News

• 2024 Call to the Bar is taking place on June 20 at the Winnipeg Convention Centre.
• The Family Division of the Court of King’s Bench is celebrating its 40th anniversary. See Events for complete information.

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.

How are experts qualified?

Experts are often called to testify on a range of matters from medical to scientific to police actions. While they can offer insight into complex subjects, their admissibility as evidence can be questioned or dismissed altogether. A recent high-profile case has brought competing experts as to the mental state of an accused as reported by the Winnipeg Free Press, Confessed killer driven by necrophilia, not delusions: psychiatrist.

The Supreme Court has given some context on the use of expert witnesses in R. v. Mohan [1994] 2 SCR 9 as well as what the duty of care experts owe the court (White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23.). While these cases provide guidance, the danger of bias and impartiality still exists as expressed in a number of articles:

• Experts for Hire: A Dangerous Practice Which Increases the Risk of Bias and Disadvantages the Accused, 2018 CanLIIDocs 300 (2018) 26 Dal J Leg Stud 1.
• The Biases of Experts: An Empirical Analysis of Expert Witness Challenges (2019) 42:4 Man LJ 21 – 67
• Lessons from Canadian Courts for All Expert Witnesses Journal of the American Academy of Psychiatry and the Law Online May 2019

The Manitoba King’s Bench rule 53.01 provides the procedure on expert witnesses. The Federal Courts Rules (SOR/98-106) have a schedule for a Code of Conduct for Expert Witnesses which provides a general duty to the court as well as rules for reports and “expert conferences” or the similar “Hot-tubbing” as it has been coined in Australian courts (from Canadian Lawyer Hot-tubbing experts — should lawyers like it?”)

For more information on how exactly expert evidence is evaluated, admitted or challenged, library users can access “Qualifying and Challenging Expert Evidence”  online as part of the Emond’s Criminal Law Series or search our catalog for more titles on evidence such as “The Law of Evidence in Canada — 6th ed.”

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

Court of Appeal

Notices and Practice Directions

• • • • June 4, 2024 – Consolidated Practice Direction

King’s Bench

Notices

• • • June 3, 2024 – Closure of the Child Protection Docket Friday, June 21, 2024

New Library Resources

New Online Titles

Available on vLex behind the Member Portal

Book Reviews

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

Witness Preparation, Presentation, and Assessment. (Available online for members)
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
Lori O’Connor
Regional Crown Prosecutor
Public Prosecutions, Melfort, SK

“Every litigator, whether civil or criminal, is faced with witness issues: preparing them, calling their evidence, and assessing their evidence in argument. In Witness Preparation, Presentation, and Assessment, the authors have created a comprehensive and practical handbook addressing these issues, focusing primarily on criminal proceedings for both Crown and defence lawyers. 

This is a practical, direct, and concise manual for preparing witnesses, calling evidence, and assessing their evidence. In particular, the thorough table of contents, practical takeaways, and checklists are invaluable for instances when a lawyer has a 10-minute break during a trial and needs to find an answer quickly. “

 

Click here for the full review

Events

Upcoming Events

Celebrating the 40th Anniversary of the Family Division of the Manitoba Court of King’s Bench: A Symposium on Challenges and Innovations

Substantive Law

Civil Litigation

Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20: Interpretation of contracts in the sale of goods. Buyer and seller added two exclusion clauses to the standard purchase order stating that the buyer had the right to test and approve the material before it was shipped, and if the buyer waived those rights, the seller was not responsible for the quality of the material. Material was not of the composition agreed upon, so buyer sued the seller for damages. Trial judge found the exclusion clauses applied and dismissed the action. Court of Appeal overturned and ordered the seller to pay damages. Appeal allowed and trial judge’s judgment restored. Per Wagner C.J. and Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.:

[1] This appeal concerns a contracting party’s ability to contract out of a statutorily implied condition under the Sale of Goods Act, R.S.O. 1990, c. S.1 (“SGA”).^[1] The buyer, Pine Valley Enterprises Inc., claims that the purchased topsoil involved a sale by description and seeks damages because the soil did not correspond to that description. The seller, Earthco Soil Mixtures Inc., says there was no breach of any statutory condition, arguing that the goods not only complied with their description, but also that the parties specifically excluded any such obligation by express written agreement. The SGA, like other such statutes across the country, provides that parties may contract out of any right, duty or liability that would otherwise arise by implication of law in a contract of sale (s. 53). The parties’ contract contained a clause stipulating that if the buyer chose to waive its right to test the goods, then the seller would “not be responsible for the quality of the material” once it left its facilities (A.R., at p. 201). Because the buyer chose to waive its right to test and approve the goods before they were shipped, the seller claims this clause operates to exclude any statutory condition that the goods must meet certain compositional specifications.

