2012 MBA Bar Bonspiel

Transcription

Volume XLIV No./no 3
March / mars
2012
CONTENTS
TABLE DES MATIÈRES
NOTICES TO THE PROFESSION /
AVIS AUX AVOCATS :
Property Registry Turnaround Report . . . . . . . .2
Notices to the Profession . . . . . . . . . . . . . . . . . . . . . .4
Section & Business News . . . . . . . . . . . . . . . . . . .5-7
Classifieds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2012 Mid-Winter Reports . . . . . . . . .11-14, 16-17
Pro Bono Report . . . . . . . . . . . . . . . . . . . . . . . . .18-19
REPORTS / RAPPORTS :
President's Message . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Robson Hall Research Report . . . . . . . . . . . . . . . . .9
CBA News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
What’s Happening? . . . . . . . . . . . . . . . . . . . . . . .20-21
Call for Nominations CBA Standing Committees . . . . . . . . . . . . . . . . .21
Criminal Law Decisions . . . . . . . . . . . . . . . . . . . . . .23
Civil Litigation Decisions . . . . . . . . . . . . . . . . .24-25
Estates and Trusts Decisions . . . . . . . . . . . . . . . . .26
FEATURES / ARTICLES :
MBA Council Highlights . . . . . . . . . . . . . . . . . . . . . . .9
Articling Student Recruitment Guidelines . . . .22
CCCA World Summit and Spring Conference .25
EVENTS / ACTIVITÉS :
2012 Bar Bonspiel . . . . . . . . . . . . . . . . . . . . . . .Cover
2012 Hockey Standings . . . . . . . . . . . . . . . . . . . . . . .2
2012 Law Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Headnotes & Footnotes
Titres et rubriques
2012 MBA
Bar Bonspiel
Granite Curling Club
Friday, March 23, 2012
Entry Fees:
CBA/MBA Members
Lawyer / Judge
Law Student / CPLED Student
Non Members
Lawyer / Judge
Law Student / CPLED Student
Entry Fee Includes:
• GST
• Special Contests
• Sit Down Dinner
• Coffee and Doughnuts
60.00 ea.
40.00 ea.
$
$
80.00 ea.
60.00 ea.
$
$
• Minimum four games guaranteed
(with full turn out of 16 teams)
• and other fantastic prizes . . .
For registration information contact the organizers:
Kerry UnRuh or Dana Kochan, Deeley Fabbri Sellen Law Corporation
(204) 949-1710 or fax (204) 956-4457
To Enter:
• Entries will only be received by Kerry UnRuh (no entries submitted to the
Manitoba Bar Association will be accepted)
• Entries must be submittted to Kerry as follows:
Kerry UnRuh
c/o Deeley Fabbri Sellen Law Corporation
903 - 386 Broadway, Winnipeg, MB R3C 3R6
Ph: 949-1710 Fax: 956-4457
• Teams must enter as a rink of four or more members
• The entry registration must list the names of all team members and be
accompanied with a single cheque covering the entire team registration (all
cheques must be payable to the Manitoba Bar Association)
• To give everyone an equal chance to enter, no registrations will be accepted prior
to February 15, 2012
• Registrations will be accepted on a first come first served basis
(accompanied with full payment)
• Registrations will be cut off as soon as 16 paid registrations are received
• At least 72 hours notice of withdrawal or cancellation by a team or member
to the organizers must be provided for any refunds to be considered
Sponsored by:
The Property Registry
Published by The Manitoba Bar Association
1450 - 363 Broadway
Winnipeg, Manitoba R3C 3N9
Ph: (204) 927-1210 Fax: (204) 927-1212
E-mail: admin@cba-mb.ca
Publié par l'Association du Barreau du Manitoba
363, Broadway, pièce 1450
Winnipeg (Manitoba) R3C 3N9
Tél. : (204) 927-1210 Téléc. : (204) 927-1212
C. élec. : admin@cba-mb.ca
MBA Executive Committee
Comité de direction :
President / Président :
Josh A. Weinstein
Vice-President / Vice-présidente :
Karen R. Wittman
Secretary/Treasurer / Secrétaire-trésorière :
Dean I. Scaletta
Advocacy/Public relations /
Promotion des intérêts et relations publiques :
Scott D. Abel
Membership/Member Services /
Recrutement et services aux membres :
Sofia Mirza
Past President / Président sortant :
Ken G. Mandzuik
Executive Director / Directrice : Stacy Nagle
Headnotes & Footnotes / Titres et rubriques :
Editorial Board / Comité de rédaction :
Josh Weinstein, Scott Abel, Jennifer Cooper, Q.C./c.r.,
Eric Lister, Q.C./c.r., Melanie Bueckert, Sarah Crabbe
Editor & Publisher / Rédactrice en chef :
Stacy Nagle, Executive Director / directrice
Design & Layout / Conception et mise en page:
On Parr Graphics @ 589-3389
Printer / Impression : Copy Plus
Opinions expressed are not necessarily those held by
the MBA.
Les opinions exprimées dans Titres et rubriques sont
celles des auteurs et ne reflètent pas nécessairement
celles de l'Association du Barreau du Manitoba.
© 2012, The Manitoba Bar Association
© 2012, L'Association du Barreau du Manitoba
CBA MEMBERS’ RATES:
Supplied artwork in PMT or electronic format.
Electronic format must be done in QuarkXpress or
supplied as a PDF. Please supply file, fonts and any
other linked images used in ads on a CD. Contact MBA
for non-member rates.
Full Page (7.5" wide x 10") . . . . . . . . . . . . . . . . . . . . . . .$345
1/2 Page (7.5" wide x 5") . . . . . . . . . . . . . . . . . . . . . . . . .$195
1/4 Page (3.5" wide x 5") . . . . . . . . . . . . . . . . . . . . . . . . .$110
Business Card Ad (3.5 wide x 2") . . . . . . . . . . . . . . . . .$ 65
Classified Ad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 40
Insert (Documents to be provided) . . . . . . . . . . . . . . .$265
Setting fee for display ads (one time only) . . . . . . . .$ 26
G.S.T. Registration #R126095728
Page/page - 2
Land Titles Offices - Surveys - Personal Property Registry
Registration Turnaround Time Report (in calendar days)
December 2011
Office
Q3
YTD
Winnipeg Land Titles Office
4.4
3.6
Portage Land Titles Office
Brandon Land Titles Office
Morden Land Titles Office
Neepawa Land Titles Office
Dauphin Land Titles Office
1.0
4.5
2.2
1.6
1.1
1.0
4.5
2.2
1.8
1.1
Regional Land Titles average
Personal Property Registry
2.1
2.1
same day
same day
Survey Plan Registration
(printed & electronic)
8.1
6.7
Hockey Standings
as of February 8, 2012
TEAM
Tapper
Aikins
Taylor
D&D
Pitblado
TDS
GP
18
18
18
18
18
18
W
11
11
10
9
9
4
L
6
6
6
7
8
12
SL
1
1
2
2
1
2
GF
67
58
70
68
62
54
GA
53
51
66
61
67
75
TOTAL
23
23
22
20
19
10
Scoring (as at February 8, 2012)
Player
Ian McIvor
Matt Duffy
Marc Marion
Gord Steeves
Scott Markham
Jamie Mercury
Steve Scarfone
Travis Webber
Josh Disenhouse
Connor Levy
Jack Fleming
Team
D&D
Pitblado
Taylor
D&D/Pitblado
Aikins
Aikins
Pitblado
D&D
Tapper
Taylor
Taylor
PUBLICATION
DEADLINE
The deadline for materials to be
submitted for the next edition (April
2012) of Headnotes & Footnotes is
March 12, 2012. Materials should
be emailed to Melissa Tannahill at
headnotes@cba-mb.ca
Goals
17
15
17
15
14
15
15
7
8
9
5
Assists
15
17
13
15
12
6
6
11
9
7
11
Points
32
32
30
30
26
21
21
18
17
16
16
DATE DE TOMBÉE
La date de tombée pour soumettre
du matériel pour le prochain numéro
« avril 2012 » de Titres et rubriques
est le 12 mars 2012. Veuillez
envoyer votre matériel à l’adresse
courriel de Melissa Tannahill :
headnotes@cba-mb.ca
Headnotes & Footnotes/ Titres et rubriques - March / mars 2012
President’s Message
by Josh Weinstein
Due to a printing error, my February 2012 President’s Message was not included in the printed
edition of Headnotes & Footnotes (although it was included in the electronic version). For this
reason, the MBA decided to re-print last month’s article.
In December, I kept seeing trailers for the new television series The
Firm, a sequel to the 1991 John Grisham novel of the same name and its
1993 film adaptation starring Tom Cruise. That got me thinking of the
scene near the beginning of the movie when Cruise’s character, Mitch
McDeere, starts his first day on the job, a day peppered with visits by
lawyers from several departments within the firm of Bendini, Lambert
& Locke. Each lawyer barges into Mitch’s office and dumps volumes of
case digests and texts on him. Each announces their areas of expertise
and then warns “no associate of Bendini, Lambert & Locke has ever
failed the bar exam”. I saw the movie just before starting my first year
of law school and feared that my first day would start just like Mitch’s.
All the textbooks, syllabi preparation and classroom time could not have
prepared me enough for the start of “the real world”. I knew I was illprepared being a full-fledged lawyer when, on the day of my call to the
bar, I forgot to bring cufflinks and instead sported the latest fashion in
Safeway twist-tie accessories to keep my cuffs together. I’m hopeful that
the current and future generations are at least better prepared than I
was. From what I’ve seen, they are and continue to be year after year.
I can appreciate the struggles and obstacles facing articling students
better today than before since undertaking to be our student’s principal
for the 2011/2012 articling year.
In most U.S. states, there’s no articling system and first year associates
are expected to learn as they go. I imagine that each system has its pros
and cons but I recognize the value in the articling process that we have
in Canada and especially Manitoba which allows for a year for a student
to “find themselves”. The Manitoba Bar Association prides itself on
being an extraordinary association for articling students to get the
exposure they need outside of their own
law firms or places of articles. Aside from
Josh Weinstein
networking opportunities, the MBA’s
continuing professional development
programs provide an outlet for students
to immerse themselves in a particular area of law that their own firm
may not have practitioners currently practicing in. Such exposure can
lead to new opportunities not only for the student but for the firm itself
to develop new areas of practice they hadn’t considered until their shiny
brand new student expressed an interest in it.
Another benefit to articling students is the insurance products offered
through the CBIA. Take, for instance, the life and disability insurance,
insurance by lawyers and for lawyers. The CBIA provides
comprehensive insurance at typically lower rates than the top five
insurers. While all of us as lawyers may appreciate this benefit, to an
articling student who may have mounds of debt and is typically making
far less than a first year associate, such benefits are even greater.
So, to all of the articling students reading this, please take advantage of
everything the MBA has to offer whether it is professional development,
networking opportunities or accessing our preferred suppliers. To all
fellow principals, you can fulfill your mentorship roll not just by guiding
your students through the day to day practice of law within your firm,
but by exposing them to the many benefits which exist outside of it. As
always, if you want more information on what the MBA can provide to
you and your students or if you have any questions or comments, please
do not hesitate to contact me at jweinstein@myersfirm.com or at (204)
926-1522.
@ Vancouver
2012 CBA Canadian Legal Conference
Mark your calendar now for Canada’s largest
legal conference
August 12-14 at the Vancouver Convention Centre
FEATURING:
z 12 hours of accredited PD
z Targeted products and services at the Legal
z A lineup of renowned keynote speakers
z Networking receptions
Marketplace
z At-home dinners
z Headline entertainment
Details coming in March at
www.cba.org/Vancouver2012
Page/page - 3
Notices to the Profession
Avis aux avocats
NEW MEMBERS
The Canadian and Manitoba Bar Association
welcome the following new members:
Debra Ammeter – Investors Group Financial
Services Inc.
Shasta Benaim – Law Student
Scott Christiansen – Law Student
Ian Clunie – Campbell, Marr LLP
Johanna Franz – Law Student
Kara Hill – Law Student
Sandra Hsia – Law Student
Lori Hunter – Manitoba Justice –
Prosecutions Service
Glenn Karr – Law Student
Herbert Liffman – Barrister & Solicitor
Melinda Lofchick – Chapman Goddard Kagan
John Neufeld, Q.C. – Smith Jodoin LLP
Andrew Sain – Law Student
Harley Shepherd – Brown & Associates Law
Office
Andrew Sieklicki – Law Student
Jesse Throne-Finch – Law Student
2012 LEgAL DIRECTORY ChANgES
P8
ALTERNATIVE DISPUTE
RESOLUTION (ADR)
Audra Bayer, Co-Chair
Audra M. Bayer Law Corporation
Ph: 204-952-6987
Fax: 204-415-4625
bayerlaw@shaw.ca
Kelli Potter, Co-Chair
Paterson Patterson Wyman & Abel
Ph: 204-727-2424
Fax: 204-728-4670
kpotter@patersons.ca
Lawrie Cherniack, Past Chair
Cherniack & Cherniack
Ph: 204-284-6886
Fax: 204-284-6965
lawrie@cherniack.ca
P 81 RATUSKI LAW OFFICE
2165 Henderson Highway
Winnipeg, MB R2G 1P9
applies to applications to vary certain support
orders where one party resides outside
Manitoba.
Effective December 20, 2011, the ISO Act
requires that the Designated Authority
pursuant to the Act be given notice of an
application or motion to vary at least 10 days
before the first court appearance date where
the application seeks to vary:
1) a support order that was made or
registered in Manitoba under the ISO
Act or the former REMO Act; or
2) any support order, if the applicant is
habitually resident in Manitoba and
the respondent
(i) is no longer habitually resident in a
reciprocating jurisdiction, or
(ii) is habitually resident in a
reciprocating jurisdiction that cannot
under its laws, or will not, facilitate
the determination of a support
variation application under section
25.
Notice to the Designated Authority must be
given to:
Designated Authority
Family Law Branch, Manitoba Justice
1230-405 Broadway
Winnipeg MB R3C 3L6
Fax: 204-948-2004
This notice requirement:
• Is in addition to the service
requirements under the Court of
Queen’s Bench Rules.
• Does not apply to a Support Variation
Application submitted on ISO Forms
pursuant to Part 3, Divisions 1 or 2 of
the ISO Act.
For further information, please contact
P 110 POTTER, Kelli (nee Forbes)
kpotter@patersons.ca
Tracy Morrow, General Counsel
Family Law Branch, Manitoba Justice
204-945-0297
Tracy.Morrow@gov.mb.ca
P 126 KAPAC, Jayne
Ph: 204-945-5596
Fax: 204-948-2244
MANITOBA LAW REFORM COMMISSION
FAMILY LAW BRANCh, MANITOBA
JUSTICE
REQUIREMENT FOR NOTICE TO BE gIVEN
TO ISO DESIgNATED AUThORITY
Section 35 of The Inter-jurisdictional Support
Orders Act (ISO), C.C.S.M. c. I60 as amended
Page/page - 4
On February 8, 2012, the Manitoba Law
Reform Commission released its report on
Limitations of Actions in Conversion and
Detinue. This report originates from the
Commission’s Limitations report published in
October 2010 and makes recommendations
for specialized limitation rules in respect of
actions based on the conversion or wrongful
detention of personal property. The
Commission’s recommendations include a
provision that the 15-year ultimate limitation
period should run from the first date the
personal property is converted or detained; a
provision for a good faith purchaser exception
to the ultimate limitation period and a
provision extinguishing title to converted or
detained goods at the expiry of the ultimate
limitation period. With this report, the
Commission completes its work in respect of a
modern Limitations Act for Manitoba. A copy
of the report is now available on the
Commission’s
website
at
www.gov.mb.ca/justice/mlrc.
