News

  • “Manitoba Government Back to Session, Ready To Deliver”The 1st Session of the 43rd Legislature resumed on March 6, 2024.

  • vLex partners with Emond Publishing – “vLex, an award-winning legal technology company, is excited to announce a strategic partnership with Emond Publishing, a leading legal publisher in Canada. This collaboration will bring a comprehensive collection of authoritative legal titles to vLex’s advanced legal research platform, significantly enhancing the resources available to Canadian legal professionals.”
  • HeinOnline integration with Altmetric – “In 2008, HeinOnline launched ScholarCheck, our first home-grown citation tool, to provide the most-cited journals, articles, and authors to aid researchers in quickly locating authoritative material in the database. Now, researchers can take an extra step and analyze scholarly content outside of HeinOnline with our integration with Altmetric. Altmetric follows online attention across news outlets, websites, blogs, social media, and more, tracking thousands of online conversations to uncover the societal impact of scholarly works. Watch this short video or keep reading to learn more.”

The Federation of Law Societies of Canada has launched a national survey for its ongoing project to develop a national competency profile. Click here to fill out the survey or for more information.  The deadline for completing the survey is March 17th, 2024. 

Question of the Month

This feature presents some of the interesting queries we receive, and highlights how we can direct you towards the appropriate resources.

Q: If a party is found liable for an injury to another, who then sustains another injury, is the compensation for the first act affected by the second?

A: When looking at personal injury damages we often direct user to Goldsmith on Damages, but if we want to see a more general view we can review what Waddam’s on Damages says about wrongs committed after an act:

13:7 Compensation is paid for a wrong done, and the task of the tribunal in assessing damages is to determine what sum of money represents fair compensation for that wrong. Where damage to property is in issue, the general rule is that damages “crystallize” at the date of the wrong or shortly afterwards.

It further notes that “the general rule of early crystallization does not apply is the field of personal injury compensation” and gives a few interesting decisions that consider subsequent additional wrongs.

Baker v Willoughby (available on vlex [1969] UKHL J1126-1) involved a pedestrian, Baker, that was injured by a driver, Willoughby, and left partially incapacitated. He then found it difficult to find work in his state. He eventually found work but at his new job he was robbed and shot in the leg. Since the leg was already badly damaged, it required amputation.  Was the shooting a new intervening act or should Willoughby be accountable for all losses suffered? The defendant was held to be liable for losses and reduced earnings, even after the shooting and amputation of the leg.

However in a subsequent case a different decision was reached. In Jobling v Associated Dairies Ltd (available on vLex  [1981] UKHL J0625-1) an employee slipped and fell at their workplace. After the incident, but before the trial, he was diagnosed with a pre-existing spinal disease, which was not a result of the accident. It would eventually disable him entirely and he would be unable to work. The issue was one of causation and whether his pre-existing spinal disease should be taken into account for assessing work-related damages. In this case the employer would only be liable for damages and partial loss of earnings for the four years Jobling was employed.

A Canadian case from the Supreme Court, Sunrise Co. v. Lake Winnipeg (The), 1991 CanLII 107 (SCC), [1991] 1 SCR 3 is another example of subsequent damages. In that case a ship was run around trying to avoid another, the ship “Lake Winnipeg”. It required repairs in dry dock. On the way to getting repaired it ran aground again, this time not due to anyone’s fault, and required additional repairs. The issue was how much was the initial party liable given the second incident. The majority agreed that the Lake Winnipeg ship is liable for the entire repair time needed. In the dissent McLachlin, J. believed the liability should be shared due to contributory negligence. For further commentary on the dissent see the article from the Manitoba Law Journal, “From Ruabon Steamship to Lake Winnipeg: In Partial Defence of McLachlin J.’s Apportionment Dissent”.

Members can find even more analysis on Heinonline with the University of Toronto Law Journal’s article “The Effect of Subsequent Pre-Assessment Wrongs on Damages for Personal Injury”.

New Library Resources

New Digital Titles

Online Library Resources from Irinw law on vLex, available in the Member’s Portal

A Basic Guide to Canadian Family Law

Labour and Employment Law in the Federal Public Service – 2nd ed.

