Manitoba Law Reform Commission Report on Non-Disclosure Agreements in Misconduct Settlements

The Manitoba Law Reform Commission has published a report on the use of Non-Disclosure Agreements in the Settlement of Misconduct Claims.

A non-disclosure agreement (NDA) is a contract which restrains parties from disclosing certain information. Several high profile situations in recent years have shone light on concerns with respect to NDAs used to settle misconduct claims. This includes the harm which can be perpetuated when NDAs are used to silence victims of misconduct, particularly sexual misconduct, in exchange for money.

Proponents of NDA legislation voiced concerns over their use to shut up complainants and potentially perpetuate wrongdoing. On the other hand, the Commission was cautioned about the potential negative impacts that proposed legislation could have on complainants, respondents, and the legal system in Manitoba at large. These negative impacts could include: an increase in lengthy, public and potentially contentious court hearings, potential contractual uncertainty, a decrease in the significant number of out-of-court settlements, and the exacerbation of access to justice issues.

The Commission recommends that any legislation should be drafted narrowly and cautiously, and address only the most pressing concerns.

• any legislation should govern NDAs which prohibit or restrict the disclosure of information concerning claims of harassment, discrimination and abuse.
• it should only require that a complainant have a reasonable opportunity to receive independent legal advice in order for an NDA to be valid and enforceable.
• it should indicate that pre-dispute NDAs (NDAs that are signed by parties before a claim of misconduct is ever made, in order to prevent disclosure following a hypothetical future dispute) are unenforceable.
• information can always be disclosed by a complainant: (1) as required under provincial or federal law, (2) to their lawyer, (3) to persons qualified to provide medical, psychological, mental health, spiritual, or other related support, (4) as required to financially account for, dispose of, or invest the settlement funds, or (5) as required for income tax reporting.

The report examines the state of the law on NDAs in many Canadian provinces, the United States, Ireland, Australia and the United Kingdom.

Manitoba Law Reform Commission Report on the Law of Partition and Sale

The Manitoba Law Reform Commission Report has published a report on The Law of Partition and Sale:

"Partition refers to the act of physically dividing the land between co-owners resulting in each owner owning a portion of the land outright. An order of sale requires that the co-owned land be sold and the proceeds of the sale be divided among the former co-owners (...)"

"Among other recommendations, the Commission recommends that the statute should broadly define the class of persons who may bring an application for partition or sale as joint tenants and tenants in common of an estate or interest in land but should exclude from the class certain co-owners. It is also recommended that the relevant sections of the Act be amended to expressly apply to estates and interests that are solely legal or equitable as well as to estates and interests that are both legal and equitable in nature. Additionally, the statutory law should provide clearer guidance on the information required in a notice of application for partition and sale and should be amended to reflect the societal shift resulting in a preference for orders of sale over partition. Finally, the Commission recommends that the terminology used in the Act should be modernized."

In compiling its report, the Commission examined the relevant laws of other provinces such as British Columbia, Alberta, Ontario, New Brunswick, PEI and Newfoundland.

Manitoba Law Reform Commission Paper on Parental Maintenance

The Manitoba Law Reform Commission has published a consultation paper on the provincial Parents' Maintenance Act (PMA):

"It is a well-known tenant of law that parents have a statutory duty to provide reasonably for the support, maintenance, and education of their minor children by way of child support. It is lesser known that in most Canadian jurisdictions, including Manitoba, children have a  statutory duty to provide financial support to their parents, who by reason of age, disability, or infirmity are unable to maintain themselves (“parents’ maintenance”). This Paper addresses parents’ maintenance and not child support. Parents’ maintenance legislation currently exists in all Canadian provinces and territories, except British Columbia, Alberta, and Saskatchewan."

The consultation paper examines the arguments to repealing and amending the Act.

