Order Imposing Deferral
of Reduction in Assessed Value Reinstated: MBCA
In Boeing Canada Operations Ltd v Winnipeg
2017 MBCA 83, the Court of Appeal overturned a reviewing judge’s
decision quashing orders of the Board of Revision imposing a one-year
deferral of a reduction in the assessed value of property for failure
to reply to requests for information from the assessor. The reviewing
judge found that the Board had erred in granting the orders because the
assessor had breached Boeing’s right to procedural fairness by sending
the request for information to the property owner, but not to Boeing,
who paid the taxes on the property under their lease. The Court of
Appeal disagreed with the finding that the assessor’s process was
unfair, noting that the assessor had followed the guidelines for a fair
procedure for obtaining information outlined in the Licharson
case. According to the court, imposing an obligation on the assessor to
serve persons other than the property owner would re-introduce the type
of uncertainty into the complex assessment and deferral process that Licharson was intended to resolve.
Low Threshold for
Declarations Revoking Insurance Beneficiary Designations: MBQB
beneficiaries designated under the deceased’s group life insurance
policy were unsuccessful in challenging the validity of a contrary
designation in a subsequently executed will in The Manufacturers Life Insurance Company
v. Bendera et al,
2017 MBQB 162. The policy beneficiaries argued that the designation in
will did not overwrite the policy designation since it was not
sufficiently specific to fall within the definition of a “declaration”
in The Insurance Act (it did
not specifically identify the contract (policy) or describe the life
insurance or the insurance fund as required). After examining
conflicting case law on the issue the court found that Manitoba favours
“an approach in which a court will excuse the lack of detail in a
designation so long as the designation is in writing, is signed by the
insured, references the notion of insurance, and, in the circumstances
of the case, demonstrates a clear intention to designate beneficiaries
in respect of the referenced insurance.” (para. 30) In the court’s
where the courts in this
province have historically waived strict adherence to the requirements
set out in the definition of the word “declaration” in order to give
effect to a deceased person’s clear and final intention, a court should
construe strictly the wording in an insurance policy that restricts the
manner in which a beneficiary designation can be changed. The
objective should be, where possible, to give effect to a deceased
person’s final intention…(F)orm requirements of the insurer should not
trump the intention of the deceased unless the policy wording is very
clear so that an insured knows that his/her revocation privileges have
been severely limited. (para. 46)
Financial Need Must be
Proven Not Presumed: MBCA
2017 MBCA 69, the court overturned a lower court decision ordering the
estate of the mother of a “dependant” child to advance a monthly amount
for the child’s support to the father until the age of 18 (conditional
on repayment from an insurance trust vesting when the child turned 21).
After reviewing the history of The
Dependants Relief Act and
the relief regimes in other Canadian jurisdictions, the court concluded
that Manitoba’s needs-based approach is unique and that threshold
eligibility for relief is assessed solely on the dependant’s financial
need. Given the father’s refusal to provide financial evidence, the
trial judge erred in finding that the child was in financial need
within the meaning of the Act, said the court, and in ordering support
and future reimbursement from the trust. The court also discusses the
treatment of future and extra expenses in DRA cases (paras. 59-63) and cost
considerations in dependants relief litigation (paras. 82-88).
Other Estates Cases
Estate of Rose May Hazlitt,
2017 MBQB 184 - insufficient evidence as to the deceased’s mental state
when instructions were given for a codicil and power of attorney or
when they were signed prevented the applicants from establishing either
undue influence or lack of capacity. The court dismissed their
challenge to the validity of both documents, but did order that one of
respondents be removed as power of attorney and executor, and that he
repay the estate for improperly taken loans. In addition, both putative
executors were ordered to provide an accounting of their activities.
Estate of Jean Horban,
2017 MBQB 165 – delay, the executrix’s clear failure to understand her
role, and a lack of evidence were all complicating factors in the
passing of accounts in this modest estate.
Land Titles and
Personal Property Registry Changes: Notices and Directives
deposit account top-up option – this notice describes a new feature
for land titles deposit accounts, a top up service.
Electronic copies of status of title and status of instrument –
this directive indicates that, effective November 6, 2017, statuses of
title and statuses of instrument will be delivered electronically to
all clients who have registered their firm details with Land Titles.
of updated tax transmission form (version PR6.1) - an updated
version of the tax transmission (version PR6.1) form has been approved
and is available for download.
Transfer Smart Form
- an updated version of the electronic Transfer (version e5.1) form has
been approved and is available for download from The Property
Registry’s website at: http://www.tprmb.ca/tpr/land_titles/lto_offices/eforms.html.
Use of all land titles smart forms, including the
Transfer e5.1 form, will become mandatory on December 17, 2017.
all seals affixed to a document submitted for registration at land
titles, whether corporate, notarial or otherwise, must be visible once
the document has been scanned. In the future, either rubber and ink
seals or embossed seals with wafers should be used.