“Labour and Employment Law in the Federal Public Service, 2e describes the labour and employment law governing employees in the federal public administration, employees of Parliament, members of the RCMP, and other federal government employees (excluding members of the Canadian armed forces, judges, and employees of Crown corporations). Specifically, the book deals with the Federal Public Sector Labour Relations Act and the Public Service Employment Act, along with statutes specific to certain categories of government employees. It also discusses the leading cases and, where appropriate, a representative sample of decisions to explain or provide examples of particular points. Part I provides an overview of federal public service labour and employment law, along with a historical overview of the topic. Part II considers the normal labour law topics as they apply to direct employees of the government and employees of government agencies. Part III concerns the unique terms and conditions of employment for both unionized and non-unionized employees (including political neutrality, whistle-blowing, pay issues, official languages, and pensions). Part IV involves the legal regulation of the employment relationship in the federal public service — namely, the process for appointment to and within the federal public service. Part V considers Crown servants — specifically, RCMP members and parliamentary employees — ​who have special rules and statutory provisions governing their employment. Finally, Part VI considers the role that courts play in the regulation of federal public service labour and employment law. In short, this book does exactly what it says on the tin.” – from publisher

Ontario Public Service Employment and Labour Law – 2nd ed.

“From authors Tim Hadwen and David Strang comes Ontario Public Service Employment and Labour Law, 2e. This updated edition covers persons employed under the Public Service of Ontario Act in ministries and agencies, as well as Order in Council appointees, MPPs, legislative officers, and judicial officers. The text addresses issues with the terms and conditions of employment or of an appointment, including:
* job security, discipline, salary, and pension arrangements
* ethical standards, including conflict of interest, and the role of the Integrity Commissioner
* rights under the Human Rights Code, Occupational Health and Safety Act, and Employment Standards Act
* labour relations under the Crown Employees Collective Bargaining Act, encompassing the right to strike, interest arbitration, essential services, comparison with the Ambulance Services Collective Bargaining Act, and successor rights, including the Public Service Labour Relations Transition Act
* the administration, jurisdiction, and jurisprudence of the Grievance Settlement Board and Public Service Grievance Board
* the overlapping jurisdiction of the Ontario Human Rights Tribunal, courts, and arbitrators
* the applicability of the Freedom of Information and Protection of Privacy Act to public servants’ advice and to labour relations records
” – from publisher

The Law of Equitable Remedies - Third edition
A Basic Guide to Canadian Family Law

Detention and Arrest – 3rd ed.

The criminal justice system aims to maintain a balance between the individual interest of private citizens to carry on their lives free from state interference, and the communal interest in maintaining a safe society. These two goals come into conflict with each other most visibly when agents of the state take control of private citizens — that is, when they exercise their powers to detain or to arrest. The book focuses on “street-level” encounters: detentions and arrests that occur in the course of investigating crime and laying charges. The authors explore the initial interaction between agents of the state or others authorized to detain and arrest, and the private citizens whose liberty is interfered with. It is at that point that the balance between societal safety and individual liberty is most keenly in play. This third edition has been updated to incorporate significant statutory changes to Part XVI of the Criminal Code (Compelling Appearance of Accused Before a Justice and Interim Release), to common law powers (powers of detention, safety searches, search incident to arrest, etc.), to developments in the law in dealing with racial profiling, and to Charter rights (freedom from arbitrary detention, right to counsel, and so on)” – from publisher

The 2024 annotated mental health provisions of the criminal code – Part XX.1

“The 2024 Annotated Mental Disorder Provisions of the Criminal Code, Part XX.1 is an updated excerpt from the recently published Annotated Ontario Mental Health Statutes, 5th edition (Irwin Law, 2022). This text provides legal and mental health practitioners with an easy-to-use annotation of Part XX.1 of the Criminal Code. This portable book focuses exclusively upon the Mental Disorder provisions of the Criminal Code and will be produced annually with updates to the legislation and caselaw as and when they occur. In addition, this book provides an overview of practical matters, tactical matters, relevant caselaw, and legislation dealing specifically with the matters of Fitness to Stand Trial and Criminal Responsibility. The Rules of Procedure of the Ontario Review Board are included, as are all of the relevant Forms dealing with Orders that may be made within Part XX.1 of the Criminal Code. This conveniently formatted text places the updated caselaw annotations and commentary adjacent to the legislative provisions to which they relate, following the logical organization of the statutes” – from publisher

The Law of Equitable Remedies - Third edition

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 48 Issue 3

Reckoning with Racism
Police, Judges, and the RDS Case

Reckoning with Racism: Police, Judges, and the RDS Case. By Constance Backhouse. UBC Press: Vancouver, 2022. 

