Law Society Logo

eLaw -  Litigation Law Update
October 2014 - No. 66
ISSN 1916-3916
In This Issue
Guidance on Appellate Practice and Procedure: SCC
Civil Discovery Rules Apply in Abuse Registry Hearing: MBCA
Pelchat Test Applies In Certification Appeals: MBCA
Consumer Protection Legislation Trumps Private Arbitration: MBCA
Other Court of Appeal Decisions
Contribution Right Between Tortfeasors an Independent Action With Own Limitation: MBQB
Other QB Decisions
Court Notices
Recommended Reading
Pitblado Lectures
Continuing Professional Development: LSM
Guidance on Appellate Practice and Procedure: SCC

Two recent Supreme Court of Canada cases (one a criminal law decision) offer guidance on appellate practice and procedure for civil litigators:

Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, an appeal of a commercial arbitration decision involving contract interpretation, is notable both for changing the law on contractual interpretation and for clarifying the  appropriate standard of review to apply in appeals of commercial arbitration awards. The court abandoned the historical approach to interpretation of contracts as a pure question of law, concluding at para. 50 that "(c)ontractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix." The court went on to find that appellate intervention on contractual interpretation should be limited to those rare instances where the results can be expected to have an impact beyond the parties arguing the case. Finally, the court found at para. 106 that "(i)n the context of commercial arbitration, where appeals are restricted to questions of law, the standard of review will be reasonableness unless the question is one that would attract the correctness standard, such as constitutional questions or questions of law of central importance to the legal system as a whole and outside the adjudicator's expertise."  As noted in the following articles, the decision provides important guidance on appellate practice:

In R. v. Mian, 2014 SCC 54, the court outlines the considerations which should guide an appellate court in determining when it can disrupt the adversarial system and raise a ground of appeal of its own. As noted in the Stewart McKelvey article, A civil spin on R v Mian, the decision lists the do's and don'ts of raising new issues on appeal and is instructive both for appellate judges and counsel who are responding in such situations.

Civil Discovery Rules Apply in Abuse Registry Hearing: MBCA

The proceeding to object to entry on the Child Abuse Registry is a civil process, commenced and determined in a civil court on the civil burden of the balance of probabilities according to the court in D. L. v. Child and Family All Nations Coordinated Response Network, 2014 MBCA 86, and any analogy to criminal law and procedure for such proceedings is an error in principle. The court found that the motion court judge had misdirected himself when he refused the agency's request for production of electronic communications for use at an abuse registry hearing on the basis that the applicant had no positive duty to disclose given the analogy to a prosecution and the stigma of a registry record.
Pelchat Test Applies In Certification Appeals: MBCA

"The test for leave to appeal from a certification decision in this province is still the test arising from Pelchat and Soldier" according to the Court of Appeal in Meeking v. Cash Store Inc. et al., 2014 MBCA 69. Cases that warrant the attention of the court include those "which are significant, not just for the immediate case or to the individual litigants, but in determining similar disputes which are likely to arise in the future and are important to the public at large." (para. 14) In this case, and especially in light of the decisions in the same matter from three other provinces, the court found that the issues raised were not of sufficient importance and dismissed the appeal.

And, in a recent development pertaining to this case, the SCC appeal of Meeking v. Cash Store Inc. et al., 2013 MBCA 81, which was scheduled for hearing on January 12, 2015, has been adjourned sine die, for reasons explained in this Canadian Appeals Monitor article.
Consumer Protection Legislation Trumps Private Arbitration: MBCA

The Court of Queen's Bench has exclusive jurisdiction over actions under The Unconscionable Transactions Relief Act and such actions are not capable of being the subject of arbitration under Manitoba law (s.7(2)(c) of The Arbitration Act) according to the Court of Appeal in Briones v. National Money Mart Co. et al., 2014 MBCA 57. The court agreed with the motion judge's dismissal of Money Mart's motion for a stay of a proposed class action brought on the grounds that the loan recipients had all signed agreements requiring them to mediate or arbitrate their disputes. This Harper Grey LLP article discusses the decision.
Other Court of Appeal Decisions 
  • 2129752 Manitoba Ltd. v. Domo Gasoline Corp., 2014 MBCA 76 - despite finding errors in the lower court's decision to reopen the arbitration the court dismissed the applicaton for leave to appeal as it did not meet the high threshold for granting a second appeal in an arbitration matter. The court was confident that the appeal judge had not usurped the role of the arbitrator when he sent the matter back for the arbitrator to hear evidence concerning the designation clause in the parties' lease agreement.
     
