The Court of Appeal reviews the history of Rule 20A and the jurisprudence regarding the striking of pleadings in National Concrete Accessories Canada Inc v AAA-Zaid, 2017 MBCA 28, an unsuccessful appeal by a defendant whose pleadings were struck pursuant to Rule 20A(52) for failing to abide by an order or direction of a case conference judge. The defendant argued that the judge erred in failing to apply judicially-developed principles applicable to regular civil actions where there had been non-compliance in determining whether the pleadings should be struck pursuant to Rule 20A(52), but the court disagreed, finding that this would undermine the intent of Rule 20A’s drafters. According to the court:

…recent revisions to r 20A were intended to promote a more accessible and efficient expedited system for the parties and the public.  Proportionality is the guiding principle.  Aiding the enforcement of the proportionality principle is the certainty that failure to follow court orders or other deadlines will result in an immediate sanction, including the striking of pleadings.

The court concluded by noting that, while another judge might have ordered costs and an adjournment to allow for compliance, in this case, where none of the case conference judge’s orders had been complied with, no explanation was offered, and the defendant had been out of contact with his lawyer for weeks prior to the conference, it could not be said that, in light of the overarching principle of proportionality, the case conference judge had committed an error in principle.  

The role of presiding judge has evolved as the number of self-represented litigants has increased, according to the court in Dewing v Kostiuk et al, 2017 MBCA 22, an unsuccessful appeal by the plaintiff in a civil historical sexual assault action. The unrepresented plaintiff was granted default judgment and $100,000 damages for non-pecuniary loss (she sought $3.6 million) against the defendant (her cousin), but not against the defendant’s parents. Her appeal centred primarily on the issue of whether she had been treated unfairly in presenting her case for damages. Assessing whether the motion judge had fulfilled her duty to ensure that the SRL had the opportunity to meaningfully participate in the hearing was complicated by the fact that the case first presented itself as a motion for default judgment. The court noted that, while a more expansive explanation of what to expect at the hearing to determine damages would have been beneficial, in the end the procedure followed by the motion judge was not unfair to the plaintiff, nor did it lead to an injustice. The court concluded by stressing the

salutary benefits of ensuring at the earliest opportunity that SRLs appreciate the nature of the proceedings, the issues that will be raised and the evidence that will need to be called.  As the guidelines offered by the Canadian Judicial Council…suggest, when these matters are discussed at an early stage and in a balanced manner, the efficiency of proceedings will be enhanced. (para. 31)

In Anderson et al v Manitoba et al, 2017 MBCA 14, the Court of Appeal reversed the application judge’s decision denying class certification of the First Nations’ nuisance claim against the Government of Manitoba for damages arising from flooding they argued was due to diversion.  The court found that the certification judge erred in concluding that the lack of any common issue respecting nuisance, as well as the individualistic nature of each of the claims, prevented a class proceeding from being a preferable procedure. In reaching this conclusion the Court of Appeal provides guidance on both the common issues test in negligence and on how to conduct a preferability analysis. In addition, as noted in this blog post, the decision affirms the importance of access to justice as a factor in certifying class actions. This BLG article also discusses the decision.

Harder v Director Fort Garry/River Heights, 2017 MBCA 11 – the court reluctantly denied leave to appeal an order of the Social Services Appeal Board upholding a decision denying the applicant’s request to be retroactively reimbursed for nutritional supplements she was unaware were covered under her income assistance program. The court disagreed with the Board’s conclusion that the program personnel had taken reasonable efforts to advise the applicant of the availability of the funds and that the “unfortunate circumstances” were due to a miscommunication, but was unable to intervene in the “factual decision.”

Ahluwalia v College of Physicians and Surgeons (Man), 2017 MBCA 15 – the court upheld a Panel decision cancelling the licence of a doctor found unfit to practice medicine (for failing to maintain adequate records and computer systems and for making false and misleading misrepresentations).

Willdamerle Holdings Ltd. et al. v. Beamish, 2017 MBQB 37 – the court dismissed the plaintiff sibliings’ action against their previous lawyer for settling their case without authority and for falling below the applicable standard of care in representing them in a valuation hearing in an oppression application concerning the Norwood Hotel. The court found that the lawyer had the requisite authority to settle the case following a telephone conversation with one of the siblings, and was under no obligation to obtain authorization from 2 of the 3 siblings before accepting the offer. The court also found that the lawyer provided reasonable and cogent explanations for his approach to the case and the decisions that he made, and that there was no credible evidence that his representation fell below the applicable standard of care of a reasonably competent lawyer.

Thai et al. v. Ho et al., 2017 MBQB 31 – the court dismissed the plaintiffs’ action to recover $70,000 they claimed to have loaned to the defendants under an oral agreement, finding that their version of events was “ridiculous.” In addition, by taking advantage of unsophisticated people in desperate financial circumstances and charging outrageous interest on loans, the plaintiffs demonstrated lack of integrity and were found not deserving of assistance from the court.

