Beaulieu et al v Winnipeg (City of) et al, 2021 MBCA 93

Citation: Beaulieu et al v Winnipeg (City of) et al, 2021 MBCA 93 Date: 20211103 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre Docket: AI19-30-09379 ) BETWEEN : ) H. I. Schachter and ) K. Lewis OLA CHARLENE BEAULIEU, ANDREW ) for the Appellant ALBERT BEAULIEU, KYRA ANDI ) The City of Winnipeg BEAULIEU and KYUSS BEAULIEU ) (via videoconference) ) (Plaintiffs) Respondents ) ) J. B. Harvie and - and - ) D. C. Mazur ) for the Appellant THE CITY OF WINNIPEG ) J.

Macumber ) (via videoconference) (Defendant) Appellant ) ) - and - ) R. I. Histed ) for the Respondents J. MACUMBER ) (via videoconference) ) (Defendant) ) ) R. L. Tapper, Q.C. - and - ) on a watching brief ) for V. F. Y.

Li Docket: AI19-30-09383 ) (via videoconference) BETWEEN : ) ) OLA CHARLENE BEAULIEU, ANDREW ) Motion heard: ALBERT BEAULIEU, KYRA ANDI ) June 18, 2021 BEAULIEU and KYUSS BEAULIEU ) ) (Plaintiffs) Respondents ) Decision pronounced: ) November 3, 2021 - and - ) ) j. macumber ) ) (Defendant) Appellant ) ) - and - ) ) THE CITY OF WINNIPEG ) ) (Defendant) ) COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this motion was heard remotely by videoconference.

STEEL JA [ 1 ] This is a motion by the defendant, J. Macumber (Macumber), for the admission of further evidence in the upcoming appeals. [ 2 ] The appeals and the further evidence motion arise out of a civil trial in which the defendants, Macumber, a Winnipeg Police Service (WPS) Constable; and the City of Winnipeg (the City), were sued and found jointly and severally liable to the plaintiffs for torts committed by members of the WPS in responding to a disturbance call at the Clarion Hotel on December 26, 2014.

On that date, WPS members, including Macumber, entered the hotel room occupied by the plaintiffs, where several physical altercations occurred between the plaintiffs and the WPS members. [ 3 ] In his decisions (see OCB et al v The City of Winnipeg , 2019 MBQB 84 ; and 2019 MBQB 133 ), the trial judge made negative credibility findings against the police officers, including Macumber, and ultimately found that the WPS lacked lawful grounds to enter the hotel room, and committed actionable wrongs once inside.

Macumber was held liable to the plaintiffs for breaches of the Canadian Charter of Rights and Freedoms , battery, malicious prosecution, false imprisonment, and breaches of The Privacy Act , CCSM c P125 .

The City was held jointly and severally liable to the plaintiffs due to the operation of section 40(1) of The Police Services Act , CCSM c P94.5 (the PSA ), which states: Municipality liable for torts of officers 40(1) A municipality that operates a police service is jointly and severally liable for a tort committed by a police officer in the performance of his or her duties. [ 4 ] The main issue in this motion is the fact that the City and Macumber were jointly represented by the City’s in-house legal counsel during the proceedings leading up to and including the civil trial, because of the following provisions of the PSA (at sections 40(2) - 40(4) ): Municipality to indemnify officer 40(2) A municipality that operates a police service must pay the following: (

a) any damages or costs awarded in an action or proceeding against one of its police officers as the result of a tort committed by the officer in the performance of his or her duties; (

b) any costs incurred and not recovered by the officer in the action or proceeding; (

c) any sum required to settle the action or proceeding against the officer. Municipality may defend officer 40(3) A municipality that may be liable under this

section has the right to defend — in the name and on behalf of the police officer — an action or proceeding that may be brought against the officer. Duty to cooperate 40(4) A police officer whose conduct is the subject of an action or proceeding must cooperate with the municipality in the settlement or defence of the action or proceeding. [ 5 ] The City filed an appeal of the decisions.

Macumber filed a separate appeal raising many of the same grounds as the City, but also initially alleging ineffective assistance of counsel. [ 6 ] Macumber’s right to file this separate appeal was the subject of a prior Court decision (see Beaulieu et al v Macumber et al , 2020 MBCA 115 ( Beaulieu #1 )). That case decided that insurance law indemnity principles dealing with the duty to defend apply

to

section 40 of the PSA. The insurance law indemnity principles regarding the duty to defend include the duty to fully represent andprotect the interests of the insured. Those interests go beyond solely pecuniary interests, and include consequential loss of earningcapacity and reputational harm. Where there is a conflict of interest in insurance law, then removal of counsel is permitted. The caseheld that the same principle applies to

section 40 of the PSA. Thus, Macumber’s ground of appeal, at that time, of ineffective assistanceof counsel quite clearly raised a conflict of interest as that was a ground that the City refused to advance. Consequently, Macumber wasentitled to separate counsel for the purposes of arguing the appeal. [7] However, the case also stated that “[n]ot every potential conflict between the interests of an insurer and its insuredrequires the insurer to yield the right to control the defence” (at para 34).

The issue is the degree of divergence that must exist before theinsurer can be required to surrender control of the defence. Each case must be considered on its own. [8] Since that decision, Macumber has advised that he will not be advancing the ground relating to the allegation that amiscarriage of justice occurred because of ineffective assistance of counsel. Instead, Macumber and the City now raise grounds ofappeal which can be divided into two general categories. First, Macumber raises concerns about the validity of the trial process.

