She speaks about doing residential schools litigation and serving on the Federal Court of Appeal
Marianne Rivoalen was appointed Chief Justice of Manitoba on June 1, 2023, and sits on the province’s Court of Appeal. She was first appointed a judge of the Family Division of the Court of Queen's Bench of Manitoba in 2005. In 2015, she became Associate Chief Justice of the Family Division of the Court of Queen's Bench of Manitoba. Between 2018 and 2023, she sat on the Federal Court of Appeal in Ottawa.
She spoke with CL Talk about her experience working on residential schools litigation and minority language rights, how that private practice experience informs her judicial philosophy, digitizing the Manitoba Court of Appeal, and what she sees as the profession's most pressing issues.
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Below is a summary of the conversation, edited for length and clarity:
From 1989 to 2003, I was in private practice at two large firms in Winnipeg. At the first firm, I practised primarily family law litigation in both official languages. When I joined the second larger firm, I did all kinds of civil litigation, including municipal law. I continued to represent some French-speaking clients in family law cases.
I joined the Federal Department of Justice regional office in Winnipeg in 2003. I was senior counsel for the Aboriginal law services group and team leader for the Indian residential schools litigation. I joined the bench in 2005.
I enjoyed my work at the Department of Justice dealing with Indian residential schools files. Still, I had been encouraged by members of the Francophone community and bench to apply. So, I applied to become a judge. It was primarily because I had done a lot of French litigation, and some of the members of the bench knew who I was and thought I had the qualities of a good judge. I was appointed on February 2, 2005, to the family division of the Court of Queen's Bench.
The transition from a lawyer to a judge was a learning curve. I was familiar with family litigation, but as a litigator, you represent one side of a file. On the bench, I soon realized I had to look at both sides of the coin and perspectives. I was the decision-maker and fact-finder. So suddenly, your mind shifts. You must consider what's fair, reasonable, and appropriate.
I worked as a deputy commissioner at the Residential Tenancies Commission for 10 years, so I was used to making decisions. But still, when you're up there on the bench, you recognize and realize the importance of being well-prepared and listening to the parties before you make any judgment calls.
When I was on the Court of Queen's Bench’s family division, I acted as an associate chief for almost three years and was appointed the Associate Chief of the Family Division in 2015. So, there's a leadership role involved, not only in the court's administration but also when colleagues come to me with questions, concerns, or challenges.
I also had some leadership experience as the senior counsel and team leader for the residential schools file at the Department of Justice.
I didn't know anything about the history of Indian residential schools when I joined the Department of Justice. I was then involved with several discoveries of survivors from a particular First Nation in Manitoba. Their stories and all the reading helped shape my understanding of what Aboriginal people in Manitoba have gone through and understand the effects of residential schools on the Aboriginal population of Manitoba.
While on the Queen's Bench in the family division, I did a lot of child protection work. About 89 percent of the children in care were of Aboriginal descent. I understood that these social issues and child poverty arose in large part because of the history of residential schools.
That informed my view that it is critical to understand social context. Of course, you must be a fact-finder and apply the law to the facts you find.
My work as a volunteer in the French community as a French-language minority also informed me of some of the challenges for French-language minority rights when I joined the bench.
I also grew up on a farm in rural Manitoba, so having that rural background experience informed my views about what different people might encounter. It is about remaining curious, open-minded, and open-hearted about the people who appear before you.
When I joined the Manitoba Court of Appeal, I knew what it was to be an appellate judge because I had been on the Federal Court of Appeal for almost five years.
In that role, I felt I had learned much about what a good appellate court judge should do. Because I was returning to my home province, I knew the people on the Court of Appeal, some of whom I knew very well. My predecessor had already put something in motion to modernize the court and bring it into the digital era.
In May 2023, we had an integrated case management system. The province awarded Thomson Reuters a contract to create a digital system and agreed to start with the Manitoba Court of Appeal, so I fully embraced that. My biggest goal is to turn our paper-based court into a modern electronic one.
I was already used to that because I worked in the Federal Court of Appeal, where we dealt with digital technology, electronic files, and Zoom hearings. When I joined, I could tell my colleagues, “This is going to be great,” explaining that this was a positive step for access to justice and lawyers.
We're on track to have a completely operational court case management system by September 2025 so that lawyers and self-represented litigants can file electronically, judges can work with electronic documents, and the public will have access to an electronic registry.
There will always be a need and role for virtual hearings, whether hybrid or entirely online. It's a way for litigants not living in Winnipeg to have better court access. I’m open to it, and our rules provide for it.
Some hearings may not be as appropriate if it's a criminal matter and the accused person must be in the courtroom. For some people, travel costs are prohibitive, and it may not be necessary for a short hearing. I think virtual hearings are here to stay in, and that's a good thing.
I won't speak on behalf of the King's Bench or Provincial Court, but we're in good shape at the Court of Appeal right now.
If a party or lawyer wants to have a date for an appeal, we can offer that within three to four months. If there's a real emergency, we make it happen even sooner. Some lawyers think three to four months is too fast. There are no actual backlogs or delays in the Manitoba Court of Appeal; much of that is because of my predecessor, Richard Chartier. He was very good at organizing the court so that decisions were rendered quickly, and files were reasonably moved in the system.
We're a small court with only eight full-time judges and four supernumerary judges. I'm lucky to be sitting on this court. I know how challenging it is for other courts of appeal in Ontario, Quebec, and Alberta. The volume and complexities are very different from here.
At the appeal level, it's all about the writing. Your factum should be clear and concise. It should not overstate or have 15 grounds of appeal. It should have three at most.
You should be organized and prepared for oral submissions and not read from your factum. Be respectful, and do not try to be somebody you're not. Maintain your personality within the oral advocacy.
We read everything very carefully. It's either an error of law or a palpable overriding error. We're not the initial decision-makers; the facts are what they are, so you look at the law. It's more about convincing the court that there's some error, and that's where the writing comes in. The oral advocacy is persuading a judge to look at things more closely.
The mentorship role is missing. Many young lawyers or sole practitioners are taking on more files than they should, as are many new lawyers coming from other countries.
I haven’t seen lawyers who are suffering from mental health in the courtroom, but I'm aware that mental health is a big issue for lawyers. People struggle with the challenges, either professional or personal, and are afraid to seek help. I think it is essential to have resources to help with mental health issues. In Manitoba, there are a lot of programs through the Manitoba Bar Association and the Law Society of Manitoba, including education programs and other things concerning mental health. This also exists in the judiciary; the National Judicial Institute has specific programs to ensure that judges remain resilient and survive. I was one of the faculty members on a program called “Survive and Thrive.”
Apart from implementing the case management information system, artificial intelligence will be a challenge for the judiciary and the legal profession. We need to figure out how to navigate it because it's here, and it's not going away. It can be used for good or for purposes that are not great.
The Court of King’s Bench sent out a practice direction over a year ago, and the Canadian Judicial Council is also working on directions. At this point, our court hasn't done that. Defining AI is even a challenge. Generative AI is one thing, but spell check is also AI.
When I was on the Federal Court of Appeal, I saw the profession from British Columbia to Nova Scotia, Newfoundland, and Labrador. There are many outstanding lawyers out there. From an appellate perspective, there's a lot of excellent writing, and our lawyers are trying their best for their clients.
It is a noble profession. We need a strong, independent bar as much as we need a good, independent judiciary. Lawyers don't just want to make money; they're still understanding their role, doing volunteer work and other things to ensure the traditions of the profession are continued. They do speak independently and sometimes protect judicial independence through their words.
