JD62H1 et. al. v. Geoffrey E. Budden et. al., 2023 NUCJ 11

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: JD62H1 et. al. v. Geoffrey E. Budden et. al., 2023.

NUCJ 11 Date: 20230509 Docket: 08-22-037, 08-15-754 Registry: Iqaluit JD1HI, JD2HI, JD3HI, JD4HI, JD5HI, JD6HI, JD7HI, JD8HI, JD8HI, JD9HI, JD10HI, JD11HI, JD12HI, JD13HI, JD14HI, JD15HI, JD16HI, JD17HI, JD18HI, JD19HI, JD20HI, JD21HI, JD22HI, JD23HI, JD24HI, JD25HI, JD26HI, JD27HI, JD28HI, JD29HI, JD30HI, JD31HI, JD32HI, JD33HI, JD34HI, JD36HI, JD37HI, JD38HI, JD39HI, JD40HI, JD41HI, JD42HI, JD43HI, JD44HI, JD45HI, JD46HI, JD47HI, JD48HI, JD49HI, JD50HI, JD51HI, JD52HI, JD53HI, JD54HI, JD55HI, JD56HI, JD57HI, JD58HI, JD59HI, JD60HI, JD61HI, JD1HII, JD2HII, JD3HII, JD4HH, JD5HIII, JD6HII, JD7HH, JD8HII, JD9HII, JD10HII, JD11HII, JD12HII, JD13HII, JD14HII, JD15HII, JD16HII, JD17HII, JD18HII, JD19HII, JD20HLI, JD21HII, JD22HH, JD23HII, JD24HII, JD25HII, JD26HII, JD27HII, JD28HH, JD29HII, JD30HII, JD31HH, JD32HII, JD33HII, JD34HII, JD35HII, JD36HII, JD37HH, JD38HII, JD39HII, JD40HH, JD41HII, JD42HII, JD43HII, JD44HII, JD45HII, JD46HII, JD47HII, JD48HII, JD49HII, JD50HH, JD51HII JD52HII, JD53HII, JD54HII, JD55HI, JD56HH, JD57HII, JD1HIII, JD2HIH, JD3HIII, JD4HIII, JD1HIV, JD1A, JD2A, JD3A, JD4A, JD1HUK, JD2HUK, JD3HUK, JD4HUK, JD5HUK, JD6HUK, JD7HUK, JD8HUK, JD9HUK, JD10HUK, JDUHUK Plaintiffs/Respondents -and- GEOFFREY E.

BUDDEN and STUART A. MORRIS and GEOFFREY E. BUDDEN and STUART A. MORRIS cob. as BUDDEN MORRIS LAW OFFICES, “BUDDEN MORRIS”, OR “BUDDEN MORRIS BARRISTERS & SOLICITORS Defendants/Applicants __________________________________________________________________ Before: Madam Justice Cooper Counsel (Plaintiffs): Counsel (Defendants): A. Regel T. Kruger Location Heard: Date Heard: Iqaluit, Nunavut March 30, 2023 Matters: Decision on application to compel a witness to answer questions

REASONS FOR DECISION (NOTE: This document may have been edited for publication) I.

INTRODUCTION [ 1 ] This litigation involves lawsuits by abuse victims against their former lawyers, in which it is alleged that the former lawyers improperly withheld settlement funds, disbursements, and HST thereby depriving the victims of what they were entitled to. [ 2 ] The allegations in the Statements of Claim (of which there are two) are serious and, as characterized by counsel for the Defendants, border on allegations of fraud. [ 3 ] The allegations made against the Defendants in motions currently before the court are also serious, as they allege conduct by the Defendants in the course of the litigation that amounts to a serious breach of professional ethics and an attempt to pervert the course of justice. [ 4 ] While the allegations are serious, so too is the making of them.

If successful in proving the allegations in either the Statements of Claim or the allegations of misconduct in the course of litigation, one would expect significant consequences for the Defendants. Conversely, if unsuccessful, the nature of the allegations warrant a significant consequence for the Plaintiffs. [ 5 ] I am not required to resolve any of the allegations at this stage. This is an application to compel answers to questions put to an affiant during cross-examination on an affidavit. II. THE MOTIONS [ 6 ] There are two pending applications.

