Manitoba Premier-Designate Announces Transition Advisory Team October 6, 2023
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: I found a reference to an article that I need, but I don’t even know which journal it is in. How can I find it?
A: If you find are looking for an article and all you have is the title, it may be hard to track down exactly where it came from. Most first steps will be to try a general internet search. You might not be able to find the article, or it may be behind a paywall, but you may at least be able to figure out what journal it is from. There are a few more steps you can take to try to get a full copy.
There are a number of free databses online that either provide open access or access with registration, to a wide number of journals.
- Social Science Research Network
- Digital Commons Network: The Law Commons
- CanLII Journals
- Directory of Open Access Journals (DOAJ)
- Internet Archive
If you can’t find it freely online it’s time to check other databases you have access to. Law Society Members have access to a helpful resource behind the member portal, Heinonline and its Law Journal Library. Take a look at a recent blog post to help find what you are looking for, Tip of the Week: How to Locate an Article.
Court Notices & Practice Directions
New Library Resources
Here are this month’s newest additions to the library. Be sure to search our Catalog for more authorative texts.
The Modern Principle of Statutory Interpretation, 2nd Edition
The “modern principle” is the official approach to statutory interpretation in Canada, which focuses on the language of a statutory provision in light of its purpose, intent and context. The Modern Principle of Statutory Interpretation, 2nd Edition (formerly published as The Fundamentals of Statutory Interpretation), is a must-have resource for anyone seeking to gain insight into statutory interpretation in Canada.
Written in an accessible, easy-to-understand manner, The Modern Principle of Statutory Interpretation, 2nd Edition is particularly useful because it:
- Examines the textual, contextual, historical, and purposive components of the modern principle, as well as their interaction with one another
- Presents some refinements to the modern principle to better understand legislative intent as well as pragmatically resolve ambiguous cases
- Considers why statutes require interpretation and the institutional legitimacy of the judiciary to interpret statutes
- Combines the best aspects of a textbook and a casebook as it includes detailed commentary and analysis of the subject matter, and not just case references
- Highlights key elements from leading cases by presenting the most definitive precedents for each aspect of statutory interpretation
The Law of Regulatory Investigations in Canada
Administrative decision making has become the principal manifestation of state power in the lives of Canadians. Most administrative law texts focus on the adjudicative phases of regulatory processes. However, regulatory investigations are a much more prominent part of the overall regulatory machinery and give rise to complex and important legal issues. This book focuses on addressing those regulatory investigation regimes.
A Novel Approach
Written by a team of administrative law experts, The Law of Regulatory Investigations in Canada is unique in that it offers a multi-disciplinary approach to this important topic. While there are vast differences in the regulatory statutory frameworks that govern various regimes – such as professional discipline or occupational health and safety – the administrative law issues that arise in investigations tend to be similar, regardless of the particular regime.
The Law of Professional Regulation, 2nd Edition is a comprehensive textbook about professional regulation and potential liability of regulatory bodies. This unique resource reviews relevant court and tribunal decisions since 2004, discusses long-standing principles which guide these decisions, and provides an in-depth discussion of the procedural elements of professional regulatory offences. In this second edition, author Bryan Salte comments the many changes that have occurred since the first edition, including the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov.
This book provides lawyers and regulatory bodies with a tool for navigating through investigations, hearings and other responsibilities of regulatory bodies. It provides lawyers who advise regulatory bodies and lawyers who represent regulated professionals with a comprehensive guide when advising their clients. Readers will benefit from:
- The comprehensive overview of this area of the law, geared to administrative law lawyers
- The discussion of all angles of investigations and hearings
- The coverage of general principles, admission to the profession, duties and liability issues
- The examination of the impact of the Canadian Charter of Rights and Freedoms and various Human Rights Codes
- The expert commentary on current case law
- The case law summaries providing up to date decisions
Review taken from the Canadian Law Library Review, vol 48 no 2
“Legal Data and Information in Practice: How Data and the Law Interact.” By Sarah A. Sutherland. New York: Routledge, 2022. xxi, 148 p. ISBN 9780367649906 (hardcover) US$170.00; ISBN 9780367649883 (softcover) US$42.95; ISBN 9781003127307 (eBook) US$42.95.