[2] The Court’s main task in this case is to set out the proper way to interpret exclusion clauses in contracts for the sale of goods. This involves determining what qualifies as an express agreement under s. 53 of the SGA, as informed by recent cases on the interpretation of contracts and the legal operation of exclusion clauses. The principles in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, and Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, apply to the contracts subject to the SGA. These recent restatements of contract law principles give priority to the parties’ intentions in a manner that modifies and relaxes some of the stricter and more technical approaches which found expression in certain prior cases. As this Court stated in Sattva, “the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine ‘the intent of the parties and the scope of their understanding’” (para. 47, citing Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27). All contract terms, including exclusion clauses, “should be given their natural and true construction so that the meaning and effect of the exclusion clause the parties agreed to at the time the contract was entered into is fully understood and appreciated” (Hunter Engineering Co. v. Syncrude Canada Ltd., 1989 CanLII 129 (SCC), [1989] 1 S.C.R. 426, at p. 510). Ultimately, when courts are faced with applying a combination of s. 53, the principles of contractual interpretation and the law concerning exclusion clauses, it is the objective intention of the parties that must be the paramount consideration.

[3] I conclude that the trial judge made no error of law with respect to the exclusion clauses at issue in the case at bar. In the commercial circumstances of this case, the objective meaning of the parties’ express agreement is that the buyer accepted the risk that the soil would not meet the previously supplied compositional specifications if it failed to test what it knew was an organic and changing substance. The appeal is allowed and Earthco has no liability to Pine Valley.

Per Côté J. (dissenting):

[118]                     The main issue in this appeal is whether the Exclusion Clauses together constitute an “express agreement” within the meaning of s. 53 of the SGA so as to exclude liability for a breach of any statutory condition arising under a contract for the sale of goods, including the conditions in ss. 14 and 15 of the SGA. Section 14 implies a condition that the goods delivered will correspond with the description agreed upon in the contract. The condition in s. 14 is distinct from the condition in s. 15, which pertains to the quality or fitness for the purpose of the goods. The answer to the question of whether the Exclusion Clauses expressly exclude liability for a breach of the implied condition in s. 14 or 15 turns in part on the proper interpretation of the requirement, set out in s. 53, that parties intending to contract out of a statutorily implied condition arising do so by “express agreement”.

[119]                     There is no reason to depart from our Court’s previous interpretation in Hunter Engineering Co. v. Syncrude Canada Ltd., 1989 CanLII 129 (SCC), [1989] 1 S.C.R. 426, regarding what is required to exclude liability where the SGA applies. As our Court held in that case, if parties wish to exclude liability for a breach of a statutorily implied condition by “express agreement”, they must do so using “clear and direct language” (p. 450). Although this legal standard does not require the use of any “magic words”, it does require the parties to express their intention to exclude liability for a statutorily implied term with language inconsistent with that term. This is the conclusion that must be reached when the words “express agreement” are read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and purpose of the SGA. The decisions of our Court in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, and Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, have not altered this statutory requirement.

[120]                     In my view, the Exclusion Clauses are not an “express agreement” within the meaning of s. 53 of the SGA to exclude Earthco’s liability for a breach of the implied condition in s. 14 that goods sold by description will correspond with their description — in this case, that the soil supplied would have the composition established in the test results from August 2011, as bargained for by the parties. An exclusion clause is not an express agreement under s. 53 with regard to a particular implied condition if interpreting it as such requires deviating from the text of the contract and asking what the surrounding circumstances would deem the parties to have written, instead of interpreting the meaning of the words actually used by the parties. Interpreting the surrounding circumstances in isolation from the text of the contract is inconsistent with Sattva. The trial judge also misdirected himself in interpreting and applying the standard imposed by s. 53. The trial judge improperly relied on the factual matrix to change the meaning of the word “quality” used by the parties in the Exclusion Clauses from its ordinary and grammatical meaning to a meaning that included the “identity” of the goods. This was unsupported by the text of the Contract and inconsistent with the scheme of SGA, which was a vital part of the commercial setting in which the parties contracted. Such an approach, which disregards the law governing the sale of goods contract, was inconsistent with the well‑established “clear and direct language” requirement articulated by our Court in Hunter Engineering. This constitutes an error of law reviewable on a standard of correctness, as established in Sattva.

St. John’s (City) v. Lynch, 2024 SCC 17: Issue of constructive expropriation: how to assess the compensation to be given to the owner of property that has been constructively expropriated. Owners of the property had been trying to obtain permission to develop the property since at least the 1990s. In 2013, the City rejected a formal application to develop a residential subdivision on the property. Following that, the Court of Appeal declared the owners had the right to file a claim for compensation as if the land had been expropriated. Application judge: compensation assessment should take into account the existing zoning, i.e. for agriculture, forestry and public utility uses. Court of Appeal: overturned, assessment should not take into account existing zoning. SCC: Appeal allowed, and application judge’s order restored. Per Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.:

[2] The starting point for assessing compensation for expropriation is determining the property’s market value. It is well established that land use restrictions impact market value and they are normally taken into account when fixing compensation. The jurisprudence reveals an exception: changes in value resulting from the expropriation scheme itself are to be ignored in the compensation assessment (the “Pointe Gourde principle”; see Pointe Gourde Quarrying and Transport Co. v. Sub-Intendent of Crown Lands, [1947] A.C. 565 (P.C.)). This principle has been incorporated into many jurisdictions’ expropriation statutes, including s. 27(1)(a) of Newfoundland and Labrador’s Expropriation Act, R.S.N.L. 1990, c. E-19, which is at the centre of this case. Determining which enactments form part of the expropriation scheme, and are thus ignored for valuation purposes, is the key factual question that decision makers must grapple with.