One is brought by the Plaintiffs which seeks, amongst other remedies, to have the Defendants declared in contempt of court for failing to comply with court ordered disclosure and for a declaration that the Defendants have abused the court process. As stated, the allegations made are serious. A further application is brought by the Defendants for

summary dismissal in relation to some of the Plaintiffs on the basis that they have commenced the action beyond the limitation period. [ 7 ] With this application the Defendants seek to have the Plaintiffs provide answers to questions put to an affiant during cross- examination on her affidavit. The affidavit was sworn in support of the following: • in response to a motion to dismiss action # 08-22-037 CVC for a missed limitation date (summary dismissal motion); • to permit Cooper Regel to access and review records of all Plaintiffs, including those who have not signed a waiver to turn over client files;

• for a declaration that the Defendants were in contempt of court orders issued by Justices Johnson, Browne, and Bychok; • for an order that the Defendants have engaged in a pattern of abuse of the court process. III.

OVERVIEW OF THE LITIGATION [ 8 ] In 2015 the Plaintiffs commenced an action against their former counsel alleging that settlement funds in relation to abuse claims had not been properly paid to them and that various disbursements and taxes had been wrongfully withheld. [ 9 ] The Plaintiffs were in court a number of times in 2015 and 2016 seeking the opening of the original court files in relation to the abuse claims and disclosure of the client files from the Defendants, their former counsel on the abuse claims. [ 10 ] In June of 2015, Justice Mahar issued a consent order which unsealed a court file on some of the original abuse claims so that the Plaintiffs could access it (contrary to paragraph 3 of the AC Affidavit this order was not made over the objections of the Defendants nor was it made by me, although I signed for Mahar J.). [ 11 ] On September 14, 2015, Justice Johnson issued two orders; one in relation to court file #027 and one in relation to court file #276, both of which are court files relating to the abuse claims.

Those orders unsealed the court files so that Plaintiffs’ counsel could access them. While the Defendants did not consent to these orders, neither did they object. The orders also directed the Defendants to: “promptly deliver to Ahlstrom Wright Oliver and Cooper, upon being provided with an authorization….signed by the client, the complete file of the client…..” [ 12 ] In June of 2016, the Plaintiffs brought a motion seeking various forms of relief, including a declaration that the Defendants be found in contempt for not complying with their disclosure obligation pursuant to the Orders of September 14, 2015.

The affidavit of PD was filed in support of the motion. Justice Browne granted an Order which, amongst other things, restated the obligation of the Defendants to provide disclosure. The motion for a finding of contempt was adjourned sine die . [ 13 ] Shortly thereafter the litigation was derailed as a Third Party Notice filed by the Defendants placed the Plaintiffs’ counsel in a potential conflict.

The Third Party Notice alleged that the Plaintiffs’ counsel failed to take steps to recover the Harmonized Sales Tax (HST) which they alleged had been wrongfully withheld by the Defendants when they were acting in the abuse claim. This potential conflict prevented Plaintiffs’ counsel from acting on behalf of their clients, thereby stalling the litigation.

The Third Party Notice issue wound its way to the Court of Appeal and back to the trial level and case management, and the alleged conflict was addressed in a manner that permitted the litigation to continue. [ 14 ] The contempt and abuse of process motion was set to be heard on March 30, 2023. The Plaintiffs filed the affidavit of AC on December 20, 2022, in support of the motion. The Plaintiffs allege that the Defendants are in contempt of court by failing to provide the required disclosure of the client files in a timely manner.

They also allege that the Defendants have abused the court process by misconduct that falls into the following general categories: • improperly withholding client files or providing incomplete files which were misleading; • unnecessarily cross-examining PD on her affidavit (in an earlier Notice of Motion this is described as an attempt to delay the process (see Notice of Motion dated August 25, 2016); • deliberately delaying in the filing of a defence so that limitation periods for the recovery of Harmonized Sales Tax (HST) would expire and they could file a Third Party Notice;

• deliberately delaying in the filing of a Third Party Notice so as to ensure that the limitation period for the recovery of HST payments had lapsed and a claim could be made against the Plaintiffs’ counsel; • intentionally withholding from the court their intention to file the Third Party Claim; • generally undermining the relationship between the Plaintiffs and their counsel. [ 15 ] AC was cross examined on the affidavit during the course of which she refused to answer a number of questions.

