Manitoba’s top judge talks virtual hearings, digitized documents – Manitoba Chief Justice Marianne Rivoalen discusses the difficulties faced in northern communities, and possible improvements, to accessing justice. While acknowledging the need for reliable high-speed internet, she also highlights the need for increased use of online document filing instead of paper-based methods.
Manitoba Government Enters New Five-Year Funding Agreement with Justice Canada to Strengthen Drug Treatment Court Program – “The Manitoba government is signing a new five-year funding agreement with Justice Canada to further support the Winnipeg drug treatment court program…”
Manitoba Auditor General Report, “Efficiency of Court Services for the Provincial Court of Manitoba” – This audit looked at whether Manitoba Justice was managing the delivery of court services for the Provincial Court efficiently. The conclusion finds that “the Department does not manage the delivery of court services for the Provincial Court efficiently.”and lists seven recommendations for improvement.
Question of the Month
Legal research is a big part of the services we provide here at the Manitoba Law Library. This new section will present some of the interesting queries we receive, and highlight how we can point you towards helpful resources, or suggest answers for difficult questions.
Q: How does the Great Library assist self-representing litigants, or those unfamiliar with the justice system?
The Law Library is open to the public who are conducting legal research and require assistance. Part of this assistance is available through the Law Library Hub, a pilot program meant to gather data on the legal needs of people who are working without a lawyer.
For anyone that doesn’t know where to start, one-on-one meetings are available to help provide legal advice. These meetings are with law students supervised by a lawyer and are able to assist with Civil and Family matters.
Those new to the legal system may not understand the difference between those two areas of law. An easy way to think about it is civil law deals with disputes between people or organizations. This includes issues such as navigating small claims, how to probate a will, issues with contracts, and personal injury.
Family law may be easier to understand. It emphasizes issues between spouses or common-law partners, child support, family property and anything else that comes up in the breakdown of a relationship.
Keep the Law Library Hub in mind next time you need to refer someone that needs assistance.
Court Notices & Practice Directions
Review taken from the Canadian Law Library Review, vol 48 no 2
Guide to the Law and Practice of Anti-SLAPP Proceedings. David A. Potts & Erin Stoik. Toronto: Irwin Law, 2022. xxxi, 528 p. Includes annotated bibliography, table of cases, and index. ISBN 9781552216323 (softcover) $75.00; ISBN 9781552216330 (PDF) $75.00.
“Since this legislation is relatively new in both Ontario and British Columbia, and there are few (if any) other guides of this kind, Guide to the Law and Practice of Anti-SLAPP Proceedings is an extremely valuable text. As the title indicates, this book is “intended as a manual and a guidebook, not a general introduction or an academic treatise” (p. xxxi).”
“The text relies heavily on lengthy passages pulled from pertinent legal decisions, with the authors providing framing and contextual paragraphs. Often, these passages feel like judges directly providing advice to the reader. Many of these passages are followed by lists of suggested decisions on the same legal point, which is useful for practitioners and academics alike.”
Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166: Appeal from a decision of the Federal Court dismissing an application for judicial review of a decision of the Parole Board refusing to provide the CBC with a complete copy of audio recordings of several parole hearings, including that of Paul Bernardo. Issue of whether the open court principle applies to the Parole Board. Discussion of whether the Board acted in a judicial or quasi-judicial capacity and the application of the open court principle. FCA agrees with FC that the open court principle does not apply, but for different reasons. Appeal allowed although remedies requested are not ordered. Sent back to Parole Board for reconsideration.
Roseau River First Nation v. Canada (Attorney General), 2023 FCA 163: Appeal from judgment dismissing application for judicial review of an order-in-council directing the National Energy Board to issue a Certificate of Public Necessity and Convenience for the project. The project is an international transmission line crossing Treaty 1 territory. Issue is the adequacy of consultation for the project and the reasonableness of the decision to make the order. Review of the consultation involving each appellant. Appeal dismissed.
