declaration modified such that only the discussion of government-wide implications in the Attorney General’s report and the communications plan be included in the record.
British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20: Similar to above. Appeal allowed and master’s order for production of Cabinet submissions quashed.
Reference re Genetic Non‑Discrimination Act,2020 SCC 17: Reference by the Government of Quebec on the constitutionality of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, with respect to whether these provisions were ultra vires to the jurisdiction of Parliament over criminal law. Quebec Court of Appeal held that ss. 1 to 7 exceeded Parliament’s authority over criminal law. The Canadian Coalition for Genetic Fairness appealed to SCC as of right. Appeal allowed, 5-4: per Karakatsanis J. (Abella, Martin JJ. concurring); per Moldaver J. (concurring) (Côté J., concurring); per Kasirer J. (dissenting) (Wagner C.J.C., Brown, Rowe JJ. concurring).
Criminal Law
R. v. Thanabalasingham,2020 SCC 18: Appeal by Crown of stay of proceedings in a second degree murder case due to delay. Charges were laid before release of R. v. Jordan. Delay was calculated to be around 45 months; appeal dismissed, delivered by The Court.
R. v. Bernier, 2020 MBCA 74: Application for leave to appeal a summary conviction appeal challenging the legality of the photo radar legislation. Applicant argued that s.229 of The Highway Traffic Act violated his presumption of innocence. Tests to be applied: 1) whether the appeal meets the test for permitting a second level appeal; and 2) whether there is an arguable case that this meets the test for an appellate court to reconsider a prior decision of the Court (para 8). Application granted.
R. v. Williams, 2020 MBCA 72: Appeal of a jury conviction for manslaughter for failing to provide the necessities of life for a child asserting that the trial judge erred in instructing the jury. He also seeks leave to appeal his sentence. Child’s mother was convicted in her death. A witness testified that the accused was present when the mother abused the child. Jury instructions are reviewed on a standard of adequacy, not perfection. Leave for appeal of sentence granted; discussion of fitness of sentence includes reference to R. v. Friesen, 2020 SCC 9. Both appeals dismissed.
R. v. McKay, 2020 MBQB 106: Sentencing decision for guilty plea for manslaughter. Two reports prepared: Probation Services Pre-Sentence Report and a Gladue Report. Accused was diagnosed with partial Fetal Alcohol Syndrome at 24 months. Factors taken into consideration include what would best benefit and protect the community as well as provide the best prospects of rehabilitation.
R. v. Morrissette,2020 MBQB 90: Not guilty plea to possession of a firearm. Evidence to be analyzed in accordance with the principles of R. v. W.(D.). Firearm and three shotgun shells were on the floor of the backseat of a stolen vehicle, near where the accused was sitting. Accused is convicted.
R. v. Bigl, 2020 MBPC 29: Application to seek leave to cross-examine police officer who swore the affidavit granting a search warrant for the accused’s home, as well as an application deeming the search a warrantless search. Analysis of the legal test for issuance of a warrant. Applications dismissed.
R. Solomon, L. MacLeod, E. Dumschat. The Shifting Focus of Canadian Impaired Driving Enforcement: The Increased Role of Provincial and Territorial Administrative Sanctions. 25 Can. Crim. L. Rev. 25 (2020) (WLNC – request a copy). Federal criminal charges and prosecutions have historically played the dominant role in efforts to deter impaired driving. However, the processing of these charges has become an exceedingly technical, time-consuming and uncertain venture, prompting a shift in Canadian impaired driving enforcement. Provincial administrative sanctions are increasingly being used not only to augment, but also instead of federal criminal charges.
Family Law
Bloomfield v. Halfyard, 2020 MBCA 73: Appeal of order re joint custody. In 2015, judge had granted joint custody with primary care and control to the father, and specified times of care and control to the mother. Mother appeals dismissal of various motions, including a motion for contempt. Appeal dismissed with costs of $500 to the father.
Anderson v. Bernhard, 2020 MBCA 71: Appeal of order dismissing a motion to vary a consent order. Issues raised included spousal support and arrears owing. Appeal dismissed.
Kamer v. Ptashnik, 2020 MBCA 70: Appeal of final order after a trial, as well as a motion to introduce fresh evidence. Litigation had been ongoing since 2008. Most arguments founded on allegations of procedural unfairness and bias. Cameron, J.A. emphasized the importance of deference owed to the trial judge. Appeal dismissed.
Tunmer v. Tunmer, 2020 MBQB 112: Petition for divorce, spousal and child support, division of property and matter of contempt. Respondent (husband) filed incomplete financial disclosure and has been delinquent at following previous orders. Detailed analysis of the finding of contempt leading to the imposition of a significant financial penalty and a custodial sentence of one day imprisonment. Support and property matters also dealt with.
Muense v. Muense, 2020 MBQB 105: Application under The Hague Abduction Convention. Father requests the return of two young children to Germany. Both parties are German citizens, mother is a Canadian permanent resident. During the marriage the parties moved back and forth between Germany and Canada. Father consented to mother’s return to Canada for an extended visit but thought they would return. Mother claims visit was always a permanent stay. Original filing came right at the start of the COVID-19 lockdown. Analysis of “habitual residence” as well as whether the mother’s removal of the children was “wrongful”. MacPhail, J. finds that Germany is the habitual residence. Analysis of s.13 of Convention is based on credibility of evidence submitted by the parties. Application is dismissed.
Michif CFS v. C.L.H. and W.J.B., 2020 MBQB 99: Agency seeking a 6 month temporary order for child of C.L.H. and W.J.B. Agency had requested a hearing in June 2019 to determine if child was in need of protection; this was granted. After several adjournments, trial was finally held in May 2020. Detailed discussion of ability of parents to properly care for child, including reports from several experts. Court determined child is to be returned to his parents within three months, potentially with support from the Agency.