Manitoba Law Reform Commission Consultation Paper on The Law of Partition and Sale

The Manitoba Law Reform Commission has issued a consultation paper on The Law of Partition and Sale:

"When co-owners of Manitoba land need or want to terminate their co-ownership, but they cannot agree on the dissolution of their co-ownership, ss. 18-26 of The Law of Property Act provide them with two potential remedies: partition, a judicial order physically dividing the co-owned property between the co-owners, and sale, a judicial order of sale of the co-owned property and division of the proceeds of sale between the co-owners (...)"

"Sections 18-26 of The Law of Property Act outline some of the key components of partition and sale proceedings; namely, the major actors and their rights under the Act, the powers of the Court in conducting partition or sale proceedings, and the duties owed by the Court to the various actors in the process. The major actors in partition and sale proceedings include individuals bringing the action for partition or sale of land, individuals who may be compelled to make partition or sale of land , and other individuals who are not necessarily parties to the action, but who have some type of interest in the land that is the subject of the action (“subject land”). In addition to delineating the rights of these individuals, ss. 18-26 of the Act set out the powers of the Court and the duties it owes to these actors in various unique circumstances (...)"

"In this Paper, the Commission contemplates whether the current version of ss. 18-26 of The Law of Property Act and the complementary QB Rules adequately address the partition and sale of land in Manitoba, or whether these sections and rules are in need of reform. Specifically, the Commission contemplates whether the Act or Rules require further specification, elaboration, modernization or simplification to better reflect the current realities of Manitoba and to better guide and support Manitobans through an inherently complicated legal process. In particular, the Commission contemplates whether the Act and Rules should be amended to more clearly address who can bring action for and who may be compelled to make partition or sale of land in Manitoba, and to touch upon additional unique circumstances in which partition or sale proceedings may be brought, such as where encumbrance holders are involved, where parties have contracted out of the right to apply for partition and sale, where dispositions are pending in parallel proceedings under other Acts, etc."

The paper examines legislation and court tules on the issue in the other provinces of Canada as well as the relevant Canadian case law.

Manitoba Law Reform Commission Report on Organ and Tissue Donation

The Manitoba Law Reform Commission has published a report on Presumed Consent Organ & Tissue Donation:

"Each year, thousands of Canadians find themselves on waitlists to receive donations of vital organs, including kidneys, livers, hearts, lungs, and pancreases. However, there is a gap between the number of organs and tissues needed by Canadians and the number of organs and tissues available for donation and transplantation. Accordingly, governments continue to explore ways in which to maximize the availability of organs and tissues for transplantation, to ensure the loss of fewer Canadians to donation systems that are unable to support them."

"One such method, which has already gained traction in a number of jurisdictions outside of Canada, and which, as of January 2021, has been introduced in Nova Scotia, is the implementation of a legislative system of “presumed consent” or “opt-out” organ and tissue donation. Under such a system, when there is no record of a person’s decision on organ and tissue donation, their consent will be considered, under law, to have been given. This type of system differs from all other current Canadian organ and tissue donation systems, including Manitoba’s, which maintain “express consent” or “opt-in” systems of organ and tissue donation. Under these “express consent” or “optin” systems, legislation requires the explicit consent of donors for the use of any parts of their bodies after death for therapeutic purposes, medical education or scientific research. Under The Human Tissue Gift Act (“HTGA”), Manitoba’s current organ and tissue donation legislation, as under all analogous Canadian legislation aside from Nova Scotia’s, individuals will not be candidates for after-death organ or tissue donation without this express consent (...)"

"The Manitoba Law Reform Commission (the “Commission”) has considered how the HTGA should be amended if the government were to decide to switch from an express consent to a presumed consent statutory organ and tissue donation framework. Accordingly, the Commission takes no position in this Report on whether or not to recommend the enactment of such legislation, but on what elements ought to be included in such legislation if it were to be implemented, and how these elements should be crafted."

The report includes comparisons of the situation in other Canadian provinces as well as foreign jurisdictions such as the United States, Australia, New Zealand, the United Kingdom and Spain.