Reviewed by Lori O’Connor
Public Prosecutions
Melfort, SK

“Reckoning with Racism is a compulsively readable, fascinating book that intertwines questions concerning reasonable apprehension of bias with how a judge’s rulings should be informed by the life experience of the accused in the context of one Canadian criminal court decision.

Reckoning with Racism ends with a brief update on each of the participants and concludes with a discussion of how this case has and will continue to influence the “racelessness” of the Canadian legal system. I highly recommended this book to everyone working in criminal law and those working with racialized communities, and especially those in Nova Scotia. It will also resonate with fans of true crime, community building, and anti-racist activism. 

Read the full review here

Events

Substantive Law

Administrative Law

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4: Issue of whether cabinet mandate letters are exempt from public access to government-held information. Journalist requested access to the mandate letters, cabinet office declined to release them. CBC appealed to the Information and Privacy Commissioner of Ontario who found that the letters were not exempt and ordered their disclosure. Judicial review by Divisional Court found the decision was reasonable and Court of Appeal agreed. SCC: Appeal allowed. Per Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ.:

 [1]  Freedom of information (FOI) legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy. This appeal concerns the balance between these two foundational principles.

[5] The access to information dispute in this appeal arises out of a Canadian Broadcasting Corporation (CBC) journalist’s request to access 23 letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018 (Letters). These Letters, commonly called “mandate letters”, set out the Premier’s views on policy priorities for the government’s term in office. Cabinet Office declined the journalist’s request, claiming the Letters were exempt from disclosure under s. 12(1) of FIPPA.

[7] As I shall explain, I conclude that the IPC’s decision was unreasonable. The Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality. His reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process.

Per Côté J.: 

[65]  I agree with my colleague’s interpretation of s. 12(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“Act”), and with her conclusion that the mandate letters at issue are exempt from disclosure under that provision. However, I do not agree that “the same conclusion follows regardless of whether the standard of review is correctness or reasonableness” (para. 16). Indeed, according to Canada (Minister of Citizenship and Immigration) v. Vavilov2019 SCC 65, [2019] 4 S.C.R. 653, “[r]easonableness review is methodologically distinct from correctness review” (para. 12; Mason v. Canada (Citizenship and Immigration)2023 SCC 21 , at para. 58). For the reasons I explain below,I would consider the issue raised in this appeal — the scope of Cabinet privilege — to be a general question of law of central importance to the legal system as a whole. I would therefore review the Information and Privacy Commissioner’s decision on a standard of correctness.

Pepa v. Canada (Citizenship and Immigration), 2023 FCA 102: Released in May 2023, leave for appeal to the Supreme Court of Canada granted February 15, 2024. Appellant came to Canada on a permanent resident visa as an accompanying dependent child of her father. After the visa was issued and before she arrived, she married. Appellant was admitted for further examination. Admissibility hearing listed her as a foreign national inadmissible due to misrepresentation. Order was issued after visa expired, IAD concluded she had no right to appeal. Issue on appeal was whether the Federal Court identified and properly applied the correct standard of review. Appeal dismissed.

 Hyra v. Workers Compensation Board of Manitoba, 2024 MBCA 14: Request for adjournment. Chambers judge is limited to hearing and disposing of matters which are incidental to a matter pending in court; there is no matter pending, therefore judge has no authority. Motion struck.

Sara Blake. Supreme Court Confirms Need for Cabinet Secrecy, Law360 Canada, 5 February 2024, viewed 6 February 2024. Comment re Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4.

Mark Mancini. The Sunday Evening Administrative Review, Issue 125.  Comment re Pepa v. Canada (Citizenship and Immigration), leave to appeal to the Supreme Court of Canada granted.

Civil Litigation

Bains et al v. Loader et al, 2024 MBCA 12: Motion for a rehearing and/or clarification of the reasons for decision dated November 28, 2023, pursuant to King’s Bench Rule 46.2. Loader defendants had applied for an order to stay the claims against them on the basis of lack of jurisdiction; motion judge set the motions over to be determined in the broader context of the trial. Motion for a rehearing of the appeals dismissed; CA orders a new hearing to include the issues of jurisdiction simpliciter, forum nonconveniens, and the effect of the arbitration clause.

