News

• CLIA Peace of Mind Virtual Conference (CPD 401) / GRATUIT – Conférence virtuelle de l’AAJC sur la tranquillité d’esprit (CPD 401) – “The Canadian Lawyers Insurance Association (CLIA) is pleased to be partnering with The Law Society of Saskatchewan to bring the CLIA Peace of Mind Virtual Conference. to members in our subscriber jurisdictions. This free half-day virtual conference will provide sessions to help improve your practice and avoid errors.”

• Small and Solo Firm Forum, October 23 – “To kick off this series we will host a technology panel to discuss practical tips and advice for effectively navigating the growing technological demands and requirements for legal practice.”

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.

Do laws apply to ghosts?

With the season changing comes colder weather, falling leaves, pumpkin spice, and spooky ghosts. While it may be unlikely that you will encounter legal issues with most of these, you never know. Fortunately, the library is always here for help with whatever scenario comes your way. If you ever need precedents litigating with ghosts, may we present a case from 1002 in Iceland: the tale of Thôroddur, a powerful chieftain who overstayed his welcome after returning from the afterlife.

The chieftain had gone out with several companions sailing into a fjord when they became shipwrecked and drowned. His widow, Thuridur, and son afterwards hosted a traditional funeral feast in the banquet hall. On the first night of the feast as the fire was lit, the spirits of Thôroddur and his companions entered the hall. This was welcomed by the widow and others as good luck. The chieftain stayed for the feast, saying nothing, and then left as the fire died out. The next night the same thing happened, then continued for several nights until people began to grow worried. Bad luck followed these visits and Thuridur became ill. So, what do you do when ghosts won’t leave? Call… your lawyer of course. The son called his uncle Snorri, an eminent lawyer,  who held a trial and summoned the ghosts. After evidence was presented, witnesses questioned, and verdicts delivered, the ghosts rose and left, never to come back.

To read the full tale, see the 1934 Canadian Bar Review article here, A Trial of Ghosts, or for more ghost stories, and to find out what happens when you murder a ghost, check out “The Murder Oo A Ghost”, also from Canadian Bar Review.

For legal research help, supernatural or otherwise, you can always contact us at library@lawsociety.mb.ca

Latest Current Awareness

Journals

We also have access to a number of legal journals in print and digital. See below for the latest issues of popular titles. Members can request copies of articles under fair dealing guidelines by emailing library@lawsociety.mb.ca

Court Notices & Practice Directions

Court of Appeal

Notices

• • • • September 9, 2024 – Amendments to the Court of Appeal Rules (Civil))

Court of King’s Bench

Notices

• • • September 9, 2024 – Version 7 of the Mandatory Standard Clauses for Orders in Family Proceedings (Family Division Orders)

New Library Resources

Recently Aquired Print Titles

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 49 Issue 2

Music Borrowing and Copyright Law: A Genre-by-Genre Analysis. Edited by Enrico Bonadio & Chen Wei Zhu.

 Reviewed By
Hannah Rosborough
Instruction & Scholarly Communications Librarian
Sir James Dunn Law Library
Schulich School of Law

“…Music Borrowing and Copyright Law: A Genre-by-Genre Analysis is an essential addition to any IP or music collection in an academic library. The novelty and value of this curated
collection is that it extends the discussion of music borrowing to new, often overlooked regions and genres of music. It also addresses copyright through the intertwining historical cultural practices and norms that have since been overlooked. The chapters in this collection would make excellent reading for courses on IP, copyright, music history, and specific genres of music. Finally, anyone interested in music or IP at a general level will find this collection fascinating.“

Click here for the full review

Events

Upcoming Events

Substantive Law

Administrative Law

Acheson v. The Government of Manitoba, 2024 MBKB 114: Proposed class action proceeding (not yet certified). Two motions were heard. Defendant brought motion to strike out the statement of claim without leave to amend. Plaintiff brought a motion seeking to join the City of Winnipeg as a defendant, which is being resisted by Winnipeg with additional grounds that plaintiff is statute barred from doing so. Chartier J. concluded that the plaintiff’s claim should not be struck, and plaintiff’s claim raises a legitimate issue that could not have been adequately addressed through available processes. However, some of plaintiffs claims were struck as they did not meet legal standards. Plaintiff allowed to join Winnipeg as a party was based on their involvement collections and the early stage of the proceedings.

Civil Litigation

Jhanji v The Law Society of Manitoba, 2024 MBCA 64: Plaintiff, a lawyer suspended from practice, appealing decisions made in ongoing litigation with defendant, the regulator of the legal profession.  Parties are to arrange case management conference to address who will bring a motion to have the plaintiff declared a vexatious litigant.

