News

A Provincial General Election Has Been Called. Election Day Is October 3: “Manitoba’s 43rd provincial general election has been called today and will be held on Tuesday, October 3, 2023. Advance voting runs for eight days, from Saturday, September 23 until Saturday, September 30.”

Question of the Month

Legal research is a big part of the services we provide here at the Manitoba Law Library. This section presents one of the interesting queries we receive, and highlights how we can point you towards helpful resources, or suggest answers for difficult questions. If you have a legal research question contact us at library@lawsociety.mb.ca

Q: What is the correct procedure for appealing to the Supreme Court of Canada?

A: There are a number of resources available to help understand the practice and procedure of appeals. Our print collection includes Summary appeals and trial advocacy, The conduct of an appeal — 4th ed. and Supreme Court of Canada Practice. In addition to these, texts from the Canadian Judical Council may also be helpful to review, The Appellate Craft and Well-Run Appeals by J.E.Côté are available online.

 A recent article from the Canadian Journal of Political Science focuses on the roles on interveners at the SCC, Who Intervenes in Supreme Court Cases in Canada by Danielle McNabb.

 With the patriation of the Constitution in 1982, the Supreme Court of Canada (SCC) inherited extraordinary political powers. In response to the Court’s expanded power of judicial review, there was a sizeable increase in the number of political actors “intervening” in SCC cases. Scholars of Canadian law and politics are deeply divided on whether civil society participation in the courts—particularly as intervenors—is democratically legitimate.

New Library Resources

New Online Titles

Fundamentals of National Security Accountability in Canada By Craig Forcese
available for members on vLex

“This book is about the democratic regulation of Canada’s security and intelligence agencies at the federal level. It serves as a primer or guidebook, both for those involved in Canada’s national security system and for those with an interest in it. The book proposes six values that underlie Canada’s national security system and inform (or should inform) both the conduct of security service activities and the approach taken by bodies conducting democratic regulation of them. The book also discusses how democratic regulation of the security services operates in Canada, focusing on executive oversight, judicial and quasi-judicial control and scrutiny, specialized national security review, and concluding with other forms of scrutiny. It describes the background to these functions and outlines considerations properly informing their design and conduct. The book emphasizes how democratic regulation of the security services can serve as a mechanism for nudging progressive improvement in a sector often insulated from more conventional performance pressures.” – from publisher

Book Reviews

Review taken from the Canadian Law Library Review, vol 48 no 2

Guide to the Law and Practice of Anti-SLAPP Proceedings. David A. Potts & Erin Stoik. Toronto: Irwin Law, 2022. xxxi, 528 p. Includes annotated bibliography, table of cases, and index. ISBN 9781552216323 (softcover) $75.00; ISBN 9781552216330 (PDF) $75.00.

Reviewed By Emily Landriault, Research Librarian (Law) Brian Dickson Law Library  University of Ottawa

“Since this legislation is relatively new in both Ontario and British Columbia, and there are few (if any) other guides of this kind, Guide to the Law and Practice of Anti-SLAPP Proceedings is an extremely valuable text…. The text relies heavily on lengthy passages pulled from pertinent legal decisions, with the authors providing framing and contextual paragraphs. Often, these passages feel like judges directly providing advice to the reader. Many of these passages are followed by lists of suggested decisions on the same legal point, which is useful for practitioners and academics alike.”

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Substantive Law

Administrative Law

Thorkelson v. The College of Pharmacists of Manitoba, 2023 MBCA 69: Applicant’s pharmaceutical licences were cancelled by the respondent. Application judge set aside that decision. Respondent appeals the decision as well as part of the costs awarded against it. If College is successful, applicant cross-appeals. Application judge agreed with the College that the applicant had committed the offence, but determined that the penalty of cancelling the applicant’s license was not appropriate. Discussion of appellate standard of review and whether application judge should show deference to the Council’s decision. Appeal dismissed.

 

Elan Shemtov. Some Arguments in Favour of a Correctness Standard for Procedural Fairness Issues, (2023) 36 Can. J. Admin. L. & Prac. 135. (WLC – LSM members can request a copy.)