This application is to compel AC to answer. [ 16 ] It is necessary to deal with the motion to compel answers before the contempt/abuse of process motion can be heard. As a consequence, the March 30, 2023 date for the contempt/abuse of process motion was used to argue the motion to compel answers and the contempt/abuse of process motion adjourned. [ 17 ] The

summary dismissal motion brought by the Defendants was also scheduled to be heard on March 30, 2023 but did not proceed for reasons which will be discussed. [ 18 ] This is my ruling on the motion to compel answers. IV. ANALYSIS A. The Affidavit [ 19 ] Affiants may swear in affidavit form only what they would be permitted to give as evidence in court.

They may swear to statements based on information and belief provided the facts are not contentious and the source of the information is specified in the affidavit (Rule 373(3)). [ 20 ] In much the same way a court may curtail viva voce evidence when it is straying into irrelevant or improper matters, so too parts of an affidavit may be struck if they are irrelevant, scandalous, or otherwise oppressive (Rule 375). [ 21 ] The affidavit at issue in this application presents some difficulties for the court. The affidavit is sworn by a former legal assistant, now articling student, of Plaintiffs’ counsel.

This is not uncommon and is usually utilized to put before the court non-contentious information such as the fact that a document was served or that certain correspondence was exchanged. The tenor of this affidavit is different. At times it tends towards opinion and at times it presumes the issue that is for the court to determine. Read in conjunction with the cross-examination, one is left with the impression that it is more the affidavit of counsel for the Plaintiffs than that of the affiant. [ 22 ] I have considered whether all or parts of the affidavit should be struck.

I have opted to strike those aspects of the affidavit that are clearly opinion and contentious. [ 23 ] The following is struck from the affidavit: • paragraph 25: second sentence as it presumes a breach of the court orders;

• paragraph 28: the affiant cannot speak to the state of mind of the Defendants or their counsel; this is a matter for argument; • paragraph 29: the affiant cannot speak to the state of mind of the Defendants or their counsel; this is a matter for argument; • paragraph 48: the last sentence is struck, this is a matter for argument. [ 24 ] As stated, I have struck only the most egregious aspects of the affidavit.

The tenor of some remaining aspects of the affidavit remain a concern as they tend to assume certain conduct on the part of the Defendants which is in fact the precise issue that the court is asked to determine on the application for a finding of contempt/abuse of process. This will undoubtedly be obvious to the court hearing the motion and may affect the weight to be given to the affidavit. B.

Permitted Scope of Cross-Examination [ 25 ] For the purposes of determining if the affiant should be compelled to answer questions, it is necessary to consider what is the proper scope of the cross-examination. [ 26 ] As noted earlier, there are two pending motions to be scheduled; the motion brought by the Plaintiffs for contempt/abuse of process and the motion brought by the Defendants for

summary dismissal of certain aspects of file #037. The affidavit was sworn both in support of the contempt/abuse of process motion and in response to the

summary dismissal motion. [ 27 ] As also noted earlier, the contempt/abuse of process motion and the

summary dismissal motion were both scheduled to proceed on March 30th, 2023. The contempt/abuse of process motion was adjourned pending the outcome of the motion to compel answers. Despite having filed the motion to compel answers, the Defendants were prepared to proceed with the

summary dismissal motion on March 30th. I am advised that a discreet legal issue arose which required further consideration by the parties and for that reason the

summary dismissal motion was adjourned. [ 28 ] The Defendants seek to compel answers to some of the questions on the basis that they are relevant to the

summary dismissal motion. The Plaintiffs submit that since the Defendants were ready to proceed with that motion without a ruling on the motion to compel, they are now precluded from seeking answers on the basis that they are relevant on the

summary dismissal motion. [ 29 ] I disagree with this submission. The question to be determined is not whether the Defendants were prepared to proceed without the answers being provided, but whether the questions ought to be answered. The landscape has changed. The Defendants cannot be held to a strategic position taken at a time when the circumstances are entirely different than what they now are. [ 30 ] The scope of cross examination on an affidavit filed in support of a motion is narrower than the scope of examination of a party at Examinations for Discovery.

