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    Tort Law Collection Update

    Image taken from https://lawhaha.com/torts-illustrated/

    Whether it was a five year old pulling out your chair, or a snail in your ginger beer, it’s good to know where the law stands when you’ve been wronged. The library has a thorough collection of texts on Tort law available, including two recently updated titles.

    Newest Additions

    nadian Tort Law — 12th ed. by Allen M. Linden, Bruce Feldthusen, Margaret Isabel Hall, Erik S. Knutsen, Hilary A. N. Young

    “The twelfth edition of the leading treatise on tort law in nada continues the standard of excellence achieved by each previous edition and answers questions for all professionals in this field.”

    Remedies in Tort. by Lewis Klar, Linda Rainaldi, Earl Cherniak, and Peter Kryworuk [looseleaf]

    “Remedies in Tort is the only nadian publition that summarizes tort law completely and in a readily accessible manner. This five-volume work has a total of 28 chapters that are constantly updated with the most recent guidelines and court decisions.”

    Main Collection

    Browse our talog for even more titles on Torts, or take a look at some of the popular titles currently in our print collection.

    Online titles

    The Law of Torts. 6th ed. by Philip Osborne, Toronto: Irwin Law, 2020. Available on vLex

    “An indispensable resource for practitioners, judges, and students seeking a concise and accessible introduction to the principles of tort law in nada, as well as the social policies underlying the law and current trends in judicial decision making. The book reviews the foundations, characteristics, and objectives of tort law with specific discussions of negligence, intentional torts, strict liability, virious liability, nuisance, and defamation.”

    Newsletters and Current Awareness

    LexisNexis? Tort Law Netletter(TM) – an electronic current awareness service covering recent judicial developments in tort law, including property torts, torts affecting the person (including defamation), torts by and against the Crown, passing off, and negligence, including professional negligence by medil, legal and other professionals.
    Email the library (library@lawsociety.mb.) to subscribe.

    For even more resources visit the Library Resources section of the Member’s Portal and see what HeinOnline has to offer. They offer both recent articles in their Law Journal Library, as well as historil and rare titles in their Legal Classics Database.

    eLex July 2022

    Table of Contents

    NewsSubstantive LawLegislation
    Court Notices &
    Practice Directions
    Administrative LawFederal
    Discipline DigestsCivil LitigationProvincial
    New Library ResourcesConstitutional Law 
    Book ReviewsCriminal Law 
    Family Law 
     Labour and Employment Law 
     Wills, Trusts & Estates 

    News


    From P.E.I.’s Court of Appeal: R. v. Skye View Farms Ltd. et al., 2022 PE 1. River flooded and dead fish were found. Fisheries officers collected water and soil samples from a farmer’s field abutting the river. What is the proper test to apply for a s.8 Charter infringement? Interpretation of s. 49(1) (inspection) and s. 49.1 (investigation) of the Fisheries Act as well as degree of privacy a commercial farmer n reasonably expect.

    Court Notices & Practice Directions

    All COVID-19 Notices and Practice Directions are available here.

    Court of Queen’s Bench

    Practice directions

    Provincial Court


    Law Society of Manitoba Discipline Digests

    The Law Society of Manitoba v. Murray 2022 MBLS 7


    New Library Resources

    New in Print

    A Practil Guide to Distribution Agreements – “Beuse distribution agreements cover a diverse range of products and are applible across the commercial sector, A Practil Guide to Distribution Agreements is essential reading for anyone providing or purchasing goods for distribution. It not only includes an in-depth discussion of the numerous complex issues that n arise in distribution agreements, but also provides step-by-step guidance through the elements of a proper distribution contract – from the parties and the structure, to the scope of the agreement.”

    nadian Tort Law, 12th Edition – “When nadian Tort Law was first published in 1972, it beme the first treatise on the law of torts in nada. The twelfth edition continues the standard of excellence achieved by each previous edition. As the treatise most commonly cited by the Supreme Court of nada and other nadian courts, nadian Tort Law has greatly influenced the development of tort law in nada. The text has been updated and in places substantially re-written to reflect changes in tort law in the past few years”

    The Law of Unincorporated Associations in nada – “Unincorporated associations include everything from politil parties, sports associations and trade unions, to religious associations and social clubs. Despite the critil role that many of these organizations play in nadian society, Stephen Aylward explains that, “[s]trictly speaking, unincorporated associations do not exist in the eyes of the law.” Unlike partnerships and corporations, unincorporated associations are not governed by any specific legislation and, as a result, this area of the law has developed primarily through the courts and the applition of the law of contract, agency and trusts. In The Law of Unincorporated Associations in nada, Aylward takes this patchwork quilt of authorities and creates a synthesized manual that lawyers n rely on when advising clients in this space.”

    The Construction of Statutes, 7th Edition – “Part art, part science – that’s the essence of effective statutory interpretation. And understanding that balance is precisely the kind of insight you’ll glean from this latest edition of the industry-leading resource, The Construction of Statutes. This is a volume that no lawyer n afford to be without: knowing how to read and apply statutes, and to construct sound arguments regarding statutory interpretation, is a critil skill to possess, regardless of specialty or area of practice. This seventh edition offers a comprehensive and up-to-date examination of the rules and principles governing statutory interpretation, including the latest ses and developments.”

    New Online Titles

    Available in the Library Resources section of the Member’s Portal

    From Emond’s Criminal Law Series

    Indigenous People and the Criminal Justice System, 2nd Edition

    “Indigenous people are the most over-represented population in nada’s criminal justice system. Their experiences within the system are interwoven with issues of colonialism and discrimination. Indigenous People and the Criminal Justice System, 2nd Edition, examines these issues and their impact to provide lawyers and judges with a deeper understanding of this area of the law. “


    Book Reviews

    Review taken from the nadian Law Library Review, Vol. 47 Issue 2

    Reviewed by Kim Clarke, Bennett Jones Law Library University of lgary

    Millennial Leadership in Law Schools: Essays on Disruption, Innovation, and the Future. Edited by Ashley Krenelka Chase. Gretzville, N.Y.: William S. Hein, 2021. xxi, 218 p. Includes references. ISBN 978-0-8377-4136-9 (softcover) US$99.00

    “One often struggles to find connections between works in collections of essays. That is not the se with this book. Its narrow focus on millennials and the repetition of themes of their collaborative nature, technologil leaning, and ability to relate to law students (most of whom are millennials) provides a smooth flow between the essays.”