Heargues that the City’s in-house legal counsel (first, Denise Pambrun (Pambrun) and, later, Vivian Li (Li)) were in an “operative” conflictof interest during their representation of him, and failed to represent his personal interests, such that a miscarriage of justice hasoccurred. [9] Second, and in the alternative, both Macumber and the City raise concerns about the reliability of the decisions,arguing that the trial judge committed errors.

They submit that all of the further evidence, aside from the affidavits of Pambrun and Li,is admissible in the substantive appeals applying the test established by the Supreme Court of Canada in Palmer v The Queen, (SCC), [1980] 1 SCR 759. [10] In addition to his own affidavit (discussed below), the further evidence Macumber seeks to have admitted is as follows: a. affidavit sworn by Li, who attested that she took instructions from the City respecting the conduct and defence of the action,conducted the defence of Macumber as if his defence vested in the City, and conducted the defence without regard to individualdefences potentially available to Macumber.

She states that, “unknown to me at the time, a conflict of interest existed”, and that “it isconceivable that . . . independent counsel may have called additional witnesses . . . documentary evidence, expert evidence, and mayhave advanced and argued defences that I did not advance and argue at the trial of the [a]ction”; b. affidavit sworn by Pambrun, who attested that she took instructions from the City respecting the conduct and defence of theaction and, during pre-trial proceedings, conducted the defence of Macumber “as though he did not have an independent interest separatefrom the City in the [a]ction”; c. affidavit of Ivan Cisneros (Cisneros), hotel employee, who attested that, due to the disturbance, he contacted the front deskof the hotel and asked that the police be called; led the police to the door of the room where the plaintiffs were staying; and remainedsome distance away when the door was opened, such that he was unable to hear what was said in the doorway prior to yelling starting upagain shortly thereafter; d. affidavit of Josilena King (King), who attested that she called the front desk in response to a man banging on her door late atnight, that she was put in touch with 911, that she heard yelling in the room next door before and after the police arrived, and that sheremained in her room throughout this time period; e. the recording of King’s 911 call; f.

Constable Powell’s notes of the incident; g. Constable Powell’s Use of Force

Summary Report regarding the incident; h. WPS Use of Force Policy; i. affidavit of Chris Butler (Butler), which attached a Use of Force Analysis Report he prepared, post-trial, as an expertwitness.

In the report, it is noted that the police officers’ views were preferred whenever there was a dispute between a version of eventsprovided by the plaintiffs and the police officers, and the report was based, in part, on the assumption that the police entered the hotelroom lawfully; and j. the McNeil Policy, which requires the Crown to disclose any past misconduct of an officer to defence counsel in anycriminal trials (see Public Prosecution Service of Canada, Deskbook, Catalogue No J79-2/2014E-PDF (Ottawa: PPSC, 2014-2020) atPart II, ch 2.12; and R v McNeil, 2009 SCC 3). [11] In Macumber’s own affidavit, he essentially attested that: • he was not permitted to select or instruct his own lawyer, but was assigned legal counsel by the City, whose representativesinstructed counsel and made all major decisions regarding the conduct of the litigation; • he was represented by the City’s in-house counsel, Pambrun, until September 7, 2017, and thereafter by Li, who wascounsel at trial, and neither advised him about joint retainers, confidentiality waivers, or conflict of interest contingencies, nor did theyrefer him to get independent legal advice; • he was at no time asked for his instructions in relation to any significant decisions being made in the conduct of the defenceof the action, including decisions about potential witnesses or other evidence; • he was neither asked nor told by his counsel to attend the examinations for discovery of the plaintiffs, nor was he

encouraged to attend the entire trial; • his current counsel advise that the steps Li and Pambrun took were focussed only on defences available to the City alone or jointly to the City and himself, but that significant personal defences which were of benefit to and available to him alone were never considered, pled or advanced by Li or Pambrun; • he was advised by his current counsel that Li and Pambrun were in an “operative conflict of interest” and that, due to this, he believes that neither Li nor Pambrun represented his personal interests; • he believes that Li and Pambrun have admitted that he had no legal counsel representing his personal interests, as their affidavits state that they conducted the defence of the action with the City’s interests in mind and “only considered [his] interests when they were consistent with those of the City”; and • he believes the trial judge’s negative credibility findings against him have had an adverse effect, as he was assigned and remains assigned to an office role, and believes he will no longer be assigned to street-duty investigations, as the trial judge’s negative credibility findings could be used to discredit his testimony in future prosecutions.

MOTION FOR FURTHER EVIDENCE — CONFLICT OF INTEREST [ 12 ] As explained earlier, Beaulieu #1 held that police officers have certain personal interests, which in some, but not all, cases would require separate counsel where a conflict of interest manifested itself. A ground of appeal alleging ineffective assistance of counsel was one of those situations. [ 13 ] Since the decision on that motion, Macumber has withdrawn that ground of appeal.

However, both Macumber and the City argue that a conflict of interest existed at the trial and continues to exist requiring separate representation and the admission of the further evidence detailed above. [ 14 ] They submit that the conflict of interest arises from two sources. First, an “operative” conflict of interest arises from the operation of

section 88 of the PSA . They argue that

section 88 of the PSA provides immunity from liability to any person, such as Macumber, acting under authority of the PSA for anything done or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under the PSA . They further suggest that

section 88 of the PSA provides no protection to the City and, therefore, it was not in the City’s interest to rely on this provision. However, it is argued that it was in Macumber’s interest to plead and prove that he acted lawfully and in good faith, and that he was required to follow the orders of his superior officer to enter the hotel room on that day. That was not done. [ 15 ] Alternatively, a conflict of interest arose from the way in which the trial counsel conducted the trial, as evidenced by the material that is sought to be adduced.

