Saskatchewan Medical Association Appellant (Respondent on Application to Strike Appeal) (Defendant) v. Keith Anstead, 2016 SKCA 143

Court of Appeal for Saskatchewan Docket: CACV2660 Citation: Saskatchewan Medical Association v Anstead , 2016 SKCA 143 Date: 2016-11-09 Between: Saskatchewan Medical Association Appellant (Respondent on Application to Strike Appeal) (Defendant) And Keith Anstead Respondent (Applicant on Application to Strike Appeal) (Plaintiff) Before: Ottenbreit, Caldwell and Herauf JJ.A. Disposition: Application to Strike Appeal allowed; appeal struck Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Herauf On Appeal From: 2014 SKQB 406 , Regina Application and Appeal Heard: November 16 and December 7, 2015 Counsel: Shaunt Parthev, Q.C., and C. Ryan Lepage for the Appellant E.F. Anthony Merchant, Q.C., and Jonathan Martin for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] The Saskatchewan Medical Association (SMA) appeals against the Queen’s Bench Chambers decision dismissing its application under Rule 3-14 of The Queen’s Bench Rules (Rule 3-14 decision) to strike a class action claim by Dr. Keith Anstead on the basis that the Court lacked jurisdiction over the subject matter of the claim.

The Rule 3-14 decision was contained in and was part of a decision dated December 12, 2014 ( Anstead v Saskatchewan Medical Association , 2014 SKQB 406 , [2015] 7 WWR 535 [ Certification Decision ]), granting certification of Dr. Anstead’s class action. Dr. Anstead applies to strike the appeal. This Court heard oral argument on both the application to strike and the appeal proper and as well had the benefit of the parties’ factums and supporting material on the appeal. For the reasons hereinafter set forth, this matter is determined by Dr. Anstead’s application to strike the appeal. The appeal is struck. II.

Background [ 2 ] Dr. Anstead is a physician and is the representative plaintiff in a class action issued pursuant to The Class Actions Act , SS 2001, c C-12.01 [ CAA ]. The class definition certified by the certification hearing judge may be summarized as physicians who are surgical assistants and who earn more than 50% of their income by providing surgical services.

The members of the class are distinguishable from physicians who have an office where they engage in a family practice (office-based assistants), but provide the same or similar surgical services part-time. [ 3 ] The majority of medical compensation in the Province of Saskatchewan is paid pursuant to the Physician Payment

Schedule (Payment Schedule) created by regulations pursuant to The Saskatchewan Medical Care Insurance Act , RSS 1978, c S-29 [ SMCIA ]. The Payment

Schedule has the force of law. When a physician performs an insured medical service under the Payment

Schedule he or she is entitled to receive payment for that service in accordance with the Payment Schedule. [ 4 ] SMA is the exclusive bargaining representative of all physicians in Saskatchewan in respect of most fees paid to doctors under the SMCIA . The pay scales for all surgical assistants are negotiated pursuant to an organizational and consultative framework set forth in the SMCIA and The Insured Services (Physicians) Payment

Schedule Review Regulations, 1989 , RRS c S-29 Reg 15 [ Regulations ], promulgated pursuant to the SMCIA . The Regulations establish a conjoint committee called the Minister’s Medical Payment

Schedule Review Committee (PSRC) comprised of up to five members appointed by the Minister of Health and up to five members appointed by the SMA. The purpose of the PSRC is to consult with the board of the SMA on behalf of the Minister regarding the Payment Schedule. No alteration of the Payment

Schedule can be passed into regulation without this consultation. [ 5 ] In addition to the PSRC, the SMCIA also establishes a similarly conjoint Medical Compensation Review Committee (MCRC) the purpose of which is to prepare an agreement between the SMA and the Minister of Health regarding revisions to the Payment Schedule. The end product of this consultative process is usually an agreement that, amongst other things, modifies the Payment Schedule. This modification is achieved through a negotiated macro adjustment to the Payment

Schedule which is then extrapolated into the individual services set forth in the Payment Schedule.

[ 6 ] SMA negotiated the Payment

Schedule with the Government of Saskatchewan for all surgical assistants, both members of the class and office-based assistants. The Payment

Schedule paid the class members lower fees than were paid to office-based assistants for providing the same or similar services. The different fees for the two categories of surgical assistants were agreed on and accepted by both SMA and the Government for what they considered to be appropriate policy considerations. The cause of action claimed by Dr. Anstead on behalf of the class is based on an alleged breach by SMA of its common law fiduciary duties and obligations of fairness and fair representation in negotiating the fees for the members of the class. III.

Background of Proceedings Before and Decision of the Chambers Judge [ 7 ] Prior to the certification application being heard, SMA applied pursuant to The Queen’s Bench Rules (Rule 3-14) to dismiss the claim for lack of subject matter jurisdiction.

