| The Law Society of Manitoba Professional Education and Competence |
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| eLaw Litigation Update | October 2017 |
| In This Issue |
| Crown Immunity Deeply Entrenched: SCC Presence-based Ground Not Subsumed by Real and Substantial Connection Ground: MBCA Balancing Privacy Expectations and the Need to Protect Children: MBCA Judicial Decision Making Not Easier Under Hryniak: MBCA Other Recent Decisions Practice Direction: MBQB Federal Court Notices Recommended Reading 2017 Isaac Pitblado Lectures Fall CPD: LSM Winter Replays: LSM Continuing Professional Development: MBA |
Crown Immunity Deeply Entrenched: SCC
|
In Canada (Attorney General) v. Thouin,
2017 SCC 46, the Supreme Court set aside a Quebec Court of Appeal
judgment requiring a Competition Bureau investigator to be examined on
discovery in a gasoline price-fixing class action. Neither the Crown
nor the investigator were parties to the action. The Supreme Court
found that common law Crown immunity can only be overridden with clear
and unequivocal legislative language. In this case, it was clear that
the province’s rules on discovery applied only to proceedings in which
the Crown was a party and it was not open to the courts to depart from
the recognized common law rule on Crown immunity. |
Presence-based Ground Not Subsumed by Real and Substantial Connection Ground: MBCA
The Manitoba Court of Appeal reviews the law on jurisdiction simpliciter and forum non conveniens (including the recent SCC decisions in Van Breda and Chevron) in Fernandes v Wal-Mart Canada Corp.,
2017 MBCA 96, a complex legal claim by a self-represented former
employee of a Wal-Mart store in Ontario. In staying the Manitoba action
the court found, among other things, that:
This Dentons article discusses the decision. |
Balancing Privacy Expectations and the Need to Protect Children: MBCA
| In ANCR v Shaw Communications Inc,
2017 MBCA 92, the court considers whether a child protection agency can
obtain customer information from an internet service provider in order
to conduct a child protection investigation of a suspected sex offender
from the UK who it was alleged had Skype contact with a child in
Winnipeg some years earlier. ANCR appealed the dismissal of their
application to compel Shaw to produce the customer’s subscriber name
and contact information. The Court of Appeal found that, while ANCR had
jurisdiction to request the relief sought by way of a finding of
contempt or an injunction, there was no such application before either
court, and the relief could not be granted in the absence of relevant
evidence and submissions. The court also declined to exercise its
jurisdiction to grant a declaration given the inadequate evidence. |
Judicial Decision Making Not Easier Under Hryniak: MBCA
| A
motion judge who declined to decide a summary judgment motion
concerning an insurance coverage claim because a judge hearing the
claim against the co-defendant insurance agent would be “stuck” with
his decision was “plainly wrong,” according to the Court of Appeal in Lodge et al v Red River Valley Mutual Insurance Company et al, 2017 MBCA 76. The court emphasized that Hryniak
and the concept of proportionality do not make judicial decision making
easier; rather, judges are encouraged to deal with important and
sometimes difficult issues at an early stage in the proceedings. In
this case, however, summary judgment was inappropriate, said the court,
given the existence of genuine issues for trial (whether the policy
wording was ambiguous and whether parol evidence
could be used to aid in its interpretation) as well as the unsettled
nature of the law in “chain of event” cases. An expedited trial was
ordered. |
Other Recent Decisions
| Yarmie v Anderson et al,
2017 MBCA 90 – the court denied the self-represented litigants leave to
appeal from an order of a Queen’s Bench judge in a small claims matter
concerning a forced entry into their home by police and the
apprehension of their daughter for involuntary admission to the