Broadbend Communications North Inc. v. I-Netlink Incorporated, 2017 MBQB 32 – the court dismissed the respondent’s motion to strike a notice of application for an order granting leave to appeal an arbitration award, finding that the 30-day time limit to appeal provided by s. 46 (1) of The Arbitration Act commences to run 30 days from the last clarification or explanation issued by the arbitrator and not 30 days from the date the award is delivered, as argued by the respondent.

Berscheid v Federated Co-operatives et al, 2017 MBQB 25 – the court dismissed a cattle owner’s motion for summary judgment on an $810,000 breach of contract claim against a feed company with respect to the mineral content of their cattle feed, finding that the case was wholly unsuitable for summary judgment due to the complex issues of causation and damages.

These bills were introduced and received first reading on March 8, 2017:

Bill 15, The Department of Justice Amendment Act, amends the Act to provide that a person who is or was prosecuted cannot sue a Crown attorney for things done or not done in performing a duty relating to a prosecution. Instead, the person may bring a proceeding against the Attorney General. See the news release and explanatory note for further details.

Bill 16, The Fatal Inquiries Amendment Act, updates the Act to streamline and clarify the rules for inquests. For more information see the government news release and the explanatory note to the bill.

Bill 17, The Court Security Amendment Act, authorizes security officers to conduct searches for and seize liquor, illegal drugs, and weapons when people come to court and to evict anyone causing a disturbance. The news release provides further details.

As detailed in two Court of Queen’s Bench practice directions from February 10, 2017 (Child Protection Proceedings and Rota and Scheduling Changes), a new child protection model that prioritizes child protection proceedings and addresses unacceptable delay has been implemented effective March 6, 2017. Materials from a recent cpd program provide more detail on the new model and are available for purchase from the Education and Competence Department of the Law Society.


Timelines for Filing of Material in Chambers Court – this Court of Appeal notice issued February 8, 2017 clarifies the deadlines for filing material on motions and notes that they will be strictly enforced.

All three levels of court (Court of Appeal, Queen’s Bench, and Provincial Court) issued notices concerning court attire in February. 

Electronic Filing for Judicial Reviews – judicial review applications to the Court of Queen’s Bench must be filed electronically effective January 23, 2017, according to this practice direction from the court. Paper or manual applications are no longer accepted. The process and requirements for e-filing are explained in the E-Filing Technical Directions Bulletin.

The Manitoba Law Reform Commission released two final reports in February:

Improving the Small Claims System in Manitoba – in this report, part of their project on Access to Courts and Court Procedure, the Commission makes eleven recommendations to improve The Court of Queen’s Bench Small Claims Practices Act and procedure regarding Small Claims Court (including increasing the monetary limit, excluding wrongful dismissal claims, and increasing the costs limit).

Substitute Powers of Attorney - this report forms part of a series of reports on Creating Efficiencies in the Law, which seek to address discrete, straightforward issues that, in the Commission’s view, can be improved with relatively simple legislative amendments. It recommends amendments to The Powers of Attorney Act to allow an attorney to renounce without judicial approval in order to carry out the donor’s intentions.  

The Plaintiff with Psychiatric/Psychological Issues: Thin Skull/Crumbling Skull, Mitigation, and the Consequent Assessment of Damages - this CLE BC paper provides an overview of the legal framework concerning psychiatric/psychological injury in personal injury actions, including a discussion of “thin skull” and “crumbling skull” plaintiffs.

Litigation Year in Review – this Department of Justice paper reviews the government’s litigation strategy in 2016, focusing on the Charter, the rights of Indigenous peoples, and decision-making consistent with Canadian values.

Opening Address: “What I Think I’ve Learned about Administrative Law” – in this Administrative Law conference paper The Honourable Thomas Cromwell shares what he has learned about administrative law over his forty year legal career. 

Electronic Legal Research for Luddites! - work in small groups with knowledgeable research assistants assigned to guide you through the electronic research process at this hands-on afternoon session at the Law Society classroom on March 23, 2017. Program materials and light refreshments are included in the registration fee.

Common Practice Issues: How the Code Can Help – Leah Kosokowsky, Director of Regulation at the Law Society of Manitoba, will moderate this fast paced webinar designed to demonstrate how the Code of Professional Conduct can be a practical problem solving resource in a variety of situations commonly faced by lawyers, such as withdrawal of retainer, obligations when changing firms, lawyer duties, and client capacity. The webinar will be shown from noon to 1:00 pm on April 6, 2017. Discounts up to 50% are offered to group registrants.

Sound Cybersecurity Practices For Your Law Firm – this very practical lunch program will further your awareness of cybersecurity risks, and provide you with valuable information about the technologies and cybersecurity practices you can adopt to reduce these risks. It takes place April 12, 2017 in the Law Society classroom. Teleconference registrants receive a group discount.