Spencer v. Sutton-Harrison, 2024 MBCA 15: Appeal by plaintiff of decision of trial judge dismissing her claim of negligence against the defendants. Issue was over an opinion of value of land in rural Manitoba. Defendant provided an opinion based on his experience as a real estate agent. Plaintiff subsequently hired an accredited appraiser who valued the land at a higher amount. Court of Appeal agreed with trial judge that the plaintiff failed to prove a breach in the standard of care, and she did not prove damages. Appeal dismissed.

Wong v. Dyker Law Corporation, 2024 MBCA 8: Appeal of dismissal of action against the defendant through summary judgment. Plaintiff claimed defendant gave him deficient legal advice. Plaintiff has been involved in legal proceedings over more than a decade. Motion judge based his decision on whether summary judgment was appropriate on Hryniak v. Mauldin, 2014 SCC 7. Court of Appeal found there was no reason to interfere with the decision of the motion judge.

The Rural Municipality of Thompson et al v. Cox, 2024 MBKB 30: Application seeking an order to disqualify a councillor and declare her position vacant. Review and consideration of ss. 94 and 95 of The Municipal Act. Newly elected Councillor was unable to attend meetings due to change in meeting time. Council interpreted that to mean she was disqualified because she missed three meetings in a row. Court determined application is a fresh hearing and judge can exercise judicial discretion to allow or dismiss it. Review of the word “may” in statutory interpretation. Application dismissed.

Pathak v. Sinha, 2024 MBKB 28: Defendant’s motion to set aside a default judgment over a matter that was first filed in 2019. Plaintiff’s claim was in defamation, for comments the defendant made to his co-workers and supervisors. Authority to set aside default judgment is set out in King’s Bench Rule 19.08. Defendant must prove he has a meritorious defence. Factors are those set out in Neepawa-Gladstone Cooperative Ltd. v. Her, 2019 MBQB 65 at para. 24. Motion dismissed.

Corporate and Commercial Law

ABCO Holdings Ltd. et al. v. Munz et al., 2024 MBKB 23: Application for leave to appeal a private commercial arbitration award. Issue was a dispute over the terms of a share purchase agreement (SPA). Review of s.44(2) of The Arbitration Act. Leading cases that interpret this section are Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 77 and Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2022 MBKB 239, affirmed on appeal by 2023 MBCA 76. Test must address broad legal principles that would be relevant to litigants in other cases or further the development of the law. Application dismissed.

Criminal Law

R. v. Kruk, 2024 SCC 7: Analysis of the “rule against ungrounded common-sense assumptions”. PerWagner C.J. and Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.:

[1]  These appeals in two sexual assault matters concern the standard for appellate intervention with respect to a trial judge’s credibility and reliability findings in a criminal trial and the appropriate role of common sense when assessing the evidence of witnesses. The respondents ask this Court to recognize a novel rule referred to as the “rule against ungrounded common-sense assumptions”. A breach of this proposed rule would provide a new, stand-alone basis for correctness review of credibility and reliability assessments whenever an appellate court determines that a trial judge has relied on a common-sense assumption that was not grounded in the evidence. This significant departure from established standards of review in respect of credibility and reliability assessments in criminal cases has been applied by some appellate courts — often in sexual assault cases that turn on the competing accounts of the accused and the complainant.

[2]  For the reasons provided below, no such change to the law is warranted, and I decline to recognize the rule against ungrounded common-sense assumptions as giving rise to an error of law. The current standards under which appellate courts review trial judgments are well-designed, long-established, and promote the fair assessment of testimony. There is no need to fashion a new rule of law against any assumption not supported by particular evidence in the record to strive for what existing rules already accomplish. Furthermore, the proposed rule is not a coherent extension of existing errors of law pertaining to myths and stereotypes against sexual assault complainants. Adopting it would undercut the functional and flexible approach to appellate intervention and create mischief across the entire criminal law.

Per Rowe J.:

[129] Generalized expectations based on common sense and human experience play a necessary role in the judicial fact-finding process. They serve as a logical benchmark against which to compare the evidence for the purposes of drawing inferences from circumstantial evidence or assessing a witness’s credibility. However, intermediate appellate courts have increasingly identified concerns about the limits of this exercise. In these reasons, I propose three questions that an appellate court should ask when reviewing for potential legal error in a judge’s reliance on generalized expectations in the fact-finding process.

