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Court Notices & Practice Directions

Court of Appeal

Notices and Practice Directions

• May 16, 2023 – Notice – New Email Address for Requesting Transcripts

Court of King’s Bench

Notices

• May 17, 2023 – Notice – Amendments to Court of King`s Bench Rules (Family)
• May 17, 2023 – Notice – Amendments to Court of King`s Bench Rules (Probate)
• May 9, 2023 – Notice – Hearing of Civil Motions During Summer Court Session

Practice Directions

• May 30, 2023 – Rule 70 Amendments: The Family Law Act and The Family Support Enforcement Act

Provincial Court

Notices

• May 25, 2023 – Winnipeg Circuits

Book Reviews

Review taken from the Canadian Law Library Review, vol 48 no 1

Defining Sexual Misconduct: Power, Media, and #MeToo. By Stacey Hannem & Christopher J. Schneider. Regina: University of Regina Press, 2022. xvi, 368 p. Includes table of contents, appendix, notes, bibliography, and index. ISBN 978-0-88977-870-2 (hardcover) $89.00; ISBN 978-0-88977-809-2 (softcover) $34.95. <uofrpress.ca/Books/D/Defining-Sexual-Misconduct>.

Reviewed by Danielle Noonan. Law Library Co-op, Lederman Law Library Queen’s University

“Defining Sexual Misconduct: Power, Media, and #MeToo is an accessible text that offers insight into what influences are brought into establishing a definition of sexual misconduct.” “…has the potential to be a leading text for those wanting to learn more about the social construct of defining sexual misconduct.”

Click the link for the full review.

Events

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Session 1 Vincent/AI Webinar: Tuesday May 30th at 1 pm CT
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Substantive Law

Civil Litigation

Hansman v. Neufeld, 2023 SCC 14: Issue of whether defamation action should be dismissed as a strategic lawsuit against public participation (“SLAPP”). Respondent, a public school board trustee, made online posts criticizing a provincial government initiative designed to equip educators to instruct students about gender identity and sexual orientation. Appellant was prominent among dissenting voices and called respondent’s views bigoted, transphobic and hateful. Respondent sued for defamation. Appellant applied to have action dismissed under SLAPP. Chambers judge allowed the application; court of appeal reinstated the action. Appeal allowed. Per Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ.:

 [1]  At the core of defamation law are two competing values: freedom of expression and the protection of reputation. Each is essential to maintaining a functional democracy. This appeal presents an opportunity to clarify the proper equilibrium between these two values where the expression at issue relates to a matter of public interest.

…

[6] The chambers judge found that Mr. Neufeld’s defamation action had the effect of unduly suppressing debate on matters of public interest and dismissed the suit ( 2019 BCSC 2028 , 59 C.C.E.L. (4th) 205). The chambers judge held both that Mr. Hansman had a valid fair comment defence and that the value in protecting his expression outweighed the resulting harm done to Mr. Neufeld. The Court of Appeal disagreed on both counts and reinstated the action (2021 BCCA 222 , 50 B.C.L.R. (6th) 217).

 

[7] I agree with the chambers judge. Mr. Neufeld argued in the courts below and in this Court that he only criticized a policy; he never expressed hatred towards the transgender community, nor did his words create an unsafe school environment for transgender students. But his submissions miss the mark. Mr. Neufeld’s right to criticize a government initiative is not in dispute. Rather, the central issue is whether Mr. Hansman had a right to respond to Mr. Neufeld in the way he chose without the threat of civil liability. In my view, he did.

 Per Côté J. (dissenting):

 [129] Defamation lawsuits like the one in the present case call upon courts to cautiously strike the appropriate balance between freedom of expression and the protection of one’s reputation (Grant v. Torstar Corp., 2009 SCC 61 , [2009] 3 S.C.R. 640, at para. 3; see also Bou Malhab, at para. 19). In determining whether Barry Neufeld’s action in defamation against Glen Hansman should be dismissed at an early stage, our Court must remain mindful of this balance and take great care in not upsetting it (Bent v. Platnick, 2020 SCC 23 , [2020] 2 S.C.R. 645, at para. 168). Unfortunately, and I say this with respect, by dismissing Mr. Neufeld’s claim, my colleague fails to do so.