Shelley, Katherine Tess. “The Exclusion Trap for Women Refugee Claimants who Escape Domestic Violence with Children.” Osgoode Hall Law Journal 55.3 (2018) : 756-790. Women who escape domestic violence with their children are being denied refugee status in Canada on the grounds that, by fleeing with their children, they have committed the crime of child abduction. Article 1(F)(b) of the 1951 Refugee Convention, which has been imported into Canadian law, specifies that individuals who have committed serious, non-political crimes are excluded from the protections associated with being a legal refugee. Consequently, women who travel to Canada with their children risk the denial of their refugee claims solely because they chose not to abandon their children in an abusive or potentially dangerous situation.
… CanLII now has more than 2,290 pieces of content relating to COVID-19, which include at least 2,000 cases and 150 pieces of legislation. CanLII continues to update its collection as documents are made available by courts and tribunals. …
Emond Publications Criminal Law Series – several titles are already been updated. This e-book series is available to all Law Society members. Sign in to the Members Portal, click on “Library Resources” at the bottom of the left-hand navigation pane and then select the series. All 15 titles are written from the point of view of prosecution and defence.
Substantive Law
Administrative Law
3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103: Appeal of CRTC findings on Notice of Violation (NOV) that appellant had committed four violations of CASL and the resulting fines. Appellant also asserted that CASL is unconstitutional. Parties agreed that CRTC has the jurisdiction to determine the constitutional question. Standard of review is correctness on the constitutional question, and standard of palpable and overriding error on NOV. Appeal dismissed.
Entertainment Software Assoc. v. Society Composers, 2020 FCA 100: Issue of the appropriateness of a tariff on music from a streaming service. Analysis of s. 2.4(1.1) as added by the Copyright Modernization Act, S.C. 2012, c.20. Discussion of Vavilov and its effect on setting the standard of review for administrative decisions. FCA determined that the Copyright Board’s interpretation of s. 2.4(1.1) cannot stand. Appropriate remedy is to quash the decision and grant costs to the applicants.
The College of Pharmacists v. Jorgenson, 2020 MBQB 88: Request for summary judgment in claim for a permanent injunction and damages over defamation. Defendant published a variety of statements claiming the plaintiffs were responsible for the deaths of several Indigenous people in Northern Manitoba. Defendant did not provide any evidence backing up his assertions. Summary judgment is granted, along with significant costs.
Qualico Developments (Winnipeg) Ltd. v. Winnipeg (City of) et al., 2020 MBQB 87: Application for judicial review and an order of mandamus to amend the 2019 assessment and tax rolls of the applicant. Applicant sold a strip of property to the city, resulting in an amendment to the assessment of the property’s value. Applicant did not appeal future assessments, relying on the carry forward principle. Applicant was assessed on higher value. Standard of review is reasonableness, not correctness. Application granted.
Bankruptcy Law
Civil Litigation
Uber Technologies Inc. v. Heller, 2020 SCC 16 : Respondent started a class proceeding in Ontario for violations of employment standards législation. Appellant brought motion to stay the class based on the arbitration clause. Motion judge stayed the proceeding, holding that the arbitration agreement’s validity had to be determined by arbitration. ONCA allowed the appeal. Many issues to resolve : Is the arbitration clause unconscionable? Is there an inequality of bargaining power? Does the Ontario International Commercial Arbitration Act apply or the Arbitration Act? Is there an issue of accessibility? Appeal dismissed : per Wagner C.J. and Abella, Moldaver, Karakatsanis, Rowe, Martin and Kasirer JJ; Côté J. dissenting.
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13: Minority language education rights. Analysis of s. 23 of The Charter and its remedial purpose. Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: Appeal allowed in part; Brown and Rowe JJ. dissenting in part.
Winnipeg Condominium Corporation 479 v. 520 Portage Avenue Ltd et al, 2020 MBCA 66: Appeal of decision of application judge transferring ownership of parking area from the developer to the condominium corporation. Developer retained ownership of parking area as a unit, then leased it to the corporation. Purchasers of condominiums thought it was part of the common elements. Intervenor held three registered mortgages against the parking unit. Appellant (Developer) believed matter should proceed by trial, not application. Appeal dismissed.
Samborski Environmental Ltd. v. The Government of Manitoba et al, 2020 MBCA 63: Motion for an extension of time to file and serve a notice of appeal. Issue of whether an environmental license allowing a composting operation on the property was valid or not. Detailed analysis of s. 90(1)(a) of The Court of Queen’s Bench Act concerning when leave to appeal is required for a consent order. Motion granted.
Rebillard v. Winnipeg (Police Service) et al, 2020 MBCA 59: Appeal of dismissal of lawsuit alleging false arrest, false imprisonment and malicious prosecution. Plaintiff had history of animosity with her neighbour. WPS obtained warrant for her arrest; Crown later stayed all charges. Appeal centred on whether defendants had grounds to arrest and charge her; trial judge erred in evidentiary rulings; and trial judge failed to assist her as a self-represented litigant. Appeal dismissed, except for order for throwaway costs, which were allowed.
Sagkeeng v. Government of Manitoba et al., 2020 MBQB 83: Applicant alleges that the respondents breached the duty to consult and accommodate in respect of a project permitting construction on traditional and ancestral territory. Minister of Sustainable Development had issued a license to Manitoba Hydro permitting the construction pursuant to s.12 of The Environment Act. Applicant is seeking judicial review of the minister’s licensing decision. Explanation of the duty to consult as well as a detailed review of the facts. Application dismissed.
