A divided court issued its long-awaited decision in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, one of a trilogy of Ontario secondary market class action appeals considering, among other things, the limitation period for such actions, the standard for leave, and whether both statutory and common law misrepresentation claims can be heard in such actions. The majority and minority disagreed on the now moot (due to legislative amendments) limitations issue (with the majority overruling the Ontario Court of Appeal to find that the limitation period starts to run once leave is granted). The court was unanimous on the other issues, however, confirming a high threshold for leave to commence secondary market misrepresentation claims and agreeing that certain common law misrepresentation claims can be heard alongside statutory claims. For further details see: Setting Limits: The Supreme Court Confirms A Robust Gatekeeper Approach To Secondary Market Liability Actions – Canadian Appeals Monitor Supreme Court of Canada Releases Securities Class Actions Trilogy – Bennett Jones

A school trustee had no standing to challenge the legal validity of motions passed by the Board of Trustees to permit the extension of school bus routes to transport students to schools of choice outside of their attendance areas, according to the Court of Appeal in Lelond v The Park West School Division, 2015 MBCA 116. The court considers the criteria for standing and entitlement to seek judicial relief from two bases: first the traditional MacIlreith (1908) exception (which the court found was still good law, albeit to be applied narrowly, and not on these facts); and second, the Borowski/Finlay public interest exception (which the court concluded did not apply since the issue under consideration did not meet the criteria of raising a justiciable legal issue.) As noted by the court at paras. 79-89, access to justice issues are at play in the question of whether an issue is of sufficient seriousness to justify the expenditure of judicial resources. In this case, the court characterized the complaint concerning the board’s failure to follow the procedural policy for granting an exception to the “school of choice procedure” as of “very marginal value.” (para. 85)

The court dismissed a self-represented litigant’s motion to extend time to perfect his appeal concerning a summary judgment against him in Lughas v Hebert, 2015 MBCA 110. As noted by the court at para. 11, decisions to deny further evidence and to grant summary judgment are discretionary decisions, for which the standard of review is very high. In this case, the court found no merit to the appellant’s argument that the motion judge should have told him he could seek an adjournment to file a motion to adduce further evidence and was not persuaded that there were arguable grounds of appeal.

In Moskal v Costco Wholesale Corporation, 2015 MBCA 108, Costco (the defendant in a slip and fall claim) lost its bid to overturn the dismissal of its motion to amend its pleadings to raise a defence implicating a third party independent contractor under s. 5(1) of The Occupiers’ Liability Act. The plaintiff’s motion to extend the limitation period to add the contractor as a third party was also dismissed. Costco argued that there would be no prejudice in allowing its amendment since the matter would be argued at trial, but the court disagreed, finding that the plaintiff would suffer significant prejudice if Costco were allowed to deflect liability onto a third party against whom the plaintiff would be unable to seek compensation.

The defendant insurance company in Roy v. TD Home and Auto Insurance Company, 2016 MBQB 9, failed to meet its burden to establish, on a balance of probabilities, that one or more of the plaintiffs started the fire which caused significant damage to their home. Evidence in the three key areas of inquiry – motive, opportunity, and credibility – was inconclusive and, given the lack of clarity as to what really happened, the court found the plaintiffs were entitled to recover the amount due under the policy. Punitive and mental distress damages were denied.

Akinola v. Unicity Taxi Ltd. et al., 2016 MBQB 17 – the court awarded $58,762.02 damages to the plaintiff (an accessible taxicab business licensee) for Unicity’s breach of a1998 Handi-Transit contract and discontinuation of dispatch services. Lount Corporation v. Shelter Canadian Properties Ltd., 2015 MBQB 206 – the court dismissed the plaintiff’s unjust enrichment claim to enforce the terms of a 1997 letter of intent requiring the defendant to transfer 25 apartment units as part of a claim for debt. The issue was whether the gravamen of the claim was for debt (for which the deadline had long since passed), or unjust enrichment (creating a constructive trust for which there is no limitation). The court found that the evidence did not support a finding of unjust enrichment. Lord Selkirk School Division et al. v. Warnock, 2015 MBQB 195 – the court awarded general and aggravated damages totalling $90,000 against a student who used the internet to defame a teacher, a superintendent and the school division. It also issued a permanent mandatory injunction requiring the student to remove any posts, links or other statements from the internet and restrained him from posting further defamatory or libelous statements.