[130] In my view, my colleague ventures beyond the narrow confines of the court’s role when disposing of an application made under the PPPA. The purpose of s. 4 of the PPPA, just like that of s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), upon which it was modelled, is to act as a pre‑trial screening mechanism (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 16). In Pointes, our Court cautioned against turning the analysis of a motion under s. 137.1 of the CJA into a de facto summary judgment motion, which would be “insurmountable at this stage of the proceedings” (Pointes, at para. 52; see also para. 38).

[131] The same caveat applies to s. 4 of the PPPA given the analogous procedural and evidentiary limitations contained in the statute. For example, an application for a dismissal order can be made any time after the commencement of a proceeding (PPPA, s. 9(2)). Once the plaintiff in the proceeding has been served with an application for a dismissal order under s. 4 of the PPPA, generally speaking, neither party can take further steps in the proceeding until the application has been adjudicated (s. 5). Furthermore, unless the court allows it, the plaintiff cannot amend his or her pleadings in order to prevent or avoid a dismissal order (s. 6). Likewise, evidence is to be given by affidavit (s. 9(4)). The rationale for these constraints is that an application under s. 4 of the PPPA is not meant to entail a determinative adjudication of the merits of the underlying proceeding (Pointes, at paras. 50‑52). Rather, it is intended to serve as an expedient, cost‑efficient way to dismiss proceedings that unduly restrict free expression on matters of public interest.

[132] Therefore, the question in this appeal is not whether this Court agrees with Mr. Neufeld’s expression, or with Mr. Hansman’s counter‑speech for that matter. The question is merely whether Mr. Neufeld’s action should be dismissed at this early stage of the proceeding. Unlike my colleague, I conclude that it should not. In doing so, I am in no way prejudging the merits of Mr. Neufeld’s action in defamation; I am strictly finding that he deserves to have his day in court.

Niata Enterprises Ltd. et al v. Snowcat Property Holdings Limited, 2023 MBCA 48: Appeal of dismissal of application for a declaration as to entitlement to an easement. Applicants seek both a prescriptive easement and an equitable easement by virtue of promissory estoppel. Issue is over a parking lot belonging to the respondent which the applicants have used for their customers. Discussion of the law of easements and The Prescription Act 1832 (U.K.). Heavy onus on a litigant seeking to establish a prescriptive easement. Application judge held that the claim failed to satisfy the criteria of an easement. Appeal Court agreed; appeal dismissed.

 5185603 Manitoba Ltd. et al v. Government of Manitoba et al, 2023 MBCA 47: Appeal of decision dismissing plaintiffs’ action against the defendants. Issue is proper interpretation to be given to provisions of particular legislation. Plaintiffs and defendants were parties to a commercial lease for over 10 years. Defendants wished to terminate the lease, and added it to The Budget Implementation and Tax Statutes Amendment Act, 2020 at s.230. Analysis of both French and English language of the legislation noted some discrepancies. Motion judge’s decision set aside and set back for a new hearing.

 Potter v. Agnew, 2023 MBCA 39: Chambers motion where third party appellants seek leave to appeal an order allowing the defendants to file third party claims against them under KB Rule 29. Plaintiffs had entered into a settlement agreement and provided a release to third party Agnew, including a “no claims over” clause which excluded two corporations. Defendants learned of statements made by Agnew that they felt created a cause of action for them. Motion judge agreed. In chambers, Monnin, JA cited 2022 MBCA 69, first judicial consideration to consider the test on such a motion for leave. Application dismissed.

 Fontaine et al. v. The Government of Manitoba et al., 2023 MBKB 84: Two proposed class proceedings concerning the “Millenium Scoop”. Plaintiffs in both actions filed competing motions seeking an order granting carriage of the proposed class proceedings and a partial stay of the other proceeding. Extensive analysis by Edmond, J. on the factors to consider when weighing which carriage would best represent the plaintiffs. Legal test to determine carriage is set out in Thompson v. Manitoba (Minister of Justice), 2017 MBCA 71. Edmond, J. decides it is in the best interests of the putative class to grant carriage to the consortium in the Fontaine action.