WINNIPEg REMAND CENTRE
AUTOMATED ANSWERINg SYSTEM
Please be advised that on March 1, 2012, the
Winnipeg Remand Centre will be using an
automated answering service. Any calls to the
WRC main line (945-3540) will be routed to
this service. Callers will be asked to select one
of nine menu items, which will direct the call
or provide the requested information.
This system will be active 24 hours/day.
The answering service menu will include the
following:
#1 – Administration/Senior Management/
Emergencies
#2 – Lawyer/Video Links
#3 – Visiting Line
#4 – Inmate Property/Money
#5 – Shift Operations Manager
#6 – Release Times/Admissions Department
#7 – Medical
#8 – Institutional Services Manager/
Institutional Access
#9 – Police Inquiries
The intent of this system is to manage our call
volumes more effectively. This menu may
also be revised in the future, as needs change.
Any concerns or questions about the system
may be directed to the Assistant
Superintendent, Operations (945-0952), or to
the Shift Operations Manager after regular
business hours.
ISSUED BY:
Ed Klassen, Assistant
Operations
Winnipeg Remand Centre
February 13, 2012
Superintendent,
Section & Business News
Activités des sections
One of the greatest benefits of your CBA Membership is FREE registration for Sections/Conferences. When you register for Branch
Sections/Conferences, you are automatically registered in the corresponding National Section/Conference. All meetings/events are open to current CBA
Members. Non members are welcome and may attend (with prior RSVP) one Section/Conference meeting only.
En tant que membre de l'ABC, vous bénéficiez de l'avantage intéressant d'adhérer sans frais à des sections ou conférences. En vous inscrivant à une
section ou conférence de la division provinciale, vous devenez automatiquement membre de la section ou conférence nationale correspondante. Les
membres en règle de l'ABC peuvent assister à toutes les activités des sections et conférences, même s'ils n'en sont pas membres. Toutefois, ils doivent
signaler leur présence au préalable et ne peuvent participer qu'à une seule activité par section ou conférence.
The MBA is committed to making Section meetings
widely available. If you live outside of the City of
Winnipeg and want to attend a Section meeting by
teleconference, please contact Melissa Tannahill
(204) 927-1215 or email sections@cba-mb.ca.
In an effort to streamline our Section meeting RSVP
procedures, the Manitoba Bar Association has
implemented an online RSVP system. We ask that
you utilize this online tool when you RSVP for
Section meetings and professional development
sessions, versus replying to notices via email or the
RSVP line.
FAMILY LAW SECTION
NOTICE OF MEETINg
REAL PROPERTY LAW SECTION
NOTICE OF DINNER MEETINg
DATE:
Monday, March 5, 2012
DATE:
Thursday, March 15, 2012
TIME:
12:00 Noon – 1:30pm
TIME:
5:30pm – 8:00pm
LOCATION:
Law Society of Manitoba Classroom
219 Kennedy Street, Winnipeg
LOCATION:
TOPIC:
Where Are the Boundaries?
Bailey’s Restaurant
185 Lombard Avenue, Winnipeg
SPEAKERS:
Brian T.D. Bowman, Pitblado Law
Kerry L. Unruh, Deeley Fabbri Sellen Law
Corporation
TOPIC:
The Abandonment of Goods
SPEAKER:
Professor John Irvine, University of Manitoba –
Faculty of Law
How can you protect your client’s privacy and legal rights in this
highly technological world of social media and electronic messaging?
Alternatively, how far can your client safely go in collecting evidence
without violating criminal or privacy law? Find out from Mr.
Bowman and Mr. Unruh as they discuss topics such as intercepting
emails or phone calls, use of diaries or Facebook material as
evidence, tracking a spouse with GPS and also ethical questions
about what a lawyer should do if a client is violating the law to obtain
evidence. Don’t miss out - attend this session to find out the answers
to these and other privacy and criminal issues in the context of
family law.
COST:
CBA Members $32.00
Non CBA Members $60.00
Please RSVP to the Manitoba Bar Association online at
www.cba.org/pd. You can also RSVP by calling the RSVP Line at 9271211 or email (sections@cba-mb.ca) by 12:00 Noon on Friday,
March 2, 2012 Please confirm if you would like lunch (sandwiches)
and advise of any dietary restrictions. Lunch is available upon
advanced request at a cost of $7.00.
Attendance at this MBA Section meeting can be applied towards your
Law Society of Manitoba's Continuing Professional Development
requirement.
Please confirm your attendance to the Manitoba Bar Association
RSVP Line at 927-1211 or by email (sections@cba-mb.ca) by 4:00pm
on Thursday, March 8, 2012.
Attendees will order from a pre-arranged menu. A cash bar will be
available. Wine and soft drinks will also be available for purchase.
Cheques should be payable to the Manitoba Bar Association. The
MBA office can accept payment by VISA or MasterCard, or it can
invoice your company or firm for the places reserved.
requirement.
Ned Brown
Co-Chair, MBA Real Property Law Section
Pitblado LLP
Ph: 956-3503
brown@pitblado.com
Lawrence Pinsky
Chair, MBA Family Law Section
Taylor McCaffrey LLP
Ph: 988-0451
lpinsky@tmlawyers.com
Howard Nerman
Co-Chair, MBA Real Property Law Section
Pitblado LLP
Ph: 956-3530
nerman@pitblado.com
Page/page - 5
CORPORATE (IN hOUSE) COUNSEL SECTION
NOTICE OF DINNER MEETINg
MANITOBA BAR ASSOCIATION
FAMILY LAW SECTION
Jointly sponsored by the Manitoba Bar Association’s Family Law
Section, The Law Society of Manitoba and The Court of Queen’s
Bench Family Division Judges
TOPIC:
What's Time Got To Do With It? Examinations of
Shared Custody and Child Support
DATE:
Friday, March 16, 2012
TIME:
9:00am – 4:30pm
LOCATION:
The Fort Garry Hotel, 222 Broadway, Winnipeg
Last year’s Joint Family Law program explored issues that included
children’s adjustment after separation and divorce, parenting plans
and child alienation. This year’s program will tackle the equally
challenging issues of shared custody and child support. Topics to be
covered at this year’s program include:
Shared Parenting
Mavis Maclean, University of Oxford will help us explore the issue of
shared parenting. Are there potential benefits or difficulties? What
is in children's best interests? Professor Maclean will also discuss
research centering on the British and Australian experiences
presented in the paper “Caring For Children After Parental
Separation: Would Legislation For Shared Parenting Time Help
Children?”
Characteristics of Shared Placement – Child Support Formulas
Used in Fifty States
Professor Tonya Brito, University of Wisconsin Law School will
introduce us to various methods utilized to calculate child support in
cases of shared custody in various jurisdictions. Professor Brito will
provide us with insights and observations to assist us in developing
options in this difficult area.
Analysis of Continued and Shared Parenting Child Support
Decisions
Rhoda Dobler, Dunphy Best Blocksom LLP will review and analyze the
provisions of the Child Support Guidelines which deal with shared
custody in section 9. Ms Dobler will provide an update on child
support decisions in shared custody cases with a focus on Manitoba
and enhance our understanding of how Canadian and Manitoba
Courts are dealing with the legislation which obligates consideration
of the factors in section 9.
Presenters include:
Justice Laurie Allen, Manitoba Court of Queen’s Bench, Family Division
Professor Tonya Brito, University of Wisconsin Law School
Rhoda Dobler, Dunphy Best Blocksom, LLP
Professor Mavis Maclean, Senior Research Associate, Department of
Social Policy and Intervention, University of Oxford, and Joint Director
of the Oxford Centre for Family Law and Policy
$275 ($225 for MBA members & students) plus GST
(includes materials, refreshments & lunch)
VISA and MASTERCARD registrations, publication orders and
payments are accepted by phone (942-5571), fax (956-0624) or
mail. Please make cheque payable to The Law Society of Manitoba,
219 Kennedy Street, Winnipeg, Manitoba, R3C 3T1.
To download the registration form, go to:
http://www.lawsociety.mb.ca/forms/continuing-professionaldevelopment/cpd-registrationforms/2012_Family_Law_%20Reg_Form.pdf
This program may be reported for up to 6.0 hours of
eligible CPD credit hours.
Page/page - 6
DATE:
Wednesday, March 21, 2012
TIME:
6:00pm – 10:00pm
LOCATION:
The “Galleria” – Centro Caboto Centre
1055 Wilkes Avenue, Winnipeg
TOPIC:
Recent Trends in Employment Law: Tips, Traps, &
Minefields
SPEAKER:
Mr. Jeff N. Grubb, Q.C., Miller Thomson LLP (Regina)
Mr. Grubb is a partner with the national firm of Miller Thomson LLP.
He is an experienced advocate, appearing frequently before both the
trial and appellate courts in Saskatchewan, and before a vast array of
administrative tribunals in that province. His litigation practice
focuses on commercial, agricultural, insurance, employment and
labour, and property assessment and other municipal matters.
Mr. Grubb will draw on his extensive experience to explore the
intricacies of the ever-evolving field of employment law, including
the hiring and dismissal processes, and the human rights and other
factors that impact the employment relationship in its many forms.
He comes highly recommended as a knowledgeable and engaging
speaker.
PLEASE RSVP TO:
Dean Scaletta
Ph: 985-8802
dscaletta@mpi.mb.ca
Cost - $50.00 per person. Seating is limited. Dinner will be an Italian
buffet. Wine will be included with dinner.
A cash bar will be available before and after dinner. Wine by the
bottle and soft drinks will also be available for purchase.
Cheques should be payable to the “Manitoba Bar Association” and
sent to Dean Scaletta, 702-234 Donald Street, Winnipeg, MB, R3C
4A4.
Seats can also be reserved by contacting the Manitoba Bar
Association directly: Ph: 927-1211 or email (sections@cba-mb.ca).
The MBA office can accept payment by VISA or MasterCard, or it can
invoice your company or firm for the places reserved.
Rennie Stonyk
Co-Chair, MBA Corporate Counsel Section
MPI - Legal Department
Ph: 985-7148
rstonyk@mpi.mb.ca
Nick Slonosky
Co-Chair, MBA Corporate Counsel Section
Investors Group Financial Services Inc.
Ph: 956-8873
nick.slonosky@investorsgroup.com
CRIMINAL JUSTICE SECTION
IMMIgRATION LAW SECTION
NOTICE OF JOINT MEETINg
DATE:
Thursday, March 29, 2012
TIME:
12:00 Noon – 1:30pm
LOCATION:
The Law Society of Manitoba Classroom
219 Kennedy Street, Winnipeg
TOPIC:
How Convictions Can Affect Border Crossings
SPEAKERS:
Pat McEvoy, Immigration Investigator, Canada
Border Services Agency
Dennis Ross, Superintendent, Canada Border
Services Agency, Winnipeg Airport
A Manager for Inland Enforcement, CBSA
A Regional Program Officer (Immigration)
In the MBCA decision R. v. Arganda (J.R.), 2011 MBCA 54, the Court
held that the inadvertent failure to take into account the accused's
immigration status and the potential immigration consequences
resulted in the imposition of an unfit sentence. The court reduced the
two year sentence already served by the accused by one day in order
to avoid the "unintended, unjust and unfair consequence" of
depriving him of the opportunity to appeal the deportation order
against him.
Whether you are a lawyer advising clients with respect to criminal
charges, or assisting a business person trying to close an
international deal, you won’t want to miss this presentation!
Please RSVP to the Manitoba Bar Association online at
www.cba.org/pd. You can also RSVP by calling the RSVP Line at 9271211 or email (sections@cba-mb.ca) by 12:00 Noon on Wednesday,
March 28, 2012. Please confirm if you would like lunch
(sandwiches) and advise of any dietary restrictions. Lunch is
available upon advanced request at a cost of $7.00.
requirement.
Lisa Cupples
Co-Chair, MBA Criminal Justice Section
Manitoba Justice - Prosecutions
Ph: 945-6208
lisa.cupples@gov.mb.ca
Tony Cellitti
Co-Chair, MBA Criminal Justice Section
Phillips, Aiello
Ph: 949-7768
tcellitti@phillipsaiello.ca
Paul Hesse
Chair, MBA Immigration Law Section
Pitblado Law
Ph: 956-3561
hesse@pitblado.com
WOMEN LAWYERS’ FORUM
NOTICE OF EVENT
SAVE THE DATE!
Date:
Thursday, April 19, 2012
Time:
5:30 to 7:30pm
Venue:
Plug-In Institute of Contemporary Art
Buhler Centre
Title:
Professional Development Networking Event: Boost
your Social Intelligence
Speaker:
Lewena Bayer, CEO of Civility Experts Worldwide
Cost:
$25 per ticket
According to Dr. Karl Albrecht, a reknowned author and consultant
on business performance: "People who have a highly developed
sense of Social Intelligence have more friends, better relationships,
more successful careers and happier lives than those who lack those
skills."
Join Canada’s leading civility expert and boost your social
intelligence by learning some of the skills you need to build an
impression of confidence and courtesy and to network successfully.
Stay tuned for more information!
Looking For An Ontario Agent?
RAYMOND P. OAKES
GREGORY J. WELCH
Services Offered:
Services Offered:
• Real Estate • Corporate/Commercial • Injury or Death Claims • Family Law
• Estates
• Litigation
Licenced for Manitoba and Ontario • Associated with the Law Firm of BOOTH DENNEHY LLP
Call: (204) 957-1717
If outside Manitoba call Toll Free: 1-800-204-4080
Phone: (204) 957-1717 Fax: (204) 949-9232
email: roakes@boothdennehy.com email: gwelch@boothdennehy.com
387 Broadway Avenue, Winnipeg, MB R3C 0V5
Website: www.boothdennehy.com
CALL FOR A QUOTE
Page/page - 7
Law Day / Journée du droit
EXPRESS YOURSELF
MARK YOUR CALENDARS
30th Anniversary of the Charter
Law Day
Sunday, April 15, 2012
Winnipeg Law Courts, 408 York Avenue
• Guided Tours of the Law Courts
Letters to the Editor are encouraged.
We want to hear your views.
Send your letters to:
Stacy Nagle, Executive Director
Manitoba Bar Association
• Exhibits and Displays
• Mock Trials in French & English
presented by elementary and senior high
school students
1450 - 363 Broadway
Winnipeg, MB R3C 3N9
Ph: (204) 927-1213
Email: snagle@cba-mb.ca
• Debates in French & English presented
by senior high school students
• Distribution of the Charter
• Legal Information Sessions
• Special Sitting of Citizenship Court
• and much more!!!
FREE ADMISSION AND REFRESHMENTS
Sergio Pustogorodsky Law Corporation
703-161 Portage Avenue Winnipeg, Manitoba R3B 0Y4
Ph: 204-475-7357 Fax: 204-488-2674 splawco@mymts.net
Practice Restricted to Tax-Related Matters, including:
- Tax and Estate Planning for Individuals and Corporations;
- Implementation of Tax and Estate Plans;
- Tax Appeals and Negotiations with Tax Authorities;
- Assisting with Defence of Tax Evasion Charges;
- Advising on and Obtaining Rectification Orders.