hospital. Heritage Electric Ltd et al v Sterling O & G International Corporation et al, 2017 MBCA 85 – the court dismissed Sterling’s appeal from a motion judge’s decision granting summary judgment to the plaintiff for payment of a debt owing for electrical work. At issue was whether the work had been completed or not, and the court acknowledged that the ensuing credibility contest would not normally be decided on a summary basis. A court is nonetheless required to “take a hard look at the evidence to see whether there is really an issue of credibility or whether the evidence is so overbalanced in one direction that the credibility issue evaporates.”(para.16) In this case, proportionality concerns and Sterling’s failure to provide evidence of a genuine issue for trial both supported the motion judge’s conclusion that the credibility issue had evaporated. Thompson et al v Minister of Justice of Manitoba et al, 2017 MBCA 71 – the motion judge committed no error in principle in determining who should have carriage of the proposed 60s scoop class action and his findings concerning the impact of narrowing the claim and the suitability of the proposed representative plaintiffs were entitled to deference. Romana v. The Canadian Broadcasting Corporation et al., 2017 MBQB 163 – applying the Liberty Net test (expression can be restrained by injunction only in the clearest of cases where no defence exists) the court declined to grant the plaintiff’s motion for an interlocutory injunction restraining the CBC from communicating, and from broadcasting by means of the internet, media stories that the plaintiff alleged were derogatory and discriminatory toward him. Embil v. S. Maric Construction Ltd. et al., 2017 MBQB 155 – a homeowner was granted leave to bring an action in respect of the alleged faulty design and construction of his custom built home in Winnipeg. Although the claim was outside the limitation period, the court found that the notice of application had been filed within 12 months of the discovery of all material facts, which only became apparent when removal of the exterior stucco revealed water penetration in the house. Wilder v. Alder, 2017 MBQB 152 – the court dismissed a driver’s application for leave to appeal a decision rendered by a Small Claims Court officer finding her 100 percent liable for a motor vehicle collision with the defendant’s parked and unoccupied vehicle. The court rejected her argument that the MPI claimant (the defendant) bore the onus of proof at the Small Claims trial she initiated, and her claim that insufficient or flawed evidence at the trial resulted in a breach of natural justice. Neurenberg v. The Rural Municipality of Lac du Bonnet et al., 2017 MBQB 138 – the court dismissed the plaintiff’s claim against the principal of a contracting company (and former municipal councillor) hired by the municipality to do work on his property. The plaintiff argued that the individual defendant was in a conflict of interest and therefore owed him a duty of care to ensure that the work was done properly, but the court called this “a claim unknown in law.” Bachewich v. Western Lottery Corporation, 2017 MBQB 136 – a multi-ticket lottery player dissatisfied with the rules and regulations of the games he played regularly was unsuccessful in his $10,000 claim against the WLC for unfair lottery practices. The court found there was no breach of contract on which to base the claim. Susinski et al. v. Municipality of Shoal Lake et al., 2017 MBQB 132 – the court granted summary judgment to the municipality in respect of a negligence claim against them for infiltration of sewer gas into houses hooked up to a municipal sewer line and the resulting devaluation of property and medical problems experienced by the residents. There was no evidence that the RM had anything to do with either the design or the construction of the low pressure sewer system and, as regards post construction delay issues, the court found it was reasonable for the RM to have relied upon and followed the expert advice they received, given the complexity and technicality of the system. |
Practice Direction: MBQB
| The Court of Queen’s Bench issued a practice direction concerning Self Represented Litigants on Civil Applications and Motions
on September 15, 2017. The direction, which came into effect
immediately, requires a case conference to be scheduled before hearing
in all contested motions or applications involving self-represented
litigants. |
Federal Court Notices
| The Federal Court issued three new notices in recent months: Informal Requests for Interlocutory Relief - this notice clarifies the court’s expectations regarding informal requests for interlocutory relief under the Federal Court Rules. Scheduling Practice for the Hearing of Applications – this September 13, 2017 notice addresses court practice when exceptional and unforeseen circumstances may make it reasonable to request that a hearing be rescheduled. Practice Guidelines for Actions under the Amended PMNOC Regulations – these guidelines apply to actions commenced pursuant to ss. 6(1) of the recently amended Patented Medicines (Notice of Compliance) Regulations and supersede the May 2016 guidelines for NOC Applications. |