Had this evidence been adduced, it would have been determinative of a different result. So, for example, the hotel porter on duty the night of the incident, Cisneros, gave a statement to police, but he was not called as a witness. Also, the guest who spoke to the 911 operator and provided a statement, King, was not called as a witness. All of this material was available at the time of the trial of the action. WHAT IS THE MEANING OF

SECTION 88 OF THE PSA , AND CAN IT BE INTERPRETED TO GIVE RISE TO A CONFLICT OF INTEREST BETWEEN MACUMBER AND THE CITY? [ 16 ]

Section 88 of the PSA states: Protection from liability 88 No action or proceeding may be brought against the minister, the director, a member of the commission, a member of a police board, the civilian director, an investigator, a civilian monitor or any other person acting under authority of this Act for anything done or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under this Act. [ 17 ] As of yet, there has been no judicial consideration of this section, and a review of the previous legislation in Manitoba dealing with police officers, i.e., The Provincial Police Act , CCSM c P150 (since repealed), did not contain a provision similar to

section 88 . A review of Hansard revealed no discussions during Debates or during Committee regarding the

interpretation to be given to

section 88 of the PSA . [ 18 ] In Walker v Insurance Council of Manitoba et al , 2020 MBQB 54 , Grammond J simply noted that a similar provision in The Insurance Act , CCSM c I40 is “an immunity clause, intended to provide protection from civil liability and damages” (at para 9). [ 19 ] The Police Act , 1990 , SS 1990-91, c P-15.01 in Saskatchewan contains an immunity provision, specifically indicating that members of the police are protected, which has been subject to judicial consideration. S ection 10(3) of that Act states: No action against commission, etc. . . .

10(3) No action lies or shall be instituted against a member or a civilian member where the member or civilian member is actingpursuant to the authority of this Act, the regulations or an order made pursuant to this Act, or pursuant to any other Act,

an Act of theParliament of Canada, the common law, a regulation or a bylaw, for any loss or damage suffered by any person by reason of anything ingood faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them . . .. [20] In Tataquason v Saskatoon Board of Police Commissioners, 2017 SKQB 98, Kalmakoff J (as he then was) consideredwhat “good faith” (at para 31) under that provision entails.

He stated (ibid): Subsection 10(3) provides police officers with a complete defence to civil liability, as long as they are acting in the good faith exercise oftheir duties when the conduct giving rise to loss or damage occurs: Schuler v Bergen, 2010 SKQB 153, 355 Sask R 146 (Schuler). Animmunity clause such as the one in ss. 10(3) protects police officers, even when their actions are negligent, as long as those actions aretaken in good faith: Nelson v Saskatchewan, 2003 SKQB 265, 235 Sask R 250 (Nelson).

In fact, ss. 10(3) of the Police Act providesimmunity from civil liability for good faith actions of a police officer exercising his or her duties, even if those actions are unlawful, inthe sense that they do not fall within the protection of s. 25 of the Criminal Code: Lang v Burch, (SK CA), [1983]1 WWR 55 (Sask CA) (QL) (Lang). [21] Thus,

section 88 of the PSA should be interpreted to shield a person, exercising their powers or duties under the Act,from civil liability if the person acts in good faith. It appears, from the way in which similar provisions are interpreted, that

section 88will provide a shield from liability even if the person acts unlawfully under the PSA, as long as the person has a bona fide belief in a stateof facts which, if true, would make their actions lawful.

Where conduct, however, is markedly inconsistent with the normal execution ofduties under the PSA, a court will be unable to conclude that a bona fide belief exists (see Chaput v Romain et al, (SCC),[1955] SCR 834; Lang v Burch (1982), (SK CA), 140 DLR (3d) 325 at 335 (Sask CA); and Tataquason at para 33). [22] In the circumstances of this case, Macumber argues that, if he shows that he acted in good faith when he unlawfullyentered the hotel room, he would not be liable, due to the operation of

section 88, but the City could still be liable for the actions of thepolice officers entering the hotel room, presumably because the City is not protected by

section 88 and because the City is jointly andseverally liable for torts committed by police officers in the performance of their duties pursuant to section 40(1) of the PSA. [23] It should be noted that the plaintiffs argue that the defence of good faith based on

section 88 of the PSA may not applyto police officers. They submit that, while many people are specifically listed in

section 88, police officers are conspicuously missing. [24] Nonetheless, accepting Macumber’s argument for the purposes of this motion,

section 88 of the PSA cannot reasonablybe interpreted to mean that its mere presence creates a conflict of interest between the City and any police officer who has been sued. [25] First, considering this substantively, counsel for the City could raise the good faith defence on behalf of a police officer,even if it does not particularly help the City, as it does not appear to be contrary to the City’s interests to do so. A conflict of interestwould only arise if a police officer asked for the good faith defence to be argued, and counsel appointed by the City refused to do so. [26] Second,

section 88 of the PSA cannot reasonably be interpreted to mean that its mere presence creates a conflict ofinterest between the City and any police officer sued for actions done in the execution of their duties. If it did, why would the same PSAgive the City the right to defend police officers in section 40(3)? If

section 88 created an automatic conflict between the City and policeofficers, when would the City ever be able to exercise its right to defend police officers as section 40(3) provides? As indicated inHeritage Capital Corp v Equitable Trust Co, 2016 SCC 19, “There is a presumption of statutory

interpretation that the provisions of astatute are meant to work together ‘as parts of a functioning whole’ . . . and form an internally consistent framework” (at para 28). [27] In my view, therefore,

section 88 of the PSA does not, in itself, create an “operative” or automatic conflict of interestbetween the City and members of the WPS. WHAT IS THE TEST AND PROCEDURE TO BE FOLLOWED FOR THE ADMISSION OF FURTHER EVIDENCE ONAPPEAL IN A CIVIL CASE WHERE CONFLICT OF INTEREST IS ALLEGED? [28] There are two different tests regarding the admission of further evidence. One is where the proposed evidence fulfillscertain criteria, including whether it would have affected the result of the trial. This is often referred to as the Palmer test.

