The authors discuss a number of developments arising in damages for personal injury. This paper does not discuss punitive damages, mitigation of damages or causation. It does however include a review of issues arising with regards to damages in personal injury and fatal accidents, consideration of loss of future earnings/earnings capacity, loss of housekeeping/homemaking capacity and finally structured settlements.

Damages in Employment Law – Grant Mitchell, Q.C. & Michael Bodner 

This PowerPoint presentation looks at the courts approach to awarding damages within Employment law through discussion of civil damages (reasonable notice), aggravated or bad faith damages, the Honda Canada v. Keays decision, entitlement and quantification after the Honda decision and punitive damages.

There is also a section which discusses damages in Human Rights claims, the mitigation of damages and further sources of damage awards including statutes and arbitrations.

How to Avoid Rejection in the Court of Appeal - Patricia Gough, Registrar - Manitoba Court of Appeal
This article can be found along with Patricia's speaking notes, and was presented at the June 2, 2009 Section Meeting of the Civil Litigation Section.

Judicially Assisted Dispute Resolution Practice in Manitoba – George Derwin

This article was presented as a CLE at the 2008 Mid-winter meeting.  Mr. Derwin gives an in-depth analysis of the JADR program in Manitoba.  The article includes information on differing types of negotiations styles, and statistics as to their success rates.  Details of the types of considerations counsel should take into account and how the process should be explained to clients are included.  Information on how the process is begun and carried out including an in-depth analysis of the actual meeting and negotiation phase are discussed.2006 Mid-Winter CLE - Evidence Issues and the Use of Experts

Expert Evidence, by Robert Tapper, Q.C.
Robert Tapper discusses various considerations in retaining expert opinions. He begins with the decision of whether to call an expert to the stand at all, suggesting this is unwise unless actually necessary. The paper goes on to the question of finding the right expert for the case. Two good sources are: those teaching in the field you are interested in, or those who have previously testified – even for the opposition. Once you have identified an expert, a difficult problem will be to convince them to become involved. Mr. Tapper recommends a few strategies to overcome this. After talking to the expert and pinpointing the question to be answered, it is important to discuss the report before the expert writes anything down. Mr. Tapper notes some of the Queen’s Bench Rules to watch for, before and during, the discovery process. Tips are given for direct examination of an expert on the stand. For example, it is important to do two things. The first is go over their CV to highlight their qualifications. The second is to have the expert identify and adopt their report so that the whole thing is entered as evidence.The paper ends with a section on cross-examining an expert, some specific lines of attack and with a warning to be careful in this territory.

Expert Evidence, by Bob McDonald
This article was written by Andrew Loewen and Robert McDonald for a CLE at the 2006 MBA Mid-Winter. It is a detailed discussion of the law surrounded the use of expert evidence, referencing both case law and academic articles. Mr. McDonald overviews the current state of the law of expert evidence in Manitoba starting with the Supreme Court’s decision in R. v Mohan and the admissibility of expert evidence. The first three factors from Mohan (1-the testimony is relevant, 2- the testimony is necessary to assist the trier of fact, 3- there are no exclusionary rules prohibiting its admission) are explained. The forth (4-The expert is properly qualified to give the opinion) is delved into more deeply, especially as it relates to novel sciences.Mr. McDonald then discusses the subject of “Draft Reports of the Opposition’s Experts”, concentrating on pre-trial disclosure, litigation privilege and the circumstance under which experts’ reports and notes will be protected from disclosure. The case law is inconsistent around the question of the extent of pre-trial disclosure required, some courts requiring a broad scope of disclosure while others adopt a narrower approach. The level of disclosure at trial can also depend from one jurisdiction to another, but in Manitoba, Mr. McDonald suggests it would be prudent to assume disclosure of the draft report would be required. The section on disclosure is wrapped up by an examination of disclosure of fields notes and raw data.The next topic in the essay is “Your Own Expert” and tips are given for limiting disclosure of documents such as draft reports. Options include destroying the drafts which are not relied on or referred to, or speaking to the expert prior to the writing of the draft. However, whatever strategy is employed, it is important to read the following section on “Avoiding Improper Input into the Report.” If an expert is no longer independent, in that counsel had meaningful input into the report, then in Manitoba the court may will likely give less weight to the report.The article finished up with some short sections with practical advise. First, techniques for qualifying your expert in court are described. Going over his or her CV and specific area of expertise is recommended. Second, Mr. McDonald gives advise for cross-examination of opposing experts, including a simple on-line search of the expert’s name. Finally, the possibility of summary judgment in some limited circumstances is considered.