The principles are: • Cross-examination on affidavit is not a discovery. Discovery has a broader purpose and scope and therefore, questions are subject to a broader scope of relevancy. In cross examination on affidavit, the rules of relevance are more limited and the questioning necessarily more restrictive; • The person examined is a witness, not a party; • The answers given are evidence, not admissions; • The affiant can only be asked to produce documents over which he/she/they have custody or control;

• Generally, an absence of knowledge is an acceptable answer and thus the witness ought not to be required to provide undertakings in most cases.

Undertakings should be directed only where (1) the affidavit has referred to information or documents in the affidavit or deposed to things suggesting he/she/they would have had to review a document before swearing the affidavit; or (2) the undertakings are relevant to an important issue in the application, providing the information would not be overly onerous, and it would help the court significantly in making a decision; • Questions aimed at the affiant’s credibility are restricted to credibility of statements made in the affidavit. ( Baffinland Iron Mines v.

Inuavak et al, 2021 NUCJ 22 , citing Mallon v Norman Wells, 2021 NWTSC 14 ; Edmonton (City) v Gosine, 2020 ABQB 546 ; Alberta Treasury Branches v Leahy , 1999 ABQB 829 ). C. Privilege i. Solicitor and Client Privilege [ 31 ] Many of the answers sought were refused on the basis that they were protected by solicitor and client privilege.

In response, the Defendants submit that there was a loss of privilege as the affiant relied upon a review of the file to swear the affidavit. [ 32 ] The law is clear that if a party has set up a claim or a defence based on privileged communication they cannot then hide behind that privilege to prevent the allegations from being tested. There will be a loss of privilege to the extent necessary to permit the other party to test and respond to the allegations ( Mallon v. Norman Wells (Town) et al , 2021 NWTSC 14 , at paragraphs 28-29 ). ii.

Litigation Privilege [ 33 ] Parties to litigation may also claim that documents and information are subject to litigation privilege. Litigation privilege is applicable where the communication or documentation was for the dominant purpose of investigating and preparing for litigation ( Blank v. Canada (Minister of Justice), 2006 SCC 39 ). ii. Relevance [ 34 ] All of the questions put to a witness must pass the test of relevance. It is only if the question is relevant that the question of whether it might be protected by privilege or whether there has been a loss of privilege need be considered.

It is with that approach that I will address the refusals. D. The Refusals [ 35 ] The nature of the questions for which the Defendant seeks answers tend to fall into one of several categories. #1 - #7, #11 [ 36 ] These questions seek access to various parts of the Plaintiffs’ files. [ 37 ] The defendants seek information about the retainer agreement between the Plaintiffs and their counsel, including copies of

Contingency Fee Agreements (CFAs), copies of any Retainer Agreements, information as to whether HST is included in the agreements, and whether the agreements specifically included the return of HST by any particular method and whether AWOC took any steps to recover HST. [ 38 ] The Defendants submit that the date of the Retainer Agreements (whether CFA or other) is relevant to the issue of applicable limitation dates, which is the issue on the

summary dismissal motion. [ 39 ] Limitation dates have no connection to the date a lawyer was retained. The date the Plaintiffs retained their current counsel is of no relevance. [ 40 ] The Plaintiffs allege that the Defendants abused the court process by deliberately withholding disclosure until the time for filing for a HST refund had lapsed.

I do not view the date of the Plaintiffs’ retainer with their current counsel and whether current counsel ought to have applied for an HST rebate as being relevant on this issue as it is the conduct and intention of the Defendants that is at issue. [ 41 ] The Defendants submit that the information relating to the scope of the retainer and whether it specifically included recovery of HST is relevant to both the allegation of abuse of process, as the Plaintiffs allege that the Defendants deliberately thwarted the ability to recover HST by filing the Third Party Notice, and to the broader issue of the HST and who might have been responsible for its recovery. [ 42 ] In my view it is not necessary to consider the merits of the Defendant’s submissions regarding the relevancy of HST as the Plaintiffs answered the question in their reply, “HST was not specifically addressed [in the retainer agreements]”.

