“Generally speaking, except in exceptional circumstances, appeals of procedural or evidentiary rulings made during the course of civil proceedings should be addressed in the appeal from the final determination and should not be undertaken on a piecemeal basis by way of interlocutory appeals,” according to the Court of Appeal in Pimicikamak et al v Manitoba et al, 2016 MBCA 106 (para.11). The court declined to order an extension of time to allow the applicants to file a second notice of appeal concerning a preliminary decision to strike 11 affidavits from the evidentiary record. While persuaded that there was an arguable ground of appeal, the court found that a second notice of appeal was simply not necessary, since the preliminary decision was subsumed in the final decision and forms part of the pending appeal.

Rice v D’Arcy & Deacon LLP et al, 2016 MBCA 104 - the court dismissed a former partner’s appeal of a stay of his action against his former law firm and partners seeking indemnification for his legal costs in defending a third-party CRA assessment against him and for any ultimate penalty payable by him arising from the assessment. The plaintiff was asking the court to determine his right to indemnity prior to conclusion of the CRA claim. The court agreed with the motion judge’s decision that the law firm’s defence was not frivolous or vexatious, that they would suffer irreparable harm if the stay wasn’t granted (in that the plaintiff’s health and the way his financial affairs were structured might impact their ability to recover costs from him), and that the balance of convenience weighed in favour of granting the stay. Green v Tram et al, 2016 MBCA 99 - the court dismissed the plaintiff’s appeal of the summary judgment dismissing his conspiracy, breach of contract, and breach of duty of care claims against the University of Winnipeg and staff respecting a “career ending” termination of his teaching practicum. The appeal court declined to weigh in on the thorny issue of when a superior court can and should adjudicate a dispute arising from an academic setting, preferring instead to decide based on the principles of summary judgment. It agreed with the motion judge’s finding that the plaintiff had not established a genuine issue for trial with respect to the conspiracy to injure claim. The court also rejected the plaintiff’s assertion that the University’s failure to remediate his practicum difficulties in accordance with the procedure set out in the school handbook was an actionable breach of contract. Thermo Applicators Inc v CIR Mechanical Installations Ltd., 2016 MBCA 94 – the appeal court upheld the motion judge’s decision to set aside a default judgment signed by the registrar. The court agreed with the motion judge’s finding that the claim was one solely of breach of trust and was not a debt or liquidated demand in money as required by Rule 19.04(1)(a). It also noted the broad discretion judges have to set aside or vary default judgments and the highly deferential standard of review pertaining to such decisions. Ownership and possession of a dog was the subject of a summary judgment ruling in McIntosh v. Daoust, 2016 MBQB 194. The court ordered the defendant to return to the plaintiff’s possession a dog who, the defendant argued, had become part of her family when the parties lived together. The court found that, while a domesticated dog is a living creature, it is nevertheless personal property under our law and, in this case, was property owned solely by the plaintiff prior to the start of parties’ relationship. The court declined to order some form of shared custody of the dog and found that the Rules did not allow for compensation of the defendant’s expenses in caring for it pending trial, as she was not the moving party. Winnipeg Airports Authority Inc. v. Allianz Global Risks US Insurance Company, 2016 MBQB 185 – the court dismissed the WAA’s motion to add an initially unnamed subscribing insurer as a defendant after expiry of the limitation period. The court found at para. 57, that “where an amendment is sought in a situation where the limitation date has expired, the moving party must demonstrate both an absence of prejudice and special circumstances. An absence of prejudice is not special circumstances. Insofar as the requirement for “special circumstances” imposes a rigour and difficult burden for a moving party, it need be appreciated that it is a justifiable rigour and burden connected to broader systemic and policy considerations.” In this case, given the settled law on the several liability of insurers of subscription policies, the court found that “WAA made either an informed decision to not sue Continental, or alternatively, failed to do so by inadvertence,” neither of which constituted “special circumstances.” Ginew Housing Authority Inc. v. Zenke Investment Ltd. et al., 2016 MBQB 199 – the court granted the defendant’s motion for summary judgment dismissing the plaintiff’s claim seeking damages for the unconscionable sale of multiple housing units at a price considerably less than their fair market value or, alternatively, to void the contract. While there was evidence that the price paid was less than would have been paid had each property sold individually, it was not grossly unfair, said the court, and there was insufficient evidence that the plaintiff was vulnerable or that there was an overwhelming imbalance of bargaining power.

The Manitoba Law Reform Commission is seeking input on its recently released Consultation Report on Improving the Small Claims System in Manitoba. Provisional recommendations include: increasing the monetary and general damages limits and allowing adjustments by regulation; and adding wrongful dismissal claims to the list of excluded proceedings under The Court of Queen’s Bench Small Claims Practices Act. The report is part of the Commission’s project on Access to Courts and Court Processes. Feedback can be provided until December 5, 2016 by completing an online survey or by submitting comments via email, fax or regular mail.

Expert Witnesses: The Who, What, When And How Of Retaining Experts And Making Them Effective For You (HSH LLP) and Finding and Effectively Using an Expert Witness (Slaw) – these articles offer practical tips on finding and using expert witnesses. A Look at How One Firm Is Trying Alternative Fee Arrangements for Litigation – efficiency and agility are two of the benefits of embracing alternative fee arrangements according to the managing partner cited in this article. The Challenges of Limitations in Sexual Abuse Claims - this Miller Thomson article examines the challenges for both insureds and insurers in the liberalization or elimination of limitation periods in cases of sexual abuse. Embracing the digital trial – this Lawyers Weekly article discusses the technology learning curve and the benefits and challenges of e-trials. Demystifying the Federal Government's Assisted Dying Legislation and the New Lawsuit Challenging its Constitutional Validity – this McMillan bulletin explains how the new assisted dying legislation works and how it is being challenged in Lamb v Canada. Dealing with Forgetful, Hostile, and Adverse Witnesses - this CLE BC Practice Points paper describes the tools examiners-in-chief can use when witnesses become forgetful or hostile. J.J. v. C.C.: Court of Appeal Finds Garage and Car Dealership Owed Duty of Care to Minor who Stole Vehicle From Premises – this BLG article is critical of the proximity analysis in a recent Ontario Court of Appeal decision, in which a garage and car dealership was found to owe a duty of care to a minor who was injured after participating in the theft of a vehicle from the dealership's premises.