Court Notices & Practice Directions

Provincial Court

Notices

• January 10, 2024 – Peguis – “Effective April 1, 2024, the Peguis circuit sittings will be reduced from four (4) to three (3) sittings a month; the first Monday of the month will be eliminated. This reduction is a reflection of the current needs of this circuit.”

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From Irwin Law, available on vLex through the member portal.

Book Reviews

Review taken from the Canadian Law Library Review, vol 48 no 3

Corporate Governance and the New Technology.
By Alberto Salazar. Toronto: LexisNexis, 2022. ix, 205 p. Includes bibliographic references and index. ISBN 9780433525226 (softcover) $120.00.

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

“In Corporate Governance and the New Technology, author Alberto Salazar seeks to start a global discussion on the duties of loyalty and care of directors and officers in the context of new technology. The book comprises three chapters. Chapter 1, “Directors’ Duties, the New Technology, and Data Governance,” is Salazar’s contribution to the topic; Chapter 2, “Legislation and Cases,” is a selection of legislation and case law from around the world relevant to this area; and Chapter 3, “Some Academic Articles,” features a selection of “academic” art.

This book could be a helpful read for corporate lawyers, whether in-house or law firm. It could also be a useful read for law students, academics, and policymakers interested in corporate governance. In particular, sections 1.06–1.08 (relating to directors’ duty of care and the governance of the new technology and data) should be required reading for all directors and officers and anyone interested in those roles. I can also see this book serving as the textbook for a course on corporate governance trends or a similar subject. However, in light of the problems I have identified, if budgetary constraints are an issue, one could pass on buying this title and wait for one with more valuable content”

Full review available here.

Events

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Substantive Law

Administrative Law

Asfaw v. Chartered Professional Accountants of Manitoba, 2023 MBCA 103: Appeal as of right of a decision of the respondent discipline panel. Appellant was found guilty of committing acts of professional misconduct. Appellant argues that “high duty of professional fairness” requires that the procedure followed in criminal sentencing matters should have been applied to her process. Cameron, J.A. found that comparing a criminal proceeding to an administrative one is inappropriate. Appeal dismissed.

Civil Litigation

The City of Winnipeg v. 3177751 Manitoba Ltd, 2023 MBCA 100: Appeal of order dismissing a motion to remove a law firm as counsel for the city in expropriation proceedings. Appellant argues that judge erred by failing the find a conflict of interest; by failing to disqualify counsel after finding it breach the bright line rule; and awarded costs that inordinately high. Review of law on conflicts of interest as set out in Canadian National Railway Co v McKercher LLP, 2013 SCC 39. Lemaistre, J.A. dismissed the appeal of the order and allowed the appeal of the award of costs in part.

Wilson et al v. Kornelsen, 2023 MBCA 99: Appeal from an order granting a prescriptive easement. Parties are property owners in adjacent lots in Stonewall. Previous owners entered in to an easement agreement allowing access to construct driveways. Appellants purchased their lot in 2020 and raised concerns that use of this pathway would jeopardize the safety of their family. Application judge concluded that there was evidence of continuous usage through hearsay evidence. Issues are whether application judge erred in finding there was sufficient evidence required to find a prescriptive easement; whether application judge erred in finding that the easement was reasonably necessary. Discussion of the law in respect of easements. Review of the principles applied to the admissibility of hearsay evidence. Monnin, J.A. allowed the appeal.

Weremy v. The Government of Manitoba, 2023 MBKB 187: Class action. Motion by a member of the class to extend the time he has to opt out of the class. Moving party had started a claim for a similar action in 2001. It was in danger of being statute barred. Plaintiff started this action in 2018, which was certified in May 2020. Order issued in August 2021 requiring members to opt out within four months of the order. Review of the importance of adherence to opt out deadline. Motion denied.

Boucher et al. v. The Government of Manitoba et al., 2023 MBKB 182: Request for certification of a class action proceeding concerning attendance at Indian residential schools. General principles for certifying a class proceeding are set out in Hollick v. Toronto (City), 2001 SCC 68. Detailed consideration of the criteria required as set out in s. 4 of The Class Proceedings Act. Threshold to determine certification is low. Motion dismissed, however, Grammond, J. encouraged plaintiffs to reconsider the nature and scope of the claim and the proposed common issues.

