Manitoba Medical Association v. Manitoba, (1999) 135 Man.R.(2d) 50 (QB)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 20, 1999
• Jurisdiction: Manitoba
• Citations: (1999), 135 Man.R.(2d) 50 (QB)

Medical Assoc. v. Man. (1999), 135 Man.R.(2d) 50 (QB)

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. JA.052

The Manitoba Medical Association (plaintiff) v. Her Majesty in Right of the Province of Manitoba, represented by the Minister of Health (defendant)

(CI 98-01-06517)

Indexed As: Manitoba Medical Association v. Manitoba

Manitoba Court of Queen's Bench

Winnipeg Centre

Oliphant, A.C.J.Q.B.

January 20, 1999.

Summary:

The plaintiff commenced an action against the defendant for breach of contract and bad faith. The defendant moved for summary judgment, dismissing all or parts of the plaintiff's claim. The plaintiff swore three affidavits in response to the motion. The defendant applied to strikeout one affidavit and portions of the other two affidavits.

The Manitoba Court of Queen's Bench ordered that some affidavit evidence be struck. The plaintiff's claim was not dis­missed.

Practice - Topic 3604

Evidence - Affidavits - General - Who may make - [See second Practice - Topic 5710 ].

Practice - Topic 3663

Evidence - Affidavits - Striking out - Opinion - The Manitoba Court of Queen's Bench stated that "[e]vidence that a wit­ness could not give in the courtroom can­not be included in an affidavit sworn or affirmed by him or her. Therefore, if, in an affidavit, a deponent expresses an opinion that he or she is not qualified to express, that opinion should be struck from the affidavit" - See paragraph 17.

Practice - Topic 3665

Evidence - Affidavits - Striking out - Argument - The Manitoba Court of Queen's Bench stated that "[e]vidence in an affidavit that is argumentative offends the Rules and ought to be struck" - See paragraph 16.

Practice - Topic 3665

Evidence - Affidavits - Striking out - Argument - [See first Practice - Topic 5710 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - The Man­itoba Court of Queen's Bench stated "[w]hile the court may strike out affidavit evidence that is irrelevant or immaterial, care must be taken not to confuse rel­evance with weight. ... evidence that is relevant to the case is neither scandalous nor vexatious under what is rule 25(11) of this court ... Where parties sign a docu­ment that they intend shall comprise the whole of an agreement between them, it is clear that evidence of negotiations leading to the signing of the document in question is irrelevant and therefore inadmissible ... Evidence that is both confidential and privileged is to be struck from an affida­vit" - See paragraphs 12 to 15.

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - [See both Practice - Topic 5710 ].

Practice - Topic 3667

Evidence - Affidavits - Striking out - Prejudicial matter - The Manitoba Court of Queen's Bench stated that "[b]efore affidavit evidence can be struck, the party who seeks the striking of that evidence bears the onus of demonstrating that the probative value of the evidence in question is both marginal and is substantially out­weighed by the danger of unfair prejudice, undue delay or needless presentation" - See paragraph 14.

Practice - Topic 5708

Judgments and orders - Summary judg­ments - Bar to application - Existence of issue to be tried - The plaintiff sued the defendant for breach of contract and bad faith - The defendant moved for summary judgment to dismiss all or parts of the plaintiff's claim, alleging that, inter alia, the parties' written agreement was clear and unambiguous - The Manitoba Court of Queen's Bench held that there was a live issue to be tried - Whether the written agreement expressed the parties' full inten­tion was in question - See paragraphs 12 to 24.

Practice - Topic 5710

Judgments and orders - Summary judg­ments - Evidence - The plaintiff sued the defendant for breach of contract and bad faith - The defendant moved for summary judgment to dismiss all or parts of the plaintiff's claim, alleging that, inter alia, the written agreement was the entire agreement, therefore, the affidavit evidence of the parties' negotiations, the agree­ment's implementation and the discussions regarding its implementation, filed in response to the motion for summary judg­ment, were irrel­evant and inadmissible - The Manitoba Court of Queen's Bench held that whether the written agreement was the entire agreement was a live issue -Therefore, the affidavit evidence of the parties' nego­tiations, the agreement's im­plementation and discussions relating thereto were not struck - The evidence of bad faith was not struck on the basis of being argumentative - No evidence was struck for containing expert opinion, being argumentative or speculative - See para­graphs 12 to 29.

Practice - Topic 5710

Judgments and orders - Summary judg­ments - Evidence - The plaintiff sued the defendant government for breach of con­tract and bad faith - The government moved for summary judgment and an order that affi­davit evidence on behalf of the plain­tiff be struck because the de­pon­ent, employed by the plaintiff, came into pos­session of the facts contained in his affi­davit when he was employed by the gov­ernment - The Manitoba Court of Queen's Bench ordered that the deponent's affidavit be struck - The employee had sworn an oath of office to the government that pre­cluded him from providing this type of evidence on behalf of his new employer, the plaintiff - The employee owed both a contractual duty and a fiduciary duty to the government not to disclose the information sworn to in his affidavit - See paragraphs 30 to 31.

Practice - Topic 5715

Judgments and orders - Summary judg­ments - Burden on applicant - The Mani­toba Court of Queen's Bench stated that "[i]f the defendant moving for summary judgment dismissing the plaintiff's claim meets the onus cast upon it, the onus then shifts and the plaintiff responding to the motion must demonstrate there is a gen­uine issue for trial. This may be accom­plished by the plaintiff's putting before the court evidence, usually by way of one or more affidavits, setting forth facts that indicate the issue or issues for trial that exist." - See paragraph 9.

Practice - Topic 5715.1

Judgments and orders - Summary judg­ments - Burden on respondent - [See Practice - Topic 5715 ].

Practice - Topic 5719

Judgments and orders - Summary judg­ments - To dismiss action - [See Practice -Topic 5708 ].

Cases Noticed:

Ontario (Attorney General) v. Dieleman (1993), 14 O.R.(3d) 697 (Gen. Div.), refd to. [para. 12].

Prenn v. Simmonds, [1971] 1 W.L.R. 1381 (H.L.), refd to. [para. 15].

Palansky v. Palansky (1989), 60 Man.R.(2d) 141 (Q.B.), refd to. [para. 16].

Hydro Electric Board (Man.) v. Inglis (John) Co. et al. (1996), 112 Man.R.(2d) 174 (Q.B.), refd to. [para. 17].

Authors and Works Noticed:

Burton, William G., Legal Thesaurus (2nd Ed.), refd to. [para. 27].

Counsel:

Valerie Matthews-Lemieux, for the plain­tiff;

E.W. Olson, Q.C., and Keith Labossiere, for the defendant.

This motion was heard by Oliphant, A.C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on January 20, 1999.