Reviewed by Sharon Wang, Associate Librarian, Osgoode Hall Law School Library, York University
“The legal sector has always been heavily dependent on information. As such, it is timely to have the discussion about what an important role data can play in improving legal services and enhancing the legal processes. Due to the nature of law as an integral part of citizens’ everyday life, data plays an increasingly special and unique role in the legal sector compared to other sectors. A book that specializes in legal data and information will be very valuable for those working in the industry who wish to expand their knowledge in this burgeoning application of data science to the law.”
Mason v. Canada (Citizenship and Immigration), 2023 SCC 21: Issue of inadmissibility reports for foreign nationals charged criminally and determined to be ineligible to remain in Canada on “security grounds”. Federal Court allowed applications for judicial review, ruling it was unreasonable to interpret the section as applying to acts of violence without a nexus to national security. Federal Court of Appeal allowed the Minister’s appeals. Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.:
 These appeals require the Court to apply the framework for judicial review developed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65,  4 S.C.R. 653, to two administrative decisions involving a question of statutory interpretation in the immigration context.
… Applying the Vavilov framework to these appeals, I conclude that the standard of review of the administrative decisions at issue is reasonableness. No established exception to the presumption of reasonableness review applies, nor should any new exception be created on the basis that the appeals involved a serious question of general importance certified for appeal to the Federal Court of Appeal under s. 74(d) of the IRPA. The certified question regime is a statutory mechanism for the Federal Court to provide for an appeal from a judicial review decision in certain circumstances.  Both administrative decisions were unreasonable. In particular, the IAD in Mr. Mason’s case, whose interpretation of s. 34(1)(e) was followed in Mr. Dleiow’s case, failed to consider three significant legal constraints bearing on its decision. First, the IAD failed to address critical points of statutory context that Mr. Mason had raised in his submissions to the IAD. Second, the IAD failed to address the potentially broad consequences of its interpretation, which again Mr. Mason had raised in his submissions. These omissions involved significant failures of “responsive justification” that would cause a reviewing court to lose confidence in the IAD’s decision. Third, the IAD failed to interpret and apply s. 34(1)(e) in compliance with international human rights instruments to which Canada is a signatory — specifically, the obligation of non-refoulement under Article 33(1) of the 1951 Convention Relating to the Status of Refugees , Can. T.S. 1969 No. 6 (“Refugee Convention”) — contrary to the express direction in s. 3(3)(f) of the IRPA that it must do so. The IAD’s failure to consider these three legal constraints rendered its decision unreasonable.
Per Côté J.:
 I agree with my colleague’s disposition of these appeals. Inadmissibility under s. 34(1)(e) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), requires a nexus between the relevant act of violence and with national security or the security of Canada (see paras. 11 and 121). However, I would review the Immigration Appeal Division’s (“IAD”) interpretation of s. 34(1)(e) on a standard of correctness, as submitted by the appellant Mr. Earl Mason and the interveners the Canadian Association of Refugee Lawyers and the Canadian Council for Refugees.
… To be consistent with the principles and framework set out in Vavilov, I would recognize a new category of correctness review: when appellate courts decide a “serious question of general importance” certified under s. 74(d) of the IRPA.
Hyra v. The Workers Compensation Board of Manitoba et al, 2023 MBCA 79: Appeal of dismissal of an application for judicial review of a decision of the Appeal Commission. Appeal Commission dismissed three claims by the applicant for benefits, concluding the claims did not fall within the definition of an “accident” as defined in the Act. Applicant filed claims stating that events in 2014, 2016 and 2018 exacerbated his pre-existing PTSD. Appeal Commission made factual findings that the incidents were related to the management of workplace conflict, and specifically excluded under the Act. Appeal dismissed.
