Indirect Purchaser Class Actions Given Green Light: SCC

Three recent Supreme Court of Canada cases clarify Canada's test for certification of class actions and open the door for consumers to use class actions to bring indirect purchaser price-fixing claims: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, and Infineon Technologies AG v. Option consommateurs, 2013 SCC 59.

• Supreme Court of Canada trilogy holds that indirect purchasers may advance class action for recovery of unlawful price-fixing, McMillan.

• Supreme Court of Canada Allows Indirect Purchaser Class Actions and Provides Guidance on Certification and Jurisdiction Issues, Torys. 

• Canada's Supreme Court Reshapes Consumer Class Actions and Clarifies the Test for Certification Across Canada, Osler.

Reasons Required Where Livelihood at Risk: MBCA

In Brar v. The Taxicab Board, 2013 MBCA 103, the Manitoba Court of Appeal takes the Taxicab Board to task yet again for failing to provide reasons for its decision to cancel a taxicab driver's licence. The breach was made even more serious by the board's failure to heed the earlier warning issued by the court in Abetew v. The Taxicab Board, 2013 MBCA 19, said the court at para.12. The court quashed the board's order, stressing the need to "impress upon the Board that, at least where it is ordering the very serious penalty of cancelling a taxicab driver's licence and thereby depriving the holder of earning a livelihood, it must provide reasons for its decision." (para.13)

Forced Leave of Absence a Constructive Dismissal: MBCA  

An employer who unilaterally "forced" a leave of absence on a long-standing senior employee whose deteriorating eyesight was making his sales job difficult breached their employment contract according to the Court of Appeal in Irvine v. Gauthier (Jim) Chevrolet Oldsmobile Cadillac Ltd., 2013 MBCA 93. The trial judge erred in not considering whether the plaintiff had been constructively dismissed, said the court, which went on to confirm that the plaintiff was entitled to damages of $346,111.04 for the wrongful dismissal.

Conflict of Interest Appeal Dismissed: MBCA

Inspection Services Not Taxable: MBCA

Airport Construction Cases Consolidated: MBQB

The sheer multiplicity of proceedings and the need to present evidence and argue on substantially the same issues in eight separate court proceedings would "create the specter of and real potential for inconsistent findings of fact and determinations of law" said the court in EllisDon Corporation v. Winnipeg Airports Authority Inc., 2013 MBQB 280. The court granted the contractor's motion to consolidate the many subcontractor actions arising from the construction of the air terminal building.   

Income Loss Claims Follow Bifurcated Process: MBQB

In Fontaine et al. v. Canada (Attorney General) et al., 2013 MBQB 272, the court gives direction on the proper interpretation of provisions in Schedule 'D' to the Indian Residential Schools Settlement Agreement allowing claimants to access the courts for the limited purpose of evaluating claims for actual income loss. After outlining the context giving rise to the historic settlement agreement process, the court found it would be contrary to the intention of the parties to interpret the settlement in a way that detracts from access to justice. The court rejected the government's argument that those pursuing income loss claims in court would have to relinquish the benefits of the settlement agreement. Bifurcation of the proceedings respects the spirit of the agreement and "allows for the expertise of both the adjudicators and the courts to be accessed for the benefit of the process," said the court (para.30).

No Onus on Administrative Tribunals to Ensure Counsel Can Attend Hearing: MBQB

Insured Granted Summary Judgment in Arson Case: MBQB

The court granted summary judgment to the plaintiff in Ryan v. Canadian Farm Insurance Corp. et al, 2013 MBQB 271 and ordered the defendant insurance company to indemnify the plaintiff for the losses he incurred when his home was destroyed by a fire set by his girlfriend. The insurer denied coverage on the basis that the damage was caused by the intentional or criminal act of an insured under the policy (the insurer argued that the girlfriend, who was staying in the house while the insured was away for work, was "a person under 21 in the care of" the insured). After reviewing case law on the meaning of the phrase "in their care," the court concluded that, regardless of whether the phrase is ambiguous or unambiguous, this exclusion clause was clearly not intended to apply to a typical live-in relationship. The court also rejected the insurer's argument that summary judgment is inappropriate where there is no binding authority supporting the plaintiff's interpretation of the clause.

Recommended Reading

Mitigation in Personal Injury Cases - this Blaney McMurtry paper explores the law on the duty to mitigate and sets out practical advice on how to lay the groundwork on the issue and prosecute or defend such claims.

National class action settlements - enforceable if done properly - this Gowlings article discusses the importance of the Manitoba Court of Appeal decision in Meeking v. The Cash Store Inc. et al,. 2013 MBCA 81, summarized in the last Litigation eLaw.

Davis LLP has posted new papers on its website that examine the current law on two topical employment law issues: The Hostile Work Environment: An Expansion of Employer Liability? (Or, How Important is it to be Nice?) and Facebook, Twitter, YouTube: Using Social Media in Recruiting and Managing Employees.

The Ridiculous and the Sublime: Recent Trends in Employment Litigation that Every Litigator Needs to Know - this Practice Points paper highlights recent case law on restrictive covenants, infliction of mental suffering and the tort of invasion of privacy, and looks at how courts have dealt with moral and punitive damages claims.

Mandatory CPD Compliance Options: LSM

December is a busy month for program planners at the Law Society as lawyers search for opportunities to meet their mcpd obligations. In addition to offering programs on Strategic Legal Writing (December 6, pm only), Advanced Storytelling and Presentation Skills (December 13, all day), and Working with Immigrants and Newcomers to Canada (lunch program), the Law Society has scheduled several dvd replays of past popular programs. They include Powerful Witness Preparation (December 9), Evidence for Trial Lawyers (December 16), and Revisiting Younger's 10 Commandments: Classic Rules for Cross-Examination (December 17).

Leadership Skills Series: Tools, Techniques and Strategies

The Law Society has developed a series of continuing professional development sessions designed to help lawyers become leaders. The next session in the series, Resilience and Embracing Change, focuses on change management. It is designed to help lawyers manage the people side of change and support themselves and their staff through transitions. It takes place February 7, 2014, from 9:00 a.m. to 3:00 p.m. at the Law Society classroom. Presenters Judy Mathieson and Denise Zaporzan will also host upcoming sessions in the series: Generational Diversity: Maximize Performance Throughout Your Organization (March 14, 2014), and Presenting With Confidence (May 29, 2014). Register for more than one session and save money.

2014 MBA Mid-Winter Meeting

Mark your calendars for the Manitoba Bar Association's Mid-Winter Meeting, to be held January 23-25, 2014, at the Fairmont Hotel. Cpd sessions on Civil Trials - Procedures & Evidentiary Issues (I and II); Accommodation and Privacy Issues; A Roadmap for Statutory Interpretation; and Pre-Trial Case Conferences will be of particular interest to civil litigators.