The November 17, 2015, Queen’s Bench practice direction on Compliance with Timelines, Orders and Directions of a Case Conference Judge in a Rule 20A Action, sets out the court's expectations concerning the sanction provisions of Rule 20A(52). Notice re Rule 73-Payment Out of Court – this notice notes the form changes made to accommodate amendments to Rule 73 that came into effect January 1, 2016. The Queen’s Bench issued two practice directions on December 7, 2015: Motions to strike with alternative claim for summary judgment filed before a judge; and Civil uncontested list – urgent matters. Both came into effect immediately. By notice dated January 4, 2016, the Provincial Court confirms that, effective February 29, 2016, the St. Boniface Court will move to a new location.

Yet Another Privacy Tort Comes to Ontario – a recent Ontario decision (Doe 464533 v N.D., 2016 ONSC 541) has introduced a new privacy tort which will have widespread significance, according to the author of this Slaw post. Walking the Line - Navigating Issues of Fraudulent Omission and Material Misrepresentation – this TDS article discusses the duty on individuals seeking insurance to disclose all matters relevant to determining the nature of the risk to be underwritten and the fact that the case law does not provide any clear test to differentiate between a misrepresentation and an omission. Hryniak two years on – this Canadian Lawyer article examines the “culture shift” post-Hryniak, and looks at how the decision has been implemented across Canada. New grounds for litigating – this Legal Feeds post discusses the implications of the Rio Tinto ruling making it ”possible for aboriginal people to directly sue private companies for environmental harm on a piece of land over which they don’t already have an established title.” Expert evidence faces greater scrutiny by the courts – the issues surrounding expert evidence have taken centre stage in Canadian courts over the last year, according to the author of this Law Times article, with an emphasis on the gatekeeper role of the trial judge and greater scrutiny of qualifications. Hot Off the Press – Sedona Canada 2nd Edition! – this Wortzmans’ blog post summarizes the key enhancements of the updated Sedona Canada Principles addressing electronic discovery. Cloud services create challenge for e-discovery – this Law Times article discusses how cloud storage, instant messaging, and social media have complicated electronic discovery.

Aboriginal Law Series – this series continues with upcoming programs on Urban Reserves as a Tool for Economic Development, on March 16, 2016, and a unique opportunity to explore Indigenous Legal Traditions at Turtle Lodge on Sagkeeng First Nation, on May 17, 2016. Mindfulness Based Stress Reduction for Lawyers – Stress is an inevitable part of the practice of law and it can lead to anxiety and behaviours that are counter-productive. Learn how to target the mind-body impact of stress at this February 29, 2016 lunch meeting, to be held in the Law Society classroom. Builders’ Liens 2 Part CPD – attend one or both parts of this two part program on builders’ liens, to be held in the Law Society classroom on the afternoon of April 27, 2016. The first half is a builders’ lien primer for those new to the area, and the second is an update on the law post-Stuart Olson. Student registrations are discounted 50%.

The ADR Institute of Manitoba is offering a 40-hour National Introductory Arbitration Course from April 26 – May 4, 2016, in Winnipeg. The comprehensive program will cover arbitration process and applications, conducting arbitration hearings, and writing awards. For further details see the daily schedule and registration form. Register by March 15, 2016 to take advantage of the early bird rate.

The Western Canada Class Actions Conference 2016 will take place February 26, 2016, in Vancouver and also via live webinar. Topics to be covered include a review of class action litigation in the four western provinces, emerging jurisprudence, new developments in the east, and settlements. For further details see the conference agenda.