Zheng v. Manitoba Veterinary Medical Association, 2023 MBCA 77: Appeal of an order made by an inquiry panel of the MVMA ordering sanctions against the appellant. Appellant was ordered to complete 32 hours of CPD, practice under the direct supervision of another veterinarian for two years, reimburse the complainant and pay a fine and costs. Appellant asserts that the panel erred and that the sanction was harsh and excessive. Standards of judicial review are those outlined in Housen and Vavilov. Fresh evidence allowed to clarify supervision order. Appeal dismissed and order of the panel confirmed.
Maple Leaf Construction Ltd v. Rockwood (Rural Municipality of), 2023 MBCA 75: Motion for leave to appeal a decision of The Municipal Board of Manitoba rejecting the respondent Municipality’s proposed by-law. The RM and the Board argue the court doesn’t have jurisdiction to hear the appeal. Applicant applied to the RM for an amendment to a by-law to allow it to establish an aggregate quarry operation. Following a public hearing, the RM denied the application. Argument is over whether s.82.1(10) of The Planning Act overrides s.60(1) of The Municipal Board Act. Analysis of general legislation versus specific legislation in statutory interpretation. Motion denied.
Keith Brown and Mark Mancini. Post-Horrocks Judicial Review Appeals: Deference on Questions of Evidence? (2023) 36 Can. J. Admin. L. & Prac. 115 (WLC – LSM members can request a copy.)
This paper analyzes the effect of NHRA v. Horrocks on first-instance judicial review findings. Horrocks affirmed the decision in Agraira v. Canada that, on appeal of a judicial review decision, the appeal court “steps into the shoes” of the judicial review court and re-conducts the substantive analysis. Should this same position apply to first-instance judicial review decisions to admit new evidence? We conclude that Horrocks answers this question in the negative: when faced with a reviewing judge’s admission of new evidence on judicial review, appeal courts should defer.
White Oak Commercial Finance, LLC v. Nygård Holdings (USA) Limited et al, 2023 MBCA 73: Appeal from an order substantively consolidating the respondents with the estates of seven other respondent corporations. Order also granted the court-appointed receiver leave to file for bankruptcy. Secured lenders were owed $36 million under a credit agreement; respondents NPL and NEL were guarantors under the security agreements. Review of the reasons for the substantive consolidation by the trial judge. Such an order is an exercise in discretion, and will not be interefered with unless there is an error in law, a material misapprehension of the evidence, or the decision is so clearly wrong as to amount to an injustice. Leading case in this area is Redstone Investment Corporation (Re), 2016 ONSC 4453. Appeal dismissed.
Sage Creek Village North Ltd v. Nasberg et al, 2023 MBCA 84: Individual Defendants move for an order for a rehearing of their appeal. Defendants have to meet the burden of “exceptional circumstances”. Matter is a commercial leasing dispute over unpaid rent in a failed restaurant development. Motion dismissed.
Green Key Builders Inc. and Meder v. Tsang, 2023 MBKB 145: Plaintiff seeks summary judgment regarding a dispute over a stipulated fixed price contract. Parties entered into a written construction contract to build the defendant’s residence. Defendant asked for changes to the contract and when seeing the potential new price, decided not to go ahead. Parties ended up cancelling the contract. Plaintiff asked for reimbursement of expenses for work already completed; defendant claimed he overcharged. No issue required for trial; plaintiff was mostly successful.
Hyra v. Rolston et al, 2023 MBKB 142: Defendants’ motion to dismiss the plaintiff’s action for inordinate and inexcusable delay or for long delay. Statement of claim was filed in 2011 alleging that the defendant was negligent in providing legal representation during a 2006 criminal harassment trial. Analysis of Rules 24.01 and 24.02(1). McKelvey, J. found long delay, and also considered if the delay was inordinate and inexcusable. Order granted.
