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Civil Litigation

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Thursday, September 22, 2016 @ 8:00 PM

Tort Law - Negligence - Duty and standard of care - Standard of care

Appeal by the plaintiffs from trial judgment dismissing their action for breach of contract and negligence. The respondent roofing contractor had been retained by the appellants to inspect and maintain their home’s roof. The appellants alleged that as a result of the defendant’s faulty work and failure to warn them of the deteriorating condition of the roof, substantial water damage was caused to their home. Expert evidence adduced by the appellants at trial indicated that the cause of the leaks was the scuppers on the roof and that defendant failed to perform proper repair of the scuppers. The defendant’s expert testified that the deterioration was directly related to a failed vapour barrier and insulation, rather than issues related to the roof. The trial judge discounted the expert reports. He accepted the defendant’s evidence that the windows, and not the roof, were the cause of the water penetration through the walls of the home, as demonstrated by a seal test performed by the defendant for the original owners and prior to the plaintiffs taking possession of the home. He found there was no negligent misrepresentation, as the poor design and original construction of the roof, including faulty installation of the vapour barrier and insulation material, could not have been known to the defendant. The judge concluded the plaintiffs had suffered no loss caused by the negligence or breach of contract of the defendant over and above the amounts which had been reimbursed by insurance. ... [read more]

Thursday, September 15, 2016 @ 8:00 PM

Roaming fees  class action moves forward

The Quebec Court of Appeal has given the go-ahead to a class-action lawsuit against Canada’s four leading telecommunication firms over international roaming fees charged to Quebec mobile phone users. ... [read more]

Thursday, September 15, 2016 @ 8:00 PM

Civil Litigation - Limitation of actions - Time - When time begins to run - Discoverability

Appeal by Festival Hall Developments (Festival) from the dismissal of its motion for summary judgment dismissing Galota’s action against it as statute-barred. Galota broke her arm on May 13, 2006, having fallen from an elevated dance floor at Republik, a nightclub in a building owned by Festival. Galota retained a lawyer and immediately sued Republik, but did not immediately sue Festival. Republik defended the action and delivered a statement of defence in May 2008. Neither Republik nor its insurance adjuster alleged any other party was responsible for Galota’s injuries. At a November 2009 discovery, Galota learned for the first time that before opening, Republik had extensively renovated the nightclub, including the dance floor, and that Festival had some involvement in the renovations. Republik closed in March 2009. Republik’s insurer became insolvent. Less than two years after the discovery took place, and five and one-half years after the accident, Galota sued Festival as an occupier of the nightclub. Festival’s motion for summary judgment was dismissed. The judge found that the limitation period of two years started to run against Galota on the date of the discovery. He noted that Galota was not put on notice of, and did not show a want of diligence in investigating the potential involvement of the landlord in the design and construction of the elevated dance floor. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Civil Litigation - Civil procedure - Discovery - Production and inspection of documents - Privileged documents - Crown privilege or public interest - Documents prepared in contemplation of litigation

Appeals by the federal and provincial Crown defendants from a documentary production ruling involving determination of the scope of litigation privilege. The plaintiff’s daughter and another individual were shot and killed in their home. The Crown believed the murder arose from the daughter’s involvement in a marijuana grow operation. A neighbour reported the gunshots to police. RCMP attended the neighbourhood but did not speak to the neighbour and left the scene after failing to detect evidence of a shooting. The plaintiff’s daughter was paralyzed in the shooting and unable to call for assistance. She was found by a neighbour four days later and died en route to hospital. Four individuals were charged in connection with the shootings. Three individuals pled guilty and the alleged mastermind behind the shootings awaited trial. In 2011, the plaintiff filed a notice of civil claim on behalf of her daughter’s estate seeking damages based on inadequate investigation of the shooting by the police. The plaintiff received disclosure comprised of the RCMP investigative file, police disciplinary files, and documentation of internal and external reviews of the incident. The plaintiff applied for production of documents contained in two RCMP investigative briefs prepared for the criminal prosecution of those responsible for the murders. The Crown defendants took the position that the documents were subject to litigation privilege, as the briefs contained information that would corroborate evidence of key witnesses, including the plaintiff. In ordering partial disclosure, the chambers judge found that the asserted litigation privilege did not apply to the plaintiff as a non-party to the criminal proceeding. Public interest immunity could be overcome with appropriate redactions and restrictions on use of the documents. The Crown defendants appealed. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Administrative Law - Judicial review and statutory appeal - Practice and procedure - Limitation periods

Appeal by the Province of New Brunswick (Province) from a decision on a preliminary issue in an application for judicial review. In his 2015 budget speech delivered on March 31, 2015, New Brunswick’s Minister of Finance announced the closure of courthouses in certain areas of the province. The announcement was repeated in a news release issued that same day. Neither the Minister’s statement nor the news release identified a specific date upon which the facilities would be closed. More than six months later, on October 7, 2015, virtually on the eve of the closures, the Charlotte County Barristers’ Society (Society) commenced an application to the Court of Queen’s Bench for judicial review of the Province’s decision. A judge of the Court of Queen’s Bench held that, for judicial review purposes, the decision crystalized on the date the public was made aware of the specific date the facilities would close (October 26, 2015) and it was only then that the limitation period began to run. The Province submitted that the judge erred in determining that a date nineteen days subsequent to the filing of the Society’s application for judicial review was the date of the decision for judicial review purposes. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Embracing the digital trial

The rise of the e-trial, like all other technological developments, comes with challenges to its widespread use. Despite these challenges, lawyers need to be comfortable with the use of technology at trial or risk falling behind. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Courts are plugging in for good reason, but there is a technology learning curve

The rise of the e-trial, like all other technological developments, comes with challenges to its widespread use. Despite these challenges, lawyers need to be comfortable with the use of technology at trial or risk falling behind. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Limited scope retainers, fixed fee options needed to stem tide of self represented litigants

Increasing numbers of civil litigants are self-represented, especially in family cases. Many people start out with a lawyer, but faced with insurmountable costs, people of modest means are increasingly choosing to represent themselves. Yet somehow, for lawyers, the legal pie is shrinking. Increasing numbers of lawyers are underemployed. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Common interest privilege taken too far 

The law as it relates to common interest privilege remains unsettled in Canadian jurisprudence and can best be described as an ill-defined legal concept that has been stretched to a point of absurdity. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Ignore Bulk Sales Act requirements at your peril

Countless solicitors have been faced with the following question: should a buyer of assets waive a seller’s compliance with the Bulk Sales Act? ... [read more]