Weremy v. The Government of Manitoba, 2020 MBQB 85: Action for class action certification relating to allegations of physical and sexual abuse of the residents of the Manitoba Developmental Centre (MDC). Detailed analysis of all the issues under s.4 of The Class Proceedings Act, Certification of a Class Proceeding. Claim is certified.
Corporate & Commercial Law
Canada v. Cameco Corporation, 2020 FCA 112: Appeal of decision of Tax Court on the issue of s.247(2)(b) and (d) of the Income Tax Act. The decision of the Tax Court reversed the Minister’s allocation of the profit of a foreign subsidiary of a Canadian corporation to the parent Canadian corporation. Main focus was the application of the transfer price rules in s.247. Appeal dismissed.
Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108: Order on intervenors. Six parties have moved to intervene in this appeal. In a no-nonsense order, Stratas, J.A. sets out the terms for the parties. First, they are collected into groups based on broadly similar submissions. Each group is allowed to submit one memorandum of fact and law. They cannot add to the evidentiary record. Oral submissions will be determined by the panel hearing the appeal.
Zohar Levy and Nicholas Carmichael. Covid-19 as a Force Majeure, and Other Contractual Considerations. Business Law Reports (2020), 2 B.L.R. (6th) 32 (WLNC – request a copy).
Teresa Scassa, Amy Salyzyn, Jena McGill, Suzanne Bouclin. Developing Privacy Best Practices for Direct-to-Public Legal Apps: Observations and Lessons Learned, (2020) 18 Can. J. L. & Tech. 1 (WLNC – request a copy).
Alexi N. Wood and Jennifer Saville. Tort of Harassment: Crying Out for a Remedy, (2020) 38 Adv J. No. 4, 26 – 28 (LAQL – request a copy).
Criminal Law
R. v. Zora, 2020 SCC 14: Whether mens rea for offence of failure to comply with conditions of undertaking is to be assessed on a subjective or objective standard. Appellant was charged under s. 145(3) of the Criminal Code for breaching his curfew and breaching his condition to answer the door. Analysis of subjective and objective mens rea. Appeal allowed; new trial ordered. Decision delivered by Martin, J.
R. v. Li, 2020 SCC 12: Companion case to R. v. Ahmad, 2020 SCC 11. No entrapment this time. Guilty plea entered, matter remitted for sentencing. Oral decision of the Court.
R v. Dhaliwal, 2020 MBCA 65: Appeal of sentence after conviction for fraud and forgery. Accused is a citizen of India and permanent resident of Canada. Based on his sentence he suffered collateral immigration consequences. Counsel should have brought this to the attention of the judge, however, it is also the judge’s duty to take this into consideration. Sentence was varied to six months less a day, with the restitution remaining.
R. v. J.A.W.,2020 MBCA 62: Appeal of conviction and sentence for sexual assault. Accused based appeal on a misapprehension of the evidence by the trial judge. Court noted that it must be careful to not retry the case. “An evaluation of testimony may only be interfered with where it cannot be supported by any reasonable view of the evidence” (para. 13). Appeals dismissed.
R. v. Singh et al, 2020 MBCA 61: Appeals of convictions and sentences for sexual assault. Main focus of appeal is that the trial judge misapprehended the DNA evidence. CA found that trial judge took into account the limitations of the forensic evidence. Both appeals dismissed.
R. v. Bonni, 2020 MBCA 64: Appeal of sexual assault conviction. Accused argues four errors: judge applied a higher level of scrutiny of the evidence of the defence; he misapprehended the evidence; that he improperly considered the accused’s prior relationship with the complainant; and he should not have allowed the Crown to call rebuttal evidence. Appeal dismissed.
R. v. Brar, 2020 MBCA 58: Appeal from conviction of sexual assault on grounds that trial judge erred in dismissing his motion for a stay under s.11(b) of the Charter. Argument for stay was conducted after trial, going against court recommendations (but with consensus of counsel). Judge issued a 28 page endorsement with reasons for dismissing motion. Monnin, J.A. issued comment on inappropriateness of such a long endorsement (paras 41-45). Appeal dismissed.
R. v. McLeod, 2020 MBQB 80: Appeal of conviction for assaulting a peace officer engaged in the execution of her duties. Accused argues First Nation safety officer was not acting as a peace officer in law when the assault took place, therefore he should be just convicted of the included offence of assault. Explanation of the three sources of authority for the statutory scheme governing First Nation safety officers. As issue is a question of law, standard of review is correctness. Appeal dismissed.
Tim Quigley. R. v. Friesen: Sentencing Guidance from the Supreme Court of Canada (2020), 62 C.R. (7th) 77 (WLNC – request a copy).
The primary role of our highest court is, of course, to act as the court of last resort in deciding individual cases. The Court, however, also plays an influential role by providing guidance to lower courts. It does not always accept this role in a comprehensive manner but it certainly has in R. v. Friesen. To state the ratio decidendi of the case would be relatively simple: The Manitoba Court of Appeal erred in finding that the sentencing judge in a case of sexual interference against a young child had erred in principle. However, it is much more likely that Friesen will become authority for the proposition that sentences for sexual offences against children must increase. That is certainly a prominent part of the message delivered by the Court. At the same time, though, the Court seized the opportunity to re-state or to re-formulate several other principles that should govern the sentencing process.
Rowan Kunitz. At the Mercy of the Court: Canadian Sentencing Principles and the Concept of Mercy. (2020) 25 Can. Crim. L. Rev. 1 (WLNC – request a copy).
