News

• The Canadian Open Access Legal Citation Guide is now accessible online – “CanLII is thrilled to announce the launch of the Canadian Open Access Legal Citation Guide (COAL-RJAL Guide), a valuable resource for anyone involved in Canadian legal citation. Released in June 2024, this open access guide incorporates feedback contributed by reviewers from Canadian courts, law firms, law journals, law societies, and law schools.”

• Release of the external Steering Group Report A Roadmap for Transformative Change: Canada’s Black Justice Strategy: an important milestone in the development of Canada’s Black Justice Strategy – “Today, the Honourable Arif Virani, Minister of Justice and Attorney General of Canada, welcomed the publication of the external Steering Group’s Report: A Roadmap for Transformative Change: Canada’s Black Justice Strategy. This Report is an important milestone in the development of Canada’s Black Justice Strategy. The work of the external Steering Group is based on an intersectional, anti-Black racism, and anti-oppression lens that responds to and reflects the diverse histories, backgrounds, experiences and regional realities of Black communities in Canada.”

• CRTC launches public consultation on Google’s application under the Online News Act – “The Online News Act aims to ensure that online platforms that make Canadian news content available fairly compensate Canadian news organizations. The CRTC is responsible for implementing the government’s Regulations, which allow online platforms to request an exemption from being required to bargain with individual news organizations if they reach an agreement with an organization that represents a broad range of Canadian news organizations. On June 7, 2024, Google filed an agreement with an organization that would be responsible for administering the funds to Canadian news businesses and requested an exemption.”

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.

Q:What are the rules for Causation?

“There may be a cause without a tort, but there cannot be a tort without a cause”[1]

While the above may be obvious, proving causation isn’t always as plain. The general doctrine is the “But for” test which asks if it was “but for” the defendant’s breach of care, would the plaintiff have suffered some injury. However, this doesn’t need to be proven with one hundred percent certainty. In Snell v. Farrell, [1990] 2 S.C.R. 311, Sopinka J writes at para 29:

“I am of the opinion that the dissatisfaction with the traditional approach to causation stems to a large extent from its too rigid application by the courts in many cases. Causation need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490:

. . . essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory.”

The “but for” test is discussed later in Athey v. Leonati, [1996] 3 S.C.R. 458 which notes that the “but for” test is sometimes unworkable or impossible. The case helps to develop the “material contribution” test as an alternative. For more information see  Professional Negligence Causation: Making Sense of Athey v. Leonati, 2005 CanLIIDocs 635.

Later cases would also develop other aspects of causation:

• Walker Estate v. York Finch General Hospital [2001] 1 SCR 647 developing the “Material contribution “test,
• Blackwater v Plint 2005 SCC 58 – Role of prior trauma: “78  It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort.  The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.  Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage.”
• Resurfice Corp. v. Hanke 2007 SCC 7 – role of multi-cause cases “para 19: The Court of Appeal erred in suggesting that, where there is more than one potential cause of an injury, the “material contribution” test must be used.  To accept this conclusion is to do away with the “but for” test altogether, given that there is more than one potential cause in virtually all litigated cases of negligence.  If the Court of Appeal’s reasons in this regard are endorsed, the only conclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test.  This is inconsistent with this Court’s judgments in Snell v. Farrell; Athey v. Leonati, Walker Estate v. York Finch General Hospital, and Blackwater v. Plint.”

To help clear up some of the confusion, the law of causation is summarized by Chief Justice McLachlin in  Clements v Clements 2012 SCC 32, para. 46:

“As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant.  A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss.  Scientific proof of causation is not required. 

Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.”