Wright et al. v. Lemky et al., 2023 MBKB 140: Action by plaintiffs for unspecified damages in contract and tort over the sale of a business. Defendants counterclaimed in contract over nonpayment of invoice for inventory. Parties signed a handwritten agreement about competition and purchasing inventory at cost, drafted without lawyers. There was no definition of “cost”. Parties retained lawyers and signed a formal asset purchase agreement. Business had been making a small profit, but after the sale, operating expenses increased so much it lost money. Both parties relied on Sattva and other more recent decisions on contractual interpretation. Leven found the Claim failed and the Counterclaim succeeded.
Grant v. The Attorney General of Manitoba et al, 2023 MBKB 137: Motion by defendants to strike the amended amended statement of claim on the basis that it fails to disclose a reasonable cause action or is an abuse of process. Motion only relates to the provincial defendants. Action is for malicious prosecution. Motion dismissed.
Parres v. Rossington and Ross Industries Ltd., 2023 MBKB 134: Claim for injuries sustained in a fall from a commercial building. Plaintiff claims he fell to the ground when the stairs tipped over with him on them. Stairs had been recently replaced, but were not bolted to the building, as owner was deciding whether or not to demolish the building. Kroft, J. found defendant breached its duty under The Occupiers’ Liability Act and was liable for damages. Medical evidence admitted did not substantiate amount of damages plaintiff claimed. General damages of $8,500 awarded.
Utilebill Credit Corp. v. Rhys Pollard, 2023 MBKB 133: Plaintiff filed a statement of claim for judgment against the defendant for amounts allegedly owing under two lease agreements. Agreements had been signed after sales representative visited defendant’s home unsolicited. Defendant counterclaimed, arguing plaintiff fraudulently misrepresented the contracts. McCarthy, J. granted summary judgment in favour of the defendant, finding the plaintiff’s business practices were deceptive under The Business Practices Act. Plaintiff’s claims dismissed; agreements are void, and the plaintiff was ordered to pay special and punitive damages.
Dan Priel. Vicarious Liability: The Two Approaches. TheCourt.ca, September 13, 2023, viewed on September 13, 2023.
On June 17, 1999, the Supreme Court of Canada handed down two decisions dealing with the same topic. One of them, Bazley v. Curry, has become the leading Canadian case on vicarious liability; the other one, Jacobi v. Griffiths is less well-known.
Corporate and Commercial Law
Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2023 MBCA 76: Applicant seeks leave to appeal judge’s dismissal of applications for leave to appeal two commercial arbitration awards and to set aside part of the arbitration award, pursuant to s.48 of The Arbitration Act. Applicant argues that the judge acted on the wrong principle when he limited the record for the leave applications and erred by declining jurisdiction. Review of the record of the application. Parties had decided not to have a court reporter at the arbitration hearing, thus there was no transcript of the arbitration hearing. Despite the limited record, the judge provided comprehensive reasons that carefully reviewed each of the applicant’s arguments. Motion dismissed.
Stewart v. 6551450 Manitoba Ltd et al, 2023 MBCA 72: Dispute over effort by plaintiff to sell farmland for development as a quarry. Trial judge awarded plaintiff judgment against the defendants, determining that the transaction between the parties was a loan. Defendants raise 30 overlapping grounds of appeal. Consideration of necessity of piercing the corporate veil (para 21). Analysis of breach of contract in several instances, as well as breach of fiduciary duty. Appeal dismissed.
Ultracuts v. Magicuts, 2023 MBCA 71: Appeal by defendants of a judgment where they were found to have intentionally harmed the plaintiff by committing the tort of unlawful interference with economic interests. Claim is one in a series that has been ongoing since Wal-Mart bought out Woolco. Defendants argue seven specific errors committed by the trial judge. Appeal court found trial judge erred in two (failing to consider whether the impugned statements were statements of fact as opposed to opinion; failing to consider whether third-party relied on the alleged misrepresentations) such that it was not necessary to determine the other grounds. Appeal granted and claim dismissed.