It would seem that this response also answers #4. #5 [ 43 ] The Defendants seek access to the entire file of the Plaintiffs on the basis that the affiant has sworn the affidavit based on a “review of the file”. The entirety of the file has no relevance to the motions before the court. [ 44 ] However, in my view there are discrete aspects of the Plaintiffs’ file that are relevant to the motions.

In particular, the Plaintiffs will argue in the abuse of process motion that the Defendants deliberately delayed in taking certain steps in the litigation so that they would be better positioned to file a Third Party Notice. The Defendants are entitled to test the information upon which the Plaintiffs will ask the court to find that the Plaintiffs have abused the court process. In support of this contention the Plaintiffs rely upon discussions at a case management conference and discussions amongst counsel in their office (see affidavit, paragraphs 19, 20, and 21).

The Plaintiffs are entitled to documentation from the Plaintiffs’ files that relate to the case management conference of August 16, 2016 and to the filing of the Third Party Notice. [ 45 ] The abuse of process allegations also allege that the Defendants deliberately withheld information from the Plaintiffs, rendering the Plaintiffs unable to file an application for an HST rebate on behalf of their clients.

The Defendants are entitled to the financial and account information from the original abuse claims that the Plaintiffs have on their files for those Plaintiffs who retained counsel prior to the expiration of the time for applying for a HST rebate. It is my understanding from case management that these plaintiffs are few in number. If necessary I will meet with counsel in the context of case management to identify those individual plaintiffs. #6 [ 46 ] The Defendants seek copies of all documentation referring to communications from Mr.

Regel’s office “informing those advancing the case” that proceeds would be divided according to the Intestate Succession Act . The Defendants submit that this information is relevant to the limitation period for a representative action. [ 47 ] Throughout this matter there appears to be confusion over the use of the term “representative action”. A deceased plaintiff can have their interests advanced in litigation by a representative (Rule 70). Alternatively, there might be a “representative action”, essentially a class action, pursuant to Rule 62 or the common law.

[ 48 ] In June of 2016 Justice Browne permitted additional plaintiffs to be added to file #754 (increasing the number of plaintiffs from 97 to 138). She also permitted that the interests of specified deceased plaintiffs could be advanced by a representative, pursuant to Rule 70. [ 49 ] To date, no application has been made to advance either file as a class action. Despite this, the Plaintiffs seemingly purport to do so in file #037.

It is not clear under what authority they do so. [ 50 ] In the context of refusal #6, the affiant is being questioned about deceased plaintiffs whose interests are being advanced by a representative. [ 51 ] As previously discussed, a limitation period has no relevance to the date counsel was retained. # 8 - # 10, #18 - #24 [ 52 ] These questions seek answers as to what communications Plaintiffs’ counsel has had with the Law Society of Nunavut regarding a complaint filed by Plaintiffs’ counsel against the Defendants. [ 53 ] These answers are not relevant to the motions.

The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion. #12 [ 54 ] In the Notice of Motion this refusal is set out as being refusal to answer the following question: “Are you aware that Mr.

Morton provided a USB to the Court in either late 2016 or early 2017”. [ 55 ] A review of the cross-examination transcript shows that no objection was taken to this question and the witness answered it (see page 102, lines 9-15). #13 [ 56 ] This question relates to the affiant’s knowledge regarding the report of an amicus who, in the scope of his work, reported to the court on the disclosure made by the Defendants. The report of the amicus is a matter of record. #14 [ 57 ] Asks why Mr. Regel is proceeding with the contempt motion at this time - this is not relevant. #15

[ 58 ] Was withdrawn. #16 [ 59 ] Was withdrawn. #17 [ 60 ] Asks the witness how the application advances the litigation. The Defendants argued that this is relevant to the affiant’s statement that there is a public interest in advancing the litigation and having the matter decided on its merits. This statement has been struck from the affidavit. The question is not relevant. [ 61 ] While this is an overview of my ruling on the motion to compel, attached as an Appendix is the specific ruling in relation to each question. V. CONCLUSION [ 62 ] The first Statement of Claim was filed in 2015.

Eight years later, the abuse victims and their former counsel seem no closer to having the matter resolved. While I appreciate that there are serious allegations of misconduct against the victims’ former counsel, some would say that at its essence, this is a taxation matter. [ 63 ] Regardless of how one views the matter, there is little doubt that the matter has taken on a life of its own. This litigation will not be permitted to continue on this seemingly endless course. [ 64 ] No applications are to be heard (including the two outstanding) or filed pending further direction from a case management conference.