 7602678 Manitoba Ltd. v. 6399500 Manitoba Ltd., et al., 2023 MBKB 79: Motion before a Master for an order to strike a claim in whole or in part, with or without leave to amend for failure to disclose a reasonable cause of action. Claim was started over a purchase and sale agreement of a commercial property. Considerable review of King’s Bench Rule 25.06 regarding setting out of pleadings. Discussion of applicability of environmental remediation statutes when offer was made on an “as is” basis. Master Patterson strikes the claim, without leave to amend; however, he encourages the plaintiff to consult a lawyer to see if there are other rights and remedies.

 Capitol Steel Corporation v. R. Litz & Sons Company Limited et al, 2023 MBKB 76: Motion to add additional respondents to original application filed in September 2018 (Coverage Application), which asks for declarations determining insurance coverage available to the respondent, R. Litz & Sons. Principles governing amendments to applications are the same as those governing amendments to pleadings. Review of s. 127(1) of The Insurance Act. Kroft, J. found precedent set in Athabasca Industries Ltd. v. Lambair Ltd., (1989) 60 Man. R. (2d) 179, 1989 CarswellMan 89 still holds. Motion dismissed.

 Dentalcorp Health Services Ltd. et al. v. Dr. Kenneth Hamin Dental Corporation et al., 2023 MBKB 75: Motion for an interim injunction seeking to enforce a restrictive agreement following the sale of a dental business. Both parties are sophisticated business people. Analysis of terms of Services Agreements and whether they are reasonable. Toews, J. cites Parekh et al v. Schecter et al, 2022 ONSC 302, favourably. Review of the caselaw in the area of sales of service businesses. Interim injunction granted.

 Galton Corporation v. Riley, 2023 MBKB 73: Motion brought by defendants before a master, to strike a statement of claim in its entirety, without leave to amend, pursuant to King’s Bench Rule 25.11(1). Plaintiffs brought a motion to amend the statement of claim on the grounds that the pleadings are not closed. Plaintiffs argue a tort of discrimination, as well as other causes. Master Goldenberg agrees that the statement does not disclose a reasonable cause of action, but allows plaintiffs 60 days to amend.

 Dr. Graham J. Reynolds. Of Lock-Breaking and Stock Taking: IP, Climate Change, and the Right to Repair in Canada. 2023 101-1 C.B.R. 32.

This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action.

 James D. MacNeil, Katie Short. Construction Law in the Age of Vavilov. 2023 J. Can. C. Construction Law 57. (WLC – LSM members can request a copy.)

As noted by the authors, the lives of Canadians are constantly affected by governmental decision-makers and their acts and use of power granted by statute. Given the ubiquitous nature of governmental decision-makers it not particularly surprising that judicial review of decisions in the context of construction law are increasing in importance.

The authors canvass the impact of judicial review in the areas of liens, permits and work orders, tendering and arbitration awards. In particular, they analyse the impact of the recent landmark Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Vavilov upon judicial review in the construction context.

Corporate and Commercial Law

Deans Knight Income Corp. v. Canada, 2023 SCC 16: Issue over the meaning of several subsections of s. 111 of the Income Tax Act allowing non-capital losses to be carried back or forward to offset income. From the headnotes:

The transactions were abusive and therefore the GAAR applies to deny the tax benefits. The object, spirit and purpose of s. 111(5) is to prevent corporations from being acquired by unrelated parties in order to deduct their unused losses against income from another business for the benefit of new shareholders. Through a complex series of transactions, Deans Knight underwent a fundamental transformation that achieved the outcome that Parliament sought to prevent, while narrowly circumventing the text of s. 111(5). Without triggering an “acquisition of control”, Matco gained the power of a majority voting shareholder and fundamentally changed Deans Knight’s assets, liabilities, shareholders and business. This severed the continuity that is at the heart of the object, spirit and purpose of s. 111(5). The result obtained by the transactions frustrated the rationale of s. 111(5) and therefore constituted abuse.