[3] In this case, the City of St. John’s (“City”) constructively expropriated the respondents’ property when it refused to permit any development on it. The City deprived the respondents of all reasonable uses of the property and was found to have acquired a beneficial interest in the form of the right to a continuous flow of uncontaminated groundwater downstream to the City’s water facilities. At the time of the expropriation, a zoning regulation limited the property to discretionary agriculture, forestry, and public utility uses — a measure that no doubt diminishes the market value of the property compared to the respondents’ desired residential development use and, therefore, the compensation owed for the expropriation. The application judge concluded that the zoning regulation was an “independent enactment” and not part of the expropriation scheme. This meant that it could operate to influence the market value of the expropriated property and was not to be ignored for the purpose of fixing compensation. The Court of Appeal disagreed, concluding that compensation should be determined without reference to the zoning regulation.

[4] As I see no basis to interfere with the application judge’s conclusion, which is entitled to deference, I would allow the appeal.

Ultracuts v. Magicuts, 2024 MBCA 45: Costs decision on trial and on appeal re 2023 MBCA 71. Litigation began in 1996 against Wal-Mart in Arkansas. Statement of claim was filed in Manitoba in 2001, finally going to trial in 2019. Defendants argue for solicitor and client costs or, in the alternative, elevated costs. Plaintiff argues for no costs. Review of caselaw on the high bar necessary to order solicitor and client costs. Order of elevated costs made, at double tariff costs for the trial and related proceedings and the appeal, including this proceeding.

Romana v. Canadian Broadcasting Corporation, 2024 MBCA 41: Costs decision supplemental to 2024 MBCA 30. Turner, J.A. notes that costs usually follow the successful party, but in this instance, the defendants have shown a basis for costs to be awarded to them. Costs awarded on the motion and the unsuccessful appeal.

Ruest v. De Salaberry (Rural Municipality of), 2024 MBCA 38: Appeal of chambers judge’s dismissal of motion for extension of time to file an appeal under Rule 42 of the Court of Appeal Rules. While plaintiff had a continuous intention to appeal, but Mainelle, A.J. found there were no arguable grounds of appeal of the chambers order.

Koeneman v. Horne, 2024 MBCA 36: Appeal of decision awarding damages to the plaintiff for the tort of conversion. Defendant sold equipment to a co-defendant as scrap metal, except the defendant was not the owner of the equipment. Grammond, J. awarded damages to the plaintiff for the value of the equipment as determined in the trial decision, 2022 MBKB 243. Grounds of appeal were insufficient interest in the property; wrong measure of damages; and disproportionate weight to expert evidence. Court of Appeal dismissed the appeal and cross appeal except in respect of the trial judge’s finding that the defendants are jointly and severally liable. CA found they are each independently liable for damages.

Grant v. The Government of Manitoba et al., 2024 MBKB 77: Appeal of decision by Senior Associate Judge re action for malicious prosecution. Plaintiff was arrested, charged and convicted of the murder of Candace Derksen, and then later acquitted. Defendants argue that the claim does not establish the third and fourth elements of the tort of malicious prosecution. Standard of review of a decision of an Associate Judge is set out in Payne v. R. Litz & Sons Co. Ltd., 2013 MBQB 121. Review of cases considering KB Rule 25.11(1). Some allegations are struck, others are kept in. Success divided.

Campbell et al. v. Brar et al., 2024 MBKB 72: Jurisdiction of a judge of the Court of Appeal hearing ongoing disputes arising from a decision by the judge while a justice of the Court of King’s Bench. Review of caselaw where judges of the Court of Appeal have provided judgment in the lower court. Edmond, JA determined it was appropriate for him to hear the motion to reconsider the costs order as an ex officio justice of the Court of King’s Bench, and for another KB justice to hear the motion seeking to enforce the terms of an alleged accepted offer.

Irwin Homes Ltd. v. Wollmann et al., 2024 MBKB 71: Motion by plaintiff seeking court approval of the terms of settlement for each of the settling defendants set out in a Pierringer agreement. If granted, the plaintiff will continue its action against the non-settling defendants. Non-settling defendants argue the prejudice they will suffer outweighs the public policy considerations. Caselaw review of Pierringer agreements in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 and prejudice (Murphy Canada Exploration Company v. Novagas Canada Ltd., 2009 ABQB 455). Minutes of settlement are approved as drafted. Any prejudice defendants suffer can be mitigated through the King’s Bench rules.

Arnason Industries Ltd. v. Red Sucker Lake First Nation et al, 2024 MBKB 69: Motion by defendants seeking to amend their Statement of Defence and an order to consolidate two actions. Plaintiff’s motion requesting an order compelling one party to provide answers to undertakings. Parties had been engaged in a long-standing business relationship when it broke down. Review of caselaw re King’s Bench Rule 26. Review of caselaw re King’s Bench Rule 6.01 and s.94 of The Court of King’s Bench Act. Both parties are successful; parties are requested to schedule new trial dates.