[133]  Applying these principles to the appeals at hand, I would allow the appeals and restore the convictions. In Mr. Kruk’s case, the trial judge relied on a generalized expectation about the likelihood of a woman being mistaken about an invasive physical experience (2020 BCSC 1480). This was a reasonable expectation about general human perception. The trial judge did not treat this as an indisputable fact but instead used it as a benchmark to assess the complainant’s evidence in light of the totality of the evidence. There was therefore no basis for the Court of Appeal to intervene. In Mr. Tsang’s case, the Court of Appeal wrongly identified the trial judge as having relied on a generalized expectation in two instances where the latter was actually assessing the whole of the evidence; this led the Court of Appeal to move beyond its role and reweigh the evidence. In one instance, the trial judge did err by relying on an unreasonable expectation about how people ordinarily behave after a consensual sexual encounter. However, this error could have had no impact on the verdict, and I would have maintained the conviction pursuant to the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

R. v. Bykovets, 2024 SCC 6: Appeal re s. 8 of the Charter for unreasonable search and seizure in securing IP addresses. Police were investigating fraudulent online purchases from a liquor store. They received IP addresses used for the purchases from the third-party processing company. Then they obtained a production order compelling the ISP to disclose the name and address of the customer at each IP address. Per Karakatsanis, Martin, Kasirer, Jamal and Moreau JJ.:

[3] This appeal asks whether an IP address itself attracts a reasonable expectation of privacy. The answer must be yes.

[13] As a crucial component inherent in the structure of the Internet, an IP address is the key that can lead the state through the maze of a user’s Internet activity and is the link through which intermediaries can volunteer that user’s information to the state. Thus, s. 8 ought to protect IP addresses. Doing so would safeguard the first “digital breadcrumb” and shroud the trail of an Internet user’s journey through cyberspace; it would further s. 8’s purpose of preventing potential infringements of privacy rather than circumscribe its scope according to the state’s stated intentions about how it will use this key.

 [14] I would allow the appeal. There is a reasonable expectation of privacy in an IP address. A request by the state for an IP address constitutes a search.

 Per Wagner C.J. and Côté, Rowe and O’Bonsawin JJ. (dissenting):

 [95] Our Court is called upon to determine whether the appellant had a reasonable expectation of privacy in the IP addresses alone — without any other information linking those addresses to him as an Internet user — in the circumstances of this case. I conclude that the appellant did not have a reasonable expectation of privacy. Accordingly, I would dismiss the appeal.

R. v. Contois, 2024 MBCA 11: Accused seeks leave to appeal his sentence after conviction of various firearms offences for which he was sentenced to seven years’ incarceration. Accused must show his grounds of appeal have some merit in light of the standard of review. Sentencing decisions are highly discretionary. Accused argues sentence is demonstrably unfit. Judge classified firearm as a “crime gun” and relied on particular aspects of the firearm to assess the accused’s moral culpability. CA found no merit in accused’s assertion; application for leave to appeal dismissed.

R. v. Scheppner, 2024 MBCA 10: Accused seeks leave to appeal a weapons prohibition order. Accused was found not criminally responsible of the charge of second degree murder. Defence and Crown jointly submit that the order was an error: sentencing judge did not have jurisdiction to issue such an order because accused was not convicted or discharged under s. 730 of the Criminal Code. Appeal allowed.

R. v. Duke, 2024 MBCA 6: Appeal by two accused of convictions by a jury for first degree murder. Both accused argue the verdict is unreasonable; one also argues ineffective assistance of counsel. Accused contend that the trial judge conflated evidence of intention to kill with evidence of planning and deliberation. After review of trial evidence Court is not persuaded that the trial judge erred. Law of ineffective assistance of counsel was recently summarized in R. v. A.A.K., 2023 MBCA 8. This appeal was also dismissed.

R. v. Marcano, 2024 MBKB 26: Trial where accused is charged with second degree murder and raises the defence of self-defence. Crown must prove the essential elements of second degree murder beyond a reasonable doubt. Self-defence has been recently considered in R. v. Khill, 2017 SCC 37 and R. v. King, 2023 MBCA 37. After careful consideration of the evidence, Court found Crown had not met its burden; accused acquitted of second degree murder. McKelvey, J. turned to whether the accused could be found guilty of manslaughter, and rejected that also.