    Substantive Law


    Administrative Law

    Stadler v. St. Boniface/St. Vital (Director), 2022 MB 56: Dispute over when a disabled individual receiving income assistance must apply for federal retirement or old age benefits. First dispute was when the appellant turned 60 – ruled he did not have to apply for benefits until age 65 (2020 MB 46). In this matter he wishes to delay applying until age 70. Appeal is based on the following questions of law: Did the Board err in confirming the decision to suspend income assistance benefits pending confirmation he had applied for OAS/GIS; Did the Board err in determining that it does not have jurisdiction to review the constitutionality of its own legislation. Appeal dismissed.

    Pensions/Constitutional Law: Tribunal Jurisdiction re Constitutional Issues; s.15. Supreme Advocy: Court of Appeal Decision of the Week, June 22, 2022. Comment on Stadler v. St. Boniface/St. Vital (Director).

    Paul Daly. The Ages of Administrative Law, Public Law Conference, University College Dublin, July 2022. 2022 nLIIDocs 1400.

    In this paper, I tell the story of the administrative state from two perspectives in a tale spanning three distinct periods. One perspective is that of the structure of the state, which is focused on the entities created to rry out legislative policy. The other is the perspective of judicial review of administrative action. This is the story of how the courts me to oversee the administrative state.


    Civil Litigation

    British Columbia (Attorney General) v. Council of nadians with Disabilities, 2022 SCC 27: Issue of whether an organization n maintain an action via public interest standing.

    Per Wagner?C.J. (Moldaver, Karakatsanis, C?té, Brown, Rowe, Martin, Kasirer and Jamal?JJ. concurring):

    [3]?In this appeal, the Council of nadians with Disabilities (“CCD”) seeks public interest standing to challenge the constitutionality of certain provisions of British Columbia’s mental health legislation. CCD originally filed its claim alongside two individual plaintiffs who were directly affected by the impugned provisions. The individual plaintiffs discontinued their claims, leaving CCD as the sole plaintiff. CCD sought public interest standing to continue the action on its own.

    [4]?The Attorney General of British Columbia (“AGBC”) applied for dismissal of CCD’s action on a summary trial. He argued that the lack of an individual plaintiff was fatal to CCD’s claim for public interest standing beuse, without such a plaintiff, CCD could not adduce a sufficient factual setting to resolve the constitutional issue. In response, CCD filed an affidavit in which it promised to adduce sufficient facts at trial. The Supreme Court of British Columbia granted the AGBC’s applition, declined to grant CCD public interest standing, and dismissed CCD’s claim. The Court of Appeal allowed CCD’s appeal and remitted the matter to the Supreme Court of British Columbia for fresh consideration. The AGBC appeals that decision.

    [5]?For the reasons that follow, I would dismiss the appeal, but grant CCD public interest standing, with special costs in this Court and in the courts below.

    Henderson v. The Manitoba Public Insurance Corporation, 2022 MB 57: Appeal by defendant MPI of dismissal of motion relating to the availability of the remedy for damages. Plaintiff is arguing breach of contract and/or negligent advice over purchase of motor vehicle insurance. Issues are: Is MPI liable for either breach of contract or negligence; if liability is found, what is the appropriate remedy; quantifition of damages, if entitled. Motion judge’s role is to determine the essential character of the dispute; trial judge has the jurisdiction to determine the action (i.e. liability). Appeal dismissed.

    6191763 Manitoba Inc. et al. v. 5801916 Manitoba Ltd., 2022 MBQB 82: Competing motions for summary judgment over oral contract dispute. Plaintiff and defendants negotiated an oral agreement to develop a piece of property. After hearing the evidence (both affidavit and live) Lanchbery, J. determined a trial was necessary.

    Rempel v. Gentek, 2022 MBQB 128: Motion by defendant to dismiss plaintiff’s wrongful dismissal action for delay (Rule 24.02(1)). Issue of whether three or more years have passed without a “signifint advance” in the action. Governing test set out in Buhr v. Buhr, 2021 MB 63. Mcrthy, J. finds that the preparation and filing of the pre-trial brief was a signifint step and therefore, constituted a signifint advance. Motion dismissed.

    CB Dinners Inc. v. J. Brandt Enterprises (2013) Ltd., 2022 MBQB 126: Dispute over the purchase of a refurbished long-haul trick. Plaintiff seeks damages equal to the aggregate costs incurred to address the engine failure and other repairs. Plaintiff assumed two year warranty on sales invoice referred to the entire truck, not just the replaced “engine inframe”. Issue of contractual interpretation. Kroft, J. finds that the plaintiff has not established on the evidence that the defendant is responsible for the damage.

    Gzebowski v. Ogwal, 2022 MBQB 121: Applition to determine the value of a property jointly owned by the parties, so that the applints n buy out the respondent’s interest. Greenberg, J. must determine approximately how much each party contributed; neither party has complete documentation. Parties had hoped to sell the property but there was no interest in it. Matter had been ongoing for several years. Court sets the amount owing, applints are awarded costs at the Tariff amount (Class III).

    Knutson Building Ltd. v. Winnipeg Environmental Remediations Inc. et al, 2022 MBQB 119: Motion for dismissal for long delay (Rule (24.02(1)). Issues of whether the appeal should be deemed abandoned; whether fresh evidence should be permitted; whether the claim should be dismissed for long delay; and whether the court should exercise discretion to ensure justice is done. Plaintiff’s lawyer was dealing with personal and professional problems during the matter. Appeal brief was filed two weeks later than the rules allowed. Martin, J. revived the appeal. Applition to admit fresh evidence denied. Claim dismissed for long delay. Court does not exercise discretion to revive it.

    Ostrowski v. 4445211 Manitoba Ltd. o/a Tan FX et al., 2022 MBQB 112: Plaintiff seeking judgment for amount representing deposits she had paid for the purchase of a tanning salon. Defendant’s position is that the defendants were entitled to retain the deposits. Issue of contractual interpretation. Summary judgment is appropriate in this se where facts are agreed to. Plain reading of contract allows defendant to retain deposit but must return remaning funds to plaintiff.

    pital Commercial Real Estate Services Inc. v. Bibeau, 2022 MBQB 105: Matter between two parties who disagree on an oral contract. Plaintiff claims defendant agreed to pay him $300,000; defendant says it was $200,000. Parties had extensive business relationship, which was why there was no written agreement. Plaintiff put forth several documents defendant would have reviewed. Grammond, J. found no consistency between the documents such that the defendant could have misunderstood the fee. Claim dismissed.

