The Supreme Court’s decision in Chevron Corp. v. Yaiguaje, 2015 SCC 42, confirming that an Ontario court has jurisdiction to enforce an Ecuadorian court judgment against Chevron, will have “significant cross-border implications” according to commentators, “as enforcement in Canada can now be pursued against foreign companies and their Canadian affiliates even if neither party to the original dispute has a “real and substantial” connection to Canada.” According to the court, the only prerequisite to recognize and enforce a foreign judgment “is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, or that the traditional bases of jurisdiction were satisfied.” (para. 27) The court also found no merit to Chevron’s assertion that the only way a real and substantial connection with the enforcing forum can be achieved is through presence or assets in the jurisdiction. “In today’s globalized world and electronic age, to require that a judgment creditor wait until the foreign debtor is present or has assets in the province before a court can find that it has jurisdiction in recognition and enforcement proceedings would be to turn a blind eye to current economic reality,” according to the court at para. 57. For a snapshot of the many and varying opinions on the import of the case see: David beats Goliath? Not quite. Jurisdictional analyses in Chevron Corp v Yaiguaje and Chevron v Yaiguaje: Small Step for the Plaintiffs, (Relatively) Small Step for Mankind – both from The Court Chevron Canada Tattooed in US $9.51 Billion Environmental Damages Action –TDS LLP Chevron Corp. v Yaiguaje: Judicial Activism and Cross Border Complexity – Ablawg SCC sees legal pipeline reaching from Ecuador to here for Chevron – Lawyers Weekly SCC Decision Highlights Increased Litigation Risk For Canadian Companies For Misdeeds Of Their Foreign Affiliates – Canadian Appeals Monitor No ‘real connection’ required to pursue foreign awards in Canada: SCC – Legal Feeds

While Reibl v. Hughes, [1980] 2 SCR 880 is still the leading authority on lack of informed consent and medical negligence, subsequent appellate decisions have broadened its impact by expanding a physician’s duty to disclose beyond “material risks”, according to the Manitoba Court of Appeal in Laing v. Sekundiak, 2015 MBCA 72 (para. 79). The court allowed the applicant’s appeal of the dismissal of her negligence claim against her orthopaedic surgeon on the narrow issue of informed consent, finding that the application judge made errors in principle in his articulation and analysis of the law on this issue. As a result, he considered irrelevant factors and failed to take into account the evidence pertaining to the central issue of the surgeon’s use of an unlicensed and unproven hip replacement system without the patient’s informed consent, said the court. This Lawyers Weekly article discusses the decision.

Morry et al v Janzen et al, 2015 MBCA 86 – the court dismissed the homeowners’ appeal of the dismissal of their application to extend the limitation period to sue a contractor for structural damage to their home built in 1994. The court found that the application judge had not erred in concluding that the applicants, given their life experience and education, ought to have known that they had a reasonable prospect of an action against the builder (and that the action would result in damages sufficient to justify bringing it) by the time they received an engineer’s report confirming that remediation was required. Actual knowledge that defective workmanship caused the damage was not necessary. Loeppky et al v Taylor McCaffrey LLP, 2015 MBCA 83 – the court notes that appeals of interlocutory procedural orders primarily concerned with management of the civil litigation process are rarely successful and comments on the wisdom of bringing them. It dismissed the plaintiffs' appeal of a discretionary order that the defendants’ motions for summary judgment would be heard before examinations for discovery. Santarsieri (Michele) Inc. et al. v. Manitoba (Minister of Finance), 2015 MBCA 71 - an appeal to the Court of Queen’s Bench from a decision of the Tax Appeals Commission is not a hearing de novo and should be based on the record that was before the commission. The court found there was a presumption that the appeal was to proceed on the record, in addition to strong policy reasons favouring the expertise of the commission and the need for an efficient process. Fresno Pacific University Foundation v. Grabski et al., 2015 MBCA 70 – the court directed a new hearing to determine whether an art dealer was in contempt of a court order to return 9,737 pieces of artwork. The dealer claimed he had tried but was unable to find the art, but the court found that he had not met his evidentiary burden to show that he had, in good faith and with due diligence, taken reasonable steps to comply with the order.

A doctor who failed to diagnose and treat a hydrocephalic condition in an infant breached his duty of care and was negligent, according to the court in Timlick v. Heywood, 2015 MBQB 148. However, the plaintiff was unable to prove a causal connection between the doctor’s negligence and the neurological and cognitive symptoms the plaintiff experienced in the 24 years before his condition was eventually diagnosed. The court rejected the plaintiff’s argument that he should not have to prove factual “but for” causation, since the doctor’s negligence in failing to diagnose made it difficult to establish anything more than material contribution to risk of injury. The court disallowed all but a general damages claim, and awarded $25,000 to compensate for the delayed diagnosis which had prevented the plaintiff from seeking surgery to alleviate his symptoms.

The Federal Court of Appeal and Federal Court Rules Committee issued a discussion paper on its Review of the Rules on Costs on October 5, 2015. The Committee welcomes feedback on its research and recommendations by November 23, 2015. The court also issued two new notices: Case management: Increased Proportionality in Complex Litigation before the Federal Court and Publication of Decisions of Precedential Value. The former deals with recommendations for improving case management of actions in the court and the latter concerns the assigning of precedential value and neutral citations and online access to court decisions.

ReelTime CLE Seminars are back by popular demand on November 23-24, 2015, with a series of sessions featuring movies raising common ethical and professional dilemmas faced by lawyers, and the corresponding toll they can take on a lawyer’s mental health and physical well-being: Wrestling with Ethical Dilemmas (on juggling the demands of practice); Don’t Let the Jokers Drive you Batty! (on dealing with difficult people); Practising “Dirt Law” and Keeping your Nose Clean (on the stresses of practising real estate law); and Wellness in Reel Life (practical guidance on self-care). Register for two or more sessions and save. The Aboriginal Law Series continues on December 8, 2015 with a primer on Understanding Treaties. Panelists will explore the current legal framework around treaty making and treaty interpretation in Canada, navigating between pre-confederation and post-confederation treaties, modern treaties and those treaties currently being negotiated. Register now to attend in person or by tele-presentation. The Law Society is bringing back popular presenter Martin Latz for two limited enrollment programs in December: GAIN THE EDGE!® Negotiation Strategies for Lawyers on December 3, 2015 and Advanced Negotiation Strategies for Lawyers on December 4, 2015. Register before October 30, 2015 to take advantage of the early bird discount. Self-Represented Litigants Series - Civil Litigation and Insurance Matters – the self-represented litigants series continues on February 3, 2016 with a session aimed at civil litigators. Learn the do’s and don’ts of dealing with self-represented litigants from experienced counsel and hear the court’s perspective on SLRs from Chief Justice Joyal.

The ADR Institute of Manitoba is presenting a 40-hour National Introductory Arbitration Course in Winnipeg, from November 23-27, 2015. The comprehensive program will cover arbitration process and applications, conducting arbitration hearings, and writing awards. For further details see the program brochure and registration form.