Anosha Khan. Court Rules Password Sharing for Subscription Constituted Fair Dealing in “Landmark Decision”. Law360 Canada, 6 June 2024, viewed 8 June 2024. Comment re 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829.

Supreme Advocacy. The Tort of Conversion: “Dude, Where’s my Backhoe, Dump Truck, and Asphalt Roller?” 15 May 2024, viewed 16 May 2024. Comment re Koeneman v. Horne, 2024 MBCA 36.

Cristin Schmitz. Supreme Court of Canada Clarifies How to Assess Compensation for Constructive Expropriation. Law360 Canada, 10 May 2024, viewed 15 May 2024.

The Supreme Court of Canada has explained how to assess compensation payable for constructive expropriation of private land by public authorities in a unanimous decision that reverses a ruling below that pegged what the City of St. John’s owes to a property owner to the land’s prospective market value if it were permitted to be developed for residential use, rather than to its much lower market value as land which is currently zoned “watershed,” with only limited discretionary agriculture, forestry and public utility uses.

Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec,  2024 SCC 13: Issue under s. 2(d) of the Charter: whether exclusion from being a certified association representing first level managers in the gaming section infringed on its members’ freedom of association. Members wanted the protection offered through the Quebec Labour Code. Association succeeded first at the Administrative Labour Tribunal (ALT) which was overturned at the Superior Court on judicial review. Court of Appeal restored the ALT decision. SCC: Appeals should be allowed. Per Karakatsanis, Kasirer, Jamal and O’Bonsawin JJ.:

[1]  These appeals address whether the statutory exclusion of managers from the labour relations regime of the Quebec Labour Code, CQLR, c. C-27, infringes the guarantee of freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms (“Canadian Charter” or “Charter”) and s. 3 of the Quebec Charter of human rights and freedoms, CQLR, c. C‑12 (“Quebec Charter”).

…

[4] I would allow the appeals. In my view, the impugned provision does not infringe the freedom of association guaranteed by s. 2(d) of the Charter or s. 3 of the Quebec Charter. I set out below what I see as the proper framework for analyzing an alleged infringement of freedom of association under this Court’s s. 2(d) jurisprudence.

[5] In Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, Bastarache J. for a majority of this Court set out a two-step framework for evaluating alleged infringements of freedom of association. First, a court considers whether activities fall within the range of activities protected under the freedom of association guarantee. Second, the court determines whether the legislation or government action, in purpose or effect, substantially interferes with those activities (paras. 13 and 25).

[6] Justice Bastarache also considered in Dunmore when underinclusive legislation engages state responsibility under s. 2(d) of the Charter and set out three factors circumscribing the possibility of successfully challenging such legislation. These factors relate to whether the claim of underinclusion is grounded in a fundamental Charter freedom, rather than access to a particular statutory regime; the evidentiary threshold for showing an interference with such a fundamental freedom; and whether the state can be held accountable for the claimant’s inability to exercise the fundamental freedom (paras. 24-26).

[7] My colleague Justice Côté views these three factors listed in Dunmore as creating a distinct framework for evaluating constitutional challenges to underinclusive legislation under s. 2(d) — so-called “positive rights” claims — and as imposing a higher threshold for such challenges than for challenges to legislation or government action directly interfering with associational activities — so-called “negative rights” claims (Justice Côté’s reasons, at paras. 133-34 and 149). I respectfully disagree. As I read this Court’s jurisprudence, there is only one framework for evaluating whether legislation or government action infringes s. 2(d). That framework, originally enunciated in Dunmore and refined in later cases such as Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, examines, first, whether activities fall within the scope of the freedom of association guarantee, and second, whether the government action interferes with the protected activities in purpose or effect. The three factors set out in Dunmore are relevant considerations when evaluating s. 2(d) claims, but they do not constitute a separate test.

[8] There is also only one threshold for evaluating all s. 2(d) claims — the threshold of substantial interference. In certain contexts, such as challenges to underinclusive legislation, it may be harder to satisfy the burden of proof to establish a substantial interference. But I respectfully disagree with my colleagues’ view that, in cases of underinclusive legislation, there is a “higher threshold” than the threshold of substantial interference (Justice Côté’s reasons, at paras. 137 and 149; see also Justice Rowe’s reasons, at paras. 211 and 219).

Per Wagner C.J. and Côté J.:

…[62] These appeals provide the Court with an opportunity to clarify the status of the framework established in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016. As the Court noted in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, at para. 21, Dunmore was discussed in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 (“MPAO”), without being overturned. In my opinion, and for the reasons set out below, the Dunmore framework remains applicable to constitutional challenges to the exclusion of workers from a labour relations regime.

[63]  Applying this framework to the facts of this case, I arrive at the conclusion that the impugned legislative exclusion does not limit the freedom of association guaranteed by the Canadian and Quebec charters.