Understood via its sentencing versus pardon, administrative, or constitutional lenses, mercy remains understudied in Canada’s courtroom context. This has resulted in a gap between Mercy’s theoretical underpinnings and its courtroom application. This gap is rooted in mercy’s theoretical and historical definitions, corrective versus sentencing understandings, and limited Canadian focused legal scholarship.
Family Law
Smederovac v Eichkorn, 2020 MBCA 57: Appeal of order for child support and order for costs after a two day trial. Trial was focused on determination of income. Appeal over judge ordering an amount of child support over and above the set-off amount in a shared custody regime. Standard of review re child support is highly deferential; analysis of s.9 of the Guidelines. Appeal allowed; trial judge erred in ordering an increased set-off amount without explaining how she arrived at that figure. Parties still have some issues to be settled, so matter is sent back to Family Division. Costs are reassessed.
Peters v. Peters, 2020 MBQB 94: Motion to vary final order, allowing termination of spousal support, retroactive reduction in child support and remission of arrears of child and spousal support. Threshold requirement of a material change in circumstances has been met. Respondent’s financial disclosure is inadequate; Petitioner requests income be impugned to him. Thomson, J. grants reduction of annual income for support purposes but not to the level the respondent requested.
Dueck v. Dueck, 2020 MBQB 89: Motion by father to increase his periods of care and control. Father is on probation from assaulting mother, and is not allowed to have direct contact with her. Mother has agreed to an Interim Order on care and control to facilitate father’s access. Father seeks shared care and control. Mother is not opposed to the care and control schedule but opposes shared care and control. Interim Order is granted allowing father a little more time with the child.
Nicholas Bala. Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act. (2020) 39 CFLQ 45 (WLNC – request a copy).
Since the Report of the Special Parliamentary Committee in 1998, it has been widely acknowledged that the parenting provisions of Canada’s Divorce Act were in need of reform. After a couple of unsuccessful efforts to enact reforms in the early years of this century, in May 2018 the Liberal government introduced Bill C-78, proposing significant changes to the law governing post-divorce parenting. The Bill had widespread support from family lawyers, judges, and scholars, as well as mediators, and mental health professionals. There was, however, controversy about some parts of Bill C-78 at the Parliamentary Hearings, and minor amendments were made as a result of the Committee process.
Labour & Employment
The Portage la Prairie Teachers’ Association v. The Portage la Prairie School Division, 2020 MBQB 93: Application for an order quashing the award of an arbitration panel determining that a directive that teachers remain in school and available until 4:00 p.m., whether they have been assigned duties after the end of the instructional day at 3:20 p.m. Panel concluded that the directive was fair and reasonable. Neither the collective agreement nor legislation governs the directive. Award upheld, application dismissed.
Manitoba Federation of Labour et al v. The Government of Manitoba, 2020 MBQB 92: Argument over whether The Public Services Sustainability Act, S.M. 2017 c. 24, violates the Plaintiffs’ right to freedom of association. The Act was passed in 2017 but has not yet been proclaimed. McKelvey, J. issued a 288 page decision that ultimately decided in the plaintiffs’ favour.
UNIFOR and its Local 100 v. Canadian National Railway, 2020 MBQB 91: Application for judicial review of an arbitration decision. Employee was involved in a near-miss accident, and was tested for drugs and alcohol as per CNR policy. Oral fluid sample tested positive for marihuana and cocaine; employee was terminated. Several issues discussed: standard of review; breach of duty of procedural fairness; misapprehension of evidence; failure to apply the collective agreement and the employer’s policy in determining the employee’s responsibility. Application denied.
Gaucher v. Manitoba Public Insurance Corporation, 2020 MBQB 84: Claim for wrongful dismissal. Plaintiff claims defendant had no cause to terminate her without notice; defendant claims she was terminated for just cause. Issues include cannabis in the workplace before legalization, condoning a subordinate’s illegal conduct, losing trust of the employer. Defendant is successful. Perlmutter, A.C.J.Q.B includes damages he would have assessed if plaintiff had been successful.
Sarah Marsden. “Who Bears the Burden of Enforcement: The Regulation of Workers and
Employers in Canada’s Migrant Work Programs” (2019) 22:1 C.L.E.L.J. 1. (Available on HeinOnline).
Wills, Trusts & Estates
John E.S. Poyser. Annotation: Geluch v. Geluch Estate. (2020) 55 E.T.R. (4th) 133 (WLNC – requst a copy).
The decision in Geluch Estate is interesting for three different reasons. First, dealing with capacity, the decision is a rare example of a court expressly addressing the analytical framework applicable to a combination of inter vivos and testamentary instruments intertwined into a single estate plan. Second, dealing with knowledge and approval, the court struck down a residue clause contained in a will based on the so-called “doctrine of righteousness.” Third, dealing with remedy, the court struck down the residue clause but allowed the remaining clauses in the will, including bequests, to go to probate, effectively severing the bad from the good.
Trotter, Gary T. The Law of Bail in Canada, 3rd ed. All aspects of judicial interim release from all jurisdictions in Canada.
Substantive Law
Administrative Law
Canada (Attorney General) v. Poirier, 2020 FCA 98. Appeal from Appeal Division of the Social Security Tribunal. Respondent applied for disability pension under CPP but was denied by General Division which determined that he had residual work capacity, but his attempts to find alternative work weren’t serious. Appeal division concluded the General Division made an error of fact and reversed the decision. For judicial review, the standard of review is reasonableness. Locke, J.A. allowed the appeal and remitted it for reconsideration by a differently-constituted panel of the Appeal Division.
Jhanji v. The Law Society of Manitoba, 2020 MBCA 48. Applicant was suspended from the practice of law pending completion of disciplinary proceedings. Court of Queen’s Bench judge dismissed his appeal of the interim suspension. Applicant now appeals that appeal. Applicant has not shown any basis to intervene in the discretionary decision of the Complaints Investigation Committee. Appeal dismissed.
