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Enforcing National Class Action Settlements: MBCA
The Ontario Superior Court properly exercised its jurisdiction in certifying a class action in Manitoba which included potential plaintiffs resident in Manitoba as class members, and in approving a settlement judgment with respect to that action, according to the Manitoba Court of Appeal in Meeking v. Cash Store Inc. et al., 2013 MBCA 81. The appeal court also agreed with the motion judge's finding that the judgment was not enforceable as against either Instaloans or signature and title loans, however, due to deficiencies in the notices regarding these types of loans. The detailed judgment examines the nature of class actions, the evolution of the jurisprudence regarding the assertion of jurisdiction by a provincial superior court, and the recognition and enforcement of that assertion by the court of another jurisdiction. As "all these issues must be resolved within the confines of private international law and Canadian constitutional law," the court starts its analysis there and with the history of the real and substantial connection test. Consistent with the principles set out in Van Breda, the court expands the test by recognizing common issues between the claims of resident and non-resident plaintiffs as a presumptive connector.
Following the Court of Appeal decision, the motion judge granted Mr. Meekings's application for certification of the action as a class proceeding at 2013 MBQB 221.
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Court Favours Consensual Contractual Arbitration
In Hopkins v. Ventura Custom Homes Ltd., 2013 MBCA 67, the Court of Appeal granted the defendant builder's motion for a stay of court proceedings against it on the basis that the parties had agreed to resolve any disputes by way of arbitration. The court found that the motion judge, who had refused to grant the stay, erred in law by failing to consider the correct principles of contractual interpretation as they relate to the interpretation of the arbitration provisions of the agreement. In recent years, said the court, "courts of all levels have recognized the many benefits of consensual contractual arbitration and have adopted a broadminded attitude to the applicability and interpretation of such clauses. This is consistent with, and in keeping with, the amendments to arbitration legislation across Canada and internationally." (para. 59) "In summary, while the court's role in the interpretation of private arbitration clauses is to give effect to the intentions of the parties as reflected in their words, policy considerations in encouraging arbitration, and a generally broad and liberal attitude by the courts in favour of arbitration, where that option has been chosen, will impact the interpretation in any given case." (para. 64)
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Insurance Agents Not Negligent in Retirement Planning Case: MBCA
The Court of Appeal overturned the lower court judgment awarding damages against two insurance agents arising from retirement planning advice in Giesbrecht v. Canada Life, 2013 MBCA 53. The court found that no negligence claim was made out because there was no causal relationship between the agents' negligent acts or omissions and the plaintiffs' decision to retire and their consequent reduced income. Applying the "but for test" in a "robust, common sense fashion," the appeal court found that the plaintiffs had failed to prove on a balance of probabilities that, but for the breaches, they would not have retired.
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Misleading Representations from City Muddy Material Facts Determination: MBQB
The court granted leave and an extension of time to an applicant injured in a fall on the steps of the Trizec building to commence an action in negligence against the City of Winnipeg in Sochasky v. Winnipeg (City), 2013 MBQB 204. The applicant argued that she had attempted to file an action against the proper party within the time frame allowed under The Limitation of Actions Act, but had been unable to clarify issues of ownership and occupancy due to unclear communications with the City. The court found that due to the City's oral and written representations that it did not own the property the applicant did not know the material facts until she received the statement of defence in her claim against the lessee of the property.
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Recent QB Decisions
Sichewski v. Archer et al., 2013 MBQB 203 - the court awarded the plaintiff judgment in the amount of $28,050 for services provided in connection with Minaki Lodge, rejecting the developer's last minute jurisdiction challenge and his assertion that the company in which he was sole shareholder, and not he, had retained the plaintiff's services.
Seaver v. Winnipeg Regional Health Authority, 2013 MBQB 158 - the court dismissed a negligence and civil fraud action against a local doctor who refused to discuss the availability of treatment in Manitoba over the telephone with a patient he had not yet examined who was seeking treatment in the US. The court said: "if a limited duty of care did arise, it was not breached. Any duty of care would not include an obligation to let the patient dictate what will be discussed, when it will be discussed, and where and under what circumstances it will be discussed. It is the professional's responsibility to provide services in a proper way. This includes not compromising standards despite the patient's understandable anxiety and pressure." (para 29)
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Recommended Reading
The following articles may be of interest to litigators:
- Civil Writes, the July 2013 edition of the CBA Civil Litigation section newsletter, contains an article on how exclusion clauses prevent co-defendants from collecting contribution and indemnity, and a case comment on the Southcott Estates case.
- Professional liability insurers are monitoring the recent rise in class action negligence claims against professional advisors and the emerging trend to expand the class of people to whom advisors owe a duty of care according to the author of the Lawyers Weekly article The duty of care for advisors. The author discusses an Ontario Court of Appeal decision in which the court found that a law firm which had provided tax opinions to promoters of a tax benefit program could owe a duty of care to investors in the program (who were not clients of the firm but who had viewed the opinions as part of the promoters' marketing materials).
- Preparing Your Witness for Discovery - this Practice Points article outlines the steps to prepare and educate witnesses for discovery. It contains practical advice for working with particular kinds of witnesses, including difficult clients.
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Joint CPD Program for Administrative Adjudicators
The Law Society is partnering with the Manitoba Council of Administrative Tribunals and the Society of Ontario Adjudicators and Regulators to present the all day program Effective Decision Writing for Administrative Adjudicators on October 29, 2013. University of Ottawa professor Pamela Chapman and expert local facilitators will review the components of well-reasoned decisions and core writing principles, and provide written materials, checklists, and decision samples. Participants will work with expert coaches in small group workshops. Register before October 7, 2013 to take advantage of the early bird rate.
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Fall CPD: LSM
Register soon for these fall CPD programs:
Jonathan Robinson, a psychotherapist and author, will deliver two all day workshops:
Legal technology expert and lawyer Barron Henley is back with three new sessions:
Advanced Storytelling and Presentation Skills - Presenter David Mann will help you take your presentation skills to the next level at this all-day program to be held December 13, 2013 at the Law Society classroom. Agenda topics include: managing voice, body and gestures, how storytelling works, preparing and delivering opening statements, and improving direct and cross-examination. Register by November 1, 2013 to take advantage of the early bird rate.
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Pitblado Lectures
The 2013 Isaac Pitblado Lectures, titled Human Rights Challenges and Achievements, will take place November 22-23, 2013, at the Fort Garry Hotel. Presenters will cover a variety of topical human rights issues including equality jurisprudence, the future of human rights tribunals and commissions, and how international human rights law impacts Manitoba practice. Register before October 11, 2013 to take advantage of the early bird discount.
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Skilled Lawyer Series: Advocacy Stream
The CBA's Skilled Lawyer Series will continue next winter with advocacy stream sessions on Negotiation Techniques for the Litigator (January 14, 2014) and Drafting Motion Materials (February 20, 2014). Check the CBA website for further details.
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