Manitoba Law Reform Commission Consultation Paper on Organ Donation

The Manitoba Law Reform Commission has published a Consultation Paper entitled Presumed Consent Organ Donation:

"Until January 2021, each Canadian province and territory maintained 'express consent' or 'optin' systems of organ donation consistent with Manitoba’s, under which legislation required the explicit consent of donors for the use of any parts of their bodies after death for therapeutic purposes, medical education or scientific research. However, in January of this year, Nova Scotia became the first jurisdiction not only in Canada but within North America to break this mold."

"Under Nova Scotia’s new Human Organ and Tissue Donation Act,  when there is no record of a person’s decision on organ and tissue donation, their consent will now be considered, under law, to have been given (...)"

"Given the hundreds of Manitobans currently on transplantation waitlists, and the reform efforts in other Canadian jurisdictions, the Commission asks the question: If Manitoba were to amend The Human Tissue Gift Act to implement a system of presumed consent organ donation, how should it amend this legislation?"

The document looks at the legal landscape of organ and tissue donation in other parts of Canada.  

It also explores recent legislative changes and reform efforts in other jurisdictions, including Canadian provinces, the US, the UK, Australia, New Zealand and Spain.

The consultation period lasts until July 30, 2021. 

Manitoba Law Reform Commission Final Report on What To Do About Unclaimed Accounts

The Manitoba Law Reform Commission has released its final report on Abandoned Accounts and Missing Money: Establishing a Process for Unclaimed Intangible Personal Property.

The report makes recommendations about how to handle abandoned or forgotten personal property such as credit balances, insurance policies, bonds or pension plans. This often happens when a person dies intestate:

"In Manitoba there is no obligation on the part of many property holders, such as credit unions and insurance policy holders, to report unclaimed personal property to the provincial government. Even where unclaimed personal property is remitted to holders and the government, the legislation provides no guidance for an individual to find out if they are the rightful owner and to apply to claim the money if they establish that they are the rightful owner. Other Canadian jurisdictions have enacted legislation to address unclaimed property so that money can end up in the hands of rightful owners. In light of reforms in other Canadian jurisdictions, the Commission has considered the question: Should Manitoba adopt a process for unclaimed intangible personal property? If so, what elements would the legislation need to address?"

"This project involves two distinct, yet related, issues: escheats and unclaimed property. While distinct legal concepts, in both cases the property vests in the Crown by operation of law. In Manitoba, both these situations are addressed in the same piece of legislation, The Escheats Act. The full version of this Act can be found at Appendix B."

"The Commission has learned that the process for administering escheats and unclaimed property is cumbersome for the government and impractical for individuals seeking to claim vacant or unclaimed property. Other jurisdictions, such as British Columbia, Alberta, Quebec, Ontario and New Brunswick, have introduced changes to modernize and improve legislation related to property that vests in the Crown."

The Commission is recommending that Manitoba enact legislation similar to other provinces.

Manitoba Law Reform Commission Final Report on Wills Act

Last week, the Manitoba Law Reform Commission released its Final Report titled Reform of The Wills Act, The Law of Property Act, And The Beneficiary Designation Act, Revisited:

"In this report, the Commission revisits the recommendations for reform of The Wills Act and related legislation first considered in its 2003 report, Wills and Succession Legislation ... Recommendations for substantial reform reiterated in this report include reducing the age by which a person can make a valid will from 18 to 16 years and introducing into the legislation a definition of an electronic will."

"Other recommendations contained in Report 108 have been reversed either due to advancements in the case law in a given area, recent trends in legislative reform in other jurisdictions or based on feedback received during the consultations. For example, given the enhanced focus on predatory marriages and resulting reforms in other jurisdictions, the Commission is now recommending the abolishment of the automatic revocation of a will by a subsequent marriage."

"Finally, this report contains a number of new recommendations not contained in Report 108, including amending the Court of Queen’s Bench Rules to enable the court to make, alter, or revoke a will for a person lacking testamentary mental capacity."

"The Recommendations contained in this report seek to improve and modernize the legislation and to help Manitobans carry out their testamentary intentions."

The recommendations cover a range of issues, including mental capacity, minors, electronic wills, revocation, undue influence and more.