Garcia v. 9323244 Canada Ltd. et al., 2023 MBKB 181: Dispute over the sale of a used vehicle. Plaintiff argues the vehicle was in not as good condition as was claimed by the vendor (corporate defendant). Vehicle was sold on an “as is” basis. Toews, J. cites Loewen v. Alruda (c.o.b. Alrudha Auto Sales), 2011 MBQB 194 as similar action. Action dismissed.

Wagner v. The Young Men’s & Young Women’s Christian Association of Winnipeg Inc. et al., 2023 MBKB 179: Plaintiff claims negligence by the defendant in maintaining its change rooms, leading her to slip and fall, breaking her wrist. Defendant admits plaintiff was injured, but that it had discharged its duty of care because it was following a reasonable system for inspection and upkeep of the floor in the change room. Bock, J. finds that the YMCA had met is duty of care, but set damages at $34,500 plus special damages, if he was incorrect.

Lintick v. The City of Winnipeg, 2023 MBKB 178: Motion for summary judgment by the defendant City of Winnipeg, on the basis that the action is statute barred and is an abuse of process. Plaintiff is employed as a police officer with WPS. He is seeking damages under s. 24(1) of the Charter) in relation to an incident where he was detained, arrested and taken into custody and his residence was searched. Plaintiff says the detention, arrest and search were unlawful and in breach of the Charter. Defendant says it had grounds to act, and the essential character of the dispute is within the exclusive jurisdiction of the labour arbitrator. Issues: is the statement of claim statute barred? Is the statement of claim an abuse of process for want of jurisdiction? Actions leading to this claim took place on February 24, 2017. Chartier, J. found that this action was statute barred, and dismissed the action.

Culligan v. Norman et al., 2023 MBKB 176: Appeal of decision of an Associate Judge striking appellant’s statement of claim as an abuse of process. Hearing is a fresh hearing, as per King’s Bench Rule 62.01(13). Appellant was convicted in Provincial Court of criminal offences, and is now making a civil claim. Toews, J. concluded that the statement of claim and reply constitute an abuse of process in that they attempt to relitigate appellant’s criminal convictions (para 26). Test for abuse of process set out in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63. Appeal dismissed. 

Manitoba Métis Federation et al. v. Métis Nation British Columbia et al., 2023 MBKB 174: Defamation action. Plaintiffs move to strike out paragraphs of the statement of defence, under King’s Bench Rule 25.11(1). Defendants argue these defences have been properly pleaded. Plaintiffs’ position is that the statement of defence and particulars do not identify the facts that the defendants are relying on for their justification defence. Review of the “fair comment defence” as set out in Hansman v. Neufeld, 2023 SCC 14. Perlmutter, A.C.J. does not strike out these defences.

Constitutional Law

Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31: Issue over s.23 of the Charter regarding minority language education rights. Children of parents not holding the right guaranteed by s.23 to have their children education in French were denied admission to a French first school. The school commission recommended admission but the minister denied the applications. Judicial review at the Supreme Court of the Northwest Territories was successful, then overturned at the Court of Appeal. Present: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.  English version of the judgment of the Court delivered by Côté J.:

[5] There has been a Francophone presence in the Northwest Territories since the 18th century, but instruction in French has been offered only since 1989 in Yellowknife and since 1998 in Hay River. This appeal is about whether the refusal to admit children of non‑rights holder parents to minority language schools in the Northwest Territories gave due consideration to the protections conferred by s. 23 of the Charter, having regard to the three purposes of this section, which is at once preventive, remedial and unifying in nature.

…

[8] For the reasons that follow, I conclude that the Minister was required not only to consider the values embodied in s. 23 in exercising her discretion to admit the children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories, but also to conduct a proportionate balancing of these values and the government’s interests. Since she did not do so, I am of the view that the appeal should be allowed and the orders made by the Court of Appeal set aside on the basis of this first ground of appeal.

