| The Law Society of Manitoba Professional Education and Competence |
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| eLaw Litigation Update | August 2018 |
| In This Issue |
| Judicial Review of
Decisions by Religious Organizations: SCC Exercising Jurisdiction in Multijurisdictional Defamation Claims: SCC Theft Foreseeable, But Not Physical Injury: SCC Lowballing, if Proven, Constitutes Bad Faith: MBCA Loss of Earning Capacity Approach Complicated: MBCA “Bad Public Policy” Constitutional: MBQB Limitation Periods and Knowledge of Material Facts: MBCA/MBQB Other Decisions Practice Direction and Notice Recommended Reading Fall CPD: LSM September CPD: MBA |
Judicial Review of
Decisions by Religious Organizations: SCC
| The central issue in Highwood Congregation of Jehovah’s
Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, is when, if ever,
courts have jurisdiction to review the decisions of religious
organizations where there are concerns about procedural fairness. In
this case, the court found it lacked jurisdiction to review a Jehovah’s
Witness Judicial Committee decision to defellowship a congregant for
sinful behaviour. The court identified three reasons to quash the
application for judicial review: first, the Judicial Committee was not
a public decision maker; second, there is no free-standing right to
have such decisions reviewed on the basis of procedural fairness; and
third, the ecclesiastical issues raised were not justiciable. These
articles comment on the decision: |
Exercising Jurisdiction in Multijurisdictional Defamation Claims: SCC
A very divided court (6-3, but with 5 sets of reasons)
addresses the rules for assumption of jurisdiction in
multijurisdictional internet defamation claims in Haaretz.com v.
Goldhar, 2018 SCC 28. The case involved a libel action brought by an
Ontario businessman (and owner of an Israeli soccer team) against the
Israeli newspaper which published (online and in print) an article
critical of his management practices. The court agreed on the issue of
who had jurisdiction simpliciter (Ontario), but diverged on the forum
non conveniens analysis. In the end the majority found that the
newspaper would face substantial unfairness and inefficiency if a trial
were held in Ontario and that Israel was clearly the more appropriate
forum. For more detailed information on the differing positions of the
court see:
|
Theft Foreseeable, But
Not Physical Injury: SCC
| Duty of care and reasonable foreseeability were at the heart of the Supreme Court’s decision in Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, in which the court overturned the lower court decisions to find that a garage owner who left keys in the ashtray of an unlocked vehicle on his premises was not contributorily negligent for the catastrophic injuries suffered by one of two intoxicated youths who stole and crashed the vehicle. The court found that it would extend tort liability too far to accept that “anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen.” According to the majority, “(p)hysical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but that the stolen vehicle might be operated in a dangerous manner.” (para. 34) In this case, the evidence did not establish that the risk of theft included the risk of theft by minors (which could make the risk of the unsafe operation of the vehicle foreseeable), and the inferential chain of reasoning was too weak to support the establishment of reasonable foreseeability of physical injury. These articles analyse the decision: |
Lowballing, if Proven, Constitutes Bad Faith: MBCA
| An insurance company was
unsuccessful in appealing the dismissal of their summary judgment
motion in a bad faith claim in 3746292 Manitoba Ltd et al v Intact
Insurance Company et al, 2018 MBCA 59. The Court of Appeal was not
persuaded that the motion judge misdirected himself by deciding that it
was necessary to hear viva voce evidence at a trial as to the
motivations and intentions of the insurer regarding whether it acted
even-handedly in the claims-handling process or unfairly engaged in the
practice of lowballing. |
Loss of Earning
Capacity Approach Complicated: MBCA
| The court reviews the
principles which apply when assessing damages for loss of future
earnings in Lantin et al v Seven Oaks General Hospital, 2018 MBCA 57,
an appeal of a $1.3 million dollar damage award against a hospital for
failing to diagnose and treat the plaintiff’s tuberculosis in a timely
fashion. According to the court, the trial judge made several errors in
assessing the loss of earning capacity of the plaintiff, including
palpable and overriding errors as to the appropriate range and failure
to adjust for contingencies. Although the court found merit to the
argument that the loss of earning approach should not have been used
given the numerous and significant assumptions required, it adhered to
the trial judge’s methodology in substituting an award of $525,000. |
"Bad Public Policy” Constitutional: MBQB
| In Fletcher v. The
Government of Manitoba, 2018 MBQB 104, the applicant, an MLA expelled
from his party caucus, was unsuccessful in challenging the
constitutionality of s. 52.3.1 of The Legislative Assembly Act. He
argued that the section, designed to discourage floor crossing by
requiring elected members to sit as independents when they cease to
belong to their party’s caucus, infringed his Charter protected rights
to freedom of association and freedom of expression. The court found
“nothing to suggest that s. 52.3.1 does anything but provide for the
dignity, integrity and efficient functioning of the legislature” and as
such is protected by parliamentary privilege. The court concluded at
para. 82: Although s. 52.3.1 may be
bad public policy, courts should not become the adjudicator of
legislation or policy that is within the sole purview of the
legislature. This is the very nature of parliamentary
privilege. If a court were to do so, it would trample on the
constitutionally protected separation of powers.