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

 [4] Before this Court, the parties accept that the appellant complied with the text of the Act. In other words, the parties agree that there was no “acquisition of control” and that, therefore, the loss carryover restriction in s. 111(5) did not apply. The central issue in this appeal is whether s. 245 of the Act, known as the general anti-avoidance rule or the GAAR, applies to deny the deductions. The GAAR operates to deny tax benefits flowing from transactions that comply with the literal text of the Act but nevertheless constitute abusive tax avoidance. For the GAAR to apply to a transaction, three elements found in s. 245 must be met: (1) there must be a “tax benefit”; (2) the transaction must be an “avoidance transaction”, meaning one that is not undertaken primarily for a bona fide non-tax purpose; and (3) the avoidance transaction giving rise to the tax benefit must be an “abuse” of the provisions of the Act (or associated enactments).

 [5] The Tax Court found that the transactions were tax avoidance transactions that resulted in a tax benefit, but concluded that they were not abusive. On appeal, the Federal Court of Appeal held that the transactions were abusive, such that the GAAR applied to deny the tax benefits. I note that the parties and the lower courts focused on the non-capital loss deductions since the SR&ED and ITC provisions function similarly. As was the case in the Federal Court of Appeal, the only issue on appeal is whether the appellant’s series of transactions resulted in abusive tax avoidance.

 [6] For the reasons that follow, I would dismiss the appeal. The transactions were abusive. The object, spirit and purpose of s. 111(5) of the Act is to prevent corporations from being acquired by unrelated parties in order to deduct their unused losses against income from another business for the benefit of new shareholders. Through a complex series of transactions, the appellant underwent a fundamental transformation that achieved the outcome that Parliament sought to prevent, while narrowly circumventing the text of s. 111(5). The result of the transactions thereby frustrated the provision’s rationale. Since the GAAR applies to deny the tax benefits, the Minister’s reassessments must be restored.

 Per Côté J. (dissenting):

 [142] This case is of profound concern to Canadian taxpayers. The legal issue before this Court is whether the investment agreement between Matco Capital Ltd., 0813361 B.C. Ltd. (“Newco”) and the appellant, Deans Knight Income Corporation (“Investment Agreement”), amounts to an abuse of s. 111(5) of the federal Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (“Act”), for the purposes of the general anti‑avoidance rule (“GAAR”) in s. 245 of the Act.

 [143] It is essential to keep in mind that the GAAR requires a careful balance “between two competing interests: the interest of the taxpayer in minimizing his or her taxes through technically legitimate means and the legislative interest in ensuring the integrity of the income tax system” (V. Krishna, Fundamentals of Canadian Income Tax (2nd ed. 2019), vol. 1, at p. 96). As Binnie J., dissenting, aptly warned in Lipson v. Canada, 2009 SCC 1 , [2009] 1 S.C.R. 3, at para. 55, “[t]he GAAR is a weapon that, unless contained by the jurisprudence, could have a widespread, serious and unpredictable effect on legitimate tax planning”. With respect, I am of the view that both my colleague Rowe J. and the Federal Court of Appeal have failed to apply the GAAR with due restraint. Accordingly, I would allow the appeal.

 [144]  I disagree with several aspects of my colleague Rowe J.’s analysis. Despite Parliament’s unambiguous adoption of the de jure control test in s. 111(5) of the Act, my colleague has opted for an ad hoc approach that expands the concept of control based on a wide array of operational factors. In my view, this approach invites the exercise of unbounded judicial discretion and will result in the loss‑trading restrictions in s. 111(5) being applied to transactions on a circumstantial basis. Moreover, unlike my colleague, I adopt the findings of fact made by the Tax Court of Canada. For these reasons, I would allow the appeal and restore the Tax Court’s judgment.

