| The Law Society of Manitoba Professional Education and Competence |
 |
| eLaw Litigation Update | June 2017 |
| In This Issue |
| Facebook’s Forum
Selection Clause Unenforceable: SCC Recognized Psychiatric Injury Not a Precondition for Recovery: SCC Right to Judicial Recourse in IRSSA Claims Extremely Limited: MBCA Pursuit of Justice Arduous But Not Impossible: MBCA No Evidence of Negligence by Hockey Coach: MBCA Inferring a Claim of Negligence Fanciful: MBCA Denial of Pool Permit Reasonable: MBQB Legislative Update Court of Queen’s Bench Notice Recommended Reading Summer CPD Replays: LSM MBA Program |
Facebook’s Forum
Selection Clause Unenforceable: SCC
|
A BC privacy class action
against Facebook can proceed following the Supreme Court of Canada’s
finding in Douez
v. Facebook, Inc., 2017 SCC 33 that Facebook’s forum selection
clause is unenforceable. The proposed class action was brought on
behalf of all BC residents who had their name or picture used in
Facebook’s Sponsored Stories (to advertise companies and products to
other members on the site and externally) in contravention of s. 3(2)
of BC’s Privacy Act. Facebook
brought a motion to stay the action on the basis that its forum
selection clause (which all Facebook users must agree to upon
registration) required submission to the jurisdiction of the courts of
California. “A court has discretion under the strong cause test to deny
the enforcement of a contract for reasons of public policy in
appropriate circumstances,” said the court, particularly where the
limitation is to protect a weaker party or the “social, economic, or
political policies of the enacting state in the collective interest.”
In this case, where there was both unequal bargaining power in the
consumer contract and impingement on Canadian quasi-constitutional
privacy rights, the majority held that the clause, though valid under
contract law principles, should not, as a matter of policy, be
enforced. The minority disagreed, finding that the appellant had failed
to establish strong cause why the forum selection clause she agreed to
should not be enforced. These articles discuss how the decision will
affect privacy law and consumer contracting:
Supreme Court of Canada Overrides Forum Clause in Facebook Agreement - Slaw A Win for Online Privacy Rights at the Supreme Court: Douez v Facebook - CCLA Supreme Court of Canada finds Facebook’s Forum Selection Clause is Unenforceable; Privacy Class Action Can Proceed in Canadian Court – Bereskin & Parr |
Recognized Psychiatric Injury Not a Precondition for Recovery: SCC
|
The Supreme Court has
clarified the law on recovery for negligently caused mental injury
in Saadati v. Moorhead, 2017 SCC
28, arguably
lowering the bar to establish such claims. The court restored the
trial judge’s award of damages for mental injury (based on lay witness
testimony as to personality changes in the
accident victim, not expert evidence), concluding that “a finding of legally compensable
mental injury need not rest, in whole or in part, on the claimant
proving a recognized psychiatric injury.” (para. 2) The claimant must
be able to prove the criteria applicable to any negligence claim: duty
of care, breach, damage and factual causation must show that “the
disturbance is serious and prolonged and rises above the ordinary
annoyances, anxieties and fears.” These articles discuss the decision:
Saadati v. Moorhead: The repudiation of a dubious perception of mental illness and Saadati v. Moorhead: SCC Clarifies Law On Required Proof Of Mental Injury – Gowling WLG No Diagnosis – No Problem – Miller Thomson |
Right to Judicial
Recourse in IRSSA Claims Extremely Limited: MBCA
| A supervising judge
appointed in relation to the implementation of the Indian Residential
Schools Settlement Agreement erred in seizing jurisdiction in the
absence of exceptional circumstances, according to the Court of Appeal
in The
Attorney General of Canada v JW and Reo Law Corporation et al, 2017
MBCA 54, by focusing on the adjudicator’s interpretation of the IAP
rather than on whether the adjudicator considered the correct terms.
The court found that the supervising judge’s jurisdiction was limited
to determining whether the adjudicator implemented the provisions of
the IAP in the narrow sense of determining whether she considered the
correct terms, and that he should have dismissed the RFD once that issue was
decided. Broadening the review process beyond the extremely limited
permitted recourse to the courts would significantly increase the time
required to complete the individual and overall claims process, said
the court, thereby failing to respect the objectives of providing a
closed and expeditious adjudication process. (para. 71) |
Pursuit of Justice Arduous But Not Impossible: MBCA
| The boyfriend of an innocent woman stabbed to death in
a drug related killing was unsuccessful in challenging an order
granting the deceased’s sister leave to begin a wrongful death action
against him in Fawley et al v Moslenko, 2017
MBCA 47. The boyfriend had been accused of arranging the murder, but
the charge against him was stayed due to evidentiary issues which
surfaced at the preliminary hearing. The court rejected his argument
that the judge erred: (1) in applying the discoverability
rule (he argued that the sister knew the facts necessary to sue him
before the limitation period expired since he had been charged with the
murder, but the court found it was impossible for the sister to meet
the requirements of QB r 25.06(1) and provide anything more than
speculative or conclusory statements about the boyfriend's complicity
in the wrongful death); and (2) in deciding the
application on the basis of
inadmissible and double hearsay evidence (contained in a second
statement made by the convicted killer and implicating the boyfriend).
