News

• CanLII publishes first open-access edition of Bankruptcy and Insolvency Law in Canada – “This new edition is particularly noteworthy as it is the first open access text on Canadian bankruptcy and insolvency law, making it freely available to practitioners, students, and anyone interested in understanding the complexities of this area of law. The editors have meticulously updated the content to reflect the latest legal developments, providing readers with comprehensive coverage of the subject through carefully selected cases, thought-provoking commentaries, and the inclusion of post-reading questions to assess comprehension of the material.

   

• Western Bar CPD  – “Each year the Western Manitoba Bar Association (WMBA) hosts our Annual General Meeting (AGM) weekend at Clear Lake, Manitoba. The 2024 AGM weekend will take place on Friday, September 13th, and Saturday, September 14th. The AGM weekend is an event that provides members the opportunity to continue their legal education, for members and their guests to socialize with members of the Bar and the Judiciary and enjoy the peaceful sights and sounds of Riding Mountain National Park. We have four CPD sessions scheduled for Friday, September 13th. As these are being offered by the Law Society, please register on the Law Society website for these sessions in advance of the AGM. Registration can be completed by visiting the following website: https://educationcentre.lawsociety.mb.ca/events/western-bar-cpd-2024/“

• The Law Library Hub is starting up again this fall. First offered in February 2020, the Hub was a drop-in program to provide legal information and assistance to members of the public who were struggling with dealing with the courts. Under the supervision of a practising lawyer, law students will be available to provide assistance in the Great Library at the Winnipeg Courthouse

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.

How do I find the exact state of an act at a specific time?

Tracking the history of legislation can be a challenge, especially if you are looking for earlier acts. Current laws are available online and both federal and provincial sites offer varied legislative history. But only up to a certain point, mostly anything before 2003.

Luckily you have a couple options with the library. We have all annual and consolidated acts for Manitoba and Canada in print, as well as digitally through Heinonline.

The hard part is piecing together a point-in-time version of the act you are looking for. Usually, the easiest way to start is by finding an earlier consolidated version of the act and finding the amendments made between that date and the time you are looking for. To save some time, a helpful hint is to look at the volume of a later year and find the table of amendments. That will list the changes made to the act since the last consolidation. This is also helpful if you are only looking for changes to a certain section or provision.

For further explanation take a look at our Library Guide on “Finding Point-in-time Legislation“, or contact the library for research help.

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 3, 2024 – Filing Electronic Copies of Documents

New Library Resources

New Print Titles

New Digital Titles

Book Reviews

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

The Fire Still Burns: Life In and After Residential School.
By Sam George with Jill Yonit Goldberg, Liam Belson, Dylan MacPhee & Tanis Wilson. Vancouver, B.C.: UBC Press, 2023. xi, 133. Includes reader’s guide. ISBN 9780774880855 (softcover) $21.95; ISBN 9780774880879 (ePub) $19.95; ISBN 9780774880862 (PDF) $19.95.

Reviewed By
Stephanie Karnosh
Reference Librarian
Cassels

“The Fire Still Burns: Life In and After Residential School is a personal memoir by Squamish Elder Sam George, recounting his early life on a reserve, his time at St. Paul’s Residential School in North Vancouver, B.C., and how that experience tainted the rest of his life. Though not strictly a legal text, this book illuminates and elucidates the residential school experience for those keen on contributing to reconciliation. 

…

The Fire Still Burns would be an excellent addition to any law library serving Indigenous people, or to any academic library with an Aboriginal or Indigenous Law collection. While some may ponder its suitability in a private firm, any lawyer practicing Aboriginal or Indigenous Law would do well to sit down with this book and drink deeply of the story within.”

Click here for the full review

Events

Western Bar CPD

September 13, 2024    |    9:00 a.m. – 3:30 p.m.   |    Elkhorn Resort, Clear Lake, MB

Jointly presented by The Law Society of Manitoba and The Western Manitoba Bar Association

Learn more and register for the Western Bar AGM weekend events directly with the WMBA.

The Western Bar CPD has moved to a new Friday this year. What hasn’t changed is the value it offers you: the latest updates and guidance in a collegial setting!

Please note: You may opt to register for the full day program, or just the morning or afternoon sessions based on your own time, needs, and interests.

