eLaw

eLaw - Litigation Update | February 2018 - No. 84

The Law Society of Manitoba
Professional Education and Competence

eLaw Litigation Update

February 2018

In This Issue

Modified Test for Mandatory Interlocutory Injunction: SCC
Public Interest Standing and Supplementing Reasons: SCC
No Realistic Chance of Success: MBCA/MBQB
Careless Smoking Negligent: MBQB
Recent Flood Claims
Further Amendments to Court of Queen’s Bench Rules
Court of Queen’s Bench Practice Direction
Facilitating the Management of Multi-jurisdictional Class Actions: CBA
Recommended Reading

Modified Test for Mandatory Interlocutory Injunction: SCC

In R. v. Canadian Broadcasting Corp., 2018 SCC 5, the Supreme Court restored a chambers decision refusing the Crown’s application to cite the CBC for criminal contempt and for a mandatory interlocutory injunction requiring them to remove from their website a victim’s identifying information published prior to the issuance of a publication ban. The court clarifies the general framework for granting mandatory injunctions and resolves the question of what threshold ought to be applied at the first stage of the RJR-MacDonald test, an issue dividing lower courts since the RJR decision. According to the court at para. 15,

on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR—MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case.

On the issue of what constitutes a “strong prima facie case,” the court noted that this “entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.” (para. 18). Commentators note that the decision is expected to have implications beyond the criminal context:

Removing Offending Content from the Internet Just Became Harder - Blaney McMurtry LLP

Is the Test for Mareva Injunctions/Freezing Orders Too Stringent? – Bennet Jones

Supreme Court of Canada Clarifies RJR-MacDonald Test for Mandatory Injunctions: R v CBC, 2018 SCC 5 - Norton Rose Fulbright

Public Interest Standing and Supplementing Reasons: SCC

The Supreme Court addresses both public interest standing and supplementing of reasons in Delta Air Lines Inc. v. Lukács, 2018 SCC 2, an administrative law decision involving a complaint before the Canadian Transportation Agency concerning discrimination in the treatment of obese passengers by Delta Air Lines. The CTA dismissed the complaint on the basis that the complainant lacked private interest standing because he was not himself obese and lacked public interest standing because his complaint did not challenge the constitutionality of legislation or the illegal exercise of an administrative authority. The Federal Court of Appeal found such a strict application of the law of standing to be inconsistent with the Agency’s enabling legislation and remitted the matter back to the tribunal for redetermination. A split Supreme Court found that in fettering its own broad discretion by adopting the judicial test for standing, and in misinterpreting its own legislative scheme, the Agency had not exercised its discretion reasonably. The majority also found that, while a reviewing court may supplement the reasons given in support of an administrative decision, it cannot ignore or replace the reasons actually provided, as the Federal Court did in this instance. The matter was remitted to the Agency to reconsider the matter in whole, whether on the basis of standing or otherwise. These articles discuss the decision:

Reasons and Reasonableness in Administrative Law: Delta Air Lines Inc. v. Lukács, 2018 SCC 2 – Administrative Law Matters

Delta Air Lines v Lukács: SCC Considers Boundaries of Public Interest Standing – The Court

When a Tribunal’s Reasons Won’t Fly: SCC in Lukács addresses supplemental reasons and public interest standing – Canadian Appeals Monitor

No Realistic Chance of Success: MBCA/MBQB

In four recent decisions (Green v Bush et al; Green v Metz et al, 2018 MBCA 12; Green v University of Winnipeg, 2018 MBCA 11; Green v. University of Winnipeg, 2018 MBQB 4; and Green v. Bell et al., 2018 MBQB 2) the self-represented applicant/appellant has again been unsuccessful in his ongoing dispute against the University of Winnipeg and related individuals, stemming from his expulsion from the University’s teacher certification program.

Careless Smoking Negligent: MBQB

A tenant of a non-smoking apartment block and her guest (both smokers) were held jointly and severally liable in negligence for the fire which destroyed the $820,000 building in 3310680 Manitoba Ltd. v. Fontaine et al., 2017 MBQB 214. The court found that a high standard of care is imposed on smokers to take reasonable steps to extinguish their cigarettes, given the dangers inherent in fire and the gravity of potential harm flowing from careless smoking, which has no social utility and creates risks which can be easily avoided. (para. 36) In this case, the guest, who left multiple, lit cigarettes to self-extinguish in a planter containing peat moss and manure, was held 75% liable, and the tenant was held 25% liable for providing the combustible ashtray.

Recent Flood Claims

In Manitoba v Kochanowski et al, 2018 MBCA 2, the Court of Appeal dismissed the Province’s application for leave to appeal a decision of the Disaster Assistance Appeal Board. The board found that the claimant’s farm incurred considerable flood damages due to the 2012 Shellmouth Dam Artificial operations and referred the matter back to the EMO for them to determine the appropriate compensation award.

In Kotyk et al v. Poplar Ridge et al, 2017 MBQB 207, the court granted summary judgment to the corporate defendant in a flood claim who successfully argued that it was not a land owner of the development property when the flooding occurred nor did it have any role in developing the land in a way that caused flooding on adjacent properties.

In Nerbas v. Manitoba, 2017 MBQB 206, the plaintiffs (farmers, ranchers or landlords associated with three corporate farming operations) were successful in their private nuisance claim against the Province for damage incurred to their lands as a result of flooding caused by operation of the Shellmouth dam and reservoir. The court found there was a substantial interference with the plaintiffs’ properties by virtue of artificial flooding caused by the operation of the dam (para. 135), but noted that the reasonableness of the interference must be evaluated in the context of such factors as the character of the harm, the character of the area, the intensity of the interference, the duration of the interference, and timing (para. 137). In the end, the court was satisfied that private nuisance had transpired and that it would be unreasonable to require the plaintiffs to suffer the nuisance without compensation, even though the operation of the dam was in the public’s benefit and likely lessened the effects of flooding in the area.

Further Amendments to Court of Queen’s Bench Rules

The Manitoba Court of Queen’s Bench issued a notice on February 12, 2018 advising of amendments to the Court of Queen’s Bench rules effective April 1, 2018. The amendments clarify the rules respecting service, noting default, and granting and setting aside of default judgment in cases where service is required under the Hague Service Convention.

Court of Queen’s Bench Practice Direction

The court recently issued a practice direction concerning a one year pilot project for pre - trial conferences for judge-alone trials (beginning in February 2018) and resolution conferences.

Facilitating the Management of Multi-jurisdictional Class Actions: CBA

The CBA approved Class Action Judicial Protocols (2018) (a resolution to approve, as best practices, a revised Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions) at its annual meeting on February 15, 2018. The revised protocol establishes best practices to coordinate multi-jurisdictional class actions among courts.