Haynes v. Canada (Attorney General), 2023 FCA 158: Application for judicial review of a decision by a designated official to accept the findings of an investigator regarding a request for accommodation for a person with autism. Appellant filed four complaints under his employer’s (ESDC) harassment policy alleging harassment and discrimination. Appeal dismissed. Value in this decision is the reminder that courts must ensure that litigants with disabilities are able to access the same justice system as other Canadians. The Court made sure he had a full day for his hearing, instead of two hours, and reduced sensory distractions. Explanation of all the steps the Court took to ensure appellant received a fair hearing (para 33-34).
Michele Santarsieri Inc. et al v. Manitoba (Deputy Minister of Finance), 2023 MBCA 61: Appeal of a decision of the Tax Appeals Commission determining that the three partnerships of the appellants were a single employer for the purpose of assessment of payroll tax. Impact was that the group was taxed together so where they would not have been liable to pay tax individually, they were liable when treated as a single employer. Appellants were in business together operating hair salons. As this is a second level appeal, standard of review requires this Court to determine whether the judge chose the correct standard of review and applied it properly. Allegation of specific bias – dismissed. Review of s.2(4.1) of HPSEA on two or more partnerships. Appeal dismissed.
Paul Aterman. The Tribunal Design Issue—An Overview or How to Fix My A2J Problem. (2023) 36 Can. J. Admin. L. & Prac. 1. (WLC – LSM members can request a copy).
Just as it did for the rest of the justice system, the recent pandemic exposed all the difficulties tribunals faced when their in-person and analog operations were shut down with the flick of a switch.
But beyond the logistical challenges of converting to virtual and digital processes, COVID-19 also highlighted many longstanding obstacles to access to justice that have nothing to do with Zoom hearings or e-filing.
This observation was the catalyst for an ad hoc group of tribunal leaders to start talking about what administrative justice might begin to look like as we emerge from the pandemic.
Green v. University of Winnipeg, 2023 MBCA 67: Application for rescission of a vexatious litigant order. Review of legislation relating to these proceedings and the factors to consider. Cameron, J.A. noted that applicant has not made payment towards his outstanding costs awards, and appears to be trying to relitigate his previous claims. Application dismissed.
Papasotiriou-Lanteigne v. Tsitsos, 2023 MBCA 66: Appeal of interpretation of King’s Bench Rule 24.06(1) re dismissal of an action for delay. A Master dismissed the plaintiff’s action for long delay and ordered that the dismissal constituted a defence to any subsequent action, but gave no reasons. Plaintiff appealed the master’s order. Judge conducted a fresh hearing, and departed from the arguments, but still dismissed the appeal. Extensive review of Rule 24.06(1). Appeal dismissed.
Bird Construction Group v. Trotter and Morton Industrial Contracting Inc., 2023 MBCA 64: Appeal re matter of whether the Court of King’s Bench has the jurisdiction to vacate a lien in respect of Crown land, and if so, can a lien bond ever be adequate security? Project involved was a wastewater treatment plant for the City of Selkirk. Appellant subcontracted aspects of the project to the respondent. Consideration of ss. 16 and 55(2) of The Builders’ Liens Act. Application judge ordered appellant to deposit cash in the amount of the first lien with the court. Appeal allowed.
Winnipeg (City) v. Sheegl, 2023 MBCA 63: Appeal of summary judgment in civil bribery matter. Both parties argued for summary judgment instead of a trial; now that defendant was unsuccessful, he argues there was a genuine issue for trial. Standard of review is deferential. Discussion of the law of bribery in both criminal and civil matters. Appeal dismissed.
Cement Accents Manitoba Inc. et al v. Wagner Construction et al, 2023 MBCA 59: Appeal of order granting plaintiffs’ motion to enforce a settlement pursuant to Court of King’s Bench Rule 49.09. Defendants’ submit that the motion judge erred in determining the terms of the settlement agreement reached by the parties. Judge concluded the agreement was between the corporate defendant and the individual defendant based on settlement minutes. CA determined parties should have argued Rule 20 (summary judgment) rather than Rule 49 and decided it based on that. Appeal granted.