The report also makes extensive reference to the situation in other Canadian provinces, as well as in the United Kingdom, Australia and New Zealand.

Manitoba Law Reform Commission Consultation on Abandoned Accounts and Missing Money: Establishing a Process for Unclaimed Intangible Personal Property

The Manitoba Law Reform Commission has published a consultation report entitled Abandoned Accounts and Missing Money: Establishing a Process for Unclaimed Intangible Personal Property.

It looks at what happens to unclaimed personal property in Manitoba, such as abandoned or forgotten credit balances, insurance policies, bonds or pension plans:

"In Manitoba there is no obligation on the part of many property holders, such as credit unions and insurance policy holders, to report unclaimed personal property to the provincial government. Even where unclaimed personal property is remitted to the government the legislation provides no guidance for an individual to find out if they are the rightful owner. Other Canadian jurisdictions have enacted legislation to address unclaimed property so that money can end up in the hands of rightful owners. In light of reforms in other Canadian jurisdictions, the Commission asks the question: Should Manitoba adopt a process for unclaimed intangible personal property? If so, what elements would the legislation need to address?"

"This project involves two distinct, yet related, issues: escheats and unclaimed property. While distinct legal concepts, in both cases the property vests in the Crown by operation of law. In Manitoba, both these situations are addressed in the same piece of legislation, The Escheats Act. The Commission has learned that the process for administering escheats and unclaimed property is cumbersome for the government and impractical for individuals seeking to claim vacant or unclaimed property. Other jurisdictions, such as British Columbia, Alberta, Quebec, and Ontario, have introduced changes to modernize and improve legislation related to property that vests in the Crown."

"This Consultation Report invites readers to provide their comments on ten issues for discussion. The issues identified in this report require input from interested organizations and individuals so that the Commission can craft recommendations that will be practical and meaningful to those affected by any contemplated changes to the legislation.
Chapter 2 provides background on the legal origins of escheats and vacant property and describes the current law and procedure in Manitoba. Chapter 3 explores recent legislative reforms in other jurisdictions. Chapter 4 discusses possible areas of reform to Manitoba’s legal framework for escheats and unclaimed property, touching on important considerations should the  government wish to introduce a regime for unclaimed property."

Manitoba Law Reform Commission Consultation Report on Wills Act

The Manitoba Law Reform Commission has issued a consultation report called Reform of The Wills Act Revisited:

"In 2003, the Manitoba Law Reform Commission ... published Report 108, Wills and Succession Legislation (“Report 108”), which contains 77 recommendations to reform wills legislation in Manitoba, none of which has been implemented. Since the report’s release, several other law reform agencies have published reports on this topic and several legislative amendments have been enacted by other jurisdictions; they make timely an update of Report 108 and afford an opportunity to shine light on and affirm the recommendations and add several new recommendations."

The report examines many questions, including those relating to mental Capacity, minors, electronic wills, revocation, undue influence and more.

It also examines the situation in other Canadian provinces, as well as in England, Scotland, Australia and New Zealand.

Manitoba Law Reform Commission Report on Expropriation

The Manitoba Law Reform Commission has released its final report on the province's Expropriation Act:

"In addition to providing compensation for lands taken by an authority, The Expropriation Act also provides compensation to owners for “injurious affection”, which occurs when damages are sustained by an owner when only part of the land is taken, or even where no lands are taken but the owner nonetheless sustains damages to their land as a result of an expropriation. The Manitoba Law Reform Commission (“Commission”) has learned that provisions in The Expropriation Act that deal with injurious affection are inconsistent with other Canadian expropriation statutes and may hinder the ability of an owner to claim due compensation in certain circumstances. In the Commission’s view, the restrictive wording in the Act prevents landowners from making claims and should therefore be removed."

"In January 2018, the Commission released a Consultation Report entitled The Expropriation Act of Manitoba. The Commission received input from practitioners with expertise in the area of expropriation. Through the consultation process, several other matters relating to The Expropriation Act respecting disturbance compensation, consulting costs, and abandonment of expropriation, were brought to the Commission’s attention. These additional matters are addressed in this report. The Commission makes ten recommendations to improve The Expropriation Act. If implemented, these recommendations would provide better guidance to practitioners, landowners and the Land Value Appraisal Commission, and put the injurious affection provisions on par with other jurisdictions in Canada."