Sterling Parkway Residences Inc. v. Boretta Construction 2002 Ltd. et al, 2024 MBKB 120: Motion by applicant for payment out of a portion of the money paid into court to discharge two builders’ liens registered by respondent. Issues: 1) whether holdback money paid into court as alternate security lost its character as holdback money, and 2) if not, can it be distributed to the sub-contractors before litigation between the parties is determined and questions of deficiencies and set-offs is resolved. Greenberg, J. found that although the holdback money does not lose its character when paid into court, it cannot be released unless applicant substitutes another form of security for the lien. Greenberg, J. is of the view the alternate security should be maintained until entitlement to the money is determined. Motion dismissed.

Bains and 10031670 Manitoba Ltd. v. Tworek et al, 2024 MBKB 111: Decision concerning defendants motions seeking orders to stay two related proceedings against them. The matter is before the Court of King’s Bench at the direction of the Manitoba Court of Appeal (2023 MBCA 102 and 2024 MBCA 12). Issues of jurisdiction simpliciter, the doctrine of forum non conveniens and the effect of the arbitration clause in agreements signed by plaintiff and defendants. McKelvey, J. used the relevant jurisdictional test in Van Breda to find the defendants were unable to rebut the presumption of jurisdiction and Manitoba is the appropriate jurisdiction based on the foundation that the consequences and impacts of the allegations were suffered in this province. The arbitration clauses were found to be contradictory to one another and not applicable, as the allegations do not arise out of or relate to the agreements. Re: forum non conveniens, McKelvey, J goes on to state, “[a]s was held in the Blonde decision, “the party asking for a stay on the basis of forum non conveniens must show that the alternative forum is ‘clearly more appropriate’ (Van Breda at para 108)” (para. 31).” Motions dismissed.

Schneider et al. v. Moffatt, 2024 MBKB 106: Decision on defendant’s motion to dismiss action for delay, pursuant to KB Rule 24. Time period relied on by defendant is Jan 20, 2020, when statement of defence was filed, to Jan 25, 2024, the second pre‑trial conference. Plaintiffs argued their Dec 2023 pre-trial brief and request to schedule a pre-trial conf. was a significant advance in action. Bond, J. found both parties share responsibility for failure to complete examinations for discovery by deadline ordered at first pre-trial conf. in Mar 2023. The delay is not inordinate and inexcusable. Presumption of prejudice does not apply and evidence does not establish significant prejudice to the defendant due to the delay. Montion dismissed.

N.-S. v. B.N., 2024 MBKB 124: Reasons for setting aside a Protection Order granted by a Judicial Justice of the Peace on February 23, 2024, against the 14-year-old respondent. Requirements as to explicit statements in s. 7(2) of the Domestic Violence and Stalking Regulation, were not met. The complainant, 14 years old, old enough to give evidence under oath or affirmation in a legal proceeding did not give evidence. Remple, J. was not satisfied an application without notice for a Protection Order under the Domestic Violence and Stalking Act, based only on hearsay evidence, could reach the standard of the balance of probabilities.

N.L.W. v. B.N., 2024 MBKB 123: Reasons for setting aside a Protection Order granted by a Judicial Justice of the Peace on February 23, 2024 against the 14-year-old respondent. Requirements as to explicit statements in s. 7(2) of the Domestic Violence and Stalking Regulation, were not met. The complainant, 14 years old, old enough to give evidence under oath or affirmation in a legal proceeding did not give evidence. Remple, J. was not satisfied an application without notice for a Protection Order under the Domestic Violence and Stalking Act, based only on hearsay evidence, could reach the standard of the balance of probabilities.

Rochelle v. The Rural Municipality of St. Clements et al, 2024 MBKB 118: Motion to compel disclosure. Applicant refused based on solicitor-client privilege. Goldenberg, A.J. found that the applicant had waived solicitor-client privilege over some requested documents by putting his state of mind at issue regarding when he first discovered various alleged material facts. Applicant seeks an extension of the limitation period while trying to shield potentially relevant information relating to his knowledge of the material facts upon which the proposed action is based. Without access to the documents, the respondents cannot challenge the applicant’s assertion. Applicant directed to disclose requested documents.

Criminal Law

R. v Hyra, 2024 MBCA 69: Accused appeals an order refusing to grant the extraordinary remedies of certiorari and mandamus, and an order denying the setting aside of the refusal. Writing for the court, Mainella, J. highlighted 3 points: 1) accused’s conviction occurred after a trial in a superior court. Extraordinary remedies do not lie against a decision of a superior court judge. 2) Parliament has limited the availability of certiorari to a narrow set of circumstances. 3) there are alternative remedies to the accused’s claims of a miscarriage of justice. Appeal and motion dismissed.