 [145] I proceed as follows. First, I reiterate and discuss some of the core principles of the GAAR jurisprudence, in particular, the principle that the GAAR cannot be used to override other provisions of the Act. Next, I examine the object, spirit and purpose of s. 111(5) of the Act and describe the problems I see with my colleague’s analysis. Having determined the object, spirit and purpose of the provision, I turn to the question of abuse. First, I lay out the proper standard of review. Then, applying the correct object, spirit and purpose, I conclude that the avoidance transactions at issue do not amount to abusive tax avoidance within the meaning of the GAAR. Finally, I show that even on my colleague’s understanding of the object, spirit and purpose of s. 111(5), a conclusion of abuse is not available without overturning various findings of fact of the Tax Court.

Criminal Law

R v. Fraser, 2023 MBCA 49: Crown appeals application judge’s dismissal of its application for certiorari re executing a warrant for arrest. Appeal turns on the correct interpretation of s. 511(4) of the Criminal Code. Although appeal is now moot, Court of Appeal agreed to hear it. Issue involves questions of statutory interpretation and court’s jurisdiction; standard of review is correctness. Review of s. 511(4) to determine whether judge had jurisdiction to deem the warrant to be executed. Examination of legislative history of enactment of amendments to Code from 1997. Consideration of caselaw on inherent jurisdiction of provincial courts to cancel an arrest warrant. CA determined that the application judge erred in deciding that the judge acted within his statutory authority, however, no basis for this Court to grant an order for certiorari.

R v. Singh, 2023 MBCA 46: Appeal of conviction for arson. Sole ground of appeal is that the trial judge erred by not conducting an appropriate analysis of the credibility of the witnesses, resulting in an unreasonable verdict. Judge’s findings as to the weight to be given to expert evidence is entitled to deference. Trial judge gave detailed reasons why he relied on Crown’s expert. Appeal dismissed.

R v. Swanson, 2023 MBCA 43: Appeal of conviction for firearms offences. Accused raises argument that the trial judge erred in the application of s. 24(2) of the Charter in admitting evidence. Initial search warrant was found to be invalid since it was issued by a provincial court judge who had a reasonable apprehension of bias. Trial judge admitted the evidence after a voir dire hearing. Determination of a trial judge as to what would bring the administration of justice into disrepute is reviewed deferentially. Appeal dismissed.

R v. Diakite, 2023 MBCA 42: Appeal of conviction for sexual assault. Issue of principles which govern the admissibility of evidence of a complainant’s prior sexual activity where the complainant states she was not sexually active – should the evidence have been admitted without holding a voir dire; did the trial judge use the evidence for an improper purpose; and did the trial judge err by misapprehending the evidence? Examination of s. 276 of the Criminal Code. Discussion of the “twin myths” (inferences about a complainant drawn from stereotypes). Appeal dismissed.

R v. Turner, 2023 MBCA 40: Appeal from a conviction of second degree murder. Accused and his father were charged with first degree murder by a judge sitting alone. The case was “entirely or primarily circumstantial” (para. 2). Accused was found guilty of second degree murder and father was acquitted. CA notes the limited appellate jurisdiction of the Court of Appeal under Part XXI of the Criminal Code, as well as the reasonableness of the inferences the trial judge drew on the circumstantial evidence (see test from R. v. Villaroman, 2016 SCC 33). Judicial review of s. 21(2) of the Criminal Code in relation to two co-accused as an alternative to their potential liability under s. 21(1) (para. 10), which was not raised at trial. Counsel was given an opportunity to address it in submissions at the appeal and in post-hearing written submissions. Appeal dismissed, a verdict of manslaughter substituted for second degree murder, and matter remitted back to the trial court for sentencing.

R v. Gromnisky, 2023 MBKB 88: Accused appeals conviction in provincial court for impaired driving. Accused argues that the trial judge misapprehended the evidence of impairment and the effect of an unexplained accident the accused was involved in shortly before his arrest. Deference that is to be attached to the findings of credibility by a trial judge are set out in R. v. C.A.M., 2017 MBCA 70. Appeal dismissed.

