| The Law Society of Manitoba Professional Education and Competence |
 |
| eLaw Litigation Update | May 2017 |
| In This Issue |
| An Oral Defamatory Statement Can Sometimes Amount to Libel: MBCA Denial of Coverage Decision Upheld: MBCA Predicting the Future is not an Exact Science and Precision is not the Test: MBQB Trial Management Guidelines: Federal Court Legislative Update Court of Queen’s Bench Notice Recommended Reading Continuing Professional Development: LSM MBA Programs |
An Oral Defamatory Statement Can Sometimes Amount to Libel: MBCA
|
In Canadian Broadcasting Corporation et al v Morrison, 2017 MBCA 36, the CBC was unsuccessful in its bid to obtain a writ of certiorari
to quash summonses requiring them to attend court to answer to
privately prosecuted defamation charges arising from a Fifth Estate
broadcast on businessman Peter Nygård. The appeal raised two issues:
first, whether a television broadcast can be an act of publication of a
defamatory libel; and second, whether it is a jurisdictional error to
admit and rely on hearsay evidence at a pre-enquete hearing (a hearing
to determine whether process should issue for a private prosecution).
On the first issue, the court declined to weigh in on arguments rooted
in the “esoteric and often bedeviling distinction between libel and
slander,” choosing instead to find that an oral defamatory statement
can, in some circumstances, amount to libel (e.g. where there is mass
dissemination of an oral defamatory statement in a permanent form, like
a television broadcast). On the hearsay issue, the court noted that it
was within the jurisdiction of the provincial court judge to decide
what evidence could be received at the pre-enquete hearing and the form
it had to take, and the reviewing judge was correct to examine that
decision for jurisdictional, not legal, error. |
Denial of Coverage Decision Upheld: MBCA
|
The
motion judge was correct to uphold MPI’s decision denying coverage to a
Manitoba resident for an accident he had in BC in a car he kept there
for infrequent business use and failed to re-register within the 30-day
grace period set out in the BC MVA, according to the court in Raymond v MPIC,
2017 MBCA 32. The court was satisfied that the motion judge correctly
interpreted s. 20(1) of the BC MVA to require registration within 30
days of operating the vehicle in BC (and not after 30 consecutive days
of use as argued by the motorist). |
Predicting the Future is not an Exact Science and Precision is not the Test: MBQB
| Causation and damages were both at issue in Lantin et al. v. Sokolies et al.,
2017 MBQB 40, a negligence action against Seven Oakes Hospital for
failure to communicate and follow up on the findings of a chest x-ray
showing evidence of possible tuberculosis and for the consequent spread
of tuberculosis to the plaintiff’s brain, resulting in permanent
disability. The plaintiff, a mathematically inclined 16 year old
student who, before the brain injury, had the aptitude and interest to
become an accountant, suffered from depression afterward and felt
unable to pursue his chosen career (although he did very well in social
work). The court found the causation evidence to be clear and
compelling and, while acknowledging the uncertainties in determining
damages, awarded $1.3 million dollars for loss of earning capacity,
plus general damages of $175, 000. |
Trial Management Guidelines: Federal Court
| The Federal Court released new trial management guidelines
on April 28, 2017. The twenty-one guidelines pertain to pre-trial
case management and have been adopted “to ensure the most efficient,
expedient and proportionally fair use of trial time for actions
scheduled for five or more days in Federal Court.” Issues covered
include: timing of motions, case conferences, and motions for
commission evidence; the process for expert reports; joint statements
of issues and agreed statements of fact; scheduling trials; and written
arguments. |
Legislative Update
| Bill 15, The Department of Justice Amendment Act,
passed second reading on March 22, 2017 and the Justice committee
reported without amendment on April 6, 2017. It 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, passed second reading on April 24, 2017. It 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, passed second reading on March 22, 2017 and the Justice committee reported without amendment on April 6, 2017. It 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. |
Court of Queen’s Bench Notice
| The Court of Queen’s Bench issued a notice concerning the hearing of civil motions during the summer court recess on May 5, 2017. |
Recommended Reading
| Supreme Court Defers to Professional Regulatory Bodies’ Rules (MLT Aikins); Justice for Some (ABlawg); and SCC Affirms Law Society’s Authority to Suspend Lawyers for Failing to Comply With CPD Requirements (Blakes) – these articles discuss the Supreme Court of Canada decision in Green v. Law Society of Manitoba,
2017 SCC 20, affirming the Law Society of Manitoba’s authority to
automatically suspend lawyers who do not meet their continuing
professional development obligations. House Party Drunkenness: Should Parents Be Liable For Catastrophic Injuries Suffered By Guests? (Gardener Roberts) – this blog post suggests that the issue of social host liability has been given new life by the recent Ontario Superior Court decision in Wardak v. Froom, 2017 ONSC 1166. Suing for Defamation – a Call for Restraint – this author of this Slaw post cautions restraint in bringing defamation actions and outlines what should be considered when advising clients in this complicated area. ‘DIY': Experts Must Write Their Own Reports – the author of this Blaney McMurtry LLP article warns of the dangers of “ghost written” expert reports and suggests that lawyers outline their expectations as to the accuracy and validity of such reports at the beginning of the retainer. |
Continuing Professional Development: LSM
| Women Thriving in the Law with a Grit and Growth Mindset (May 15, 2017, half-day) and Getting and Growing Grit: The Secret to Success
(May 16, 2017, lunch session) – these programs, presented jointly with
the MBA’s Women Lawyers’ Forum, will help attendees to develop and
apply a “grit and growth” mindset to the challenges of legal practice. New Civil Queen’s Bench Rules: A Focus on Case Management, Proportionality and Expediency - join Chief Justice Glenn Joyal, Associate Chief Justice Shane Perlmutter, and Michael Weinstein for an overview of proposed changes to the QB Rules and the resulting practice changes. This lunch session takes place on May 24, 2017, from noon to 1:30 pm in the Law Society classroom. Webinar: Avoiding Cyber Dangers – the Law Society is replaying this very practical webinar on June 13, 2017, with a live question period at the end with Law Society staff. Legal technology and risk management guru Dan Pinnington will teach you how to protect yourself and your firm from hacked emails, malware, phishing scams, and other cybercrime vulnerabilities. Group registrants are eligible for discounts. Most Often Asked Questions of a Supreme Court Justice - the Honourable Justices Moldaver and Côté will share answers to the questions they are most frequently asked and attendees will be able to ask their own questions at this jointly sponsored lunch program at the Provencher Room, Hotel Fort Garry. The program takes place from noon to 1:30 pm on June 5, 2017. Final registration numbers must be in by May 25. |
MBA Programs
| Consider bringing a non-member buddy to one of these section meetings: An Overview of Injunctions and other Extraordinary Remedies - this session will provide an overview of the options available to civil litigators to preserve property, personal rights, business interests and evidence pending trial and how to defend motions for such relief. It takes place from noon to 1:30 pm on May 19, 2017 at the Law Society classroom. Canada Labour Code Alternative Dispute Resolution – presenters Kristin Gibson and Richard Deeley will discuss potential ADR in hearings dealing with cases under the Canada Labour Code which are considered federal undertakings, such as airlines, interprovincial transportation, and First Nations Bands. The discussion will include what constitutes a federal undertaking under the code and the defences available to employers. The program takes place May 23, 2017, in the 2nd floor conference room, 444 St. Mary Ave. |
ISSN 1916-3916