This application was made on the basis that the common law did not apply to the subject matter of medical compensation under the SMCIA and the Regulations , and that the SMCIA and the Regulations were a complete code which ousted the jurisdiction of the court on the subject matter of the class action. [ 8 ] SMA in its brief filed May 16, 2014, in support of its application to have the subject matter jurisdiction application heard in advance of the certification application, stated at paragraphs 32 and 33: 32.

If the SMA is unsuccessful, then the determination will resolve one of the critical issues (if not the most critical issue) faced by the parties under the ss. 6(1)(

a) analysis of the CAA . Should this Court decide that it has jurisdiction over the implementation of Medicare, the parties will be free to focus exclusively on the causes of action as pled in the Claim. Certification will be significantly more focused with concomitant time and cost savings. There will be no duplication of effort or analysis. 33. On the other hand, if the SMA is successful this litigation is determinable immediately, on a solitary point of law, and on the record presently before the Court .

There will be no lingering collateral issues, and the determination will effectively deal with all potential proceedings of a similar nature in this jurisdiction as a matter of law. (Bold emphasis added, italic emphasis in original, footnotes omitted) [ 9 ] The judge assigned as the hearing judge for the class action ordered that the Rule 3-14 application be heard and determined at and as part of the certification application (see Anstead v Saskatchewan Medical Association , 2014 SKQB 205 at para 17 , 449 Sask R 278 [ Timing Decision ]).

In the Timing Decision , the hearing judge in respect of the Rule 3-14 application said the following: [12] The court is reminded that its function, at this point in time, is not to determine the merits of the defendant (applicant’

s) submission that the issue its application raises is or is not jurisdictional in nature or that its position will ultimately be sustained at the certification application stage. The plaintiff (respondent) strongly argues that the applicant’s characterization of the question raised by its application as “jurisdictional” is not a correct characterization – – – rather the issue raised, as properly characterized, is whether or not the plaintiff has a cause of action to support his claim.

There is initial merit in both perspectives. [13] The applicant argues that the actions of the defendant which the plaintiff seeks to challenge in its claim are the product of a statutory scheme – – – the Act . The SMA submits the Act constitutes a “code” and the exercise, by the SMA, of its statutory rights, duties and obligations under the Act do not admit of challenge or review by the courts.

That characterization, if it should ultimately prevail, would be characterized as jurisdictional. … [16] Firstly, this is not clearly nor uncontrovertedly a “jurisdictional issue” as the defendant urges in its application. There is the possibility that even if the defendant should be successful in persuading the court that the statutory procedures, available to the physician group that the plaintiff seeks to represent as a class in this action, constitute a code ousting the jurisdiction of the court over the subject matter of their complaints that may not be dispositive of the plaintiff’s claim.

There may still be scope to the position of the plaintiff, as reflected in the claim, that there is implied in this “statutory code” the obligation of the defendant, at law, to exercise its statutory rights, duties and obligations in good faith and consistent with a duty of fair representation.

Failure of the SMA to do so, if that is established by the evidence and supported by the law, may constitute the basis for a cause of action and the foundation for the court’s jurisdiction. [17] Since this application does not raise a clear question but rather at least two questions fundamental to the sustainability or otherwise of this action, the issue raised by the application is best determined at the certification hearing.

At that hearing the court should have the benefit of any further or additional materials the parties may file to assist the court in its understanding of the full dimensions of this issue at law and in the facts and circumstances of these parties (and those others impacted by the SMA’s exercise of its statutory representative responsibilities).

The resultant impact that these additional materials may have upon the court’s determination respecting the sustainability of the action and/or the certification of it as a class action can be more fully appreciated and assessed with the assistance of this information at the certification hearing stage. [ 10 ] In due course, the certification application and the Rule 3-14 application proceeded and the hearing judge concluded that the requirements of s. 6(1) of the CAA had been met and he certified the action.

Embedded in the Certification Decision was the hearing judge’s decision to dismiss SMA’s subject matter jurisdiction application under Rule 3-14. It is a fair statement that, in coming to that decision, he did no separate analysis but relied upon his analysis and determinations made in respect of the cause of action requirement under s. 6(1)(

a) of the CAA . Accordingly, it is necessary to set out some of that analysis for the purposes of this appeal. [ 11 ] The hearing judge succinctly set out the position of the parties: [47] In support of the “cause of action” analysis, the plaintiff argues that the SMA Act , in combination with the Bylaws passed by the

SMA pursuant to the SMA Act , the SMCIA and the SMCIA Regulations passed pursuant to the SMCIA , all establish circumstances in which the SMA becomes the exclusive collective bargaining agent and representative of physicians in respect of the negotiation for and finalization of physician compensation for insured services which they perform.

Because of this statutory and regulatory “exclusivity” framework, the legal ingredients exist that are necessary for the court to conclude that the SMA has a fiduciary duty and the legal obligations of fairness and fair representation to the physicians and any groups of them who they have the exclusive right, duty and obligation to represent. … [51] Based upon this construct, the defendant argues that any physician or group of physicians can and must obtain, and they are restricted to, the representation of their interests through the democratic representational rights which they have as contained in the Bylaws of the SMA.