    McIntyre v. Potter, 2022 MBQB 103: Motions to add a group of third parties to a matter. Test is set out in Loeppky et al v. Taylor Mcffrey LLP et al., 2019 MBQB 59. Also considered Vale v. Schwartz et al., 2021 MBQB 46. Plaintiffs sued two sets of defendants in contract and tort, but filed a notice of discontinuance against the second set of defendants. Plaintiffs also signed a release, releasing the second set of defendants from all liability. Motions granted.

    Supel v. Cunningham, 2022 MBQB 96: Claim in defamation. Plaintiff sued defendant for an injunction and damages; defendant was noted in default. Plaintiff moved for judgment, and defendant moved to set aside the noting of default so she could file a defence. Motion denied. Matter proceeded to default judgment hearing. Defamation was via social media posts. Analysis reviewed Crookes v. Newton, 2011 SCC 47, Grant v. Torstar Corp., 2009 SCC 61, and Rainy River (Town) v. Olsen, 2017 ON 605. Martin, J. awarded general damages of $25,000, aggravated damages of $10,00 and punitive damages of $10,000 plus special damages of $262.50; costs of double Tariff A, Class 2, plus full disbursements.

    Ostrowski v. Dubois, 2022 MBQB 95: Defendant seeks order that plaintiff’s claim be dismissed due to delay. Action started when plaintiff sued defendants for breach of contract for money he had lent her. Defendant claims monies advanced were a gift, not loans. Parties executed a settlement agreement in May 2012. Analysis of Queen’s Bench rules 24.02(1), 24.02(1)(a), 24.02(1)(e) and 24.01, all centering around “long delay”. Motion dismissed.

    Stewart v. 6551450 Manitoba Ltd. et al; 6551450 Manitoba Ltd. v. Spence, 2022 MBQB 84: Litigation involving two claims related to efforts to sell a parcel of land. One claim is a dispute over a loan made between Stewart and 6551450 MB (“655”); other claim is between 655 and Peguis First Nation for breaching fiduciary and contractual duties. Stewart loaned 655 $600,000 as noted in meeting minutes and a promissory note but no loan agreement. 655 claimed there was no loan. Harris, J. found there was enough documentary evidence to show there was a loan. Breach of fiduciary duty was over purchase agreement. Deal required approval by the RM to develop a quarry on the parcel of land. Harris found no breach; claim dismissed.


    Constitutional Law

    Flette et al. v. The Government of Manitoba et al., 2022 MBQB 104: Four proceedings combined addressing common issues of the constitutional validity of legislation and certain actions of Manitoba dealing with provincial funding of child protection and welfare. Proceedings allege inappropriate conduct by Manitoba relating to the Children’s Special Allowance (CSA). Manitoba directed CFS Agencies within some First Nations authorities to remit the CSA to Manitoba. Some agencies refused. Issue is over whether the allowance should be remitted to the province or if it is to be remitted to the agency for use on behalf of the child. Edmond, J. lays out the context respecting the constitutional challenges (para 61). Analysis of the intermingling of The Budget Implementation and Tax Statutes  Amendment Act, 2020, S.M. 2020 c. 21 (BITSA and CSA.

    Criminal Law

    R. v. J.J., 2022 SCC 28: Challenge to the constitutionality of ss. 278.92 to 278.94 of the Criminal Code, dealing with the record screening regime for sexual offences. Includes definition of a “record” (para. 34). Crown’s appeal should be allowed, J.’s cross-appeal dismissed, S.’s (complainant) appeal allowed and applition judges’ rulings quashed.

    Per?Wagner?C.J. and?Moldaver, Karakatsanis, Martin, Kasirer and Jamal?JJ.: Before determining the constitutionality of the impugned provisions, it is necessary to interpret them. First, it must be determined what qualifies as a “record” for private record applitions, using?s.?278.1?as the starting point. The definition of “record” creates two distinct groups: (1)?records that fall within enumerated tegories; and (2)?records that do not fall within the enumerated tegories but otherwise contain personal information for which there is a reasonable expectation of privacy.?

    Per?Brown?J. (dissenting in part): The record screening regime enacted under?ss.?278.92?to?278.94?of the?Criminal Code?limits the accused’s rights under?ss.?11(c),?11(d)?and?7?of the?Charter. These limits are disproportionate and nnot be demonstrably justified in a free and democratic society. Therefore, ss.?278.92 to 278.94 should be struck down, with immediate effect, but only as those sections relate to the record screening regime.?

    Per?Rowe?J. (dissenting in part): On the merits, there is agreement with Brown J. that?ss.?278.92?to?278.94?of the?Criminal Code?are unconstitutional and of no force and effect except in so far as they apply to the existing?s.?276?regime. The legislation restricts the fair trial rights of accused persons by placing limits on how they n conduct the cross?examination of Crown witnesses and what evidence they n introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants.?

    Per?C?té?J. (dissenting in part): There is agreement with Brown?J. that the record screening regime does not come close to passing constitutional muster. There is also agreement with Rowe?J.’s analytil approach in respect of?s.?7?of the?Charter. However, there is disagreement with the analyses and the conclusions of both the majority and Brown?J. on the interpretation of “record” and “adduce”. A narrow interpretation should be preferred.

    R. v. Goforth, 2022 SCC 25: Issue of charge to jury and whether it may have misled the jury. Appeal allowed and convictions restored.

    Per?Wagner C.J. and Moldaver, Karakatsanis,?C?té, Rowe and Kasirer JJ.: The jury was properly instructed. The jury charge functionally conveyed the?mens rea?requirements such that there is no reasonable possibility that the jury would have been confused. The charge also sufficiently recited the evidence about the circumstances that the accused argued prevented him from foreseeing the risk of harm to the children. As well, the jury was well?equipped to make a common sense assessment of whether failing to provide food or fluids to young children constituted a marked departure from the conduct of a reasonably prudent person.