R. v. Keeper, 2024 MBKB 19: Trial of charge of second degree murder. Accused asked to be found guilty of manslaughter instead. Issue is whether the Crown has proven beyond a reasonable doubt that the accused intended to kill the victim. Accused was highly intoxicated at the time she attacked the victim. Accused testified, leading to an R. v. W.(D.) analysis. Explanation of the difference between “credibility” and “reliability”. Analysis of caselaw on an intoxication defence. Inness, J. found the accused guilty of second degree murder.

R. v. M. (S.C.R.), 2024 MBKB 17: Abuse of process application by a young person charged with manslaughter. At case management conference before a provincial court judge, counsel discussed a preliminary inquiry (PI) in respect of manslaughter. Crown advised that the young person would be tried as an adult, and they would not be seeking a direct indictment (DI). Just before the PI, Crown told the defence for the first time they were thinking about increasing the charge to second degree murder. When the judge arrived, accused stated he wished to elect trial in Provincial Court and would plead guilty to manslaughter. Judge accepted the plea. Crown indicated it would still seek a DI for second degree murder. Review of the Charter, ss. 1, 7 and 24(1) and several sections of the Criminal Code on the powers of justice and direct indictments. Review of caselaw on the doctrine of abuse of process. Application is successful.

R. v. Cooke, 2024 MBPC 13: Facts of event agreed to by Crown and defence. Issue is whether the accused had the mens rea for an attempted murder charge. Test for mens rea settled in R. v. Ancio, [1984] 1 SCR 225 and confirmed in R. v. Boone, 2019 ONCA 652 at paras. 59-62. Accused thought victim had stolen his wallet which had a significant amount of money it. Accused began stabbing victim repeatedly and didn’t stop until victim was admitted to building manager’s apartment and 911 was called. Analysis of the force of the attack as well as the accused’s statement to police. Accused is convicted.

R. v. R.V., 2024 MBPC 12: Application by Crown to have a videotaped police statement of a child complainant admitted into evidence. Issue is whether the videotape was made within a reasonable time after the alleged offence, and whether the complainant described the acts complained of. Standard of proof is on a balance of probabilities. Devine, P.J. found this a “close call” but determined it met the threshold. Videotape is admitted.

 Criminal Law: Sexual Assault: Ungrounded Common Sense Assumptions.  Supreme Advocacy, Issue #13. Comment re R. v. Kruk, 2024 SCC 7.

 Nikos Harris. Access to Justice and Rowbotham Applications: Challenging the Myth of the Simple Trial. (2023) 101-3 C.B.R. 645.

This article challenges the traditional assumption that common legal issues in criminal proceedings are not sufficiently complex to require an accused to be represented by counsel. When considering the current complexity of the substantive, procedural and evidentiary rules that arise in almost every case, and the degree to which they involve critical strategic considerations, the reality emerges that almost every criminal proceeding is inherently complex. This actuality should be a factor that weighs in favour of the appointment of counsel to indigent accused to preserve a fair trial.

Family Law

Turenne v. Turenne, 2024 MBCA 18: Respondent appealed a contempt of court order arising from an interim parenting arrangement order. Appeal is as of right. Discussion of the principles required for a finding of contempt. As contempt is of a quasi-criminal nature, it must be used with great restraint. CA found that reasons for contempt were vague and respondent didn’t know what he needed to do to purge it. Appeal allowed and finding of contempt set aside. 

Chaaban v. Houhou, 2024 MBCA 13: Respondent appealed final order of the motion judge, which granted his request to enforce the settlement reached at a judicially assisted dispute resolution conference. Respondent argues that the motion judge varied and omitted particular terms of the settlement. Review of the record shows motion judge made changes to give meaningful context to the agreement but did not alter the settlement and did not go beyond the terms reached by the parties. Appeal dismissed.

Knight v. Smith, 2024 MBCA 5: Appeal over costs awarded against the appellant, a lawyer. Appellant failed to release settlement funds owed by the respondent to the petitioner under a final agreement. This is a discretionary decision which is reviewed according to a highly deferential standard. Appeal dismissed.

Walshe v. Walshe, 2024 MBKB 32: Valuation of the parties’ shares in a corporation as of the date of separation. Parties’ previous FPA reference did not include the corporation. They have been unable to agree on the valuation. Discussion of admissibility of expert evidence as discussed in Ladco Company Limited v. The City of Winnipeg, 2020 MBQB 101. Expert’s conclusion of valuation is accepted.