2007 Mid-Winter CLE - Defamation Actions for Civil Litigators

Defamation Litigation - Some Thoughts from a Defence Perspective, by Jonathan Kroft and Wilbert Heather
These thoughts on defamation litigation from the defence perspective were presented at the 2007 MBA Mid Winter Conference by Jonathan Kroft with assistance in preparation by Wilbert Heather. They started with the basic principles such as the plaintiff’s prima facie case and common defences. Common defences included truth or justification, fair comment, consent, and absolute or qualified privilege. Another basic principle they considered was malice, although commonly understood as spite or ill-will, in the defamation context, defined as any indirect motive or ulterior motive to the duty and occasion giving rise to the qualified privilege defence. It could also be established by showing that the defendant spoke dishonestly or in knowing or reckless disregard for the truth. Other things to note were that a defamation action would be heard by judge and jury and media publications required notice of intention to sue be given. They then looked at some practical considerations for the defence and noted that the case could be emotionally charged, advised counsel not to forget the jury, assess the case and understand the defences before responding. They urged counsel to first consider if the defendant admitted to publishing the statement the plaintiff alleged, whether the statement was fairly interpreted as referring to the plaintiff, whether the statement was defamatory to the plaintiff and what the “sting” of the statement was or what it said about the plaintiff. They advised that if there was a disagreement about the interpretation of the statement that it could be diffused by a clarification of the intended meaning and an apology for any misinterpretations. Then Mr. Kroft and Mr. Heather directed defence counsel to ask if the statement was a statement of fact or opinion, and if it was fact, if the defendant would be able to prove it. If it was a statement of opinion, ask if the defendant would be able to prove the underlying facts and what the underlying facts were. Question whether there was a consent defence, or if the statement was made on an occasion of absolute or qualified privilege. They counseled lawyers when first responding to consider their objectives. Mr. Kroft and Mr. Heather reminded that first responses often go to the jury so to consider what kind of a response would look best in the circumstances. Also, without having time to investigate a justification defence, the defendant could in his or her first response to an allegation of falsehood, request the plaintiff to provide sufficient information to clarify the facts the plaintiff claims are correct. They also recommended careful consideration of whether or not to apologize. If an apology is appropriate, the defendant must decide whether to consult the plaintiff on the form of apology and must keep in mind that ineffective apologies could aggravate rather than mitigate damages. They also discussed whether or not to request a release in return. Mr. Kroft and Mr. Heather suggested counsel consider procedural issues such as the strict rules of pleading, the plaintiff’s obligation to provide particulars, pleading alternate meanings or fair comment, the rules relating to attacking the plaintiff’s reputation, providing a copy of the statement of defence before filing and disclosure of financial records. They concluded that defamation was a deterrent to bad publicity and a way for the victim to receive compensation. They identified the field as an exciting but stressful one do to the emotional nature of the cases and the rapid evolution of communication.

So, You Think You've Been Defamed: A Primer for Plaintiffs' Lawyers, by Patrick Riley
This primer on defamation from the plaintiff’s perspective was presented at the 2007 MBA Mid Winter by Patrick S. Riley with preparation assistance by Jack Fleming. Mr. Riley first warned that only in rare circumstances should a defamation action be pursued because it often made the problem worse by propagating the defamatory statement further. If it was pursued, he and Mr. Fleming explained only an individual or corporation could be defamed but not the government or groups. It was a criminal code offence however to communicate a statement in public that incited hatred against an identifiable group when that incitement was likely to lead to a breach of the peace. They looked at the three components of defamation, the first of which was that the words which the plaintiff complained about were defamatory. The general test was whether the words tended to lower the person’s reputation in the eyes of reasonable people in the community. There was extensive case law on the definition of reputation as relating to conduct, morals, and integrity. The second component was whether the words related to the plaintiff. The general test was whether the ordinary sensible person to whom the words were published would understand them as relating to the plaintiff. The plaintiff did not have to be expressly identified as long as he or she was referenced by association, caricature etc. but the words must have referred to the plaintiff. If the defamatory statement was about a group of people there must be something pointing to a particular member in order for that member to sue. The third component was that the statement was published to a third party, with a broad definition of publish as possibly having been verbal, written, or by gesture. Also, the defendant must be responsible for the publication. They considered defences such as truth or justification. If the alleged defamation was true there would be no liability. It only had to be generally justified but not necessarily the whole truth of the matter. Another defence was consent. Where a plaintiff had consented, authorized, procured or invited the comment he or she could not recover. Consent could be express, implied, and manifested by words or action. The consent was only relevant if related to the actual statement and if it was published to people legitimately interested in the information. The extent of the defence of absolute privilege was considered. Qualified privilege was examined next. The general rule was that an occasion was privileged if a statement was made in discharge of a legal, social or moral duty or to protect some interest and if it was made to a person who had a duty to receive it. The test for whether there was a duty was whether persons of ordinary intelligence, or the majority of right minded persons would have considered it a duty to communicate the information. The test was based on public policy, utility, convenience and could trump private interests. Legally it would rebut the presumption of malice in defamatory words. For example it was not defamatory to make a police report. Protected reports were originally a common law defence but partially became statutory as well. Reports of judicial proceedings, etc., were protected. The reports typically must have been fair and accurate for the defence to apply. Fair comment was the last defence explored. Mr. Riley and Mr. Fleming made notes on damages and procedural matters including a limitation defence, notice of action to a newspaper or broadcasting station, and pleadings. They also noted similar actions including malicious prosecution, injurious falsehood and criminal defamatory libel.