Civil Fraud Appeal Dismissed: MBCA

The Court of Appeal dismissed the appeal in Seaver v. Winnipeg Regional Health Authority Inc. et al., 2014 MBCA 55, ending the negligence and civil fraud action against a doctor whose misstatements the plaintiff patient (and later his estate) argued led Manitoba Health to refuse to reimburse him for medical treatment he underwent in Mexico without obtaining prior approval.

A consumer class action to recover payday loan fees from Money Mart will proceed following the Court of Appeal's decision in Briones v. National Money Mart Co. et al., 2014 MBCA 57 not to stay the court action in favour of arbitration. The court found that the Court of Queen's Bench has exclusive jurisdiction over actions under The Unconscionable Transactions Relief Act to the exclusion of arbitration and notwithstanding any contract to the contrary agreeing to settle disputes by arbitration.  

Mistakenly Declining Jurisdiction Not the Same as Mistakenly Denying Application for Leave on its Merits: MBCA

In I-NetLink Incorporated et al. v. Broadband Communications North Inc., 2014 MBCA 38, the court declined to extend the reach of the general rule that no appeal lies from a decision to deny or grant leave under The Arbitration Act unless the tribunal mistakenly declined jurisdiction to the situation where the court mistakenly denied an application for leave on its merits. While the long standing rule imposing finality on litigation can cause unfairness, it is supported on a principled basis according to the court and should not be extended except by a change in the legislation.

Recent QB Decisions

Man-Shield Construction Inc. et al. v. Renaissance Station Inc. et al., 2014 MBQB 101 - the court sets out the defining principles of privilege (solicitor-client, litigation, common interest, and settlement privilege) and how those principles apply in settlement litigation and, in particular, to certain redacted emails at issue in the case.

Peguis First Nation et al v. Canada (Attorney General), 2014 MBQB 98 - the court struck out Peguis First Nation's 52 page re-amended statement of claim for "a litany of relief based upon water issues in and around the(ir) reserve lands," finding that it did not comply with any of the requirements of Rule 25.06(1). Despite finding that the claim was "...prolix, repetitious, and in spite of its verbosity, non-specific" (para.32), the court gave the plaintiffs another chance to "get it right."

Brentwood Plastics Inc. v Topsyn Flexible Packaging Ltd., 2014 MBQB 97 - the court dismissed an application for binding arbitration where the applicant was relying on a written arbitration clause it had unilaterally inserted on its invoices long after negotiations between the parties had concluded. The parties had never discussed arbitration during their negotiations and the court found there was no consensus ad idem as to arbitration that was subsequently reduced to a written agreement.

Millen et al v. Manitoba Hydro-Electric Board et al, 2014 MBQB 88 - the court allowed the plaintiffs to amend their pleadings to refocus the claim and to include an "overview" of the case, but rejected their bid to add the government of Manitoba as a party. Among other things, the court found that the rules of pleading must be applied with some flexibility in constitutional claims, as it is difficult to articulate such claims "without appearing to be pleading evidence and statements or conclusions of law." (paras. 32-36)

Sunnyday Heating and Air Conditioning Ltd. v. 6125328 Manitoba Ltd. et al, 2014 MBQB 80 - the master refused to set aside default judgment on a claim for restaurant renovations because the defendant restaurant owners (who filed no statement of defence and alleged no material facts in support of their claim that they had been overbilled for unsatisfactory work) did not put forth a meritorious defence to satisfy the court that they had an arguable case.

Legislative Update

Bill 64, The Court of Queen's Bench Small Claims Practices Amendment Act, received royal assent on June 12, 2014, and will come into force on proclamation. Key amendments are summarised in the explanatory note. They include clarification on appeals and on which matters must be decided by a judge and specify that evidence given at a hearing must be recorded.

Bill 54, The Labour Relations Amendment Act (Time Lines for Labour Board Decisions and Hearings), received royal assent and came into force June 12, 2014. As the explanatory note indicates, it "requires the Manitoba Labour Board to make regulations setting out the time periods within which it will make decisions following the hearing of a complaint, application or referral to the Board. In the case of applications for union certification or decertification, the Board must also make regulations setting out the time period within which it will hold a hearing."

Bill 65, The Workers Compensation Amendment Act, received royal assent June 12, 2014 and will come into force on proclamation. It broadens claims suppression offences and proposes substantial fine increases for offences under the Act (the ceiling for worker fines would increase to $5000 and the ceiling for employer fines would increase to $50,000). The bill also introduces several injury prevention strategies which are discussed in the explanatory note.

Rule 20 Amendment in Force

Rule 20 has been amended by Manitoba regulation 54/2014 to provide that summary judgment motions shall be heard by a judge, rather than a master, in the first instance. The amendment came into effect June 1, 2014.

Recommended Reading

Civil Writes - the May 2014 edition of the CBA's National Civil Litigation section newsletter contains articles on the Hryniak decision, the useless business tort, and confidentiality clauses in mediation following the Union Carbide decision.  

Underwritings - this edition of the CBA's Insurance Law section newsletter contains articles on insurers' duty to defend, relief from forfeiture, proportionality, and apportionment of fault.

Much is being written about the "culture shift" toward greater court accessibility following the Supreme Court decision in Hryniak. See, for example, these two articles from the Canadian Appeals Monitor blog: Summary Judgment - The Cultural Shift Has Started, and Simpler is Better.

When discovery gets personal - this Lawyers Weekly articles discusses the impact of privacy legislation on litigation, particularly whether an organization may, without offending privacy legislation, provide the names and contact information of former employees in the course of discoveries.

Court certifies class action under tort of intrusion upon seclusion - this Law Times article discusses a recent Nova Scotia Superior Court decision certifying a class action against a bank under the new Jones v. Tsige tort of intrusion upon seclusion.

But My Broker Never Told Me The Jewels Weren't Covered! - this Gowlings article discusses an Ontario Superior Court decision in which an insurance broker who failed to take any steps to assess his new client's foreseeable risks and advise as to suitable coverage (other than to send them a generic renewal letter), was found to be negligent.

Personal Injury Law: Cost proportionality not always kind to injured plaintiffs - the author of this Law Times article argues that while rules concerning offers to settle are useful they may constrain access to justice for some personal injury claimants.

Save the Date

Register now to take advantage of early bird prices or group discounts on these fall CPD programs at the Law Society:

Making Great and Lasting First Impressions - discover simple ways to enhance your image and connect with others at this lunch hour webinar on September 23, 2014. Group registrants receive a discount.  

Perfecting the Twenty-First Century Law Practice - Law office management expert Jim Calloway, Director of the Oklahoma Bar Association Management Assistance Program, will be in town October 3, 2014 to present this all day program on the many ways to improve your practice. Register now to take advantage of the early bird rate.

June MBA Programs

Small Claims Court Primer - The Young Lawyers' section will host this lunch program to be held June 30, 2014 at the Law Society classroom. Speakers Karen Poetker and Matthew Maslanka will discuss how to prepare and file a small claim and bring it before a hearing officer.

The New Social Security Tribunal - The Administrative Law section will host this webinar presented by the general counsel of the Social Security Tribunal on June 26, 2014. The tribunal has been hearing appeals in relation to the Employment Insurance Act, the Canada Pension Plan and the Old Age Security Act since April, 2013. The presenter will discuss the new system and the changes made in April 2014 relating to first level CPP and OASA appeals.