|
Limitation Periods and Knowledge of Material Facts: MBCA/MBQB
| The
issue of “knowledge of material facts of a decisive character” is
considered in two recent cases involving water-penetration problems and
alleged faulty house construction: In Embil v S Maric Construction Ltd et al, 2018 MBCA 68, the court dismissed an appeal by the contractor and architect defending a house construction negligence claim who argued that the application judge erred in his findings as to when the homeowner had knowledge of material facts of a decisive character concerning the water-penetration problem which damaged the house. In Olford et al. v. Springwood Homes Inc., 2018 MBQB 78, the plaintiff homeowners were granted leave pursuant to s. 14(1) of The Limitations of Actions Act to commence an action against the respondent contractor alleging breach of contract and negligence in respect of the construction of their new home which had extensive water infiltration problems. The issue in the case was when the applicants first knew, or ought to have known, of all material facts of a decisive character upon which the action was based. The court found that, although the homeowners were aware of a possible action earlier, they did not have an understanding of the material facts that would support a cause of action until they received expert engineering reports. |
Other Decisions
| 5801916 Manitoba Ltd v 6191763
Manitoba Inc, 2018 MBCA 73 - unsuccessful appeal of motion judge’s
decision removing a law firm as counsel in a shareholder dispute due to
a conflict of interest arising out of the firm’s role as corporate
counsel for the appellant. Brotherston v Christiansen et al, 2018 MBCA 70 – despite confusion surrounding the undocumented debt transaction and arising from the lack of written reasons for judgment, the court upheld the decision of the motion judge granting summary judgment and dismissing the defendant’s counterclaim. Cerasani et al v Cerasani, 2018 MBCA 53 - the Court of Appeal was not prepared to set aside the factual findings of the trial judge concerning an alleged oral agreement, finding that it is not the role of an appellate court to do so absent a palpable and overriding error in the credibility assessment. Pimicikamak et al v Manitoba, 2018 MBCA 49 – the applicants were unsuccessful in appealing the dismissal of their application for judicial review of the decision by Manitoba to enter into a settlement agreement with Hydro without fulfilling its constitutional duty to consult and accommodate the applicants' Aboriginal and Treaty 5 rights. Hofer v Hofer, 2018 MBCA 43 – the court rejected the applicant's interpretation of s. 90(1)(b) of The Court of Queen’s Bench Act (that no leave was required to file an appeal dealing only with costs), citing its earlier finding in J-Sons Inc v N M Paterson & Sons Ltd, 2004 MBCA 25 that leave is required where an appeal relates only to an order as to costs, whether or not other substantive orders are contained in the judgment in which the order as to costs is found. Berscheid v Federated Co-operatives et al, 2018 MBCA 27 - the author of the Supreme Advocacy article, Beyond Hyrniak: Closing the Barn Doors on Summary Judgment Motions or, Closing After the Cattle Have Taken Off?, suggests that this decision “is notable…because the Court of Appeal provides a stark warning against the use of summary judgment motions – an indication, perhaps, of changing judicial attitudes to their utility in the wake of Hryniak v Mauldin, 2014 SCC 7.” Dennis v Canada (A.G.) et al, 2018 MBQB 88 – Canada’s motion to strike out a statement of claim alleging bad faith by the government in passing regulations diverting money during the privatization of the Canadian Wheat Board was dismissed. The master found that it was not plain and obvious that the plaintiff could not establish at trial that there was an unauthorized purpose behind the passage of the regulations and that the lawfulness argument should not be decided on a motion to strike. Canada’s argument that the plaintiff required a proprietary interest in the assets of the CWB to maintain a damages claim was “misplaced,” according to the court. Pisclevich v. Manitoba, 2018 MBQB 52 - the court granted the plaintiff landowners’ application for certification of a class action against the Province for negligent operation of the Portage Diversion and the flooding of Lake Manitoba. Although the court had some concerns that the parameters of the class might be too broad, it noted that a proposed class will not be considered overly broad just because it may include persons or businesses that ultimately will not be found to have a claim. A class definition is flexible and the definition of the class may be amended as further evidence is presented. Fletcher et. al. v. Hull et. al., 2018 MBQB 46 – the court declined to issue an interim mandatory injunction requiring the owner of a non-profit dog rescue company to return a dog she had repossessed to the plaintiff who had adopted him. G.V. v. T.D.V., 2018 MBQB 42 – the plaintiff was granted summary judgment on the issue of liability for historical sexual assault and battery by the defendant, his older brother, with a reference to trial on damages. |
