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. These concerns and the need for change were clearly set out by the Supreme Court of Canada in its decision of Hryniak v. Mauldin 2014 SCC 7 where the Court commented:

“Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the need of the particular case.”

Proportionality in Manitoba Court Rules

As is similar in other Canadian jurisdictions, the overriding principle to now govern the Civil Court Rules in Manitoba is proportionality, described as:

Orders and directions from court are to be proportionate to:

    a) the nature of the proceeding;
    b) the amount that is probably at issue in the proceeding;
    c) the complexity of the issues involved in the proceeding;
    d) the likely expense of the proceeding to the parties.

Summary Judgment in Manitoba Court Rules

While there are many smaller changes to the Court Rules that will enforce timeliness and specific processes for motions, applications, and pre-trials, the most significant change relates to the use and test for summary judgment motions. The Manitoba Court Rules have now adopted similar language to that contained in the Ontario Court Rules for summary judgment and therefore one may now expect that at least some of the Ontario case law applicable to summary judgment motions will become highly persuasive on Manitoba motions for summary judgment, including Hryniak v. Mauldin 2014 SCC 7 . Recently, the Manitoba Court of Queen’s Bench issued its first written pronouncement on the new summary judgment rules and their use in Manitoba in Free Enterprise Bus Lines Inc. v. Winnipeg Exclusive Bus Tours Inc. 2018 MBQB 64 .

In Manitoba, the test for summary judgment is no longer whether there is a genuine issue for trial. The new test, similar to the Ontario Rule, is whether there is a genuine issue requiring trial. This subtle change of language is clearly intended to make the summary judgment process another viable method for dispute resolution in certain cases. It now focuses the analysis on whether a trial is required to resolve the dispute or if another mechanism for resolution, short of trial, can be applied through summary judgment.

The Rules applicable to summary judgment have also been amended to offer expanded discretionary fact-finding powers to the summary judgment judge. On a motion for summary judgment, the judge is now permitted to:

    a) weigh evidence;
    b) evaluate the credibility of a deponent;
    c) draw any reasonable inferences from the evidence

unless it is in the interests of justice for these powers to be only exercised at trial.

[Rule 20.07(2)]

The procedure by which summary judgment motions are brought has also been amended to include the requirement of a pre-motion conference with the summary judgment judge. The conference judge will assess the nature of the action and the evidence intended to be relied upon by the parties and can direct that the motion not proceed by summary judgment to ensure that summary judgment is not being used inappropriately. However the conference judge must allow a proposed motion to proceed to hearing if satisfied that the summary judgment motion can achieve a fair and just adjudication of the issues in an action by providing a process that:

    a) allows the judge to make the necessary findings of fact;
    b) allows the judge to apply the law to the facts; and
    c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial

[Rule 20.03(5)]

The conference judge may also make any order on the conduct of the motion including an order or direction concerning the evidence on the motion which can include that oral testimony be presented at the motion. [Rule 20.03(6) & (7)]

Therefore, the overall impact of these changes to the Rule on summary judgment is to permit the Court to invoke a dispute resolution process that is short of a conventional trial when the judge has confidence that he or she can fairly resolve the dispute through such a mechanism, and where it serves the goals of timeliness, affordability, and proportionality. In effect, we could see the use of a form of mini-trial through the summary judgment process where certain issues are dealt with through affidavit evidence with cross-examination on the affidavits, and a short trial of oral testimony on the core factual issues of the case. Of course, every case and situation will be different and it will be up to the discretion of the motion judge to determine in what cases such a process would achieve a fair and just adjudication of the issues. But the new summary judgment Rules in Manitoba will no doubt provide greater flexibility and the opportunity to tailor a process to a particular case, and permit counsel to argue for a dispute resolution process that is more expeditious and cost effective than the traditional steps in a litigation case.

Early Trial Dates under Manitoba Rules

The amendments to the Manitoba Court Rules now permit pre-trial conferences to be scheduled at any time after the pleadings close. However, the judge will invoke a screening process prior to the pre-trial to ensure that the matter is sufficiently ready for a trial and may direct that the pre-trial conference not be scheduled until after a certain date or step in the litigation. [Rule 50.04(2),(3) & (5)]

This is because trial dates are to be set at the first pre-trial conference. The Court’s goal is to now provide trial dates within 9 – 15 months from the first pre-trial conference and no later than 18 months.

However, in order to accomplish this, the Court will overbook itself in terms of trial dates, and the Court has advised that it will generally expect counsel to book more than one trial in a given time period as well. If a double booking situation arises either from the Court or counsel, counsel and the Court are to be advised and a determination of what matter will proceed must then occur. These steps have been outlined in a recent Practice Direction from the Court.

This process is intended to ensure that civil cases can and will proceed in a timely and expeditious fashion in Manitoba.

As well, only the Chief Justice or his designate may adjourn a trial date on request of a party or a pre-trial judge. In this fashion there is expected to be greater consistency and control over adjournment requests to ensure there is a proper and efficient use of court resources.

Powers of the Pre-trial Judge

In another interesting shift in focus for civil litigation cases in Manitoba, once a pre-trial judge is appointed, the pre-trial judge has the ability to provide active and ongoing supervision of the proceeding and can make any order or give any direction considered necessary or advisable to facilitate the most just, expeditious and least expensive determination or disposition of an action. In this fashion, the Court again is allowed to tailor a suitable process to adjudicate a case in accordance with these principles.

As well, once appointed, the pre-trial judge is seized to hear all motions arising in the action (except for summary judgment motions). The pre-trial judge has the broad discretion to determine how the motion may proceed, including that it be heard on the basis of oral submissions only, or through written materials.

The Court has indicated that under this culture shift to promote more expedited and cost effective proceedings, parties no longer have the “right” to litigate every issue. Formal contested motions should now be the exception and only when absolutely necessary.

More details of these amendments to the Rules have been provided by the Court of Queen’s Bench in its comprehensive Practice Direction