CLASSIFIEDS/ANNONCES
LOST WILLS
Anyone having knowledge of a Last Will and Testament of
ROMAN ADLEROWSKI, late of Winnipeg, Manitoba, please
contact Gail Colomy, Office of The Public Trustee, 155
Carlton Street, Suite 500, Winnipeg, Manitoba R3C 5R9.
Telephone: (204) 945-2713.
RASMUS ANDERSON (AKA SChOU ANDERSON), late of
Winnipeg, Manitoba, please contact Gail Colomy, Office of
The Public Trustee, 155 Carlton Street, Suite 500,
Winnipeg, Manitoba R3C 5R9. Telephone: (204) 945-2713.
gEORgE KAPITANIUK, late of Winnipeg, Manitoba, please
Page/page - 8
Telephone: (204) 945-2713.
PIO QUALIZZA, late of Winnipeg, Manitoba, please contact
Barbara Regier, Office of The Public Trustee, 155 Carlton
Street, Suite 500, Winnipeg, Manitoba R3C 5R9. Telephone:
(204) 945-8398.
JEAN WENZOSKI, late of Winnipeg, Manitoba, please
Telephone: (204) 945-2713.
MBA Council Highlights
A meeting of Council was held on January 21, 2012 at the Fort Garry
Hotel. Highlights of the meeting included:
• Jeff Schnoor, Q.C., Deputy Minister of Justice and Deputy Attorney
General reported on behalf of The Hon. Andrew Swan, Minister of
Justice and Attorney General for Manitoba. Mr. Schnoor reported
on the creation of the Justice Innovation Team, chaired by Irene
Hamilton, which will be seeking out and capitalizing on
opportunities to improve and increase the velocity of cases
through the criminal justice system.
• The Honourable Chief Justice Richard Scott, of the Manitoba Court
of Appeal, spoke on behalf of the Court. Chief Justice Scott
discussed issues faced by the Court including judicial resources,
and the need for research assistants.
• The Honourable Chief Justice Glenn Joyal, of the Court of Queen’s
Bench of Manitoba, spoke on behalf of the Court. Chief Justice Joyal
discussed changes to the composition of the Bench in 2011 and
new initiatives of the Court to address access to justice issues.
• The Honourable Chief Judge Ken Champagne, of the Provincial
Court of Manitoba, spoke on behalf of the Court. The Chief Judge
reported on a number of Court initiatives, including the Drug
Treatment Court, the Weekend Bail Project and the Case
Management Project. Chief Judge Champagne noted that Legal Aid
is a serious challenge for the Court.
• Trinda L. Ernst, Q.C., President of the Canadian Bar Association
reported on the activities of the CBA including: work on the
Membership Fee Review Committee, the continued success of the
Skilled Lawyers Series webcast programs, the Increase Diversity
toolkit, the CCCA Mentorship Program and the International
Development Committee.
• Jessica Lyle, CBA – Nova Scotia President, Paul Sweeny, Ontario
Bar Association President, David Thera, Q.C., CBA – Saskatchewan
President and Jeffrey Wise, Q.C., CBA – Alberta President, reported
on their branch activities.
• Helga Van Iderstine, President of the Law Society of Manitoba
reported on work being done by The Law Society which included:
national disciplinary standards, Lawyers for Literacy, the Law
Society budget and Bencher elections.
• Mario Santos, the Chair of Legal Aid Manitoba reported on work
being done at Legal Aid.
• Executive Committee members submitted written reports which
were circulated in advance of the meeting.
• Lisa Sumka, Co-Chair of the 2012 MBA Mid-Winter, reported on a
very successful Mid-Winter and outlined the attendance numbers
for each event and CPD session. Lisa noted that the Mid-Winter
Conference moved to a two day format this year, and added they
have received positive feedback regarding the new format, the
CPD sessions, the Working Lunch and the Conference in general.
Robson Hall Research Report
by Dr. Jennifer L. Schulz *
The Centre for Human Rights Research and partners are planning a day-long workshop on Celebrating First Nations and Métis Research
Partnerships, to be held at Robson Hall on Tuesday March 13, 2012. The workshop will highlight case studies of quality partnerships
established between researchers and First Nations and Métis communities. Academics and community partners will offer their own,
sometimes divergent, perspectives on strengths and frustrations of the partnership and provide practical tools such as templates for
engagement documents and research agreements.
Prof. Karen Busby, under the auspices of the Centre for Human Rights Research, brought together 20 lawyers and academics from across the
country for a research roundtable on assisted human reproduction law on February 2-4, 2012. The event was also supported by the Canadian
Journal of Women and the Law and the Legal Research Institute (LRI). Together with Ms. Helen Fallding, CHRR Manager, Prof. Busby also led
the team preparing a submission to the Truth and Reconciliation Commission of Canada to house the TRC’s archives and to establish the IRS
research centre at the University of Manitoba.
Prof. John Eaton has been awarded the 2012 Association of College and Research Libraries (ACRL) Law and Political Science Section (LPSS)
Marta Lange/CQ Press Award. The award honors an academic or law librarian who has made distinguished contributions to bibliography and
information service in law or political science. “John Eaton’s accomplishments to service and scholarship in law librarianship are exemplary,”
said award chair Nadine R. Hoffman. “In particular, we recognize his dedication to the Canadian Association of Law Libraries/Association
Canadienne des Bibliothèques de Droit (CALL/ACBD) in a variety of capacities, including president. His most notable scholarly work includes
two recent legal bibliography monographs serving new and experienced researchers in the structure of legal research for Canada and the
United Kingdom.” The books are: Essential Sources of Canadian Law (co-written with Denis Le May) and Finding English Law: Key Titles for
Non-UK Lawyers and Researchers.
On February 2, 2012, Prof. DeLloyd Guth gave the Lunchtime Lecture at the U of M’s Dafoe Library entitled “The Bible as ‘Goddis Lawe’:
English Translations before the King James Bible 1611 (Wycliffe, the Lollards, Tyndale).” The Library’s first edition is on display, for its 400th
anniversary, as the product of 53 translators from Hebrew, Greek and Latin texts based on 4th century manuscripts.
Prof. Jennifer Schulz gave a lecture at McGill in Montreal and a presentation at the Canadian Conflict Resolution Symposium in Ottawa on
February 2 and 3, 2012. She spoke about her latest research on settlement and mediation in Canadian legal television, and she was also an
invited plenary speaker at the Ottawa symposium.
*Dr. Jennifer L. Schulz is the Associate Dean (Research & Graduate Studies) at the Faculty of Law, University of Manitoba.
Page/page - 9
CBA News
Resolutions passed at 2012 CBA Mid-Winter Meeting of Council
Several resolutions were debated and passed at the 2012 CBA Mid-Winter Meeting of Council that took place February 10-12, 2012 in
the Mayan Riviera, Mexico. The resolutions were related to privacy, financial literacy, and the Canada Pension Plan, among others.
To read the resolutions, visit www.cba.org/CBA/resolutions.
Lucille R. Birkett, Q.C., of Alberta receives CBA’s 2012 Douglas Miller Award
Lucille R. Birkett, Q.C., a collaborative family law practitioner from Sherwood Park, AB, was named the
recipient of the 2012 CBA Douglas Miller Award during the President’s Dinner at the 2012 Mid-Winter
Meeting of Council.
“Lucille brings her warmth, enthusiasm, and team spirit to everything she does,” said CBA President Trinda
L. Ernst, Q.C., of Kentville, NS. “Her strong commitment to our association, as demonstrated through her
participation and leadership in countless CBA activities, made the selection of this year’s winner an easy
decision.”
Lucille became involved in the CBA as a law student at the University of Alberta, and quickly established
herself as a dedicated volunteer. A past President of the CBA-Alberta Branch, she currently sits on the
association’s national Board of Directors and chairs the Small, Solo, and General Practice Forum.
The Douglas Miller Award honours the late Doug Miller of Yellowknife, a former president of the CBA’s
Northwest Territories Branch and very active member who passed away in 1994. The award recognizes a
CBA member who demonstrates outstanding dedication and team spirit. For more information, visit
www.cba.org/cba/awards/douglas_miller/.
CBA’s concerns on Bill C-10 expressed at Senate Committee hearing
The CBA has publicly expressed its opposition to the federal government’s omnibus crime bill since its introduction in fall 2011. Most
recently, Dan MacRury of Sydney, NS, Chair of the National Criminal Justice Section, presented the CBA’s submission on the bill to the
Senate Committee on Legal and Constitutional Affairs on February 8, 2012 in Ottawa.
The submission suggests that the bill’s approach to crime is contrary to what is known to lead to a safer society, and would move Canada
along a road that has failed in other countries. Specifically, the CBA’s concerns include the bill’s potential impact on northern residents,
Aboriginal Peoples, and the mentally ill; its inclusion of mandatory minimum sentences; and its overreliance on incarceration.
The submission is available online at www.cba.org/CBA/submissions.
Updates to Bill C-26 welcomed by CBA – with exceptions
While the CBA welcomes the government’s proposed amendments to Bill C-26 – which would update and simplify aspects of the Criminal
Code related to citizen’s arrests and the defences of property and persons – it has recommended several key amendments before passage
in order to better achieve the bill’s goal.
The CBA has suggested changes to avoid potentially denying innocent Canadians a legitimate defence when faced with unlawful
aggression from others. "We would like to see a better balance between subjective and objective elements,” said Eric Gottardi of
Vancouver, Vice-Chair of the CBA’s National Criminal Justice Section.
The CBA submission on the bill notes that legislation appears to strengthen the objective standard of a 'reasonable person,' and weaken
consideration of the subjective perceptions of a person who claims to have acted in self-defence.
In the CBA’s view, the change proposed for the citizen’s arrest section of the Criminal Code would needlessly expand the scope of that
section. "The proposed amendment could actually endanger innocent Canadians attempting to make arrests without proper training or
tools. We recommend that this section not be amended," explained Gottardi.
Gottardi presented the CBA submission to the House of Commons Justice and Human Rights Committee on February 9, 2012. The
submission is available for download at www.cba.org/CBA/submissions.
Protect client confidentiality in disclosing information about trust accounts
If you have a trust account at a financial institution that is a member of the Canada Deposit Insurance Corporation (CDIC), you will receive
a reminder in April about disclosure requirements you must meet under the CDIC Joint and Trust Account Disclosure By-law. For a trust
deposit to enjoy additional insurance coverage, trustees must disclose certain information on the records of the member institution. The
good news is that solicitor-client privilege has been addressed, and confidentiality of client information can be protected.
To protect client confidentiality, a lawyer or notary may substitute an alpha numeric or other code for the name and address of each
beneficiary. The code would refer back to the records maintained at the lawyers’ or notary’s office, thereby maintaining confidentiality.
Further details can be found at www.cba.org and www.cdic.ca, or by calling 1-800-461-2342.
Page/page - 10
MBA Mid-Winter Report
The Manitoba Bar Association Mid-Winter Organizing
Committee is pleased to report that the 2012 Mid-Winter
Conference was a success. Our first two day conference boasted
excellent attendance and feedback received to date has been
positive. Attendees of the full two day conference were able to
access all of their mandatory CPD credits, including the ethics
component, in one conference.
The Fort Garry Hotel provided a good setting for our conference,
accommodating two full day CPD sessions and 10 half-day
sessions, along with our first ever working lunch that covered
ethics in social media.
The Bench & Bar Reception took place on Thursday, January 19,
2012 and was well attended. Attendees enjoyed the sounds of
Jeff Dolovich on piano. We gratefully acknowledge and thank
Court of Queen’s Bench Chief Justice Glenn Joyal and his wife
Joanne Préjet for jointly hosting this event with MBA President
Josh Weinstein and his wife, Brenlee Schacter.
The MBA Awards Luncheon was held on Friday, January 20,
2012.
The Distinguished Service Award recipient, The Honourable
Judge John Guy, was recognized for his lifetime of public service
in law and in the community. In his humble acceptance speech,
Judge Guy acknowledged the work of other volunteers in the
community, rather than his own achievements, placing
particular emphasis on the work done by Sister Lesley Sacouman
at Rossbrook House.
George Orle, Q.C., Orle Davidson Giesbrecht Bargen LLP, was
presented the Pro Bono Award for their countless hours in the
case of Lehn et al v. Winnipeg, which questioned the nature and
extent of City Counsel’s authority to remove a building from the
Buildings Conservation List and the limits on that authority, as
well as the enforceability of a secondary municipal plan.
The Community Involvement Award was presented to Brian
Bowman of Pitblado Law for his extensive work with the
Winnipeg Chamber of Commerce and the Certified General
Accountants.
Cynthia Lau was presented the Headnotes & Footnotes Award, for
her contribution of Civil Law Decision articles to the MBA
newsletter.
The Corporate (in-house) Counsel Section Past-Chair, Jon
Sigurdson, was awarded the Section Activity Award.
The Isabel Ross (MacLean) Hunt Award was presented for the
first time this year to a candidate who has done significant work
to advance the cause of women in law. The award was presented
to The Honourable Madam Justice Freda Steel, who has
dedicated much of her career to supporting and promoting
women’s issues in the practice of law.
The professional development sessions were well-attended and
well-received. Particularly good feedback was given with
respect to the working lunch dealing with Ethical Practice in the
Electronic Age, which offered good insight on the use of social
media in the practice of law and the ethical issues concerning
lawyers using social media.
The Organizing Committee wishes to extend its thanks not only
to the Section Chairs involved in organizing the presentations,
but also to the moderators and presenters for providing top
notch presentations and accompanying materials covering a
variety of topics and disciplines.
To all those who volunteered at the 2012 Mid-Winter
Conference, the Organizing Committee extends its most sincere
thanks. This event would not have been possible without your
dedication and hard work. The Organizing Committee also
wishes to thank the many law firms who sponsored the Bench &
Bar Reception and purchased tables for the Awards Luncheon.
As always, many thanks and much appreciation must be
extended to Melissa Tannahill, the MBA Section Coordinator,
Chelsey Tait, the MBA Executive Assistant and Stacy Nagle,
Executive Director of the MBA. They run a well-oiled machine
and their hard-work, dedication and professionalism drives the
Mid-Winter Conference.
Finally, we wish to extend thanks to all those who attended this
year's event and look forward to seeing you all at the 2013 MidWinter Conference.
Lisa Sumka & Todd Andres
Co-Chairs of the 2012 MBA Mid-Winter Organizing Committee
2012 Mid-Winter Organizing Committee
The Manitoba Bar Association wishes to express its gratitude to the members of the
2012 Mid-Winter Organizing Committee on a very successful Mid-Winter:
Co-Chairperson:
Todd Andres, Pitblado Law
Co-Chairperson:
Lisa Sumka, D’Arcy & Deacon LLP
Committee Members:
Karlee Blatz, Winnipeg Regional Health Authority
Melissa Burkett, Aikins Law
Johanna Caithness, Fillmore Riley LLP
Lisa LaBossière, Myers Weinberg LLP
Cynthia Lau, Manitoba Public Insurance
Madeline Low, Paterson GlobalFoods Inc.