R v. Maytwayashing, 2023 MBKB 80: Sentencing decision for conviction for second degree murder and assault with a weapon. Accused stabbed the victim, and assaulted her seven year old daughter who was trying to protect her. Consideration of Gladue and Ipeelee factors in sentencing. Crown seeks a period of 15 years’ parole ineligibility. Analysis of sentences imposed on similar offenders for similar offences. Rempel, J. finds that deterrence and denunciation are the most important sentencing principles, and agrees with Crown for a sentence of life with parole ineligibility for 15 years, plus two years’ concurrent for the assault on the child.

R v. Obeing, 2023 MBKB 78: Sentencing decision where accused was found guilty of second degree murder. Offence requires life in prison, issue is how many years before the accused can be considered for parole. Crown is seeking 15 years ineligibility; defence submits 10 years is appropriate. Review of the purpose, objective and principles of sentencing, and caselaw submitted by both Crown and defence. Accused has mental health and intellectual disabilities, which do not diminish the horrific nature of the act. McKelvey, J. finds the appropriate period of parole ineligibility is 12 years.

R v. Kelly, 2023 MBKB 68: Bail review pursuant to s. 520 of the Criminal Code. Accused has been in pre-trial detention for over one year. Crown’s concern is that the surety lives in Alberta. Some cases have concluded that out-of-province sureties are not enforceable, while one case concludes that it is. Champagne, J. cites Justice Brown (sitting as a motion judge) in R. v. S.T., 2022 ONCA 443 as precedent for concluding that an order of forfeiture of an out-of-province surety is enforceable. Plan is accepted and the accused is released with conditions.

R v. Beaulieu, 2023 MBPC 24: Sentencing decision for conviction of robbery (see 2023 MBPC 21). Most relevant sentencing principles for armed robbery are denunciation, general deterrence and specific deterrence. Bayly, P.J. imposes total sentence of 10 years (concurrent and consecutive sentences for different offences), less one year for totality and additional credit for time served in custody.

R v. Schabler, 2023 MBPC 23: Sentencing decision where accused pled guilty for possession of cocaine for the purposes of trafficking, and possession of a firearm without a license. Accused had similar charges pending prior to this arrest, which were stayed after the second arrest. Agreement between defence and Crown that the Court could consider the first arrest in determining a sentence. Crown asked for 4.5 years; defence asked for time in custody or time in custody plus a short conditional sentence. Review of case law on Controlled Drug and Substances Act, s. 5 offences. Protection of the community, denunciation and general deterrence are the primary principles. Accused is sentenced to 4.5 years for possession of cocaine, and two years concurrent for the firearm charge, less time served.

R v. Joyal, 2023 MBPC 22: Accused charged with impaired driving. Issue is whether the Crown has established beyond a reasonable doubt whether drugs or alcohol caused any degree of impairment at the time of the accident. Accused’s Jeep rolled over. Another vehicle came by, helped him out of his vehicle and took him to the hospital, where he was found to have minor cuts and bruises. Meanwhile, RCMP were notified of a collision and responded. RCMP found the vehicle with nobody in it. A short while later, another vehicle pulled up to the accident scene. Passenger got out of the car and told police he was the driver. At that point he had consumed hard liquor and two beer. RCMP arrested and charged with impaired driving. Curtis, P.J. found no reliable evidence of proof beyond a reasonable doubt that the accused was impaired at the time of the accident. Accused acquitted.

R v. Beaulieu, 2023 MBPC 21: Accused, along with two other individuals, was charged with robbery of a gas station and its attendant. There was no direct evidence of identification. Case was about “inferences and circumstantial evidence” (test from R. v. Villaroman, 2016 SCC 33). Evidence that was accepted as being credible and trustworthy, when viewed in totality, led to reasonable inference to the identification, and guilt, of accused. Bayly, P.J. found accused guilty.

R v. Renz, 2023 MBPC 20: Sentencing decision after accused pled guilty to multiple charges of theft and arson. Crown asking for five year sentence. Accused is permanent, defence asks for two year CSO. Section 718.2 of the Criminal Code sets out guidelines as to appropriate sanctions that sentencing judges must be governed by. While mindful of the immigration consequences, decision must not render disposition inappropriate as stated in R v Pham, 2013 SCC 15 (at paras 14-15). After all charges, Allen, P.J. sentences accused to 1,366 days, reduced to 30 month (912 days) for totality minus time served.

