The MBCA dismissed the appeal by the owners of the St. Charles Hotel from a dismissal of their application to remove the hotel’s historical building designation in St. Charles Enterprises Ltd. et al. v. Winnipeg (City), 2015 MBCA 20. The court found that the application judge was correct in holding that the City’s obligation to file notice of the designation on title pursuant to s.157.1(4)(b) of The City of Winnipeg Charter was discretionary, not mandatory. In the court’s view, “the amendments brought by s. 157.1 encompass the larger public purpose of the preservation of historical buildings and not just the mechanism by which notice should be registered with the WLTO.” (para. 6) In exercising their discretion courts must consider the extent of the non-compliance and the prejudice suffered. In this case the City's delay was insignificant and the owners had suffered no prejudice (previous owners had sought the designation).

Self-represented litigants who occupy the “no man’s land” of situational incompetency (i.e. being incompetent to understand and manage the particular litigation, but not disabled within the meaning of the Queen’s Bench Rules) present compelling access to justice challenges for the court, as illustrated in Klippenstein v. Manitoba Ombudsman, 2015 MBCA 15. The case is the latest in a series of appeals brought by the same self-represented litigant who was found (by a court-appointed psychiatrist) to be pursuing his case on the basis of a “distorted or paranoid view of reality.” He moved to have a litigation guardian appointed given his disability. The court noted that there must be clear evidence to rebut the presumption of competence and a “court should not be too quick to succumb to the draw of paternalism or the practical advantage it may achieve to the conduct of litigation.” (para. 46) In this case, the court was not satisfied that there was clear evidence that the plaintiff was incompetent to represent himself, but found that his delusions made it inappropriate to allow him to continue without being given an opportunity to seek professional assistance. The three appeals were stayed.

Loewen v. Manitoba Teachers’ Society, 2015 MBCA 13 is a must-read decision for two reasons: first, it tackles the “thorny, yet always fascinating question of the appropriate standard” when reviewing decisions made by administrative decision-makers (summarizing the SCC jurisprudence clearly favouring a reasonableness standard but acknowledging that that standard is not set in stone given the correctness categories identified in Dunsmuir); and second, it stresses the importance of context in determining both the applicable standard, and whether the standard was met (i.e. whether the decision-maker took into account or responded to the nature of the administrative scheme, the facts and the law, and other reasonable factors). In this case, the court found that the second arbitrator’s decision that he was not bound by an earlier arbitrator’s decision because it was incorrect and was not final, was itself both incorrect and unreasonable. The court characterized the protracted dispute (concerning whether the MTS disability plan was entitled to subrogation or offset of an employee’s MPIC settlement) as “a good example of the reason our legal system puts such an emphasis on finality to litigation and proportionality” and stressed that “(d)uplicative litigation, potentially inconsistent results, undue costs and inconclusive proceedings are to be avoided.” (para. 111)

“Probably no decision is more discretionary than a decision to grant or deny an adjournment” said the court in Flanders v. Horse Racing Commission (Manitoba), 2015 MBCA 12, which upheld the reviewing judge’s decision that the Manitoba Horse Racing Commission had not breached the applicant’s right to natural justice by refusing to adjourn his hearing. While the appeal court expressed surprise that the MHRC set the date peremptorily and without consultation, it found that it remained open to the judge to conclude that the applicant had been offered alternative dates and chose not to participate.