Elona McGifford, Taylor McCaffrey LLP
Sheena Pritchard, Deeley Fabbri Sellen Law Corporation
Karen Wittman, Hill Sokalski Walsh Trippier LLP
Leandro Zylberman, Thompson Dorfman Sweatman LLP
Page/page - 11
MBA 2012 Mid-Winter Meeting
Bench & Bar Reception
Our Thanks to the Sponsoring Firms of the Bench & Bar Reception:
Aikins Law • Campbell Gunn Inness • D'Arcy & Deacon LLP
Deeley Fabbri Sellen Law Corporation • Fillmore Riley LLP • Hill Sokalski Walsh Trippier LLP
Levene Tadman Golub Law Corporation • Monk Goodwin LLP • Myers Weinberg LLP
Orle Davidson Giesbrecht Bargen LLP • Pitblado Law • Tapper Cuddy LLP
Taylor McCaffrey LLP • Thompson Dorfman Sweatman LLP
Co-Hosts of the Bench & Bar Reception were
Josh Weinstein, President of the MBA with wife Brenlee Schacter
and The Chief Justice of the Manitoba Court of Queen’s Bench,
the Hon. Glenn Joyal, with wife Joanne Préjet.
And thanks to The Counsel Network for providing the door
prize for the Bench & Bar Reception.
Door prize winner - The Hon. Madam Justice Freda Steel
Our Thanks to the Presenters and Moderators of the Professional Development Sessions
Thursday, January 19, 2012
Administrative Law Boot Camp:
Back to the Basics AM
Speakers:
- Robert Adkins, Thompson Dorfman
Sweatman LLP
- Jennifer Goldenberg, Residential Tenancies
Commission
- Laura Diamond, Automobile Injury Appeal
Commission
- Morley Hoffman, Manitoba Public
Insurance Legal Department
Moderator:
- Robert Dawson, Dawson Law Chambers
Sponsored by the Administrative Law Section
Shareholder Agreements I – Drafting and
Advising on Shareholder Agreements for
the Owner-Managed Enterprise
Speakers:
- Timothy Kurbis, Taylor McCaffrey LLP
- Charles Guberman, Aikins Law
Moderator:
- Rob Fleischaker, Aikins Law
Sponsored by the Business Law Section
Ketch up with Franks on the Year’s Most
Important Family Law Cases
Speaker:
- Aaron Franks, Epstein Cole LLP (Toronto)
Page/page - 12
Moderator:
- Lawrence Pinsky, Taylor McCaffrey LLP
Sponsored by the Family Law Section
Ethical Practice in the Electronic Age –
The Use of Social Media Working Luncheon
Speaker:
- Brian Bowman, Pitblado Law
Hosted by the Young Lawyers’ Section
Administrative Law Boot Camp:
Back to the Basics PM
Speakers:
- Justice Shane Perlmutter, Manitoba Court
of Queen’s Bench
- Pamela Reilly, Pamela M. Reilly Law Office
- David Gisser, Manitoba Justice – Civil
Legal Services
- Prof. Gerald Heckman, University of
Manitoba – Faculty of Law
Moderator:
- Robert Dawson, Dawson Law Chambers
Sponsored by the Administrative Law Section
Shareholder Agreements II – Tax Issues to
consider in drafting Shareholder Agreements
Speaker:
- Sergio Pustogorodsky, Sergio
Pustogorodsky Law Corporation
Moderator:
- Rob Fleischaker, Aikins Law
Sponsored by the Business Law Section
Innovative Strategies for Effective
Communications
Speaker:
- Patricia Lane, Taylor McCaffrey LLP
Moderator:
- Jennifer Goldenberg, Residential Tenancies
Commission
Sponsored by the Women Lawyers’ Forum
Friday, January 20, 2012
Contractual Interpretation: Substance and
Practice
Speakers:
- Geoff Hall, McCarthy Tetrault (Toronto)
- Darla Rettie, Pitblado Law
Moderator:
- Melanie Bueckert, Manitoba Court of
Appeal
Sponsored by the Legal Research Section
Due Diligence and First Nations Business
Developments
Speakers:
- Brad Regehr, D’Arcy & Deacon LLP
- Edward Brown, Pitblado Law
Moderator:
- Allison Fenske, Thompson Dorfman
Sweatman LLP
Sponsored by the Aboriginal Law Section
MBA Mid-Winter Meeting
cont’d
Cross-Border Planning for Canadians with
US Interests
Cloud Computing – What’s Behind the Fog
Bank?
The Manitoba Real Property Act Enters the
21st Century
Speakers:
- Leilani Kagan, Thompson Dorfman
Sweatman LLP
- James McDonald, Deloitte
Moderator:
- John Delaney, Inkster Christie Hughes LLP
Sponsored by the Wills & Estates Law Section
Speakers:
- Allister Gunson, Manitoba ehealth
- Leslie Gergely, IBM Canada Ltd.
- Michael Legary, Seccuris Inc.
Speakers:
- Irv Simmonds, The Property Registry
- Barry Effler, The Property Registry
- Russell Davidson, Winnipeg Land Titles
Office
Employment Law Update: The latest on
Wallace damages, restrictive covenants
and other recent developments in
employment law
Expert Evidence
Speakers:
- Robin Kersey, Thompson Dorfman
Sweatman LLP
- Garth Smorang, Q.C., Myers Weinberg LLP
- Janet Mayor, Manitoba Hydro
Moderator:
- Adrian Frost, Thompson Dorfman
Sweatman LLP
Sponsored by the Labour & Employment
Law Section
Moderator:
- Adam Herstein, Pitblado Law
Sponsored by the Technology & Intellectual
Property Law Section
Speakers:
- Justice John Menzies, Manitoba Court of
Queen’s Bench
- Geoff Bayly, Public Prosecution Service of
Canada
- Daniel Gunn, Campbell Gunn Inness
Moderator:
- Katherine Bueti, Bueti Wasyliw and
Associates
Sponsored by the Civil Litigation/Criminal
Justice Sections
Moderator:
- Edward Brown, Pitblado Law
Sponsored by the Real Property Law Section
Constitutional/human Rights Law: A Year
in Review
Speakers:
- Justice Shawn Greenberg, Manitoba Court
of Queen’s Bench
- Isha Khan, Manitoba Human Rights
Commission
- Prof. Debra Parkes, University of Manitoba
– Faculty of Law
Moderator:
- Michael Conner, Manitoba Justice –
Constitutional Law
Sponsored by the Constitutional/Human
Rights Section
The MBA has a limited number of Mid-Winter PD USB sticks available to members at a cost of $35.00 + gST. The
USB includes papers from all of the Professional Development Sessions featured at the Mid-Winter. Call Chelsey Tait
at (204) 927-1210 to purchase your USB.
Exhibitors
ALLMOVE Secure Document & Data Management
Carswell, a Thomson Reuters business • CBIA/CBAF • Childview
ERAssure • Gaspard’s • Law Pro (Title Plus) • LawyerDoneDeal Corp.
Maritime Law Book • Netlegal • Royal Manitoba Theatre Centre
SAI Systems Auditing Inc. • Shred It • Stewart Title Guaranty Company
Supreme Office Products Limited • Telus • The Law Society of Manitoba
Congratulations to Marla Billinghurst, Ainslie Brown, Milletta Chambers, Adeline Degner, Carol Dougan, Paula
Evaskavich, Suzanne Helmich, Reannah Hocken, Monica Hunt, Merle Kluczkowski, Kerry MacDonald, Lena Petuhoff,
Pauline Picton, Bev Pope, Mea Ramm and Avaline Widmer, who won the exhibitor prize packages.
Big thanks to ALLMOVE Secure Document & Data Management, Birchwood Automotive Group, Carswell, Gaspard’s,
LawyerDoneDeal Corp., Maritime Law Books, SAI Systems Auditing Inc., Shred It, Stewart Title Guarantee Company,
Supreme Office Products Limited and Telus for their prize donations.
Sponsors
The Manitoba Bar Association wishes to acknowledge and
thank the sponsors of the 2012 Mid-Winter Meeting
Page/page - 13
MBA Awards Presentation
The following MBA Recognition Awards were presented at the MidWinter Awards Luncheon on Friday, January 20, 2012 at the Fort
Garry Hotel:
Community Involvement Award - Awarded to an MBA member
who, through involvement in non-legal public service, has enhanced
the image of the MBA, the legal profession or the justice system.
Presented to Brian Bowman for his exemplary community work.
Brian is currently the Chair of the Board of Directors of the Winnipeg
Chamber of Commerce, he is a member on the Certified General
Accountants of Manitoba's Board of Governors and the Province
President (Manitoba, Saskatchewan) for the International Ethics
Association, Phi Delta Phi. In addition, Brian is Past Chair and
current Treasurer of the Canadian Bar Association’s National
Privacy and Access Law Section.
Scott Abel (R), MBA
Director of
Advocacy/Public
Relations and Josh
Weinstein, MBA
President, presenting
the Community
Involvement Award to
Brian Bowman (L)
Headnotes & Footnotes Award - Awarded to a MBA Member
deserving special recognition. Presented to Cynthia Lau. In 2011,
Cynthia Lau was approached to write Civil Law decisions for
Headnotes & Footnotes and she happily agreed. Since she agreed,
she has written Civil Law decisions for each edition of the MBA
newsletter. In addition to writing Civil Law decisions for Headnotes
& Footnotes, Cynthia also
writes Civil Law decisions for
the Legal Research Section
newsletter.
Scott Abel (R), MBA Director
of Advocacy/Public Relations
and Josh Weinstein, MBA
President, presenting the
Headnotes & Footnotes
Award to Cynthia Lau (L)
Isabel Ross MacLean hunt
Award - Awarded to a MBA
member whose contributions
as a role model for women
lawyers deserves special
recognition. Presented to The
Honourable Madam Justice
Freda
Steel
for
her
contributions
to
her
profession, community and
society at large that make her
an excellent role model for
Scott Abel (R), MBA Director of
women lawyers and women
Advocacy/Public Relations and
considering a legal career. In
Josh Weinstein, MBA President,
2009-2010, Justice Steel was
presenting the Isabel Ross
MacLean Hunt Award to The Hon. the Judicial Co-Chair of the
Madam Justice Freda Steel (L)
MBA Woman Lawyers’ Forum.
Page/page - 14
She has given immeasurably of her time to the education and
professional development of lawyers and has also served on the
Manitoba Working Group for the CBA task force on gender equality,
the Ad Hoc Committee on the Status of Women Employees at the
University of Winnipeg, and as the University of Manitoba Faculty of
Law Employment Equity Representative.
Section Activity Award - Awarded to a MBA member whose
contributions to a Section of the MBA deserve special recognition.
The MBA Sections are the lifeblood of the Canadian Bar Association
and the Manitoba branch. For several months beginning in January,
2011, the National CBA Canadian Corporate Counsel Association
went through a difficult period of transition. During this time, Jon
Sigurdson showed tremendous leadership at the branch level,
ensuring that those with concerns had an opportunity to express
them, and then moving forward. In addition, again under Jon's
leadership, in 2010/2011 the MBA Corporate (In-House) Section
hosted 10 Section meetings which provided members with excellent
continuing professional development. No other MBA Section in
2010/2011 hosted that many education opportunities for members.
Scott Abel (R), MBA Director
of Advocacy/Public Relations
and Josh Weinstein, MBA
President, presenting the
Section Activity Award to Jon
Sigurdson (L)
2012 Pro Bono Award – Is
part of the Pro Bono Public
Interest Law Project, a unique
joint venture between the
(MBA) and the Public Interest
Law Centre. The Project was
launched in 1996 and
encourages lawyers and law
firms to donate professional
time or funds to enhance Byron Williams (R), Director, Public
access to public interest legal Interest Law Centre and Chief Justice
services in Manitoba. Mr. Richard Scott, Manitoba Court of
George Orle of Orle Davidson Appeal, presenting the Pro Bono
Giesbrecht Bargen LLP was Award to George Orle (L), Orle
this year’s winner of the Pro Davidson Giesbrecht Bargen LLP
Bono Public Interest Award
for his services as co-counsel to a group of concerned community
members in Lehn et al v Winnipeg. This case raised two important
municipal law issues. First, it questioned the nature and extent of
City Council's authority to remove an historic building from the
Buildings Conservation List (Dennistoun House), and the limitations
on that authority. Second, it raised the enforceability of a secondary
municipal plan, City of Winnipeg By-law No. 220/2006, The Osborne
Village Neighbourhood Plan. Mr. Orle partnered with the Public
Interest Law Centre to represent a group of concerned citizens who
lived in the neighbourhood. Mr. Orle made a substantial donation of
his time and considerable expertise in the development of the case
strategy, meeting with the clients, preparing the materials, and
arguing the case.
For more information on the MBA Awards, check out our web-site
at: http://www.cba.org/Manitoba/main/resources/awards.aspx.
Page/page - 15
Presentation of the Manitoba Bar Association 2012
Distinguished Service Award to Judge John Guy
by Judge Mary Kate Harvie
The call for nominations indicated that this award is presented
“to a member of the Bench or Bar who exemplifies the ideals of
service to the legal profession and the community”. My colleague
and friend Judge John Guy is an individual who has, throughout
his career, exemplified ideals of service, although in a way which
has not included self-aggrandizement, personal advancement,
attention or fanfare. Which is precisely why he is so very
deserving of this award.
The great English author and poet Dr. Samuel Johnson once said
“We all know what light is. But it is difficult to tell what light is.”
And so it is difficult to capture in a few short moments, with a few
brief words, the shining light that has been John’s amazing
contributions to the community, the legal profession, and to the
Judiciary, both locally and on a national level.
Consistent with his sense of modesty and no-nonsense approach,
when I asked John for a copy of his resume, I was overwhelmed
by the way in which each bullet on the original one page
document represented an amazing accomplishment that any one
of us would be proud to trumpet. But not John. And His efforts
have spanned his entire career and continue to the present day.
At a time in his career when some have become complacent, John
continues to push the envelope and work to improve the system.
This award allows us that all too rare opportunity to recognize
and thank those who “give back” to the community and to the
profession. And so, in the spirit of this award, let me take this
opportunity to say “thank you” to a man who has done so much
for all of us:
Thank you from the profession for your work as the President of
the Law Society and as a member of the Manitoba Bar
Association’s Executive council;
Thank you from the University of Manitoba’s Alumini
Association for your years of service as a Board member;
Thank you John for your all work as the Director of Criminal
prosecutions and Assistant Deputy Minister and in particular the
groundbreaking work you did to improve the system for victims
of sexual crimes. Your early bridge building between different
players in the system ultimately lead to the formation of the
Provincial Advisory Committee on child abuse. The changes and
improvements to the Court system for victims of sexual violenceones which we now take for granted- such as child friendly
courtrooms, screens to shield victims from their accusers- are as
a direct result of your ability to bring people together to work
towards a common goal;
Thank you as well from all those people in the Justice system for
whom the involvement of Mediation Service has resulted in the
kind of fair and just resolution that isn’t always available in an
adversarial setting- your early work in this area has made much
of this possible;
Thank you from all of those children and families who have
benefited from your more than 30 years of volunteer service as
the President and Chair of the Board of Rossbrook House. In her
letter supporting this nomination, former Rossbrook House
Executive Director Sr. Lesley Sacoumen had this to say: “John
values and respects people. He walks beside the Aboriginal staff
Page/page - 16
at Rossbrook, not behind or in front. He listens attentively to
them and learns from them. He recognizes their ability to
promote their own cause and works interdependently with
them. In doing so he becomes a breach-mender, a peacemaker.”