Stadler v. Director, St Boniface/St Vital, 2020 MBCA 46. Does requiring a disabled recipient of income assistance to apply for CPP retirement benefits early (age 60) pursuant to s.12.1(2) of Manitoba Assistance Regulation infringe on his equality rights under s.15 of The Charter? Appellant original appealed to the Social Services Appeal Board which determined it did not have the jurisdiction to hear the Charter arguments. In 2017 this court determined that it did (2017 MBCA 108). A new panel of the Board upheld the decision, and the appellant appealed again. Appeal allowed.
Alejandro Gonzalez, The Evolution of the Duty to Consult: A Framework for Improving Consultations, Negotiations, and Reconciliation, 2020 10-1 Western Journal of Legal Studies 1, 2020 CanLIIDocs 680, retrieved on 2020-06-04.
Alice Woolley and Amy Salyzyn, Protecting the Public Interest: Law Society Decision-Making After Trinity Western University, 2019 97-1 Canadian Bar Review 70, 2019 CanLIIDocs 1599, retrieved on 2020-06-04.
Bankruptcy Law
9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10. Appeal from Quebec of an ongoing proceeding instituted under the Companies Creditors Arrangement Act. Two decisions by the supervising judge are at issue: whether a supervising judge has the discretion to bar a creditor from voting on a plan of arrangement where they determine that the creditor is acting for an improper purpose; and whether the supervising judge can approve litigation funding as interim financing. Analysis of s.11 of the CCAA. Appeal allowed, supervising judge’s order reinstated. SCC determined that the Court of Appeal failed to treat the supervising judge’s decisions with the appropriate degree of deference. Joint reasons for judgment: Wagner C.J. and Moldaver J. (Abella, Karakatsanis, Côté, Rowe and Kasirer JJ. concurring).
Bannerman Lumber Ltd. et al. v. Goodman, 2020 MBQB 76. Application for a declaration under s. 178(1) of the BIA that a debt should survive discharge of bankruptcy. The specific provision states that an order of discharge does not release the bankrupt from any debt or liability resulting from obtaining property or services under false pretences. “An issue of importance in the present case is the degree of knowledge required to establish deceit.” (para. 10). Applicants are successful.
Tyler McNaughton. Case Comment – Re Brennan. Canadian Bankruptcy Reports (Articles) (2020) 77 C.B.R. (6th) 20 (WLNC, request a copy). (2019 ONSC 4712).
Civil Litigation
Albo v The Winnipeg Free Press et al, 2020 MBCA 50. Appeal regarding contractual interpretation. Parties negotiated a contract for consultation leading to the defendant publishing a series of articles. Opportunity arose to compile the articles into a book. Plaintiff was unaware and sued for royalties. Analysis of “good faith performance of the contract” (para 43). Appeal dismissed.
Green v University of Winnipeg, 2020 MBCA 49. Applicant seeks leave to appeal an order declaring him a vexatious litigant. Leave denied.
Linda R. Rothstein. Inside the Woodshed: Preparing the Direct Examination of a Key Witness in a Civil Trial, 38 Adv. J. No. 4, 20-22 (Spring 2020) (LAQL – request a copy).
Carla L. Maclean, Lynn Smith & Itiel E. Dror. Experts on Trial: Unearthing Bias in Scientific Evidence, (2020) 53 U.B.C. L. Rev. 101 – 139 (LAQL – request a copy).
Corporate & Commercial Law
Laliberté v. Canada, 2020 FCA 97. Appeal of whether a trip to the International Space Station is a shareholder benefit versus a stunt-type promotional event. Minister of National Revenue (MNR) assessed the appellant with a shareholder benefit equal to the cost of the trip. Tax Court ordered that the appellant be reassessed based on a shareholder benefit equal to 90% of the cost of the trip. Appeal dismissed.
Roofmart Ontario Inc. v. Canada (National Revenue),2020 FCA 85. Appeal of order under the “unnamed persons requirement” (UPR) of the ITA and ETA. MNR was investigating compliance in the residential construction industry. Studies have estimated that as much as 20% of residential construction is unreported. CRA identified the appellant as the subject of a UPR due to the size of its business, its clientele and its location. Appellant raised three objections: that the application is ultra vires; the Federal Court erred in its application of the statutory criteria; and the Court applied the incorrect burden of proof. Appeal dismissed.
State Industries Ltd. et al. v. Summers Equipment Inc. et al.,2020 MBQB 77. Defendants are seeking the setting aside of an Anton Piller Order (APO) authorized in September 2018. The plaintiffs claim the defendants breached the implied terms of their employment agreements. Onus is on defendants to satisfy the court that the APO should be set aside on the basis that the plaintiffs failed to comply with their duty of candor and disclosure. Analysis of the evidence presented to grant the APO along with the counter-argument. Bond, J. determined that order should not be set aside.
Nygard International Partnership v. Canadian Broadcasting Corporation et al.,Nygard International Partnership v. Prowse, Nygard International Partnership v. Neal, 2020 MBQB 71. Three motions to dismiss for delay, in accordance with Queen’s Bench Rules 24.01 and 24.02. Summary of the principles to review in determining if the delay is unreasonable or not is set out in para. 18. Master Clearwater found mixed results.
R. v. Ahmad,2020 SCC 11. Two appeals combined on the application of the law of entrapment. In each appeal police received an unsubstantiated tip that a particular phone number was used in a drug operation. Police officers called the numbers and requested drugs and arranged meetings with the person who answered. At trial, both accused argued that the charges should be stayed on the basis of entrapment. SCC held that appeal by A. should be dismissed; appeal by W. should be allowed. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. Dissenting on W.: Wagner, C.J., Moldaver, Côté, and Rowe JJ.
