• Manitoba Government Welcomes the Start of the Spring Legislative Session March 1, 2023 – “The fifth session of the 42nd legislature begins March 1st at 1:30 p.m.”
• Manitoba Government Reduces Charitable Raffle Licence Fees March 2, 2023 – “The Manitoba government is introducing regulatory changes to the Licensing and Appeals Regulation that will allow the Liquor, Gaming and Cannabis Authority of Manitoba (LGCA) to restructure its licence fee model for charitable raffles, Justice Minister Kelvin Goertzen announced today.”
• Manitoba Government Introduces Regulated Health Professions Amendment Act March 6, 2023 – “The Manitoba government is introducing the Regulated Health Professions Amendment Act, which would amend the Regulated Health Professions Act to extend to colleges that are not yet under the act, Health Minister Audrey Gordon announced today.”
• Manitoba Government Proposes Modernized Life-Lease Legislation March 8, 2023 – “The Manitoba government is seeking to modernize legislation to improve protection and increase transparency for life-lease tenants and their families, Consumer Protection and Government Services Minister James Teitsma announced today.”

Question of the Month

Legal research is a big part of the services we provide here at the Manitoba Law Library. This new section will present some of the interesting queries we receive, and highlight how we can point you towards helpful resources, or suggest answers for difficult questions.

Q: What actions are available when a tenant has damaged or changed the land?

Looking into this question, there are multiple options and resources to explore. One less well-known option is the Tort of Waste.

The Tort of Waste is an action that addresses a change in condition of property that damages or destroys the value of that property. While is it not very familiar in Canada, the tort has its roots in English law. For English and other common law torts we would suggest Clerk and Lindsell on Torts. This gives us a small section on waste and cites some English cases. If we note up those cases and search for similar Canadian decisions, we come across Prior v. Hanna, 1987 CanLII 3196 (AB KB),  which has a great history of the tort of waste starting at paragraph 12. 

The tort also exists in American law but “radically diverging from British courts around the time of the American Revolution” as noted in A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law. This also brings up an interesting point that “The common law rule strictly punished changes to property; indeed the common law went so far as to punish with treble damages tenants who increased the value of the property.” So even improvements to a property can be considered waste.

We can also search HeinOnline and find more commentary of the law of waste related to mortgages with Modern Waste Law, Bankruptcy, and Residential Mortgages 41 Cardozo L. Rev.485 or explore other avenues in Chasing Absconding Polluters: a Long and Arduous Road 56 Advocate 51.

Court Notices & Practice Directions

Court of King’s Bench

Notices

• January 24, 2023 – Notice – Electronic Filing

Book Reviews

Review taken from the The Canadian Bar Review,  vol 100 no 2

Law and Disability in Canada: Cases and Materials Edited by Laverne Jacobs (Toronto: Lexis Nexis, 2021)

Reviewed by: Anna Lund and Andrew Green

“Over 35 years after the Canadian Charter of Rights and Freedoms enshrined the rights of people with disabilities, Canada has its first textbook on law and disability. The book is written with some specific audiences in mind: researchers, legal educators, law students, and students in other university programs such as disability studies, social work, and human resources.2 However, the text is a rich resource for anyone interested in legal issues faced by people with disabilities in Canada.”

Events

Upcoming Events

Substantive Law

Administrative Law

Manitoba Métis Federation Inc. v. Canada (Energy Regulator), 2023 FCA 24: MMF appeals the decision of the Commission of the Canadian Energy Regulator concerning the implementation and tracking of commitments made to the Métis in connection with the Manitoba-Minnesota Transmission Project. Rivalen, J.A. notes Vavilov has changed the standard of review from one of reasonableness to correctness on a question of law. Four grounds of appeal, all raising questions of law. Considerable and fulsome analysis of each ground. FCA found no errors of law; appeal dismissed.

Winnipeg (City of) v. Barcoga Holdings Inc., 2023 MBCA 19: Appeal of amount certified as compensation to the respondent for injurious affection from a partial expropriation. Review of the methodology to determine valuation method. CA found no palpable and overriding error in LVAC’s finding; appeal dismissed.

Federated Co-operatives Ltd. v. Manitoba (Provincial Municipal Assessor) et al, 2023 MBCA 18: Appeal over determination that a propane storage tank is assessable under The Municipal Assessment Act. Appeal limited to whether the Board erred in law in determining that the tank was an improvement on the land within the meaning of the Act, i.e. whether or not it is a structure without technically being affixed to the land. Appellant argues that the Board applied the wrong legal test. Assessor argues that the Board considered affixation but found that was not determinative on the facts of this case. Appeal dismissed.  