Amanda Jerome. Stay Decision Encourages Offenders to take “Significant Rehabilitative Steps”, Court Rules. Law 360 Canada, 10 May 2023, viewed 11 May 2023. Case comment on R. v. Sauvé, 2023 ONCA 310

Don Stuart. Williams: “Specific Intent” for Murder. (2023) 83 C.R. (7^th) 53. (WLC – LSM members can request a copy.)

This comment seeks to review R v. Williams, [2023 MBCA 11] … and the current law on fault for murder and the issue of voluntary intoxication as a defence to murder. We will leave aside further complexities of what constitutes first degree murder, manslaughter and the law respecting parties.

Family Law

Anderson v. Anderson, 2023 SCC 13: Dispute over legality of a separation agreement prepared by the wife with no independent legal advice for either party. After the wife petitioned for divorce, husband counter-petitioned and sought family property division. Trial judge found decision was non-binding; appeal court found it was. Appeal allowed: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.:

 [5] The agreement at issue was executed by separating spouses at the end of a three-year marriage. The agreement is simple: it provides essentially that each party will keep the property held in their name and give up all rights to the other’s property, except for the family home and the household goods. Because no lawyers were involved, the agreement is not presumptively enforceable, but can be considered by the court in determining whether to depart from equal distribution under s. 21.

…

[11] Given the circumstances, including the brief marriage and the assets each party brought into the marriage, the simple agreement to keep individual assets and divide the family home equally was fair and equitable, given the criteria and objectives of the FPA. I would allow the appeal, set aside the decision of the Court of Appeal with respect to the division of family property, and divide the family home and household goods as of the date of trial. I would order that the wife pay the husband $43,382.63.

Benkie v. Nichol, 2023 MBKB 82: Appeal of final arbitration award concerning parenting arrangements for the children, child and spousal support, and family property. Petitioner argued that a finding that a particular sum in cash retained its excluded status under the FPA accounting was in error. Second “error” related to the parenting arrangement. Appeal engages issues respecting the application of the terms of The Arbitration Act and the terms of the parties’ Agreement, the applicable standards of review, and other issues (from para. 7). Discussion of the state of the record (or lack thereof) when making an appeal from an arbitration hearing. Analysis recognizes the difficulty in reviewing an arbitral record when it is incomplete. Appeal dismissed.

 Wanda Wiegers. The Intersection of Child Protection and Family Law Systems in Cases of Domestic Violence. (2023) 35:1 Can. J. Fam.L. 183.

Both the child protection and the family law systems are intended to promote the best interests of children, and both can profoundly affect the relationships between children and their parents or caregivers. Over the past two decades, both systems have also accorded more weight in the assessment of best interests to how exposure to domestic violence can harm or place children at risk. However, these systems have evolved differently, are governed by different statutes, and are administered in different ways. Child protection proceedings purport to have primarily a protective function and invariably involve a public agency, while family law proceedings, under the Divorce Act and similar provincial and territorial statutes, typically involve disputes between private litigants. In this article, I compare the impact of the two systems in cases involving allegations of domestic violence, highlighting the challenges within each, the differences between them in their identification and response to domestic violence, as well as the problematic ways in which the systems interact and generate contradictory pressures for survivors, most often mothers. While I reference research findings in other jurisdictions, my inquiry is focused on Saskatchewan, a jurisdiction with relatively high rates of children in state care and the highest rate of domestic violence of all provinces.

Labour and Employment Law

Bartel-Zobarich v. Manitoba Association of Health Care Professionals (MAHCP-Bargaining Unit) et al, 2023 MBCA 41: Appellant filed two notices of motion asking for a rehearing of her appeals pursuant to r. 46.2 of the Court of Appeal Rules. Appellant claims judicial bias, as one of the judges from her 2023 appeal sat on another of her appeals in 2018. She also claims the panel failed to give sufficient weight to her caregiving duties. Review of the test for bias as expressed in Beard Winter LLP v. Shekhdar, 2016 ONCA 493 (para 10). Motions dismissed.

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