Manitoba Law Journal
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Libfeld v Libfeld: Crafting Justice in a Breakdown of a Hybrid Business Enterprise
No full textThis case commentary presents one of the thorny problems that judicial officers often face in their fact-finding role of wading through a highly complex web of business arrangements checkered by disputes, suspicions, distrust, inability to cooperate, and emotion-laden allegations. Out of the morass, they must identify the main legal issue or issues and pin them to applicable laws before crafting an appropriate remedy that does justice for the parties. The case of Libfeld v. Libfeld, a trial decision of the Ontario Superior Court of Justice, is a particularly thorny case of this nature given the involvement of parties who are all members of the same family in a valuable, decades-old business started by their late patriarch. The four Libfeld brothers could no longer cooperate or work together in the business because their relationships had broken down irretrievably. The task for the Court was the determination of the most just, fair, and workable solution under the law for untangling their affairs so that they could go their separate ways.
Generally, the concept of a partnership being wound up is not significantly different from that of a corporation, although “winding-up” as a term is more commonly used for corporations. In an unusual situation, as in this case, where a complex set of business arrangements has the attributes of a partnership with assets in the form of a large number of corporate holdings and special-purpose entities, a similarly unusual approach may be adopted in dealing with the issues that it presents. With this in mind, the judge in the Libfeld case looked to the jurisdictions of both the Ontario Partnerships Act (OPA) and the Ontario Business Corporations Act (OBCA) to effect the winding-up. This commentary explores the merit of the decision. It also provides thoughts on its regulatory and socio-economic ramifications at both the institutional and personal levels. But the factual background, issues, and ruling will be reviewed first
The Appellate Function and Standards of Review
No full textAppellate standards of review structure the relationship between trial and appellate courts by defining when appellate intervention is permissible. Their function is to ensure that appeals serve their intended role. Appellate standards of review also serve to maintain deference to trial courts, so they too can fulfill their proper function. A trial court’s primary role is adjudicating disputes based on evidence and established legal principles. Appellate courts main functions consist of error correction and law making. They do not rehear cases. Rather, they assess whether trial decisions contain errors warranting intervention. Standards of review formalize this process by determining the degree of deference owed
Chapter 5: “Arthur Ellis”: His Canadian Hanging Career
No full text“Arthur Ellis,” whose real name was Alexander Armstrong English, began to be hired as an executioner in Canada in 1910. As we will demonstrate when we examine the drunken scandals, botches, and family life of Ellis, there were remarkable parallels of character and conduct between the new hangman Ellis and the previous hangman Radclive
Chapter 8: “John Holmes”: Identity Unknown
No full textWe have noted that both Radclive and Ellis had rival hangmen at various times in their careers. The two main hangmen in this category were “John Holmes” in the later years of Radclive and the earlier years of Arthur Ellis; and “Sam Edwards” in the last decade of Arthur Ellis’s career. In this chapter, we will deal briefly with John E. F. Holmes, who bungled most of his cases. John Holmes might have been the real name of the hangman. There were several men with that name living in Canada at the relevant time, but we do not have the proof to drag them into this narrative. However, it is also probable that “Holmes” was not the real name of the hangman
Chapter 14: Conclusion
No full textIn our presentation of the seven most important hangmen in Canada, we have surmised that many of them were likely psychopaths, although in a few cases we lack enough evidence to come to that conclusion. In any case, they were usually unsavory characters. If readers disagree, I hope that this focus on the hangmen of Canada, not only dispels many myths about them, but also is a contribution more broadly to the history of crime and punishment in Canada
Thresholds, Powers, and Accountability in the Emergencies Act
No full textIt can be difficult for a legislature to clearly define an emergency or precisely describe different kinds of emergencies. In the context of emergency legislation some degree of vagueness and ambiguity is therefore to be expected. As a consequence, there will be some unavoidable uncertainty about the scope of the executive’s authority when it exercises its emergency powers. Legislatures can, however, avoid unnecessary ambiguity and vagueness in statutes, and thereby reduce uncertainty about the scope of emergency powers. Legislatures can also set out consultation mechanisms and impose reason-giving obligations that render the executive politically accountable to those affected by exercises of emergency powers. This paper proposes amendments that aim to eliminate avoidable uncertainty that arises from how the Emergencies Act currently defines a national emergency and a public order emergency. Further, the paper proposes amendments to the Act that aim to increase the executive’s accountability to those affected by declarations of public order emergencies
What\u27s \u27Necessary\u27 Under the Emergencies Act?
No full textIn most jurisdictions, any claim to emergency power must be necessary. But necessity is an ambiguous concept which has historically facilitated abuse. Indeed in the Canadian context, though necessity is a key threshold requirement in the Emergencies Act, it remains a black box, constituting a worrying gap in that Act’s robust framework for accountability and oversight. This paper develops a set of heuristic tools to clarify and rigorously assess claims of necessity, providing a structure for a government’s reason-giving around emergency declarations and measures. Because such reason-giving is critical to the rule of law in a state of emergency I conclude by advocating, in the Canadian context, an amendment to section 61 of the Act: When Government tables measures with Parliament or the Parliamentary Review Committee, they should explicitly state why an order or measure is necessary
Criminal Wealth Law: From Maple Syrup to Hells Angels and Unexplained Wealth Orders
No full textA significant dimension of modern crime management focuses on property, wealth, money, and financial activity. The organizing theme of late twentieth-century products such as anti-money laundering laws, criminal confiscation, criminal forfeiture, and civil forfeiture is detecting and capturing wealth associated with criminal activity. Such products, which have proliferated since the inception of modern management in the late 1980s, might be described as criminal wealth law.
An area of acute contemporary interest, a trilogy of recent developments, might be said to mark a certain sharpening of the edges of Canadian criminal wealth law. The first, a Supreme Court of Canada decision involving the theft of maple syrup, hones federal criminal forfeiture machinery, the principal anti-criminal wealth device. The second, a British Columbia Court of Appeal decision about clubhouses owned by the Hells Angels, sharpens a provincial criminal wealth device, civil forfeiture law. The third, arguably the most substantively significant of the trilogy, introduces a new tool to a province’s wealth-focused toolkit, an unexplained wealth order regime. This essay examines this trilogy of contributions to criminal wealth law
Limitations of the Common Law Adversarial Process: How Independent Judicial Research Could Have Avoided the Wrongful Conviction in R v Mullins- Johnson
No full textIt is often believed that the common law adversarial process performs efficiently to ensure the truth comes out and that justice is served. However, this was not the case in R v Mullins-Johnson. This paper argues that the common law adversarial trial process can actually contribute to wrongful convictions if judicial passivity is strictly adhered to. If the trial judge could have learned about the unreliability of the Crown expert testimony through independent research, he could have intervened to avoid a wrongful conviction
Obstructed Gynecology: Inaccess to Reproductive Health Care for Incarcerated Women as a Violation of Section 7 of the Charter
No full textSubstandard prison health care in Canada has long been the subject of research, debate, and policy analysis. For nearly forty years, Senator Kim Pate and her associates have uncovered myriad human rights abuses occurring inside Canadian prisons and have urged governments to take action. The extent to which this substandard health care specifically impacts the reproductive freedom of incarcerated women has yet to be the subject of meaningful academic consideration. It has been argued by many that the conditions of Canadian prisons engage the Charter of Rights and Freedoms. This paper, in its limited scope, conceives of reproductive freedom as encapsulated by the section 7 Charter right to life, liberty, and security of the person. It is a novel analysis of how each of these three constitutional rights might be engaged by the current state of reproductive health care in prison