R. v. Neepin, 2020 MBCA 55. Appeal of manslaughter sentence. At issue is whether the trial judge erred in principle in findings of fact, how he addressed the accused’s the moral culpability in light of these factors and the Gladue factors, and whether the sentence is harsh and excessive. Appeal allowed and sentence reduced to seven years.
R. v. Nelson, 2020 MBCA 53. Appeal of convictions for aggravated assault, robbery with a firearm, and three weapons offences. The victim in this instance was unable to identify the accused but a witness did and gave a videotaped statement. The witness did not show up for trial until she was detained on a material witness warrant. The witness declined to review her statement and could not recall some details while testifying. Key issue at trial was whether there was proof beyond a reasonable doubt of the identity of the attackers. Issue on appeal is whether the trial judge erred in allowing the witness to testify after reviewing her prior statement. Appeal dismissed.
R. v. K.N.D.W., 2020 MBCA 52. Crown appeal against sentence. Accused was convicted of sexual assault and sentenced to two years less a day. Crown argues that the sentencing judge erred by underemphasizing the brutal nature of the sexual assault and the risk posed by the accused given his prior record, and failing to take into account the traumatic impact on the children. Appeal allowed, sentence increased to five years.
R. v. Thompsett, 2020 MBCA 47. Accused seeks leave to appeal his sentence and a restitution order. Accused breached his judicial interim release by leaving a residential treatment program on the day he arrived. He asserts the sentencing judge erred in principle by considering the breach conviction as an aggravating factor. On reconsideration of restitution order, fresh evidence showed the amount should be varied as requested, with Crown consenting. Leave to appeal allowed, appeal from sentence dismissed.
R. v. Miles, 2020 MBCA 45. Accused appeals conviction for second degree murder on the basis that the verdict was unreasonable. He argues that the trial judge erred in assessing the evidence of a key witness, erred in the application of the law regarding inferences and post-offence conduct, and erred in the finding that the accused’s intoxication did not negate the intent to commit murder. Appeal dismissed.
Re DNA Warrant for Malcolm, 2020 MBPC 23. Reasons for the need of a police officer to swear an information to obtain a DNA warrant before a provincial court judge. Reconsideration of decision of Judge Pollack from 2010 (Winnipeg (City) Police Service (Re)). Krahn, A.C.P.J. determines it is acceptable for police officers to submit their informations to obtain DNA warrants sworn before a commissioner for oaths.
R v Jachetta, 2020 MBPC 21. Decision on legal test to stand fitness for trial. Accused had been disbarred for misappropriation of trust funds and then charged by police with criminal breach of trust, fraud, false pretences and theft. “For accused to be fit, he must possess the ability to engage with the trial process in a meaningful way” (para 35). Krahn, A.C.P.J. finds he is unfit to stand trial.
Paul L. Moreau. COVID-19 and the Tertiary Ground.“This article examines the considerations of Canadian jurists of the impact of the pandemic on decisions of judicial interim release.” 2020 CanLIIDocs 676
Adelina Iftene and Jocelyn Downie. End-of-Life Care for Federally Incarcerated Individuals in Canada, 2020 14-1 McGill Journal of Law and Health 1, 2020 CanLIIDocs 551, retrieved on 2020-06-04.
Family Law
Usman v Usman, 2020 MBCA 54. Appeal of two orders made by chambers judge regarding the division of property acquired during the marriage. Appellant was found in contempt of the first order (Everett order) and given an extension to comply with it. When the matter came up again, he had still not complied with it (Dueck order) so respondent was given carriage to sell the property. Appellant has continued to refuse to cooperate. Appeal dismissed, costs to the respondent and appellant was ordered to pay costs to the court because he did not include a copy of reasons from one judge for his appeal book.
CFS Western Manitoba v. C.J.P. et al.,2020 MBQB 74. Children had been placed with grandparents and great-grandparents under temporary orders. Issue is whether children, being returned to mother, need to continue to be in need of protection. Onus is on Agency to prove children are still in need of protection. Order is based on the best interests of the children. Abel, J. also comments on use of judicial resources in resolving this matter, and effect of COVID-19.
Gray v. Gray,2020 MBQB 69. Father seeks order on issues related to property, interim child support including a contribution towards special or extraordinary expenses; mother seeks interim spousal support and a no contact or communication order. Father has primary care and control of children. Trial on the issues is set for end of November 2020. Some issues determined on summary judgment.
Cory Giordano. Family Law: Stays; Child-Custody & Access. CanLII Connects. Case Comment: Jonzon v. Yuill, 2020 ABCA 219
Kathleen Hammond. Relationally Speaking: The Implications of Treating Embryos as Property in a Canadian Context, (2019) 32 Can. J. Fam. L. 323 – 386. (LAQL – request a copy).
Labour & Employment
Lairenjam v. Unifor National Council 4000, 2020 FCA 96. Complaint with Canada Industrial Relations Board alleging Union had breached its duty of fair representation. Applicant lost his job when Ministry of Transportation issued a ticket for failing to maintain his truck in a safe operating condition. Union declined to support his grievance because he already had four Step 3 discipline assessments. CIRB dismissed the complaint, then six months later the applicant asked for reconsideration due to new developments. CIRB declined to review; this is a an application for judicial review. Standard of review is reasonableness. Review dismissed.