These include the establishment of a comprehensive and, it might be observed, complex structure of committees, the election of Directors of the SMA and ultimately election of physician representatives to the Representative Assembly. The defendant argues that these structures and processes define and address the only way physicians, or groups of them, can advance their positions and, in certain cases, their “grievances” with the rates of compensation that are negotiated on their behalf by the SMA for the insured services they provide.

The SMA argues that such is the case with full-time surgical assistant physicians and the claim that they now seek to advance, not through these structures, but in this class action. In conclusion, the SMA argues that the causes of action advanced by the Claim do not exist, in law, nor does the court have jurisdiction in these circumstances. [52] This construct and analysis forms the very basis of, and led the SMA to file, its Notice of Application seeking a ruling and order from the court that it is without jurisdiction to consider the claim of the plaintiff and class in this proposed action.

The SMA submits that since the legislation and its Regulations and the SMA Bylaws in question constitute a comprehensive code for the representation of physicians in compensation negotiations with the Government for insured services, aggrieved physicians are restricted to utilizing the internal mechanisms and structures of the SMA to address their grievances.

Accordingly, the SMA argues, there is no right or cause of action that is legally extant or permissible nor is there any room for or exercise of jurisdiction by the court in the circumstances advanced by the Claim. [ 12 ] After reviewing the applicable statutory and regulatory framework under SMCIA , the hearing judge concluded: [68] The case presently sought to be certified by the court as a class action raises the very issues which were identified in the Cameron case and strenuously and fully argued before this Court in the context of, in particular, the s. 6(1) (a) “cause of action” requirements of the Act .

As Cameron illustrates, the extension of the fiduciary duties and/or duties of fairness and fair representation recognized both at common law and now in many labour relation statutes where exclusive collective bargaining representational rights are conferred upon labour organizations (therefore giving rise to legal causes of action) arguably and convincingly raises the kind of claim that “the law has not yet recognized”.

The causes of action rai[s]ed by this Claim may well be the kind of novel, but arguable, claims that should be allowed to proceed to trial as recognized by the Imperial Tobacco case at para. 21. … [72] For the analysis undertaken and the reasons stated, I have concluded that for certification purposes, the plaintiff’s Claim does raise and meet the criterion of s. 6(1)(

a) of the Act disclosing a cause of action. That is to say, there exists a plausible basis for supposing the defendants could be liable to the claims of the Class within the meaning of the test set out in Monsanto CA . [ 13 ] With respect to Rule 3-14, the hearing judge concluded: [97] In view of the determinations made by me in respect of the application for certification, I also dispose of the ancillary applications that have been made to me in conjunction with the certification proceedings namely: 1.

The defendant’s application to dismiss the plaintiff’s claim for lack of jurisdiction is dismissed with costs awarded pursuant to Column IV of the court’s tariff of costs to be agreed upon and failing agreement to be assessed by the Local Registrar upon application; … IV. Procedural History and Background in this Court [ 14 ] The Certification Decision was issued December 12, 2014. On December 23, 2014, SMA filed an application seeking leave to appeal the Certification Decision .

In the draft order filed by SMA in support of that application it asked that if leave were to be granted, the appeal be heard at the same time as the appeal taken from that part of the decision dismissing the Rule 3-14 application. At that time, there had not yet been any appeal of the Rule 3-14 decision. [ 15 ] On January 7, 2015, SMA caused to be issued a formal order from the Court of Queen’s Bench containing the Rule 3-14 decision. On January 9, 2015, SMA filed its notice of appeal against that decision, initiating this appeal.

The first three grounds in SMA’s notice of appeal filed on this matter are as follows: (

a) The Learned Chamber Judge erred by failing to conclude that there is no basis upon which the Respondent’s alleged fiduciary duty can be established in the context of an exhaustive statutory scheme established for the provision of fee-for-service-medical services to the people of Saskatchewan, and the corresponding compensation of medical professionals in that scheme (i.e. Medicare); (

b) The Learned Chamber Judge erred by failing to conclude that there is no basis upon which the Respondent’s alleged duty of fair representation can be established in the context of Medicare; (

c) The Learned Chamber Judge erred by failing to conclude that The Saskatchewan Medical Care Insurance Act , RSS 1978, C S-29 and its related and subordinate legislation is a comprehensive code in relation to matters of medical compensation and negotiation and, as

such, ousts all putative common law duties in that regard; … These grounds set forth the argument that SMCIA is a comprehensive code which ousts the jurisdiction of the court. [16] The proposed notice of appeal filed on the application to obtain leave to appeal against the Certification Decision listed, interalia, six grounds challenging the hearing judge’s determination that an authentic cause of action had been shown under s. 6(1)(

a) of theCAA. The first three of the six grounds of the proposed notice of appeal, except for the absence of the word “negotiation”, are identicalto the grounds in the notice of appeal in this matter. [17] On SMA’s application for leave to appeal the Certification Decision, a substantial part of its written argument filed before theChambers judge on the s. 6(1)(

a) issue was that the SMCIA regime constituted a comprehensive code in relation to matters of medicalcompensation including the negotiation thereof and as such the common law was displaced. This Court denied leave (SaskatchewanMedical Association v Anstead, 2015 SKCA 19). Herauf J.A. in denying leave stated: [11] The SMA has essentially raised the same arguments on this leave application that were not accepted by the certification judge atthe certification hearing.