It is through the ongoing support of people like you John that has
ensured that the vision of Rossbrook became a reality: “that no
child who doesn’t want to be alone should ever have to be”;
Thank you so much on behalf of those who have benefited (and I
have no doubt will continue to benefit) from your community
outreach efforts. Whether it’s delivering hampers at Christmas
or cooking breakfast at a soup kitchen, John doesn’t just talk, he’s
in the middle actually making sure the job gets done. There is no
experience that quite equals seeing John in one of those plastic
hair nets cooking scrambled eggs at the Agape table at 7 am on a
frosty cold December morning;
Thank you for your efforts in establishing a Drug Treatment
Court in Manitoba. Simply put, it would not exist if it wasn’t for
you. Wayne Lloyd, program manager of the WDTC describes John
Guy “as a difference maker.” The participants say this: “he makes
the experience different; he’s fair; he’s a gentleman; he can be
firm, he cares; he’ll talk to you and he talks so you can
understand.” And so on behalf of those graduates who have
broken free from the hold of their drug addictions and who once
again have a life, on behalf of the parents who have regained a
child, the spouses who have regained a partner, and our
community that has regained a member, because of your vision,
your leadership, your support, we all say thank you;
And finally, on behalf of your friends and colleagues, past and
present, on the Provincial Court of Manitoba thank you for all
you do and have done. You make us all look good.
Your work with the Canadian Association of Provincial Court
Judges, first as a member of the Executive and then as CAPCJ
President has ensured that Provincial Court Judges across this
Country have not just had a voice, but have had a credible voice.
The many initiatives, including your passionate support for
ongoing Judicial education, continue to benefit both the Courts
and the public.
On a local level, you have always been viewed as a leader, and
have helped our Court so much, both when the sailing has been
smooth, and when the waters have been more choppy. Whether
as PJAM president or as a member of any one of a number of
committees, your experience, insights and sense of humour have
been invaluable. You are a wellspring of legal knowledge and
experience, all of which you have willingly shared. We are all
very much in your debt.
And so to a man who gives anything he does his all - whether its
training for marathons with long morning runs and then
rehydrating with a Giant Big Gulp; and then rehydrate with a Big
Gulp; whether it’s coaching or playing hockey or baseball,
drinking beer, smoking cigars; whether it’s recounting a story
with animation, a laughing loud and the occasional cuss word; or,
with his charming wife Gail (who deserves the Distinguished
Spouse Award) shines at being the life of the party;
It is my tremendous honour to present the 2012 Manitoba Bar
Association Distinguished Service Award.
Distinguished Service Award Recipient Remarks
by Judge John Guy
I wish to thank the Manitoba Bar
Association for this prestigious award. Due
to the passage of time, I appreciate more
than most this honour, having known most
of the previous recipients. My legal career
passes before my eyes – law teachers, my
principal, the late Mr. Harry Walsh, Q.C., bar
admission teachers, judges before whom I
appeared, people I worked with, Law
Society contemporaries and other pillars of
the legal profession. I am honoured and
humbled to join such a distinguished group.
As with most service to the community, the
time has to come from somewhere and
usually comes from family. I wish to thank
my wife Gail and my children, Patricia and
Jason,
for
their
support
and
encouragement.
My wife Gail, particularly, has always been supportive, helpful and
involved in my activities. Her attitude has always been “why not”.
However, my family makes sure I keep things in perspective.
As my daughter reminds me: “These meetings are fine, Dad, as long as
you remember to pick up your grandson from daycare on time.”
I also wish to thank my colleagues from the Court, particularly Mary
Kate Harvie, the engine behind my nomination, the Rossbrook family
and others who supported my nomination with their kind
embellishments.
A word about Rossbrook House – one of the principal reasons I am here
today. I met Sister Geraldine McNamara in the early 1970’s. I was a
young prosecutor; she was articled to Legal Aid.
Sister Gerry was way ahead of her time. A brief story might illustrate. A
couple of young persons committed an act of vandalism at a school and
Sister Gerry represented them. The matter was put over and Sister
Gerry worked her magic – she had them paint over the graffiti and she
had them attend at the caretaker’s office after school for a couple of
weeks to do any work that he directed. When they next appeared in
court the judge had difficulty coming up with an appropriate sentence –
accountability/responsibility/deterrence
and
denunciation,
rehabilitation/restorative justice – all the principles of sentencing had
been covered.
Sister Gerry lived in the neighbourhood of Sherbrook and Ross and
would often find young people in her front yard - victims of sniff or
alcohol - and she, of course, would assist.
The church on the corner of Ross and Sherbrook became available
because of the proposed building of the McGregor/Sherbrook overpass.
So for a dollar, the Sister had a building to continue and expand her
work with the young people of the area. Soon pool tables, weights and
a variety of sports equipment magically appeared at the facility.
Rossbrook flourished and Sister Gerry decided the
Sherbrook/McGregor overpass would obviously have to be built
elsewhere if it was going to mean the end of Rossbrook. She marshalled
her forces, defeated the overpass issue and Rossbrook House stands
today as a monument to her foresight, energy and persistence - “No
child who does not want to be alone should ever have to be.”
The late Graeme Garson, who was a judge sitting at the Public Safety
Building, and I, the senior prosecutor, were the next targets of that
persistence and we were soon on the Rossbrook Board. It has been a
rewarding experience for me ever since.
When one reads the headlines today in our
local papers, one can’t help but wonder
whether a few more alternatives to the
street such as Rossbrook might be part of
the solution.
I certainly do not intend to provide a
message to you today, most importantly
because I would be talking to the converted.
I know how much those present and the
other members of the legal profession are
involved in contributing to our society. We
have had some examples today.
I have sat on enough panels for Provincial
Court judicial appointments to appreciate
and be truly amazed by the variety and
extent of community involvement by
applicants that largely goes unnoticed.
That being said, even though we are extremely busy, I would encourage
everyone that when the opportunity presents itself, get involved. Say
yes rather than no. It is trite but true to say that you will get much more
out of the experience than you give. I certainly have always found that
to be the case.
Finally, I want to thank my colleagues and support personnel at the
Provincial Court of Manitoba.
I have always felt there is more to the judicial function than just
presiding in the courtroom. How we perform our duties [need for
Judicial Education] and what use we make of our positions [Community
Education and Outreach] are two important pillars of our judicial
function. That is why I am pleased with the direction of the Provincial
Court of Manitoba.
Under the previous leadership of Judge Ray Wyant and now under the
continued leadership and enhanced emphasis by Chief Judge Ken
Champagne, there has been created an atmosphere of co-operation,
consultation and collegiality. The Court is composed of a group of
vibrant, interested and involved individuals ready to tackle old
problems with new solutions.
It goes without saying that the projects being undertaken by the
Provincial Court are never just the work of one individual but the work
of the Court as a whole – with the support, involvement and
encouragement of all the members. That is why the atmosphere of
cooperation, consultation and collegiality is so essential. Because of the
shared perspective to try innovative approaches, changes can be made.
I have been involved in the criminal justice area for almost 43 years.
Time will not permit to review, even briefly, the changes I have seen in
my career. But I will mention three areas of successful change –
admission of children’s evidence, confronting of domestic violence and
increased support for victims. Either by law or by practice, concern for
these areas was virtually non existent in my early legal career.
I am hopeful further new innovative changes by the Court are around
the corner, and further improvements can be made for the benefit of the
citizens of Manitoba. Problem-solving courts, access to justice and the
unrepresented accused are areas needing to be addressed.
So although an occasion such as this might get one to thinking about
ending one’s career, I am afraid I must tell the Chief Judge – “Not just
yet.”
I was in a soup kitchen this morning at 7:30 a.m. serving breakfast and
now having lunch in this beautiful ballroom at the Hotel Fort Garry.
Who would want to give up this life?
Once again, thank you very much.
Page/page - 17
Sixteenth Annual Report and Recognition
List: Pro Bono Public Interest Law Project
Audi alteram partem. Hear from the other side.
This basic principle of natural justice, familiar to all lawyers, has
always motivated the Bar in meeting its traditional obligation to
provide pro bono services to clients who would otherwise go
unrepresented. On public law issues, affecting large groups of
people, or the public interest as a whole, it is especially important
that both sides be heard in an effective manner. Otherwise, justice
may not be done and will certainly not be seen to be done.
With these principles in mind, the Manitoba Bar Association
formally approved the Pro Bono Project in support of the Public
Interest Law Centre of Legal Aid Manitoba in February 1996. The
Centre represents groups and individuals on issues of public law.
Since then many firms and individual lawyers have enrolled as
participants, thereby helping to provide legal services to
Manitobans on matters of public importance.
Over the past sixteen years, the Project has raised well over
$200,000 for public interest law in Manitoba. Perhaps more
importantly, the Pro Bono Project has enabled the Public Interest
Law Centre of Legal Aid Manitoba to draw upon the expertise of
the Manitoba Bar on issues ranging from the continued
institutionalization of persons living with mental illness to the
standing of Canadian taxpayers to challenge inappropriate
administration of the Income Tax Act.
As the Public Interest Law Centre celebrates the 30th year of its
history, we extend a grateful thank you to the Manitoba Bar
Association and to the pro bono program volunteers. Your
contributions are greatly appreciated.
The Pro Bono Recognition Award
Today, the Honourable Richard J. Scott, Chief Justice of Manitoba,
will be presenting the Pro Bono Recognition Award to Mr. George
Orle Q.C. for his services as co-counsel to a group of concerned
community members in Lehn et al v Winnipeg.
At issue was the the nature of City Council's authority to remove a
historic building from the Buildings Conservation List and the
enforceability of a secondary municipal plan. While the case was
ultimately unsuccessful, it did serve to clarify the law regarding
Council's authority to remove buildings from the Buildings
Conservation List.
Mr. Orle's wealth of litigation experience, his keen sense of
strategy and his superior oral advocacy skills were invaluable in
this case.
Achievements for the Pro Bono Program in 2011/12
human Rights settlement will return 49 persons with
disabilities to their community
In the fall of 2011, the Province of Manitoba settled a Human
Rights complaint with Community Living Manitoba which will see
49 persons living with intellectual disabilities move out of the
Manitoba Development Centre (MDC) and returned to their
communities over the next three years. Just as importantly, a
process will be established to expose other residents of the MDC
to the community living option so they can make an informed
choice about where they choose to live. We wish to acknowledge
the pro bono assistance provided by counsel from Aikins,
MacAulay & Thorvaldson LLP on this file.
Victims of Crime Eligible for compensation in cases where
their assailant is under the age of 12
In June of 2011, Mr. Justice Menzies of the Court of Queen's Bench
concluded that the Appeal Commission had erred when it denied
benefits under the Victim's Bill of Rights on the grounds that the
perpetrator was under the age of 12. He found that “the age of the
perpetrator is not determinative in an application for
Page/page - 18
compensation under the Victim's Bill of Rights.” We appreciate the
pro bono leadership provided by counsel from Tapper Cuddy LLP
on this file.
Protecting those discriminated against based on source of
income
We also wish to acknowledge the assistance provided by pro bono
counsel from Hill Sokalski Walsh Trippier LLP in resolving a
human rights complaint lodged by an individual who was evicted
from his residence for refusing to allow his landlord to open his
welfare cheques.
Thank You
Under the Pro Bono project, many firms and individual lawyers
across Manitoba have contributed and all deserve recognition.
This is an unparallelled initiative in Canada. The Manitoba Bar
Association and the Public Interest Law Centre of Legal Aid
Manitoba wish to thank and acknowledge the following firms,
organizations and individuals:
Audra Bayer
Audra M. Bayer Law Corporation
Kelly C. Beattie
Fillmore Riley LLP
Evelyn Braun
Barrister & Solicitor
Katherine Bueti
Bueti Wasyliw and Associates
Roberta Campbell
Campbell Gunn Inness
Brenlee Carrington Trepel The Law Society of Manitoba
Michael Conner
Manitoba Justice-Constitutional Law
Calla Coughlan
Calla Coughlan Law
Robert Dawson
Dawson Law Chambers
Bhanwar Dhanoa
Pro Bono Students Canada
Ronald Dearman
Mayer, Dearman & Pellizzaro
George Derwin
Manitoba Hydro International Ltd.
Heather Dixon
Ginnell Bauman Watt Law Corp.
Kenneth Dolinsky
Catherine Dunn
Catherine L. Dunn Law Office
Michael Finlayson
D'Arcy & Deacon LLP
Len Fishman
Fishman Beley
Celia Gorlick
National Bank Financial
Antoine Hacault
Thompson Dorfman Sweatman LLP
Jeff Harris
Myers Weinberg LLP
John Harvie
Myers Weinberg LLP
Yude Henteleff, C.M., Q.C.
Pitblado Law
Cynthia Hiebert-Simkin
Inkster Christie Hughes LLP
Sarah Inness
Campbell Gunn Inness
Anthony Kavanagh
Bueti Wasyliw and Associates
Robynne Kazina
Therese Koturbash
Legal Aid Manitoba, Parklands
Community Law Centre
Cynthia Lazar
Victoria Lehman
Victoria E. Lehman Law Offices
Wayne Leslie
Fillmore Riley LLP
Karin Linnebach
General Teamsters Local 979
Madeline Low
Patterson GlobalFoods Inc.
William Malcolm
William L. Malcolm Law Corporation
Liz McCandless
Hill Sokalski Walsh Trippier LLP
Meghan Menzies
Law Student
Martin Minuk
Aikins MacAulay & Thorvaldson LLP
Lore M. Mirwaldt, Q.C.
Mirwaldt & Gray
Maria Mitousis
Monk Goodwin LLP
Mr. Justice Michel Monnin Manitoba Court of Appeal
David Moore
David L. Moore & Associates
John Myers
David Newman, Q.C.
Pitblado Law
Derek Olson
George Orle, Q.C.
Orle Davidson Giesbrecht
Bargen LLP
Jeff Palamar
Sixteenth Annual Report and
Recognition List
cont’d
Sacha Paul
Arne Peltz
Orle Davidson Giesbrecht
Bargen LLP
Shereese Qually
Daniel Ransom
John Ramsay
Cassidy Ramsay
Edward Rice
Mehboob Shaikh
Ahmad Law Office
Lyle Smordin
Smordin, Pauls & Associates
Anita Southall
Fillmore Riley LLP
John Stefaniuk
Dayna Steinfeld
Pro Bono Students Canada
Stephan Thliveris
Thliveris Law Corporation
Heather Unger
Sherri Walsh
Bryan Webber
Meighen, Haddad LLP
Josh Weinstein
Myers Weinberg LLP
Karen Wittman
Dave Wright
Manitoba Justice Legislative Counsel
Chris Wullum
Tapper Cuddy LLP
The Pro Bono Project offers Bar members three ways to support
public interest law in Manitoba: a cash donation, acceptance of a
regular legal aid certificate under which fees are re-directed to the
Public Interest Law Centre of Legal Aid Manitoba, or enrollment
on a panel of lawyers who will take a public interest case referral
pro bono.
The Public Interest Law Centre of Legal Aid Manitoba was
established 30 years ago and has undertaken test case litigation
STEP Canada (Winnipeg Branch)
(Society of Trust and Estate Practitioners)
and group representation in a wide variety of areas - equality and
disability rights, public utilities and other essential public
services, Aboriginal rights, prisoners’ rights, environmental law
and the right to legal counsel before courts and tribunals.
The Manitoba Bar Association (MBA) is a branch of the Canadian
Bar Association, which is an organization of lawyers formed to
provide support by the profession to the profession, so that it may
better serve its members and the public. As a non-profit
professional organization, the MBA provides educational and
networking opportunities for its members who number
approximately 1,300 across Manitoba, including lawyers, judges,
articling students, law students and law professors. The MBA also
works to improve the law, strengthen the administration of
justice, encourage access to justice for all citizens, and promote
equality.