See more Clements v. Clements: A material contribution to the jurisprudence – The Supreme Court of Canada clarifies the law of causation, 2012 CanLIIDocs 185

While these cases are a good starting point, there are still other factors and matters to consider. Additional information can be found in these library resources:

• vLex – The law of torts — 6th ed.
• Heinonline – Kimberley A. Knapp, “The Law of Causation: A Cause of Some Confusion” (2019) 77:2 Advocate (Vancouver) 191.
• Canadian Tort Law — 12th ed (Print)

[1] Fridman, G.H.L. Torts: A guide for the Perplexed. (Toronto: LexisNexxis, 2017) at p.134

Latest Current Awareness

Journals

We also have access to a number of legal journals in print and digital. See below for the latest issues of popular titles. Members can request copies of articles under fair dealing guidelines by emailing library@lawsociety.mb.ca

Court Notices & Practice Directions

King’s Bench

Practice Directions

• June 21, 2024 – Counsel’s Approval of Form of Order
• June 21, 2024 – Service of Motion for Default Judgement

New Library Resources

New Online Titles

Available on behind the Member Portal in the Emond’s Criminal Law Series.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 49 Issue 1

“Standards for the Control of Algorithmic Bias: The Canadian Administrative Context“. By Natalie Heisler & Maura R Grossman. Boca Raton, FL: CRC Press, 2024. 108 p. Includes bibliographic references and index. ISBN 9781032550220 (hardcover) $64.95; ISBN
9781003428602 (eBook) $24.95 By Justice Cameron Gunn, Mona Duckett & Patrick McGuinty. Toronto: Emond, 2023. xxiv, 338 p. Criminal Law series: volume 16. Includes table of cases and index. ISBN 9871774623763 (softcover) $133.00; ISBN 9781774623770 (eBook) $120.00.

Reviewed By
Marnie Bailey
Manager, Knowledge Services
Fasken Martineau DuMoulin LLP

“Artificial intelligence (AI) is in the news everywhere you look, with a lot of talk about its ability to replace lawyers (and librarians!), or at least streamline simpler tasks, such  as summarizing cases or articles. But what happens when AI moves into the realm of decision making? How can we ensure that there is no bias in the AI-based decisions? How do we protect human rights when there are no “humans” involved in making the decisions?

…

Standards for the Control of Algorithmic Bias: The Canadian Administrative Context is a concise text that speaks to the potential harms involved with ML ADM. The authors lay out a very logical and simple process that should be initiated prior to any decision making. Nine pages of bibliographic references to resources cited throughout are also included at the end of the book. I recommend this text to anyone interested in the ways AI can be used to automate decisions,
particularly to those building the systems.”

 

Click here for the full review

Events

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Substantive Law

Administrative Law

Dow Chemical Canada ULC v. Canada, 2024 SCC 23: Issues under Income Tax Act, ss. 169, 247(2), 247(10) and Federal Courts Act, ss. 18.1, 18.5: Whether decision by Minister exercising discretion to deny taxpayer’s request for downward transfer pricing adjustment falls outside exclusive original jurisdiction of Tax Court to determine appeals of assessments. SCC: Held (Karakatsanis, Côté and Rowe JJ. dissenting): The appeal should be dismissed.

Per Kasirer J., Martin, Jamal and O’Bonsawin JJ.:

“[121] In answer to the question posed under s. 58, I conclude that when the Minister has exercised her discretion under s. 247(10) of the ITA to deny a taxpayer’s request for a downward pricing adjustment, that decision falls outside of the jurisdiction of the Tax Court in respect of an appeal, under statute, of the taxpayer’s assessment. As there is no express right of appeal from this decision to the Tax Court, the proper forum to challenge the Minister’s decision is the Federal Court, pursuant to its exclusive jurisdiction in judicial review under its home statute. The Federal Court of Appeal was therefore right to allow the appeal from the Tax Court, to set aside the order granted by that court and, in granting the order the Tax Court should have issued, to answer the question in the affirmative.

[122] For the foregoing reasons, I would dismiss the appeal with costs.”

Per Côté J., Karakatsanis and Rowe JJ. (dissenting):

“[223] The Minister’s decision to deny the downward pricing adjustment requested by Dow Chemical resulted in reassessments for the 2006 taxation year. Dow Chemical objected to those reassessments and appealed the latest reassessment to the Tax Court. In my view, the Minister’s decision was inextricably linked to the correctness of that reassessment. The amount of tax owing could only be determined once the Minister made the decision to allow or deny the downward pricing adjustment. Dow Chemical had the right to challenge the Minister’s decision in an appeal to the Tax Court.