Jhanji v. The Law Society of Manitoba, 2023 MBCA 15: Motion for an order pursuant to R. 46.2 f the Manitoba Court of Appeal rules for the rehearing of appeal that was dismissed in September 2022. Review of the test to be satisfied for a rehearing. Motion dismissed.

Rebecca Durcan. Another Unfair Investigation. CanLIIConnects, published 10 March 2023, viewed 13 March 2023. Comment on Kastner v. Health Professions Appeal and Review Board, 2023 ONSC 629, an application for judicial review of the regulatory response to a professional misconduct complaint regarding the respondent, a physician.

Civil Litigation

Jordan et al. v. Bains et al., 2023 MBKB 43: Action for summary judgment for breach of contract claim in purchase of a residence. Defendants did not include a financing condition in the agreement of purchase and sale. Third party claim against the real estate agent and brokerage who acted for both parties. Toews, J. found no ambiguity with the contract; summary judgment granted to plaintiffs. Review of caselaw involving purchase and sale agreements. Assessment of damages, including difference between original sale price and later sale price, storage costs for furniture, and maintenance costs for property. Third party claim dismissed.

Sison v. Moffatt, 2023 MBKB 42: Defendant brings notice of motion that plaintiff’s action is statute barred, and that the court does not have jurisdiction to hear plaintiff’s notice of application to extend the limitation period. Discussion of former and current Limitations Act. Cause of action arose in 2017, and plaintiff filed her statement of claim in 2022. Toews, J. found for plaintiff; motion dismissed.

Deen v. Sinclair et al., 2023 MBKB 41: Action for damages after MB Hydro disconnected electricity for lack of payment on rental property. Plaintiff leased a home to defendant; defendant was responsible for paying Hydro account (electricity and gas). At the end of the first year of the lease, Hydro informed plaintiff that tenant had not paid anything to Hydro. A month later (end of August) Hydro disconnected electricity meter (natural gas was never disconnected). Issue: does Hydro owe a public and/or private duty of care to the plaintiff, and if so, did they breach it. Review of case law on private and public duty of care, including Anns v. Merton London Borough Council. Grammond, J. found that Hydro owed a duty of care, but that the plaintiff was contributorily negligent. Damages awarded were reduced by 1/3 for contributory negligence.

Fawcett-Neufeld v. Kaatz Construction Ltd. et al., 2023 MBKB 36: Application for leave to commence an action against the respondents further to Part II of The Limitations of Actions Act. Applicant must show that it must have been less than 12 months since she knew or should have known that an action could be raised. Applicant must also show there is a prima facie case against the respondents. Primary issue is the date the applicant first knew all material facts of a decisive nature. Second part of test is a limited assessment of the merits of the proposed action. McCarthy, J. found that applicant was successful.

4268113 Canada Ltd. et al. v. King et al., 2023 MBKB 35: Claim of negligence against insurance brokers in purchase of insurance. Plaintiffs claimed that the brokers failed to procure adequate insurance based on the plaintiffs’ business requirements, among other claims. Issues are: did the defendants breach their duty of care and if so, what damages are compensable. Property involved was a four storey residential building that the plaintiffs planned to renovate. Several years after renovation had started, there was a fire that caused the insurance claim to be filed. Plaintiffs had purchased replacement cost coverage (RCC) with one insurer. After several years, insurance company refused to extend policy so they sought new insurer. After trying to settle the claim, legal counsel for the insurer informed the plaintiff that policy was for Actual Cost Value (ACV). Analysis and review of the wording of the contract and its application. Analysis of the standard of care to be expected of a broker. McCarthy, J. found the defendants were negligent. Discussion of calculation of damages. Damages awarded less the the settlement reached with the insurer by arbitration.

Overly et al. v. Legacy Homes Ltd. et al., 2023 MBKB 28: Matter proceeding by way of summary judgment at the request of the plaintiffs. Plaintiffs are looking for judgment in the form of rescission or, in the alternative, damages for breach of contract relating to the construction of a condominium unit. Property was purchased in 2011 and remediation was not completed until many years later. McCarthy, J. finds summary judgment is appropriate; no issues that require a trial. Analysis of liability by defendants, and whether the corporate defendant can be found personally liable. Defendant not found personally liable. Plaintiffs awarded special damages, aggravated damages for mental distress but not punitive damages.

