On Tapp

December 11, 2018

Qualification of your expert vs. reliability of the expert opinion

From Chris Wullum

As discussed in an earlier article on Expert Evidence, Its Threshold Admissibility and the Court’s Gatekeeper Role , the Court has a two-step process in determining whether expert evidence meets the criteria for admissibility in a case. This two-step process starts with an analysis of the four factors from R. v. Mohan, [1994] 2 S.C.R. 9, which sets out the threshold factors for admissibility:

  1. The evidence is relevant to some issue in the case;
  2. The evidence is necessary to assist the trier of fact;
  3. The evidence does not contravene an exclusionary rule; and
  4. The witness is a properly qualified expert.

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November 21, 2018

Equitable Subordination in Canada: Clear as Mud, eh?

From Kaitlan Buchko

The concept of equitable subordination is well entrenched in American bankruptcy law. In Canada, it is not so clear.

The doctrine of equitable subordination has been described by the authors of the leading bankruptcy text, the Annotated Bankruptcy and Insolvency Act, Houlden, Morawetz & Sarra, as enabling a “bankruptcy court, as a court of equity, to subordinate the claims of one creditor to those of other creditors in circumstances when the creditor has engaged in some type of inequitable conduct that has secured for it an unfair advantage or that has resulted in injury to either creditors or the debtor” (G§160).

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October 10, 2018

Daubert v. Merrell Dow Pharmaceutical and its application in Canadian law

From Chris Wullum

The Reliable Foundation Test

Daubert v. Merrell Dow Pharmaceutical Inc., 509 U.S. 579 (1993) is a well-known and often cited opinion issued from the United States Supreme Court concerning the rules and factors applicable to admitting expert scientific evidence in federal trial courts in the United States. The case introduced what is known as the “reliable foundation” test that overturned the previously long-standing “general acceptance” test pronounced in Frye v. United States, 293 F. 1013 (D.C. Cir 1923).

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September 4, 2018

Birth Injury Myths and Facts


Distinguishing the facts from the myths surrounding birth injuries can be an overwhelming and stressful endeavor for current and future parents alike. No parent enjoys thinking about the thought of something happening to their child—or remembering that something has happened to them—but understanding the facts (and your legal options) can be an immense aid for parents with children affected by birth injuries stemming from medical malpractice.

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August 21, 2018

What is Clinical Judgment in a Medical Malpractice Claim?

by Chris Wullum

Clinical judgment is a form of defence that is frequently relied upon by physician defendants in medical malpractice cases. In its simplest form, the defence is a tacit acknowledgement that an error or wrong decision was made, but that it is excused because it was made as an acceptable error as part of the physician’s exercise of clinical judgment.

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August 09, 2018


by Joe Caligiuri

It is very common for individuals to use the terms “employment” and “labour” interchangeably when seeking legal advice in these areas. It is important to understand that these areas are actually quite distinguishable at law. “Employment law” generally deals with individual employment contracts in which the employee is not a member of a union or bound by a collective agreement. On the other hand, “labour law” generally applies to work environments that are governed by either The Labour Relations Act in Manitoba or the Canada Labour Code where the employee is subject to a collective agreement and is a member of a union.

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July 18, 2018


by Chris Wullum

There are may different types of medical malpractice claims, but no matter the type of claim, there are three essential components that must be established that are common to all:

  1. Did the medical professional meet the standard of care expected of them in the circumstances? This is often referred to as whether the medical professional was negligent in the care provided.
  2. If the person did not meet the standard of care expected, did this cause actual harm or injury to the patient? This is referred to in the legal realm as causation.
  3. Lastly, what was the actual harm or injury caused to the patient. This is establishing the damages of the claim.

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July 11, 2018


by Brian E. Roach

The common theme behind ‘social enterprise’ is to use revenue generating, business-like activities, for the purpose or intention of accomplishing a social goal. There are numerous for-profit corporate structures that exist globally today, though only two of the most popular structures that are discussed below exist in Canada

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June 19, 2018

Proving causation on the basis of an adverse inference in medical malpractice claims.

by Chris Wullum

In the realm of medical malpractice lawsuits, one of the most important, and at times, most difficult issues for a plaintiff to establish is the legal element known as causation. In order to succeed with a medical malpractice claim, not only must the plaintiff prove that the doctors or nurses fell below the standard of care in the provision of their medical services, the plaintiff must also establish, on a balance of probabilities, that the breach of the standard of care was the legal cause of the person’s injuries.