In Abrametz (2022), the Supreme Court applied Vavilov in finding that the correctness standard applies to procedural fairness issues. This indirectly answered the question by way of the statutory right of appeal. This article will directly answer the question and the appropriate standard of review regardless of any statutory right of appeal.

Civil Litigation

College of Registered Nurses of Manitoba v. Hancock, 2023 MBCA 70: Appeal of a vexatious litigant order. Mainella, J.A. reviews the history of vexatious litigation generally, as well as this particular matter. Discussion of the relevant legal principles and a review of the legislative history in Manitoba and other jurisdictions. Appeal dismissed.

 Kutryk v. Ehr, 2023 MBKB 124: Motion by defendant requesting an action be dismissed for delay. Plaintiff filed a civil claim against the defendant based on the torts of battery, assault, intentional infliction of emotional distress and conversion. Considerable review of the law around dismissal for delay. Lawyer for defendant wished to enter evidence by submitting an affidavit; affidavit struck. Master Patterson cited The Workers Compensation Board v. Ali, 2020 MBCA 122 as providing a detailed review of Rule 24.01. Master Patterson found that the delay was not prejudicial, and the plaintiff’s explanations were reasonable. Motion dismissed.

Weremy v. Manitoba, 2023 MBKB 122: Motion to approve a settlement regarding a class action relating to the Manitoba Developmental Centre. Motion was not contested by the defendant. Key provisions are a $17 million settlement fund; individual compensation ranging from $3,000-$85,000; receipt of compensation will not impact a claimant’s eligibility for social assistance benefits; claims process will be paper-based and user-friendly. Analysis of whether the settlement agreement is fair and reasonable and in the best interest of the class. Motion granted.

Canadian Western Bank et al. v. Capitol Steel Corporation, 2023 MBKB 121: Plaintiffs seek summary judgment granting their claim regarding the lease of four trucks to the defendant. Defendant argued there are genuine issues for trial. Parties entered into a lease for a three year term; defendant stopped making payments on the lease less than six months later. Plaintiffs seized the trucks and sold them. Grammond, J. must determine whether the lease was fundamentally breached and repudiated because of mechanical issues. She finds that there is a genuine issue for trial; motion dismissed.

Daku v. Saskatchewan Government Insurance Corporation, 2023 MBKB 120: Plaintiff’s claim for statutory accident benefits were denied by SGI. Accident occurred in Winnipeg, so plaintiff made claim in Manitoba. Review of limitation periods for the different jurisdictions as well as procedure for appealing denial of a claim. Discussion of when it is appropriate to transfer jurisdiction to a different location. Grammond, J. granted defendant’s motion to strike and dismissed plaintiff’s motion to amend.

Opaskwayak Cree Nation v. Razar Contracting Services Ltd., 2023 MBKB 119: Applicant seeks an interpleader order to pay funds into court. Applicant wishes to be removed from litigation regarding the other respondents, subcontractors who claim they have not been paid by Razar. Interpleader Order covered by Rule 43, and is a discretionary order. Validity of claims is not to be decided at this time, only need to determine that they are not frivolous. Applicant is ordered to pay the full amount of funds into court, after which its liability in respect of the funds is extinguished.

William Frank Ralph O/A Motorwerks et al. v. The Manitoba Public Insurance Corporation, 2023 MBKB 116: Claim relating to the total loss of a vehicle bearing a dealer’s plate, because of a tornado. Coverage was denied on the basis that the use of the plate did not comply with applicable legislation. Plaintiff Mr. Ralph has carried on business as a “dealer” since 1998. Plaintiff Ms. Ralph purchased the vehicle in 2017. Mr. Ralph listed it for sale but it did not sell. Thorough consideration of s.64(2) of The Drivers and Vehicles Act, C.C.S.M. c. D104. Review of the “modern principle” of statutory interpretation. Grammond, J. finds that the plaintiff was entitled to damages in the amount of the actual cash value of the truck.