Morning Session (3 CPD hours | 1 EPPM) 

• A View from the Bench followed by an informal “Ask the Judiciary” session. Presenter: Chief Judge Ryan Rolston, Provincial Court of Manitoba
• Protection Order Process Presenter: Judicial Justice of the Peace Leslee Stephenson, Provincial Court of Manitoba

 Afternoon Session (2 CPD hours | 1 EPPM) 

• Notary 101 – Not Just a Witness Presenter: Sharon Kravetsky, K.C., The Law Society of Manitoba 

• Practice Management Tips focusing on email overload and absence preparation Presenter: Barney Christianson, K.C., Christianson TDS

Upcoming Events

Substantive Law

Civil Litigation

Santoro v. Shpak, 2024 MBCA 63: Decision on motion for further evidence and appeal. Plaintiff supported defendant through financial difficulty while the parties were in a relationship. Plaintiff claimed this support was a loan to be repaid from the sale of the defendant’s marital home. The defendant signed documents acknowledging the debt, including a consent judgment. 9 years after signing, defendant brought a motion to set aside or vary the consent judgment or, alternatively, to declare that the consent judgment had been satisfied. The motion was dismissed. Per LeMaistre JA (Simonsen and Spivak JJ. concurring): Defendant’s motion to admit fresh evidence was denied. The evidence was available at the time of the motion and didn’t undermine the motion judge’s conclusions. Motion judge’s findings that defendant didn’t provide evidence of fraud or new facts arising after the consent judgment were upheld.

Tabet v. Winnipeg (City of), 2024 MBCA 60: Plaintiffs move for the determination of whether leave to appeal is required and, if so, apply for leave to appeal. This is regard to summary judgement that partially granted the respondent’s motion, declaring it has a prescriptive easement over the plaintiffs properties, and dismissed the plaintiff`s motion to dismiss the City’s defense regarding the easement. The issue is whether the order made by the motion judge is interlocutory. Plaintiffs submit that the declaration of an easement and granting of summary judgment to the respondent in this regard constitute a final order. Respondent argues that the dismissal of a summary judgment motion is generally considered to be interlocutory. Cameron, JA found the order of the motion judge dismissing the plaintiffs’ motion to dismiss the City’s defence that it has a valid easement on the properties, as well as the granting of the portion of the City’s motion that a prescriptive easement exists over the properties, is a final order and may be appealed as of right.

7602678 Manitoba Ltd v. 6399500 Manitoba Ltd, 2024 MBCA 59: Motion for leave on behalf of the plaintiff, 7602678 Manitoba Ltd. (760), to permit its sole director, a lawyer suspended from practicing law since 2018, to represent 760 in the appeal due to financial constraints and lack of available legal representation. Motion denied for the director to represent 760 in the appeal. Appeal stayed and no documents to be filed on behalf of 760 until legal counsel is retained.

Winnipeg Regional Health Authority v. Hancock, 2024 MBKB 126: Plaintiff sought damages, a permanent injunction, and dismissal of defendant`s counterclaim. Claims breaches in settlement agreement’s confidentiality, non-disparagement, and release clauses. Issues are: is the settlement agreement valid and enforceable. If so, should the plaintiff`s relief be granted? The settlement agreement is valid and enforceable, as the defendant has acknowledged the agreement and received independent legal counsel before signing the agreement. The court found the defendant breached the agreement by distributing copies of the agreement in the course of making official complaints. The summary judgment was granted in favour of the plaintiff and defendant`s counterclaim is dismissed.

Ellis v. Opportunities for Independence Inc., 2024 MBKB 127: Plaintiff filed a statement of claim seeking to enjoin the defendant from making defamatory statements and seeking damages for wrongful dismissal and defamation. Defendant brings the within motion to strike the statement of claim on the basis that it is frivolous, vexatious, an abuse of the process of the court, and that it fails to disclose a reasonable cause of action. Plaintiff was an employee of defendant. After termination, plaintiff filed and struck a civil claim against the defendant. The parties, each with legal counsel, reached a settlement in respect of all matters related to the plaintiff’s employment with the defendant and the termination of his employment. As part of that settlement, the plaintiff executed a Full and Final Release. Plaintiff went on to make complaints to Workplace Health and Safety and Manitoba Labour Board regarding the release. Both organizations dismissed the complaints and appeals. The court found the Release signed by the plaintiff was comprehensive and covered all claims related to his employment and its termination up to that date, including those unknown to him at the time. The plaintiff had legal advice before signing the Release and affirmed that he executed it voluntarily. The statement of claim is struck in its entirety without leave to amend. Plaintiff ordered to pay the defendant costs.

Rummery et al. v. The Winnipeg Regional Health Authority and Dr. Erik R. Smith, 2024 MBKB 98: Summary judgment motions to dismiss action for delay. In 2006, the patient presented to ER with chest pain, the defendant determined the pain to be gastrointestinal and released the patient. The patient later died from a heart attack. The plaintiffs filed a Statement of Claim in 2008, citing negligence. Lanchbery J. analyzed the delay under KB Rule 24.01. Found the delay of 15 years excessive and unjustified. Plaintiffs failed to rebut the presumption of prejudice. Motions granted. Action dismissed.