  • Child and Family Services of Western Manitoba v. G. (S. W. R.) et al., 2014 MBCA 60 - in the course of deciding the preliminary jusrisdictional issue in this unsuccessful appeal of an order of permanent guardianship the court said: "Although s. 46(1) of the Court of Appeal Rules, Man. Reg. 555/88R is far from a model of clarity, it provides, in our view, authority, where provided by statute, as in the present case, for a panel of this court to hear an appeal from a chambers judge."
     
  • Gidda v. The Taxicab Board, 2014 MBCA 58 -  incorporating an adequacy of reasons analysis into the reasonableness test in the standard of review "is a slippery slope" according to the Court of Appeal, which dismissed the former driver's appeal of the Taxicab Board decision revoking his licence.
Contribution Right Between Tortfeasors an Independent Action With Own Limitation: MBQB

The court reversed the master's decision granting summary judgment to a third party in Ancast Industries Ltd. v Air Unlimited Inc. et al, 2014 MBQB 168, finding that the complexity of the case and the voluminous record made it unsuitable for summary judgment. In addition, on the issue of the proper application of The Limitation of Actions Act with respect to third party claims filed by defendants, the court found that the limitation running against a plaintiff does not bind a defendant seeking to bring a third party into the existing litigation:

The law in Manitoba is that The Limitations of Actions Act and The Tortfeasors and Contributory Negligence Act should not be interpreted in a way that forces defendants to start a fresh action and conduct a second trial against a third party if they file a third party action after the limitation period affecting the plaintiff's claim against the defendant has expired. (para. 47)
Other QB Decisions 
  • Dillabough v. Johnson et al., 2014 MBQB 186 - the court allowed evidence from discovery of a since deceased plaintiff to be read in at trial pursuant to Queen's Bench Rule 31.11(7) ane (8).
     
  • Rebillard v. Manitoba (A.G.) et al.,2014 MBQB 181 - the court agreed with the master's decision to strike the claim of a self-represented litigant, but granted leave to amend the claim to rectify the deficiencies and to bring the matter back on to determine whether the amended claim discloses a reasonable cause of action.
     
  • Ryan v. Canadian Farm Insurance Corp. et al., 2014 MBQB 178 - citing the case as an example of a situation where it was "a waste of the Master's time and considerable skill to have the matter re-litigated," the court affirmed the granting of summary judgment to an insured who had been denied coverage under his homeowner policy on the grounds that the damage was the result of arson by a person insured under the policy.

  • Manitoba Public Insurance Corporation v. Myerion et al., 2014 MBQB 159  - a seller who continued to exercise control over a vehicle under the terms of the conditional sales agreement was an owner under s.153(3) of The Highway Traffic Act and therefore vicariously liable for the negligence of the purchaser who was involved in an accident with the uninsured vehicle. The court found that under s.153(3) ownership is not dependant on possession.

  • In Pimicikamak et al v. Her Majesty The Queen in Right of Manitoba et al., 2014 MBQB 143, an unusual preliminary motion brought prior to an as yet unscheduled judicial review, the court reviews the relevant legal first principles that attach to Crown-Aboriginal consultations and judicial reviews generally, and considers the degree to which the evidentiary foundation and the record on a judicial review involving Crown-Aboriginal consultations can or should be supplemented. The court struck the entirety of 11 impugned affidavits that were not initially part of the consultation record, finding the evidence in them inadmissible pursuant to any of the otherwise exceptional justifications that would permit such extrinsic evidence on a judicial review.
Court Notices

The Court of Queen's Bench issued several notices over the last few months:
  •  Re: Endorsements - this notice discusses the use of endorsements (brief judgments containing only the bare bones of the decision and designed to address concerns about the timeliness of judgments and to facilitate access to justice). A sample endorsement sheet is attached.
       