 Per Rowe J.:

…[69] In 2009, the Association filed a petition with the Commission des relations du travail (now the ALT^[2]) seeking certification under the L.C. Through its petition, the Association applied to represent the OSs in all divisions of the gaming sector of Casino de Montréal. At the time of the hearings, the Association represented 250 OSs assigned to the gaming tables at Casino de Montréal and Casino du Lac‑Leamy, that is, 70 percent of the Société’s gaming table OSs. The Association’s membership also included OSs from divisions other than gaming tables.

[70] In response to the Association’s petition for certification, the Société raised an exception to dismiss based on the exclusion set out in s. 1(l)(1) L.C. It is important to note that this is the context in which the Association contends that this provision is unconstitutional.

…

[185] Accordingly, I am of the view that the exclusion does not have the effect of substantially interfering with the freedom of association of the Association’s OS members. I am also of the view that, even if I had concluded otherwise, the state could not have been held accountable for the substantial interference, for the reasons I explain below.,

Kate Gunn. Rights and Remedies at the Supreme Court: Case Comment on Shot Both Sides v. Canada. First Peoples Law, 23 May 2024, viewed 23 May 2024.

…The decision raises troubling questions about when and under what circumstances Indigenous peoples can rely on Canadian courts to hold the Crown accountable for breaches of its legal obligations.

Corporate and Commercial Law

10031695 Manitoba Ltd. v. 72230 Manitoba Ltd., 2024 MBKB 76: Contract dispute over pending litigation order and caveats placed on property owned by one party and leased by the other. Parties were formerly married to each other. Dispute was originally heard by a Senior Associate Judge who determined she did not have the jurisdiction to remove the caveats. This is a decision de novo. Discussion of the requirements for full and fair disclosure when making a without notice motion. Review of The Real Property Act and the law of caveats. Toews, J. found the court could not provide an equitable remedy to discharge a validly registered caveat that is the subject of pending proceedings in court. Appeal of defendant dismissed.

Dentalcorp Health Services Ltd. V. Dr. Kenneth Hamin Dental Corporation, 2024 MBCA 44: Defendants appeal an interim injunction issued against them enforcing restrictive covenants agreed to in the sale of a dental practice. Argument over whether the covenants are in the sale of a business or an employment context. Motion judge found that the restrictive covenants were reasonable on their face. Review of the law of interlocutory injunctions. Three part test has been set out in RJR –MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Review of the doctrine of severance. Appeal dismissed.

Criminal Law

R. v. T.W.W., 2024 SCC 19: Accused convicted of sexual assault. Issue of whether the trial judge erred in refusing to admit evidence of prior sexual activity. Consideration as well as to whether the statutory provision prohibiting the publication of information and evidence relating to the accused’s application should extend to appellate proceedings. Appeal dismissed, Crown’s motion allowed in part. PerWagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’BonsawinJJ.:

[1] This appeal offers an opportunity for this Court to reaffirm the proper use of other sexual activity evidence for credibility and context purposes and to consider the powers of an appellate court to make orders that limit court openness in appeals of admissibility determinations under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46.

…

[4] Prior to the hearing before this Court, the Crown brought a motion requesting that this appeal be held in camera, a sealing order on all filed materials, and “any other order the Court deems necessary to protect information covered by sections 276 and 278.93–278.95 of the Criminal Code” (p. 1). It asserted that the procedural protections put in place at the trial level under ss. 278.94 and 278.95 should extend to the appeal before this Court. The Crown argued that either or both these provisions and a court’s implied jurisdiction to control its own processes grants this Court the authority to make the orders that it seeks. As I will explain, a court’s implied jurisdiction to control its own processes includes the discretionary ability to make those orders. However, the Court’s discretion should be exercised in a way that maintains court openness as far as practicable while protecting the complainant’s personal dignity and privacy and the accused’s fair trial rights.

[5] On appeal, the appellant argues that the trial judge erred in refusing to admit the evidence for context and credibility purposes. I disagree. As I will explain, the appellant failed to sufficiently identify a specific use for the evidence that did not invoke twin-myth reasoning and that was essential to his ability to make full answer and defence.

Per Côté and Moreau JJ. (dissenting on the appeal):

[83] We agree with our colleague’s disposition of the Crown’s pre‑hearing motion. We take no issue with her conclusion that courts have implied jurisdiction to control their own processes. We further agree that the trial judge did not err in his initial pre‑trial determination on the voir dire under s. 276of the Criminal Code, R.S.C. 1985, c. C‑46. The trial judge made appropriate findings on the evidentiary record available to him at the time of the voir dire.

[84] However, we are of the view that this conclusion does not end the analysis. In the instant case, the central issue in the trial was credibility. The complainant’s testimony evolved from her first statement to the police to her trial testimony — following the trial judge’s ruling on the s. 276 voir dire — and would have left the trier of fact with the mistaken impression that the circumstances of the separation and her belief that the appellant was in a relationship with another woman made it unlikely and improbable for her to consent to sexual activity with him.