RG Directive on new fees for the Land Titles and Personal Property
- fee changes for the Land Titles and Personal Property Registries come
into effect on January 7, 2018. Revised fee tables for each registry
are available at http://www.tprmb.ca/tpr/rg_directives/2018_fees_for_the_Land_Titles_and_Personal_Property_Registies.pdf.
- The new land titles electronic registration system is coming soon!
More information about eRegistration is available at eReginfo.ca.
Law Reform Commission
The Manitoba Law Reform Commission report, Updating
the Administration of Small Estates in Manitoba,
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 considers what other Canadian jurisdictions
have done to address this issue and makes provisional recommendations
for reform in Manitoba.
Input on Medical
Assistance In Dying: CBA
The CBA’s End-of-Life Working Group has provided
on aspects of medical assistance in dying left unanswered in the
legislation to the expert panel considering these issues. Their comments
elaborate on three policies developed in 2016 (dealing with mature
minors, mental illness, and advance requests) and identify directions
for the panel’s research.
New Guidelines for
Residential Mortgage Underwriting: OSFI
The Office of the Superintendent of Financial Institutions Canada
(OSFI) published the final version of Guideline
B-20 − Residential Mortgage
Underwriting Practices and Procedures,
on October 17, 2017. The guideline, which comes into effect
January 1, 2018, applies to all federally regulated financial
institutions. The changes reinforce the need for lenders to be vigilant
in their mortgage underwriting practices, setting a new minimum
qualifying rate (stress test) for uninsured mortgages and restricting
transactions designed to circumvent enhanced loan-to-value measurements
Changes to Principal
estate practitioners are reminded that, starting with the 2016 tax year
(generally due by late April 2017), anyone selling a principal
residence is required to report basic information (date of acquisition,
proceeds of disposition and description of the property) on their
income tax and benefit returns in order to claim the full principal
residence exemption. As this was not required in the past, clients
should be advised of the change. See the Government
of Canada website for further details.
Topics in Wills and Estates
- a third and final date has been added to address demand for this
program. Presenters Eleanor Wiebe, Q.C. and Caroline Kiva will discuss
a wide range of topics, including the recent Rule 74 amendments, estate
planning issues with US vacation property, powers of attorney, and
recent case law. The program will be held December 7, 2017, from 9:00
to noon in the Law Society classroom. Registrants
will receive a copy of the 2d edition of Drafting Wills in Canada: A
Lawyer’s Practical Guide.
Winter Replays: LSM
|For those who missed the earlier live presentations (or
those who still need cpd hours), the Law Society has posted its list of
Programs which may be of interest to solicitors include: Land Titles
eRegistration & Electronic Funds Transfer and Land Titles eForms
101 (offered November 22, 2017); Changes to Probate QBR (December 4,
2017); Mortgage Sale and Foreclosure (December 11, 2017); Estate
Litigation and Administration and 10th Annual Hot Topics In Real Estate
(both offered December 15, 2017); Costs In Estate Litigation (January
8, 2018); and Hot Topics in Wills and Estates (January 12, 2018); as
well as several practice management or general interest sessions.
| Property assessment and taxation in The City of Winnipeg
- representatives from the City's Legal and Assessment department will
discuss what real property conveyancers need to know in advising
clients with respect to property taxation matters at this upcoming Real
Property section meeting. It will be held in the Pitblado LLP
boardroom, from 5:00-6:30 pm on November 23, 2017.
Project Management? Practice Management!
– the Civil Litigation section is hosting this program comparing
project management to practice management and discussing the tools you
must have for the latter. The program will be held in the 2nd floor
conference room, 444 St. Mary Ave., from noon to 1:30 pm on November
Basic Will Drafting: Tips and Challenges – presenters Chantal
Lovatt and Annika Friesen of Fillmore Riley LLP will discuss basic will
drafting at this lunch session on December 14, 2017. The program will
be held in the 2nd floor conference room, 444 St. Mary Avenue, from
noon to 1:30 pm.
|Mark your calendars for the MBA’s 2018 Mid-Winter
will take place January 18-19, 2018 at the Fairmont Hotel.
Continuing professional development sessions of interest to solicitors
include: Mines and Minerals; Ethical and Legal Considerations When
Seeking Disclosure of a Lawyer’s File in Estate Litigation; and
Technology Skills Every Lawyer Should Master.
sessions offered by the Winnipeg
of the Society of Trust and Estate Practitioners (STEP) include: Topics
in Real Estate: Land Transfer Tax in Manitoba (November 21, 2017); “If
CRA Comes Knocking” (December 12, 2017); and US Tax Update (January 16,
2018). In addition, STEP Canada is hosting a webcast, July 18th Tax
Proposals Q & A, on November 24, 2017; and a full day course,
Taxation at Death and Post Mortem Planning, on February 1, 2018.. To
register, or for information on how to become a member of STEP, check