    Per?Brown, Martin and Jamal JJ.: The jury charge, when viewed from the functional perspective required by the jurisprudence, did not properly equip the jury to decide the se according to law. However, as no substantial wrong or misrriage of justice flowed from the deficient instructions, the curative proviso should be applied. There is therefore agreement with the majority that the appeal should be allowed and the convictions restored.

    R. v. Hall, 2022 MB 59: Sentence appeal; accused argues it is demonstrably unfit as it is harsh and excessive. He received a nine year sentence for four counts of robbery with a weapon. Leave to appeal denied.

    R. v. Reimer, 2022 MB 55: Appeal of dismissal of applition for an order of habeas corpusand mandamus. Accused is charged with two counts of second-degree murder and plans to assert a defence of not criminally responsible. Crown obtained an order for an assessment but it n’t be completed within the 30-day time frame. Assessment order had lapsed by the time me before the applition judge; it was dismissed as moot. Appeal dismissed.

    R. v. Cleveland, 2022 MB 54: Appeal of conviction on a charge of first degree murder. Accused is self represented. Grounds of appeal are the trial judge’s decision to admit similar fact evidence; adequacy of the charge to the jury; and ineffective assistance of counsel at trial. Appeal dismissed.

    R. v. Siwicki, 2022 MB 53: Appeal of order dismissing appellant’s applition re a request to change the venue of sentencing. Critil question is whether a court maintains oversight of such requests. Analysis of interpretation of s. 479 of the Criminal Code. Analysis of concepts of “jurisdiction over the offence” and “jurisdiction over the person”. found that Court, not parties, has the final word on where a sentencing hearing will occur.

    R. v. F. (J.M.), 2022 MB 52: Appeal for conviction for first degree murder, and leave to appeal sentence. Trial judge convicted the appellant based on circumstantial evidence. Issue of admissibility of a cellphone and its contents. Trial judge found a breach of s. 10(b) of the Charter, but after conducting a s. 24(2) analysis, admitted the evidence. determined trial judge should have considered the provisions of s. 146 of the YCJA. Conviction and sentence set aside; matter remitted back to trial court for a new trial.

    R. v. D.L., 2022 MBQB 127: Accused charged with sexual assault. Complainant testified she was intoxited and had no memory of the events. Accused testified that she wasn’t overly drunk and there was consent. Court must consider a W.(D.) analysis. Leven, J. found accused was not credible; accused guilty as charged.

    R. v. Williams, 2022 MBQB 125: Sentencing decision for conviction of manslaughter. Accused was in a drug-induced psychosis at the time. Many aggravating factors and no mitigating factors in terms of the offence itself. Mcrthy, J. takes judicial notice of Gladue factors impacting the offender. None of the se law provided by Crown and defence counsel was directly on point. Due to violent nature of crime, accused is sentenced to life in prison.

    R. v. Pierpoint et al., 2022 MBQB 117: Request that indictment be stayed due to delay. Applints were released after their arrest and have remained out-of-custody throughout the proceedings. Crown argues that the delay was used by the impact of COVID-19, courts were closed for out-of-custody trials for five months. Both parties provided an extensive factual underpinning relevant to the court’s consideration. Determination that the systemic impact of the pandemic is an exceptional circumstance, and that this is a complex se also giving rise to exceptional circumstances. Applition dismissed.

    R. v. D.J.S., 2022 MBQB 116: Sentencing decision for conviction of one count of sexual assault. Rempel, J. explained the difficulties in determining a fair and just sentence. Complainant was 14 and on the autism spectrum; accused was 23 and diagnosed with schizophrenia. Review of role of sentencing, including Gladue and Ipeelee factors. Primary consideration must be given to the objectives of deterrence and denunciation. Crown is seeking a sentence of five years less pre-sentence credit. Defence argues five years would be crushing to the accused due to his mental illness and ability to receive treatment. They argue two years less a day plus a signifint period of probation would be appropriate. Court imposed a period of inrceration of three years and six months plus ancillary orders.

    R. v. P.K., 2022 MBQB 107: Applition to terminate a SOIRA order under s. 490.015(1)(b) of the Criminal Code. Accused was required to be registered for a period of 20 years. Onus is on the accused to satisfy the requirements for termination on the balance of probabilities. Keyser, J. sets out the test as found in R. v. D.D., 2020 BC 169. Order terminated.

    R. v. Muskego, 2022 MBQB 101: Accused charged with possession of a prohibited weapon, unlawful storage of a firearm and intentionally discharging a firearm. Trial raises the issue of false confessions. Consideration of R. v. Pearce (M.L.), 2014 MB 70. Accused found guilty of discharging a firearm; other charges withdrawn.

    R. v. A.C., 2022 MBQB 99: Trial for charges of assault, assault with a weapon and sexual assault between domestic partners. Assaults took place over many years; complainant had difficulty determining exact dates. Leven, J. considers R. v. Barton and R. v. W.(D) in his analysis. Accused found guilty of sexual assault, common assault, and not guilty of assault with a weapon.

    R. v. Parker, 2022 MBQB 66: Sentencing decision after guilty plea for possession of a loaded prohibited firearm, breach of a weapons prohibition order and assault. Accused committed offences while under the influence of various drugs. He was released on a strict curfew and enrolled in a treatment program on his own initiative. Crown is seeking a total sentence of 42 months imprisonment; defence seeks a total sentence of two years less a day, conditionally. Overarching principle is proportionality. Drug addiction is both an aggravating and mitigating factor. Suche, J. considers numerous ses on sentencing both for and against imprisonment. Court determines a conditional sentence following by three years probation will be effective.

    R. v. Mamula, 2022 MBPC 34: Applition for a stay of proceedings due to delay. Total delay is 33 months and 25 days. Crown argues that but for the COVID pandemic, the trial would have occurred in September 2020. Defence argues that the Crown failed to take reasonable steps to mitigate the delay. Devine, P.J. finds that the court and the Crown did take mitigating steps; applition dismissed.

    R. v. Shamrat, 2022 MBPC 33: Applition to stay proceedings due to delay. Trial has been adjourned and rescheduled six times, due to restrictions during the pandemic. Arrest was on September 7, 2019. Applint has been out of custody since his arrest. Total delay is 33 months and 21 days. Delay by defence amounts to 53 days. Analysis of other jurisdictions’ responses to the impact of the pandemic to trial schedules and whether six adjournments counts as “exceptional” and a “discrete event”. rlson, P.J. finds delay attributable to exceptional circumstances amounts to 24 months.

