Effective June 23, 2020, the Triage Screening List will commence in-person proceedings, reminding parties to follow the triage screening process described in Court of Queen’s Bench Rules 70.24 (16) to (21). Additional information regarding scheduling is detailed in the notice.
This notice changes previous notices which stated the Triage screening List would operate via teleconference.
New issues of the following journals are now available through WestlawNext Canada. If you would like to read any of these articles, or if you are interested in any other publications we offer, please contact us for assistance at email@example.com.
Journal of Environmental Law and Practice Vol. 33
Climate Litigation and the Class Action Mechanism–The Potential Role of the UN Sustainable Development Goals, by Rudiger Tscherning,
Breaking Ranks (and Precedent): Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74, by Martin Olszynski , Nigel Bankes , Andrew Leach
Business as Usual?: The Limited Influence of Climate Change Disclosure and Fiduciary Duties on the Low-Carbon Investment Practices of Canada’s Big 10 Public Pension Funds, by Brandon D. Stewart
Education and Law Journal Vol. 29
Big Data, Privacy, and Education Applications, by Priscilla M. Regan, Jane Bailey
Interest Arbitration at the Central Table in the Education Sector, by Kristen Allen
Violence in Alberta’s Urban Schools: The Perspectives of School Resource Officers, by G. Abela, J.K. Donlevy
Rethinking McKinney: To What Extent Should Universities Be Charter-Free Zones?, by Kenneth Wm. Thornicroft
The Minister Must “Opt Out”: Ontario Lacks Authority to Make Ancillary Fees Optional at Colleges and Universities, by Emily Lewsen
Public Universities, Speech Policies, and the Law: Fourteen Maxims, by Bruce Pardy
Accommodating the Commute and the Bumps Along the Way Consequences of Silence: Arbitrator Finds Just Cause to Discipline Teacher for Declining to Answer School Board’s Investigation Questions, by Alec Stromdahl
Canadian Journal of Law and Society Vol. 35
Racialized, Gendered, and Sensationalized: An Examination of Canadian Anti-Trafficking Laws, Their Enforcement, and Their (Re)presentation, by Hayli Millar, Tamara O’Doherty,
Sites of Resistance: LGBTQI+ Experiences at Trinity Western University, by Heather Shipley
Play-by-Play Justice: Tweeting Criminal Trials in the Digital Age, by Tamara A. Small , Kate Puddister
Constitutional Law and Abortion in Saskatchewan: The Freedom of Informed Choice (Abortions) Act, by Sarah Burningham
La Relation Entre le Judiciaire et les Victimes Dans le Contexte de la Détermination de la Peine au Canada: Un Enjeu Pour L’Évolution Du Droit Criminel, by Sébastien Labonté
Récits de Justice et Office du Juge en Chine, by Hélène Piquet
Kent Roach, Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case. Montreal & Kingston: McGill-Queen’s University Press, 2019. 307 Pp., by Benjamin L. Berger,
Dan Kaminski et Philippe Mary (Dir.), La Société des Captifs. Une Étude D’Une Prison de Sécurité Maximale. Bruxelles: Larcier, 2019, 334 P., Traduction Augmentée de Gresham M. Sykes, The Society of Captives. A Study of a Maximum Security Prison. Princeton: Princeton University Press, 1958, by Sophie De Saussure
McGill Law JournalVol. 64
Who’s Afraid of the Lucky Moose? Canada’s Dangerous Self-Defence Innovation, by Noah Weisbord
Judicial Audiences: A Case Study of Justice David Watt’s Literary Judgments, by Elaine Craig
Property Law and Collective Self-Government, by Malcolm Lavoie
Le Droit à L’Égalité et L’Accès Aux Professions Réglementées: Bilan Contrasté de la Jurisprudence Canadienne, by Frédérick Doucet, Geneviève St-Laurent