Dated at the City of Iqaluit this 9th day of May, 2023 ___________________ Justice S. Cooper Nunavut Court of Justice APPENDIX

No. Undertaking No. Pg. No. (Transcript Cross-Examination of Anita Cardinal) Undertaking Ruling 1. Undertaking 1 Pg. 16 To produce the contingency agreements between AWOC and the Plaintiffs referred to by the witness Answer: Refused - Privileged and Irrelevant to the Issues Limitation dates have no connection to the date a lawyer was retained. The date the Plaintiffs retained their current counsel is of no relevance. 2. Undertaking 2 Pg . 85 To produce any retainer agreements of all the Plaintiffs in the action Answer: Refused Limitation dates have no connection to the date a lawyer was retained.

The date the Plaintiffs retained their current counsel is of no relevance. 3. Undertaking 3 Pg.85 To advise whether or not HST is included in retainer agreements Answer: Refused "This undertaking should have been refused as it is irrelevant to the issues and privileged. Without waiving privilege any further than required to answer, HST was not specifically addressed". In my view it is not necessary to consider the merits of the Defendant’s submissions regarding the relevancy of HST as the Plaintiffs answered the question in their reply, “HST was not specifically addressed [in the retainer agreements]”. 4.

Undertaking 4 Pg. 85 Whether the retainer specifically included return of HST by any particular method, whether the retainer specifically excluded the possibility of making an HST application, and whether the Cooper Regel law firm or AWOC, its predecessor, undertook to any specific mea n s to recover HST payments Answer: Refused - Irrelevant and Privileged In my view it is not necessary to consider the merits of the Defendant’s submissions regarding the relevancy of HST as the Plaintiffs answered the question in their reply, “HST was not specifically addressed [in the retainer agreements]”.

5. Undertaking 5 Pg. 115 To produce the entire Cooper Regel file with respect to this matter Answer: Refused The Plaintiffs are entitled to documentation from the Plaintiffs’ files that relate to the case management conference of August 16, 2016 and to the filing of the Third Party Notice. The abuse of process allegations also allege that the Defendants deliberately withheld information from the Plaintiffs, rendering the Plaintiffs unable to file an application for an HST rebate on behalf of their clients.

The Defendants are entitled to the financial and account information from the original abuse claims that the Plaintiffs have on their files for those Plaintiffs who retained counsel prior to the expiration of the time for applying for a HST rebate. It is my understanding from case management that these plaintiffs are few in number. If necessary I will meet with counsel in the context of case management to identify those individual plaintiffs. 6. Undertaking 7 Pg. 159 To provide all documentation referring to communications from Mr.

Regel's office "informing those advancing the case" that proceeds would be divided according to the Intestate Succession Act Answer: Refused - Personal, Privileged and Irrelevant As previously discussed, a limitation period has no relevance to the date counsel was retained. 7.

Undertaking 11 Pg . 176 To produce any and all communications from "some" individuals to Cooper Regel law firm to make a claim on their behalf Answer: Refused - Irrelevant and Privileged In my view it is not necessary to consider the merits of the Defendant’s submissions regarding the relevancy of HST as the Plaintiffs answered the question in their reply, “HST was not specifically addressed [in the retainer agreements]”.

8. Undertaking 12 Pg. 179 To advise whether the Cooper Regel law firm has received any correspondence from the Law Society of Nunavut with respect to the conclusion of an investigation into Mr. Budden's conduct Answer: Refused - Irrelevant These answers are not relevant to the motions. The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion. 9.

Undertaking 13 Pg. 179 To provide the date in which communication from the Nunavut Law Society was received by the Cooper Regel law firm Answer: Refused - Irrelevant These answers are not relevant to the motions. The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion. 10 .

Undertaking 14 Pg. 180 To provide records of any phone calls, e-mail , correspondence or other communication received by the Cooper Regel law firm from the Nunavut Law Society Answer: Refused - Irrelevant These answers are not relevant to the motions. The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion. 11.