Joshua Karton, Barry Leon, Joel Richler and Lisa C. Munro. Arbitration Appeals on Questions of Law in Canada: Stop Extricating the Inextricable! 2023 3-2 Canadian Journal of Commercial Arbitration 138.
Domestic arbitral awards are generally appealable only on questions of law or on questions of mixed fact and law where there is an extricable error of law. The standard for identifying extricable errors of law is therefore crucial to determining the scope of court intervention into commercial arbitrations. In recent cases, provincial courts of appeal have split on this important issue, with the BC Court of Appeal taking an expansive approach and the Court of Appeal for Ontario taking a narrow approach. This article surveys the case law and concludes that Ontario’s approach to extricable errors of law is preferable. The narrow approach is more consistent with Supreme Court of Canada jurisprudence, truer to the spirit of arbitration, and provides greater certainty to contracting parties. The Supreme Court of Canada should avail itself of an opportunity to resolve this inter-provincial split by espousing the Ontario approach, and to reaffirm that Canada is committed to an arbitration regime consistent with international standards, commercial efficiency, and effective dispute resolution in a party-chosen process.
La Presse inc. v. Quebec, 2023 SCC 22: Whether matters dealt with before the empanelment of a jury are covered under the automatic publication ban found in s.648(1) of the Criminal Code. Per Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.:
 The question before this Court is whether and, if so, how this automatic publication ban applies before the jury is empanelled, given the jurisdiction conferred by s. 645(5) of the Criminal Code upon trial judges, since 1985, to deal with certain matters before the empanelment of the jury:
(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.
 In the cases under appeal, numerous matters were dealt with before the empanelment of the jury. In Mr. Silva’s case, these included a Garofoli application and an application for a stay of proceedings for abuse of process. In Mr. Coban’s case, these included a constitutional challenge to another publication ban under s. 486.4(3) of the Criminal Code. Certain media outlets (the appellants before this Court) applied for orders or declarations that would allow the publication of information from the hearings on those matters. The judges in both cases dismissed the media applications, concluding that s. 648(1) applies before the empanelment of the jury. Information from the hearings could not be published until the juries retired for deliberations or were dismissed.
 This Court has addressed s. 648(1) in two cases, although neither of them resolves the interpretive issue in these appeals. In R. v. Brassington, 2018 SCC 37,  2 S.C.R. 616, footnote 1, Justice Abella noted the diverging approaches to this issue. In R. v. J.J., 2022 SCC 28, para. 283, Justice Brown, dissenting in part, treated s. 648(1) as applying before jury selection to information that would ordinarily be dealt with in the absence of a jury, though he provided little analysis. These appeals call upon this Court to resolve this interpretive issue in light of the provision’s text, context, and purpose — the context including the open court principle and the right to a fair trial.
 Here, Parliament has chosen to impose a temporary publication ban for the purposes of shielding the jury from information it has never been permitted to consider and promoting efficient trials.
 I conclude that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5). This conclusion follows from an understanding of the text of s. 648(1) when considered in its full context and in light of Parliament’s purpose. This interpretation does not expand the coverage of the publication ban: only matters that were captured by the ban prior to the enactment of s. 645(5) continue to be captured by it today. This interpretation has not “evolved” or “changed” in a way that departs from any previous meaning held by s. 648(1). The context of modern trials simply reveals s. 648(1)’s full temporal scope.
R. v. T.A.B., 2023 MBCA 81: Accused appeals conviction for two counts of sexual interference. He argues that the trial judge erred in her assessment of the victim’s credibility and failed to apply the standard of proof beyond a reasonable doubt. Trial judge’s credibility assessments are entitled to significant deference absent palpable and overriding error. Appeal dismissed.
R. v. Woodhouse, 2023 MBCA 80: Appeal under r. 45 of the Criminal Appeal Rules and rr. 37.3 and 38 of the Court of Appeal Rules (civil). Accused is appealing his conviction for possession of a motor vehicle knowing it was obtained by the commission of an offence. Accused argues trial judge erred in making a finding that he was in joint possession of the stolen vehicle. Crown joins the accused in the appeal. Appeal granted, new trial ordered.