Brandon (City) et al. v. Brandon Professional Firefights’/Paramedics’ Association,2020 MBQB 73. Application for order quashing an arbitrator’s award regarding banked overtime. Standard of review is reasonableness as articulated in Vavilov. City argued that arbitrator exceeded her jurisdiction and erred by imposing a split onus on the issue; Union argued that while it, as the grievor, bore the legal onus of proof, the arbitrator properly imposed a shifting evidential burden of proof (para 11 and 12). Application is dismissed and the award upheld.
Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government of Manitoba, The Honourable Scott Fielding, 2020 MBQB 68. Application for an order of mandamus to appoint an arbitration board to settle matters respecting the collective agreement renewal. Keyser, J. concluded that MGEU is entitled to the mandamus relief.
Wills, Trusts & Estates
Durand v. Durand et al., 2020 MBQB 70. Application by widow of deceased to remove one co-executor, due to a conflict of interest, and replace him with another. The estate is a farm corporation. Widow is dependent on payments from the spousal trust to supplement her pension. All other beneficiaries support mother’s application. Application granted.
Estates, Trusts and Pensions Journal, (2020) Vol. 39, No. 3. (Request a copy).
ImagineAbility Inc. v. City of Winnipeg,2020 MBCA 39 – Appeal of order of mandamus granted by the reviewing judge requiring tax collector for the City to correct tax rolls. Discussion of s.340 of The City of Winnipeg Charter, S.M. 2002, c. 39 and reasonableness. Appeal allowed.
The Law Society of Manitoba v. Kalo, 2020 MBCA 37 – Appeal of costs award for an appeal of a permanent injunction. Court found no merit to the appeal and ordered costs against the respondent, including additional costs intended to censure the respondent’s behaviour in court.
Manitoba Metis Federation Inc. v. Brian Pallister et al., 2020 MBQB 49 – Request for judicial review of Cabinet’s decision to issue a directive aligning the government’s policies with Manitoba Hydro practices regarding agreements with Indigenous communities. The review takes into account questions surrounding the lawful exercise of Cabinet’s stewardship role over Hydro, the honour of the Crown and whether MMF was entitled to special procedural rights in relation to a Cabinet policy decision. Joyal, C.J.Q.B. dismissed the application.
Canada (Attorney General) v. Zalys, 2020 FCA 81 – Appeal of judgment granting judicial review of decision of an adjudicator regarding respondent’s grievance where he sought to have service pay included in the lump sum payout of annual leave he received upon retiring. Standard of review for an appeal of a judicial review application is reasonableness. Dissent includes an explanation of who to include in the style of cause for judicial review.
Vavilov Hits the Road, Paul Daly, Administrative Law Matters, updated to April 24, 2020.
Waiting for Godot: Canadian Administrative Law in 2019, Paul Daly, 33 Can. J. Admin. L. & Prac. 1. Year in review paper covering the Supreme Court’s trilogy of decisions on standard of review and more. (WLNC – request a copy.)
Bankruptcy Law
White Oak Commercial Finance, LLC v. Nygård Holdings (USA) Limited et al., 2020 MBQB 58 – Application for appointment of Richter Advisory Group as receiver without security of all assets, undertakings and properties of the respondents. Court reserved its decision and ordered the respondent to continue to fully comply with the terms of its credit agreement. Court is satisfied that the applicant has met the test for appointment of a receiver.
Insolvency Routes of Appeal: A Quick Primer, Justice David M. Brown, (2020) 76 C.B.R. (6th) 197. (Originally presented to the Ontario Bar Association – Insolvency Section, January 2020, WLNC, request a copy.)
Civil Litigation
Outland Camps Inc. v. M&L General Contracting Ltd. et al., 2020 MBCA 42 – Appeal of order re money paid into court under s. 55(2) of The Builders’ Liens Act. Issue is whether the funds were security for lien claims, trust claims or both. Subcontractor did not file a lien within the limitation date so has no lien claim. Analysis of whether the fund paid into court was a trust fund. Appeal dismissed.
Gray-McKay et al. v. Whiteway et al., 2020 MBQB 62 – Three separate motions by defendants for summary judgment based on a limitations defence, plus request to expunge certain documents. Statement of claim originally filed in Ontario in May 2012 and discontinued November 2012. Statement of claim also filed in Manitoba in July 2012 for breach of contract, negligence, and negligent misrepresentation for a project from summer and fall 2009. Defendants’ motion was successful.
6165347 Manitoba Inc. et al. v. The City of Winnipeg et al., 2020 MBQB 60 – Request by respondents for reconsideration or setting aside of a contempt order. Respondents were found in contempt for failing to process applicants’ secondary plan application at a public meeting. Significant analysis of a contempt finding in a civil matter.
Zubriski v. Bachewich, 2020 MBQB 56 – Request for summary judgment by plaintiff to recover money lent to the defendant for the purchase of a car. Defendant argues that the transaction wasn’t a loan but was an agreement to purchase the defendant’s home. Issues are the nature of the agreement (called an “equitable mortgage”); is the agreement conscionable; what is the remedy. Narratives of both parties vary widely; Court preferred defendant over the plaintiff.
Canadian Construction Law Reform: A Survey of Recent Developments in Builders Liens, Prompt Payment, Interim Adjudication and Mandatory Construction Bonding, Michael A. Skene, Dirk Laudan, 2020 J. Can. C. Construction Law 93. (WLNC – request a copy.)
Bringing order from chaos: Some thoughts on recent judicial approaches to online libel cases, Mark Donald, (2019) 38 Adv. J. No. 3, 36-38. (LNQL – request a copy.)
Corporate & Commercial Law
Wolfe et al v. Taylor et al, 2020 MBCA 44 – Appeal of orders from a liquidation proceedings. Parties had been farming together since 2008 using two corporate entities. Considerable analysis of the doctrine of marshalling.