[85] This evolution of the evidence should have prompted the trial judge to revisit the voir dire ruling made at the pre‑trial stage. As we will explain, trial judges have an obligation to revisit their previous rulings when there is a material change in circumstances. In light of the complainant’s trial testimony‑in‑chief, the trial judge should have allowed the appellant to cross‑examine her about the consensual sexual activity that took place between her and the appellant the previous evening for the limited purposes of neutralizing the suggestion that she was unlikely to consent to sexual activity after their separation and testing her credibility on this point. In failing to do so, the trial judge committed a reviewable error.

[86] As we explain below, we are of the view that the issue is within our Court’s jurisdiction. We would therefore allow the appeal, quash the conviction, and order a new trial.

R. v. Lozada, 2024 SCC 18: Issue of charge to jury. Neither accused inflicted the fatal stab wound and were convicted of manslaughter based on party liability. Appeal as of right. Appeals dismissed. PerKarakatsanis, Martin and Moreau JJ.:

[4] The jury was satisfied that Mr. Triolo was the stabber, and so he was convicted of second degree murder. The appellants were convicted of manslaughter. At trial, the Crown advanced two theories of party liability for manslaughter: as co-principals under s. 21(1)(a) of the Criminal Code and as aiders under s. 21(1)(b). The Crown maintained that the appellants’ actions under either theory supported their convictions. These appeals are concerned only with the Crown’s theory of liability under s. 21(1)(a). The appellants submit that the trial judge misdirected the jury in his instructions on causation in the context of co-principal liability and in his response to a question from the jury seeking further clarification on causation.

[5] I am essentially in agreement with the majority of the Court of Appeal that, on a reading of the jury instructions and the trial judge’s answers to the jury’s questions as a whole, the jury was accurately instructed on the issue of causation. The instructions conveyed the proper test for causation: whether the particular appellant’s conduct was a significant contributing cause of death. Moreover, on the particular facts of this case, the trial judge properly equipped the jury with appropriate analytical tools described in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, to assist the jury in determining whether the stabbing could be considered to be an intervening act that would absolve the appellants of legal responsibility for manslaughter.

Per Rowe and Jamal JJ. (dissenting):

[32] I agree with my colleague Moreau J. that the appellants were entitled to have the jury properly instructed on how an intervening act may affect legal causation for unlawful act manslaughter. As my colleague explains, an intervening act instruction is available in a case involving co-principal liability arising out of a group assault (see R. v. Strathdee, 2021 SCC 40, at para. 4).

[33] I respectfully disagree, however, with my colleague’s conclusion, and that of the majority of the Court of Appeal for Ontario, that the trial judge’s intervening act instruction properly instructed the jury on the issue of causation for unlawful act manslaughter. I substantially agree with the reasoning and conclusion of the dissenting justice in the Court of Appeal.

R. v. Tayo Tompouba, 2024 SCC 16: Accused is a bilingual Francophone who was tried and convicted of a sexual assault. Trial was conducted in English, and he was not informed of his right to a trial in the official language of his choice. Before the Court of Appeal, he asserted he would have liked for this trial to be conducted in French. CA found it was an error of law, but there was insufficient evidence to conclude that the error caused any prejudice. Appeal allowed. PerWagnerC.J. and Côté, Rowe, Kasirer and O’Bonsawin JJ.:

[4] This appeal provides the Court with an opportunity to establish the analytical framework that applies where an accused appeals their conviction and raises, for the first time, a breach of s. 530(3) Cr. C. when no decision on the accused’s language rights was made at first instance. Thus far, the lower courts are not in agreement on the framework to be applied. While some appellate courts find that such a breach in itself warrants a new trial, others, including the Court of Appeal in this case, instead take the view that the evidence in the record must make it possible to conclude that the breach in fact resulted in a violation of the accused’s fundamental right to be tried in the official language of their choice. This Court is thus called upon to settle this debate.

[5] For the reasons that follow, I am of the view that a breach of s. 530(3) Cr. C. is an error of law warranting appellate intervention under s. 686(1)(a) Cr. C. According to the jurisprudence, an error of law under s. 686(1)(a)(ii) Cr. C. is any error in the application of a legal rule, through a decision or an improper omission, as long as the error is related to the proceedings leading to the conviction and was made by a judge. A breach of s. 530(3) Cr. C. corresponds precisely to this definition. It involves a failure by a judge to comply with a legal rule, and this omission is related to the proceedings leading to the conviction. A breach of s. 530(3) Cr. C., once established, has the effect of tainting the trial court’s judgment. It gives rise to a presumption that the accused’s fundamental right to be tried in the official language of their choice was violated, which opens the door to appellate intervention. The Crown can then rebut this presumption for the purposes of the analysis under the curative proviso in s. 686(1)(b)(iv) Cr. C

Per Karakatsanis and Martin JJ. (dissenting):

[133] The appellant seeks a new trial simply because a judicial official did not tell him about his right to a trial in the language of his choice. He offered no evidence, either in the court below or in this Court, to show that he was not otherwise aware of his right to a trial in French, and indeed other evidence strongly supports the inference that he had actual notice of this right from other sources. The Chief Justice finds that the mere failure to comply with s. 530(3) is a wrong decision on a question of law under s. 686(1)(a)(ii). He concludes that once the appellant shows that the judicial official did not give the required notice, nothing further is required for a new trial, unless the Crown can invoke the curative proviso and show that the appellant suffered no prejudice resulting from the absence of the notice.