"This report is limited to reviewing the particular aspects of The Expropriation Act which have been identified by legal practitioners as problematic. It forms part of a series of reports entitled Creating Efficiencies in the Law, which seek to address discrete, straightforward issues that, in the Commission’s view, can be improved with relatively simple legislative amendments."

Manitoba Law Reform Commission Report on Building Liens Modernization

The Manitoba Law Reform Commission today released its report entitled The Builders’ Liens Act of Manitoba: A Modernized Approach.

The purpose of The Builders’ Liens Act is to ensure that people involved in construction projects are paid for their contributions in accordance with their contractual entitlements. It provides legal remedies for those who provide work, perform services or supply materials upon a construction project.

The Commission's report proposes a series of remedies to the widespread issue of delays in payment.

Among other things, it proposes that Manitoba adopt the approach recently introduced by Ontario to incorporate statutory timelines for payments and prescribed penalties for payment delay (i.e. “prompt payment reforms”) within the Act.

The Commission also recommends the creation of a private adjudication system  that would have tight timelines for determination of payment disputes and minimal disruption while the construction project is ongoing.

The Commission also recommends enhancements to the statutory trust remedy in the Act to better achieve the purpose of keeping project funds within the construction contract pyramid for each specific project, including changing the statutory trust from one whereby owners, contractors, and subcontractors hold all funds received as payments on account of a contract price for listed beneficiaries to a privity model whereby trustees hold project funds in trust for only those it has contracted with directly. This aligns Manitoba’s statutory trust provisions with those of other jurisdictions including Ontario, Nova Scotia, Saskatchewan, and British Columbia.

Manitoba Law Reform Commission Consultation Report on The Beneficiary Designation Act

The Manitoba Law Reform Commission has published a consultation paper on The Beneficiary Designation Act (Retirement, Savings and Other Plans):

"Pension plans, insurance proceeds, and other retirement savings vehicles play an important role in the savings strategies of Canadians. As individuals pay into these plans over the years, issues arise such as: what happens when the plan owner dies? Where does the money go?"

"In Manitoba, the treatment of the proceeds of these financial products upon the death of the owner is regulated by The Insurance Act, The Pension Benefits Act and The Beneficiary Designation Act (Retirement, Savings and Other Plans) (hereinafter “The Beneficiary Designation Act”). The latter provides for designation of beneficiaries to occur without the formalities required under The Wills Act."

"Recently, a gap in The Beneficiary Designation Act came to the attention of the Commission respecting beneficiary designations when plans are renewed, replaced or converted. In these situations, a new plan is created and the old plan ceases to exist. Plan beneficiary designations do not automatically roll over and a fresh beneficiary designation must be made or, upon the death of the owner of the plan, the proceeds are payable to the plan owner’s estate. A further look at the legislation and comparison with the legislation of other jurisdictions highlighted several other potential deficiencies in Manitoba’s legislative scheme."

"This Consultation Report considers possible amendments to improve the legislation and procedure related to beneficiary designations in Manitoba. Given the popularity of pension plans, registered savings plans, and other retirement savings vehicles in the marketplace today, it is important to ensure that the legislative scheme in place provides appropriate and adequate guidance to plan owners, designated beneficiaries and the legal profession. "

Manitoba Law Reform Consultation Report on Small Estates

The Manitoba Law Reform Commission has published a Consultation Report on Updating the Administration of Small Estates as part of its Access to Justice initiative entitled "Access to Courts and Court Processes".