Gateway Bible Baptist Church et al v. Manitoba et al, 2023 MBCA 56: Appeal by several churches and individuals over the constitutionality of public health orders pub in place between November 11, 2020 and January 8, 2021, restricting gatherings. Consideration of whether the Court should dismiss the matter due to mootness or determine it on its merits. Appeal considered in full, but dismissed.
Spence et al. v. Manitoba et al., 2023 MBKB 107: Motion concerning the record in this action. Applicants seek three orders: production of an unredacted copy of the Final Licence Record (except where necessary to protect solicitor-client privilege); materials that were sent to Manitoba during the consultation process; and production from Manitoba of certain categories of records. Respondent argues that the motion should be dismissed in its entirety. Main matter is whether there was adequate consultation before the licence was granted. Description of the consultation process and analysis of whether more information should be produced. Motion dismissed.
Peltier v. Campanella, 2023 MBKB 106: Motion to set aside a default judgment entered against the defendant. Defendant was hired by the plaintiff for the construction of a new home. Over the course of the project the relationship between the parties deteriorated. Defendant ceased working on the project and did not demand outstanding monies, and left materials on site for the plaintiff’s use. Plaintiff served defendant with a statement of claim, but he did nothing. Plaintiff was granted judgment after a hearing. Discussion of factors to be considered as determined by caselaw. Motion granted; defendant is to file a statement of defence within 15 days of the date of this judgment.
Romana v. The Canadian Broadcasting Corporation et al., 2023 MBKB 105: Action in defamation for a 2014 CBC investigation report. Plaintiff was self-represented for all the proceedings and trial. Defendants advanced defences of justification, fair comment and responsible communication in matters of public interest. Analysis of the law of defamation and the test as set out in Grant v. Torstar, 2009 SCC 61. Martin, J. found defendant’s actions were fair comment. Claim dismissed.
Transcona Roofing Ltd. v. Marrbeck Construction Ltd. et al., 2023 MBKB 104: Motion for summary judgment in consolidated action over breach of contract in a construction project. Defendant condominium corporation claims deficiencies in work completed and so stopped paying invoices. Contract included dispute resolution methods. Defendant argues the matter is not suitable for summary judgment as there is competing expert evidence. Chartier, J. finds defendant’s expert evidence is not reliable, and that he can make a decision in summary judgment. Calculation of amounts owing to plaintiffs in unpaid invoices, interest and damages.
Khandelwal et al. v. Kumar et al., 2023 MBKB 101: Defendants’ motion to strike the statement of claim on this matter as an abuse of process and as not disclosing a reasonable cause of action. Plaintiffs oppose and move for a pending litigation order. Plaintiffs lent money to the defendants so they could purchase property. Plaintiffs claim the properties were purchased as a joint venture, defendants disagree. Analysis of the meaning of “reasonable cause of action”. Perlmutter, A.C.J. found at this juncture, the defendants’ arguments does not establish that the claim is an abuse of process. Motion dismissed; plaintiffs’ motion for a PLO is granted.
Linde v. Max Insurance Company, 2023 MBKB 74: Action on insurance claim for a fire loss. Issues are whether the defendant administered the claim in bad faith, and the impact of ss. 121 and 123 of The Insurance Act on the plaintiff’s claim. Duty of good faith was defined in Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 and considered in 3746292 Manitoba Ltd. et al v. Intact Insurance Company et al, 2018 MBCA 59. Lanchbery, J. found no bad faith on the part of the insurer. Analysis of the Umpire’s report as directed under s.121, and use of the authority under s.123 for directions to the Court to determine value of the claim. Plaintiff was successful in receiving additional compensation for her personal contents.
Sohaib Mohammad. Canadian Court Allows Service via NFT “Airdrop”. Law360 Canada, 26 July 2023, viewed on 27 July 2023.
The Ontario Superior Court of Justice recently allowed service of a Statement of Claim and a Mareva (“freezing”) Order via a non-fungible token (NFT) “airdrop” (distribution) into 13 cryptocurrency wallets for the purpose of notifying an unknown “John Doe” defendant.