R. v Chief, 2024 MBCA 67: Crown sentence appeal. Accused pled guilty to three offences arising out of his sale of a modified starter pistol with nine bullets to an undercover police office. Pfuetzner, J.A. found the judge made a reversible error in her determination of a fit and proportionate sentence. Crown’s sentence appeal allowed in part. Sentence altered to three and one-half years’ imprisonment, which was stayed due to significant personal growth and rehabilitation of the accused.  Original probation order set aside but the other ancillary orders remain.

R. v Peters, 2024 MBCA 68: Reasons for refusing a leave for appeal. Crown did not meet the criteria for leave to appeal. In this particular case varying the sentence would have little real positive impact to the administration of justice and would impose a substantial hardship.

R. v. Pelletier-Monkman, 2024 MBCA 66: Appeal of conviction by a jury for second degree murder. Offence occurred when accused intervened in an in-progress assault by stabbing the person committing assault. The situation was recorded on video. Grounds for appeal: it was unreasonable for jury to find either a) Crown proved the stabbing of the victim was not a reasonable response; or b) the requisite intention for murder. Test for whether verdict is unreasonable is whether “the verdict, based on the whole of the evidence, is one that a properly instructed jury, acting judicially, could not reasonably have rendered” (R v Mitchell, 2023 MBCA 10). The court found the jury’s verdict was not unreasonable based on the evidence before it. Appeal dismissed. 

R. v. C.A.S., 2024 MBKB 128: Accused was acquitted of charges of sexual assault and sexual interference. Witness credibility was a central factor.

R. v. Bone, 2024 MBKB 134: Defendant found guilty of second-degree murder. McCarthy, J. discusses at length the frailties of eyewitness evidence and the defense of provocation when considering a charge of manslaughter.

R. v. Scribe, 2024 MBKB 107: Sentencing decision. Accused pled guilty to manslaughter. Crown applied to have accused be found a dangerous offender and have the sentence be an indeterminate period of detention. Criteria for dangerous offender status are met by accused’s serious personal injury offence conviction, and the pattern of behavior established by accused’s 14 other convictions involving violence, threats, and weapons, as well as his record of violence in institutions. Accused was sentenced to detention for an indeterminate period of time on the predicate offence of manslaughter.

R. v. T.S.A., 2024 MBKB 105: Sentencing decision. Accused pled guilty to 1 count sexual interference. Complainant is the accused’s son, who was 8 at the time of the offence. Accused had no prior criminal record and was a devout Mormon until 2020. Since that time, accused engaged in copious drug and alcohol use, experienced drug-induced psychosis, and received a diagnosis of schizophrenia. PSR indicates accused poses a high risk to re-offend. Mental health issues accounted for when considering moral culpability. Accused received a go-forward sentence of two years, followed by three years supervised probation. Accused is prohibited from working in a position of trust or authority with children under 16 for a period of 20 years.

R. v. Bruce, 2024 MBKB 104: Accused pled not guilty to multiple sexual offences, totaling 12 counts against three separate complainants. Bond J. found accused guilty on all counts, except count 7 which was stayed by the Crown. It was emphasized that accused did not take reasonable or any steps to ascertain the true ages of the complainants and dismissed his testimony as not credible, noting inconsistencies and evasiveness. The importance of the presumption of innocence and the burden of proof, which remained on the Crown was highlighted in the decision.

R. v. Findlay, 2024 MBPC 70: Sentencing decision. Defendant, a teacher at the time of the offence, is convicted of sexual assault and sexual interference for having a sexual relationship with a 15-year-old student when she was 30 years old. Defendant maintains her innocence and claims she was the victim of violent sexual assaults by the minor victim. Krahn, P.J. ordered a sentence of 5 years due in part to the defendant’s high moral culpability and lack of remorse or insight into the harm caused.

R. v. Cousins, 2024 MBPC 69: Accused is charged with one count of fraud over $5000 and one count of theft over $5000. Crown asserts the defendant, a cashier for MB provincial court at the time of incidents, stole cash payments and took steps to hide her actions. All evidence in the case is circumstantial. Rusen, P.J. determined the Crown did not meet its burden, there are other reasonable inferences that can be made for the incidents that do not point to the guilt of the defendant.

R. v. W.M., 2024 MBPC 67: Sentencing decision. Defendant pled guilty to luring his stepdaughter, who was 17 years old at the time of the offence. Krahn, P.J. took into consideration the defendant’s Gladue factors and PSR which showed community mentorship and involvement. Consideration was also given to the harm to the victim. The psychological distress and estrangement from her immediate family due to the offence. Krahn, P.J. highlighted the need for deterrence and the recent MBCA decision in R v. Dew. Defendant was given a 21-month sentence, followed by two years of supervised probation and other conditions.

