News

• Manitoba Government Expands Electronic Monitoring Program to Rural Communities November 29, 2024 – “The Manitoba government is expanding the electronic monitoring program to rural communities across Manitoba along with widening eligibility criteria to support survivors of intimate partner violence,”
• Reasons to Hope: Manitoba Government Passes Throne Speech in Legislature November 28, 2024 – “The Manitoba government’s throne speech, outlining key priorities for the upcoming year, passed in the legislature this afternoon, Nov. 28,”
• Emond’s Criminal Law Series now also available on vLex – The popular series on criminal law is now available through vLex in our online library resources. There are also now 17 titles in the series with the newest addition of “Detention, Arrest, and the Right to Counsel”. 

Question of the Month

This feature presents some of the interesting queries we receive, and highlights how we can direct you towards the appropriate resources.

Can I cut my neighbor’s overhanging tree branches? What if the tree is on the property line? What about other property issues?

Searching for cases of neighbours trespassing onto others’ property or cutting overhanging branches leads to some amusing cases of big payouts and satisfying payback.

An extreme example may be a recent American case of “a politically connected Missouri couple who allegedly poisoned their neighbor’s trees to secure their million-dollar view of Camden Harbor.” (NPR) or in Vancouver where a neighbor, unhappy about losing his view to a neighbors growing trees, “snuck onto their property with a ladder and lopped the tops off “numerous” trees,” (ctvnews) which resulted in over a million dollars in damages (Minicucci v Liu, 2021 BCSC 1640).

Most cases aren’t quite so dramatic and there can often be more more ambiguity as to whether it is okay to cut down or prune trees, especially in Manitoba. While there are a number of cities that have by-laws about dealing with neighboring trees, there are no specific laws available in Manitoba. We can however, find some caselaw that deals with these issues.

Koenig v. Goebel, 1998 CanLII 13635 (SK KB) and Hartley v. Cunningham, 2013 ONCA 759 are helpful cases for defining who a tree actually belongs to, or where exactly it is growing. For a good summary of these cases check out “Trees on boundaries: Where to measure the tree?”  or the CanLII connects article on Gross v. Scheuermann, 2017 ONCJ 722 “Trees on Boundaries”.

Looking at the texts we have in the library we find these sections:

• Ziff’s Principles of Property Law – pg 68 note 345 Anderson v. Skender, 1991 CanLII 260 (BC SC) – unauthorized cutting by the male defendant of Douglas fir trees growing up against the boundary line
• Carter on Easements s.19:27 – McLaren v. Little, 2006 BCSC 1746 in case of easement, dominant owner was allowed to go onto servient lands to cut off the top of trees.

Credit to reddit user u/reachling

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Provincial Court

Notices

• November 9, 2024 – Swan River PTC Protocol-“the Provincial Court is introducing an administrative style PTC docket in Swan River effective December 3, 2024.”
  • Pre-Trial Coordination Circuit Protocol
• November 8, 2024 – Youth First Appearance Court – “To ensure that first appearance matters are receiving the appropriate amount of time for resolution discussions and community planning, only first appearances and remands to confirm the appointment of counsel by Legal Aid will appear on the courtroom 402 10:00 a.m. docket on the second and fourth Monday of the month. All other remands will be adjourned to the newly created 2:00 p.m. court on the fourth Monday of the month. “

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Book Reviews

Review taken from the Canadian Law Library Review, Volume 49, no.3

For the Encouragement of Learning: The Origins of Canadian Copyright Law. By Myra Tawfik.

Toronto: University of Toronto Press, 2023. 408 p. ISBN 9781487545246 (hardcover) $90.00; ISBN 9781487545253 (ePUB) $90.00; ISBN 9781487545260 (PDF) $90.00.

Reviewed By
Katarina Daniels
Research Lawyer, Library Services Lead
Davies Ward Phillips & Vineberg LLP

“Myra Tawfik’s For the Encouragement of Learning: The Origins of Canadian Copyright Law offers a meticulously researched and compelling exploration into the historical foundations of Canadian copyright policy. Written with a deep understanding of intellectual property law and the broader socio-cultural, geopolitical, and imperial contexts in which it developed, the book is an invaluable resource for legal scholars, historians, policymakers, and law librarians looking to better understand copyright policy. Additionally, in the context of renewed interest in copyright laws due to numerous lawsuits filed against generative AI companies, the text will also be of interest to practitioners.“

Click here for the full review

Events

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Substantive Law

Civil Litigation

Ghazali v Guisti, 2024 MBCA 94: Dismissed defendant’s motion for a stay pending appeal and an injunction to prevent possession and sale, as well as a pending litigation order. RJR — MacDonald test was applied.