I have certainly not been convinced that the proposed appeal on the issue of the causes of action is of sufficientmerit and sufficient importance to warrant determination by this Court at this time. V. Analysis [18] Dr. Anstead applies to strike the appeal of SMA. He raises a number of arguments. He first submits that the issue of subjectmatter jurisdiction is intrinsically linked with the cause of action analysis under the CAA.

He argues the hearing judge’s decision underthe cause of action analysis determines the jurisdiction issue because the issue of subject matter jurisdiction goes to the very question ofwhether under s. 6(1)(

a) of the CAA a genuine cause of action is disclosed. Dr. Anstead argues that because the jurisdiction issue issubsumed in the cause of action analysis, leave to appeal is required and because SMA did not obtain leave the appeal should be struck. [19] He also argues that the appeal is res judicata or an abuse of process on the basis that even if subject matter jurisdiction is notcompletely overlapped by or subsumed in the s. 6(1)(

a) analysis, the SMA has relied upon exactly the same arguments rejected on theapplication for leave to appeal the Certification Decision as they have in this appeal. Dr. Anstead argues that there are strong policyreasons for not allowing applications that raise issues identical to those that fall under the certification analysis to have a direct andseparate right of appeal. He submits that the obvious intent of s. 39(3) of the CAA is to provide finality to a certification decision so thatthe parties can move forward. [20] Last, Dr.

Anstead argues that the decision with regard to jurisdiction was interlocutory in the sense that it did not finallydispose of the claim and leave is required on that basis. [21] SMA submits that the Rule 3-14 decision was a discrete decision. Although made at the same time as the certificationapplication it is not subsumed into the certification application nor is it an intrinsic part of the Certification Decision.

SMA argues leaveto appeal the Rule 3-14 decision is not required because it is final; not necessarily because it disposes of the main dispute between theparties, but because it disposes of an important element thereof: i.e., whether or not the Court has subject matter jurisdiction. Last, SMAsubmits there is no abuse of process or res judicata because the arguments respecting cause of action and the Rule 3-14 application are,by necessity, similar. [22] In my view, the core of this matter is whether it is an abuse of process to determine the appeal of the Rule 3-14 decision on itsmerits.

Accordingly, I will approach the arguments of the parties in light of that doctrine. The broadness of the doctrine of abuse ofprocess obviates any need to make determinations regarding issue estoppel or res judicata. I will, however, address the matter of whetherleave is required to appeal the Rule 3-14 decision. [23] The doctrine of abuse of process has been explained and developed by Arbour J. in the oft quoted case of Toronto (City) vCUPE, Local 79, 2003 SCC 63, [2003] 3 SCR 77 [CUPE].

More recently, it has been summarized in Behn v Moulton Contracting Ltd.,2013 SCC 26, [2013] 2 SCR 227 [Behn]: [39] In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, Arbour J. wrote for the majority of this Court that thedoctrine of abuse of process has its roots in a judge’s inherent and residual discretion to prevent abuse of the court’s process: para. 35; seealso P. M. Perell, “A Survey of Abuse of Process”, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007(2007), 243. Abuse of process was described in R. v.

Power, (SCC), [1994] 1 S.C.R. 601, at p. 616, as the bringing ofproceedings that are “unfair to the point that they are contrary to the interest of justice”, and in R. v. Conway, (SCC),[1989] 1 S.C.R. 1659, at p. 1667, as “oppressive treatment”. In addition to proceedings that are oppressive or vexatious and that violatethe principles of justice, McLachlin J. (as she then was) said in her dissent in R. v. Scott, (SCC), [1990] 3 S.C.R. 979, atp. 1007, that the doctrine of abuse of process evokes the “public interest in a fair and just trial process and the proper administration ofjustice”.

Arbour J. observed in C.U.P.E. that the doctrine is not limited to criminal law, but applies in a variety of legal contexts: para. 36. [40] The doctrine of abuse of process is characterized by its flexibility. Unlike the concepts of res judicata and issue estoppel, abuseof process is unencumbered by specific requirements. In Canam Enterprises Inc. v.