Corporate and Commercial Law

Field Farms Marketing Ltd. v. Zeghers Seed Inc., 2023 MBKB 183: Application for an order declaring that the dispute between the parties be subject to arbitration, pursuant to an arbitration clause in the sales contract. Respondent says it never agreed to an arbitration clause. Analysis of appropriate jurisdiction for hearing the complaint. Greenberg, J. concluded that the proper forum should be decided by an arbitrator of the appropriate association once a complaint is filed. Application dismissed.

Death of Insured During 10-day Cancellation of Policy Period, Supreme Advocacy, Court of Appeal decision of the week, 20 Dec 2023, viewed 02 Jan 2024. Comment on Thomson v. Ivari,, 2023 ABCA 369.

As noted by the Court of Appeal, this case is “unusual as there appears to be no similar situation where an insured person died during the cancellation of a replacement life insurance policy and thus, no cases determining which policy covered the event”. (See para. 25).

Criminal Law

R. v. Whiteway, 2023 MBKB 186: Sentencing decision after accused pleaded guilty to manslaughter shortly before her trial was to begin. Victim was walking behind accused; she thought he was following her and turned around and stabbed him. Presentence and Gladue reports provide many mitigating factors. Extensive canvas of sentencing decisions in similar situations. Rempel, J. sentenced accused to six years in custody, less time served, with request that at least part of that time be served at the Maple Creek Healing Lodge in Saskatchewan.

R. v. Gamblin, 2023 MBKB 184: Sentencing decision where accused was convicted of second degree murder. Automatic sentence of life imprisonment; issue is how many years he must serve before becoming eligible for parole. Keyser, J. notes at the beginning that the accused is unlikely to ever be rehabilitated. Accused refused to cooperate in the preparation of a Gladue report. Minimal mitigating factors and multiple aggravating factors. Crown is asking for parole after 20 years; Court agrees.

R. v. Negash, 2023 MBKB 177: Appeal of convictions after a trial in Provincial Court. Main issues on appeal are whether the judge erred in fact and law in applying the correct legal test for self-defence and the defence of necessity. Both parties agree the standard of review is correctness. Review of events leading up to the arrest. Appeal dismissed.

R. v. Bissonnette, 2023 MBKB 170: Sexual assault trial of family doctor. Complainants were patients. Bond, J. reviewed the law of the offence of sexual assault; the presumption of innocence and burden of proof; expert opinion evidence and more. Analysis of consent in sexual assault, including honest but mistaken belief in consent. Consideration of each complainant’s testimony and credibility/reliability. Accused found guilty on all five counts.

R. v. Isaac, 2023 MBPC 73: Accused was arrested without a warrant and searched after the arrest. Issue is whether the arrest and search were compliant with ss. 8 and 9 of the Charter. Police relied on information received from a confidential informant. Test for assessing CI information is found in R. v. Debot, [1989] 2 S.C.R. 1140 at p. 1168. Reasonableness of the arrest is based on whether the information was credible, compelling and corroborated. Cornick, P.J. found that it was. Evidence seized during the search is admissible.

R v. Chase, 2023 MBPC 68: Sentencing decision where accused was found guilty after a trial of several offences involving intimate partner violence. Analysis of consecutive and concurrent sentences. Crown and Defence are far apart in suggested sentences. Frederickson, P.J. sentences accused to a 10 year custodial sentence, and then reduced it to eight years, six months after reviewing for totality.

R. v. Osborne, 2023 MBPC 70: Trial where accused charged with aggravated assault and assault with a weapon. Accused argues self defence and defence of property. Victim appeared at accused’s home demanding to be let in. Accused did not know victim, and refused to let her in. After some escalation, accused hit victim. Crown proved unlawful act of assault with a weapon, but defence of property was successful. Accused acquitted.

R. v. J.H., 2023 MBPC 67: Sentence where accused convicted after trial for sexually interfering with his stepdaughter. Lack of prior criminal record only mitigating factor. Hewitt-Michta, P.J. reviewed the principles of sentencing as it applied to this kind of offence. Accused sentenced to 18 months’

R. v. Isaac, 2023 MBPC 66: Analysis of application for ss.11(b) and 24(1) Charter breaches due to delay. Accused was charged with possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime under $5,000. Defence raises an alternative argument with respect to issue estoppel. Application dismissed.