Nayha Acharya. Exploring the Role of Mandatory Mediation in Civil Justice. (2023) 60-3 Alberta Law Review 719.
In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right.
R. v. Kahsai, 2023 SCC 20: Appeal re the proper scope of the role of amicus curiae in a criminal trial. Accused chose to represent himself at trial for two counts of first degree murder. Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ: appeal should be dismissed.
 This appeal invites us to define the limits to the role of amicus. It also presents an opportunity to clarify and affirm the principles established by this Court in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 ,  3 S.C.R. 3 (CLAO). As I will explain, in exceptional circumstances, the trial judge retains wide discretion to appoint amicus with adversarial functions that can respond to the needs of a particular case. In tailoring the role for amicus, the judge must respect both the right of the accused to conduct their own defence and the right to a fair trial. These principles of fundamental justice, along with the nature of the role, help define the assistance that amicus can provide. While the role of amicus therefore has limits, the scope is broad enough to assist the judge where necessary to ensure a fair trial. We must also determine whether a miscarriage of justice arose from the circumstances of Mr. Kahsai’s trial: Did the delayed and limited appointment of amicus create an appearance of unfairness so serious that it taints the administration of justice?  There is no doubt there was a striking imbalance in this trial. Mr. Kahsai was unrepresented and often excluded from participating in the proceeding because of his disruptive behavior. When he did participate, he advanced no meaningful defence. Although amicus assisted with cross-examination of Crown witnesses and submissions to the court, more preparation time and a broader adversarial role could have enhanced his ability to advance the interests of the accused.  That said, the law imposes a high standard for proving a miscarriage of justice. The inquiry must consider the circumstances of the trial as a whole. Here, the trial judge faced the difficult task of managing a jury trial that Mr. Kahsai seemed determined to derail. Once it became obvious that Mr. Kahsai would not cooperate with the court or advance any viable defence, the trial judge took several measures to preserve trial fairness and restore balance to the proceeding. This included the appointment of an amicus. Although the trial judge seems to have held the view that amicus could not play a more adversarial role, it is not clear that he would have granted a broader mandate in the circumstances, particularly given Mr. Kahsai’s objections to the appointment of the amicus, and he was under no obligation to do so. Any irregularity does not result in a miscarriage of justice. I would dismiss the appeal.
R. v. Abdullahi, 2023 SCC 19: Appellate review of jury instructions for legal error. Accused was found guilty of various firearms offences and one count of participation in the activities of a criminal organization. On appeal, accused argued that the trial judge erred in instruction to jury on the first required element of the offence of a “criminal organization”. Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.:
 This appeal presents an opportunity to provide guidance on two issues: (1) the approach to appellate review for legal error in jury instructions and (2) the definition of a “criminal organization” under the Criminal Code, R.S.C. 1985, c. C-46.
… Applying the foregoing, I conclude that the trial judge erred in law in his instructions to the jury by failing to explain that a criminal organization is one that by virtue of its structure and continuity poses an enhanced threat to society. This requirement distinguishes criminal organizations from other groups of offenders who act in concert; it also helps guard against improper reasoning, notably reliance on stereotypes, as a basis for identifying a criminal organization. Without an explanation of this requirement in the judge’s instructions, the jury was not sufficiently instructed on the legal standard to apply to the evidence in concluding that a criminal organization existed. The evidence at trial, the closing arguments of counsel for the parties, and the lack of objection to the charge by defence counsel could not make up for this error by the trial judge.  I would therefore allow the appeal, set aside the appellant’s conviction for participation in the activities of a criminal organization, and order a new trial on that count.