6165347 Manitoba Inc. et al. v. The City of Winnipeg et al., 2023 MBKB 114: Action under the tort of misfeasance in public office. Plaintiff, a commercial developer, had acquired land from the City in a land swap, and planned to develop a multi-family development. Plaintiffs and the city were unable to finalize the plans to their mutual satisfaction. Plaintiffs argued that the defendants acted deliberately and unlawfully to slow down the process. Defendants argued that the process was lengthy and complex because of the nature of the development. Test for misfeasance in public office set out in Roncarelli v. Duplessis, [1959] SCR 121. McCarthy, J. is satisfied on a balance of probabilities that the evidence as a whole establishes that the conduct of two of the defendants rises to the level of misfeasance, and therefore, that the City is vicariously liable for the conduct of these employees (para 46).

Erika Chamberlain. Case Annotation: Hansman v. Neufeld, (2023) 90 C.C.L.T. (4th) 301 (WLC – LSM members can request a copy).

In Hansman v Neufeld, the Supreme Court of Canada had its second chance to weigh in on the process for deciding so-called anti-SLAPP motions. These motions, created by statute in Ontario, Quebec, and British Columbia, allow courts to dismiss claims that are strategically brought to discourage defendants from making expressions on matters of public interest. While the majority decision purported to follow the framework set out by the Supreme Court in 1704604 Ontario Ltd v Pointes Protection Association, it departed from that framework in both form and substance. Most notably, in weighing the potential harm to the plaintiff against the public interest in protecting the defendant’s freedom of expression, the majority was heavily influenced by its support for the defendant’s cause, i.e., protecting the interests of transgender youth. Justice Côté, in dissent, argued that it is inappropriate for a court to weigh in on the relative value of the parties’ expressions, and that those who express controversial, or minority opinions should not thereby forfeit the right to have their defamation claims tried on their merits.

Bruce Maxwell, Paul Clarke and Mark Anderson. Teaching and Learning about Religion in Secular Public Schools: Law-Based Guidelines for Teachers and School Officials. (2023) 32 Educ. & L.J. 21 (WLC – LSM members can request a copy).

In response to increasing religious diversity and the occasional resultant tensions, an international movement has arisen advocating for religious education in public schools as a means to promote religious literacy and intercultural understanding. Complicating these educational benefits, however, is the fact that teachers and administrators often face understandable uncertainty, even apprehension, about how to treat potentially contentious subject matter in an educationally responsible and rights-respecting fashion. This article addresses this anxiety by laying out a set of law-based guidelines for teaching about religion in Canadian public schools.

 

Criminal Law

R. v. Deol et al., 2023 MBKB 125: Sentencing decision for conviction for possession for the purpose of trafficking a significant amount of fentanyl and MDA. Accused’s pre-sentence report found him to be at medium risk to re-offend. Crown asked for 22 years, defence, 12 years. Canvas of numerous decisions on sentencing where fentanyl was involved, including R. v. Parranto, 2021 SCC 46 and R. v. McLean, 2022 MBCA 60. Counsel agree that proportionality is paramount, followed by denunciation and deterrence. Accused is sentenced to 14 years for the fentanyl offence, and eight years for the MDA, concurrent, less credit for time spent in pre-trial custody.

R. v. Myerion, 2023 MBKB 117: Sentencing decision where accused pled guilty to a charge of manslaughter. Accused was one of several people who took part in an unprovoked attack. Offence was particularly heinous. Presentence report and accused’s criminal record were used to understand his background. Aggravating factors included the senselessness of the offence and the accused’s susceptibility to negative influences. Mitigating factors were pleading guilty and his demonstrated ability to comply with community sentences. Crown submitted an appropriate sentence is 14 years; defence argued for six. None of the cases cited supported the length of the Crown’s request. Bock, J. found a custodial sentence of seven years less credit for pre-sentence custody was appropriate.

R. v. Bissonnette, 2023 MBKB 113: Ruling on Crown’s similar fact application. Test for admission involves balancing the probative value of the evidence against its prejudicial effect (R. v. Handy, 2022 SCC 56, paras. 42 and 49): what is the probative value of the evidence; what prejudice would result from the admission of the evidence; and is the probative value outweighed by the prejudicial effect. Review of the background regarding the timing of the application and the evidence to be considered, and a glossary of terms used in this judgment. Application granted.