The second iswhere the proposed evidence challenges the validity of the trial process and alleges that a miscarriage of justice occurred. Case lawestablishes that the Palmer test to admit further evidence is not to be applied in the second situation. This second test applies where aconflict of interest at trial is alleged. [29] In R v W (W) (1995), (ON CA), 100 CCC (3d) 225 (Ont CA), Doherty JA explained that, where thematerial sought to be admitted “challenges the very validity of the trial process”, this places the matter “outside the Palmer paradigm” (atp 232).

Where a conflict of interest is alleged, “the court must consider the conduct of counsel and determine whether it resulted in amiscarriage of justice” and, thus, may need to “consider material extraneous to the trial record but relevant to counsel’s conduct” (at p233), as this type of material “may be crucial in determining whether the conflict existed and whether it resulted in a miscarriage ofjustice” (ibid). [30] Another important, much-cited criminal appeal decision is R v Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667,leave to appeal to SCC refused, 30156 (26 August 2004); and 30329 (26 August 2004).

Regarding the procedure for admitting thefurther evidence, the Court explained (at para 36):

Where the fresh evidence goes to the integrity of the trial process, appellate courts also have not rigidly adhered to the procedure foradmitting fresh evidence on appeal set out in R. v. Stolar, [1998] 1 S.C.R. 480 [citations omitted]. In each of these cases, the courtadmitted fresh evidence so that it could properly evaluate the integrity of the trial process.

This inquiry differs from the usual situationcontemplated in Stolar where the fresh evidence goes to a substantive issue at trial and a ruling that it is admissible means, according tothe fourth Palmer criterion, that the fresh evidence could reasonably be expected to have affected the result at trial. Instead, where thefresh evidence is adduced to challenge the integrity of the trial process, the fresh evidence can be admitted and the question of whether amiscarriage of justice occurred then assessed to determine whether a new trial is required.

See also R v Richard (DR) et al, 2013 MBCA 105, leave to appeal to SCC refused, 35705 (4 September 2014), where Cameron JA, forthe Court, repeated that, when considering evidence directed at the fairness of the trial process, the Palmer criteria do not apply (see para204). This was reiterated in R v DGM, 2018 MBCA 88 at paras 8-9; and R v Owens, 2018 MBCA 94 at paras 50-51. [31] However, the evidence sought to be adduced for the purposes of showing a miscarriage of justice must first beadmissible under the ordinary rules of evidence. [32] The Court in Dunbar explained (at para 37): . . .

In addition, it is clear that the fresh evidence must be otherwise admissible in the sense that it complies with the generally applicablerules of evidence [citations omitted].

Evidence comprised of hearsay, speculation, opinion or mere argument is no more admissible asfresh evidence on appeal than it is at trial [citations omitted]. [33] For example, in R v Roussin (B), 2014 MBCA 24, the accused sought to have hearsay evidence of jury tamperingadmitted on appeal, but the Court refused to admit it, with Chartier CJM stating that “[t]o be admissible as fresh evidence under s. 683(1)of the Criminal Code, the evidence sought to be adduced must be admissible evidence” (at para 17). [34] In

summary, the criminal case law establishes that, where the further evidence is adduced to establish a miscarriage ofjustice, and the proposed evidence is otherwise admissible, credible and apparently relevant to the miscarriage of justice issue, it shouldbe admitted, in the interests of justice, but only for the purpose of evaluating the claim of a miscarriage of justice. [35] If the further evidence reveals a miscarriage of justice, then it will be admitted for the purpose of the appeal, and theappeal will be allowed and a new trial ordered.

If a miscarriage of justice is not revealed by the further evidence, then it is notadmissible for the purpose of the appeal.

See R v Barbeau (1996), (QC CA), 110 CCC (3d) 69 at 78-79 (Qc CA);R v Connors, 1997 CarswellNB 485 at paras 3-5 (CA); R v Wolkins, 2005 NSCA 2 at paras 59-61; R v SGT, 2011 SKCA 4 at paras 36-39; R v Ross, 2012 NSCA 56 at para 26; R v Starblanket, 2019 SKCA 130 at paras 50-53; and Boucher v R, 2021 NBCA 36 at paras 16-20. [36] There are not many civil cases which discuss the admission of further evidence on miscarriage of justice groundsbecause counsel was in a conflict of interest during the trial.

The Federal Court of Appeal considered the issue of counsel being in aconflict of interest in Mediatube Corp v Bell Canada, 2018 FCA 127. In that case, MediaTube moved to amend its notice of appeal toinclude a ground of ineffective assistance of counsel on the basis that trial counsel was in a conflict of interest. In considering whether topermit the amendment, Stratas JA held that more than a mere possibility of a conflict of interest must be shown.

While actual prejudiceneed not be shown, an appellant must demonstrate the conflict of interest and that the conflict adversely affected the lawyer’sperformance on behalf of the appellant. [37] Thus, Mediatube proposed a two-part test. An appellant must prove on a balance of probabilities that there was anactual conflict of interest and that the conflict of interest adversely affected counsel’s performance, on their behalf. If this is proven, itdoes not matter whether the conflict of interest affected the outcome of the trial.

The interests of justice will require that the evidence beadmitted and the appeal allowed (see 3716724 Canada Inc v Carleton Condominium Corporation No 375, 2016 ONCA 650).