  • Re: Judicial Review Applications (E-Filing) - pursuant to a pilot project effective September 2, 2014 the Court of Queen's Bench (General Division) is now accepting electronic filing of applications for judicial review.
     
  • Guardianship Applications - effective November 10, 2014 uncontested guardianship matters will be heard exclusively on the 2nd and 4th Monday of each month at 2:00 pm.
     
  • Dauphin Judicial Centre - effective January 7, 2015, regular sittings of the Court of Queen's Bench in the Dauphin Judicial Centre will take place the fourth week of every month that the court sits in that region.
     
  • New General Division Protection Order Hearing List (Winnipeg Centre) - applications to set aside or vary protection orders granted by a Judicial Justice of the Peace are set down on a new Protection Order Hearings List effective September 2, 2014.
Recommended Reading 
  • Unearthing the digital motherlode - Facebook can reveal more than surveillance according to the lawyer involved in Canada's first decision ordering disclosure of a plaintiff's Facebook usage history (Conrod v. Caverley, 2014 NSSC 35). This Lawyers Weekly article discusses both the decision and the use of Facebook and other social media sites in litigation.
     
  • Lawyers reminded about dominant purpose test for litigation privilege - this InHouse article identifies the steps to take to ensure investigations in preparation for litigation remain privileged.
     
  • Possibilities - this CBA Alternative Dispute Resolution section newsletter contains a couple of articles on the recent ABA dispute resolution conference and a link to information and materials from that conference.
      
  • Early intervention - this Lawyers Weekly article discusses the growing popularity of pre-trial "hot-tubbing" of expert witnesses.
Pitblado Lectures

The 2014 Isaac Pitblado Lectures, Accessing Justice: Beyond Barriers, will take place November 28-29, 2014 at the Fort Garry Hotel. Presenters will examine how access to justice demands may affect legal education, professional practice, regulation, and ethics; and make the business case for law firms to participate in access initiatives. Register by October 17 for the early bird registration rate.
Continuing Professional Development: LSM

There are many upcoming programming options to choose from at the Law Society:

Everyday Ethics Series - Register for multiple sessions in this 6 month series of lectures on ethics issues featuring Allan Fineblit, Q.C. and save money as you learn what you need to know to practise responsibly.

The Approximately 11th Annual Accommodation in the Workplace - don't miss the 11th installment of this popular program co-presented by the MBA and the LSM on October 24, 2014. Presenters will review such recent developments in accommodation law as accommodating family status and choosing the right forum for complaints.

Intellectual Property: Protection and Enforcement - John Myers will review the most common intellectual property issues lawyers encounter and discuss effective strategies for dealing with them at this lunch hour program on October 7. 2014. Register to attend in person at the Law Society or by tele-presentation.

Canadian Competitive Bidding Law - for Lawyers! - Presenter Robert Worthington will help you to understand the mysterious and evolving competitive bidding process and bring you up-to-date on new developments in this area. The October 30, 2014 full day program is sold out, but you can still register to attend the newly added October 29, 2014 program.

NEW Expert Opinion Evidence -  counsel of all experience levels encounter challenges when working with expert witnesses. Experienced litigators Steve Vincent and Jeff Baigrie will walk you through what you need to know about expert opinion evidence at this lunch hour program on February 20, 2015. Register now to ensure your spot.
 You are receiving this email in accordance with the Law Society's mandate to uphold and protect the public interest in the delivery of legal services with competence, integrity and independence and to further your opportunities to ensure compliance with the mandatory continuing professional development requirements set out in Law Society Rule 2.81.1(8).