"In Manitoba, The Court of Queen’s Bench Surrogate Practice Act ('The Surrogate Practice Act') governs the administration of estates, whether there is a will or not. The rules in place serve to protect estates from fraud and mismanagement. The ordinary process for obtaining probate carries with it legal and administrative costs as well as time and administrative burdens. But what happens in the case of relatively small estates, where the costs associated with administering the estate may be disproportionately high compared to the value of the estate? In these cases, the estate available for distribution may be depleted. Alternatively, the personal representative for the estate may choose not to administer the estate at all"

(...)

"This Consultation Report considers possible amendments to improve the legislation and procedure related to the summary administration of small estates under The Surrogate Practice Act. The primary area addressed is whether the monetary jurisdiction should be increased."

The report looks at practices in a number of other Canadian jurisdictions, including Ontario, Saskatchewan, British Columbia and the Northwest Territories.

The comment period on this Consultation Report is open until October 30, 2017.

Manitoba Law Reform Commission Report on Modernizing The Municipal Council Conflict of Interest Act

The Manitoba Law Reform Commission has released a report on Modernizing The Municipal Council Conflict of Interest Act: Accountability, Enforcement & Oversight : 

"This report will provide an overview of the municipal conflict of interest legislative regime in Manitoba and other jurisdictions and will canvass case law and judicial inquiry reports as they relate to sanctions and enforcement of municipal conflict of interest, before making recommendations for the improvement of remedial provisions and enforcement of the MCCIA [Municipal Council Conflict of Interest Act]. Other issues, such as the enforcement of municipal codes of conduct and the provincial Conflict of Interest Commissioner will also be discussed."

"The Commission recommends that the remedial provisions of the Act be amended so that judges are provided with a range of available sanctions to impose when they are satisfied that there has been a breach of the conflict of interest provisions of the MCCIA, rather than only having recourse to the current all or nothing approach, in which the only penalty available is disqualification from office and a declaration that a councillor’s seat is vacant:"

"In addition to recommending changes to the remedial provisions of the MCCIA, the Commission also recommends the establishment of a municipal Conflict of Interest Commissioner, who would carry out an advisory, investigatory, and enforcement function. The Commissioner would provide binding advice to members of council, so that a councillor, if he or she provided all material facts to the Commissioner and followed the Commissioner’s recommendations, would be rendered immune from subsequent proceedings under the Act. The Commissioner would also be empowered to receive complaints from members of the public and be authorized to conduct investigations."

Manitoba Law Reform Commission Consultation Report on Presumption of Death Act

The Manitoba Law Reform Commission has released its Consultation Report on Improving Manitoba’s Presumption of Death Act. 

From the Executive Summary:

"Presumption of death legislation is not to be confused with survivorship or missing persons legislation. Survivorship legislation prescribes the order of death when two or more persons die in circumstances in which the order of death cannot be determined. Missing persons legislation provides access to records for the purpose of searching for a missing person. In contrast to both of these type of legislation, presumption of death legislation allows courts to issue orders declaring someone to be presumed dead so that the estate of the missing person may be administered, insurance proceeds may be paid out, or a spouse may remarry. Manitoba has statutes which deal separately with survivorship, missing persons and presumption of death."

"All Canadian jurisdictions have some form of presumption of death legislation regardless of whether or not the relevant legislative provisions are restricted, in their application, to specific statutory contexts or are laws of general application, or both. It would appear that the presumption of death legislation found in most other Canadian jurisdictions has been significantly amended since originally enacted. Conversely, Manitoba’s Presumption of Death Act has not been amended since first enacted in 1968. The purpose of this Consultation Report is to recommend improvements to Manitoba’s Presumption of Death Act in order to put it on par with presumption of death legislation found other Canadian jurisdictions."

The report:

• outlines the history and background which led up to the enactment of the Presumption of Death Act in Manitoba
• canvasses the need for reform with reference to legislation in other jurisdictions
• provides a summary of additional matters considered or reviewed by the Commission during its study of the Act, but about which it has made no recommendations
• provides a summary of the Commission’s provisional recommendations.

Since this is part of a consultation process, comments  are being invited and should reach the Commission by September 8, 2015.

Manitoba Law Reform Commission Report on Limitation of Actions in Conversion and Detinue

This week, the Manitoba Law Reform Commission released its report on Limitations of Actions in Conversion and Detinue.