Per Côté J. (dissenting): This appeal provides an opportunity to apply the functional approach to appellate review of jury charges (see, e.g., R. v. Goforth, 2022 SCC 25 , at paras. 20‑22; R. v. Calnen, 2019 SCC 6 ,  1 S.C.R. 301, at paras. 8‑9; R. v. Daley, 2007 SCC 53,  3 S.C.R. 523, at para. 31; R. v. Jacquard, 1997 CanLII 374 (SCC),  1 S.C.R. 314, at para. 32). While my colleague purports to affirm this approach, with respect, he elevates form over substance and renders the contextual assessment more rigid in several ways.  The sole issue in this case is whether the jury understood the legal elements of the definition of “criminal organization” in s. 467.1(1) of the Criminal Code, R.S.C. 1985, c. C‑46. There is no dispute that “some form of structure and degree of continuity” are required (R. v. Venneri, 2012 SCC 33 ,  2 S.C.R. 211, at para. 29). While the trial judge’s charge was not perfect, it would not have made any difference if he had used the precise words “structure” and “continuity” in explaining the definition. The jury knew it had to decide whether the appellant was a member of a group that (1) was organized; (2) existed for some period of time; and (3) went beyond one formed randomly for the immediate commission of a single offence (A.R., vol. I, at pp. 203‑13) — and which therefore, in substance, had some form of structure and degree of continuity.  I am satisfied that, examined as a whole and in context, the judge’s charge properly equipped the jury to decide the case according to the law and the evidence. I would dismiss the appeal and uphold the appellant’s conviction on the count of participation in the activities of a criminal organization.
R. v. Singh, 2023 MBCA 68: Appeal of conviction for operating a motor vehicle in a dangerous manner and causing a death. Appeal limited to one ground, that the trial judge misapprehended material evidence, and requests a new trial. Crown joins the accused in his appeal, and also requests a new trial. Accused drove through a stop sign at the intersection of Hwy 13 and Hwy 2, hitting the deceased. Trial judge found the accused failed to note a reduced speed zone and missed other warning signs and a rumble strip, and found him guilty. Reduced speed zone was on Hwy 2, not Hwy 13. This is a material error, leading to an unfair trial. New trial ordered.
R. v. Patchinose, 2023 MBCA 58: Application for leave to appeal sentence following a guilty plea to one count of aggravated assault. Accused wants to delete a condition of his probation order requiring him to take “all medications prescribed by any medical practitioner”. This condition has previously been found to be illegal; Crown agrees with the accused’s submissions. Leave to appeal granted and appeal allowed.
R. v. R.D.W., 2023 MBCA 62: Application for leave to appeal sentence, and if granted, judicial interim release pending determination of the sentence appeal. Accused pleaded guilty to sexual interference prosecuted by way of indictment. Victim was his granddaughter who is also developmentally delayed. He received a sentence of one year imprisonment, plus three years of supervised probation. Leave to appeal sentence denied.
R. v. Haroon, 2023 MBCA 60: Motion re disclosure in relation to accused’s conviction appeal for first degree murder. Issue is over extraction and decryption of the data generated from the accused’s cellphone. Expert witness testified through his analysis, he could identify the geographical area where a particular mobile phone would likely be located. Accused files affidavit from a digital forensics examiner opining that the process followed was flawed. Accused seeks raw data on the device as well as a full image of all the data. Motion granted.
R. v. Monro, 2023 MBKB 96: Trial on charge of second degree murder. Accused argues the killing was in self-defence. Crown submits that evidence shows there was no provocation and relies on R. v. Barrett, 2022 ONCA 355 for the test for provocation. Discussion of the “rolled up charge” as defined in R. v. Harris, 2023 ABCA 90. Toews, J. found that the Crown proved beyond a reasonable doubt that the accused did not act in self-defence. Next step is to determine if the accused acted with the requisite intent for murder rather than manslaughter. Accused found guilty of second degree murder.
R. v. Kipling, 2023 MBPC 37: Sentencing decision where accused was found guilty of possession of fentanyl for the purposes of trafficking. Crown is seeking a four year penitentiary term; defence is asking for a conditional sentence order. Sentencing principles include those from the Criminal Code and the Controlled Drugs and Substances Act. CDSA’s fundamental purpose of sentencing encourages rehabilitation and treatment (s.10), where appropriate. Significant review of the reasoning behind Gladue ( 1 S.C.R. 688) and how it applies in this instance. Accused was engaged in street-level trafficking, without authority. Devine, P.J. sentenced accused to CSO followed by two years of supervised probation.
