| The Law Society of Manitoba Professional Education and Competence |
 |
| eLaw Litigation Update | December 2018 |
| In This Issue |
| Unjust Enrichment
Remedy Applies to Insurance Proceeds: SCC Duty to Consult Doctrine Ill-Suited to Law-Making Process: SCC Who Bears the Costs of Identifying Online Copyright Infringers: SCC No Appeal From Decision Denying Leave to Appeal: MBCA No Judicial Review of Decisions of Voluntary Associations: MBCA Other Decisions Practice Directions and Notices Recommended Reading Winter CPD: LSM 2018 Mid-Winter Conference: MBA |
Unjust Enrichment
Remedy Applies to Insurance Proceeds: SCC
| In Moore v. Sweet,
2018 SCC 52, the Supreme Court used the doctrine of constructive trust
to find that the second wife of a deceased insured had been unjustly
enriched when she was made the irrevocable beneficiary of a life
insurance policy on which the insured’s first wife had paid the
premiums for 13 years on the understanding that she would remain the
sole beneficiary. The court overturned the Ontario Court of Appeal
finding that the legislative scheme of the Insurance Act (in
particular, the irrevocable designation provisions) constituted a
juristic reason for the proceeds to go to the second wife. At para. 70
the majority found that “(n)othing in the Insurance Act
can be read as ousting the common law or equitable rights that persons
other than the designated beneficiary may have in policy proceeds.”
These articles discuss the decision: |
Duty to Consult Doctrine Ill-Suited to Law-Making Process: SCC
| In Mikisew
Cree First Nation v. Canada (Governor General in Council),
2018 SCC 40, the Supreme Court unanimously, but in four separate
decisions, dismissed the Mikisew Cree’s appeal of a Federal Court of
Appeal ruling that the Federal Court did not have jurisdiction to
impose a duty to consult in the legislative process. According to three
justices, (e)xtending the duty to
consult doctrine to the legislative process would oblige the judiciary
to step beyond the core of its institutional role and threaten the
respectful balance between the three pillars of our democracy. It would
also transpose a consultation framework and judicial remedies developed
in the context of executive action into the distinct realm of the
legislature. (para.3)
The court was not in agreement, however, on the issue of whether and how enacted legislation could be challenged for failure to consult. For further details on the differing opinions see:
|
Who Bears the Costs of
Identifying Online Copyright Infringers: SCC
| An
internet service provider can recover its reasonable costs in complying
with Norwich orders according to the Supreme Court in Rogers Communications Inc. v. Voltage
Pictures, LLC, 2018 SCC 38, but costs incurred in performing
statutory obligations pursuant to the notice and notice regime under
the Copyright Act are not
recoverable. These articles discuss the case: |
No Appeal From Decision Denying Leave to Appeal: MBCA
| In Broadband
Communications North Inc v I-Netlink Incorporated,
2018 MBCA 116, the Court of Appeal declined to entertain an appeal from
a decision of a Court of Queen’s Bench judge denying leave on certain
questions raised in an application for leave to appeal an arbitrator’s
award. The court found no merit to the appellant’s argument that The Court of Appeal Act
gave the court jurisdiction to entertain an appeal even where the Court
of Queen’s Bench had considered the application on its merits, did not
mistakenly decline jurisdiction, and did not grant leave. This would be
contrary to the statutory intent to limit appellate intervention in
commercial arbitration, according to the court at para.11. The court
concluded by noting that even if there were an exception to the general
rule that no appeal will lie from the decision of a Queen’s Bench judge
granting or denying leave to appeal, there were no arguable grounds in
this case. The CanLII Connects article, Can you Appeal a
Leave to Appeal Decision?, discusses the decision. |
No Judicial Review of
Decisions of Voluntary Associations: MBCA
| In Bell
v Civil Air Search and Rescue Association et al, 2018 MBCA 96, the
Court of Appeal applied the Supreme Court’s recent decision in Highwood
Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall,
2018 SCC 26 (concerning when courts can review the decisions of
voluntary associations where there are concerns of procedural fairness)
to overturn an application judge’s finding that the courts have
jurisdiction to judicially review a membership dispute involving a
private organization. Given the finding in Wall
that judicial review is only available where there is an exercise of
state authority and where that exercise is of a sufficiently public
character, the court found at para. 9 that the application judge erred
in taking jurisdiction in Bell.
