2010 Mid-Winter CPD:

Tax Law Refresher by Paul Grower
Paul Grower looks at the taxation of damage awards as divided into business damage awards and personal damage awards. This paper discusses when and why taxes need to be paid on a client’s damage awards. The author makes specific reference to case law and draws a distinction between the replacement of taxable items and the replacement of non-taxable items. This distinction helps to provide the circumstances around when tax payments will need to be made on damage awards. This paper also briefly touches on tax evasion and limitation periods.

Roadmap to the Queen’s Bench Rules: Appearances Before the Master (Other than in a Family Law Proceeding)  by Master Sharp

This paper on appearing before a Master in a civil proceeding was presented as a CLE at the 2008 Mid-Winter meeting.  Master Sharp begins by explaining that since the Masters derive their power from the Queen’s Bench rules basic knowledge, at the very least, of these rules is required before appearing.  Next Master Sharp discusses when it is appropriate to appear before a Master based on Queen’s Bench rule 37.02 (2).  Furthermore, she points out that based on Queen’s Bench Rule 37.03 (1) as interpreted by the Manitoba Court of Appeal, where a motion is stipulated to be within a master’s jurisdiction it must go to a master.  Master Sharp then provides a list of matters that are typically handled by Masters, followed by a list of when a matter cannot be handled by a Master (i.e.  actions falling under Queen’s Bench Rule 20A, with a notice to the profession concerning use of the rule provided as Appendix A).  Next, Master Sharp discusses the process by which a matter is brought before a Master.  She states that the form by which a matter is brought before a Master is based on Queen’s Bench Rules 37 and Form 37A.  The matter will then appear on the Masters’ Uncontested list and all matters within a Master’s jurisdiction are returnable to this list with three exceptions which she lists.  Master Sharp also provides a list of circumstances under which an appearance is not required on the uncontested list.  Master Sharp then turns to a discussion of specific issues dealt with by a Master.  The first issue is substitutional service.  She states that service issues are covered under Queen’s Bench rule 16 with substitutional service being covered under Queen’s Bench rules 16.04 (1) and (2).  Master Sharp provides a number of examples of substitutional service as well as some considerations that should be made in preparation of an affidavit for substitutional service.  The next issue that Master Sharp discusses is expungement of affidavit material and when and before whom (Master or Judge) such a motion should be brought.  She recommends that Winnipeg S.D. No. 1 v. Winnipeg Teachers’ Association of the Manitoba Teachers’ Society, [2007] M.J. 34 as well as Lexogest Inc. v. Manitoba (Attorney General), [1990] M.J. 353 be read for clarification on this matter.  In consideration of the contents of an affidavit Master Sharp states that Queen’s Bench Rules 4.07 (2), and 39.01 (4), (5) and (6) apply, and points to some relevant case law.  Master Sharp then briefly discusses the issue of orders and the relevance of Queen’s Bench Rules 59.03 and 59.04.  Finally, Master Sharp briefly discusses appeals of a Master’s order, which lie to a Queen’s Bench Judge under Queen’s Bench Rule 62.01(1).  She points out that there has been a recent change as to evidence allowed at an appeal of this type under Queen’s Bench rule 62.01 (10) and provides as Appendix B to this document the decision in Anderson v. Lockwood, 2008 MBQB 18. 

Appearances Before the Master in Family Proceedings: When this may be appropriate, and the why, when and how of such an appearance by Master Carol Sharp

This paper on appearing before a Master in a family proceeding was presented as a CLE at the 2008 Mid-Winter meeting.  Master Sharp begins by offering a list of times when such an appearance before a Master may occur.  Master Sharp provides a why, when and how for each of the items on her list.  The first item she discusses is contested adjournments.  She points out the fact that the Family Division Justices have designated to the Masters the jurisdiction to decide if a matter should be adjourned or set down for a hearing.  If parties cannot reach an agreement on adjournment they will be referred to the Standby Master for that day.  She then provides a brief synopsis of when and how the matter will proceed followed by tips concerning contested adjournments.  The next of the items that Master Sharp discusses are expunge motions. She states that Rule 70.21 provides a comprehensive scheme for the expungement of an affidavit in a family proceeding.  She provides a brief synopsis of when and how the matter will proceed.  She finishes her discussion of expunge motions with tips on how to handle these matters.  The third item that Master Sharp discusses is family property references.  She points out that these references arise either by a family property accounting under The Family Property Act, or through a reference for the sale of jointly owned property pursuant to The Law of Property Act.  She states that under either context the reference must directed to a Master by a Queen’s Bench Judge.  She then briefly provides an overview of how the matter proceeds in each context, as well as providing tips on handling these matters.  The final item that Master Sharp discusses is the Masters’ daily uncontested list.  She states that Masters hear without notice and uncontested (with notice) matters daily at 9:30 a.m. in the courtroom of the Master assigned to these matters for the day.  She then provides a brief overview of how each type proceeds, and again provides tips on how to handle these matters.

A (Partial) Roadman to the Queen’s Bench Rules: a.k.a. What I wish they had told me earlier – Paul K. Grower

This is a copy of a slide show on how to proceed at the Queen’s Bench which was presented as a CLE at the 2008 Mid-Winter meeting. Mr. Grower begins by offering some tips and traps to the Queen’s Bench. The first of these is QBR 14 which deals with the commencement of proceedings. He discusses in some detail QBR 14.05 (2) concerning the commencement of a proceeding by Notice of Application. Mr. Grower states that proceedings commenced by application can be faster, allows you to get a number of facts out quickly before the court, can force opposing parties to get their facts out as well. Next Mr. Grower discusses affidavits (from the perspective of a Notice of Application). He discusses the contents of an affidavit for both motions and applications citing QB rules 39.01 (4) and 39.01 (5) respectively. In relation to full and fair disclosure on motion or application without notice he points to QBR 39.01 (6) and the fact that a failure to provide full and fair disclosure can lead to the setting aside of an order obtained under the motion or application. Mr. Grower then turns to cross-examination of an affidavit under QBR 39.02. Mr. Grower states that you cannot proceed until you have filed every affidavit that you intend to rely on, and that leave of the court is required to file an affidavit after cross-examination. He further provides a list of the duties of the examining parties under QBR 39.02(4). Mr. Grower then considers the issue of service. He provides some general guidelines for serving lawyers of record. He finishes this section by providing information on service outside of Manitoba. The next item that Mr. Grower considers is The Enforcement of Canadian Judgments Act which allows a judgment from anywhere in Canada to be registered as a Manitoba judgment on requisition. He provides a brief list of the key provisions of this act. Mr. Grower then turns to a discussion of Rule 20A. This rule allows for an expedited proceeding where the relief claimed does not exceed $50,000 exclusive of interest and costs. Mr. Grower provides a brief overview of the process involved in an action commenced under Rule 20A followed by some pros and cons of using this process. Finally Mr. Grower considers the Small Claims Courts. He states that two sources for information on appearing here are The Court of Queen’s Bench Small Claims Practices Act and QBR 76, and then offers tips concerning the small claims court. Mr. Grower provides an example of what you always file a Notice of Intention. He finishes his overview of Small Claims Court with a list of actions that are outside the court’s jurisdiction. Finally, Mr. Grower finishes with some “random thoughts” on the topic as a whole.