…

[135] For the reasons that follow, we conclude that the failure to give notice under s. 530(3) falls within the residual category under s. 686(1)(a)(iii), meaning the appellant must establish a miscarriage of justice before a remedy can be granted. Like the British Columbia Court of Appeal, we conclude that in order to establish a miscarriage of justice the appellant was required to show that the lack of notice required by s. 530(3) had some effect on the exercise of his right, that is, that he was unaware of his right to be tried in the official language of his choice. In order to make out a breach of their substantive language rights on appeal, an appellant must provide evidence, which may be by way of an affidavit, stating that they were unaware of the right to choose to be tried in the other official language and that the option of a trial in that language was a viable choice.

R. v. E.T., 2024 MBCA 42: Crown sought leave to appeal and if granted, appeal of the sentence of two years’ supervised probation following a young person’s guilty plea to distributing child pornography. Forensic assessment concluded accused was low risk for sexual offending and a moderate risk for accessing child pornography in the future. PSR assessed him as a low risk to reoffend generally. Sentence reviews have a high level of deference; appellate court should not intervene unless the judge has committed an error in principle. Leave to appeal granted, appeal dismissed.

R. v. Bannatyne, 2024 MBCA 40: Appeal of conviction for possession of cocaine for the purpose of trafficking. Accused argues that the verdict was unreasonable as there was insufficient evidence to prove she had knowledge and control of the cocaine found in her apartment. Evidence showed she lived in the apartment, another accused lived there as well and used her vehicle to deal drugs. CA found it was reasonable for the trial judge to come to the conclusion that the accused was guilty. Appeal dismissed.

R. v. Ahlbaum, 2024 MBCA 39: Accused seeks leave to appeal his sentence. He pleaded guilty to possession cocaine for the purpose of trafficking and possessing a loaded restricted firearm. He was sentenced to seven years for the drug offence and four and a half years, concurrent for the firearm offence. Appeal argues the judge failed to properly consider his Gladue factors and that he failed to properly weight the mitigating factors. CA agreed with sentencing judge; leave to appeal denied.

R. v. Caribou, 2024 MBCA 35: Application by the Crown for leave to appeal a sentence for aggravated assault. Accused pled guilty; Crown suggested 36 months, defence requested 30 months, with credit for pre-sentence custody. Sentencing judge ordered time served. Court of Appeal found it was an error; remedy was to order a new sentence of 30 months, less pre-sentence custody and served on a 1:1 basis since sentencing on August 28, 2023.

R. v. Mohiadin, 2024 MBCA 34: Appeal of conviction of failing to comply with the curfew conditions of release order. Accused had been ordered to remain in Alberta at a particular address between 10 pm and 6 am. He was arrested following a traffic stop in Winnipeg at 7:55 pm. Review of the elements of the offence of breaching a release order as outlined in R. v. Custance, 2005 MBCA 23. Review of whether the verdict was unreasonable as determined by the test in R. v. Biniaris, 2000 SCC 15 and R. v. Villaroman, 2016 SCC 33. Discussion of the Kienapple principle re multiple convictions. Conviction appeal dismissed.

R. v. Negash, 2024 MBCA 33: Application for leave to appeal decision of summary conviction appeal judge, who dismissed appeals of convictions in Provincial Court for motor vehicle offences. Trial judge found that the grounds for arresting the accused for possession of drugs did not constitute reasonable and probable grounds. However, it was undisputed that a tail light and brake light was broken, and that allowed the police to lawfully stop the driver. Examination of the jurisdiction of the Court when considering granting leave to appeal under s. 839(1)(a) of the Criminal Code. Discussion of the “air of reality test” as set out in R. v. Cinous, 2002 SCC 29. Appeal dismissed.

R. v. Keeper, 2024 MBKB 70: Sentencing decision after conviction at trial for second degree murder. Mandatory life sentence, argument over period of parole ineligibility. Crown recommends 13 years, defence, 10 years. Aggravating factors are seriousness of the offence, lack of motive and post-offence conduct. Mitigating factors include severe Gladue factors, youthfulness of offender and rehabilitative potential. Canvas of caselaw for sentencing for similar offences. Inness, J. determined parole ineligibility will be 11 years.

R. v. Sanford, 2024 MBKB 68: Application for faint hope screening. Applicant was convicted of first degree murder and conspiracy to commit murder in 2011 with no possibility of parole for 25 years. Review of the legal framework involved; screening judge must guess the likelihood that a unanimous jury will agree that the applicant is deserving of clemency. Screening is based solely on written materials. Application is successful.

R. v. Hassen, 2024 MBKB 65: Accused is charged on direct indictment with first degree murder and other firearms offences. Decision on admissibility of expert opinion evidence to be given by a member of the Winnipeg Police Service re the activities and structure of two organizations, and whether they are criminal organizations. Voir dire is bifurcated between a Mohan assessment and a gatekeeper assessment, and a final necessity determination. Legal principles on test for admissibility of expert evidence is set out in R. v. Abbey, 2017 ONCA 640 at para. 46-55. Martin, J. also considers various forms of bias. Officer was involved in the homicide investigation as well as being an expert on criminal gangs. Witness is permitted to testify.