[224] For these reasons, I would allow the appeal, with costs. The stated question is answered as follows: Dow Chemical’s challenge regarding the Minister’s decision under s. 247(10) of the ITA should proceed before the Tax Court.”

Iris Technologies Inc. v. Canada, 2024 SCC 24: Issues under Excise Tax Act, s. 302 and Federal Courts Act, s. 18.5. Iris filed GST returns claiming substantial tax refunds under the ETA for a period ending in 2020. The Minister audited the relevant reporting period, issued an assessment disallowing input tax credits, and assessed penalties. Iris applied for judicial review in Federal Court. Attorney General brought a motion to strike the application for judicial review. The prothonotary dismissed the motion. Federal Court dismissed the AG’s appeal, but the Federal Court of Appeal allowed its subsequent appeal and struck out Iris’s application for judicial review on the basis that it was a matter within the exclusive jurisdiction Tax Court. SCC: held, appeal should be dismissed.

Per Kasirer J., Martin, Jamal and O’Bonsawin JJ.:

“[7] Significantly, the reasoning of the Federal Court of Appeal that I propose to endorse on this point explains, jurisprudentially, the proper contours of the dividing line between the exclusive jurisdiction of the Tax Court to review the correctness of a tax assessment by a de novo procedure on appeal and the jurisdiction of the Federal Court in tax matters. Notwithstanding the issuance of a tax assessment, the Federal Court has the exclusive jurisdiction to conduct judicial review over discretionary decisions delegated to the Minister by Parliament, including those that directly affect tax liability. The Minister’s assessment of net tax pursuant to the Excise Tax Act, R.S.C. 1985, c. E-15 (“ETA”), is not the exercise of a discretionary power. Instead, it is a non‑discretionary determination where the outcome, the assessment, is dictated by statute. Jurisdiction over the correctness of the assessment falls to the Tax Court under s. 302 of the ETA.

[8] Highlighting this distinction between ministerial discretionary decisions and the tax assessment itself, which is non-discretionary, is, I think, all-important in explaining the jurisdictional debate in our Court in Dow and in this appeal. It further explains why the Attorney General of Canada defended the jurisdiction of the Federal Court in Dow, notwithstanding the issuance of an assessment and, on the same day before this Court in this appeal, challenged the jurisdiction of the Federal Court as trenching on the exclusive jurisdiction of the Tax Court over the correctness of the taxpayer’s assessment.”

Per Côté J., Karakatsanis and Rowe JJ. (concurring reasons):

“[84] First, on the basis of a holistic reading of Iris’s application for judicial review, I find that it is a collateral attack on the correctness of the assessments. An appeal to the Tax Court is available, adequate and effective in giving Iris the relief sought with respect to its first two allegations (a breach of procedural fairness and evidentiary issues). As for Iris’s third allegation of (improper purpose in making the assessments), it fails to state a cognizable administrative law claim and is in any event premature. Pursuing that claim in the Federal Court prior to doing so in the Tax Court would be premature given that such a claim could not possibly succeed in the Federal Court unless Iris had first managed to establish that the assessment was incorrect. Second, the declarations sought by Iris are of no practical effect. The Federal Court could not grant the relief sought. I therefore agree with the Federal Court of Appeal that this application was bereft of any possibility of success and had to be struck on a preliminary basis.”

Traverse v. Lake St. Martin First Nation et al., 2024 MBKB 91: Applicant sought an order to overturn the result of the Lake St. Martin First Nation’s July 4, 2022 election, due to violations of the First Nations Election Act, sections 14 and 16. Lanchbery, J. found some evidence to be credible, but not sufficient to change the results of the election. The application was dismissed.

Civil Litigation

Normand v. St. Charles Interparochial School Inc. et al., 2024 MBKB 87: Defendant motion pursuant to Rule 49.09 of The Court of King’s Bench Rules. Plaintiff opposes the motion, claiming no binding settlement agreement. After reviewing correspondence between the parties’ counsel, Innes, J. found that a binding settlement agreement was reached. Motion to enforce the settlement agreement granted.