Criminal Law

R. v. JAP, 2024 MBCA 62: Accused seeks leave to appeal the dismissal of her motion for an extension of time to file a notice of appeal in MBKB. Accused was convicted in MBPC of assaulting her then 11 year old son. Accused was sentenced to an 18 month suspended sentence with supervised probation. Accused filed a notice of appeal of conviction and sentence in the Court of King’s Bench. The accused’s notice of appeal was rejected due to being incomplete. Four months later, the accused filed the motion to extend time. Motion judge dismissed the motion to extend time. He found there was not a reasonable explanation for the delay and that the accused failed to find an arguable ground of appeal. In his view, she was rearguing her submissions at trial, hoping for a different outcome. leMaistre, JA was not persuaded that the motion judge erred and the motion for leave to appeal is dismissed.

R. v. Silaphet, 2024 MBCA 58: Appeal of convictions for 2 counts of sexual interference on the grounds that Trial Judge (TJ) erred by misapprehending the evidence and by unevenly scrutinizing testimony. Accused also seeks leave to appeal his total 11 years imprisonment. Accused claims the following to be unfit: consecutive sentences of 8 and 5 years in respect of the two victims, applying the principle of totality, TJ reduced each sentence by one year. Coram dismissed the conviction appeal. Granted leave to appeal sentence and admit the fresh evidence. No error by the sentencing judge has been demonstrated but the accused is diagnosed with an extreme health condition subsequent to the sentencing. Accused has been diagnosed with lung cancer that has metastasized to his brain. The 11 year sentence varied to a total sentence of 9.5 years.

R. v. Hyra, 2024 MBCA 56: Decision on a motion requiring the Crown to file additional appeal book materials. The accused, was convicted of criminal harassment in 2006. His appeals and motions for a new trial or further disclosure were dismissed by various courts. In 2019, he filed applications to set aside decisions dismissing earlier applications. The 2019 applications were dismissed. He is appealing the 2019 decisions. Turner, JA dismissed the motion. It was decided the additional materials requested to be added are not necessary for the determination of the upcoming appeal.

R. v. LJJD, 2024 MBCA 54: Appeal of totality sentence, 3 for sexual interference and 10 for aggravated assault. The accused argues for the 10 year sentence to be reduced to 5-7 years due to his person circumstances and Gladue factors. Leave to appeal was granted. However, the appeal was dismissed due to the high moral culpability of the accused, the severity of the assault, and the vulnerable status of the victim, an indigenous woman who was 17 at the time of the assault.

R. v. Gooding, 2024 MBKB 99: Sentencing decision. Accused pled guilty to trafficking in a controlled Schedule 1 substance. “Project Divergent” investigation observed the accused’s involvement selling large quantities of cocaine. Accused was found to be a high-level dealer for sentencing purposes. Accused identifies as a non-registered Indigenous “mixed” individual. PSR outlines numerous times in custody, no participation in programming offered and quick re-involvement upon release. Childhood, family background, and Gladuefactors are significant in this case. Keeping parity with others sentenced from Project Divergent, McKelvey, J. determined a sentence of 8 years, less time served.

R. v. Sidhu, 2024 MBPC 65: Accused pled not guilty to the charge of failing to comply with a police officer`s demand for a breath sample. At issue is the mens rea element of the offence. Guenette, PJ determined what the Crown needs to prove as the mens rea for this offence, beyond reasonable doubt, is knowledge that a demand has been made. Accused and counsel argued to raise reasonable doubt in relation to the mens rea element, to the extent it might have related to the intention of producing unsuitable breath samples. The accused was found guilty.

R. v. Cripps, 2024 MBPC 63: Reasons for sentencing. The accused and another individual drove a stolen truck through the storefront of a convenience store. They ripped the ATM out of the building using chains and the truck, and fled with the ATM. Accused entered a guilty plea to commercial break enter theft. PSR offered insight into the offender’s character and connects the neglect and instability he experienced as a youth with a significant addiction at time of offence. The co-accused received a 14-month sentence, which was a joint recommendation with a quid pro quo that resulted from triable issues related to identification. Therefore, it is not an appropriate comparator. Accused sentenced to 2 years less one day in custody, followed by 1 year supervised probation.