R. v. E.G.C., 2023 MBCA 74: Appeal by accused to set aside his convictions for sexual assault, incest and sexual interference. Grounds of appeal were the claim of uneven scrutiny by the trial judge in his assessment of the credibility of the accused and the complainant, and that the verdict is unreasonable. Appeal dismissed.
R. v. Daley, 2023 MBKB 132: Sentencing decision where accused pled guilty to possession of cocaine for the purpose of trafficking. Accused is not a drug user and acknowledges that he was selling the drugs for profit. Since his arrest, accused has attended college and is working as an apprentice. Denunciation and deterrence are the paramount objectives in sentencing for this kind of offence. Crown is arguing for five years; defence argued for a conditional sentence of two years less a day. While accused’s post arrest activity has been prosocial, it does not mitigate the seriousness of the crime. Greenberg, J. sentenced him to four years.
R. v. Isaacs, 2023 MBKB 128: Application to exclude evidence seized from the accused’s residence, based on a deficient Information to Obtain the Search Warrant (ITO). Review of the principles to be applied in reviewing the decision of the JJP to issue the warrant, citing R. v. Pilbeam, 2018 MBCA 128. Description of the activity in the ITO that the JJP had to use to authorize the warrant. Bond, J. concluded that there was sufficient information; application dismissed.
R. v. Schofield, 2023 MBKB 127: Sentencing decision where accused pled guilty to possession of child pornography, making (written) child pornography, and luring. Both a pre-sentence report and a psychological risk assessment were filed with the Court to give an understanding of the accused’s circumstances. Primary sentencing principles are denunciation and deterrence. Accused argues that his substance use plus his cognitive deficits significantly impaired his judgment. Crown seeks a total sentence of 12.5 years, reduced to nine years after totality, as per Friesen (2020 SCC 9). Defence proposes two years plus a day. Harris, J. finds that a 10 years sentence is appropriate, reduced to eight years after totality.
R. v. Dew, 2023 MBPC 42: Sentencing decision after trial where accused was found guilty of the offence of luring. Offence has a mandatory minimum sentence of one year in jail. Accused filed a notice of constitutional question to have MMS not apply, arguing it violated s. 12 of The Charter. Significant analysis of the constitutionality of MMS where this offence is at the lower end of the spectrum of luring. Extensive review of determining a fit and proportional sentence. Devine, P.J. noted that not all jail sentences must be served in a jail. Accused was sentenced to 12 month CSO followed by two years’ supervised probation.
R. v. Kamyar, 2023 MBPC 39: Sentencing decision where accused pleaded guilty to possessing fentanyl for the purpose of trafficking. In a presentence Gardiner application, Devine, P.J. found he was operating at the high end of mid-level fentanyl trafficking. Relevant caselaw includes R. v. Parranto, 2021 SCC 46 and R. v. McLean, 2022 MBCA 60. Discussion of the damage trafficking in fentanyl does to Winnipeg’s vulnerable population. Accused’s level of involvement requires a significant sentence. Devine, P.J. imposed sentence of 11 years, minus presentence custody accounting for just over four years.
Jeff Buckstein. Ontario Court of Appeal Rules Trial Judge Erred With After-the-fact Conduct Evidence. Law360 Canada, 26 September 2023, viewed 27 September 2023. Case comment re R. v. Ethier, 2023 ONCA 600.
Robert Diab, Rose Morgan and Robyn Young. The Opiod Crisis and Section 7: Charter Implications of Safe Supply and Simple Possession. (2022) 55-2 U.B.C. Law Review 393.