York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22: Applicability of s. 8 of the Canadian Charter of Rights and Freedoms to Ontario public school boards. In a disciplinary grievance, teachers’ union claimed a search of private communications violated two teachers’ right to privacy at work. No Charter breach was alleged. A labour arbitrator dismissed the grievance. A majority of the Divisional Court review upheld the arbitrator’s decision. Dissent found that s. 8 of the Charter applied. Court of Appeal unanimously allowed the appeal and quashed the arbitrator’s decision. SCC: Appeal dismissed.

Per Wagner C.J., Côté, Rowe, Martin, Kasirer and Jamal JJ.:

“[4] I would dismiss the appeal, although my reasoning follows a different pathway than that of the Court of Appeal. Teachers are protected by s. 8 of the Charter in the workplace, as Ontario public school boards are inherently governmental for the purposes of s. 32 of the Charter. Consequently, the grievance at issue implicated an alleged violation of a Charter right, and s. 8 of the Charter was a legal constraint bearing on the arbitrator’s analysis.

[5] The arbitrator erred by limiting her inquiry to the arbitral framework without regard for the legal framework under s. 8 that, as a matter of law, she was required to respect. The effect of my conclusion on this point is not to displace existing arbitral jurisprudence, but to supplement it in order to ensure the protection of constitutional rights in the workplace. The s. 8 framework being contextual, it must be adapted to account for the circumstances in which the Charter right is asserted.”

Per Karakatsanis and Martin JJ. (joint concurring reasons):

[108] We agree with the parties and Rowe J. that the issue of whether the Canadian Charter of Rights and Freedoms applies to Ontario public school boards is one that must be correctly determined by this Court. We further agree that under the first branch of Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, the Charter applies to Ontario public school boards and all their activities (para. 44). However, we do not agree with how our colleague reviews the arbitrator’s decision.

[109] The arbitrator was asked to determine whether the privacy rights of two teachers (the Grievors) were violated and, as a result, whether the collective agreement was breached. The Grievors sought remedies under their collective agreement; no Charter remedies were sought. This Court’s s. 8 Charter jurisprudence was specifically argued by the parties, and the arbitrator’s reasons clearly demonstrate she appreciated that the s. 8 privacy framework applied and constrained her decision. The issue in this appeal is whether she used that framework reasonably in the circumstances of this case. We conclude, like Sachs J., in dissent at the Divisional Court, that the arbitrator’s reasoning is not consistent with the principle of content neutrality, which lies at the heart of s. 8’s normative approach to privacy, and therefore her decision is unreasonable. For the reasons that follow, we would dismiss the appeal.”

Corporate and Commercial Law

Sterling Parkway Residences Inc v Gypsum Drywall Interiors Ltd, 2024 MBCA 46: Appeal of the dismissal of an application to vacate a builders’ lien without requiring the applicant to post any security.

Criminal Law

R. v. Hodgson, 2024 SCC 25: The appellant was acquitted of charge of second degree murder on the basis that the Crown did not establish mens rea as well as the charge of manslaughter, on grounds of self-defence. The Crown appealed the decision, and a new trial was ordered. SCC: The appeal should be allowed and the acquittal restored.

Per Martin and Moreau JJ., Wagner C.J. and Karakatsanis, Côté, Kasirer, Jamal and O’Bonsawin JJ.:

“[43] We disagree; the alleged error is not one of law. As this Court explained in Chung, the second and third errors identified in J.M.H. “address errors where the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law” (Chung, at para. 11 (emphasis added)). It is this “erroneous understanding” or “misapprehension” of the law that an appellate court must precisely identify and articulate when overturning an acquittal. For example, if a court concludes that the trial judge erred in assessing the evidence based on the wrong legal principle, it should explain which principle is at issue, which of its components or aspects is at the root of the error, and how the trial judge’s reasons demonstrate an erroneous understanding or misapprehension of that component or aspect. With respect, the Court of Appeal did not articulate the precise error of law at the root of its intervention. This is not a case in which the appellate court can reach a purely legal conclusion drawn from the evidence without calling into question the trial judge’s evaluation of the evidence.”