    R. v. S.A., 2022 MBPC 28: Sentencing decision re guilty plea for distribution of intimate images. Extensive nvas of treatment of other offenders from different jurisdictions, as well as two from MB. Deterrence and denunciation are the primary sentencing objectives. Both aggravating and mitigating factors to take into consideration. Heinrichs considered a Conditional Sentence Order but determined the aggravating factors warranted a custodial sentence. Sentence of nine months in custody and a two year order of supervised probation.

    R. v. Shuvera, 2022 MBPC 27: Sentencing decision for one count of dangerous driving using bodily harm. Accused pleaded guilty. Complainant received serious injuries from the collision. Review of authorities indites a sentencing range of no jail to signifint jail. Custodial sentence of eight months followed by two years of supervised probation.

    R. v. Dew, 2022 MBPC 26: Trial of accused charged with luring based on text communitions with a 15 year old. Only issue is whether the communition constituted the offence of luring. Explanation of operation and purpose of the offence of luring set out in R. v. Legare, 2009 SCC 56. Accused found guilty.

    R. v. Genaille, 2022 MBPC 25: Voir dire decision re applition to admit co-accused’s hearsay statement for truth. Accused Richard provided a video statement to the police denying accused Genaille’s involvement. Crown did not seek to tender the comments at trial. Applition dismissed; threshold reliability has not been established.

    Cristin Schmitz. Ottawa Proposes Narrower Self-Induced Extreme Intoxition Defence to Violence to “Fill the Legal Gap”. The Lawyer’s Daily, June 20, 2022.

    Ryan Clements. Cross Country Noteup – Criminal Appeals. nLIIConnects. Short summaries of criminal appeals from all jurisdictions published on a monthly basis.

    Steve Coughlan. R. v. McKenzie: Continuing Confusion on Common Law Powers, (2022) 77 C.R. (7th) 330. (WLC – LSM members n request a copy.)

    In most ways the result in McKenzie[2022 MB 3]  is unremarkable. Police observed a known gang member who was known to rry weapons and who seemed to be concealing one at that moment, detained him, found the weapon, and he was convicted. Once the accused’s challenge on appeal to the trial judge’s findings that underlay the relevant legal tests failed, there was no other plausible result than that the detention and search would be found to be lawful. At the same time, the se illustrates the confusion inherent in common law powers such as investigative detention and search incident to investigative detention. Some aspects of this are commented on by the Manitoba Court of Appeal, while others are demonstrated by the decision.


    Family Law

    A.A.O. nka T.L.K. v. N.O.O. et al., 2022 MB 58: Respondent appeals order granting petitioner sole custody, setting child and spousal support, and apportioning dayre expenses. Key to the sole custody order was that the respondent had been charged criminally with aggravated assault of an infant in her re. Family law orders are entitled to considerable deference absent an error in principle, a signifint misapprehension of the evidence or an award that is clearly wrong. None of those apply; appeal dismissed.

    C.E.S. v. S.O.S., 2022 MBQB 120: Issue of the allotion and form of parenting time petitioner is to have with the parties’ daughter. Petitioner wants equal time; respondent says current arrangement, limited time and supervised, should remain the same. Complex family history; petitioner made claims to Child and Family Services resulting in abuse investigations of the respondent. Agency determined that children were at risk of harm with petitioner, instead. Thomson, J. orders minor adjustments to support paid under the interim orders and current parenting arrangements remain.

    Lukianchuk v. Lukianchuk, 2022 MBQB 115: Motion to rescind a variation order filed pursuant to Rule 37.11(1). Petitioner (wife) was in the middle of changing counsel when the order was filed. Respondent (husband) asked for arrears to be set at $0.00. No one disclosed that Maintenance Enforcement Program had issued a creditor statement of account stating that there was an enforceable balance of arrears of child support owed by the husband in the amount of $64,415.68. Analysis of petitioner’s actions show she did not proceed “promptly”. Applition dismissed.

    Chen v. Ma, 2022 MBQB 114: Issue re child support as provided in a written agreement made between the parties in 2016. Dayre expenses not included in consent final order and divorce judgment but included in agreement. Parties are to share the expense on a 50/50 basis. Issue is whether it should be gross dayre expenses or net (after deduction for expenses under the Income Tax Act). Thomson, J. rules that the plain meaning of the agreement means the net expense, agreeing with the defendant.

    Blanchard v. Maxwell, 2022 MBQB 113: Dispute over child support, timing and lotion of weekly exchanges and imputation of income. Parties had an interim court order for child support. Mother wished to make changes to pick-up/drop-off due to difficulties of current arrangement; father did not want to make any changes. Mother had detailed proposal for alternatives, father did not. Leven, J. imputed income for both parties to arrive at new child support award of $812/month, plus arrears.

    CFS Western MB v. M.L.K. and T.D.R., 2022 MBQB 106: Agency seeks a permanent order for a child apprehended in 2019. Mother’s father and father’s sister seek guardianship (separately). Mother and father oppose order sought by Agency, and want the child returned to them. Child is Indigenous; Abel, J. takes into consideration the provisions of An Act respecting First Nations, Inuit and Métis Children Youth and Families, S.C. 2019 c. 24 which has a more expansive list of factors to be considered when determining the best interest of a child. Neither parent is able to provide adequate re at this time. Discussion of whether a permanent order, a temporary order or an alternate placement order would be best.

    Trojnar v. Trojnar, 2022 MBQB 102: Motion to set aside a variation order for spousal support. Order had been pronounced after two lengthy JADR sessions. Issue over a term that the lump sum spousal support payments could be used as a deduction on the petitioner’s tax returns for two years. He later discovered he could not obtain the tax refunds he anticipated. Motion pleaded “common mistake”, and also relied on Queen’s Bench Rule 59.06(2)(a). Motion dismissed.

    Wright v. Wright, 2022 MBQB 97: Master’s decision on disputed property issues. Contested issues included vehicles, valuation of a family-controlled small business corporation, and RRSPs. Master Patterson commented on the lack of evidence for parties’ respective positions as jeopardizing a desired outcome.