Coles (2000), (ON CA), 51 O.R.(3d) 481 (C.A.), Goudge J.A., who was dissenting, but whose reasons this Court subsequently approved (2002 SCC 63, [2002] 3 S.C.R.307), stated at paras. 55-56 that the doctrine of abuse of process: engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to thelitigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumberedby the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v.

Waite, [1990] 3 W.L.R. 347[(C.A.)], at p. 358 … .

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attemptto relitigate a claim which the court has already determined. See Solomon v. Smith, supra. It is on that basis that Nordheimer J. found thatthis third party claim ought to be terminated as an abuse of process. [Emphasis added.] [41] As can be seen from the case law, the administration of justice and fairness are at the heart of the doctrine of abuse of process.

InCanam Enterprises and in C.U.P.E., the doctrine was used to preclude relitigation of an issue in circumstances in which the requirementsfor issue estoppel were not met. But it is not limited to preventing relitigation. For example, in Blencoe v. British Columbia (HumanRights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, the Court held that an unreasonable delay that causes serious prejudice couldamount to an abuse of process: paras. 101-21.

The doctrine of abuse of process is flexible, and it exists to ensure that the administrationof justice is not brought into disrepute. [24] In Bear v Merck Frosst Canada & Co, 2011 SKCA 152, 345 DLR (4th) 153 [Bear], this Court said: [36] The doctrine of abuse of process reflects the inherent power of a judge to prevent an abuse of his or her court’s authority. It is aflexible concept not restricted by the requirements of issue estoppel, such as those relating to privity.

The doctrine can be engaged by avariety of circumstances including what might be called those concerning the “re-litigation” of issues or claims. … [38] The need to maintain the integrity of the adjudicative process sits at the heart of the concept of abuse of process. The SupremeCourt of Canada explained this point as follows in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 , [2003] 3 S.C.R. 77: [51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of theadjudicative process. Three preliminary observations are useful in that respect.

First, there can be no assumption that relitigation willyield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, therelitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly anadditional hardship for some witnesses.

Finally, if the result in the subsequent proceeding is different from the conclusion reached in thefirst on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, therebydiminishing its authority, its credibility and its aim of finality. See also: Cameco Corp. v. Insurance Co. of State of Pennsylvania, 2010 SKCA 95, [2010] 10 W.W.R. 385 per Cameron J.A. at paras.47-50. [25] I turn now to Dr. Anstead’s arguments that the appeal should be struck as they relate to abuse of process. A.

The issue of subject matter jurisdiction is substantially identical to andgoes to the very question of whether an authentic cause of action exists. [26] Dr. Anstead submits that the issues on the Rule 3-14 application and the inquiry under s. 6(1)(

a) of the Act are substantiallyidentical and that the authentic cause of action determination under s. 6(1)(

a) was also a determination of subject matter jurisdiction. [27] There are, admittedly, differences between the analysis of whether s. 6(1)(

a) of the CAA has been satisfied and whether it hasbeen shown the court lacks subject matter jurisdiction. The question to be determined under s. 6(1)(

a) was, prior to Pederson vSaskatchewan (Minister of Social Services), 2016 SKCA 142, whether there was an authentic or genuine cause of action (Hoffman vMonsanto Canada Inc., 2007 SKCA 47 at para 53, 283 DLR (4th) 190). Such a determination is a procedural one in the context ofdetermining if the class action as a whole is a preferable procedure (AIC Limited v Fischer, 2013 SCC 69 at paras 30 and 34, [2013] 3SCR 949). However, implicit in that determination must be a provisional decision that the certification does not fail under s. 6(1)(a)because of a lack of subject matter jurisdiction.

That said, the finding there was an authentic or genuine cause of action is not a definitivestatement in law that the court has subject matter jurisdiction. This is because such a finding merely determines if the statutoryprerequisite has been met and is not made on the merits. [28] Such a determination under s. 6(1)(

a) can be contrasted with the decision to strike the claim under Rule 3-14 for want ofsubject matter jurisdiction; the latter decision is on a point of law. It is a substantive decision capable of being decided on the merits. [29] SMA argues that on the certification application the jurisdiction issues were distinct from the cause of action issue. It submitsthat this is clear because it challenged the sustainability of the cause of action on the basis of not only subject matter jurisdiction but alsoon other bases. SMA blows hot and cold on this issue.