Forsythe v. Castelane et al, 2023 MBKB 18: Motion by defendants for dismissal due to delay under Rules 24.01 and 24.02(1) (long delay). Action began in April 2014. Plaintiff had to switch counsel several times and had difficulty retaining new counsel, which accounted for some of the delay. Extensive review of caselaw regarding both rules. Martin, J. finds delay not proven.

Jeffrey Lem. Dhatt v. Beer: Equitable Conversion vs Execution Creditors. (2021) 24 R.P.R. (6th) 69. (WLC – LSM members can request a copy.)

Dhatt v. Beer , 24 R.P.R. (6th) 50, 2021 ONSC 770, … discusses the interaction between the “Doctrine of Equitable Conversion” and the rights of an execution creditor with claims against an owner (cum debtor cum vendor). In this case, writs of execution were obtained against a registered owner who owed money to an execution creditor who filed its writs after that registered owner had entered into an agreement of purchase and sale for its real property. The execution creditor argued that its writs of execution ran with the property after closing, to the detriment of the arms’ length purchaser. The Ontario Superior Court held, however, that, after the owner entered into an agreement of purchase and sale, the purchaser became the owner of the property, at least in equity, and the existing registered owner no longer had an asset to which the execution could attach. As such, the property could be sold free and clear of post-contract writs of execution. While the holding was not unexpected, it does give rise to arguably unintuitive practical implications.

Corporate and Commercial Law

Prairie Risk Management Inc. v. Marsh Canada Ltd. et al., 2023 MBKB 29: Action based on breach of contract. Plaintiff alleges that the defendants unlawfully accessed and used confidential information about PRM’s clients in order to solicit those clients for themselves. Plaintiff claims it lost income and value because of the conduct of the defendants. Plaintiff pled breach of contract, breach of confidence, breach of the duty to act honestly, breach of fiduciary duty, unlawful interference with economic relations and breach of trust. Harris, J. found defendants guilty of breach of contract, breach of confidence, and breach of fiduciary duty. As per Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 475, court can consider whether common law or equity provides the plaintiff with the appropriate remedy. Harris, J. concludes that equity is the better remedy and orders damages in the amount of $1,534,000 plus pre- and post-judgement interest and costs.

Criminal Law

R. v. Downes,2023 SCC 6: Accused convicted of voyeurism under s. 162(1)(a) of the Criminal Code at trial. Majority of the Court of Appeal set aside the convictions and ordered a new trial, concluding that the trial judge had failed to consider whether nudity was reasonably expected at the time when the offences allegedly occurred. Appeal allowed and convictions restored. Per Karakatsanis, Brown*, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ:

[5] In my view, properly interpreted based on its text, context, and purpose, s. 162(1)(a) has no implicit temporal component. The text of s. 162(1)(a) lacks language suggesting that Parliament intended the “place” to be evaluated at the specific time when the observation or recording was made. Further, as this Court observed in Jarvis, Parliament’s purposes in enacting the voyeurism offence were to protect individuals’ privacy and sexual integrity. Those purposes are promoted by interpreting s. 162(1)(a) without an implicit temporal component, and would be detracted from by reading in such a component. In effect, s. 162(1)(a) designates places such as bedrooms, bathrooms, and dressing rooms as “safe places” where people should be free from intrusions onto their privacy and sexual integrity, whether or not a person in the place could reasonably be expected to be nude or engaged in sexual activity at the specific time the person is surreptitiously observed or recorded. Finally, I would decline to address the constitutional issue because this is not an appropriate case for this Court to exceptionally exercise its discretion to decide such an issue for the first time on appeal. I would therefore allow the appeal and restore the convictions.

*Brown J. did not participate in the final disposition of the judgment.

R. v. Metzger, 2023 SCC 5: Issue of unreasonable verdict. Accused was convicted at trial of a number of offences arising from a home invasion robbery. Identity was the only issue at trial. Crown’s case to identify accused relied entirely on two pieces of circumstantial evidence. Appeal allowed. Per Rowe, Martin and Kasirer JJ.:

[2] I am of the view that the verdicts were unreasonable and that the appeal should be allowed. Even accounting for the privileged position of the trial judge, I am satisfied that the guilty verdicts cannot be supported by the evidence: R. v. Brunelle, 2022 SCC 5 , at para. 7.