Transcona Roofing Ltd v Marrbeck Construction Ltd, 2024 MBCA 83: Appeals of a summary judgement which found in favour of general contractor against the property owner, and in favour of the subcontractor against the general contractor relating to a building envelope remediation project of a condo complex. The subcontractor’s appeal relied on part of the property owner’s appeal and became moot when it was dismissed. Property owners appeal on damaged was allowed, amount owed to contractor reduced to align with contract provisions.

The Rural Municipality of Thompson et al v. Cox, 2024 MBKB 152: Costs judgement. Martin, J. writes in para. 34, “Where a council has forced such a situation to court, it will invariably force the subject councillor to defend not only on her own behalf – her reputation and her right to participate on Council – but also on behalf of the voters so their mandate is abided. If the councillor is fully successful on a s. 95(2) application, and without real fault, any council should understand the potential for an exceptional cost award where they fail the fair and moral imperative to exercise their discretion in an even-handed way under s. 97.”

Schaworski v. Unrau, 2024 MBKB 150: Issues of costs following a default judgement that was set aside by a consent order. Discussion regarding conduct of counsel, including putting themselves in a position where they could become a witness, and the extent to which it is appropriate to send letters to a presiding judge/associate judge. Costs were found in favour of the defendant.

R v Tall Timber Lodge Ltd., 2024 MBPC 80: Sentencing decision, accused pled guilty to four charges under the Drinking Water Safety Act (DSW). Accused is a seasonal campsite that offers access to 15+ non-potable water taps. This qualifies them as operating a public water system under the DSW Act. Charges stem from the statutory definition of “public water system.” Fines ordered in line with the Provincial Offences Act.

Schmitz, Cristin, SCC rules B.C. law allowing multi-Crown class action to recover opioid-related costs is valid, Law360 Canada, 29 November 2024. Accessed 3 December 2024.

Corporate and Commercial Law

Neufeld v Manitoba (Securities Commission), 2024 MBCA 97: Question of whether The Limitation of Actions Act, as repealed by The Limitations Act, applies to compensation orders made by the respondent pursuant to The Securities Act, s 148.2(3). Examination of the nature of the commission and whether it is a part of government or a government agency and, therefore, exempt from the application of the LAA pursuant to The Interpretation Act, CCSM c I80, s 49.

Sokal v Manitoba (Securities Commission), 2024 MBCA 96: Appeal of a declaration made by the Respondent that an investor who made a claim against the appellant, was not barred by section 148.2(7) of The Securities Act. The court found the respondent erred in law by misinterpreting the word “commenced.” Appeals allowed.

Criminal Law

R v Tanner, 2024 MBCA 87: Accused appealed conviction for manslaughter in the death of her son-in-law and sought leave to appeal and, if granted, to appeal her sentence of 5 years in prison. Grounds included trial judge erred in application of self-defence provisions of the Criminal Code. The court allowed the appeal on the ground that the trial judge erred in her application of sections 34(1)(c) and 34(2)(b) of the Code, set aside the conviction and ordered a new trial.

R v Morin, 2024 MBCA 85: Accused was convicted of robbery and uttering threats. Accused appealed only the robbery conviction based on frail identification evidence. The court agreed the trial judge’s inference of guilt due to the accused’s after-the fact conduct of uttering threats to the sales associate who identified him, was reasonable. Appeal dismissed.

R v Deol, 2024 MBCA 84: This case establishes a sentencing range of 12-18 years imprisonment for a courier without decision-making power involved in a high-level fentanyl trafficking organization. Crown sought to appeal the 14 year sentence for trafficking fentanyl, arguing sentence should be 22 years. The court found the sentencing judge erred by failing to conduct a proper proportionality assessment and did not properly apply the “no free ride” principle. Accused’s sentence increased to 18 years.

R v Simpson, 2024 MBCA 82: Accused appeals convictions and seeks to set aside his guilty pleas on the basis he was the victim of a miscarriage of justice, because he was unaware of the collateral consequence, lifetime suspension of driver’s licence, of certain of those pleas. The court applied the principles in R. v. Wong, 2018 SCC 25. Accused did not establish subjective prejudice. Appeal dismissed.

R v Madder, 2024 MBCA 80: Accused convicted of sexually assaulting two victims and received a sentence of five years imprisonment. Accused appeals conviction, citing issues of credibility and handling of evidence. Crown seeks leave to appeal the sentence. Crown argues the sentence and totality are unfit and the judge failed to appreciate the harm and continuity of harm to the victims. Both appeals were dismissed.

R v B (AK), 2024 MBCA 76: Appeal of a second degree murder conviction on the grounds of failing to properly instruct the jury. It was found that the trial judge failed to properly instruct the jury on the distinction between disbelieved and fabricated statements. Extensive discussion of after-the-fact conduct. Conviction was set aside, and a new trial ordered.