In the brief filed in support of its application to have the Rule 3-14 applicationheard in advance of the certification, SMA referred to the subject matter jurisdiction issue as “one of the critical issues (if not the mostcritical issue) faced by the parties under the s. 6(1)(

a) analysis of the CAA”. It continued with this approach at the certificationapplication hearing. [30] While the record discloses that SMA made other arguments challenging the existence of an authentic cause of action, the nubof its s. 6(1)(

a) arguments were that the SMCIA created a complete code and as a result the court lacked subject matter jurisdiction. Thisis borne out by the written submissions of SMA on the certification application. SMA filed one brief of law encompassing both thecertification application and the Rule 3-14 application. Included in this brief, at paragraphs 152-212, was an extended argument under thes. 6(1)(

a) CAA requirement that posits, for the most part, that SMCIA is a complete code which ousts the common law jurisdiction of thecourts or, alternatively, that the common law duties upon which Dr. Anstead based his claim conflict with SMCIA and cannot prevail.Pointedly, SMA submits at paragraph 153 that the comprehensive code arguments are ultimately dispositive of the certificationapplication. I conclude from this that even though the issues under s. 6(1)(

a) of the CAA and Rule 3-14 may not be identical, they aresubstantially similar and closely connected and SMA approached them in such a manner. [31] That the issues are substantially similar and closely connected is also borne out by the record in this Court on the application

for leave to appeal the Certification Decision . At paragraph 87 of its brief filed in support of its leave application, SMA again argued that SMCIA is a comprehensive code that ousts the jurisdiction of the court and that this argument was ultimately dispositive of this class action. At paragraph 88 of that brief, in relation to whether the proposed appeal had sufficient merit regarding the cause of action analysis, SMA made a number of arguments. Included were the same three propositions in support of the comprehensive code argument that appear at paragraph 154 of SMA’s certification/Rule 3-14 brief in the court below. Thereafter, SMA’s brief provides, in

summary form, the same jurisdictional arguments on the s. 6(1)(

a) requirements put forward before the hearing judge. [ 32 ] The notice of appeal, material filed and arguments made by SMA on the leave to appeal the Certification Decision are substantially repeated in this appeal. SMA’s notice of appeal on this matter and the proposed notice of appeal filed by SMA respecting the Certification Decision set out identical grounds regarding the jurisdictional issue. Paragraphs 73 and 74 of SMA’s factum in this appeal make the same argument: that the courts have no jurisdiction to apply the common law because SMCIA is a comprehensive code.

SMA again proffers the same three propositions in support of that argument as were made on the certification/Rule 3-14 application and the previous leave application. [ 33 ] The issue of subject matter jurisdiction was the core issue with respect to both the s. 6(1) (

a) CAA determination and the Rule 3-14 determination by the hearing judge. Likewise, it was the core issue of the proposed appeal of the Certification Decision and is the core issue on this appeal as well. [ 34 ] The Court in Behn (para 41 ) made it clear that relitigation of an issue can be precluded under the abuse of process doctrine even where the requirements for issue estoppel are not met but the issues are sufficiently similar. As submitted by Dr.

Anstead, SMA now attempts to argue for the second time in this Court that the class action is not sustainable because of lack of subject matter jurisdiction. [ 35 ] This, in my view, falls within the ambit of the doctrine of abuse of process in that SMA attempts, by this appeal, to relitigate, broadly speaking, the same issue as it did in the previous leave application. [ 36 ] Dr. Anstead argues that because the issues on the s. 6(1) (

a) analysis and the Rule 3-14 application are similar, if his claim were now struck for want of subject matter jurisdiction in this Court it would be inconsistent with the Certification Decision . To provide some context to this argument, it is necessary to first review the procedural background in the Court below. [ 37 ] The hearing judge in his Timing Decision followed the approach favoured in this jurisdiction that, generally speaking, most preliminary applications should be heard at the same time as the certification application.

This was explained by him: [9] Counsels’ Briefs of Law and Replies illustrate numerous case examples of the variety of applications which one or other of the parties seek to have the court address in advance of or preliminary to the certification application in class action law suits. The plaintiff (respondent’

s) Brief points out that there are numerous case authorities that support the general proposition that the courts have strongly favoured having the certification application heard as the first substantive application in a class action law suit (often referred to as the “certification first” principle). Numerous Saskatchewan examples illustrate this policy approach. (See for example Brooks v. Canada (Attorney General), 2008 SKQB 433 , [2008] S.J. No. 670 (QL) at para. 5 ; Alves v. MyTravel Canad a Holidays Inc. , 2009 SKQB 77 , 335 Sask. R. 164, paras. 24 and 32-33 ; Thorpe v.

Honda Canada, Inc., 2009 SKQB 488 , 357 Sask. R. 1, at para. 7 ; and Bear v. Merck Frosst Canada & Co . , 2010 SKQB 284 , 360 Sask. R. 113, para. 1 ) The objectives of a class action procedure include economies of time, effort and expense, as well as uniformity of decision for persons similarly situated. The modern class action is designed to avoid, rather than encourage, the unnecessary filing of repetitious papers and motions. The court recognizes that motions to strike or similar interim applications can be effectively addressed by the court on the hearing of the certification application.

The provisions of s. 6(1) of The Class Actions Act , S.S. 2001, c. C-12.01 sets out the criterion which the court is mandated to consider as part of the class action certification application.