Mediatube also held that a post-judgment assessment of a conflict of interest is more onerous than a pre-judgment assessment since it“‘is no longer a matter of taking protective steps’ but a matter of ‘(reversing) of a court judgment’” (at para 50; see also para 51). [38] So, in order to establish that the conduct of counsel, in acting for both Macumber and the City at trial, led to amiscarriage of justice, Macumber will have to demonstrate (1) that an actual conflict of interest existed between the City and him, and(2) that the conflict adversely affected counsel’s performance on his behalf (see W (

W) at p 237; and R v Neil, 2002 SCC 70 at para 39). [39] In W (W), Doherty JA discussed how and how not to establish the existence of a conflict of interest. It is useful toreproduce the relevant portions in full since it explains the difference between a conflict of interest and a difference of opinion withrespect to strategy (at pp 239-41): . . . In the context of joint representation of co-accused, an actual conflict of interests exists where a course of conduct [footnote omitted]

dictated by the best interests of one accused would, if followed, be inconsistent with the best interests of the co-accused: [citations omitted]. . . . It is incumbent on an appellant to point to a specific instance or instances where the appellant’s interests and those of the co-accused diverged, requiring counsel to choose between them [citation omitted]. That is not to say that an appellant must demonstrate that counsel consistently favoured the co-accused’s interests.

If, at any point in the course of the joint retainer, counsel, when faced with conflicting interests, took a course of action which adversely impacted on the effectiveness of counsel’s representation of the appellant, then the appellant has established the necessary adverse effect. Much time was spent during the appellants’ submissions suggesting different trial tactics which might have been employed, and the various benefits which may have accrued to either or both of the appellants, had they been separately represented at trial. . . . This submission misses the point. Assuming that Mrs.

W. would have benefited from such a cross-examination, the loss of that benefit neither demonstrates nor creates the necessary conflict of interests between Mrs. W. and her husband. Counsel’s representation is not rendered ineffective because counsel, if acting for only one of the appellants, may have rendered more effective assistance. The question is not whether the appellants could have been more effectively represented by separate counsel, but whether their joint representation placed counsel in a conflict of interests such that the assistance provided to either or both clients was adversely affected.

The appellants’ submission that they need only show that trial counsel gave less consideration to possible defence strategies available to each accused than counsel acting for only one of the accused might have given also misses the mark. A failure to give adequate consideration to possible defence strategies can lead to a finding that counsel provided ineffective assistance if that failure can properly be characterized as incompetence within the meaning of the prevailing case law [citations omitted]. That contention is not made here.

Absent incompetence, the appellants can succeed only if they can link the alleged failure to give adequate individual consideration to each appellant’s defence to an existing conflict between the interests of the appellants. . . . [emphasis added] [ 40 ] In his affidavit in support of his further evidence motion (filed May 26, 2021), Macumber states that Li’s affidavit, Pambrun’s affidavit, and his own affidavit are being offered to prove that Li and Pambrun were in an “operative” conflict of interest at the time they had conduct of his defence.

Macumber states that the remaining proposed evidence is being offered to demonstrate the availability of significant evidence that was not produced at trial as a result of the operative conflict of interest (i.e., to establish that the conflict adversely affected counsel’s performance on his behalf) or, alternatively, is being offered as vital evidence in support of his substantive appeal. [ 41 ] As previously indicated, in their further evidence affidavits, both Li and Pambrun state that they were counsel for Macumber and the City in the action, but took instructions in relation to the conduct and defence of the action from the City.

Both indicate that they conducted Macumber’s defence as if he did not have an independent interest separate from the City. Li further states that she conducted Macumber’s defence as if it had vested in the City, and without regard to individual defences potentially available to him. In his further evidence affidavit, Macumber outlines that, when he was served with the statement of claim, the City advised that they would assign legal counsel to conduct his defence, and that he was represented, jointly with the City, by Pambrun and then Li.

He states neither provided him with advice about joint retainers, conflicts of interest or independent legal advice. He states that a joint statement of defence was filed, but he was not asked or advised to attend examinations for discovery of the plaintiffs, nor was he encouraged to attend the entire trial. He indicates as well that counsel did not talk to him about which witnesses to call or evidence to adduce at trial. All of this evidence appears to be legally admissible, as it provides information about the lawyer-client relationship, and the conduct leading up to and including the trial.

This evidence could be admitted by the Court for the purpose of assessing the conflict of interest and miscarriage of justice ground of appeal. [ 42 ] However, additional statements by Li in her affidavit are more problematic. She gives an opinion about what a Manitoba Court of Appeal case means, opines that a conflict of interest arose as the conduct of the defence proceeded, and acknowledges that the City was mistaken in believing it had carriage of Macumber’s defence.

She speculates that, had she known of Macumber’s separate interest in the action, she would have only represented the City, and speculates that independent counsel may have called additional witnesses or evidence that she did not call, and advance defences she did not consider or advance. [ 43 ] Her opinions about the meaning of a Manitoba Court of Appeal case and that she was in a conflict of interest are inadmissible expressions of opinion, as is her acknowledgment that the City did not have carriage of Macumber’s defence.

Her speculation is likewise inadmissible in an affidavit that is supposed to contain “further evidence upon questions of fact” ( The Court of Appeal Act , CCSM c C240 at section 26(3) (the CA Act )). Likewise, some of Macumber’s statements in his affidavit clearly represent appellate counsel’s opinions or argument, such as his statement that he was advised by his current lawyers that the statement of defence

pleads defences protecting the City or the City and him jointly, but did not plead defences solely applicable to him. Once again, theseare not statements of fact. [44] The statements noted cannot be admitted, as they do not meet the legal test for admissibility. See, for example,Expressvu Inc v NII Norsat International Inc, 1997 CarswellNat 333 (FCTD), where Jerome ACJ, after noting that the Federal CourtsRules, SOR/98-106 required affidavits to be confined to facts, discussed why many of the paragraphs contained within the profferedaffidavit were inadmissible (at paras 5-6): . . .