Per Côté and O’Bonsawin JJ. (dissenting):

[11] The main issue in this appeal is whether it was unreasonable for the trial judge to convict the appellant based on (1) the presence of his DNA in the stolen truck; and (2) Mr. Iten’s testimony that he heard the appellant’s last name, “Metzger”, used during the robbery. The majority of the court below dismissed the appellant’s appeal, finding that the verdicts were not unreasonable (2022 ABCA 16). I agree. In my view, the trial judge could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence (R. v. Villaroman, 2016 SCC 33 , [2016] 1 S.C.R. 1000, at para. 55).

R. v. McGregor, 2023 SCC 4: Appeal from the Court Martial Appeal Court of Canada. Issue of reasonableness of search and seizure (s. 8) of electronic devices and extraterritorial applicability of the Charter. Accused was a CAF member posted to the Canadian Embassy in Washington, D.C. Embassy waived his immunity with respect to his residence and property and local police obtained a warrant to search and analyze some devices. Discussion of the last decision dealing with extraterritoriality (R. v. Hape, 2007 SCC 26). Appeal dismissed. PerWagner C.J. and Moldaver, Côté, Kasirer and Jamal JJ.:

 [4] In the final analysis, I find it unnecessary to deal with the issue of extraterritoriality to dispose of this appeal. This is so because the CFNIS did not violate the Charter. Working within the constraints of its authority in Virginia, the CFNIS sought the cooperation of local authorities to obtain and execute a warrant under Virginia law. The warrant which issued authorized the search, seizure, and analysis of Cpl. McGregor’s electronic devices expressly. The evidence of sexual assault was discovered inadvertently by the investigators in the process of triaging the devices at the scene of the search; its incriminating nature was immediately apparent. Although the warrant did not contemplate such evidence, the digital files in issue fell squarely within the purview of the plain view doctrine. Furthermore, the CFNIS obtained Canadian warrants before conducting an in‑depth analysis of these devices. It is difficult to see how the CFNIS investigators could have acted differently to attain their legitimate investigative objectives. I conclude that they did not infringe Cpl. McGregor’s rights under s. 8 of the Charter.

Per Karakatsanis and Martin JJ.:

[47] While we agree that the appeal should be dismissed, we also comment on the central question directly at issue in this appeal: does the Charter apply, pursuant to s. 32, to Canadian authorities’ investigative actions abroad in these circumstances? This was clearly the primary and threshold issue argued by the parties and multiple interveners, it was the reason leave to appeal was sought, and we received full submissions on both constitutional and international law. The extraterritorial application of the Charter is squarely before the Court and it is an issue that arises infrequently, may easily escape judicial review, and has been subject to significant and sustained criticism by experts in international law.

Per Rowe J.:

[99] While my colleagues are correct that the applicability of the Charter was argued at length by the parties, their reasons do not explain the litigation fully: the parties disputed whether the Charter applies in this case, assuming the application of Hape as precedent. No party – not at trial, or before the Court Martial Appeal Court, or before this Court – challenged Hape. Rather, they sought to apply it, and its exceptions, to the facts of their dispute. Counsel for the respondent argued that this case was a “straightforward application of Hape” (R.F., at para. 51) and, in oral submissions, urged the Court not to revisit Hape (transcript, at pp. 118-19). The appellant’s submissions focused on the applicability of the exceptions set out in Hape (A.F., at paras. 86-181). The appellant did not ask this Court to overturn Hape, nor did he lead evidence at the lower courts to support overturning a precedent. The military judge and the Court Martial Appeal Court treated this case as an unremarkable application of the Hape framework.

R. v. M. (D.J.P.), 2023 MBCA 21: Appeal of conviction for sexual assault and sexual interference due to ineffective assistance of counsel. Issue of ineffective assistance of counsel was recently discussed in R. v. White, 2022 SCC 7 at para. 4-5. Onus is on accused to “establish the necessary facts” giving rise to a reasonable probability that but for the alleged ineffective assistance, the trial would have resulted in a different result. Appeal dismissed.

R. v. Cerezo-Brennan, 2023 MBCA 17: Request for leave to appeal sentence by the Crown. Crown argues that the sentencing judge made a number of errors and imposed a sentence that is grossly unfit. Accused pleaded guilty to trafficking three kg of methamphetamine and received a sentence of one day in custody after taking into account enhanced credit of eight months for pre-sentence custody, and three years of supervised probation, citing “exceptional circumstances”. Analysis of relevant principles of sentencing (denunciation and deterrence) for drug trafficking offences and judicial consideration of “exceptional circumstances”. CA agrees with Crown that the sentence is unfit and determines a fit sentence is 44 months’ incarceration, less eight months of enhanced credit for pre-sentence custody.

