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eLaw - Litigation Update
February 2014 - No. 63
ISSN 1916-3932
In This Issue
Supreme Court Clarifies Tort of Causing Loss by Unlawful Means
Ontario's Rule 20 More Than a Means to Weed Out Unmeritorious Claims: SCC
Commission Holds the Interpretative Upper Hand: SCC
Recent MBQB Decisions
Supreme Court Rules Amended
Recommended Reading
Modernizing the Law of Contribution Among Tortfeasors: MLRC
Leadership Skills Series: Tools, Techniques and Strategies
Perfecting the Twenty-First Century Law Practice

Supreme Court Clarifies Tort of Causing Loss by Unlawful Means

 

The tort of causing loss by unlawful means should be kept within narrow bounds according to the Supreme Court in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, "in light of the history and rationale of the tort and taking into account where it fits in the broader scheme of modern tort liability. It will be available in three-party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff." (para. 5) In this case, the court found no liability on the part of the dissenting family member whose actions in thwarting the sale of an apartment building to outsiders caused a $400,000 loss, since his conduct would not have been actionable by the third party had the third party suffered the loss. The court upheld the finding of the trial judge that the dissenting member was otherwise liable, however, for breaching his fiduciary duty as a director of the family companies. The court also rejected the 'principled exceptions' approach to the unlawfulness requirement, commenting that:

 

Providing trial judges with "wiggle room" to deal "adequately" with cases that do not fall within the scope of the tort's liability simply confers an unstructured judicial discretion to do what appears to the particular judge to be just in the particular circumstances. This to me is the antithesis of a principled approach and, if adopted, it would largely undercut the efforts to give a certain and narrow ambit to the tort. Allowing for exceptions without clearly outlining the principles to guide the development of the law invites the danger of ad hoc decisions tailored to achieve a vision of commercial morality - precisely the danger which the unlawful means requirement is meant to avoid. (para.85)

Ontario's Rule 20 More Than a Means to Weed Out Unmeritorious Claims: SCC

 

"Ensuring access to justice is the greatest challenge to the rule of law in Canada today" said the court in Hryniak v. Mauldin, 2014 SCC 7, and "a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system" (paras. 1 and 2). Since summary judgments provide an opportunity to shift "the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case," the court concluded that "summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims." Although the court was interpreting Ontario's Rule 20 - which was amended in 2010 to broaden the test for summary judgment from asking whether the case presents "a genuine issue for trial" (Manitoba's Rule 20 wording) to asking whether there is a "genuine issue requiring a trial" - its strong endorsement of the summary judgment process will not go unnoticed in other jurisdictions. The paper, Summary Judgment Has its Day in Court, written following the Ontario Court of Appeal decision in the Hryniak case, compares some of the different summary judgment rules in Canada and gives a context for how the SCC decision will apply in jurisdictions beyond Ontario. The following articles comment on the SCC decision:

Commission Holds the Interpretative Upper Hand: SCC

 

The Supreme Court's decision in McLean v. British Columbia (Securities Commission), 2013 SCC 67, favouring the BC Securities Commission's interpretation of the limitation period for secondary enforcement proceedings, reaffirms the court's view that deference is owed to administrative tribunals interpreting their own legislation. The court found reasonableness, not correctness, to be the appropriate standard of review and said the court would "defer to any reasonable interpretation adopted by an administrative decision maker, even if other reasonable interpretations may exist." (para.40) This Canadian Appeals Monitor post discusses the implications of the decision for the evolution of Canadian administrative law.

Recent MBQB Decisions

 

Moss v. Crane et al, 2014 MBQB 7 - the court dismisses a self-represented litigant`s professional negligence claim against his former lawyer and grants the lawyer`s summary judgment motion.