Recommended Reading
| SCC Limits Appellate Intervention on Commercial Arbitration Awards – this MLT Aikins post discusses the Supreme Court of Canada’s recent decision in Teal Cedar Products Ltd v British Columbia, 2017 SCC 32, and how it will limit appeals of commercial arbitration awards. Confidentiality and misconduct considerations related to employee workplace recordings – this Osler publication discusses the recent MBQB decision in Hart v. Parrish & Heimbecker, Limited, 2017 MBQB 68, purportedly the first reported decision in which a judge of a common law court in Canada has considered secret recordings of meetings by employees in the context of a wrongful dismissal case. Shifting Climate Change Risks Will Force Insurers to Adapt; and Floods, Fires and Droughts - Insurance in the Era of Climate Change; - these Blaney McMurtry LLP papers address how extreme weather conditions caused by climate change are increasing insured losses and changing the insurance industry. Chevron plaintiffs ordered to post security for costs – this Law Times article discusses the impact of the most recent decision in the Chevron litigation, in which the Ontario Court of Appeal ordered the Ecuadorian plaintiffs to post more than $900,000 in security for costs. The Times They Are A-Changin': More Important Stuff On Expert Witnesses – this Blaney McMurtry LLP publication focuses on the role and obligations of the trial judge to ensure that the expert witness does not jeopardize a fair trial. Four Ways Social Media Can Harm Your Injury Claim – this Miller Thomson LLP article explains how insurance company lawyers are using social media content from personal injury claimants to their advantage. Ruling on CPP a win for accident victims – this Law Times article discusses how the SCC decision in Sabean (finding that the Canada Pension Plan is not a policy of insurance) will help accident victims across Canada. |
2017 Isaac Pitblado Lectures
| The 2017 Isaac Pitblado Lectures, #140Down – Now What? The Future of Lawyering is Here,
will be held November 3, 2017 (the one day format is new this year) at
the Grand Ballroom, Fort Garry Place. The lectures will explore the
future of the legal profession, examining such topics as the future of
adjudication, client centred service, and the role of technology in
practice. Final Reminder registration closes this Friday, October 27th. Registrants will receive a copy of Keynote Speaker - Jordan Furlong's 2017 book, Law is a Buyer's Market: Building a Client First Law Firm. Follow us on twitter @pitbladolecture for the most up-to-date information. |
Fall CPD: LSM
| Utmost Good Faith: Yesterday and Today - the legal principles (duty to disclose and utmost good faith) outlined 250 years ago in Carter v Boehm
remain relevant today, even beyond their original insurance law
context. Len French will discuss how the case has been applied over the
years and its implications for general contract law at this November 8,
2017 lunch program. Students and webinar participants are eligible for registration discounts. Costs In Estate Litigation: Changes And Trends – presenters Dana Nelko and Annika Friesen will discuss recent changes and current trends in cost awards in estate litigation at this lunch program to be held November 15, 2017, in the Law Society classroom. Registration discounts are offered to students and to those participating by teleconference. |
Winter Replays: LSM
| For those who missed the earlier live presentations (or those who still need cpd hours), the Law Society has posted its list of winter replay offerings.
Programs which may be of interest to litigators include: New Civil
Queen’s Bench Rules (offered December 12, 2017); Estate Litigation and
Administration (December 15, 2017); Costs In Estate Litigation (January
8, 2018); as well as several practice management or general interest
sessions. |
Continuing Professional Development: MBA
| Project Management? Practice Management!
– the Civil Litigation section is hosting this program comparing
project management to practice management and discussing the tools you
must have for the latter. The program will be held in the 2nd floor
conference room, 444 St. Mary Ave., from noon to 1:30 pm on November
30, 2017. |
ISSN 1916-3916