No costs were ordered since the law was uncertain when the application
was heard. |
Other Decisions
| Pisclevich
et al v Government of Manitoba,
2018 MBCA 127 – the government of Manitoba was granted leave to appeal
an order certifying a class action initiated by individual land and
business owners seeking damages for flooding caused by the province’s
operation of the Portage Diversion in 2011. The court found that the
government had an arguable case of substance on the unsettled area of
law concerning recovery for pure economic loss and whether it
constitutes a common issue. Joyce et al v Government of Manitoba, 2018 MBCA 80 – the Court of Appeal found that the trial judge erred in focusing on the reasonableness of Manitoba’s actions in reducing the hours of alcohol service at concessions in Grand Beach Provincial Park and in not considering whether the interference with the owners’ use and enjoyment of their property was unreasonable. Manitoba’s motion for summary judgment was dismissed. Biomedical Commercialization Canada Inc. v. Health Media Network Inc., 2018 MBQB 188 - the court sanctioned the National Research Council (a defendant by counterclaim) for their “extreme inattention” to their obligation to disclose relevant documents by ordering them to pay the throwaway costs attributable to the delayed disclosure. Pollock et al. v. Human Rights Commission (Manitoba) et al., 2018 MBQB 170 – the court denied the applicants’ application for judicial review to set aside a decision of the Human Rights Commission declining to order a condominium corporation to install special windows to accommodate the applicants’ disabilities. Mueller v. Robertson et al., 2018 MBQB 168 – the court described this case as a textbook example of the need for judicial management and oversight of summary judgment motions and expressed concern that the summary judgment motion in the debt claim had been conducted in a manner disproportionate to the issues at hand and the amount in dispute. While expressing concern about the manner in which the motion had been handled and noting that a case conference should have been requested, in the end the court was satisfied that summary judgment was appropriate. Triple C Enterprises Ltd. v. Wynward Insurance Group, 2018 MBQB 163 – the court dismissed a rental cabin business owner’s request for a declaration that its insurer had a duty to defend and indemnify the business with respect to a snowmobile accident for which it was being sued. The business was insured under a commercial general liability policy which the insurer argued excluded snowmobiles under the “motorized snow vehicle” definition. The court agreed, finding that there was no need to look to statutory definitions when the language of the policy was clear. Lantin et al. v. Seven Oaks General Hospital, 2018 MBQB 160 – the court granted the plaintiffs’ motion to amend their action to include a clause providing for loss of opportunity to invest non-pecuniary damages in accordance with s. 80(3) of The Court of Queen’s Bench Act. According to the court, the fact that there had already been an appeal on general damages in the matter did not make any difference to the application of the “slip rule” since the omission of the clause was clearly an inadvertent error and correcting it was not tantamount to interfering with the decision of the Court of Appeal. McNaught v. Bishop, 2018 MBQB 155 – the court ordered punitive damages of $25,000 against the defendants for their egregious and highhanded conduct in preparing and submitting false loan applications to financial institutions knowing that that information would be relied upon to secure financing for prospective vehicle purchasers. Costs on a lawyer and client basis were also ordered. Abas Auto Inc. v Superior General Partner Inc., 2018 MBQB 152 – this motion to amend a statement of claim to name two additional plaintiffs after expiration of the limitation period engages a discussion of the principles of misnomer and special circumstances. |
Practice Directions and Notices
| Schedule of Hearings (Holiday Break 2018) – this memorandum advises of the hearing schedule for motions and bails between Dec 24, 2018 and Jan 3, 2019. Pre-Trial Briefs in Civil Actions – this December 4, 2018 practice direction provides that, effective immediately, the responding party to a scheduled pre-trial conference must file a pre-trial brief with the court and serve it on all other parties at least seven days before the pre-trial conference. Service Changes Effective November 13, 2018 – this notice details several service changes made by Manitoba Justice as part of its ongoing efforts to improve services and access to justice. Changes have been made to digital audio recording access and e-filing, both effective November 13, 2018. In addition, a project to improve courthouse wi-fi access is being phased in on a priority basis. Manager Queen's Bench Trial and Motion Coordinator – this notice advises of the name and direct line of the new manager of Queen’s Bench Trial and Motion Coordination. |
Recommended Reading
| Challenging Technology’s Ability to
Produce Reliable Evidence
– this Slaw post links to three SSRN published articles on aspects of
technology which litigators need to understand to evaluate evidence. Rebooting the standard of review: Can it be done? – this CBA National article discusses how three upcoming SCC cases will have a profound impact on standard of review and administration of justice. Party’s Over: Duty of Care of Social Hosts Hinges on Fact-Specific Determinations of Foreseeability and Proximity – this BLG article discusses a recent Ontario Court of Appeal decision on social host liability. Self-Represented Litigants in the Courts: How They Are Shaping the Jurisprudence – this Slaw post from the National Self-Represented Litigants Project discusses the impact of the influx of self-represented litigants in Canadian courts and links to a case law database and research reports on the topic. |
Winter CPD: LSM
| Cultural
Diversity & Practising Law
– this program offers a practical approach to the complex and sometimes
thorny discussion of how to become more inclusive in an increasingly
diverse world. Presenter
Dr. Rehman Abdulrehman
will share tips and strategies to help you navigate these complex and
sometimes uncomfortable interactions and discuss potentially polarizing
issues such as the impact of unconscious bias and privilege. The
program will be held February 12, 2019, from noon to 4:00 pm in the Law
Society classroom, 3rd floor, 260 St. Mary Ave. Procrastination and Professional Liability Insurance Claims – staff from the Law Society Professional Liability Insurance Department will review the ethical and practical reasons lawyers should not procrastinate when they become aware of circumstances that may give rise to a claim and share tips on how to beat this common condition in this practical webinar scheduled to run from noon to 1:00 pm on February 13, 2019. Webinar group discounts apply where more than two people register together. |
2018 Mid-Winter Conference: MBA
| The Manitoba Bar Association’s 2019
Mid-Winter Conference
will take place January 24-25, 2019 at the Fairmont Hotel.
Continuing professional development sessions of interest to litigators
include: Part II of The Limitation
of Actions Act;
Drug and Alcohol Testing Policies in the Workplace; #MeToo - What it
Means for You; Non-Consensual Distribution of Intimate Images; Minding Your Own Business: Making, Marketing, and Managing Your
Practice; and The Impact of Artificial Intelligence on Canadian Legal
Research. For further details see the conference
brochure. |
ISSN 1916-3916