Per Rowe J. (concurring):

“[84] I am persuaded that self-defence applies and, thus, I agree in the result. I write separately to clarify the Crown’s right to appeal an acquittal. My colleagues deal with this at length, emphasizing how narrowly this is limited. However, there is an exception that warrants note.

[85]  At paragraph 34, my colleagues write: “There are . . . situations in which a ‘trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal of an acquittal’” (quoting R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24). In J.M.H., the Court identified four such situations, one being an “assessment of the evidence based on a wrong legal principle” (Martin and Moreau JJ.’s reasons, at para. 35).

[86] “Myths” relating to sexual assault have been characterized as errors of law (R. v. Kruk, 2024 SCC 7). These are not confined to the “twin myths” referred to in s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. Rather, this is an open category, further myths being identified from time to time. Thus, where the Crown characterizes an aspect of a trial judge’s reasons as incorporating a “myth”, this would meet the requirement in s. 676(1)(a) that the appeal be on a “question of law alone”.”

Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21: Appeals allowed in part. Issues of Informer privilege, open court principle, interested third parties challenging confidentiality orders. Should the procedure set out in Vancouver Sun be modified to fit with the open court principle, how should those guidelines be applied in camera, did QCCA err in refusing to vary or set aside its confidentiality orders? SCC: Held, appeals should be allowed in part.

Per Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.:

“[89] Named Person was not convicted following a secret criminal proceeding. The controversy that arose after the release in March 2022 of the Court of Appeal’s judgment in which it denounced the holding of a “secret trial” is unfortunate and could have been avoided. First and foremost, it could have been avoided if the trial judge had proceeded in camera by creating a parallel proceeding completely separate from the criminal proceeding in which Named Person had been appearing publicly until that time. The magnitude of the controversy could also have been limited if the Court of Appeal had not used the expression “secret trial” to describe what were actually in camera hearings held in a proceeding that began and initially moved forward publicly. In addition to being inaccurate, this expression is needlessly alarming and has no basis in Canadian law.

[90] Moreover, we want to reiterate the relevance of the Vancouver Sun procedure and the importance of rigorously applying its guiding rule requiring a court to protect informer privilege while minimizing, as much as possible, any impairment of the open court principle. For this purpose, the courts must be flexible and creative. What is in issue is the maintenance of public confidence in the administration of justice and respect for the rule of law.

[91] In fairness to the Court of Appeal, it was in a difficult position, as it had before it an appeal that did not relate in any way to the trial judge’s confidentiality orders. In this context, we can only commend its decision to proactively champion the open court principle and the democratic ideals underlying it by opening a record at its court office and making public a redacted version of its judgment of February 28, 2022. Given the particular circumstances of this case, the Court of Appeal had no choice but to redact its judgments as heavily as it did. It was therefore correct to dismiss the motions for total or partial disclosure of the information that had been kept confidential up to that time. However, it erred in upholding its order that the entire appeal record be sealed. It should have made public a redacted version of the trial judgment, because redacting that decision was an entirely feasible undertaking that did not compromise Named Person’s anonymity and that accommodated the open court principle.

[92] In closing, even though errors were made, there is no doubt that all of the justice system participants involved were in good faith and acted with integrity. They were all motivated by a sincere desire to protect Named Person’s anonymity, as was their duty. We believe that this decision will be helpful and will guide trial judges who must proceed in camera, in order to ensure that they accommodate the open court principle to the greatest extent possible.”

R v Fox, 2024 MBCA 48: Accused seeks to appeal conviction for second degree murder and leave to appeal sentence and, if granted, appeals the 15 year parole ineligibility. The accused confronted the victim who armed with a shotgun. The victim tried to use the weapon, but it did not discharge. The accused chased and fatally stabbed the victim. The court dismissed the conviction appeal, granted leave to appeal the sentence and dismiss the sentence appeal.