The very first of these, in subsection 6(1)(a), includes the requirement that the “pleadings disclose a cause of action”. [ 38 ] The hearing judge carefully explained the reasons why the two applications should be heard together: [17] Since this application does not raise a clear question but rather at least two questions fundamental to the sustainability or otherwise of this action, the issue raised by the application is best determined at the certification hearing.

At that hearing the court should have the benefit of any further or additional materials the parties may file to assist the court in its understanding of the full dimensions of this issue at law and in the facts and circumstances of these parties (and those others impacted by the SMA’s exercise of its statutory representative responsibilities).

The resultant impact that these additional materials may have upon the court’s determination respecting the sustainability of the action and/or the certification of it as a class action can be more fully appreciated and assessed with the assistance of this information at the certification hearing stage. [ 39 ] The approach of the hearing judge suggests that the certification application and the Rule 3-14 application should be of one piece, i.e., that the Rule 3-14 application would be heard and determined “at and as part of the certification application”.

The absence of discrete reasons for the Rule 3-14 decision supports the view that the decisions are of one piece. It may reasonably be inferred from this that the hearing judge determined that the Rule 3-14 application spoke to the issue of sustainability of the class action. In this case, the hearing judge was correct to order that the applications be heard together. [ 40 ] Where the applications are heard together, it allows the hearing judge to effectively manage the various challenges to the sustainability of the class action that a defendant may bring.

He or she can assess whether the matter will go forward on the basis of all the s. 6(1) requirements of the CAA having been met, or strike or stop the class action on the basis of any preliminary applications. This, as observed by the hearing judge, avoids a piecemeal approach to the determination of each of the parties’ rights and ensures judicial economy.

To this may be added that such an approach also avoids possible inconsistent determinations where the issues on the preliminary applications and an aspect of the certification application are identical or similar. [ 41 ] The benefit of hearing preliminary applications together with the certification application is especially evident where such an application relates to matters such as jurisdiction over the subject matter, striking the claim for one of the reasons mentioned in Rule 7-9(2)(

a) of The Queen’s Bench Rules , i.e., that it discloses no reasonable claim, or

summary judgment applications where it is argued

that the cause of action cannot succeed as a matter of law. Without setting forth a definitive list, such applications may raise issues which are identical to or form a substantive part of or, as SMA argues, is an important element of the s. 6(1) (

a) issues. [ 42 ] That said, where warranted the hearing judge has the flexibility to decide that a preliminary application should be heard and determined in advance of the certification application. In such a case, the decision on such an application, whether it ends the class action or the class action remains extant, easily lends itself to be appealed as a discrete matter. An example of this might be an application under Rule 3-14 made on the basis of territorial competence , but that remains an unresolved issue.

There is no danger of any inconsistency with a certification decision because it will be unlikely that a decision whether the requirements of s. 6(1) of the CAA have been met will be made while the decision on the preliminary application is under appeal.

Here, the fact that the hearing judge ordered the two applications to be heard together and that the decision on both was merged in one set of reasons indicates that the hearing judge intended to avoid inconsistent determinations. [ 43 ] In light of the hearing judge’s intention, there are a number of undesirable consequences for the administration of justice to determine SMA’s appeal on the merits in the circumstances of this case.

The first is that by filing a separate appeal on the Rule 3-14 application, SMA effectively attempts to circumvent the order of the hearing judge that the Rule 3-14 application be heard at the same time as the certification and the intention of the hearing judge that his decision on both be of one piece.

To determine the appeal on the merits would be to give SMA a right of appeal as if the application had been heard prior to certification as a discrete matter and would undercut the process of the hearing judge to choose to manage resolution of the various issues before him in one hearing. [ 44 ] Determining the appeal on the merits would also encourage posturing. Defendants need only file a preliminary motion to strike the claim on some basis.

If the hearing judge orders the applications be heard together and the defendant is not successful on the preliminary application and the action is certified, the defendant needs only to persuade the Court of Queen’s Bench that issuance of a discrete order is appropriate and then file a discrete appeal of that application, as SMA has done in this case, to provide two opportunities to stop the class action arising out of essentially one decision.

Such posturing is evident to some extent when one considers that approximately two weeks before SMA issued the Rule 3-14 order and filed its appeal of that order, SMA was already asking this Court, in its materials on the leave application on the Certification Decision , to have that appeal heard at the same time as the future and, at that point, unfiled Rule 3-14 appeal. [ 45 ] The filing of this appeal also fragments the litigation in this Court.

The avoidance of duplication of time, effort and expense and the unnecessary filing of repetitious papers identified by the hearing judge for justifying hearing the applications together has unfortunately been thwarted in this Court. As explained previously, SMA’s arguments in this appeal are in substantial part duplicative of the core arguments it proffered to this Court in its application for leave to appeal the Certification Decision . [ 46 ] Such duplication has created the potential for inconsistent verdicts if the appeal is heard.

