In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the Supreme Court confirmed there is a threshold admissibility requirement with respect to the independence and impartiality of expert evidence. In the court’s view, “expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence” and if “they do not meet this threshold requirement, their evidence should not be admitted. Once this threshold is met, however, concerns about an expert witness’s independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence.” (para.10) These articles discuss the details of the decision: Guiding The Gatekeeper: The SCC Clarifies The Framework For Admitting Expert Evidence – Stewart McKelvey SCC Clarifies Law On Admissibility Of Expert Evidence - Dentons Supreme Court Of Canada Clarifies Test For Admissibility Of Expert Evidence – Norton Rose Fulbright

The Supreme Court clarified the test for civil contempt of court in Carey v. Laiken, 2015 SCC 17 and restored a finding that a lawyer who complied with a client’s instruction to return trust funds subject to a Mareva injunction was in contempt. The decision confirms that courts will deal seriously with breaches of court orders. The lawyer argued that the funds were beneficially owned by the client and thus had not been “transferred” within the meaning of the order, that the fact that they were in a trust account attracted solicitor client privilege, and that he was professionally obliged to follow the client’s instructions to return them. The court disagreed, finding that the lawyer’s “assumed duty to guard solicitor-client privilege did not conflict with his duty to comply with the order. To fulfill both, he needed only to leave the funds in his trust account once they had been deposited there. In doing so, he would have respected any obligations arising from solicitor-client privilege to maintain the confidentiality of the funds and he would have abided by the terms of the Mareva order not to transfer funds held in trust….” (para. 56)

In Samborski Garden Supplies Ltd. v. MacDonald (Rural Municipality), 2015 MBCA 53, the court rejected the applicant’s argument that it had been severely prejudiced by the dismissal of its appeal on an issue raised by the court (whether a conditional use order lapsed because it was discontinued under s.54 of The Planning Act). The court noted that counsel received notice of the court’s concern prior to the hearing, had opportunity to address it by written and oral submissions, and did not object to this process at the hearing. In finding that the applicant had not met its heavy burden of establishing special or unusual circumstances to justify a rehearing of the appeal the court concluded: A motion for a rehearing is not an opportunity, with the benefit of hindsight, to revisit the conduct of an appeal by experienced counsel… To allow a rehearing in such circumstances would too quickly sacrifice the important principle of finality in litigation which is central to the proper administration of justice (para. 24).

The court upheld a summary judgment ordering payment of legal fees and double costs in Pitblado LLP v. Sidhu et al., 2015 MBCA 52, dismissing the appellants’ argument that the motion judge should have recused himself since he was also the case conference judge appointed under Queen’s Bench Rule 20A. Existing case law does not support the argument that a summary motion is in the nature of a trial, said the court, and, since the underlying rationale of the expedited actions rule is to secure the most expeditious and least expensive determination, it must be liberally construed to achieve that goal.

“(C)ontext is everything in determining whether a personal representative can have public interest standing to advance a Charter claim on a motion to strike” according to the court in Grant v. Winnipeg Regional Health Authority et al., 2015 MBCA 44. In this case, the court granted public interest standing to Brian Sinclair’s sister to advance a Charter claim relating to his death at the Health Sciences Centre, finding that doing so would “clarify the serious issue of whether redress for a Charter violation ends on death when the alleged breach contributed to the death.” The court also found that the motion judge erred in dismissing the plaintiff’s claim for negligent disclosure on the grounds that there was no duty of care owed to the plaintiff in her personal capacity. It is an open question, said the court, “(w)hether family members, who claim to have suffered as a result of a breach of a privacy interest of another member, are in sufficient proximity to the victim in a tort context and are therefore able to advance a claim in their own right.” (para. 127) The matter was referred back to the motion court with leave to the plaintiff to amend the pleadings to reflect a cause of action based upon a breach of confidence or intrusion upon seclusion or publicity.

A claim for damages for nuisance and trespass to trees damaged by an adjacent property owner’s use of the chemical Roundup was out of time according to the court in Noralta Northern Alberta Trees Inc. et al. v. Plato Enterprises (Alberta) Ltd. et al., 2015 MBQB 73. At issue was whether the trees were chattels, subject to a three year limitation period, or fixtures, subject to a six year limitation. Applying four criteria to assess whether the trees were intended to form part of the realty the court found it was clear that the trees were grown for commercial purposes and were never intended to be permanently attached to the land.

The Court of Appeal issued a notice on May 28, 2015 indicating that, effective June 1, 2015, the Court Registry would no longer circulate the now discontinued individualized Notice of Filing Timeline document, developed to help counsel transition to the 2010 Civil Rule amendments. A detailed summary of the timelines for filing and serving of documents is now available on the court’s website. The Court of Queen’s Bench issued a notice on May 15, 2015 concerning the hearing of civil motions during the summer court recess, which commences June 29 and ends September 7, 2015.

The court clarifies the practice to be followed where a plaintiff is moving for judgment after default has been noted in an expedited action in a Practice Direction issued May 27, 2015 and effective immediately.

Advocates’ Society offers way forward on improving litigation climate – this Legal Feeds post provides a description of and link to the Advocates’ Societies task force document on Best Practices for Civil Trials. Techniques in Crossing the Scientific Witness – this Gowlings paper examines three techniques used in cross-examining expert scientific witnesses and also touches on chain of custody issues for evidence tested by experts. Did the Supreme Court clarify or muddy the duty of good faith? – this Lexpert article discusses the “operational consequences” of the recent SCC decision in Bhasin, which has arguably muddied the waters on the duty of good faith in Canadian contract law. Intellectual Property: Grasping the Nuances in Complex Patent Litigation – those who engage in patent litigation will want to review this Gowlings paper, a primer on issues arising in this complex area. Streamlined litigation – this Lawyers Weekly article discusses the increasing use of ADR processes to resolve interlocutory motions and disputes outside the court and how this hybrid approach can streamline litigation. The Civil Jury Trial Cheatsheet – this Slaw post highlights the Ontario Superior Court decision in Chandra v CBC, 2015 ONSC 2980, which “provides an excellent, comprehensive, summary of the law on civil jury trials including the law pertaining to the fundamental right to a jury trial and a detailed discussion of the law pertaining to a judge’s discretion to strike a jury notice.”

The July and August CPD Replay schedules are now posted on the LSM website. If you missed attending one of these popular programs the first time around replays are a cost effective way to catch up on your CPD hours during the slower paced summer months. Find a program and date that works for you, with a wide variety of programming topics offered on 9 separate dates. Don't see a time that fits your schedule? These DVDs are available for purchase and can be viewed at your own convenience.