R. v Falk, 2024 MBCA 51: Appeal of convictions for breaking and entering a dwelling-house with intent to commit an indictable offence. Ground of conviction appeal is a claim of erred application of the evidentiary presumption under s 348(2) of the Criminal Code and that the trial judge made palpable and overriding errors in assessing the accused’s credibility and intentions. The court was not convinced of either error on the part of the trial judge. Conviction appeal dismissed.

R. v Dew, 2024 MBCA 55: Crown appeal of sentencing decision. The accused was convicted of child luring, receiving a sentence of a one-year CSO, followed by two years of supervised probation. The Court found that the trial judge made errors in principle in assessing the gravity of the offence and the moral blameworthiness of the accused. Leave was granted and the sentence appealed. Ordered a sentence of sixteen months’ imprisonment less credit for time served. The two-year supervised probation order imposed by the trial judge remains, as well as the ancillary orders. The accused’s request to stay the balance of the sentence was denied.

R. v. Chubb, 2024 MBKB 79: Sentencing decision where the accused pled guilty to manslaughter. The accused was intoxicated during the incident, stabbing the victim twice without provocation. The accused has a history of alcohol abuse and previous criminal convictions, both are connected to his Gladue factors. Inness, J. weighed the mitigating factors and the effect of the crime on the victim’s family and surrounding community. Inness, J. sentenced the accused to 7.5 years incarceration, less time served; DNA order; lifetime weapons prohibition; forfeiture of all items seized.

R. v. Robinson, 2024 MBKB 92: Judgement regarding parole ineligibility. The accused pled guilty to a charge of second degree murder of his domestic partner. In the presence of their children, the accused assaulted the victim, only moving the children to a different room after the victim was bleeding from her injuries. The accused continued the assault with various objects, both inside and out of the house. Greenberg J. ordered a period of parole ineligibility of 16 years.

R. v. Dick, 2024 MBPC 38: Sentencing decision where accused pled guilty to possession of fentanyl for the purpose of trafficking and possessing a weapon for a dangerous purpose. Issues are whether a sentence of less than two years is appropriate and whether a Conditional Sentence Order (CSO) is suitable. Mitigating factors include guilty plea, Gladuefactors, time spent in rehabilitation, and no prior criminal record. Aggravating factors include possession of a weapon, serious nature of trafficking fentanyl, sale of drugs for profit, and a quantity of methamphetamine in the accused’s possession. Carlson, P.J. ordered a CSO of two years less a day for the trafficking offence, less time spent in custody. Sentence for weapon possession is 60 days concurrent. 

R. v. Hoogkamp, 2024 MBPC 45: The accused is an RCMP officer who was charged with assault and assault causing bodily harm, at the recommendation of the RCMP’s Independent Investigation Unit following an incident with a woman in custody. The accused relied on provisions in the Criminal Code, s.25 and s.34, protecting peace officers in the execution of their duties as well as the general self-defence provisions. Sullivan, P.J. found that the Crown failed to prove beyond a reasonable doubt that the accused’s actions were not justified under s.25 of the Criminal Code. The accused was acquitted of both charges.

R. v. Campbell, 2024 MBPC 36: Decision on Voir Dire re admissibility of accused’s cell phone. The accused’s cell phone was seized by RCMP through means that violated the accused’s section 8 Charter rights. The Crown conceded that this police action was a Charter breach. Briscoe, P.J. applied the Grant test and found there to be a serious infringement of Charter rights by way of a knowingly unauthorized search. Evidence excluded.

R. v. Traverse, 2024 MBPC 47: The accused pleads not guilty to the charge of assault with a weapon for reasons of self-defence under s. 34 of the Criminal Code. The assault occurred when the accused tried to lay claim on a bag that had been previously claimed as the lost property of another woman. The other woman shoved and punched the accused. The accused responded by swinging a hammer. Guénette, P.J. found the accused did not act in self-defence and is guilty of the charge.