R. v. Moreau, 2024 MBKB 63: Trial on charges of aggravated assault and manslaughter in relation to two separate incidents on the accused’s three month old child. Review of the principle of the presumption of innocence and R. v. W.(D.). Expert medical evidence was not able to give the precise timing of the fatal injury. Both the mother and the father were considered suspects. Bond, J. found accused’s testimony not credible; accused found not guilty of aggravated assault, but guilty of manslaughter.

R. v. Flatfoot, 2024 MBPC 37: Sentencing decision where accused entered a guilty plea to attempted murder. Accused was intoxicated with drugs and alcohol when she slit her sister’s throat and almost killed her. Court ordered a presentence and a Gladue report. Many mitigating factors, including accused was suffering from grief for the loss of her daughter a short time before, and was using alcohol and cocaine to cope; she suffered from physical, verbal, emotional and sexual abuse as a child. Aggravating factors include the violent nature of the attack and her behaviour designed to avoid arrest. Crown provided caselaw showing sentences in the 10-17 year range; defence argued for 7 years. Bayly, P.J. ordered a 13 year sentence to address the primary objectives of denunciation and deterrence, taking into account the accused’s background.

R. v. C.M., 2024 MBPC 33: Accused is charged with sexual assault and sexual interference. Complainant was 12 at the time of the incidents. Crown’s only witness was the complainant; defence’s only witness was the accused. W.(D.) analysis required. Allen, P.J. found both parties credible, leading to reasonable doubt. Accused acquitted.

 John L. Hill. Manitoba Court of Appeal Addresses Reasonable Inferences in Murder Decision. Law360 Canada. 15 May 2024, viewed 16 May 2024. Comment re R. v. O’Hanley, 2024 MBCA 29.

Family Law

Arguello Achon v. Benitez Peralta, 2024 MBKB 64: Application by both parties to vary a final order for the return of their child to Ecuador pursuant to the 1980 Hague Convention. Proceedings began when father made an application requesting the child be returned to Ecuador as it was his habitual residence. Mother had brought the child to Canada. Mother feared arrest if she returned. Considerable review of the law of the Hague Convention. Final order negotiated and signed August 2, 2023. Within days, father did not wish to comply with the agreement. Analysis of whether an Article 13(b) exception applies. MacPhail, J. finds there is; mother’s application is granted and father’s is dismissed.

Kubas v. Morrison, 2024 MBKB 61: Erratum re reference re Family Property Act.

Sarah Lachance. It’s not “Work” if They’re Having Fun…Right? The Application of B.C.’s Employment Standards Act to Child-Influencers, (2024) 29 Appeal 48.

Influencers are becoming more entrenched in popular culture every year. However, it is not just adults participating in this lucrative career. Children are also earning a substantial income from posting influencer-content on social media platforms such as YouTube, Instagram, and TikTok. However, even though child-influencers are performing similar work, it is unlikely that the legal protections provided to child actors and performers apply to these “kidfluencers”. This article examines British Columbia’s employment standards legislation and whether its provisions apply to children earning money on social media. Based on this analysis, the article concludes that the statute’s application to child-influencers is unclear and inadequate and contends that more needs to be done to regulate this ballooning area ripe for child-exploitation.

Labour and Employment Law

Du Val et al. v. Manitoba Labour Board et al., 2024 MBKB 62: Application for judicial review of three decisions of the Manitoba Labour Board. Applicants were teachers at the University of Winnipeg Collegiate. Parties were placed on unpaid leave for failing to provide proof of vaccination against COVID-19. Parties requested their union to grieve the decision but the union declined. They then complained to the Labour Board which dismissed their complaints. Object on this application is to review the Board’s decision for error. Extensive review of the Board’s decisions. Standard of review is based on Vavilov, 2019 SCC 65. Analysis of the decisions for “reasonableness”. Bock, J. found the decisions were reasonable. Application dismissed.

Wills, Trusts, and Estates

Estate of Germaine Mary Demeyer, 2024 MBKB 66: Passing of accounts of co-executors of this estate from order of ACJ Perlmutter. One of the executors was liable to the estate for occupation rent less reasonable expenses. Costs of accounting are also to be determined. Beneficiaries’ expert provided guidance on value of occupation rent and other expenses a tenant should be responsible for. Co-executors were found to have kept very poor records and some probable expenses were disallowed as there were no receipts showing payment to a third party. Executor costs were allowed at a minimal amount of $1,000 each.

Ian Burns. Alberta Needs Legislation to Confirm Power of Fiduciaries Extend to Digital Assets: Law Institute. Law360 Canada, 13 May 2024, viewed 15 May 2024.

When a person dies or becomes incapacitated, their money and property often fall under the management of a third-party fiduciary — and the law around that is long-standing and largely settled. But an Alberta-based legal institute is saying the time has come for the provincial government to change its rules on fiduciaries in order to deal with assets in the digital arena.

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