R v Kalo, 2024 MBCA 75: Accused seeks leave to appeal decisions of the summary conviction appeal judge refusing to recuse herself and adjourning the summary conviction appeal sine die until transcripts are filed. Leave for appeal dismissed. Edmond, J.A. writes, “In essence, this motion is an attempt to bring an appeal of an interlocutory ruling.”

R v DMS, 2024 MBCA 74: On appeal from R v DS, 2023 MBKB 97. Leave to appeal sentence was granted, but the appeal was dismissed. Discussion of sex workers as “soft targets” and consideration of the accused personal circumstances in light of high moral culpability.

R v Wahabi, 2024 MBCA 70: Accused seek appeal convictions for first degree murder and conspiracy to commit murder and admit fresh evidence. Appeal was dismissed. Discussion about: Vetrovec instructions; Garofoli review; admissibility of photo lineup evidence.

R v. McKay, 2024 MBPC 82: Sentencing decision, accused given 20 years incarceration plus ancillary orders. Wyant, P.J.:

“Mr. McKay abused children for his own gratification. There is no excuse for what he has done. There is no cure for the havoc he wreaked. He was an adult, a teacher, a mentor, a coach, a father figure and he lured and sexually violated children and irrevocably altered and damaged their lives. For that he must account.  There must be a clear and demonstrative message sent to Mr. McKay and to confirm society’s repudiation and rejection of these types of offences.

If our criminal law was based on vengeance, Mr. McKay, an appropriate sentence for your crimes would be one of life. Just as you sentenced each and every one of your victims to life. But as I said much earlier, we don’t operate our criminal justice system that way. Ultimately, any sentence imposed must be proportionate to the gravity of the offences committed and the degree of responsibility of the offender. I have no doubt you regret your actions. That you are sorry. That you feel remorse. I also have no doubt, as I have said, that I believe that you are a good candidate for intervention and given successful counselling and support you may come to understand your offending behaviour and pose little risk for reinvolvement. Time will tell on that account.” (para. 333-334)

Family Law

YB v DB, 2024 MBCA 91: Appeal allowed in part. A protection order that was improperly set aside by the application judge is to remain in place. A separate reviewable interim order was correctly granted to the respondent at the discretion of the application judge. Any action to set aside the interim order would have to take place in the KB family division.

AAL v JF, 2024 MBCA 77: Appeal of a variation order regarding parenting time and child support, and an order for elevated costs. At trial, appellant relied on arguments similar to those referred to as “Organized Pseudolegal Commercial Arguments” (OPCA). Respondent requested appellant be declared a vexatious litigant. Both the appellant’s appeal and the respondent’s request were dismissed.

Garrett v Garrett, 2024 MBCA 73: Appeal of a finding of contempt and associated penalty. In the course of a divorce proceeding, it was found the respondent/appellant obstructed the ordered sale of the family home. The court found no merit to the appeal and dismissed with costs.

Human Rights Law

Wells v Manitoba Human Rights Commission, 2024 MBCA 79: Applicant appealed the decision of the application judge dismissing her application for leave to apply for judicial review of a decision of the respondents. It was found that the application judge did not consider the merits of the case or the circumstances surrounding the delay in the application before dismissing it. The appeal was allowed and the decision of the application judge was set aside.

Labour and Employment Law

Doorey, David. Can Canada Post “Lay-Off” Strikers?, Law of Work, 28 November, 2024. Accessed 9 December 2024.

Wills, Trusts, and Estates

Henderson Estate (Re), 2024 MBCA 95: Appeal of application judge’s decision dismissing application for an accounting in respect of the respondent’s management of the deceased’s finances when acting under power of attorney and for the removal of one of the respondent’s as executor.

Drewniak v Smith, 2024 MBCA 86: Principal issue on appeal is whether a presumption of undue influence can arise at law in respect of the granting of an enduring power of attorney under The Powers of Attorney Act, something that is unsettled law in Manitoba. The appeal was dismissed. Pfuetzner, J.A. summarizes in para. 83, “the person seeking to attack an enduring power of attorney on the basis of undue influence has the persuasive legal burden to prove undue influence on a balance of probabilities.  That person can, if certain facts are established, rely on an evidentiary presumption of undue influence to satisfy their persuasive legal burden, in the absence of evidence to the contrary.  The evidentiary presumption of undue influence will arise in respect of the granting of an enduring power of attorney if (a) the relationship between the person alleged to have exercised undue influence and the donor is one with the potential for domination, and (b) the granting of the enduring power of attorney was immoderate and irrational.  If the person seeking to uphold the enduring power of attorney leads evidence tending to refute the existence of undue influence, it will be for the trier of fact to determine if the party attacking the enduring power of attorney has satisfied their persuasive legal burden to prove undue influence on a balance of probabilities.”

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