Familles, Inégalités et Droit Dans un Espace Mondialisé, Recension Critique de Daphna Hacker, Legalized Families in the Era of Globalization (Cambridge, UK: Cambridge University Press, 2017),Pp 386. ISBN 9781316535004, by Ivana Isailović
Canadian Journal of Law and TechnologyVol. 18
Can PIPEDA ‘Face’ the Challenge? An Analysis of the Adequacy of Canada’s Private Sector Privacy Legislation Against Facial Recognition Technology, by Tunca Bolca
Developing Privacy Best Practices for Direct-to-Public Legal Apps: Observations and Lessons Learned, by Teresa Scassa, Amy Salyzyn, Jena McGill, Suzanne Bouclin
Reflections on the Influence of Social Media on Judging, by Peter D. Lauwers
Searches of the Person: A New Approach to Electronic Device Searches at Canadian Customs, by Justin Doll
Case Comment: British Columbia (Attorney General) v. Brecknell, by David TS Fraser
A Better Act, More Bad Behaviour Online: Nova Scotia’s New Intimate Images and Cyber-Protection Act Goes to Court, by Jennifer Taylor
The Long Journey to Software Valuation: Risks and Rewards Ahead By Dwight Olson (San Diego: Truman Enamels, 2020), Softcover, 198 Pages, ISBN: 978-1-7344129-0-1. Available at Amazon.com, by Duncan C. Card
Journal of Parliamentary and Political Law Vol. 13
Reflections on Canadian Electioneering, by Gregory Tardi
A Novel and Necessary Remedy, by Gregory Tardi
Enhancing Canada’s Democracy without Electoral Reform, by Connor Macorin
Including Emerging Litigation Comprenant les Litiges en Voie de Développement, by Gregory Tardi, DJur.
The Ultimate Dilemma of Democracy, Gregory Tardi
Review of: Vernon Bogdanor Beyond Brexit: Towards a British Constitution (2019 I.B. Tauris, London), by Steven Chaplin
Review of: Patrick Malcolmson, Richard Myers, Gerald Baier, and Thomas M.J. Bateman the Canadian Regime: An Introduction to Parliamentary Government in Canada 6th Edition (Toronto: University of Toronto Press, 2016), by Nancy McCormack
These newly updated journals are also available with open access on CanLII.org.
McGill Journal of Law and Health Vol. 14
End-of-Life Care for Federally Incarcerated Individuals in Canada, by Adelina Iftene and Jocelyn Downie
Asper Review of International Business and Trade LawVol. 19
Liberalizing the Investment Canada Act: Striking the Right Balance between Investment and Economic Security, by Trevor Neiman
How WTO Jurisprudence Can Help Resolve Interpretive Uncertainties Generated by Canada’s Domestic Free Trade Agreements, Ryan Manucha
Long Live the Delaware Supreme Court Decisions in Smith v Van Gorkom, Auerbach v Bennett, and Zapata v Maldonaldo!: Whether the Business Judgment Rule Should Apply in Nigeria, by Olumide Obayemi
Business-to-Business Electronic Communication in Canada: Reforming Canada’s Anti-Spam Legislation, by Maryia Kuzura
The Applicability of the Personal Information Protection and Electronic Documents Act to De-Indexing Internet Search Engine Results, by Jessica Pushka
Analysis of Global Regulatory Schemes on Chance-Based Microtransactions, by Anthony Wen-Tsun Wong
Unravelling Smart Contracts: Smart Contracts and the Law of Rescission in Canada, by Andrew Luesley
A Role for ECOWAS in Addressing the Challenges of Ineffective Regulation of Transnational Oil Corporations in Nigeria, by Rahina Zarma
RegTech and SupTech for Robo-Advisers: Alternative Regulatory Methods for Enhancing Compliance, by Ihsan Ibrahim Daldaban
The Hate Speech Debate: The Supreme Court, the Federal Government, and the Need for Civil Hate Speech Provisions,by Lauren E Scharfstein
Saskatchewan Law ReviewVol. 83
The Non-Abdication Rule in Canadian Constitutional Law, by Felix Hoehn
The Duty to Negotiate and the Ethos of Reconciliation, by Mark Mancini