J.H. v. Michif Child and Family Services, 2024 MBKB 29: Application opposing entry of name on the Child Abuse Registry. Applicant is alleged to have abused the 13 year old complainant. Agency has the burden of proof on a balance of probabilities. Court did not believe applicant’s evidence. Complainant’s evidence since she is a child, must be necessary and reliable (M.B. v. Child and Family Services All Nations, 2021 MBQB 188 at para. 25.) Abel, J. also cited D.L. v. ANCR, 2022 MBQB 109 for the proper investigative interview guidelines for interviewing a child. Court has concerns with the reliability of the evidence to substantiate a finding of abuse; applicant’s name shall not be placed on the Registry.

A.A.L. v. J.F., 2024 MBKB 25: Request for a variation order re parties’ shared parenting time. Father seeks majority of parenting time, exclusive decision-making responsibility, child support and costs. Mother opposes father’s relief and also seeks majority of parenting time. Consent Final Order pronounced in 2015 gave the parties joint custody with primary care and control and final decision-making authority to the mother. Variation Order in 2018 gave father final decision-making authority and gave both parties equal share care and control. Mother moved to a rural community outside of Winnipeg, despite a clause in the Variation Order requiring written consent of the other party to do this. Child now has significant travel time to attend school, resulting in attendance issues. Petersen, J. is satisfied father will support best interests of child. Elevated costs are ordered due to mother’s actions.

Garrett v. Garrett, 2024 MBKB 22: Request by Petitioner for an order for the respondent to pay security for costs in the amount of $25,000. Respondent opposes, citing a lack of the Court’s jurisdiction and his own impecuniosity. Jurisdiction is defined in King’s Bench Rule 56.01. Test for factors in ordering security for costs outlined in DeBono v. Smith, (1989) 62 Man. R. (2d) 98. Respondent is ordered to pay $1,000 in security for costs.

Lowes v. Lowes, 2024 MBKB 21: Reference re Family Property Act, establishing the value of a cattle herd and determining whether a beneficial interest exists in a family farm corporation.  No expert testimony presented. Direct evidence of wife and husband provided by affidavit and both parties were cross-examined before the Court.      

Ian Burns. Generative AI Still No Substitute for Professional Expertise, B.C. Judge says. Law360 Canada, 29 Feb 2024, viewed 29 Feb 2024. Comment re Zhang v. Chen, 2024 BCSC 285.

A B.C. Supreme Court judge has said a lawyer’s use of generative AI which invented two non-existent cases as part of an application in a parenting dispute was troubling but did not amount to conduct which warranted the imposition of special costs.

 

Hon. R. John Harper. But What About Me? Reflections on Children Caught in Parental Conflict Before the Court. (2024) 42 C.F.L.Q. 261. (WLC – LSM members can request a copy.)

Children are more than bystanders when their parents separate. When the separation escalates into overt conflict, children are often the casualties of the chronic and extended conflict.

It is my goal to take the reader through some of my journey as a family law lawyer and as a judge of many years, since 2006, in hopes that the focus for parents, judges, lawyers, and other professionals involved in family litigation will become sensitive to the pain and suffering of the children.

What follows is the bigger picture that gets lost in the fog of the parents’ conflict. It is my view that it is essential that the potential for serious harm to the children caught in the middle never gets lost in that fog. Everyone who plays a role in the administration of family justice must be aware of this. We must search for mechanisms that can reduce the pain and mitigate the harm.

Wills, Trusts & Estates

Michael G. von Keitz. Four Important 2023 Court of Appeal [Ontario] Estate Decisions, and “Case of the Year”. Law360 Canada, 15 Feb 2024, viewed 20 Feb 2024.

Legislation

Federal

Recent Activity

 

Bill Title Status
C-65 An Act respecting early learning and child care in Canada Awaiting royal assent
S-16 An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation At consideration in committee in the Senate
S-1001 An Act to amalgamate The Roman Catholic Episcopal Corporation of Ottawa and The Roman Catholic Episcopal Corporation for the Diocese of Alexandria-Cornwall, in Ontario, Canada This bill received royal assent on February 29, 2024
C-62 An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2 This bill received royal assent on February 29, 2024
C-365 An Act respecting the implementation of a consumer-led banking system for Canadians At second reading in the House of Commons

 

Provincial

The 1st Session of the 43rd Legislature resumed on March 6, 2024.

New Regulations 

The library will be closed on Monday, May 20th for Victoria Day