Josh A. Weinstein, President
Byron Williams, Director
Public Interest Law Centre
Legal Aid Manitoba
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Administration of Estates and Accounts –
WHAT YOU NEED TO KNOW IN ORDER TO HAVE
ACCOUNTS APPROVED BY THE COURTS
Tuesday, March 13, 2012
9:30am - 11:30am
Fairmont Hotel (Harrow-Essex Room)
2 Lombard Place, Winnipeg
Speakers: Joy Cooper, Master, Manitoba Court of Queen’s Bench
Peter Glowacki, Thompson Dorfman Sweatman LLP
Are you or a client acting as or advising an executor, trustee,
administrator or attorney pursuant to a Power of Attorney? If so, all of
the financial transactions, including professional fees and investment
decisions, made in these situations are potentially subject to review and
change in a passing of accounts before a Master of the Court. We will
review the passing of accounts process under the Court rules and the
present practice and what the Master expects in terms of materials and
the presentation at the initial hearing for the passing of accounts,
including a contested passing of accounts. We will also discuss the
position of the beneficiaries in the process and tips and traps for getting
through a passing of accounts as smoothly as possible. Few people
have much experience in this area but it can have a profound impact on
your practice (and fees)!
Continuing Professional Development (CPD) Credits: 2.0
STEP Member: $120.00 Non-Member: $150.00
To register or additional information visit www.step.ca or call
STEP at (416) 491-4949.
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Page/page - 19
What’s Happening?
by Dean Scaletta *
There are not a lot of “blockbuster trades” on the local legal
scene, but the New Year certainly opened with a bang with the
January 4, 2012 announcement by Justice Minister Andrew
Swan that second-term Manitoba Ombudsman, Irene hamilton,
had been appointed Director of Justice Innovation for Justice
Manitoba. This is “a new position at the head of a new branch
designed to ‘streamline processes within the justice system’”,
according to a “Top News” story (“Ombudsman moves to
government job”) in the January 5, 2012 Winnipeg Free Press.
- In amongst all of the announcements congratulating the
new Chartered Accountants was a full-colour, half-page
D’Arcy & Deacon LLP welcome to its two new partners,
Ivan holloway and Jonathan goldenberg, and its two new
associates, Edward (Ted) Crane, formerly with Inkster
Christie Hughes LLP, and gord Steeves, former City
Councillor for St. Vital, and a similar (albeit not quite as
splashy) Aikins, MacAulay & Thorvaldson LLP welcome to
its two new partners, Marla Levene and Reis Pagtakhan.
In other news …
- A fist-pumping Jennifer Jones (National Bank Financial
Ltd.) was pictured above a Paul Wiecek quote (dubbing her
the “Drama Queen”, for her propensity – noted above – to
capture championships with her last rock) in the “In a
Nutshell” segment of the “Feed Your Intellect” section.
On November 29, 2011, Paul Brett (Thompson Dorfman
Sweatman LLP) was appointed a deputy judge of the Small
Claims Court of the Ontario Superior Court Justice, Northwest
Region.
In the article “Team Player” in the December, 2011 edition of the
CBA National magazine, accolades for the role played by
Carmele Peter (Aikins, MacAulay & Thorvaldson LLP) in
bringing the NHL back to Winnipeg came from some impressive
sources, including Mark Chipman of True North Sports &
Entertainment Inc. and Mr. Justice Marshall Rothstein of the
Supreme Court of Canada. One of her AMT partners, Robert Lee,
was quoted at length in the article, while my pal, Brian Lerner –
another partner - also got a passing mention!
Local lawyers were all over the Winter 2011 edition of
Marketplace magazine. Mentions and contributions included:
- A multi-page article by Mark Newman (Fillmore Riley LLP)
entitled “The End of the Trial Era – Trend toward
alternative dispute resolution rather than litigation”.
- A profile of Don Baizley, Q.C. (Thompson Dorfman
Sweatman LLP), under the headline “Surge of Optimism in
Winnipeg and Beyond – Don Baizley, Thompson Dorfman
Sweatman, NHL Agent”.
- An edited version of the speech given by Brian Bowman
(Pitblado Law) – “We Can’t Tinker Our Way to Prosperity” –
on the occasion of his swearing-in as 118th Chair of the
Winnipeg Chamber of Commerce (and, of course, an article
on his induction in the “Around The Chamber” segment of
the magazine).
- An item in the “After Hours” segment noting that Daniel
Ryall (Fillmore Riley LLP) had organized and hosted the
annual international conference of The Canadian Transport
Lawyers’ Association, held September 22-24, 2011 in
Winnipeg.
Equally impressive (at least in terms of names mentioned and
ink expended) was the February 4, 2012 Winnipeg Free Press. In
that edition:
- John harvie (Myers Weinberg LLP) and Sherri Walsh (Hill
Sokalski Walsh Trippier LLP) were both quoted in the “Top
News” story, under the headline “Phoenix inquiry could be
delayed”.
- David Matas, C.M. (Robson Hall) was twice featured – first,
in an article (“Lawyer works to give Tamils freedom here”)
and, second, as the author of a “First Column” (under the
headline “Tell China to stop slave labour”) in the “Feed Your
Intellect” section.
Page/page - 20
- And last, but by no means least, a review by Brenlee
Carrington-Trepel (Law Society of Manitoba) of Situations
Matter – Understanding How Context Transforms Your
World, by Sam Sommers, appeared in the “Books”
supplement.
The partners of Fillmore Riley LLP welcomed Wes Burrows,
Marnie Karpiak, and MBA Membership Director Sofia Mirza to
their ranks effective January 1, 2012. The same date saw the
admission of Jamie Jurczak, Marc Marion, and Donn Pirie to
the Taylor McCaffrey LLP.
David Matas, C.M. (Robson Hall) was featured in a story (“Matas
banned from Russia; Report he co-wrote labeled ‘extremist’”) in
the January 4, 2012 Winnipeg Free Press. David earned the
“honour” for his work on a report which “said Falun Gong
practitioners [in China] were being killed for their organs for
transplants”. He had been scheduled to speak at a conference in
Kyiv in 2011 but was then informed that the 2008 banning of the
report made he and is co-author ineligible to enter the country.
Anne gregory (Canadian Union of Public Employees) was
quoted in an article (“The Death of Collective Bargaining”) in the
January, 2012 edition of Canadian Lawyer magazine.
Mr. Justice John Menzies (Manitoba Court of Queen’s Bench Brandon) was one of the speakers on the January 17, 2012 online
broadcast of “A View From the Bench: Motion Practice Strategy
and Pointers”. The program was part of the CBA Skilled Lawyer
Series II – Litigation Stream.
Byron Williams (Legal Aid Manitoba - Public Interest Law
Centre) was quoted in an article (“PUB rejects Manitoba Hydro’s
bid to adjust rates for low-income users”) in the January 20,
2012 Winnipeg Free Press.
An article by Edward (Ned) Brown (Pitblado Law) entitled
“Mortgage/security interests in ‘fixtures’” was published in the
January, 2012 edition of the CBA National Real Property Section
Newsletter.
Margaret hillick (Robson Hall – First Year) and Allan Fineblit,
Q.C. (Law Society of Manitoba) were both quoted at length in an
article (“Law society project pays students’ costs; Pilot designed
to send lawyers to north”) in the January 26, 2012 Winnipeg Free
Press. [Note: The MBA is also an integral player in the Forgivable
Loan Initiative, arranging for - and funding - summer work
during their Law School years in the community where the
student intends to return to practice.]
What’s Happening?
cont’d
Sergio Pustogorodsky (Sergio Pustogorodsky Law
Corporation) was the guest speaker at the February 16, 2012
meeting of the Society of Trust and Estate Practitioners
(Winnipeg Branch). His address was entitled “Taxation Issues at
the Time of Separation or Divorce”.
A few months back, the Winnipeg Free Press began running a
quarter-page, French language feature – Le fil des francophiles
[The Francophile Wire] – in its Saturday edition. On January 22,
2012, Aimée Craft (Legal Aid Manitoba – Public Interest Law
Centre) was profiled in a piece entitled “Défendre les Autochtones
en français” [Defending Aboriginal (Rights) in French].
gail Asper, O.C., O.M., LL.D. (The Asper Foundation) “had her
say” with two letters to the Editor of the Winnipeg Free Press,
both contributing to the daily debate over the Canadian Museum
for Human Rights. Her first letter appeared on January 24, 2012,
the fourth under the heading “Rarefied atmosphere”, and the
second on January 28, 2012, under the heading “The bigger
picture”.
On the volunteer front, MBA members continue to contribute
their time and talents to the boards of various community-based
organizations:
- Downtown Winnipeg BIZ: Ivan holloway (D’Arcy &
Deacon LLP), Management Board Member.
- Kiwanis Club of Winnipeg Foundation Inc.: Peter
Baumstark (Gange Goodman & French), Director. [Note:
This is one of those “better late than never” items … Peter
has actually been volunteering with KCWF, in a variety of
capacities, since 1998. The Foundation is “a public nonprofit charitable corporation created for the purpose of
serving and appreciably enriching the lives of children and
disadvantaged adults living in Winnipeg”.]
- Winnipeg Airports Authority Inc.: garth Smorang, Q.C.
(Myers Weinberg LLP), Director, and Dr. Arthur Mauro,
O.C., O.M., Q.C., Chairman Emeritus.
- Winnipeg Business Network:
Gray), Past President.
Scott gray (Mirwaldt &
An op-ed piece by the Hon. Charles huband (Taylor McCaffrey
LLP) appeared in the January 30, 2012 Winnipeg Free Press,
under the headline “Liberals must commit to protect vulnerable”.
Celia gorlick, Q.C., formerly with Wellington West Capital Inc.,
has been appointed Chief Advisor - Employee Relations, Human
Resources with the National Bank of Canada. Her former
Wellington West colleague, Sean Shore, is now Manager,
Business Conduct with a related company, National Bank
Financial Ltd.
Kristine Barr (Nor’West Co-op Community Health Centre), in
her capacity as Chair of the Winnipeg School Division Finance
Committee, was quoted in an article (“Homeowners face big
hikes in school taxes”) in the February 1, 2012 Winnipeg Free
Press.
Alona Mercado (Monk Goodwin LLP) had her article (“Legal 411
– The ABCs of buying a house”) published in the February 1 – 15,
2012 edition of Pilipino Express.
Law professors David Deutscher and David Asper (both at
Robson Hall) were both quoted in the front-page, above-the-fold
piece (“Stunning finish to murder trial”) in the “City & Business”
section of the February 3, 2012 Winnipeg Free Press.
And finally … the Jennifer Jones (National Bank Financial Ltd.)
foursome was the top seed going into the 2012 Manitoba Scotties
Tournament of Hearts, held January 25-29, 2012 in Portage La
Prairie. She did not disappoint. As she has done so often in her
curling career, Jennifer delivered a flawless last rock in the 10th
end to secure a 6-5 victory in the final. It is her fifth women’s
provincial title. [Sidebars … An impressive full-page action photo
of Jennifer graced the front page of the “Sports” section of the
January 29, 2012 Winnipeg Free Press Sunday Xtra. Two days
earlier, Winnipeg Free Press curling reporter, Paul Wiecek,
published an extensive analysis of her wins and losses over the
years to address the question: “Who’s the best women’s curler in
Manitoba?” The answer: Jennifer Jones and Cathy OvertonClapham are both great curlers!]
*Dean Scaletta is the Director, Information and Litigation with
Manitoba Public Insurance and is the Secretary/Treasurer of the
Manitoba Bar Association Council.
Call for Nominations –
CBA Standing Committees
The CBA is seeking candidates for its National Standing
Committees for 2012-2013. All CBA members are eligible to
apply for positions on the following committees:
Access to Justice
Awards
Communications
Equality
Ethics and Professional Responsibility
International Development
Judicial Compensation & Benefits
Legal Aid Liaison
Legislation and Law Reform
Professional Development
Resolutions, Constitution and Bylaws
Supreme Court of Canada Liaison
For further details on the mandate and time commitment for
each committee, see www.cba.org/CBA/groups/committees/
For information and an application form, contact Stacy Nagle at
the Manitoba Bar Association (204) 927-1213 or by email
snagle@cba-mb.ca. The deadline for applications is April 16,
2012.
Page/page - 21
Manitoba Articling Student Recruitment
Guidelines for the 2013 - 2014 Articling Year
On June 25, 2009, the Law Society enacted rules regulating the
recruitment of articling students in Manitoba.
The following guidelines are intended to complement the rules,
and contain the procedures for the recruitment of articling
students in Winnipeg within the context of the rules. These
guidelines were developed by representatives of the Manitoba Bar
Association (MBA), The Law Society of Manitoba, the Manitoba
Law Students Association and the University of Manitoba, Faculty
of Law. All Winnipeg firms and organizations engaged in the
recruitment of articling students for the 2013 - 2014 articling
year, and all candidates applying to such employers, are
expected to adhere to the guidelines and dates set out below.
guidelines & Important Dates to Remember
For Firms, Organizations and Students
Firm Profiles
• Employers are to provide profiles containing information
about the firm’s practice, office facilities, the number of
articling positions available, the documents required for the
application (resume, cover letter, copies of transcripts), the
contact person, address to which applications must be sent,
and all other pertinent information to The Faculty of Law,
Career
Development
Office,
via
email:
maria_roy@umanitoba.ca (phone: (204) 480-1087) no later
than Monday, March 12, 2012. All postings received by
this date will be accessible to students through the Faculty of
Law Career Development website on Friday, March 16, 2012
by noon. Profiles received after Monday, March 12, 2012
will be posted as soon as possible.
Application Deadline
• The application deadline for students to submit resumes,
cover letters and transcripts for 2013 - 2014 articling
positions shall be no later than 12:00pm (Noon)
Thursday, April 5, 2012.
Interview Call Day
• Interview offers may only be made between the hours of
1:00pm and 3:00pm on Friday, April 20, 2012. No
correspondence regarding interviews may be made prior to
this time.
Interview Week
• Interviews shall not be conducted prior to 8:00am on
Monday, April 23, 2012 to 5:00pm on Friday, April 27,
2012. Firms and organizations may interview students at a
location of their choosing. The Faculty of Law will provide
space
upon
request.
Please
contact
maria_roy@umanitoba.ca if you require same.
Eligible Students
• Approved principals or their delegates may make an offer of
an articling position only to students who have, at a
minimum, commenced their second year of law studies.
Only students who have, or will have obtained an LL.B. or J.D.
prior to or during 2013 will be eligible to apply for 2013 2014 articling positions.
Offer Date
• Approved principals or their delegates may not make an
offer of an articling position in Winnipeg for the 2013 Page/page - 22
2014 articling term before 4:00pm on Monday, April 30,
2012. Under the new rules, offers must remain open for 24
hours, unless accepted or rejected by the student prior to the
expiration of the 24 hour period.
Content of Offers
• At the time the offer is made firms must provide students
with the name and contact information of the person to
whom the student should communicate acceptance or
rejection of the offer. Firms are also encouraged to include
pertinent information with the offer, such as the proposed
start date, salary and benefits.
Communication of Acceptance/Rejection
• As a courtesy to firms and fellow students, students shall
deal with offers received as soon as reasonably possible.
Once a student has accepted an offer from one firm, the
student must promptly communicate his/her rejection to
any other firm that has extended an offer to the student.
Failure to promptly communicate rejection of an offer
prejudices the offering firm as well as fellow students to
whom subsequent offers may be made.