High Time: The Legalization and Regulation of Cannabis in Canada Edited by Andrew Potter and Daniel Weinstock. Montreal: McGill-Queen’s University Press 2019. 234 Pp., $22.95 Pb., by Owen Pennock
Flawed Precedent: The St. Catherine’s Case and Aboriginal Title by Kent McNeil. Vancouver: UBC Press, 2019. 334 Pp., $27.95 Pb., by Kylee Wilyman
Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections by Richard Jochelson & David Ireland. Vancouver: UBC Press, 2019.244 Pp., $27.95 Pb., by Evan Best
Renewing Relationships: Indigenous Peoples and Canada Edited by Karen Drake & Brenda L. Gunn. Saskatoon: Wiyasiwewin Mikiwahp Native Law Centre, 2019. 386 Pp., $65.00 Pb., by Travis W. Smith
Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women by Elspeth Kaiser-Derrick. Winnipeg: University of Manitoba Press, 2019. 406 Pp., $34.95 Pb., by Danielle Nichols
Punished for Aging: Vulnerability, Rights, and Access to Justice in Canadian Penitentiaries by Adelina Iftene. Toronto: University of Toronto Press, 2019. 245 Pp., $24.71 Pb., by Miranda Wardman
Criminal Trials and Mental Disorders by Thomas L. Hafemeister. New York: New York University Press, 2019. 384 Pp., US$35.00 Pb., by Everhett Zoerb
The Jury Crisis: What’s Wrong with Jury Trials and How We Can Save Them by Drury R. Sherrod. Maryland: Rowman & Littlefield, 2019. 170 Pp., $34.00 Hc., by Kennedy Morrow
The Law of Bail in Canada — 3rd edition by Gary T. Trotter is now available for loan.
A continually updated resource that covers all aspects of judicial interim releases from all jurisdictions across Canada. The latest release highlights recent legislative developments from amendments to the Criminal Code and Youth Criminal Justice acts, as well as discussions to changing terminology.
As always, the library can provide electronic excerpts or sections of the text, within copyright guidelines, by email for those unable to make it to the library in person. Just send us an email with your request.
Trotter, Gary T. The Law of Bail in Canada, 3rd ed. All aspects of judicial interim release from all jurisdictions in Canada.
Canada (Attorney General) v. Poirier, 2020 FCA 98. Appeal from Appeal Division of the Social Security Tribunal. Respondent applied for disability pension under CPP but was denied by General Division which determined that he had residual work capacity, but his attempts to find alternative work weren’t serious. Appeal division concluded the General Division made an error of fact and reversed the decision. For judicial review, the standard of review is reasonableness. Locke, J.A. allowed the appeal and remitted it for reconsideration by a differently-constituted panel of the Appeal Division.
Jhanji v. The Law Society of Manitoba, 2020 MBCA 48. Applicant was suspended from the practice of law pending completion of disciplinary proceedings. Court of Queen’s Bench judge dismissed his appeal of the interim suspension. Applicant now appeals that appeal. Applicant has not shown any basis to intervene in the discretionary decision of the Complaints Investigation Committee. Appeal dismissed.
Stadler v. Director, St Boniface/St Vital, 2020 MBCA 46. Does requiring a disabled recipient of income assistance to apply for CPP retirement benefits early (age 60) pursuant to s.12.1(2) of Manitoba Assistance Regulation infringe on his equality rights under s.15 of The Charter? Appellant original appealed to the Social Services Appeal Board which determined it did not have the jurisdiction to hear the Charter arguments. In 2017 this court determined that it did (2017 MBCA 108). A new panel of the Board upheld the decision, and the appellant appealed again. Appeal allowed.