R. v. Bouttell, 2023 MBCA 16: Request for leave to appeal sentence. Issue is whether the sentencing judge erred by imposing a condition of a probation order (abstain condition). Sentence was crafted with joint recommendations from the Crown and the accused. Crown joins the accused in seeking leave to appeal sentence. Leave to appeal granted and appeal allowed to vacate the abstain condition only.

R. v. Roy, 2023 MBCA 13: Appeal of conviction for aggravated assault. Accused argued that he didn’t have the requisite mens rea and that there was insufficient evidence to convict him as a party to the aggravated assault under the Godin test (R. v. Godin, [1994] 2 S.C.R. 484). Appeal dismissed.

R. v. Schwark, 2023 MBKB 37: Trial by direct indictment on charges of robberies and related offences targeting women working in the escort business. Sole issue is identification of person who committed the attacks. Identification evidence comes from description of the suspect by the victims, video surveillance from the locations of the attacks and video evidence from the residence of the accused. Crown application to use similar fact evidence was granted but not used. Champagne, J. found the totality of the evidence that applied to each individual attack proved beyond a reasonable doubt that the accused was guilty of all attacks.

R. v. O.R., 2023 MBKB 32: Application to terminate remaining six years of a 20 year SOIRA order on the basis that it has a grossly disproportionate impact on the applicant. Judicial review of the requirements of the “grossly disproportionate” standard. Analysis of the test as outlined in R. v. Ndhlovu, 2022 SCC 38. McKelvey, J. finds that the applicant has satisfied the burden of proof and is relieved of his SOIRA obligations.

R. v. J.S., 2023 MBKB 26: Application to terminate the obligations under the Sex Offender Information Registration Act, S.C. 2004, c. 10. Applicant has to report for a 20 year period, but can apply to terminate after 10 years (applicant has been reporting more than 10 years ago). Crown opposes based on the submission that the applicant has failed to meet the grossly disproportionate test. Applicant led evidence indicating the hardship he is suffering from in order to continue reporting (needs to be transported as he can no longer drive, suffering from illness). Analysis of the meaning of “grossly disproportionate”. McKelvey, J. finds he has satisfied the burden of proof and he is relieved of his SOIRA obligations.

R. v. D.C.C., 2023 MBKB 22: Trial where accused charged with sexual assault and sexual interference. Both complainant and accused testified. Complainant was 12 at the time of the incident. Analysis of the credibility of the accused’s testimony while conducting a W.(D.) analysis. Leven, J. found the accused guilty.

R. v. Hurdon, 2023 MBPC 1: Sentencing decision after accused found guilty of possessing fentanyl for the purpose of trafficking. Issue over whether public protection or rehabilitation is the most important focus of the sentence. Extensive examination of the principles of sentencing, including the accused’s moral culpability. Devine, P.J. must consider both the Criminal Code as well as the Controlled Drugs and Substances Act. No exceptional circumstances found. Total sentence is three years and six months.

Michael Michel. Indigenous Self-Government and Criminal Law: The Path Toward Concurrent Jurisdiction in Canada, (2023) 46-2 D.L.J. 1.

The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework.

Arash Nayerahmadi. Far Beyond Baker: Heuristics and the Inadequacy of the Reasonable Apprehension of Bias Analysis. (2022) 59 Osgoode Hall Law Journal 339, viewed on 13 March 2023.

When we consider bias in an adjudicative setting, we think about cases such as Baker v. Canada where the interviewing officer’s emphasis on the applicant’s number of children, economic status, and mental health is glaring. It is easy to become accustomed to thinking about bias in clear examples such as prejudice against people of a disadvantaged group. However, bias can also be subtly present in the subconscious mind, even when a person appears to be acting objectively. The development of cognitive psychology research has revealed that the mind relies on heuristics, or mental shortcuts, to make quick decisions. Heuristics research divides the mind into two systems of operation: The first operates automatically, while the second operates methodically. Heuristics are a function of the former and are consequently difficult to clearly observe and readily identify. Subconscious reliance on heuristics when approaching tasks that demand objectivity can result in decisions that are unintentionally guided by bias, rather than evidence.

Family Law

Awasis Agency of Northern Manitoba v. M.E.F., 2023 MBCA 14: Appeal from an order granted in May 2022 dismissing an application by the respondent to terminate an order of permanent guardianship made in May 2016 in favour of the agency. Mother argues that the motion judge failed to consider evidence and/or misapprehended the evidence. Mother first challenged the permanent order in 2018. Motion judge’s decision is owed deference. CA found no error of fact or law in that decision; appeal dismissed.