    Stephanie Dickson, Melanie Battaglia. Child Support for Adult Children and Children with a Disability: The Impact of ODSP, the Disability Tax Credit, RDSP and RESP. (2022) 40 C.F.L.Q. 169 (WLC – LSM members may request a copy.)

    In this article, we provide a summary of the primary types of public benefits, tax credits and social assistance programs available to the family when supporting an adult “child” with a disability. In particular, we discuss the Ontario Disability Support Program (“ODSP”), the Federal Disability Tax Credit (“DTC”), Registered Disability Savings Plan (“RDSP” — as distinguished from the Registered Edution Savings Plan, “RESP”), and Ontario’s Passport Funding. 

    Georgialee A. Lang. An Exhausting and Ruinous Parenting se: J.M. v. E.M. The Lawyer’s Daily, June 21, 2022. se comment on 2022 AB 49, a decision involving family violence, a mother who fled to Germany, and contempt of court charges.


    Labour and Employment Law

    Terry Davidson. Ontario Court Rules on Teachers’ Digital Communitions Being Intercepted by Principal. The Lawyer’s Daily, June 24, 2022. Comment on Elementary Teachers Federation of Ontario v. York Region District School Board,2022 ON 476 on “reasonable expectation” of privacy afforded to employees.

    Wills, Trusts & Estates

    nada (Attorney General) v. Collins Family Trust, 2022 SCC 26: Interpretation of attribution rules in s. 75(2) and inter-corporate dividend deduction in s. 112(1) of the Income Tax Act. Tax Court of nada interpreted s. 75(2) differently than was commonly accepted by tax professionals and CRA. Reassessment of the trusts’ returns led to unanticipated tax liability. Trusts petitioned for the equitable remedy of rescission.

    Per?Wagner C.J. and Moldaver, Karakatsanis,?Brown, Rowe, Martin, Kasirer and Jamal JJ.: Taxpayers should be taxed based on what they actually agreed to do and did, and not on what they could have done or later wished they had done. A determination that equity n relieve a tax mistake is barred by a limiting principle of equity and by principles of tax law stated in?nada (Attorney General) v. Fairmont Hotels Inc.,?2016 SCC 56, and?Jean Coutu Group (PJC) Inc. v. nada (Attorney General),?2016 SCC 55, Accordingly, the trusts are barred from obtaining rescission of the transactions.

    Per?C?té?J. (dissenting): The appeal should be dismissed. Rescission is, in strictly limited circumstances, an available remedy that n be used to unwind transactions that were undertaken on the basis of a mistaken assumption, even if permitting it would effectively relieve the taxpayer from payment of unexpected taxes.?

    Re Estate of Marjorie Doreen Pelletier; Ratt v. Pelletier et al., 2022 MBQB 123: Applition for an order that a testamentary document executed by the deceased be declared fully effective. Document is a codicil that was not incompliance with the Wills Act. Review of the circumstances leading to the writing of the codicil, and discussion of the competence of the deceased when it was written. Steps a court must follow set out in Schrof v. Schrof et al., 2017 MBQB 51. Analysis of whether suspicious circumstances exist. Chartier, J. finds for the applint.

    Nicol v. Nicol, 2022 MBQB 111: Defendant was executor of the estate of his mother. Plaintiff, his sister, did not accept payment of her share of the residue in 2005, as she was on social assistance and did not want it to affect her benefits. Defendant eventually divided the remaining residue to the other beneficiaries, including himself. Plaintiff now asks for an order for summary judgment alleging that the defendant committed a breach of trust and fraud. Abel, J. finds that the plaintiff has not met her evidential burden that there is no genuine issue for trial and that the defendant did not commit fraud. He allows the plaintiff to make further submissions at another hearing. Aubrie Girou, therine Bunio. B.C. Bill-21 and Electronic Wills: Progressive or Problematic? (2022) 41 Est. Tr. & Pensions J. 152. (LSM members may request a copy).


    Legislation


    Federal

    BILLS – 44th PARLIAMENT, 1st SESSION
    Bill NumberTitleLatest Activity
    S-10An Act to give effect to the Anishinabek Nation Governance Agreement, to amend the Sechelt Indian Band Self-Government Act and the Yukon First Nations Self-Government Act and to make related and consequential amendments to other ActsRoyal assent received
    C-14An Act to amend the Constitution Act, 1867 (electoral representation)Royal assent received
    C-19An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measuresRoyal assent received
    C-24An Act for granting to Her Majesty certain sums of money for the federal public administration for the fisl year ending March 31, 2023Royal assent received
    C-25An Act for granting to Her Majesty certain sums of money for the federal public administration for the fisl year ending March 31, 2023Royal assent received
    C-28An Act to amend the Criminal Code (self-induced extreme intoxition)Royal assent received
    C-11An Act to amend the Broadsting Act and to make related and consequential amendments to other ActsAt second reading in the Senate
    C-21An Act to amend certain Acts and to make certain consequential amendments (firearms)At consideration in committee in the House of Commons
    Bill NumberTitleStatus
    S-236An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)At report stage in the Senate
    C-5An Act to amend the Criminal Code and the Controlled Drugs and Substances ActAt consideration in committee in the Senate
    S-5An Act to amend the nadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination ActSenate bill awaiting first reading in the House of Commons
    S-6An Act respecting regulatory modernizationAt second reading in the House of Commons
    C-297An Act to amend the nada Elections Act (Indigenous languages)Outside the Order of Precedence
    C-29An Act to provide for the establishment of a national council for reconciliationAt second reading in the House of Commons
    C-245An Act to amend the nada Infrastructure Bank ActBill defeated
    C-226An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justiceAt consideration in committee in the House of Commons
    C-224An Act to establish a national framework for the prevention and treatment of ncers linked to firefightingAt consideration in committee in the House of Commons
    C-228An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985At consideration in committee in the House of Commons
    S-9An Act to amend the Chemil Weapons Convention Implementation ActSenate bill awaiting first reading in the House of Commons
    S-4An Act to amend the Criminal Code and the Identifition of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)Senate bill awaiting first reading in the House of Commons

    Provincial

    The House adjourned on June 1, 2022. The 4th Session of the 42nd Legislature will reconvene on Wednesday, September 28, 2022 at 1:30 p.m.