Alejandro Gonzalez, The Evolution of the Duty to Consult: A Framework for Improving Consultations, Negotiations, and Reconciliation, 2020 10-1 Western Journal of Legal Studies 1, 2020 CanLIIDocs 680, retrieved on 2020-06-04.
Alice Woolley and Amy Salyzyn, Protecting the Public Interest: Law Society Decision-Making After Trinity Western University, 2019 97-1 Canadian Bar Review 70, 2019 CanLIIDocs 1599, retrieved on 2020-06-04.
9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10. Appeal from Quebec of an ongoing proceeding instituted under the Companies Creditors Arrangement Act. Two decisions by the supervising judge are at issue: whether a supervising judge has the discretion to bar a creditor from voting on a plan of arrangement where they determine that the creditor is acting for an improper purpose; and whether the supervising judge can approve litigation funding as interim financing. Analysis of s.11 of the CCAA. Appeal allowed, supervising judge’s order reinstated. SCC determined that the Court of Appeal failed to treat the supervising judge’s decisions with the appropriate degree of deference. Joint reasons for judgment: Wagner C.J. and Moldaver J. (Abella, Karakatsanis, Côté, Rowe and Kasirer JJ. concurring).
Bannerman Lumber Ltd. et al. v. Goodman, 2020 MBQB 76. Application for a declaration under s. 178(1) of the BIA that a debt should survive discharge of bankruptcy. The specific provision states that an order of discharge does not release the bankrupt from any debt or liability resulting from obtaining property or services under false pretences. “An issue of importance in the present case is the degree of knowledge required to establish deceit.” (para. 10). Applicants are successful.
Tyler McNaughton. Case Comment – Re Brennan. Canadian Bankruptcy Reports (Articles) (2020) 77 C.B.R. (6th) 20 (WLNC, request a copy). (2019 ONSC 4712).
Albo v The Winnipeg Free Press et al, 2020 MBCA 50. Appeal regarding contractual interpretation. Parties negotiated a contract for consultation leading to the defendant publishing a series of articles. Opportunity arose to compile the articles into a book. Plaintiff was unaware and sued for royalties. Analysis of “good faith performance of the contract” (para 43). Appeal dismissed.
Green v University of Winnipeg, 2020 MBCA 49. Applicant seeks leave to appeal an order declaring him a vexatious litigant. Leave denied.
Linda R. Rothstein. Inside the Woodshed: Preparing the Direct Examination of a Key Witness in a Civil Trial, 38 Adv. J. No. 4, 20-22 (Spring 2020) (LAQL – request a copy).
Carla L. Maclean, Lynn Smith & Itiel E. Dror. Experts on Trial: Unearthing Bias in Scientific Evidence, (2020) 53 U.B.C. L. Rev. 101 – 139 (LAQL – request a copy).
Corporate & Commercial Law
Laliberté v. Canada, 2020 FCA 97. Appeal of whether a trip to the International Space Station is a shareholder benefit versus a stunt-type promotional event. Minister of National Revenue (MNR) assessed the appellant with a shareholder benefit equal to the cost of the trip. Tax Court ordered that the appellant be reassessed based on a shareholder benefit equal to 90% of the cost of the trip. Appeal dismissed.
Roofmart Ontario Inc. v. Canada (National Revenue),2020 FCA 85. Appeal of order under the “unnamed persons requirement” (UPR) of the ITA and ETA. MNR was investigating compliance in the residential construction industry. Studies have estimated that as much as 20% of residential construction is unreported. CRA identified the appellant as the subject of a UPR due to the size of its business, its clientele and its location. Appellant raised three objections: that the application is ultra vires; the Federal Court erred in its application of the statutory criteria; and the Court applied the incorrect burden of proof. Appeal dismissed.
State Industries Ltd. et al. v. Summers Equipment Inc. et al.,2020 MBQB 77. Defendants are seeking the setting aside of an Anton Piller Order (APO) authorized in September 2018. The plaintiffs claim the defendants breached the implied terms of their employment agreements. Onus is on defendants to satisfy the court that the APO should be set aside on the basis that the plaintiffs failed to comply with their duty of candor and disclosure. Analysis of the evidence presented to grant the APO along with the counter-argument. Bond, J. determined that order should not be set aside.