R. v Gomes, 2024 MBPC 66: Sentencing decision. Defendant pled guilty to discharging a firearm with intent, possession of a weapon contrary to an order, and flight from peace officer. The defendant has shown a pattern of escalating offences, partly due to addiction, for which he has been previously incarcerated. Due to the gravity of the offences and the high moral culpability of the defendant, the total sentence is 10 years incarceration, less time served.

Family Law

Wenzel v Wenzel, 2024 MBCA 65: Appeal of an order pronounced by a motion judge. Motion judge dismissed the respondent’s notice of motion to vary a care and control order, and child support payment/arrears, with costs fixed, inclusive of disbursements, in favour of the petitioner. Parties have a long history of litigation relating to their family law issues, going back to 2010. Writing for the Court, Rivoalen, C.J.M. noted that at the time of the motion, one child the care and control order concerned was already and adult and the other was nearly an adult. The children are both now adults, so the issue of care and control is moot. The Court found the motion judge did not err when he dismissed the respondent’s notice of motion to vary child support and arrears of child support. Appeal dismissed with costs in favour to the petitioner.

Lavallee v. Lavallee, 2024 MBKB 131: Issues of parenting time and decision-making authority regarding therapeutic intervention. Respondent currently has majority of the parenting time. The elder child does not currently see the petitioner and does not wish to, the younger child would like to increase her time with the petitioner. The Family Resolution Service evaluator noted that both children appear to be taking on the role of caretaking their parents. Decision-making authority, on an interim basis, with respect to therapeutic intervention for each of the two children, shall be within the discretion of the respondent. Current allocation of parenting time is left in place on an interim basis, preceding the trial scheduled for the fall of 2025.

Richardson v. Yeo, 2024 MBKB 130: Issues of valuation and shareability, equalization payment. One issue, among others: petitioner had a loan related to property she transferred to family during the relationship. The loan did not transfer, and the petitioner remained responsible for the loan at separation. It was found to be a shareable debt under section 11(1) of The Family Property Act.

Polowy v. Kelly, 2024 MBKB 117: Respondent seeks summary judgement on the issue of family property.  Basis for the motion is petitioner’s pleadings were filed outside of the limitation date prescribed in The Family Property Act. Thatcher, J. found a summary judgement to be the appropriate to decide the threshold issue of if there should be a property accounting under The FPA. I was found that petitioner established a genuine issue for trial. Thatcher, J. rejected respondent’s motion for summary judgment, finding that the ongoing negotiations and agreements between the parties, as well as the equitable doctrine of estoppel, prevented the respondent from relying on the limitation period to bar the petitioner’s claims.

The Director of Child and Family Services v. P.L.G. et al, 2024 MBKB 109: Motion for disclosure. Main issue is whether a court order is necessary for information to be provided to an Indigenous governing body in relation to an Indigenous child before a significant measure is taken by a service provider in relation to the child. Goldenberg, J.A. decided a court order is not necessary for the CFS to provide disclosure to an Indigenous governing body in accordance with the Federal Inuit and Metis Children Youth and Families Act and the Manitoba CFS Act.

Wahoski v. Wahoski, 2024 MBKB 103: Decision concerning a 2023 family property Reference Order (Reference), accounting of assets and liabilities under the Family Property Act. Among the contested assets is farmland known as “SW ¼”.  It was found there was a 2022 “Order of Reference” (2022 OR) to value and determine if the SW ¼ was a shareable asset with the Wife. The Reference was pronounced when the 2022 OR had already been granted. Patterson, A.J. erred on the side of caution and permitted the issue of the SW ¼ be one of the contested items to be determined at the Reference. Accountings detailed in Schedules “A” and “B”. Trial to commence 16/9/2024.

Wills, Trusts, and Estates

Ford et al v. Ford, 2024 MBKB 129: Applicants were ordered to pass accounts for the approximately three years they served as committees for their mother before being replaced by Public Guardian and Trustee of Manitoba (PGT) in 2019. They failed to do so until this hearing. Letters of Administration were granted to PGT when their mother passed in 2021. Applicants are asking for compensation for work as committees and legal fees. Applicants failed to fulfill their fiduciary duties as committees, and are denied compensation. PGT’s legal expenses were deemed reasonable and payable from the applicants’ shares of the estate. The applicants’ legal expenses were partially approved, recognizing that timely compliance would have warranted reasonable legal fees.

Legislation

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The 1st Session of the 43rd Legislature resumed  on Wednesday, October 2, 2024.

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