Many of the statements are not evidence within the knowledge of the affiants but, rather, constitute expressions of opinion on thevery questions of law which the Court is being called upon to decide. . . . Statements of this nature, which appear throughout the impugned affidavits, are expressions of the affiants’ legal opinions and assuch, do not comply with Rule 332(1). As stated in Bell Canada v. Canada (Cdn. Human Rights Commission), (FC),[1991] 1 F.C. 356 (T.D.) at 359 and 361: … [T]his and every other deponent must abstain from expressing any gloss or explanations on the

interpretation of the law. Therespondents’ counsel may do that in submissions to, and discussions with, the Court, which is the proper ultimate interpreter of the law. .. . . . . See also Brine v Industrial Alliance Insurance and Financial Services Inc, 2016 SCC 9. [45] As can be seen, a portion of the affidavits of the affiants are what might be called opinion evidence or argument. Thestatements represent an appellant’s or appellate counsel’s views on the significance of other evidence and what it might connote.

Statements of this order are not evidence and are more properly put before the court as part of a party’s oral or written submissions onappeal. While the court might accept it as argument, it is not further evidence. [46] Therefore, considering only the admissible evidence outlined above in the affidavits of Li, Pambrun and Macumber, theevidence does not support a conclusion that Li or Pambrun were in a conflict of interest.

There is no evidence in these affidavits whichpoints to a specific instance or instances where Macumber’s interests and the City’s interests diverged, requiring counsel to make achoice between them. There is no evidence suggesting that, in promoting the City’s interests or the interests of the City and Macumberjointly, that Li or Pambrun acted against Macumber’s interests.

Furthermore, there is nothing in the transcripts of the trial that gives riseto a conflict of interest concern. [47] Pambrun’s affidavit does not assist the argument since her involvement in the case did not extend beyond September2017, well over a year before the trial.

She was not involved in the trial and nothing she did bound trial counsel in any form that foundits way into Macumber’s proposed further evidence. [48] With respect to Li, nowhere does Li suggest that she preferred the City’s interests to those of Macumber or, to protectthe City, sacrificed any part of Macumber’s defence. [49] In my view, the further evidence does not establish that there was a conflict of interest between the City and Macumberat trial.

Given this conclusion, the remaining further evidence which Macumber seeks to have admitted to establish that the conflictadversely affected counsel’s performance on his behalf and led to a miscarriage of justice, is now irrelevant to that purpose.

Without anactual conflict, counsel’s performance cannot be affected by it. [50] Thus, with respect to the conflict of interest and miscarriage of justice argument, the motion to admit the furtherevidence (into the substantive appeals) is dismissed, as the evidence proffered failed to support a finding of conflict of interest resultingin a miscarriage of justice. [51] However, that does not end the inquiry as Macumber also seeks to admit all of the additional further evidence (exceptfor Li and Pambrun’s affidavits) to support the argument that the trial judge erred.

This includes the Cisneros affidavit, the Kingaffidavit, the 911 call, Cst. Powell’s notes and Use of Force

Summary Report, the WPS Use of Force Policy, the affidavit and report ofButler, the McNeil Policy, and his own affidavit. WHAT IS THE “USUAL” TEST AND PROCEDURE FOR THE ADMISSION OF FURTHER EVIDENCE ON APPEAL IN ACIVIL CASE (I.E., WHERE CONFLICT OF INTEREST OR OTHER TRIAL VALIDITY GROUNDS ARE NOTALLEGED)? [52] The jurisdiction of the Court of Appeal to admit further evidence in civil appeals comes from section 26(3) of the CAAct, which states:

Power of court to receive further evidence 26(3) The court may, in its discretion, receive further evidence upon questions of fact by oral examination in court, by affidavit, or bydeposition taken before an examiner or a commissioner. [53] Also relevant is r 21(2) of the MB, Court of Appeal Rules, MR 555/88R, which indicates that a motion to introducefurther evidence shall be heard on the day scheduled for hearing the appeal, and r 21(3), which indicates: Further evidence . . . 21(3) The motion shall be accompanied by an affidavit which sets out the following: (

a) the general nature of the further evidence sought to be introduced; (

b) the way in which the further evidence is likely to be determinative of the appeal; (

c) why the further evidence was not introduced at the proceeding from which the appeal lies. [54] As indicated earlier, when issues relating to the validity of the trial are not raised, an appellate court will generallyexercise its discretion to receive further evidence if the applicant meets the well-known Palmer test.

The Palmer test is the test to beapplied in civil appeals, as well as criminal appeals, where further evidence is sought to be adduced (see Public School Boards’ Assn ofAlberta v Alberta (Attorney General), 2000 SCC 2 at paras 6-10 (in Chambers); May v Ferndale Institution, 2005 SCC 82 at para 107;R v Basaraba; Basaraba v Rutley, 2006 MBCA 27 at para 37; Giesbrecht v McNeilly et al, 2008 MBCA 22 at para 15; Horch v Horch,2017 MBCA 97 at para 124; and Bent v Platnick, 2020 SCC 23 at para 49). [55] In Palmer, the test for the admissibility of further evidence on a criminal appeal was stated by McIntyre J, for theSupreme Court of Canada, as follows (at p 775): . . .

(1) The evidence should generally not be admit​ted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [McMartin v The Queen, (SCC), [1964] SCR 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evi​dence adduced at trial, be expected to haveaffected the result. . . . [56] The overarching test is whether it is in the interests of justice to admit the further evidence. This is a discretionarydecision on the part of the court and is determined on a case-by-case basis, with consideration of the unique content and facts of anyindividual case.