    Proclamations

    ChapterTitle     (provisions)Date in forceDate signedProclamation
    SM 2022, c. 11The Court of Appeal Amendment and Provincial Court Amendment Act Part 11 Jan 20236 Jul 2022Proclamation
    SM 2022, c. 16The Legislative Security Amendment Act whole Act7 Jul 20226 Jul 2022Proclamation
    SM 2017, c. 13The Emergency Medil Response and Stretcher Transportation Amendment Act clause 2(a) insofar as it repeals the definitions “air ambulance”, “ambulance operator”, “grant” and “municipality”clauses 2(b) and (c)sections 3 and 6 to 11clause 13(1)(c)subsections 13(2) to (4)sections 14 and 151 Jul 202222 Jun 2022Proclamation
    SM 2021, c. 15The Regional Health Authorities Amendment Act (Health System Governance and Accountability) section 74 insofar as it enacts sections 79.2 and 79.3sections 83, 92 and 98clauses 134(a) and (b)1 Jul 202222 Jun 2022Proclamation
    SM 2021, c. 17The Crown Land Dispositions Act (Various Acts Amended) whole Act1 Jul 202222 Jun 2022Proclamation
    SM 2021, c. 24The Credit Unions and isses Populaires Amendment Act whole Act1 Jul 202222 Jun 2022Proclamation
    SM 2022, c. 11The Court of Appeal Amendment and Provincial Court Amendment Act whole Act except Part 11 Jul 202222 Jun 2022Proclamation
    SM 2022, c. 12The Scrap Metal Act whole Act18 Jul 202222 Jun 2022Proclamation

    Regulations

    NumberTitle Registered Published
    71/2022Self-Insured Employers Regulation, amendment23 Jun 202223 Jun 2022
    72/2022Scrap Metal Regulation24 Jun 202227 Jun 2022
    73/2022Credit Unions and isses Populaires Regulation24 Jun 202227 Jun 2022
    74/2022Exemption (Credit Unions and isses Populaires) Regulation24 Jun 202227 Jun 2022
    75/2022Child and Family Services Authorities Regulation, amendment24 Jun 202227 Jun 2022
    76/2022Assistance Regulation, amendment24 Jun 202227 Jun 2022
    77/2022Assistance Regulation, amendment24 Jun 202227 Jun 2022
    78/2022Employees Requiring Ministerial Authorization to Acquire Crown Lands Regulation24 Jun 202227 Jun 2022
    79/2022Transportation Infrastructure (General) Regulation, amendment24 Jun 202227 Jun 2022
    80/2022Health Authorities and Health Regions Regulation24 Jun 202227 Jun 2022
    NumberTitle Registered Published
    81/2022Manitoba Health Appeal Board Regulation, amendment24 Jun 202227 Jun 2022
    82/2022Sessional Rates for Services Regulation, repeal24 Jun 202227 Jun 2022
    83/2022Fees for Emergency Medil Response Services Regulation24 Jun 202227 Jun 2022
    84/2022Health Authorities (General) Regulation, amendment24 Jun 202227 Jun 2022
    85/2022Hospital Services Insurance and Administration Regulation, amendment24 Jun 202227 Jun 2022
    86/2022Personal re Services Insurance and Administration Regulation, amendment24 Jun 202227 Jun 2022
    87/2022Wildlife Fees Regulation, amendment24 Jun 202227 Jun 2022
    88/2022Threatened, Endangered and Extirpated Species Regulation, amendment24 Jun 202227 Jun 2022
    89/2022Standards of Sound Business Practice Regulation24 Jun 202227 Jun 2022
    90/2022Prudential Standards for Credit Union Central of Manitoba Regulation24 Jun 202227 Jun 2022
    91/2022General Hunting Regulation, amendment27 Jun 202228 Jun 2022
    92/2022Hunting Seasons and Bag Limits Regulation, amendment27 Jun 202228 Jun 2022
    93/2022Wildlife Protection Regulation, amendment27 Jun 202228 Jun 2022
    94/2022Air Emergency Medil Response System Regulation, amendment29 Jun 202230 Jun 2022
    95/2022Land Emergency Medil Response System Regulation, amendment29 Jun 202230 Jun 2022
    96/2022Fees in Lieu of Taxes and Related Matters Regulation (2022)30 Jun 202230 Jun 2022
    97/2022Tax Rates Regulation (2022)30 Jun 202230 Jun 2022
    98/2022Charges Payable by Long Term re Patients Regulation, amendment30 Jun 202230 Jun 2022
    99/2022Agency Mandates Regulation, amendment30 Jun 20221 Jul 2022
    100/2022Agency Mandates Regulation, amendment30 Jun 20221 Jul 2022
    101/2022Preset Fines and Offence Descriptions Regulation, amendment7 Jul 20227 Jul 2022
    102/2022Gas and Oil Burner Regulation, amendment7 Jul 20227 Jul 2022
    103/2022Construction Industry Minimum Wage Regulation, amendment7 Jul 20227 Jul 2022
    104/2022Student Aid Regulation, amendment7 Jul 20227 Jul 2022
    105/2022Prohibited Activities Regulation7 Jul 20227 Jul 2022

    Current Awareness – New Journals and Issues

    The most recent issues of these journals are now available on Lexis Advance Quicklaw. If you are interested in one of these titles, or any other journal articles, email us for a pdf copy.

    nadian Family Law Quarterly

    • Access and Openness in Ontario: A Legal Analysis of How Children’s Important Relationships n be Maintained 40 C.F.L.Q. 219 Jennifer Gallagher; Elizabeth Mcrty; Ian Ross
    • Jurisdiction Issues Facing Ontario Courts 40 C.F.L.Q. 295 Vanessa Lam
    • Separation Date Principles and Assessment Guide 40 C.F.L.Q. 335 David Frenkel; Yunjae Kim

    Journal of Parliamentary and Politil Law

    • The Origins of the retaker Convention: Governor General Lord Aberdeen’s Dismissal of Prime Minister Tupper in 1896 16 J. Parliamentary & Pol. L. 391 J.W.J. Bowden
    • Including Emerging Litigation Comprenant les Litiges en Voie de Développement 16 J. Parliamentary & Pol. L. 537 Gregory Tardi
    • Review of: The Rowell-Sirois Commission and the Remaking of nadian Federalism by Robert Wardhaugh and Barry Ferguson (Vancouver: UBC Press, 2021) 16 J. Parliamentary & Pol. L. 561 David M. Brock
    • Moving Toward Gender Balance in Public Life 16 J. Parliamentary & Pol. L. 349 Gregory Tardi