Accepted Offers
• Once an offer has been accepted, neither the employer nor
the student may withdraw from the agreement without the
permission of the Chief Executive Officer of the Law Society
of Manitoba.
Offer of Articling Positions after April 30, 2012
• Firms and organizations may contact students directly to fill
any articling positions remaining following the initial
placements. Offers made after April 30, 2012 must remain
open for at least 24 hours, unless accepted or rejected by the
student prior to the expiration of the 24 hour period.
Communication of Results
• Once an offer has been accepted, the student and the
employer must immediately advise Marla Billinghurst,
Director, Career Development, University of Manitoba,
Faculty of Law by email: marla_billinghurst@umanitoba.ca
or phone: (204) 474-7932.
Timeline
Employer profiles/ postings due:
4:00pm, Monday, March 12, 2012
Profiles/ postings available to students:
12:00 Noon, Friday, March 16, 2012
Application deadline:
12:00 Noon, Thursday, April 5, 2012
Interview offers:
Between 1:00pm and 3:00pm Friday, April 20, 2012
Interview Period:
8:00am Monday, April 23, 2012 to 5:00pm Friday, April 27, 2012
Earliest offer date:
No earlier than Monday April 30, 2012 at 4:00pm
Criminal Law Decisions
by Christopher Mainella *
R. v. T.W.B., 2012 MBCA 7
Manitoba Court of Appeal – Scott CJ, Monnin M.A. and
Freedman JJA.
Decision delivered: February 1, 2012
A.Y. Kotler and C. T. St. Croix, for the Crown (Appellant)
G.F. Wiebe, for the Young Person, Accused (Respondent)
The accused’s mother left Winnipeg for a short vacation leaving
him and his sister in the care of their step-grandmother. During
her visit, the step-grandmother received a call from other family
members, advising that the accused may have a gun. While the
accused was out of the house, the step-grandmother searched his
bedroom. She unscrewed a loose ventilation cover and found a
loaded 9 mm handgun and two magazines hidden in the HVAC
duct.
When other family members heard about the discovery they
called a close friend of the accused’s mother who was a female
police officer. She in turn reported the matter to the Street
Crimes Unit. The officer who took control of the investigation
was the boyfriend of the female officer. He also knew the
accused’s mother socially. He contacted the accused’s mother.
She expressed concerns about the safety of the stepgrandmother. He asked her if it was okay if he went to the house
to seize the firearm before the accused came home. The mother
agreed. He attended to the house immediately, spoke to the stepgrandmother and seized the firearm. He did not apply for a
search warrant.
The officer believed he had lawful authority to act without a
search warrant based on s. 117.04(2) of the Criminal Code for
reasons of public safety and urgency. He also thought he had the
consent of the homeowner, the accused’s mother. The trial judge
ruled that the warrantless search of the bedroom was
unreasonable and violated the accused’s s. 8 Charter rights. The
trial judge excluded the evidence and acquitted the accused of
several firearms offences (2010 MBPC 57).
The key s. 8 Charter findings of the trial judge were: (a) the
accused had a reasonable expectation of privacy in the HVAC
duct in his bedroom; (b) the only person who could consent to
search the accused’s bedroom was the accused, not his mother or
step-grandmother; (c) even if the mother or step-grandmother
gave police permission it was not an informed consent; (d) police
lacked reasonable grounds that a gun was in the house based on
the unconfirmed observations of the step-grandmother; (e) there
were no exigent circumstances for police to act without a
warrant.
The trial judge excluded the evidence pursuant to s. 24(2) of the
Charter because, in her view, police took an impermissible shortcut that resulted in a serious and deliberate Charter violation.
The trial judge held that although police were acting in good faith
to get the gun off the street, the officers’ personal relationship
with the accused’s mother had the effect of compromising the
rights of the accused.
Reconciling the interests of public safety and personal privacy is
a timeless debate. Sir Edward’s Coke’s 17th century comment
that a home is a person’s castle and safest refuge is an enduring
aspect of the legal liberties that free people enjoy. How that
maxim does or does not apply to a teenager hiding a loaded
handgun in the HVAC duct of his mother’s house is controversial.
The Court of Appeal disagreed with the trial judge’s ruling,
allowed the Crown’s appeal and ordered a new trial of the
accused.
Although the Crown did not appeal the trial judge’s s. 8 Charter
ruling, the Court of Appeal’s decision, when read closely, hints
that the trial judge erred in more than just her s. 24(2) Charter
analysis.
The Court of Appeal identified the principal error of the trial
judge was her determination that the accused had a reasonable
expectation of privacy in the HVAC duct such that the
unreasonable search was a serious violation for the purposes of
the 24(2) Charter analysis discussed in R. v. Grant, [2009] 2 S.C.R.
353.
The law has long accepted that a child’s expectation of privacy in
the dwelling house shared with their parent(s) is a matter of
relative degree. Children may have privacy interests in some
parts of the family home but not in others. The Court of Appeal
held that the trial judge erred by concluding the accused had
established he had a privacy interest in the shared infrastructure
of the house, the HVAC duct. No evidence supported that finding,
nor was it reasonable. An HVAC duct is not a personal storage
location.
The Court of Appeal went onto identify other errors committed
by the trial judge in concluding the Charter violation was serious
for the purposes of the Grant analysis. First, the trial judge’s
concern that the accused’s rights were compromised by personal
relationships between police and his mother was not supported
by the evidence. The police acted appropriately and with the
consent of the homeowner. Second, the trial judge was mistaken
that police did not have reasonable grounds for the purposes of
s. 117.04(2) of the Criminal Code based on the step-grandmother
finding the firearm. Her finding of the gun and the reporting of its
discovery via a reliable 3rd party was ample information for
police to rely upon.
As Justice Binnie observed in R. v. Tessling, [2004] 3 S.C.R. 432,
privacy is a “protean” concept. Accordingly, the law of search and
seizure has developed incrementally based on the unique facts of
each case. Critical to this case was the lack of any evidence
establishing a privacy interest of the accused in the place police
searched. Nothing rebutted the common sense starting point that
an HVAC duct is a place used for the common good of all
occupants of a residence, air flow; it is not place used for
personal storage. The consent of the homeowner would have
been more important if the gun was located elsewhere in the
accused’s bedroom. Even then, once the firearm was discovered
by the step-grandmother police had lawful authority by statute
to act without a warrant.
Many search and seizure controversies overlook the important
first step of identifying the privacy interest at stake and instead
focus on the conduct of police. That approach is short sighted.
One message of the Court of Appeal in this case is the courts need
evidence to identify the privacy interests at stake as that is the
context in which police conduct will be assessed. It is axiomatic
that the contours of the imaginary moat, portcullis and
battlements that a teenager enjoys while living in the home of
their parent(s) is likely controversial and not readily
ascertainable. Charter analysis always requires a proper factual
foundation to define the context of the police’s conduct so that it
can be assessed properly against the values the Charter is meant
to protect and promote.
*Christopher Mainella is General Counsel with the Public
Prosecution Service of Canada. The views expressed are those of
the writer alone.
Page/page - 23
Civil Litigation Decisions
by Cynthia Lau *
Henry Estate v. Henry, 2012 MBCA 4
Manitoba Court of Appeal
Decision delivered: January 12, 2012
The defendant Joseph Henry (“Joseph”) appealed the motion
judge’s decision in which it was determined that Manitoba, not
Jamaica, was the forum conveniens for the determination of a
claim advanced by the plaintiff Henry Estate against him. The
executors of Henry Estate cross-appealed on the basis that the
motion judge found that success was divided and costs should
not be awarded.
At 96 years of age, Adelaide Henry (“Adelaide”) executed a will in
Jamaica leaving her entire estate to seven of her nine children
(excluding her son Rupert, who had predeceased her, and her
son Joseph).
When Rupert had passed away intestate earlier, Adelaide
became the sole heir to his estate which was valued in excess of
$250,000. After applying to become administrator of Rupert’s
estate, Joseph retained assets of $251,307. Five thousand dollars
was forwarded to his brother Lenworth from Rupert’s estate.
After being granted probate of Adelaide’s estate in Jamaica, her
executors obtained a (without notice) garnishing order of
Joseph’s bank account in the amount of $264,981.78. The funds
were paid into court to reduce any judgment against Joseph, or
until further order of the court.
The executors’ claim against Joseph sought a determination that
monies were owed to Adelaide’s estate, accounting of funds, and
disclosure of conversion of funds into other property. This
lawsuit was commenced in Manitoba and served upon Joseph in
Manitoba.
Joseph alleged that Jamaica, not Manitoba, was the forum
conveniens for the dispute and he unsuccessfully brought a
motion before the Manitoba Court of Queen’s Bench pursuant to
Rule 17.06. Further, Joseph defended the action by alleging that
Adelaide’s will was invalid on the basis of lack of testamentary
capacity, duress and undue influence, and suspicious
circumstances. In the alternative, Joseph alleged that the will
was a forgery. Also, Joseph claimed that Adelaide owed him
$312,000, which amount should serve as a set-off.
Appeal and cross-appeal dismissed. Discretion is afforded the
motion judge in determining the proper forum. The motion
judge considered the proper authorities and applied the correct
legal principles. Since no reversible error of fact had been made,
appellate intervention was not justified.
On a discretionary decision, the standard of review is very high
for an appellate court to intervene, and only if the trial judge has
been misdirected or made a decision that is so clearly wrong that
it amounts to an injustice.
In respect of determining forum conveniens, the factors to
consider are: the location (residence) of the majority of the
parties; the location of key witnesses and evidence; the
desirability of avoiding a multiplicity of proceedings and
conflicting decisions in different courts; the substantive law to be
applied to the issues and its weight in comparison to the factual
questions to be decided; geographical factors suggesting the
natural forum; and any juridical advantage to the plaintiffs in
Manitoba or any juridical disadvantage to the defendant in
Manitoba.
The onus rests with the moving party to satisfy the court that the
forum selected is not the most convenient.
Page/page - 24
Regarding validity of the will, this was a separate matter from the
executors’ claim and it had no bearing on its continuance,
Queen’s Bench Rule 9.03(5).
Some of the alleged errors raised by Joseph were irrelevant
because the executors and Joseph all resided outside Jamaica and
the executors would be nominal representative individuals in
either Jamaica or Manitoba. Moreover, it was unclear where the
damage was sustained or where factual matters arose.
A real and substantial connection existed with Manitoba because
of Joseph’s place of residence, the location of the funds, and
where there was a refusal to pay Adelaide and her estate. (In
fact, four of Adelaide’s children resided in Manitoba.) Extraprovincial witnesses could testify by video conference. A postjudgment advantage consisting of prejudgment garnishment also
existed as a legitimate juridical advantage.
The cross-appeal was dismissed. Costs are discretionary and
there is no basic practice to grant costs to the successful party on
a motion regarding forum non conveniens. Without reversible
errors of fact or law, the cross-appeal should similarly be
dismissed.
Manitoba Eastern Star Chalet Inc. v. Dominion Construction
Co. Inc., 2011 MBQB 320
Manitoba Court of Queen’s Bench McKelvey, J.
Decision delivered: December 21, 2011
The issue before the court was whether Dominion Construction
Company Inc. (“Dominion”) had successfully bid on a tender for
a construction contract such that it was liable to enter into the
contract according to the bid.
Plaintiff Manitoba Eastern Star Chalet Incorporated (“Eastern
Star”) owned and operated a seniors housing complex located at
525 Cathcart Street, in the City of Winnipeg. Eastern Star
intended to commence a construction project to expand and
modernize the complex, and it retained architectural consultant
arccadd.com (the “consultant”) for this purpose.
The
construction project was to be financed by board fundraising
accompanied by a mortgage to cover any shortfall.
Three companies were approached and invited to bid on the
construction project, among which was the defendant Dominion.
The contract bid documents indicated that bids were to be closed
on February 27, 2009 at 2:00 pm with offers to be opened after
bid closing only. Amendments were to be submitted prior to the
bid closing and Eastern Star had absolute discretion to accept or
reject bids without notice. Bids were irrevocable within 30 days
of the bid closing. Upon acceptance of a bid, the consultant would
notify the successful bidder in writing, and performance of the
contract would take place in accordance with the tender
documents.
As common to construction projects and the bidding process,
Eastern Star prepared addenda to address and clarify concerns
raised by the bidders throughout the process of preparing the
bids.
On the date of the bid-closing, all three bidders submitted their
bids compliant with the timeline at the specified location of
delivery. Dominion’s bid was submitted by its authorized agent
and chief estimator.
When the bids were opened on February 28, 2009, they ranged
from $2.45 million to $3.157 million, with Dominion’s bid being
the lowest.
Civil Litigation Decisions
cont’d
On March 1, 2009, the consultant’s senior architectural project
manager Melody Stewart (“Stewart”) was advised that if
contacted by the three bidders, they should be told that
Dominion’s bid was “low and probable” (subject to final board
approval in two or three days). In a letter dated March 2, 2009,
Stewart reported to Eastern Star that the Dominion bid was
accepted.
On March 2, 2009, Stewart informed Eric Johnston (“Johnston”)
of Dominion that its bid was “low and probable”. Johnston then
notified Stewart that there was a problem and he would “get
back to her”. Thereafter, Stewart wrote a letter to Eastern Star
purporting to withdraw Dominion’s bid on the basis of a
substantial mathematical error.
Dominion’s defence relied not upon the mathematical error, but
rather, a materially non-compliant bid that was capable of
withdrawal at any time prior to acceptance (formally effected on
March 11, 2009).
Dominion alleged that its bid had been non-compliant by failing
to provide a copy of the by-law resolution of its board of
directors authorizing its chief estimator to sign the bid document
and for failing to include structural addendum #4 in the bid.
In the Instruction to Bidders, certain bids could be declared noncompliant at Eastern Star’s discretion if they lacked, among other
things, improper signatures or improper forms and enclosures.
In its sole discretion, Eastern Star could reject or retain nonconforming bids which did not contain the required content or
form or failed to comply with the submission process.
Claim allowed. In this case, the Court determined that the
discretion clause within the tender documents enabled Eastern
Star to consider Dominion’s bid substantially complaint.
Therefore, Dominion was liable to Eastern Star pursuant to the
tender documents and it could not revoke its bid prior to
acceptance.
Substantial Compliance
Substantial, not strict, compliance with the tender process is the
expectation. In Maple Reinders Inc. v. Cerco Developments Ltd.,
2011 BCSC 924, the BC Supreme Court explained that:
“… [S]ubstantial compliance requires that all material
conditions of the tender, determined on an objective
basis, be complied with, and that a bid is substantially
compliant if any departures from the tender documents
concern mere irregularities …”
Whether the bid was substantially compliant must be considered
in the context of the competitive bid process, taking into account
the need to protect the integrity of the process, fairness and
equality.
• Signature
When Dominion’s agent had signed the bid document, he did not
possess the title of president, secretary, or treasurer as required
by the Instructions to Bidders. Although a by-law existed giving
the agent authority, this copy was not provided to Eastern Star
during the bid process.
However, Dominion’s agent
acknowledged that he had signed many bids on its behalf in the
past. (Notably, all bidders had been incompliant with the bid
signing protocol outlined in the instructions.)
• Missing Addendum
Although Structural Addendum#4 was missing, Eastern Star had
concluded that there would be a credit and it was satisfied that
Dominion was aware of the addendum. (Dominion had initially
raised the issue giving rise to the addendum, and it had received
all the documentation). In any event, the precedence of
documents component of the contract bid documents resolved
this issue.