From the Executive Summary:

"This report originates from the Manitoba Law Reform Commission's Limitations report published in October, 2010. In the Limitations report, the Commission recommends the adoption of a basic two-year limitation period for all claims running from the date of discovery, and a 15-year ultimate limitation period running from the day on which the act or omission on which the claim is based took place. The Commission deferred making recommendations in respect of actions in conversion and detinue with the intention of issuing a separate report on that subject."

"Conversion and detinue are torts which protect a person's possessory interests in personal property against wrongful interference. The torts' characteristics give rise to unique concerns in respect of limitations. This report examines the specific problems associated with limitations of actions in conversion and detinue, including: successive transactions, the protection of good faith purchasers of converted or detained goods from ongoing liability; the effect of the expiry of a limitation period on title to converted or detained goods; limitations and theft-related conversions; and, limitations and concurrent actions in conversion and detinue."

"The report reviews and analyzes recent law reform initiatives in respect of limitations of actions in conversion and detinue, and makes recommendations for specific provisions in a new Limitations Act to deal with these types of claims. The Commission's recommendations include a provision that the 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. The Commission concludes that special statutory rules are not required to address theft-related conversions or concurrent actions in conversion and detinue."

"With this report, the Commission completes its work in respect of a modern Limitations Act for Manitoba."

The report examines the rules in a number of other Canadian provinces and in the UK (briefly).

Earlier Library Boy posts on limitations include:

• Manitoba Law Reform Commission Report on Limitations of Actions (July 5, 2009): "The Manitoba Law Reform Commission recently published a Draft Report for Consultation on the province's Limitations of Actions Act: (...) 'The Limitation of Actions Act was originally enacted in 1931. Although amended three times since then (in 1967, 1980, and 2002) it is fundamentally based on an amalgam of limitations provisions that originated in England centuries ago. In other words, it is highly dated, and it is showing its age. The Act badly requires modernization, and in this report the Commission has identified what it sees as the primary areas requiring modernization, as well as the best ways of accomplishing that goal. In light of the work that has been done in recent years in other Canadian jurisdictions, the Commission sees no need to reinvent this wheel. For the most part, in this report we have described the structure of the 'modern' limitations regimes found in other jurisdictions, and analyzed whether they are suitable for Manitoba and how, if at all, they ought to be adapted for Manitoba’s conditions'. "
• British Columbia White Paper on Limitation Act Reform (September 17, 2010): "The government of British Columbia has published a White Paper aimed at reforming the province's Limitation Act (...) Among the major recommendations in the White paper: moving from a variety of basic limitation periods to a single two-year basic limitation period for all civil claims ; eliminating the special six-year ultimate limitation period for negligence claims against doctors, hospitals and hospital employees. All lawsuits will be governed by a single ultimate limitation period of either 10 or 15 years"
• Manitoba Law Reform Commission Report on Limitations (October 30, 2010): "The most important proposal is for the abolition of the various categories of claims set out in the current Act, and their replacement with a single, basic two year limitation applicable to all claims unless they are otherwise dealt with."
  

Manitoba Law Reform Commission Report on Limitations

The Manitoba Law Reform Commission has just released a report proposing reforms to provincial legislation on limitations.

The most important proposal is for the abolition of the various categories of claims set out in the current Act, and their replacement with a single, basic two year limitation applicable to all claims unless they are otherwise dealt with.

This two year limitation would begin running when the existence of a claim was discovered or discoverable, instead of when the cause of action arose.

There would be exceptions in areas such as claims arising out of sexual assaults or assaults in intimate or dependent relationships, claims of aboriginal title, proceedings for a declaration of existing rights if no consequential relief is sought, and proceedings to recover fines or taxes owing to the Crown.