    See more

    • Lambourne v. Attorney General, [2021] KIHC 8 High Court of Kiribati 16 J. Parliamentary & Pol. L. 531 Gavin Murphy
    • Speeches of Some of the ndidates for the Position of Speaker of the 44th House of Commons: Improvements Necessary for a Sounder Parliament, Monday, November 22 16 J. Parliamentary & Pol. L. 355
    • Glover v. Progressive Conservative Party of Manitoba: Courts Deferential in Reviewing Internal Party Affairs–Even when They’re “Contracts” 16 J. Parliamentary & Pol. L. 521 Professor Gerard J. Kennedy
    • Rethinking the Official Languages Act 16 J. Parliamentary & Pol. L. 361 Stephen Thompson
    • “Guesswork Is a Poor Foundation for Democracy” The Principled Lesson of the se of Mitchell v. Jackman 16 J. Parliamentary & Pol. L. 513 Allison S. Conway
    • Democratic Election Alert! Alerte! D’Une élection Démocratique 16 J. Parliamentary & Pol. L. 318
    • The Impact of Litigation on Public Policy 16 J. Parliamentary & Pol. L. 445 Hugh Trenchard
    • The Resignation of Overseas Judges from Hong Kong’s Court of Final Appeal–Should We Worry? 16 J. Parliamentary & Pol. L. 485 Horace Yeung
    • The Supreme Court of Nigeria Decision in Re: Abdullahi Re-Echoing Ubi Jus Ibi Remedium: A Shield and a Sword 16 J. Parliamentary & Pol. L. 471 David Tarh-Akong Eyongndi
    • The Criminal Sanction of Violence Toward Healthre Workers 16 J. Parliamentary & Pol. L. 497 Dawn McKevitt

    Windsor Yearbook of Access to Justice

    • Mapping Racial Geographies of Violence on the Colonial Landspe 38 Windsor Y.B. Access to Just. 1 Ingrid Waldron
    • The Consequences of Unfreedom: Learning from Story Amidst a Global Climate Crisis38 Windsor Y.B. Access to Just. 30 Meghan Robinson
    • Incomplete Justice: The Costs of Partial Indemnity 38 Windsor Y.B. Access to Just. 46 Adil Abdulla
    • Integrating Social Work within Legal Clinics: An Inter-Professional Perspective to Address Social-Legal Needs 38 Windsor Y.B. Access to Just. 10 Alicia Lam, Vanessa Emery, Renee Griffin, Michael Saini
    • “A So-lled Tenants’ Union”: Defining the Organizational Power of Tenants within and Outside the Law 38 Windsor Y.B. Access to Just. 75 Seema Shafei

    Supreme Court Law Review vol. 105 Forgotten Foundations of The nadian Constitution

    Forgotten Foundations of the nadian Constitution: An Introduction – Brian Bird & Derek Ross (2022) 105 S.C.L.R. (2d) 1 – 11

    Special Essay

    •  The Forgotten Roots of nada’s Living Tree: Constitutional Interpretation and the Rule of Law – The Honourable Marshall Rothstein C.C., Q.C. (2022) 105 S.C.L.R. (2d) 15 – 36

     Part I – First Principles: The Supremacy of God and The Rule of Law

    •  God in the Constitution: The Supremacy of God Clause in the Preamble to the nadian Charter of Rights and Freedoms – Dwight Newman, Q.C. (2022) 105 S.C.L.R. (2d) 39 – 56
    •  The First Division of Power: State Authority and the Preamble to the Charter – John Sikkema (2022) 105 S.C.L.R. (2d) 67 – 93
    •  The Rule of Law in Judicial Review Today – Mark Mancini (2022) 105 S.C.L.R. (2d) 95 – 118

    See more

     Part II – Limiting and Delimiting Charter Rights and Freedoms

    •  Resetting the Foundations: Renewing Freedom of Expression under Section 2(b) of the Charter – Jamie meron (2022) (2022) 105 S.C.L.R. (2d) 121 – 151
    •  Pluralism and Freedom from Assimilation: A Foundation for a “Free and Democratic Society” – Derek Ross (2022) 105 S.C.L.R. (2d) 153 – 188
    •  The Truck and the Brakes: Understanding the Charter’s Limitations and Notwithstanding Clauses Symmetrilly – Geoffrey T. Sigalet (2022) 105 S.C.L.R. (2d) 189 – 222

     Part III – The Charter’s Underexplored “General” Clauses

    •  Unchartered Rights and the Free and Democratic Society – Brian Bird (2022) 105 S.C.L.R. (2d) 225 – 246
    •  “The Rights Retained By The People”: The Implitions of the Ninth Amendment for the Interpretation of Section 26 of the Charter – Matthew P. Harrington (2022) 105 S.C.L.R. (2d) 247 – 283
    •  All the Voices of Religious Freedom – Blair Major (2022) 105 S.C.L.R. (2d) 285 – 321
    •  Section 31 and the Charter’s Unexplored Constraints on State Power – André Schutten and Tabitha Ewert (2022) 105 S.C.L.R. (2d) 322 – 354

    Part IV – The Foundational Role of Constitutional History

    •  Applied Legal History and the Principled Way Forward to the Recognition of Implied Fundamental Rights – Ryan Alford (2022) 105 S.C.L.R. (2d) 359 – 393
    •  Bringing About a Reformation? Religious Freedom and nadian Constitutionalism, 1759-1774 – Kristopher E.G. Kinsinger (2022) 105 S.C.L.R. (2d) 395 – 417

    HeinOnline Journals

    These journals are available electronilly in the online library resources.

    The June content update includes 11 new titles, including 6 from the recent addition of Springer Journals.

    Blog Round Up June 2022

    A round-up of blog posts and online articles gathered from the Manitoba legal community during the month of June.

    Brodsky Amy & Gould

    Davis Cyber Law

    Matthew Gould Blog (Criminal Law)

    MLT Aikins

    Michael Dyck

    Pitblado Law Blog

    Robson Crim Legal Blog

    TDS law