R. v. Edwards, 2023 MBKB 111: Sentencing decision where accused pleaded guilty to manslaughter. Victim was a homeless man unknown to the accused. Consideration of R. v. Parker, 2023 MBCA 51 for the principles of proportionality in the use of a firearm in a criminal offence; Gladue and Ipeelee for the circumstances of an Indigenous offender. Rempel, J. finds this offence is in the mid-level range for manslaughter. Accused is sentenced to 12 years less pre-sentence credit.

R.  v. E.T., 2023 MBPC 41: Sentencing decision for young person who plead guilty to the offence of distributing child pornography. Bayly, P.J. found that the material is a “violent offence” within the meaning of ss. 2 and 39(1)(a) of the Youth Criminal Justice Act, and that a custodial sentence is available. Crown seeks nine month custody and supervision order followed by two year period of supervised probation; defence seeks a sentence of two years of supervised probation. Purpose of a sentenced under the YCJA is to hold a young person accountable, and promote their rehabilitation. Sentence imposed is two year period of supervised probation with conditions.

R. v. Le Strat, 2023 MBPC 38: Motion by accused seeking a stay of proceedings for delay. Information was sworn July 21, 2022 and trial is set to conclude February 23, 2024. File was passed among several Crown attorneys. Net delay exceeded 18 months. Frederickson, P.J. found no defence delay; charges were stayed.

R. v. Campbell, 2023 MBPC 27: Sentencing decision after guilty plea for impaired driving causing death and operating a conveyance while prohibited. Accused was bound by a 9 month Conditional Sentence Order (CSO) at the time of the offence. Crown is asking for six years plus a 15 year driving prohibition; defence suggests COS, time served or custody in a provincial facility. Sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Rambow, P.J. sentences accused to three years less pre-sentence custody for impaired driving causing death, and an additional year concurrent for operating a conveyance while prohibited.

Nadya Gill. Not Criminally Responsible Due to Mental Disorder & Alek Minassian. (2023) 71 C.L.Q. 52 (WLC – LSM Members may request a copy).

This article will explore the defence of not criminally responsible due to mental disorder focusing on the facts of the recent criminal trial of Alek Minassian. Minassian was charged with killing several persons after driving a small van into a crowd of pedestrians in a major urban intersection in Toronto. Minassian advanced the defence that he was “not criminally responsible” on account of a mental disorder, namely “autism spectrum disorder”, and that his condition deprived him of the capacity to make a rational choice.

John L. Hill. Sex Assault Decision Focuses on Sentencing With Respect to Rehabilitative Programs. Law360 Canada, August 23, 2023, viewed on August 24, 2023. Comment on R. v. J.W., 2023 ONCA 552.

The Ontario Court of Appeal has definitively shed light on two important issues that have concerned criminal trial counsel of late: (1) Is it proper to extend a sentence when treatment programs would take longer to administer than the usual sentence would allow, and (2) is there to be a fixed calculation for enhanced pretrial custody credits?

Family Law

Hudson v. Hudson, 2023 MBKB 123: Potential order for costs against an unsuccessful third party who sought access to family division file. Third party filed a request to access the file involving her former partner, the respondent in this action. He is the father of her child. The respondent and the third party are in current litigation regarding the parenting arrangements for this child. Costs are determined by Rule 57.01(1). Such an application for access to a FD file involves balancing the interests between the privacy rights of an individual litigant and the open court principle. Rempel, J. rules that applicant has other options to pursue for more information about the father. He would make an order for costs in the amount of $500, or double the tariff for an attendance at an uncontested hearing, plus a further $150 to cover the briefs prepared by counsel at the judge’s request.

Barber v. Barber, 2023 MBKB 115: Dispute over the extent and timing of property related disclosure. Petitioner sought specifics of respondent’s farming property, including equipment, livestock, seed, etc. Master’s review of the Family Division Case Flow Model and how it should facilitate these types of proceedings. Court orders that respondent provide disclosure to the petitioner within the next 60 days.

A.B., also known as A.R.C.B. v. Child and Family All Nations Coordinated Response Network, 2023 MBKB 112: Application opposing entry of name on the Child Abuse Registry.  Agency has the burden of proof on the balance of probabilities, similar to the civil standard of proof, as noted in s. 19(3.6) of The Child and Family Services Act. MacPhail, J. noted the law with respect to hearing children’s testimony (D.G.S. v. The Director of Child and Family Services, 2019 MBQB 40, paras. 33-36). Agency has established on the balance of probabilities that the applicant sexually exploited and therefore abused the complainant except for one allegation regarding exposure to pornographic videos. Applicant’s name will be placed on the Registry.