J.M.D. v. M.E.S., 2023 MBKB 34: Family law dispute concerning parenting time and other issues. Respondent had been noted in default which was overturned. Respondent’s lawyer was noted as not being diligent in responding to petitioner’s lawyer. Discussion of whether the “Triage First Rule” trumps the “Summary Judgment Rule”. Leven, J. reminds counsel that in family law, best interests of the children are paramount. Default is set aside; petitioner to have regular costs for this hearing, in any event of the cause.

 Duncan v. Magnusson, 2023 MBKB 33: Petitioner moves to dismiss respondent’s answer and petition for divorce for delay pursuant to Rule 24 of the King’s Bench Rules. Thomson, J. relies heavily on decision of MacPhail, J., Ruchotzke v. Ruchotzke, 2022 MBQB 153. Focus of court’s attention is in analyzing the applicability of Rule 24.02 on a three year-plus period of time between the pronouncement of divorce (unopposed) and the filing of the petitioner’s motion to dismiss. Consideration of what constitutes a “significant advance” in the proceedings. Issue of whether dismissing for delay could be “made the object of litigation mischief by the petitioner” (para. 33).  Order of dismissal under Rule 24.02 shall contain a provision pursuant to Rule 24.06 that the dismissal will act as a defence to a further action by the respondent, except for a claim to an equal division of family property (para. 36).

 Stefansky v. Belkin, 2023 MBKB 30: Master’s report on cohabitation and separation dates. Parties differ in beginning of cohabitation by almost seven years, and its ending by three months. Report used affidavits and some witness testimony. Neither party’s evidence was strong; Master determined dates based on best evidence.

 Family Law: Date of Separation; Additional Evidence. Supreme Advocacy, Court of Appeal Decision of the Week as viewed 09 March 2023. Case comment on Gupta v. Kumar, 2023 BCCA 106.

… The Court of Appeal found no basis to interfere with the Trial Judge’s conclusion that the parties’ date of separation was 2013, noting that “an appellate court will intervene on a factual finding only when there is a clear error that is material to the outcome.” (See para. 15). Although the Appellant sought to draw the Court’s attention to “evidence that she says supported her version of events” and argued the Trial Judge had placed “greater weight on [the Respondent’s] evidence than on hers”, the Court indicated that it was “not open to this Court to reweigh the evidence or retry the case”. (See paras. 28-29).

Nikki Robar, Greg Walen. Income for Guidelines Purposes: Seven Challenging Issues for Income Determination from a Financial and Legal Perspective. (2022) 41 C.F.L.Q. 227 (WLC – LSM members can request a copy).

… In this article, we’re applying a legal lens and an accounting lens to some challenging issues that arise when using the Guidelines for income determination.

Wills, Trusts & Estates

Gamble and Wojtowicz v. Karpluk, 2023 MBKB 39: Applicants (adult children of deceased) move for judgment in accordance of a settlement agreement reached with the respondent. Respondent (deceased’s common law partner) moves to dismiss for delay under King’s Bench Rule 38.12. Balance between prejudice to the respondent due to delay and the right of the applicants to have their case heard on the merits. Perlmutter, A.C.J.K.B. found the respondent caused some of the delay, and there was no prejudice. Judgment granted in favour of the applicants.

McDonald Estate v. McDonald, 2023 MBKB 31: Dispute between two joint attorneys under a general enduring Power of Attorney. One party transferred the mother’s home quarter to himself and his wife for less than market value, and then used the power of attorney to gift the funds back to himself (mother is still alive). Other attorney (with support of other family members) seeks damages equal to the fair market value of the property, and submits that the mother lacked capacity to make the transfer. Review of the law of capacity to determine if there was evidence the mother had the requisite capacity. Analysis of the presumption of undue influence, and whether the respondent rebutted it. Kroft, J. found that the evidence did not establish that the mother lacked capacity, but that one attorney breached his fiduciary duty to her.

Anita Southall, David Thiessen. Appointment of Guardians for Incapable Adults in Manitoba. (2023) 42 Est., Tr. & Pensions J. 212. LSM members can request a copy. See this post for all articles included in this edition.

Legislation

Federal

44th Parliament, 1st Session

Recent Votes

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Provincial

Fifth Session, Forty-Second Legislature

Current Bills    |    Bill Status

New Regulations