October 10, 2018
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).Read More
September 4, 2018
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.Read More
August 21, 2018
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.Read More
August 09, 2018
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.Read More
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:
- 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.
- 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.
- Lastly, what was the actual harm or injury caused to the patient. This is establishing the damages of the claim.
July 11, 2018
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 CanadaRead More
June 19, 2018
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.Read More
June 06, 2018
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.Read More
May 22, 2018
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’).Read More
May 09, 2018
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.Read More
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.Read More
April 17, 2018
“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.
April 10, 2018
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.Read More
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.Read More
March 27, 2018
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.Read More
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”.Read More