Janet E. Mosher. Domestic Violence, Precarious Immigration Status, and the Complex Interplay of Family Law and Immigration Law, (2023) 1 Can. J. Fam. L. 297.

Survivors of domestic violence must frequently navigate multiple legal processes, as well as the various administrative systems that provide crucial supports and resources. For women with precarious immigration status, navigation is made all the more challenging not only because immigration and/or refugee law processes are added to the array of legal domains to be navigated, but because their access to supports and resources is both restrictive and in flux, shifting along with the changes in their immigration status.

Ian Ross. Beyond Lip Service: Key Issues for Decision-Markers When Considering Children’s Views and Wishes in Child Protection Proceedings. (2023) 42 C.F.L.Q. 29 (WLC – LSM Members may request a copy).

On April 30, 2018, the Ontario Child, Youth and Family Services Act (“CYFSA”) came into force and made significant changes to the child protection landscape in Ontario. A key theme in the legislative changes is an increased focus on children’s rights, including the first statement in the Preamble that recognizes “children are individuals with rights to be respected and voices to be heard.” The Preamble also states that the aim of the Act is to be consistent with, and build upon, the principles expressed in the United Nations Convention on the Rights of the Child (“UNCRC”). These provisions mean that courts must treat children as individual rights holders and must look to the UNCRC for guidance in interpreting and applying the CYFSA.

Legislation

Federal

 

 Recent votes

The House is adjourned until September 18, 2023.

 

Provincial

The House adjourned on June 1, 2023 and will reconvene on October 4, 2023.

New Regulations 

Number Title Published
115/2023 Turkey Penalty Levies Regulation, amendment 16 Aug. 2023
116/2023 Mortgage Brokers Regulation, amendment 28 Aug. 2023
117/2023 General Regulation 28 Aug. 2023
118/2023 Preset Fines and Offence Descriptions Regulation, amendment 28 Aug. 2023
119/2023 Automobile Insurance Coverage Regulation, amendment 28 Aug. 2023
120/2023 Designated Public Sector Bodies Regulation, amendment 28 Aug. 2023
121/2023 Customer Service Standard Regulation, amendment 28 Aug. 2023
122/2023 Accessible Employment Standard Regulation, amendment 28 Aug. 2023
123/2023 Accessible Information and Communication Standard Regulation, amendment 28 Aug. 2023
124/2023 Child and Family Services Regulation, amendment 28 Aug. 2023
125/2023 Assistance Regulation, amendment 28 Aug. 2023
126/2023 Child Card Regulation, amendment 28 Aug. 2023
127/2023 AgriInsurance Regulation 28 Aug. 2023
128/2023 Specialty Wine Stores Regulation, amendment 28 Aug. 2023
129/2023 Park Fees Regulation, amendment 28 Aug. 2023
130/2023 Conservation Officers Regulation, amendment 28 Aug. 2023
131/2023 Provincial Snowmobile Trial Regulation, amendment 28 Aug. 2023
132/2023 Vehicle Registration Regulation, amendment 28 Aug. 2023
133/2023 Provincial Snowmobile Trial Permit Regulation 28 Aug. 2023
134/2023 Public Libraries Allocation of Grants Regulation 28 Aug. 2023
135/2023 Licensing and Appeals Regulation, amendment 29 Aug. 2023
136/2023 Liquor Licensing Regulation, amendment 29 Aug. 2023
137/2023 Declaration of Provincial Roads Regulation, amendment 30 Aug. 2023
138/2023 Declaration of Provincial Roads (Access Roads) Regulation, amendment 30 Aug. 2023
139/2023 Vehicle Registration Regulation, amendment 30 Aug. 2023
140/2023 Teaching Certificates and Qualifications Regulation, amendment 1 Sept. 2023
141/2023 First Nation Safety Officers Regulation, amendment 1 Sept. 2023
142/2023 Private Vocational Institutions Regulation 1 Sept. 2023

 

Please note: The library will be closing early on Friday, March 1 at 11:00am for a special event.