Earlier Library Boy posts on limitations include:

• Manitoba Law Reform Commission Report on Limitations of Actions (July 5, 2009): "The Manitoba Law Reform Commission recently published a Draft Report for Consultation on the province's Limitations of Actions Act: (...) 'The Limitation of Actions Act was originally enacted in 1931. Although amended three times since then (in 1967, 1980, and 2002) it is fundamentally based on an amalgam of limitations provisions that originated in England centuries ago. In other words, it is highly dated, and it is showing its age. The Act badly requires modernization, and in this report the Commission has identified what it sees as the primary areas requiring modernization, as well as the best ways of accomplishing that goal. In light of the work that has been done in recent years in other Canadian jurisdictions, the Commission sees no need to reinvent this wheel. For the most part, in this report we have described the structure of the 'modern' limitations regimes found in other jurisdictions, and analyzed whether they are suitable for Manitoba and how, if at all, they ought to be adapted for Manitoba’s conditions'. "
• British Columbia White Paper on Limitation Act Reform (September 17, 2010): "The government of British Columbia has published a White Paper aimed at reforming the province's Limitation Act (...) Among the major recommendations in the White paper: moving from a variety of basic limitation periods to a single two-year basic limitation period for all civil claims ; eliminating the special six-year ultimate limitation period for negligence claims against doctors, hospitals and hospital employees. All lawsuits will be governed by a single ultimate limitation period of either 10 or 15 years"
  

Manitoba Law Reform Commission Report on the Parol Evidence Rule

The Manitoba Law Reform Commission recently put its report on The Parol Evidence Rule up on its website.

From the executive summary:

"The parol evidence rule has to do with a written contract and the extrinsic evidence related to the contract, which a party to the contract wishes to adduce in a trial concerning the contract. This report considers the parol evidence rule in connection with written contracts that are not governed by The Consumer Protection Act and in connection with consumer transactions that fall within the scope of The Consumer Protection Act."

"This report observes that the parol evidence rule has caused much difficulty within the law of contracts and notes that essentially two different versions of the rule exist: (1) the ‘traditional’ version holds that where a written contract appears to be a complete agreement, parol evidence may not be introduced and only if it is determined that the written agreement appears to be incomplete will evidence of prior communication be considered; (2) the ‘modern’ version of the rule holds that for the rule to apply it must first be determined that the parties intended to reduce their agreement into writing and all relevant evidence of prior communication is admissible to that determination. The traditional version of the rule has fomented criticism, been the subject of lists of exceptions and generated recommendations for its abolition, largely because this version of the rule can preclude relevant evidence concerning prior communication between the parties, and is more likely to result in a possible injustice."

"While both versions of the rule can be found in Canadian case law, recent lower court decisions indicate movement towards the modern version, and the Commission is hopeful that this approach will continue. This report considers possible legislative reform to prevent misunderstanding about the rule; however, the Commission concludes that any legislative action could be more confusing than clarifying. In regard to contracts not governed by The Consumer Protection Act, the Commission recommends no legislative action to abolish or to try to clarify the parol evidence rule."

"Various Canadian law reform agencies have recommended legislation abolishing the parol evidence rule in regard to consumer transactions. Saskatchewan, New Brunswick, Manitoba and British Columbia have enacted some such provisions in their consumer protection legislation, although Saskatchewan and New Brunswick have provided more fully for the abolition of the parol evidence rule. The Commission recommends that section 58(8) of The Consumer Protection Act dealing with express warranties could be improved upon by expanding upon the abolition of the parol evidence rule and by making this section inviolate."

Latest Annual Report of the Manitoba Law Reform Commission

I just found out that the Manitoba Law Reform Commission has released its latest annual report:

"The Commission released two final reports in 2009-2010, dealing with the appointment of members to administrative agencies, boards and commissions and with waivers of liability for sporting and recreational activities. The Commission also released a draft report for consultation on the limitation of actions, and is finalizing this report in light of the comments received. Work is also underway on a number of other topics, including the parol evidence rule, specific performance in relation to real property, The Tortfeasors and Contributory Negligence Act and the division of pensions on marital breakdown. The Commission continues to be concerned about the lack of implementation of several of our previous reports, however, and continues to urge the Government of Manitoba to take action on these recommendations."