Nygard International Partnership v. Canadian Broadcasting Corporation et al.,Nygard International Partnership v. Prowse, Nygard International Partnership v. Neal, 2020 MBQB 71. Three motions to dismiss for delay, in accordance with Queen’s Bench Rules 24.01 and 24.02. Summary of the principles to review in determining if the delay is unreasonable or not is set out in para. 18. Master Clearwater found mixed results.
R. v. Ahmad,2020 SCC 11. Two appeals combined on the application of the law of entrapment. In each appeal police received an unsubstantiated tip that a particular phone number was used in a drug operation. Police officers called the numbers and requested drugs and arranged meetings with the person who answered. At trial, both accused argued that the charges should be stayed on the basis of entrapment. SCC held that appeal by A. should be dismissed; appeal by W. should be allowed. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. Dissenting on W.: Wagner, C.J., Moldaver, Côté, and Rowe JJ.
R. v. Neepin, 2020 MBCA 55. Appeal of manslaughter sentence. At issue is whether the trial judge erred in principle in findings of fact, how he addressed the accused’s the moral culpability in light of these factors and the Gladue factors, and whether the sentence is harsh and excessive. Appeal allowed and sentence reduced to seven years.
R. v. Nelson, 2020 MBCA 53. Appeal of convictions for aggravated assault, robbery with a firearm, and three weapons offences. The victim in this instance was unable to identify the accused but a witness did and gave a videotaped statement. The witness did not show up for trial until she was detained on a material witness warrant. The witness declined to review her statement and could not recall some details while testifying. Key issue at trial was whether there was proof beyond a reasonable doubt of the identity of the attackers. Issue on appeal is whether the trial judge erred in allowing the witness to testify after reviewing her prior statement. Appeal dismissed.
R. v. K.N.D.W., 2020 MBCA 52. Crown appeal against sentence. Accused was convicted of sexual assault and sentenced to two years less a day. Crown argues that the sentencing judge erred by underemphasizing the brutal nature of the sexual assault and the risk posed by the accused given his prior record, and failing to take into account the traumatic impact on the children. Appeal allowed, sentence increased to five years.
R. v. Thompsett, 2020 MBCA 47. Accused seeks leave to appeal his sentence and a restitution order. Accused breached his judicial interim release by leaving a residential treatment program on the day he arrived. He asserts the sentencing judge erred in principle by considering the breach conviction as an aggravating factor. On reconsideration of restitution order, fresh evidence showed the amount should be varied as requested, with Crown consenting. Leave to appeal allowed, appeal from sentence dismissed.
R. v. Miles, 2020 MBCA 45. Accused appeals conviction for second degree murder on the basis that the verdict was unreasonable. He argues that the trial judge erred in assessing the evidence of a key witness, erred in the application of the law regarding inferences and post-offence conduct, and erred in the finding that the accused’s intoxication did not negate the intent to commit murder. Appeal dismissed.
Re DNA Warrant for Malcolm, 2020 MBPC 23. Reasons for the need of a police officer to swear an information to obtain a DNA warrant before a provincial court judge. Reconsideration of decision of Judge Pollack from 2010 (Winnipeg (City) Police Service (Re)). Krahn, A.C.P.J. determines it is acceptable for police officers to submit their informations to obtain DNA warrants sworn before a commissioner for oaths.
R v Jachetta, 2020 MBPC 21. Decision on legal test to stand fitness for trial. Accused had been disbarred for misappropriation of trust funds and then charged by police with criminal breach of trust, fraud, false pretences and theft. “For accused to be fit, he must possess the ability to engage with the trial process in a meaningful way” (para 35). Krahn, A.C.P.J. finds he is unfit to stand trial.