R. v. C.D., 2023 MBPC 65: Application alleging breaches of youth’s Charter rights after he was arrested and up to his bail application. Youth pleaded guilty to several offences including aggravated assault, robbery and discharging a firearm and is awaiting sentencing pursuant to an Intensive Rehabilitative Custody and Supervision (IRCS) order. Defence seeking a remedy of a judicial stay or a sentence reduction. Defence is no longer pursing a stay of proceedings, but he wishes the Court to determine that a stay would be appropriate in this case. Crown is seeking a three year IRCS sentence, defence is seeking a two year IRCS sentence. Crown conceded that the accused’s right to reasonable bail was violated. Devine, P.J. declined to determine the issue on the basis that it is moot, in the interests of judicial economy. Remaing issues to resolve are whether the youth’s s.10(b) and 11(e) Charter rights were breached. 11(e) rights were breached, difficulty with remedy is that IRCS is considered treatment, not punishment, and parties must determine if it is possible to reduce it as a remedy.

R. v. Kambeba, 2023 MBPC 64: Sentencing decision where accused was convicted of sexual assault. Crown and defence are very far apart on sentencing recommendations. Do the social context factors applicable to the accused justify a conditional sentence order? Crown recommends a prison sentence of seven years; defence recommends a CSO for two years less a day, plus three years supervised probation. Victim was 16 at the time of the offence. Review of the objectives set out in s. 718 of the Criminal Code. Choy, P.J. was provided with both a pre-sentence report and an IRCA report. Accused is sentenced to three years’ imprisonment.

R. v. Sumaili, 2023 MBPC 63: Sentencing decision after pleading guilty to being unlawfully in a dwelling house, assault, and theft under $5,000. Impact of Race and Cultural Assessment (IRCA) report presented. Issue is whether a conditional sentence order is appropriate. Review of previous decisions using IRCA from Ontario and Nova Scotia. Starting point on sentence is R. v. Duerksen, 2012 MBCA 41 (para 4). Choy, P.J. noted that there could be immigration consequences for the accused if he is sentenced to prison for six months or more. Accused is sentenced to a conditional sentence.

 John L. Hill. Manitoba Appeal Court Ruling Exhibits Progress Away From Punishment Toward Rehabilitation. Law360 Canada, 5 January 2024, viewed 8 January 2024. Comment re sentencing decision R. v. Whiteway, 2023 MBKB 186.

Family Law

Manitoba (Director of Child and Family Services) v. M.K. and C.J.O., 2023 MBCA 98: Agency appeals permanent order giving agency permanent guardianship of child subject to six conditions. Agency requests court to remove conditions, arguing that The Child and Family Services Act does not allow for conditions to be attached to a permanent order. Trial judge used the Court’s parens patriae jurisdiction in order to add the conditions to the permanent order. Standard of review is that articulated in Housen v. Nikolaisen, 2002 SCC 33. Discussion of the law on the Court’s parens patriae jurisdiction. Rivoalen, C.J.M. concludes that there was an error of law; appeal allowed.  

Friesen v. Friesen, 2023 MBKB 180: Parties are contesting parenting time and ongoing and retroactive child support. Retroactive support was settled before final submissions. Interim order consented to in June 2022 gave the respondent parenting time on alternate weekends and Thursdays overnight, and the petitioner final decision-making authority. Respondent is now asking for shared parenting time on a week-on, week-off basis. Thomson, J. found respondent did not have a definitive plan on how he would be able to fulfill this commitment. Best interests of the children is to remain primarily in the care of the petitioner and respondent continue his parenting time. Income imputed to the respondent in order to determine child support.

M.L.O. v. D.G.O., 2023 MBKB 171: Respondent sought to terminate child support obligations, and vary or terminate spousal support obligations. Petitioner sought retroactive increase of spousal support. Consent Final Order was pronounced on the same day as the divorce judgement in 2013. Review of amounts paid by respondent for child and spousal support and that required by the Manitoba Table amount. Discussion of “crossover” situation between child and spousal support.

Legislation

Federal

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Provincial

The House adjourned on December 7, 2023.

The 1st Session of the 43rd Legislature will reconvene on Wednesday, March 6, 2024 at 1:30 p.m.

Current Bills    |    Bill Status

New Regulations