Practice Direction and Notice
| Notice - Ordering Transcript of Recording of Proceeding
– this Court of Appeal notice, issued July 10, 2018, advises that
effective immediately anyone can order a transcript of the recording of
any Manitoba Court of Appeal proceeding that is open to the public and
that took place after June 21, 2018. Civil Trial Scheduling Conflicts - the Court of Queen’s Bench issued this practice direction in March. It modifies the November 7, 2017 direction concerning the practice where counsel has booked more than one trial for the same period and it becomes apparent that more than one trial will proceed. |
Recommended Reading
| Locating Torts
- this Osler paper is a guide for non-Canadian and extra-provincial
litigants on how Canadian courts have situated common tort claims. Thursday Thinkpiece: Anticipating and Managing the Psychological Cost of Civil Litigation – this paper focuses on the impact of litigation stress on individual justice system participants and the community and identifies strategies to prevent or alleviate it. Electronic Devices Privacy Handbook: A Guide to Your Rights at the Border - this recently published guide from the BC Civil Liberties Association gives up-to-date information on searches of electronic devices at the border and sets out best practices to keep your data private and secure. Administrative Law in the Supreme Court of Canada: (Recent) Past, Present & Future – this paper, published by Supreme Advocacy LLP, examines the most significant administrative law decisions (‘for ordinary people’) and highlights what to watch for in 2018. Court Certifies Sexual Assault Class Action Against The Royal Winnipeg Ballet and Former Instructor – this BLG post describes the recent Ontario decision certifying a class action founded upon alleged historical and systematized sexual misconduct as “a bellwether case.” Membership Disputes in Voluntary Associations – this TDS LLP article examines the “procedural rights” available to members of voluntary organizations and how organizations can protect themselves from member disputes. Challenges of Enforcing Statutory Publication Bans Online – this Slaw post discusses the enforceability of statutory publication bans online following the Supreme Court’s ruling in R. v. Canadian Broadcasting Corp., 2018 SCC 5 Alberta’s top court splits on damages for economic loss – this McCarthy LLP article discusses 644036 Alberta Ltd. v. Kay McVey Smith & Carlstrom LLP, 2018 ABCA 236, an Alberta Court of Appeal decision offering conflicting guidance on the assessment of damages for economic loss where a plaintiff has advanced concurrent claims in contract and tort. Expert Advice Series: “No Property in a Witness”. How our Courts are applying this Principle to Expert Witnesses – this Lernx article highlights two decisions where the court allowed counsel to use the same expert at different stages in a proceeding. |
Fall CPD: LSM
| Tebwetibajimowin - To Tell the Truth
– led by elders and knowledge keepers, this day-long program will serve
as a primer for practising lawyers looking to learn about Indigenous
laws and customs and gain insight into how Indigenous peoples navigate
various legal systems. It will be held September 27, 2018 at Turtle
Lodge in Sagkeeng First Nation, an internationally recognized place for
sharing traditional Indigenous knowledge. |
September CPD: MBA
| When Are Employer Records Considered Personal Information?
– this joint lunch program on September 17, 2018 will explore when
records held by employers are deemed to be employee personal
information that is subject to privacy laws. It will take place from
noon to 1:30 pm at the new Law Society classroom, 200-260 St. Mary Ave. Updated Auto Order Clauses for Family Matters – a family court judge and practitioner will walk you through the new auto order clauses for family court orders at this informative Family Law section session on September 18, 2018. The session will be held from noon to 1:30 pm at the new Law Society classroom, 200-260 St. Mary Ave. International Practice - Brandon Barnes will discuss common difficulties experienced when giving advice across international borders, particularly the role of the lawyer in different jurisdictions and the complexities that can arise when dealing with multiple languages or cultures at this Civil Litigation section meeting on September 27, 2018. |
ISSN 1916-3916