R. v. W.H.L., 2024 MBPC 61: Accused charged with sexual assault and sexual interference against the complainant, who was 12 years old at time of the charges. The parties met online, the complainant told the accused she was 18. Photos supplied by the complainant`s foster mother showed her to look like a 12 year old. Accused contends he took reasonable steps to verify the complainant`s age by asking her and by viewing her online profile. Allen, PJ, determined that the accused did not take reasonable steps to verify the complainant’s age. Discrepancies in the accused’s statements to police impacted accused`s credibility. Accused found guilty.

 R. v. Noel, 2024 MBPC 60: Accused pled guilty to possession of a restricted or prohibited firearm with ammunition and two counts of possessing a weapon contrary to an order. A sawed-off shotgun, which the accused admitted to possessing, was found by police at his girlfriend’s mother’s home. Police were searching for the gun because, while on bail, the accused shot and killed a person who allegedly attempted to rob him. This person was armed and had approached the accused to buy fentanyl. Yale, PJ weighed the serious nature of the offense and circumstances as well as the accused’s high moral culpability against the accused’s challenging personal circumstances, facing systemic challenges faced by racialized individuals, and the accused’s efforts towards rehabilitation. Accused was sentenced to 5.5 years in custody, less time served.

Family Law

Klassen v Wowk-Litwin, 2024 MBCA 57: Appeal of a final order regarding property valuation. The parties were in a common-law relationship for 10 years before separating in 2014. Grounds for appeal: trial judge found shares in a family corporation sold by the appellant were not a gift from family and should be included in accounting;  the appellant’s argument under s 7(4) of the Family Property Act failed when evaluating shareable monies of the aforementioned shares; trial judge allowed the respondent to include a negative accounting due to an excessive debt burden that arose during the relationship; respondent’s claim to dissipate the appellant’s assets was allowed. It was found the trial should have relied on s 4(3) of the FPA, not s 7(4), however the error was not material. Appeal dismissed.

Hoes v. Hoes, 2024 MBKB 100: Divorce proceeding. Issues include parenting time, final decision‑making authority, protective relief, child support, and s. 7 expenses. Parties separated in 2021, and parenting time was split roughly even. Allegations of various abusive behaviours by the respondent resulted in two sets of criminal charges, a protection order and a prevention order. Recently the petitioner’s time with the children became supervised and infrequent. Petitioner granted majority parenting time, final decision-making, protective relief, s. 7 expenses, and child support. The respondent’s parenting time will continue to be supervised. Divorce judgement pronounced.

Hedley v. Konecny, 2024 MBKB 102: Reasons for decision granting a request for an interprovincial subpoena. Petitioner’s request facilitates her seeking an order of child support from the respondent. The subpoenaed non-party is former accountant to both respondent’s company (owned 50/50 respondent and his father), and from the non-party company (owned 100% by respondent’s father). The two companies shared financial/accounting books prior to 2020. The respondent has in previous proceedings blamed the former accountant for difficulty to impute respondent’s income. Evidence provided by the petitioner satisfied the provisions contained in s. 5(1) of The Interprovincial Subpoena Act.

Labour and Employment Law

Hahlweg et al. v. Women’s Health Clinic Inc., 2024 MBKB 110: Plaintiff claims breach of contract, wrongful termination, and defamation. In 2010, the parties entered into an agreement for services contract, which characterized the plaintiff as an independent contractor on a fee-for-service basis. The contract did not guarantee a minimum number of procedures per year. Despite the alleged breaches of contract, plaintiff continued to work as expected and did not repudiate the contract. Champagne, J concludes the plaintiff condoned any purported breaches through his actions. Per the contract, respondent gave 90-days notice in writing. Wrongful termination was not found. Regarding defamation, the communications authored by the respondent are all protected by qualified privilege. Entire claim dismissed.

Thielmann v. Engineers Geoscientists Manitoba, 2024 MBKB 97: Appeal of the council of Engineers Geoscientists Manitoba (EGM) dismissal of the applicant’s appeal of the Discipline Committee (DC) of EGM’s decision convicting applicant of 2 charges of unskilled practice. Charges related to 2 sets of engineering drawings deemed substandard for their intended use in supporting building permit applications, although no complaint had been made. Issues: Did the DC have jurisdiction without a formal complaint; was expert evidence properly admitted and relied on; were the drawings correctly found insufficient; were the sanctions appropriate. Harris J. found EGM adhered to the Engineering and Geoscientific Professions Act when bringing charges and properly applied the Mohan principles when admitting expert evidence. The substantive decisions and sanctions were found to be appropriate. Appeal dismissed.

Legislation

Federal

Recent Votes

See here for the latest activity.

Provincial

The 1st Session of the 43rd Legislature will reconvene on Wednesday, October 2, 2024 at 1:30 p.m.

Current Bills    |    Bill Status