In this case, the Court found that Dominion submitted what it
believed was a valid and correct bid on February 27, 2009,
thereby intending to be bound by it. (Any substantial
mathematical error that Dominion relied upon to withdraw the
bid was not obvious on the face of its bid document.)
All structural addenda had been considered by Dominion in the
bid process such that it was substantially compliant on this point.
Although there was no copy of Dominion’s by-law resolution
included with the bid, this omission was not material.
Furthermore, a clause within the bid form allowed Eastern Star
to accept Dominion’s offer for thirty calendar days from the Bid
closing date and time. The offer was explicitly stated to be
irrevocable during this period.
Upon submission of Dominion’s bid, a valid contract had been
automatically created with Eastern Star. Therefore, Dominion
was liable to Eastern Star for the difference between its February
27 bid amount and the amount ultimately paid by Eastern Star to
construct and complete the construction project.
* Cynthia Lau is a MBA Council Member, Vice Chair of the Legal
Research Section and works for the Manitoba Public Insurance
Legal Department.
CCCA World Summit and
Spring Conference
The CCCA is holding its World Summit and National Spring
Conference back-to-back in Montreal from April 13-17, 2012.
This format will provide delegates with five consecutive days of
networking and accredited programming, combining both global
and national perspectives. On the evening of April 15, 2012, the
CCCA will host a joint reception, bringing together both events
and featuring keynote speaker Richard Susskind, widely
acknowledged as a leading world authority on the future of legal
services. Other highlights include keynote talks by Lucien
Bouchard, Pamela Wallin, Calin Rovinescu and Yuen Pau Woo,
President and CEO of the Asia Pacific Foundation of Canada.
Learn more and register online at: http://www.cccaaccje.org/En/spring/main/default.aspx .
Page/page - 25
Estates And Trusts Decisions
by The Wealth and Estate Law Group of Inkster Christie Hughes LLP *
Ranville v. Campbell
2011 MBQB 315
Manitoba Court of Queen’s Bench
Senior Master Lee
Report issued: December 15, 2011
Deemed Confirmation Date: January 19, 2012
Sharon Tod, for the Applicant
George E. Ulyatt, for the Respondent
Who can an attorney hire to assist him or her in caring for the
donor? This decision indicates that paying a family member to do it
may be appropriate.
A reference order dated July 28, 2010 referred to the Master a
passing of accounts by the respondent, Marlene Campbell as
attorney for her mother, Bella Morrisseau. The power of attorney
was signed on July 6, 2000 while Bella was in hospital. She
appointed Marlene and her son, Leo, as attorneys and appointed her
daughter, Viola Ranville, (the applicant) as the recipient of the
accounts. Bella recovered her health and went home to Crane River,
MB.
Bella’s husband, Ernie, took care of most of the family’s expenses
while Bella generally paid for the groceries. Shortly after the power
of attorney was signed, Marlene and Leo began writing cheques on
Bella’s accounts. There were seven children in total and most of the
children received one or more cheques while the attorneys were
acting.
It appears that Viola was sent a copy of the power of attorney in June
2004. Bella died on October 15, 2004 and was survived by her
husband, Ernie, who was still alive at the time of the hearing. Shortly
afterward, Viola requested a full and complete accounting from the
attorneys. Several affidavits were filed and there was an oral
hearing before Senior Master Lee. It is not clear from the decision
why Marlene is the respondent and not Marlene and Leo, since both
were named as the attorneys for their mother.
The reference proceeded on the basis of a consent order though
Senior Master Lee questioned whether it was appropriate. Given
sections 22(1), 19(1) and 13(e) of The Power of Attorney Act, he
stated that it appeared the duty of the attorney to act only arises
upon the donor becoming mentally incompetent and that the
obligation by the attorney to account arises only during the donor’s
mental incompetence. There was no medical evidence that Bella
was mentally incompetent though there was unchallenged evidence
that she was competent until July 2004, about three months before
her death. There was no evidence that Bella expressed concern or
disapproval with how the accounts were being managed.
[The decision provides the information that Viola was named in the
power of attorney “as the recipient who may demand an accounting
from my Attorney at any time.” I had the opportunity to review the
power of attorney and there was no restriction in the document
itself, as is sometimes the case, that required Bella to be mentally
incompetent before the accounting was provided to Viola. From a
legislative perspective, mental incompetence is a necessity before
the recipient named in the document can demand an accounting
pursuant to s. 22(1)(b) of The Power of Attorney Act. However, Bella
signed a power of attorney that had a broader power for the
recipient of the accounting, to “demand an accounting at any time.”
It was not restricted to a time when Bella was incompetent. Is the
decision to be interpreted as meaning that, if concerned about the
attorney’s actions during Bella’s lifetime, Viola had no right to ask
for the accounting unless Bella was incompetent, despite Bella
giving Viola the right to demand it at any time? Consider the
Page/page - 26
question in light of the growing awareness of financial abuse of
competent, vulnerable older adults.]
Viola took exception with Marlene’s failure to keep receipts for the
groceries which made up the bulk of the expenses. She also
suggested that Marlene had a duty to either take control of the joint
assets of Bella and Ernie, or at least to segregate Bella’s interest in
the joint accounts. Senior Master Lee disagreed that Marlene had a
responsibility to segregate the accounts. He did not give a further
explanation.
There is an interesting part of the decision that deals with payments
made to family members. This did not include Marlene since she did
not seek compensation as attorney for herself. Paying family or
close friends to do a job for which a neutral third party could be paid
often is fraught with potential difficulties.
In this family, another daughter, Lily, moved into Bella and Ernie’s
home for 79 days to provide round the clock care for Bella. She was
paid $2,800 to compensate her for taking from her own job to care
for her parents while maintaining her own apartment in Dauphin.
There were some additional payments to other family members,
details of which were not provided in the decision. The decision
does not indicate what documents Senior Master Lee received or
what information was provided in oral testimony to support the
claims of time or duties spent. One factor in approving the payment
to Lily may have been that the 79 day period was one in which the
provincial home care program was not providing services for Bella.
The case does not indicate if this was the determining factor.
There also was evidence of a payment made to one son, Norman, in
order to help another son, Leo (the other attorney), pay for a third
party to feed his cattle (an expense personal to Leo and not for
Bella). While Leo said he paid the money back to Norman, there was
no evidence the money had been paid back to Bella. Senior Master
Lee indicated that, if that was the case, then Norman should repay
the money or have the amount deducted from his residuary share of
the estate. He did not make a specific comment about the
appropriateness of the payment to Norman.
With respect to the payments made to family members, Senior
Master Lee was satisfied that, if there were any technical breaches of
trust by Marlene, she should be fairly excused for them. He found no
evidence of wrong doing, or that any expenses were not made in
Bella’s interests.
While every case has to be considered on its own merits and facts,
the decision raises interesting questions. Provincial home care
rarely provides 24 hour care. If provincial home care had been
providing services to Bella, would compensation still be paid to a
family member who provided services not covered by home care?
Are there other tasks for which a family member could be paid? Was
it a deciding factor that the other siblings or Ernie disputed the
payments?
It also is interesting to contrast this decision with the decision of
Master Harris in The Estate of Ruth Jean Colvin 2006 MBQB 229 in
which the attorney was denied compensation for “non-attorney”
tasks like taking the donor to her doctor’s appointments or getting
her groceries. Could the Ranville v. Campbell decision be used to
argue that, while the attorney would not be compensated for “nonattorney” tasks, a family member or friend could be hired to do it?
The decision also points out the importance of reviewing your
standard form of power of attorney. How does it address the duty to
provide an accounting?
*Cynthia Hiebert-Simkin, John Delaney, John Poyser, Daniel Watts.
Habeas
H
abeas Corpus
Corpus
Legal
L
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History
istory
and
Guant
anta
anamo B
ay
Guantanamo
Bay
Professor
P
rofessor James
James Oldham
Oldham
(Georgetown
(G
eorgetown U
University
niversity L
Law
aw C
Center,
enter,, W
Wa
Washington,
ashington, D
D.C.)
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The Faculty and Students Extend an Open Invitation to the 2nd Annual DeLloyd J. Guth Visiting Lecture in Legal History
L
Legal
egal history
history lives,
lives, medieval
medieval and
and modern,
modern, to
to protect
protect us.
us. This lecture centres on the past ten years experience as Counsel of
Record in Amicus Briefs of Legal Historians in three cases beffore the U.S. Supreme Court, where the medieval writ of habeas
corrpu
p s featured in the context of non-criminal executive detention. What is its geographical reach, its substantive scope and
historical intent? How does this apply to Manitoba’s jails and custodial processes?
Thursday, March 8th, 2012
4:30PM - Moot Court Room
Reception to follo
follow, Students Common Room
robsonhall.ca
Making the Law work for everyone
Happy Birthday to us!
On February 11, 2012, the Legal Help Centre celebrated a year of increasing access to justice for low income
members of our community.
Since we opened our doors • over 1200 people have received legal information and assistance at our Drop In Clinic;
• more than 100 people have received advice from volunteer lawyers in our Legal Advice Clinic;
• over 100 people have attended our workshops designed for self representing litigants.
Congratulations and thanks to our generous funders and many volunteers - the students, lawyers, and retired
lawyers who did it all - for our amazing success!
Come be inspired by the difference you can make.
Call us at 258-3096; or visit www.legalhelpcentre.ca
Page/page - 27
ASSISTANCE IS AVAILABLE
LPAC
The Legal Profession Assistance Conference (LPAC) has the unique
function within the CBA of providing continuing education, support and
expertise to the Provincial Lawyer Assistance Programs across Canada.
The Provincial Lawyer Assistance Programs provide professional
support and assistance to lawyers, Judges, law teachers, and law
students across Canada including confidential advisory and information
services as well as personal support and peer group volunteers.
Recognition is growing among lawyers that practising law is exacting
and can take a heavy toll emotionally, mentally, physically and
sometimes financially. As well as providing assistance when lawyers
experience distress, professional counselling can help before a personal
problem has a negative impact on one’s personal and professional life.
Lawyers, Judges, law students and their families, staff, and friends can
phone our 24-hOUR hELPLINE @ 1-800-667-5722 for confidential
help, assistance, guidance and professional referrals, OR, you can ph
LPAC’s Executive Director, Joyce Stewart @ 1-416-304-4008 for more
information. Remember, we are totally confidential.
LAWYERS AT RISK
In May, 2001, The Law Society of Manitoba introduced the Lawyers at
Risk program, a professional counselling service for Lawyers who need
help. The program is a free and confidential service for practising
Lawyers and articling students in Manitoba and their families, operated
by Manitoba Blue Cross. It offers crisis-intervention and assistance and
short-term counselling services. In Winnipeg call 786-8880. Outside
Winnipeg call toll free 1-800-590-5553.
LAWYERS hELPINg LAWYERS
This service is in addition to the referral service provided by the Legal
Profession Assistance Conference. Lawyers Helping Lawyers is a
Committee of the Manitoba Bar Association.
Lawyers Helping Lawyers strongly believes in, and supports the
introduction of, the Lawyers at Risk service offered by The Law Society
of Manitoba. If you are not enjoying your practice of law or life to the
fullest, then we urge you to contact one of the Lawyers Helping Lawyers
listed below.
Myfanwy Bowman
Ofc: 985-5220
John Shewchuk
Ofc: 889-4595
Dirk Blevins
Leslie Turner
Ofc: 944-3270
George Chapman, Q.C.
Ofc: 888-7973
Justice Ab Clearwater
Ofc: 945-2050
Yude M. Henteleff, C.M. Q.C.
Ofc: 956-3526
Judge Carena Roller
Ofc: 945-2609
Jennifer Cooper, Q.C.
Ofc: 977-3856
Justice Chris Martin
Ofc: 945-2050
Colleen McDuff
Cell: 955-1315
Walter Thiessen
Ofc: 925-5375
Norman Yusim
Ofc: 957-8309
Jack McJannet, Q.C.
Ofc: 957-0951
Tim Samson, Q.C.
Ofc: 957-4623
Celia (Ceci) Gorlick, Q.C.
Ofc: 925-7960
Carl Burch (Brandon)
Ofc: (204) 728-1818
Res: 284-5424
Res: 885-2990
Res: 261-7539
Res: 275-7085
Res: 895-8444
Res: 257-5354
Res: 488-9004
Res: 612-1300
Res: 488-0133
Res: 488-8028
Res: 219-6680
Res: 661-5700
Res: 334-2227
Res: 837-9819
Res: 488-7434
Res: 488-7414
Res: (204)725-3288
Marcelin Murray
Gwen Hatch
Jon van der Krabben
Christopher Brock
Beth Tait
Lillian Sengmany
Judy Eagle (Flin Flon)
Ofc: 957-8334
Ofc: 944-3281
Ofc: 254-3511
Ofc: 956-4361
Ofc: 985-9729
Ofc: 254-8416
Ofc: 204-687-7000
Res: 253-1554
Res: 888-5662
Res: 256-1124
Res: 452-3461
Res: 284-5952
Res: 992-2641
Res: 204-687-7635
EQUITY OMBUDSPERSON
The Equity Ombudsperson can, free of charge: help to resolve individual
discrimination and harassment concerns; act as a sounding board in
dealing with internal office concerns or complaints; provide educational
seminars and speaking engagements about respectful workplace issues
for legal offices; assist in the development and implementation of
policies and procedures. All contacts are confidential. Contact Brenlee
Carrington Trepel, ph: 942-2002 or toll-free 1-866-771-2002, email:
brenleecarrington@shaw.ca.
QUEEN’S BENCh INFORMAL CONCERNS
In an effort to provide an informal, confidential forum in which Queen’s
Bench Justices, Masters and Lawyers might have their concerns about
one another aired, the Manitoba Court of Queen’s Bench and the
Manitoba Bar Association have created a committee chaired by Justice
Robert Carr whose members are available to discuss, one on one,
problems that do not warrant a more serious intervention. Justices,
Masters and Lawyers who wish to speak with a committee member may
call any of:
Colin MacArthur, Q.C. ..............................................................................957-4627
Patricia Fraser (Brandon)..........................................................(204) 727-8461
Rekha Malaviya ...........................................................................................945-6120
Justice Marilyn Goldberg.........................................................................945-2050
Justice Robert Carr.....................................................................................945-2050
Senior Master Rick Lee ............................................................................945-8232
Justice Don Little.........................................................................................945-2050
Justice Deborah McCawley.....................................................................945-2050
Justice Perry Schulman............................................................................945-2050
Justice Freda Steel......................................................................................945-2050
Justice Douglas Yard..................................................................................945-2050
PROVINCIAL COURT INFORMAL CONCERNS
In an effort to provide an informal, confidential forum in which
Provincial Court Judges and Lawyers might have their concerns about
one another aired, the Provincial Court of Manitoba and the Manitoba
Bar Association have created a committee chaired by Judge Timothy
Preston whose members are available to discuss, one on one, problems
that do not warrant a more serious intervention. Judges and Lawyers
who wish to speak with a committee member may call any of:
Alan Semchuk (Dauphin)...........................................................(204) 638-3211
Joe Aiello.........................................................................................................949-7708
Richard Wolson, Q.C. ................................................................................985-8184
Judge Patti Umpherville...........................................................................945-3461
Judge Judith Elliott.....................................................................................945-3461
Judge Tim Preston......................................................................................945-3461
Judge Brian Colli .........................................................................................677-6773
Judge John Guy.............................................................................................945-3461

2012 MBA Bar Bonspiel

Transcription

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