We undertake in this paper to assess the constitutional validity of a decision to suspend the safe supply program and to refuse to issue a limited exemption from the offence of simple possession, as well as the validity of a new government’s decision to suspend either exemption while the opioid crisis continues. Does Canada’s Charter of Rights and Freedoms (“Charter”) guarantee a right to safe supply if a province is willing to provide it?15 Does evidence about the impact of criminalization on consumption patterns, in areas most affected by the opioid crisis, give rise to a Charter right to an exemption from prohibition in those areas? Is Charter litigation an appropriate tool for policy making in this context?
Metis Child, Family and Community Services v. C.P.R. et al, 2023 MBCA 82: Appeal of an order granting guardianship in competing applications for guardianship. Argument over whether the federal act, An Act Respecting First Nations, Inuit and Métis child, Youth and Familes, S.C. 2019, c. 24 applied to private guardianship applications. Appellant A.D.M. argued that the trial judge erred in find that it does not apply; Intervenor Peguis Child and Family Services intervened only to argue that it does apply. Appellant also wants to admit fresh evidence. Analysis of the importance of recognizing culture, identity, community and extended family. CA found that a variation hearing was the appropriate method to vary the order. Appeal dismissed.
Forster v. Forster, 2023 MBKB 138: Issue of whether an agreement with respect to the amount of a family property equalization payment precludes a claim for interest. Parties previously negotiated the equalization payment. Review of s.20(3) of The Family Property Act. Review of the principles to apply for interpretation of agreements as discussed in Matic, Bibeau, Christie and Sattva. Master Patterson found it would be equitable to award the respondent with interest on the agreed equalization payment effective as of the date of negotiating the agreement.
Rempel v. Rempel, 2023 MBKB 135: Master’s report on cohabitation and separation dates. Initial issue regarding the scope of reference dealing with dates of separation between the parties, which may affect the value determined for property purchased by the petitioner before cohabitation. Parties agree on final date of separation, but disagree on extent of separations between date of marriage and final separation. Master Goldenberg accepted evidence of some of the evidence put forward by the petitioner, but not all.
Jennifer Koshan and Deanne Sowter. Torts and Family Violence: Ahluwalia v. Ahluwalia, Slaw.ca, 15 September 2023, viewed 28 September 2023.
Intimate partner violence (IPV) takes many forms, all of which cause harm to survivors (who are disproportionately women and children). In August, the Minister of Justice and Attorney General of Canada declared that gender-based violence is an epidemic. However, only certain forms of IPV were subject to legal sanction historically – primarily physical and sexual abuse, although sexual assault against a spouse was only criminalized in 1983 (see Criminal Code, RSC 1985, c C-46, s 278). …
It is within this context that in Ahluwalia, Justice Renu Mandhane found that a new tort of family violence should be recognized, and that compensation should be paid by a husband to his wife, who had suffered years of physical, emotional, and financial abuse and coercive control at his hands. However, in July this decision was overturned by the Ontario Court of Appeal. Writing for a unanimous court, Justice Mary Lou Benotto (Justices Gary Totter and Benjamin Zarnett concurring) found that it was not necessary on the facts of the case to affirm a new tort, given that existing torts were available to ground an award of damages for the wife. This post examines the Ahluwalia decisions and their implications going forward, including a discussion of myths and stereotypes about IPV that are both repudiated and reinforced in each decision.
Michaela Keet and Jeff Edgar. Mediator Discretion in Cases Involving Intimate Partner Violence. (2023) 35:1 Can. J. Fam. L. 131.
Mediation is a centerpiece in the “agreement culture” around family law litigation. It is recognized by the courts as offering inherent protections to deal with challenging cases such as those involving intimate partner violence. To learn more about how mediators invoke and view the process’s protections, we conducted a series of interviews with senior mediators, trainers, and policymakers in the field. This article synthesizes current views within the mediation field about how to identify and screen for IPV, and implications for process management.
Wills, Trusts & Estates
David Rosenbaum. Pre-litigation Third-party Discovery Order Disallowed in Estate Case. Law360 Canada, September 18, 2023, viewed September 25, 2023. Comment on White v. White Estate, 2023 ONSC 3740.