Loblaw Financial Holdings Inc. v. Canada, 2020 FCA 79 – Decision on issue of foreign accrual property income provisions in the Income Tax Act. MNR issued reassessments on Loblaw Financial for a holding in Barbados. Loblaw Financial appealed the reassessment to the Tax Court and appeals that decision. Question to be determined is whether the Tax Court erred in concluding that the subsidiary did not conduct business principally with arm’s length persons. Court concluded that the Tax Court made reviewable errors and decision should be set aside.
York University v. The Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA 77 – Appeal by York re enforcement of interim tariff covering the copying of protected works in post-secondary educational institutions. Decision reviews all the great copyright decisions of the past 15 years, as well as the modernized Copyright Act. Court found that the tariff was not mandatory and Access Copyright could not maintain a copyright infringement action. York’s counterclaim re fair dealing as a relief was also dismissed.
Responsibilities and Liabilities of Directors in Manitoba, Kristen Wittman and Kelby Loeppky 2020 CanLIIDocs 567
R. v. Friesen, 2020 SCC 9 –Appeal from MBCA. Sentencing appeal re sexual offence against children and extortion of mother. Court of Appeal found that sentencing judge had erred in principle and conducted a fresh analysis, reducing the sentence. Crown appealed from CA’s interference. Appeal allowed, original sentence restored.
R. v. Jorowski, 2020 MBCA 43 – Request for leave to appeal two orders of the same proceeding. Initial incident was a speeding ticket issued by photo radar. Accused initially filed an application for a stay due to delay, and when that was denied, pleaded guilty and paid the fine. She then filed a notice of appeal to set aside her conviction and requested that she be represented by a non-lawyer. This motion was also denied. Leave for appeal in this application was also denied.
R. v. Castel, 2020 MBCA 41 – Appeal of conviction for second degree murder. Sole issue at trial was whether Crown proved beyond a reasonable doubt that the accused had the required intent for second degree murder. Appeal dismissed.
R. v. J.C.W., 2020 MBCA 40 – Request for leave to appeal sentence of eight years’ incarceration for a guilty plea for one count of sexual assault. Crown stayed a charge of incest upon entering of guilty plea. Charge is on the high side for the offence, however, issue is whether it is harsh and excessive. Leave to appeal allowed, appeal dismissed.
R. v. Ward, 2020 MBCA 38 – Appeal of conviction, and request for leave to appeal sentence. Accused was convicted of various firearms offences, including discharging a firearm with intent and was sentenced to a 9 year custodial sentence. Conviction appeal dismissed, leave for appeal of the sentence allowed, sentence appeal denied. At the time of the accused’s sentencing, he was serving a prior sentence with an unexpired portion. Trial judge declined to consider unexpired portion as part of the totality analysis. Appeal court determined that despite this error, the sentence was fit.
R. v. Guimond, 2020 MBQB 63 – Sentencing decision on guilty plea to two counts of second degree murder. Court agreed with counsels’ joint recommendation for a concurrent sentence of life imprisonment with eligibility for parole after 14 years.
R v N. G. D.,2020 MBPC 17 – Charge of sexual assault where issue focused on consent. Only witnesses were the complainant and the accused. Court referred to R. v. W. (D.) for the three-step process to ensure the trier of fact remains focused on the principle of reasonable doubt where the accused testifies. Accused is found guilty.
Ontario Court of Appeal Criminal Notes, Jeanette Gevikoglu, Amanda Hauk, Lisa Mathews and David Quayat, 2020 CanLIIDocs 566
Jeremy Bentham and Canadian Evidence Law: The Utilitarian Perspective on Mistrial Applications, Alanah Josey, (2019) 42 Man.L.J. 292, 2019 CanLIIDocs 2810
Family Law
A.D.D. v. The Director of Child and Family Services, 2020 MBQB 67 – Agency seeking to place a mother on the Child Abuse Registry on the basis of omission or failure to protect her child from sexual exploitation. Consideration given to the meaning of “omission” in the context of abuse as defined in The Child and Family Services Act. Agency is successful and mother’s name is entered on the registry.
Flood v. Dale, 2020 MBQB 64 – Request for enforcement of arbitration award. Parties had agreed to arbitration to resolve their outstanding issues. Both parties received independent legal advice as to the meaning of the arbitration agreement. The court’s power to enforce an arbitration award is the same as enforcing one of its own orders.
Statutory Recognition of Indigenous Custom Adoption: Its Role in Strengthening Self-Governance Over Child Welfare, Celeste Cuthbertson, 28 Dalhousie Journal of Legal Studies 29, 2019 CanLIIDocs 2938
The Cost of Shared Parenting: An Analysis of Section 9 from 2016 to 2017, Beth Ambury, (2020) 39 CFLQ 1 (WLNC, request a copy).
Labour & Employment
McCallum v. Saputo, 2020 MBQB 66 – Wrongful dismissal with claims for damages in lieu of notice, expenses incurred in mitigation, bad faith damages and punitive damages. Plaintiff claims that defendant failed to communicate its corporate policies and used unwritten policies to justify the dismissal of the plaintiff. The Defendant claims this is a simple matter of theft giving rise to the breakdown of the employment relationship. Plaintiff’s claims dismissed; defendant was entitled to terminate his employment for just cause and without notice.
eText on Wrongful Dismissal and Employment Law, Peter M. Neumann and Jeffrey Sack, Lancaster House, 2012 CanLIIDocs 1, updated to 2019-10-02.
Wills, Trusts & Estates
Hubschi Estate (Re),2019 BCSC 2040, Annotation, J. Jeffrey Locke: Extreme example of non-compliant testamentary document being “cured”. (2020) 52 E.T.R. (4th) 231 (WLNC – request a copy).
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