R. v. W.S., 2023 MBPC 36: Trial over charge of sexual assault and sexual interference. Threshold issue is whether three incidents contain all the elements of those offences; central issue is whether the Crown has proven beyond a reasonable doubt that the behaviour took place. Defence argues that the allegations were concocted as revenge. Discussion of the law with respect to children’s evidence and child sexual abuse allegations (complainant was 9-13 when the offences took place). Considerable analysis of the evidence of the complainant and the accused (a W(D) analysis). Devine, P.J. is satisfied beyond a reasonable doubt that the Crown has proven the charges. Accused is convicted of sexual interference while the sexual assault charge is stayed due to Kienapple principle.
R. v. Fourmeaux-Clemens, 2023 MBPC 33: Accused is charged with assault with a weapon (her vehicle) and impaired operation of a motor vehicle. Impaired driving charge rests on evidence of witnesses; accused refused to provide a breath sample. Accused argues that the Crown has not proven that she was the driver of the vehicle and that she was acting in an automatic state brought on by PTSD. Discussion of numerous decisions related to automatism, e.g. R. v. Brown, 2022 SCC 18, R. v. Blanchard, 2019 SCC 9, R. v. Fontaine, 2004 SCC 27 and more. Allen, P.J. was not satisfied that defence had proven accused was suffering from automatism. Accused found guilty.
R. v. Abu-Al, 2023 MBPC 31: Contested hearing over a ticket for using a cellphone while driving. Crown proceeded by way of certificate evidence. Police were conducting a distracted driving enforcement at Portage and Empress in Winnipeg. Accused had a cellphone in a windshield-mounted holder and he claimed it was running the Uber Eats app. Interpretation of s.215.1 of The Highway Traffic Act and its relevant regulations. Analysis of the term “use” as it applies to looking at a cellphone while driving. Accused convicted.
R. v. R.C., 2023 MBPC 30: Accused was charged with sexual assault and sexual interference. He also brought an application alleging that lost evidence prevented him from having a fair trial. Trial would be held in its entirety in the context of the application. Court would decide the motion and proceed to a decision in the trial proper if appropriate. Lost evidence referred to a meeting between a police constable investigating the matter and the complainant and her mother. No record of the meeting could be found, although it was referenced in a statement the complainant made at a later time. Cornick, P.J. is satisfied that the statement existed and found that its loss did not infringe on the accused’s right to a fair trial. Accused testified in his defence, requiring a W.(D.) analysis. Accused acquitted.
R. v. Gilchrist, 2023 MBPC 29: Accused charged with refusing an ASD demand. Defence raises many issues such as whether the officer had jurisdiction to make the demand, whether the Information is valid because it doesn’t include jurisdiction and isn’t specific enough, the officer was not in physical possession of the ASD device when the demand was made, and others. Mann, P.J. considers each issue thoroughly. Accused is convicted.
R. v Constant, 2023 MBPC 25: Ruling re s.276 application (Stage One), leave to adduce evidence of prior sexual activity. Applicant argues that the evidence is necessary to advance his defence of mistaken identity and lack of exclusive opportunity. Issue is whether the evidence is “capable” of being admissible. Bayly, P.J. finds the evidence is incapable of admission; application denied.
Amanda Jerome. “Failure to Exclude” Statements Made to Police “Error in Law”, Court rules; New Trial Ordered. Law360 Canada, 2 August 2023, viewed on 8 August 2023. Case comment on R. v. Corner, 2023 ONCA 509.
The Court of Appeal for Ontario has ordered a new trial in a second degree murder case as the “trial judge erred in admitting some of the statements made by the appellant to the police.” Counsel for the appellant noted that the decision “gives an excellent summary of the law of detention and provides a detailed analysis of the application of the law to the facts of this case.”
Luis Millan. Quebec Appeal Court Issues Guildelines Over Access to Sensitive Evidence in Child Porn Case. Law360 Canada, 19 July 2023, viewed on 20 July 2023. Case comment on Abel c. R., 2023 QCCA 824 (French).
