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eLaw - Litigation Law Update
December 2014 - No. 67
ISSN 1916-3916
In This Issue
Civil Litigants Can Request Disclosure of Intercepted Communications: SCC
IRSS Claimant Can Access Court for Discrete Income Loss Evaluation: MBCA
Clauses Mandating Arbitration Must Be Distinct and Specific: MBCA
Allowing Affidavit Evidence on a Motion to Strike for no Cause: MBQB
Knowledge of the Material Facts of Decisive Character: MBQB
Other QB Decisions
Leave Refused in Briones Case: SCC
Court of Queen's Bench Notice
Recommended Reading
Continuing Professional Development: LSM
2015 MBA Mid-Winter Conference

Civil Litigants Can Request Disclosure of Intercepted Communications: SCC

 

In Imperial Oil v. Jacques, 2014 SCC 66, the Supreme Court of Canada upheld a Quebec ruling allowing the plaintiffs in a class action access to information obtained from government wiretap recordings of third parties. The recordings were made by the Competition Bureau during an investigation into an alleged price-fixing conspiracy. Although the decision was made under Quebec's Code of Civil Procedure, it may apply in civil proceedings in other provinces according to these commentators:

IRSS Claimant Can Access Court for Discrete Income Loss Evaluation: MBCA

 
In Fontaine et al. v. Canada (Attorney General) et al., 2014 MBCA 93, the Court of Appeal agreed with the supervising judge's ruling that Indian Residential School Settlement claimants whose claims for loss of income exceed the maximum amount under the agreement can access the courts for the limited purpose of calculating their loss, yet still maintain their rights and benefits under the agreement. While the supervising judge did not err in his interpretation of the agreement, he did err in directing (1) that the judge hearing the actual income loss claim employ the "but for" test, and (2) that a judgment made by a court pursuant to the provision not be entered in the court records. In addition, he should not have applied the concept of access to justice as an interpretive principle, said the court, since "(t)he Cromwell Report did not exist at the time the contract was entered into and played no part in the Agreement." (para. 91)
Clauses Mandating Arbitration Must Be Distinct and Specific: MBCA

Parties to a private contract must clearly agree to arbitration before such a process can come into being, according to the Court of Appeal in Nodricks Norsask Seeds Ltd. v. Dyck Forages & Grasses Ltd., 2014 MBCA 79. In this case, the court found there was no express provision in the contract mandating binding arbitration, nor was there any evidence of a mutual agreement that the parties intended to have disputes under the contract determined by mandatory arbitration. The court set aside the application for enforcement and the motion judge's order recognizing the arbitrator's award. 

Allowing Affidavit Evidence on a Motion to Strike for no Cause: MBQB

While the general rule is that affidavits are not allowed on motions to dismiss for no cause of action under Queen's Bench Rule 25.11(d), that rule is not absolute according to the court in Abas Auto Inc. v. Superior General Partner Inc., 2014 MBQB 231. Although there is no clear authority either permitting or disallowing affidavits in these circumstances, "logic dictates that the general rule may admit of an exception" in exceptional circumstances, such as where a statement of defence had been filed two years before the motion and the affidavit in question contained evidence as to what transpired in this period (paras. 20-21).
Knowledge of the Material Facts of Decisive Character: MBQB

The applicant homeowners in Cahill v. Pasieczka, 2014 MBQB 217 were granted leave under s. 14(1) of The Limitation of Actions Act to commence a breach of contract and negligence action against the contractor who completed construction of their custom-built home in 2004. Although the applicants noticed movement in their basement floor as early as 2006, it was not until 2009 that an expert identified workmanship issues in connection with the construction services performed by the contractor, and it was late 2010 before the applicants received a report confirming that they had a claim with a reasonable prospect of success. Thus material facts of a decisive character were not known to the applicants before the expiry of the limitation period, and not more than 12 months had elapsed between the date the applicants knew the material facts and the date they applied for leave.
Other QB Decisions

Smith et al v. Lamirande et al, 2014 MBQB 207 - the court dismissed the claim of a trailer park owner for rent from two former tenants who had refused to pay a $3,000 transfer fee imposed when they sold their trailer. The park owner approved the sale of the trailer but never accepted rent from the new tenant. The court found that even if payment of the fee were enforceable, it would not create an extension of the tenancy. In addition, the trailer park owner's failure to mitigate by accepting rent from the new tenant was a complete answer to his claim.

Millar v. SREIT (Church) Ltd., et al, 2014 MBQB 198 - the court declined to dismiss an eight year old simple slip and fall claim for delay, given that the defendants were responsible for at least part of the delay and did not show actual prejudice. A third party claim, filed six years after the incident occurred but within the limitation period, was dismissed, because the length of the delay caused significant inherent prejudice to the third party.
Leave Refused in Briones Case: SCC

The Supreme Court of Canada refused Money Mart's application for leave to appeal from the Court of Appeal decision in Briones v. National Money Mart Co., 2014 MBCA 57, in which the court upheld the dismissal of Money Mart's motion to stay a proposed pay-day loans class action.
Court of Queen's Bench Notices 

The Court of Queen's Bench issued a notice on December 9, 2014 clarifying concerns about the need for motion briefs on the civil uncontested list.

A notice was also issued describing how key changes under The Court of Queen's Bench Small Claims Practices Amendment Act (passed last June but not yet proclaimed) will affect small claims' appeals. The amendments, part of the court's broader access to justice initiatives, will reduce the time and resources associated with de novo appeals.  

Recommended Reading  
Continuing Professional Development: LSM

Winter CPD Replays - Spend the colder months catching up on popular cpd programming by viewing video replays of past LSM programs. Refreshments are not included at the replays, but you are welcome to bring your own. There are still a few sessions left in December for those who need mcpd hours.

Everyday Ethics Series - Register for multiple sessions in this 6 month series of lectures on ethics issues featuring Allan Fineblit, Q.C., and save money as you learn what you need to know to practise responsibly. Upcoming sessions include Privilege and Confidentiality on January 9, 2015 and Mobility 101 on February 11, 2015. You can also register to attend one or more of the first three sessions in the series, which will be shown in video replay on January 6, 2015. 

Expert Opinion Evidence - counsel of all experience levels encounter challenges when working with expert witnesses. Experienced litigators Steve Vincent and Jeff Baigrie will walk you through what you need to know about expert opinion evidence at this lunch hour program on February 20, 2015. Register now to attend either in person or by tele-presentation.
2015 MBA Mid-Winter Conference  

The Manitoba Bar Association's Mid-Winter Conference will be held January 22-24, 2015 at the Fairmont Hotel. Continuing professional development sessions are scheduled all day Thursday and Friday, and include programs on the Court of Appeal, the Ins and Outs of Queen's Bench Practice, Construction Disputes, Restrictive Covenants in Employment Law, New Directions in Research, and many others. For further details see the brochure or registration form.
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