On the hearsay issue, the court noted that while the judge failed to
distinguish between QB rr 39.01(4) and (5) as to the receipt of and
reliance on contentious hearsay evidence in an affidavit, in the end
this did not matter, since “r 39.01(5) is not an exclusionary rule but,
rather, is only a statutory exception to the hearsay rule. The case law
recognizes that a party, on an application, can, in some circumstances,
rely on a statement of a third party on a contentious fact for
non-hearsay and hearsay uses.” (para.60) In this case, where both
requirements of the principled exception to the hearsay rule
(reliability and necessity) were met, the hearsay evidence was
admissible. The court’s summary (para. 76) of the never previously
interpreted r 39.01(5) and its discussion of the principled exception
to the hearsay rule (paras. 94-120) are instructive. |
No Evidence of
Negligence by Hockey Coach: MBCA
| In Henderson
v Elder, 2017 MBCA 45, the court dismissed the appeal of an injured
hockey referee whose negligence action against the coach of the
13-year-old player who collided with him when coming off the bench “on
the fly” was dismissed because he failed to establish liability. The
court agreed with the trial judge’s conclusion that there was no
evidence of negligence, carelessness or intent to injure on the part of
the unidentified player or the coach. In addition, the judge did not
err in refusing to hear expert evidence from a referee as to the
obligations and expectations of a referee in the course of refereeing a
hockey game, since such evidence was not relevant to the claim. |
Inferring a Claim of Negligence Fanciful: MBCA
| In Urbanmine
Inc et al v St Paul Fire and Marine Insurance Company et al, 2017
MBCA 42, the appeal court found that the application judge erred in
concluding that the insurers had a duty to defend claims brought
against a metal broker for fraud, theft, misappropriation and wrongful
conversion of 494,050 pounds of nickel alleged to have been stolen from
the plaintiff and sold below market value to the insured. Unlike the
application judge, the appeal court saw no ambiguity in the terms of
the policy and no allegations supporting a claim in negligence.
“(W)here…there are allegations of fraud, theft and
misappropriation…courts will conclude as a matter of legal inference
that such claims contemplate that the defendant intended harm for the
purpose of construing exemptions of insurance coverage for intended
injury,” said the court, and it follows that the exclusion applies and
there is no duty to defend. In addition, it could not be inferred that
the statement of claim included a claim against the applicants for
conversion resulting from ignorance, innocent mistake or negligence. |
Denial of Pool Permit Reasonable: MBQB
| Owners of a lot on the Red River were unsuccessful in
challenging the City’s decision to deny them a permit to construct an
in-ground pool on a portion of their property designated as a floodway
area in Pflug
v. Winnipeg (City of), 2017 MBQB 86. The court rejected the
applicants’ argument that The City
of Winnipeg Charter does not specifically prohibit building
pools in the floodway area and that the term “excavations” (one of the
“works” prohibited in s.158(2)) does not include in-ground swimming
pools. It also rejected the applicants’ contention that the City had
treated them unfairly or inconsistently relative to others in the area
who had built pools. |
Legislative Update
| Federal
Bill
C-16, An Act to amend the
Canadian Human Rights Act and the Criminal Code, received royal
assent and came into force on June 19, 2017. It amends the Canadian Human Rights Act to add
gender identity and gender expression to the list of prohibited grounds
of discrimination and to the Criminal
Code to extend the protection against hate propaganda to any
section of the public that is distinguished by gender identity or
expression and to affect sentencing on such crimes. For further
information see the legislative
summary, departmental
information, the Slaw article Gender
Identity and Gender Expression Protection Under the Law and the
blog post Federal
Government Adds “Gender Identity” And “Gender Expression” to Canadian
Human Rights Act.
Bill S-201, the Genetic Non-Discrimination Act, received royal assent and came into force May 4, 2017. It prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual. Specifically it amends the Canada Labour Code to protect employees from being required to undergo or to disclose the results of a genetic test, and provides employees with other protections related to genetic testing and test results. It also amends the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics. The Privacy Act and the Personal Information Protection and Electronic Documents Act are also amended to expressly include information derived from genetic testing as “personal information.” Provincial Bill
13, The Regulated Health
Professions Amendment Act, received royal assent and came into
force June 2, 2017. It amends The
Regulated Health Professions Act to allow the minister to exempt
a health profession from the statutory prohibition on the online
publication of certain health information about disciplined members.
See the explanatory
note for more information.
Bill 15, The Department of Justice Amendment Act, received royal assent and came into force June 2, 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, received royal assent June 2, 2017 and will come into force on proclamation. 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, received royal assent June 2, 2017 and will come into force on proclamation. 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. Bill 33, The Minimum Wage Indexation Act (Employment Standards Code Amended), received royal assent and came into force on June 2, 2017. It amends The Employment Standards Code to provide that the minimum wage is adjusted on October 1 of each year to reflect changes in the Manitoba Consumer Price Index. |
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
| The United Airlines Debacle In The Context Of Canadian Tort Law
– this McCague Borlack LLP article examines the extent to which
Canadian airlines may be exposed to personal injury liability for
domestic and international travel. CASL Private Right of Action Suspended – but CASL Is Still Here – this Slaw post discusses the government’s decision to suspend the CASL private right of action that was to have come into force on July 1. Supreme Court of Canada Allows Multiple Canadian Courts to Preside Over One Concurrent Hearing – this Baker McKenzie blog post summarizes the Supreme Court’s decision in Endean v. British Columbia, 2016 SCC 42, concerning concurrent class proceedings. |
Summer CPD Replays: LSM
| For those looking to catch up on CPD hours during the quieter summer months, the CPD Summer Replay schedule is
now posted on the LSM website. Find a program and date that works for
you, with a wide variety of programming topics offered from July 10 to
28, 2017. Don't see a time that fits your schedule? These programs are also available for purchase on DVD or can be accessed through cpdonline and viewed at your own convenience. |
MBA Program
| Small Claims Primer –
this lunch session on July 7, 2017, is recommended for articling
students or associates who want a refresher on small claims procedure.
It will be held from noon to 1:30 pm in the Law Society classroom, 219
Kennedy St. |
ISSN 1916-3916