The decision, viewed as reasonable and judicious by criminal lawyers, reiterates that the prosecution has the discretion to determine the timing and manner of disclosure of evidence; reaffirms that certain elements of evidence in child pornography cases must not be reproduced or provided to the defence; and outlines numerous factors the courts must take into consideration when limiting the conditions of access to evidence of child pornography and delineating the conditions of its disclosure to defence counsel.
J.M.A. v. L.A.M., 2023 MBKB 110: Respondent’s claim for retroactive and ongoing common-law partner support, oppression and other remedies relating to a jointly-held corporation. Petitioner argued there was no entitlement to support; respondent argued for compensatory or non-compensatory support and suggested an amount at the high end of SSAG. MacPhail, J. found respondent was entitled to support, but petitioner’s income was not considered high enough to warrant such a high amount.
T.D.W. v. S.I.M., 2023 MBKB 108: Issue of child support. Mother and father each advance claims for ongoing and retroactive relief. Three motions to vary the Final Order made in 2010, where the children are currently 20 and 18. Neither party followed the full terms of the final order, including annual financial disclosure. Calculation of imputed income where part of the parent’s income is derived from dividends. Retroactive support is limited to three years before the filing of the father’s first motion to vary in 2017. Father failed to contribute to an RESP for the daughter, as ordered in the final order. Mother requests a lump sum child support award. Review of caselaw regarding RESPs and the Income Tax Act. Some success for both sides. There is still one more outstanding variation to be heard under the new case management system.
Jennifer Koshan. Challenging Myths and Stereotypes in Domestic Violence Cases. (2023) 35:1 Can. J. Fam. L. 33.
Survivors of domestic violence, who are disproportionately women, face numerous myths and stereotypes about the veracity, nature, and extent of violence they and their children experience. In legal disputes, they encounter allegations that they have lied about or exaggerated domestic violence out of vengeance, jealousy, or to gain an advantage in family law proceedings; that their partners are victims too; that abuse ends at separation or is irrelevant unless it is physical; and that it has no impact on children or only matters if it does. Although scholars and activists have revealed how these allegations are tainted by false and faulty understandings of violence, courts and other decision-makers continue to accept them in many cases. This paper will identify the ongoing influence of myths and stereotypes about domestic violence, focusing on the common and evolving misconceptions that legal actors have about survivors and the violence they experience. False or faulty assumptions about the credibility of domestic violence claims, as well as the nature and impacts of violence, can have serious implications for the impartiality of decision-makers and result in harm to women and children.
Labour and Employment Law
Manitoba Federation of Labour et al v. The Government of Manitoba, 2023 MBCA 65: Appeal of damages awarded pursuant to s.24(1) of the Charter. Government was found to have substantially interfered in contract negotiations between the University of Manitoba and the Faculty Association. Few cases dealing with damages related to wage restraint by a government (para 25). Appeal dismissed.
The Court of Appeal decision provides important guidance on the application of s. 24(1) to damages related to wage restraint by a government. (See para. 25). But it is also a very helpful summary for anyone considering the application of s. 24(1), generally.
Wills, Trusts and Estates Law
Drewniak v. Smith et al., 2023 MBKB 109: Application for an order that the enduring Power of Attorney executed by the respondent Donor in 2016 is invalid and should be set aside due to undue influence and/or lack of capacity. Applicant and one of the respondents are sisters. Applicant held POA with respondent alternate POA from 2003 to 2016. In 2014, Donor felt that applicant was mismanaging her finances and not giving her information on her banking. Donor had health and cognitive issues, but was assessed as competent to make a change to her POA. Analysis of the issue of capacity to execute a POA. Review of the law of undue influence. Grammond, J. dismissed the application, concluding that there were no suspicious circumstances or undue influence relative to the 2016 POA.
Re: Johnson Estate, 2023 MBKB 102: Application to a Master to pass accounts. Respondent is the son of one of the beneficiaries, now deceased. He is opposed to passing the accounts mainly due to the compensation sought by the Executor.
The House is adjourned until September 18, 2023.
The House adjourned on June 1, 2023 and will reconvene on October 4, 2023.