Winnipeg Law Firm - Fillmore Riley - Lawyers

Representative Clients 

• Counsel to and engagement partner for the Municipal General Insurance Program which provides liability and other insurance to all municipalities in Manitoba, other than the City of Winnipeg
• Counsel to and engagement partner for the Manitoba School Boards Association insurance program, which provides liability and other insurance to school divisions in Manitoba
• Western Financial Insurance Group Solutions
• Sovereign General Insurance Company
• American International Group, Inc.
• Various professional liability insurance programs for health-care professions

Representative Cases 

• Sul v. The Rural Municipality of St. Andrews, Manitoba et al., 2021 MBQB 152 (CanLII) By Notice of Application for judicial review, the Mayor of the Rural Municipality of St. Andrews, Joy Sul, challenged an amended Procedures By-Law and two resolutions that had the effect of allowing a majority vote so that any member of council could carry out the duties of chair of council meetings and spokesperson for the municipality. The Mayor alleged that the enactments were passed for improper reasons, including that they were passed in excess of jurisdiction, discriminatory, undemocratic, and not in compliance with procedural fairness and natural justice. The majority of municipal council opposed the application on the basis that they have a statutory duty to provide good government and to consider the well-being and interest of the municipality as a whole.  To that end, councils are charged with establishing their own procedures and governing itself in accordance with those procedures. Following the hearing, Justice V. Toews ruled that the Mayor failed to establish any of the wrongs she had alleged.  He wrote that “the majority of councillors were of the opinion that the mayor was not only undermining the unanimous vote the council had made in respect of a political decision over an important wastewater project, but that she was failing to properly control the proceedings in the course of public meetings related to that issue and other matters incidental or consequential to that matter." He further confirmed that the councillors did not act in bad faith, but instead acted out of concern for proper governance of council and the broader general public interest of the municipality.  The Mayor’s application was dismissed with costs awarded against her. 
• McLeod Estate v. Cole et al., 2021 MBQB 24 (CanLII) Bernice acted as counsel to a lawyer and two real estate agents in defending an action brought against them by family members who alleged that their father was not competent to sell some land (McLeod Estate v. Cole et al., 2021 MBQB 24). The Manitoba Court of Queen’s Bench dismissed all aspects of the plaintiffs’ claim.
• 5976511 Manitoba Ltd. et al. v., 2020 MBQB 7 (CanLII) Bernice was hired as external counsel by the plaintiff companies to argue two motions: the plaintiffs’ motion to enforce a settlement, and the defendants’ opposing motion to strike the motion to enforce the settlement as being an abuse of process. The motion to strike the settlement motion was granted by Madame Justice Grammond despite it being an exceptional remedy. The Court referenced Pearson v. Plester et al., a 1989 Manitoba Court of Appeal decision which confirmed that Rule 49.09 “recognizes the right of a party to a settled action to elect, where the other party reneges on the settlement, to enforce the settlement or to accept the other party’s repudiation of it.”  In deciding whether the election made by the plaintiffs was binding, the Court relied on the 2011 Ontario Court of Appeal decision in Charter Building Company v. 1540957 Ontario Inc. That case summarized the common law principles governing the doctrine of election as being a choice between two inconsistent courses of action, the choice affecting the rights or obligations of another party, that the party making the choice knew that the two courses of action were inconsistent, and that they had a right to chose between them, the choice was made unequivocally, and the choice was communicated to the other party.  As well, Grammond J. held that where there is clear communication of an election, an active step in litigation was not required to make the election a binding one.  
• Henderson v. Canadian Hockey Association Inc. et al, 2016 MBQB 51, Henderson v Elder, 2017 MBCA 45, 2018 CanLII 1153 (SCC) Following a trial in the fall of 2016, Bernice was successful in dismissing the statement of claim brought against the volunteer coach of the peewee hockey team following incidental physical contact between the plaintiff referee and a peewee player.  The plaintiff referee sought to hold Bernice’s client, the volunteer coach, responsible for damages arising out of the contact.  The trial Judge held that the plaintiff failed to meet his onus in establishing negligence and his claim was dismissed with costs. Following an appeal in 2017 by the plaintiff referee, the Manitoba Court of Appeal upheld the trial judge’s dismissal of the statement of claim, writing that there was no evidence of negligence, carelessness or intent to injure on the part of the unidentified player or the volunteer coach, and that he had failed to meet his burden to establish liability. In 2018, the plaintiff referee sought leave to appeal to the Supreme Court of Canada. His leave application was dismissed.

• Susinski et al. v. Municipality of Shoal Lake et al., 2017 MBQB 132 (CanLII) The plaintiffs claimed for house damage resulting from the municipal low-pressure sewer system.  Bernice acted for the municipality and brought a successful summary judgment motion.  The Court held that the plaintiffs failed to present sufficient evidence to show that the municipality’s standard of care was improper or that it breached the standard of care both in relation to the design and construction of the system, and with respect to post-construction issues.  The Court agreed that the plaintiffs could not establish a cause of action per the Rule in Rylands v. Fletcher.  The Court also applied section 395 of The Municipal Act and found that the municipality was not negligent. The plaintiffs’ claim was dismissed.