Paul L. Moreau. COVID-19 and the Tertiary Ground.“This article examines the considerations of Canadian jurists of the impact of the pandemic on decisions of judicial interim release.” 2020 CanLIIDocs 676
Adelina Iftene and Jocelyn Downie. End-of-Life Care for Federally Incarcerated Individuals in Canada, 2020 14-1 McGill Journal of Law and Health 1, 2020 CanLIIDocs 551, retrieved on 2020-06-04.
Usman v Usman, 2020 MBCA 54. Appeal of two orders made by chambers judge regarding the division of property acquired during the marriage. Appellant was found in contempt of the first order (Everett order) and given an extension to comply with it. When the matter came up again, he had still not complied with it (Dueck order) so respondent was given carriage to sell the property. Appellant has continued to refuse to cooperate. Appeal dismissed, costs to the respondent and appellant was ordered to pay costs to the court because he did not include a copy of reasons from one judge for his appeal book.
CFS Western Manitoba v. C.J.P. et al.,2020 MBQB 74. Children had been placed with grandparents and great-grandparents under temporary orders. Issue is whether children, being returned to mother, need to continue to be in need of protection. Onus is on Agency to prove children are still in need of protection. Order is based on the best interests of the children. Abel, J. also comments on use of judicial resources in resolving this matter, and effect of COVID-19.
Gray v. Gray,2020 MBQB 69. Father seeks order on issues related to property, interim child support including a contribution towards special or extraordinary expenses; mother seeks interim spousal support and a no contact or communication order. Father has primary care and control of children. Trial on the issues is set for end of November 2020. Some issues determined on summary judgment.
Kathleen Hammond. Relationally Speaking: The Implications of Treating Embryos as Property in a Canadian Context, (2019) 32 Can. J. Fam. L. 323 – 386. (LAQL – request a copy).
Labour & Employment
Lairenjam v. Unifor National Council 4000, 2020 FCA 96. Complaint with Canada Industrial Relations Board alleging Union had breached its duty of fair representation. Applicant lost his job when Ministry of Transportation issued a ticket for failing to maintain his truck in a safe operating condition. Union declined to support his grievance because he already had four Step 3 discipline assessments. CIRB dismissed the complaint, then six months later the applicant asked for reconsideration due to new developments. CIRB declined to review; this is a an application for judicial review. Standard of review is reasonableness. Review dismissed.
Brandon (City) et al. v. Brandon Professional Firefights’/Paramedics’ Association,2020 MBQB 73. Application for order quashing an arbitrator’s award regarding banked overtime. Standard of review is reasonableness as articulated in Vavilov. City argued that arbitrator exceeded her jurisdiction and erred by imposing a split onus on the issue; Union argued that while it, as the grievor, bore the legal onus of proof, the arbitrator properly imposed a shifting evidential burden of proof (para 11 and 12). Application is dismissed and the award upheld.
Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government of Manitoba, The Honourable Scott Fielding, 2020 MBQB 68. Application for an order of mandamus to appoint an arbitration board to settle matters respecting the collective agreement renewal. Keyser, J. concluded that MGEU is entitled to the mandamus relief.
Wills, Trusts & Estates
Durand v. Durand et al., 2020 MBQB 70. Application by widow of deceased to remove one co-executor, due to a conflict of interest, and replace him with another. The estate is a farm corporation. Widow is dependent on payments from the spousal trust to supplement her pension. All other beneficiaries support mother’s application. Application granted.
Estates, Trusts and Pensions Journal, (2020) Vol. 39, No. 3. (Request a copy).
Bill 212The Health Services Insurance Amendment Act (Personal Care Home Guidelines) – This Bill amends The Health Services Insurance Act to require the minister to ensure that the current standards for paid care set out in the guidelines are maintained. The minister must also establish standards to ensure that the direct care provided to residents is adequate. Requires reporting of personal care homes and the minister annually detailing reasons for any failing and how care adequately provides for residents.