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June 06, 2018

What are “Participant Experts”?

by Chris Wullum

In the decision of Westerhof v. Gee Estate, 2015 ONCA 55 , the Ontario Court of Appeal considered the issue of whether treating physicians could provide opinion evidence about a party’s medical condition without having to comply with the usual traditional formalities of an expert report and the Ontario Court Rule 53.03. The trial level decision, had concluded that evidence from treating physicians of diagnosis and prognosis are opinions, and that such evidence was only admissible to establish the basis of the treatment being provided and not as evidence to provide the truth of the diagnosis or prognosis.

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May 22, 2018


by Kathleen Coutts

In Manitoba, a non-unionized employee can be terminated by their employer at any time for essentially any reason. There are a few exceptions to this rule, such as terminating an employee for a protected ground under The Human Rights Code or not complying with certain provisions, such as leave provisions, under The Employment Standards Code. Generally however, an employee’s only recourse when terminated is to ensure they have received the appropriate amount of working notice of the termination, or pay in lieu of notice (sometimes commonly called ‘severance’).

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May 09, 2018

New Changes to Manitoba’s Court of Queen’s Bench Rules

by Tapper Cuddy LLP

Manitoba has recently made significant amendments to its Court Rules applicable to civil litigation cases in an attempt to provide for a more expeditious and efficient litigation process . These changes will certainly be welcome by members of the public that have sought better access to justice and a more cost effective method for dispute resolution.

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May 05,2018

Expert Evidence, Its Threshold Admissibility, and the Court’s Gatekeeper Role

by Chris Wullum

The Supreme Court of Canada in its decision, White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23 , discussed the role of an expert to the Court, the threshold admissibility requirements for expert evidence, and the Court’s gatekeeper rule in admitting expert evidence.

An Expert’s Duties to the Court

In the decision, the Supreme Court confirmed that an expert owes duties to the court when providing expert opinion evidence. The Court outlined three related components to such duties, namely impartiality, independence, and an absence of bias. Impartiality refers to the need that the opinion reflect an objective assessment of the question at hand. Independence ensures that it is a product of the expert’s own judgment, uninfluenced by whomever has retained her or the outcome of the case. A lack of bias ensures that the expert is not trying to unfairly favour one party’s position over another.

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April 17, 2018

What is JADR ?

by Sadira Garfinkel

“JADR” stands for Judicially Assisted Dispute Resolution. It is a mediation process offered by the Manitoba Court of Queen’s Bench to assist parties in the litigation process to come to a resolution without the need for a formal trial. A JADR is voluntary (meaning all parties must agree to participate) and relatively informal. The process is available for both civil matters and family proceedings.

How do parties “Opt In” to a JADR?

At any point after the close of pleadings (i.e. after the claim and defence have been filed), the parties can choose to initiate the JADR process. The process is initiated by the parties (or their counsel) jointly writing to the Associate Chief Justice of the Court of Queen’s Bench to inform the Court of their intention to make use of the process and to request that a judge be assigned to the matter.

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April 10, 2018

When should you appeal the decision to deny disability benefits?

by Jason Harvey

This is a question that I receive quite often. You’ve applied for long term disability insurance and your insurer has denied your claim . Or, you were receiving long term disability insurance and your insurer has terminated your benefits. Either way, you should have received a letter from the insurer advising you of its decision. Invariably, the insurer advises you that if you disagree with its decision you may appeal it to their appeal panel. It often gives you a certain period of time to do so.

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April 4, 2018


by Chris Wullum

Medical malpractice claims refer to lawsuits brought against health care professionals, such as doctors, nurses and hospitals, where substandard medical care was provided that resulted in preventable injuries. It is important to remember that not all adverse outcomes from medical care are the result of medical malpractice. Some complications and poor outcomes are simply unavoidable as there is never a guarantee of a perfect outcome from medical care, even if the treatment appears to be routine.

However, every year, a significant number of preventable adverse medical events occur in Canada that may involve substandard care, or negligence, by health care professionals. These situations may be suitable for pursuing a medical malpractice lawsuit.

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March 27, 2018

How do you challenge the validity of a Will in Manitoba?

by Kathleen Coutts

After a person’s death, their estate can usually be administered without much contention on the basis of the Will, and by seeking a Grant of Probate from the Court.

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March 23, 2018


by Chris Wullum

The decision to pursue a civil litigation case should only be done after careful consideration of the merits and risks involved and receiving legal advice on your options. Commencing the litigation process usually starts with the filing of a court document that names the parties to the lawsuit. Within this document, the parties that are bringing the claim and seeking certain relief or damages are known as the “plaintiffs”, and the parties being sued and contesting the claim for relief or damages are known as the “defendants”.

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