[57] With regard to the procedure to be followed by a court asked to admit further evidence under the Palmer test, this wasestablished, at least in the criminal law sphere, in R v Stolar, (SCC), [1988] 1 SCR 480.

In Stolar, McIntyre J, for theSupreme Court of Canada, pointed out that (at p 488): . . . . . . [T]here is a distinction between an order which actually admits the proffered evidence and one which allows consideration of theevidence for the purpose of determining whether it will be admitted. . . . . . . [58] As in the case with motions alleging a miscarriage of justice, the first question is whether the evidence is otherwiseadmissible under the laws of evidence.

If the evidence is otherwise admissible, it may then be considered for the purpose of determiningwhether it will be admitted as part of the substantive appeal. It is at this point that the Palmer criteria will be considered.

In G (JD) v G(SL), 2017 MBCA 117, Mainella JA, for the Court, clarified that (at para 36): Implicit in the consideration of the Palmer criteria is that the fresh evidence in question is admissible; if the law of evidence would nototherwise permit the introduction of the evidence at trial, it cannot be admitted on appeal by way of a motion for fresh evidence. . . . [59] Regarding the criterion of due diligence, the case law reveals that this criterion is applied more strictly in civil appealcases than in criminal appeal cases, and should be applied in accordance with the principles of certainty and finality in litigation so that aparty does not simply attempt another “kick at the can” with evidence that was, or could have been, readily available at trial. [60] However, in certain cases, the strict application of the Palmer criteria may be relaxed.

For example, the test has beenapplied more flexibly when dealing with further evidence motions in which the best interests of a child are at stake (whether in familylaw or child welfare appeals) (see, for example, JDB v DKM, 2019 MBCA 68 at paras 29-31; and Zilke v Epp, 2019 MBCA 114 at para2). [61] In Bent, Côté J, for the majority, discussed the due diligence criterion, and suggested that it should not be appliedrigidly, stating (at para 60): . . .

It must not be forgotten that the due diligence factor specifically is “not a rigid one” (Kuczera (Re), 2018 ONCA 322, 58 C.B.R.(6th) 227, at para. 16) and has been held to be a “practical concept” (Calaheson v. Gift Lake Metis Settlement, 2016 ABCA 185, 38 Alta.L.R. (6th) 30, at para. 14) that is “context sensitive” (R. v. 1275729 Ontario Inc. (2005), (ON CA), 205 O.A.C. 359,at para. 29; see also Elliott v. Sagl, 2019 ONSC 2490, at paras. 36-38 ; D. J. M. Brown, with the assistance of D.

Fairlie, CivilAppeals (loose-leaf), at pp. 10-19 to 10-21). . . . [62] Part of the context relied upon by Côté J to conclude that the due diligence criterion should not be treated rigidly in Bentincluded the fact that the matter on appeal involved a new

summary judgment provision which had not been judicially consideredregarding the nature or comprehensiveness of the record required to withstand the motion, and the fact that the evidence before theoriginal motion judge had to be filed within 25 days. [63] Also, in Bent, when Côté J referred to the Palmer criterion of whether the further evidence “could reasonably, whentaken with the other evidence adduced, be expected to have affected the result” (at para 69), she approached the issue as being one of“probative value” (see paras 69-71).

In that case, she found that the proposed evidence was “highly probative” (at paras 70-71), as itrelated directly to, and even contradicted, the motion judge’s findings, and bolstered the evidentiary record to provide the basis forlegally tenable arguments. [64] Motions for further evidence should not be justified solely on the basis that new jurisprudence has given counsel a “newtwist on an old argument” (Public School Boards’ Assn of Alberta at para 12). However, the due diligence criterion should also not beentirely rigid and unresponsive to context. It is a practical concept that is context-sensitive.

This case has similarities to Bent, in that theappeals involve a recent judicial

interpretation of a statutory provision. It is arguable that Beaulieu #1 has some contextual impact on thedue diligence criterion. [65] Therefore, while I am satisfied that the further evidence submitted provides no evidence of a conflict of interest, Iwould reserve my decision as to whether to admit the further evidence on the alternative ground until the hearing of the substantiveappeals in order to consider the entire context of the case when applying the Palmer criteria, including that of due diligence. This is theproper procedure suggested by McIntyre J in Stolar (at pp 491-92):

. . . The procedure which should be followed when an application is made to the Court of Appeal for the admission of fresh evidence is that the motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard. In this way, the Court of Appeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in the case. It is then in a position where it can decide realistically whether the proffered evidence could reasonably have been expected to affect the result of the case.

If, then, having heard the appeal, the court should be of the opinion that the evidence could not reasonably have affected the result, it would dismiss the application for the introduction of fresh evidence and proceed to a disposition of the appeal. On the other hand, if it should be of the view that the fresh evidence is of such nature and effect that, taken with the other evidence, it would be conclusive of the issues in the case, the Court of Appeal could dispose of the matter then and there.

Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appeal but, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in the case, it might have altered the result at trial, the Court of Appeal should admit the proffered evidence and direct a new trial where the evidence could be heard and the issues determined by the trier of fact. . . . . . . CONCLUSION [ 66 ] With respect to the issue of an “operative” conflict of interest,

section 88 of the PSA cannot be interpreted to give rise to an automatic conflict of interest between Macumber and the City. This provision shields a person from civil liability if the person acts in good faith in the execution of their duty, and it might be possible to argue that good faith by Macumber would provide him with protection, but not the City. However, even if this were so, it would not create a conflict. A conflict would only occur if Macumber insisted the defence be raised and doing so would be contrary to the City’s interests. Interpreting

section 88 as creating an automatic conflict of interest in every situation would also be inconsistent with the City’s right to defend its police officers pursuant to section 40(3) of the PSA . [ 67 ] The test and procedure to be followed for the admission of further evidence on appeal in a civil case where conflict of interest is alleged is as discussed in W (

W) and Dunbar (not Stolar ), but with more weight towards the concept of finality. The evidence must be admissible pursuant to the rules of evidence. The evidence must show that an actual conflict of interest existed and that the conflict adversely affected counsel’s performance. The due diligence criterion is not relevant under this test. [ 68 ] In my view, the opinion evidence contained in Li and Macumber’s affidavits should not be received since it attempts to answer the legal question which is a task for this Court. As well, an actual conflict of interest has not been established.

As noted earlier, I would dismiss this ground for the admission of further evidence. [ 69 ] With respect to the alternative argument of the admission of further evidence going to the reliability of the trial judge’s decisions, the usual test and procedure for the admission of further evidence on a civil appeal is much like a criminal appeal — both Palmer and Stolar concepts generally apply. [ 70 ] As already indicated, the decision with respect to the admission of that further evidence is reserved. The parties are directed to set the matter down for the hearing of the appeals.

In its motion brief, the City asks for leave to speak to the issue of costs after all determinations, other than costs, have been made. Consequently, the issue of costs will be reserved until after the hearing of the substantive appeals. [ 71 ] Two further matters should be noted. First, upon receiving the motion for the admission of further evidence, the plaintiffs served a notice of examination requiring trial counsel to attend an examination before the Court at the time scheduled for the appeals.

Macumber’s counsel argued that leave was required, and both Macumber and the City’s counsel argued that there were insufficient grounds to cross-examine trial counsel. [ 72 ] Section 26(3) of the CA Act allows the Court, in its discretion, to receive further evidence upon questions of fact by oral examination in court but, in R v Harry , 2013 MBCA 108 , the Court stated that cross-examinations on supporting affidavits should take place prior to the appeal hearing, and that prior permission was needed to cross-examine before the panel (see para 94).

Leave is required in the Court of Queen’s Bench if the examination will take place at the hearing (see MB, Court of Queen’s Bench Rules , MR 553/88 at r 39.03(4)). Leave was required in this Court in order to cross-examine Li on her affidavit as well. [ 73 ] Leave to cross-examine in court will be granted only sparingly and is dependent on a variety of circumstances. This Court has addressed the issue of cross-examination before a panel in previous cases.

For instance, in R v DGM , 2018 MBCA 88 , Beard JA stated (at para 37): In this case, counsel on appeal were not in agreement as to whether the cross-examinations should take place viva voce before the panel or out of court and provided to the Court by way of transcripts. Because this matter has been outstanding for over eight years and, further, the affiants were present and had travelled some distance, we agreed to proceed by way of viva voce hearing. It is important, however, to re-state the following direction by this Court in R v Harry , 2013 MBCA 108 (at para 94 ):

Any cross-examinations on supporting affidavits should take place prior to the hearing. Transcripts should be filed by the party whowishes to rely on the cross-examination. Where counsel wishes to conduct a cross-examination on an affidavit before the panel (whichis a rare occurrence), prior permission should be obtained by contacting the Registry Office. [74] However, the most important point is that the cross-examination here was not likely to elicit new evidence.

Inconsidering whether leave should be granted, a court should always consider whether the evidence sought to be obtained from theproposed examination is relevant to the issue raised by the main motion. Li’s affidavit was an attempted

interpretation of the law. Anattempt to cross-examine a deponent on this matter would end up being an improper canvassing of the deponent’s opinion about themeaning of the law. There was no basis to conclude that cross-examination would elicit further relevant evidence not now before thepanel or on the record.

Consequently, at the hearing of the motion, leave was denied (see R v Atzenberger, 2018 BCCA 224 at para 16;and R v Mehl, 2019 BCCA 438 at paras 12-14). [75] Where, as in this case, the party refuses to submit to cross-examination prior to the hearing, counsel should make amotion in chambers for an order directing the party to appear for examination on their affidavit. Motions to strike affidavits and motionsto cross-examine on such affidavit material should properly be made to the chambers judge (see Canada Mortgage and Housing Corp vIness (2002), (ON CA), 220 DLR (4th) 682 at para 15 (Ont CA)).

The transcript of the cross-examination wouldthen be included in the proposed further evidence materials. [76] Second, Macumber alleges that if he shows that he, in good faith, followed the (unlawful) order of his superior officerto enter the hotel room, this will afford him the ability to argue a good faith defence under

section 88 of the PSA, which would exoneratehim, but still leave the City liable for the actions of the other officers who unlawfully entered the hotel room. Counsel for the plaintiffsargue that

section 88 does not apply to police officers. Moreover, it is not clear that a police officer can avoid personal civil liabilitysimply by arguing they were carrying out orders that they ought to have known were illegal or what the parameters of the good faithdefence are in provisions such as

section 88 (see Chaput; Lang at pp 335-38; and Kosoian v Société de transport de Montréal, 2019 SCC59 at paras 60-61). It should be clear that this decision and these reasons make no comment on these arguments. [77] In

summary, with respect to the conflict of interest and miscarriage of justice argument, the motion to admit the furtherevidence is dismissed. I would reserve my decision as to whether to admit the further evidence on the alternative ground until after thehearing of the appeals. Accordingly, the parties are directed to set the matter down for the hearing of the substantive appeals. The issueof costs will also be reserved until after the hearing. JA I agree: JA I agree: JA