R. v. Schroeder, 2024 MBPC 46: Charges of sexual assault and luring. Complainant was 14 at the time of the incidents the accused was 18. Issues: Did the complainant consent to sexual activities; Did the accused mistakenly believe there was consent; did the accused lure the complainant. Frederickson, P.J. found there was no consent and the accused did not take reasonable steps to ascertain consent; Crown did not meet its burden of proof for the luring charge.

Anderson (Re), 2024 MBPC 49: Decision on motion for disclosure brought by parties connected to the deceased, seeking all information collected by the RCMP. The scope of the inquest is to review the multi-agency response to the train derailment that contributed to the death, not the circumstances of the derailment. The undisclosed information was deemed not relevant to the inquest. Motion dismissed.

Family Law

Asiwaju v Adetoro, 2024 MBCA 47: Issue concerning if the motion judge erred in law by granting relief not requested, relying on information not properly before her, and not providing the petitioner an opportunity to respond. Petitioner sought to compel the respondent to complete their child’s passport application or to dispense with her consent for the child’s travel documents. The motion judge dismissed the father’s motion, granting the mother exclusive authority to handle the child’s travel documents. Appeal allowed in part. Paras 6.5, 6.6, 6.7 and 6.8 of the motion judge’s order struck.

M.I.M. v. B.S.D., 2024 MBKB 80: Triable issues of parenting arrangements, decision-making responsibility, and income determination. The parties had an interim parenting arrangement from 2020. The respondent relocated the children without the petitioner’s consent. The parties have a high-conflict relationship, which the children have been exposed to. Mirwaldt, J. considered the impact of family violence on children and best interests of the children. The court ordered a shared-parenting schedule, contingent on respondent moving closer to petitioner, final decision-making responsibility given to petitioner, and no child support awarded to either party.

Pedersen v. Pedersen, 2024 MBKB 83: Determination of parenting arrangements and support obligations, both child and spousal. Parties had joint custody and shared care of the three children. Petitioner has not had meaningful contact with the children since July 2021. Both parties have a history of non-compliance with court orders and family violence in the presence of the children. Thomson, J. granted the respondent exclusive parenting time with the two older children and majority parenting time with the youngest child. Petitioner ordered to pay child support and a lump sum in arrears. Petitioners request for ongoing spousal support was dismissed.

J.G.L. v. J.K.L., 2024 MBKB 90: Petitioner filed a notice of opposition to a report issued by an Associate Judge, regarding medical decision-making authority, parenting time, a joint bank account, and the valuation of cattle owned by the Husband at separation. Leven, J. noted that the respondent failed on multiple occasions to fully disclose his income. Leven, J. referred to Dashevsky when considering part of the respondent’s income claimed as a sale for tax purposes is now being claimed as a gift for MPA purposes. Using Chevalier as a test, the court found that the Associate Judge erred in determining the value of the disputed cattle. The valuation of the respondent’s cattle at separation was set at $247,000, altering the Associate Judge’s report. The petitioner was granted final decision-making authority over the child’s vaccinations. No special rule was made regarding parenting time or orders made concerning the joint bank account.

Municipal Law

The Assessor for the City of Winnipeg et al. v. The Board of Revision for the City of Winnipeg et al., 2024 MBKB 86: Application by The Assessor for the City of Winnipeg and the City of Winnipeg appealing the decision of the Board of Revision that the two corporate respondents who carry on business as Aveda Institute and Academy should receive a 100%  exemption from paying school taxes. Toews, J. concluded that the Board of Revision made the correct decision in granting a 100% tax exemption to Aveda under s. 23(1)(d) of the Municipal Assessment Act.

Wills, Trusts, and Estates

Jorgenson v. Cadieux, 2024 MBKB 75: Plaintiff disputes the validity of a codicil which disinherits him from a piece of property, for reasons of lack of testamentary capacity and undue influence. Plaintiff also claims an oral agreement from 1980 entitles him to the property, and seeks a constructive trust based on unjust enrichment. Toews, J. dismissed the plaintiff’s claims and upheld the validity of the codicil due to credible testimony from the executrix and the solicitor who executed the codicil.

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