Moffatt v. Canadian National Railway et al., 2015 MBQB 26 – the court dismissed the plaintiff’s action seeking enhanced benefits under her deceased husband’s employee pension plan (she argued that additional benefits should be paid since his suicide was directly related to the work accident he suffered two years earlier). The court found she was not entitled to the enhanced benefits because the death was not accidental, it did not occur within one year of the accident as required, and the Plan specifically excluded suicide (while sane or insane). Dmytriw et al. v. Odim et al., 2015 MBQB 24 – this voir dire was conducted to determine the admissibility of proposed plaintiff expert evidence in a medical malpractice claim. The court excluded all three proposed reports (the Manitoba Pediatric Cardiac Surgery Inquest report and two reports by Dr. Soder: his inquest report and his report concerning the infant plaintiff), finding issues with probative value, relevance, qualifications to give expert opinion evidence, and the cost benefit analysis. DirectCash ATM Processing Partnership et al. v. Rockwood Motor Inn,  2015 MBQB 15 – a hotel that failed to give three months’ notice before terminating an ATM service triggered an automatic five year renewal clause under the ATM contract and was ordered to pay liquidated damages for the full renewal term. Anderson et al v. Manitoba et al, 2014 MBQB 255 – the court dismissed the application by members of four First Nations to certify a class action against the Government of Manitoba, the Attorney General for Canada, and The Manitoba Association of Native Firefighters Inc. for flooding, business and evacuation claims arising from the 2011 flood. The court found that none of the claims met the criteria outlined in s. 4 of The Class Proceedings Act which, the court found, “are intended to be a balance between plaintiffs who wish to mount a global attack on an institutional defendant and the right of such a defendant to fairly defend itself.” (para. 212)

In Moore v. Getahun, 2015 ONCA 55, the Ontario Court of Appeal overturned a lower court decision concerning the propriety of counsel reviewing draft expert reports that ”caused considerable concern in the legal profession and in the community of expert witnesses” (para. 46). The appeal court found that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.   Here are a few of the many articles discussing the decision:   Ontario Court Of Appeal Confirms Privilege Over Counsel And Expert Communications - Canadian Appeals Monitor ONCA Clears Up the Law on Expert Reports - Slaw Lawyers Can Help Shape Expert Reports: Moore v Getahun – The Court Moore v. Getahun - Court Of Appeal Clarifies Rules Regarding Expert Witnesses – Miller Thomson Talk to an Expert: The Preparation and Use of Expert Reports in Litigation – Torkin Manes

These recent Court of Queen’s Bench notices may be of interest to civil litigators: Amendments to Court of Queen’s Bench Rules – this notice details the changes to Rule 76 (Small Claims), made to accommodate revisions to The Court of Queen’s Bench Small Claims Practices Act which came into force January 1, 2015. See the full text of the rule amendments and forms in Manitoba Regulation 258/2014. Change in Hearing Location – this notice indicates that effective March 2, 2015 small claims will no longer be heard in Beausejour. Amendments to Rule 70 – this notice describes the Rule 70 amendments establishing the procedures and forms for applications under the federal Family Homes on Reserves and Matrimonial Interests or Rights Act, S.C. 2013, c. 20, for without notice interim orders of exclusive occupation of family homes on reserves. General Division Protection Order Hearings List – this notice describes the practice to be followed when setting matters down on the new Protection Order Hearings List. The notice reminds counsel with matters on the list to come prepared to address resolution of the matter or to engage in a meaningful discussion as to how to narrow the issues for hearing.

Glass 1/2 Full (Little Things that Cause Big Problems) - The final session in the Everyday Ethics lecture series featuring Allan Fineblit, Q.C takes place March 11, 2015 at the Law Society classroom.  Register now to attend in person or by teleconference. Leading communications consultant Steve Hughes is presenting two practical programs at the Law Society this spring: Influence: The Art & Science of Changing Minds – learn how you how to influence clients, colleagues, and opposing counsel to see things your way without resorting to manipulation at this half-day program on April 16, 2015. Dynamic Presentation Skills for Lawyers - communicating effectively to a wide array of audiences is a skill you will use throughout your legal career. Learn how to craft your presentations for maximum impact and what delivery techniques work at this morning session on April 17, 2015. Lawyers and Governing Boards: Avoiding Common Pitfalls – Presenters Bruce King, Doug Finkbeiner, QC, and Tana Christianson will discuss the risks and responsibilities that come with board directorships and suggest strategies to minimize potential liabilities at this lunch program on June 10, 2015. Register now to attend in person or by tele-presentation.