Objection Pg. 16 "Well, the affiant has indicated that the AWOC was retained in the spring of 2015 by a number of former clients. One issue in this case is the limitation period so the date of retainer is relevant for that reason and the witness has just spoken to and mentioned filed contingency agreements. I have not seen those, so I would like to know where they were filed and when" Object to Question Limitation dates have no connection to the date a lawyer was retained. The date the Plaintiffs retained their current counsel is of no relevance. 12. Objection Pg. 102 "Are you aware that Mr.

Morton provided a USB to the Court in either late 2016 or early 2017?" Object to Question A review of the cross- examination transcript shows that no objection was taken to this question and the witness answered it (see page 102, lines 9- 15).

13. Objection Pg. 108 "Are you aware that the amicus represented to the Court, in August 2021, that there are documents for each claimant related to the settlement, most notably each client's statement of account, in the bundle of documents that the amicus provided to Mr. Rossall?" Objection to Question This question relates to the affiant’s knowledge regarding the report of an amicus who, in the scope of his work, reported to the court on the disclosure made by the Defendants. The report of the amicus is a matter of record. 14. Objection Pg . 13 4 "Okay. I am going to suggest to you that Mr .

Regel has been talking in one form or another about rescheduling the contempt application since that time in September 2016, and I am asking whether he ever discussed with you why he decided now, over six years later, that this would be the appropriate time to bring?" Objection to Question Asks why Mr. Regel is proceeding with the contempt motion at this time - this is not relevant. 15. Objection Pg. 152 "Okay. And so would you agree today that that animus exists?" Objection to Question Was withdrawn. 16. Objection Pg. 164 "Are you aware that Mr. Mr .

Regel is actively soliciting clients to join this lawsuit?" Objection to Question Was withdrawn. 17. Objection Pg. 165 "Can you explain to me how the application, that you swore this affidavit in support of, advances the resolution of the issues and the merits in this case?" Objection to Question Asks the witness how the application advances the litigation. The Defendants argued that this is relevant to the affiant’s statement that there is a public interest in advancing the litigation and having the matter decided on its merits. This statement has been struck from the affidavit. The question is not relevant. 18.

Objection Pg . 176 "And much of the conduct that was complained of is the same conduct that is complained of in this court proceeding?" Objection to Question These answers are not relevant to the motions. The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion.

19. Objection Pg. 177 "Are you aware that the Law Society recently concluded its investigation into the matter that Mr. Regel complained of?" Objection to Question These answers are not relevant to the motions. The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion. 20. Objection Pg. 177 "Are you aware that the Law Society of Nunavut concluded there is insufficient evidence of the allegation against Mr. Budden that Mr.

Regel made?" Objection to Question These answers are not relevant to the motions. The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion. 21. Objection Pg. 177 "And are you aware of any correspondence received by Mr. Regel, or your office, from the Law Society as to the conclusion of that investigation?" Objection to Question These answers are not relevant to the motions.

The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion. 22. Objection Pg. 178 "Did Mr. Regel ever bring to your attention personally , Ms . Cardinal, that the Law Society's investigation against, or into Mr. Budden had been concluded?" Objection to Question These answers are not relevant to the motions.

The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion. 23. Objection Pg . 178 "I am showing you, Ms. Cardinal, a letter from the Law Society of Nunavut with respect to a complaint made against Mr. Budden by Mr. Regel which concludes, "A review of your records has produced signed Contingency Fee Arrangements ("CFA") for the Plaintiffs , all of which include the required provisions under the Nunavut Rules of Court.

The invoices and final reporting show that the fees charged are consistent with the terms of the CFAs and do not support the allegation that you have overcharged your clients"" . Do you see that?" Objection to Question These answers are not relevant to the motions. The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion.

24. Objection Pg . 179 "Are you aware, Ms. Cardinal, whether the Cooper Regel law firm received a substantially similar letter as the complainant in this matter advising them that there is insufficient evidence to proceed with a discipline matter as the matter does not constitute professional misconduct." Objection to Question These answers are not relevant to the motions. The Record shows that the Law Society complaint was filed early in the course of the litigation and relate to the allegations in the Statements of Claim, not the allegations which are the subject matter of the contempt/abuse of process motion.