 

Vercaigne Farms Ltd. v. ET Works, L.L.C. et al., 2013 MBQB 301 - the court grants the plaintiff's motion to amend its statement of claim to particularize defects in the design and manufacture of a crop sprayer and allege a failure to warn. The court rejected the defendants' arguments that the claim was statute barred and that the reference to the word "defect" in the proposed amendment created a new cause of action. The court also accepted the plaintiff's argument that, while the 'failure to warn' amendment was statute barred, it should be allowed due to the special circumstance of the defendant having issued a service update concerning the cause of the sprayer failure after they had been put on notice of the plaintiff's claim.

 

Bobelyak v. City of Winnipeg et al., 2014 MBQB 5 - the court orders summary judgment in favour of the plaintiff landowners whose property was damaged when water pipes on their adjoining property burst following the City`s direction to terminate that property`s heat supply in anticipation of demolition.

 

Quantum Graphics & Consulting Inc. v. McCorrister Media Inc., 2014 MBQB 3 - the court granted summary judgment to the plaintiff in this claim for payment for personal services, but not interest, since there was no evidence that the parities had ever addressed their minds to the payment or rate of interest and the notice on the invoices was insufficient in and of itself to create a contract.

 

Viceversa Developments Inc. v. City of Winnipeg, 2013 MBQB 312 - the court dismissed the plaintiff developer`s application for a permanent injunction and damages for trespass on land (on either side of the rail bridge crossing the Assiniboine River) that the public had used as roadways and/or sidewalks for a significant period of time and the City had maintained with public funds.

 

Albionex (Overseas) Limited et al. v. ConAgra Limited et al., 2013 MBQB 310 - the court ordered the CWB to pay above-tariff costs of $850,000 (including a $150,000 penalty for refusing a settlement offer) in the main action in this case, finding that an elevated cost award was clearly appropriate given the length and complexity of the case, the considerable expert evidence, and the voluminous written arguments.  

 

Nerbas et al v. The Queen in Right of the Province of Manitoba et al, 2013 MBQB 284 - the court reviews how Manitoba`s law regulating bifurcation, the splitting of a trial into two separate trials (on liability and damages), was affected by the Court of Appeal decision in O'Brien v. Tyrone Enterprises Ltd. et al., 2012 MBCA 3.

Supreme Court Rules Amended

 

The Supreme Court of Canada has amended its rules of practice. The Rules Amending the Rules of the Supreme Court of Canada, registered as SOR/2013-175, were published in Part II of the Canada Gazette on October 23, 2013. They came into force January 1, 2014. As this notice to the profession indicates, the amendments make significant changes to the court's practice, especially in the area of electronic documents. Details of the changes can be found in the guide to the amendments and in the guidelines for preparing documents.

Recommended Reading

 

These publications may interest civil litigators:

  • Social Media Evidence and Litigation (Part One) - this post from The Stream is the first in a series of articles concerning technological competence and lawyering. Among other things, it offers advice on dealing with the "staggering" increase in use of social media evidence in court cases and the professional ethics issues raised by gathering such evidence and advising clients on their use of social media.

Modernizing the Law of Contribution Among Tortfeasors: MLRC

 

The Manitoba Law Reform Commission released its final report Contributory Fault: The Tortfeasors and Contributory Negligence Act on December 13, 2013. The report sets out 25 recommendations to modernize the law of contribution among tortfeasors and the rules relating to contributory negligence. It recommends the enactment of a new statute, The Contributory Fault Act, which would define the term "fault", abolish the last clear chance doctrine, and extend the principles of contributory fault to intentional, vicarious, and strict liability torts and breach of contract. The report also suggests clarifying the rules regarding contribution among tortfeasors and limitation periods.

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.

Perfecting the Twenty-First Century Law Practice

 

Don't miss the opportunity to attend a full day program with practice management guru Jim Calloway, Director of the Oklahoma Bar Association Management Assistance Program and a noted expert in law office management, technology, ethics, and legal business operations. Topics to be covered include: the future of law practice, client satisfaction, document assembly and alternative billing, intro to ipad for lawyers, and 60 hot tips in 60 minutes. The program takes place March 7, 2014 at the Law Society classroom. Register by February 21, 2014 to take advantage of the early bird rate.  

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