This Court has determined that SMA’s challenge to the sustainability of the Certification Decision had insufficient merit for leave to appeal to be granted. Such a decision was made by taking into account SMA’s subject matter jurisdiction arguments referable to the s. 6(1) (

a) analysis. The net result of the dismissal of SMA’s application for leave to appeal was that the class action was viable. To determine the SMA appeal against the Rule 3-14 decision raises the potential that this Court may make a determination that the class action is not viable because of lack of subject matter jurisdiction.

It would be a curious state of affairs if after a detailed analysis under s. 6(1) was done, the action certified and leave to appeal the Certification Decision was dismissed that the certification could nevertheless be attacked and set aside in the course of a second appeal using essentially the same arguments on the same issue. This is what SMA has attempted to do by filing this appeal. This is an abuse of this Court’s process and on this basis the appeal must be struck. B.

Where the Certification Decision is final there should not be a further right of appeal on a preliminary application after certification. [ 47 ] Dr. Anstead last argues that the intent and policy of s. 39(3) of the CAA is to provide finality to a certification decision and that the filing of an appeal of the Rule 3-14 decision offends that policy. There is merit to this.

It is in the interests of the public and the parties that the finality of a decision can be relied on ( CUPE at para 38 ; Danyluk v Ainsworth Technologies Inc. , 2001 SCC 44 at para 18 , [2001] 2 SCR 460 [ Danyluk ]). [ 48 ] The primacy of the certification process has been established in the jurisprudence for some time. In Hoffman v Monsanto Canada Inc. , 2002 SKCA 120 , 220 DLR (4th) 542, the Court said: [28] In this case the timely determination of the certification application will advance the litigation without generating unnecessary motions and applications.

If one of the purposes of the modern class action is designed to avoid, rather than encourage unnecessary filing of repetitious papers and motions, it is in the interest of all parties to have the “appropriateness of the class action determined at the outset by certification”: See Dutton, supra at p. 552, paras. 33 and 38. [29] In this way, motions to strike or similar proceedings will be unnecessary since the Court can address such issues on the certification application.

Once the certification application has been determined, the Court of Queen’s Bench may make appropriate orders with respect to conduct of the litigation. (See also Western Canadian Shopping Centres Inc. v Dutton , 2001 SCC 46 at para 33 , [2001] 2 SCR 534.) [ 49 ] In light of this general principle, where the Certification Decision is final because SMA has been unsuccessful in its attempts to appeal under s. 39(3) , it would be inconsistent with the integrity of the CAA and the certification process to then allow the defendant another “bite at the cherry” (Binnie J. in Danyluk at para 18 ). [ 50 ] This appeal can be viewed as a collateral attack on the Certification Decision .

Although collateral attack is a discrete common law concept, the elements of that concept can also be dealt with effectively as an aspect of abuse of process. In CUPE , Arbour J., quoting Lord Diplock in Hunter v Chief Constable of the West Midlands Police , [1982] AC 529 :

[40] On appeal to the House of Lords, Lord Denning’s attempt to reform the law of issue estoppel was overruled, but the higher courtreached the same result via the doctrine of abuse of process.

Lord Diplock stated, at p. 541: The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting acollateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction inprevious proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made. [51] I also conclude that to determine this appeal on the merits invites this Court to participate in what, in substance, amounts to acollateral attack on the finality of the Certification Decision in the circumstances of this case.

This would undermine the interests of thepublic and parties that the finality of a decision can be relied upon and would be an abuse on that basis. Conclusion re: Abuse of Process [52] On the basis that the issues at play in SMA’s proposed appeal of the Certification Decision are sufficiently similar to theissues at play in this appeal, that there is the danger for inconsistent determinations in determining this appeal on the merits and that todo so would not promote finality of proceedings, I am satisfied that abuse of process has been established.

To determine this appeal onthe merits would misuse the process of the Court in a way that would bring the administration of justice into disrepute. C. Leave is Required [53] Although my comments regarding abuse of process are determinative of this appeal, I turn now to the alternative basis onwhich this appeal must be struck. I do so in part because it has a bearing on the process and procedure of this Court.

I say this becausewhere a certification application and a preliminary application have been heard together, and the certification decision is being appealed,a defendant should appeal the decision on the preliminary application at the same time as the certification decision and apply for leave todo so. This is what the appellants failed to do.

I will explain. [54] Section 8(1) of The Court of Appeal Act, 2000, SS 2000, c C-42.1, requires leave to be granted to appeal against interlocutorydecisions: 8(1) Subject to subsection (2), no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave toappeal is granted by a judge or the court. [55] SMA argues that leave is not required. It submits the Rule 3-14 decision is final because it disposes of an important elementof the main dispute.

It proffers the case of Hopkins v Kay, 2014 ONCA 514, for the proposition that refusal to dismiss an application thatthe courts lack jurisdiction over the subject matter in a certification action is a final order because it precludes the defendant fromdisputing the issue as the certification proceeds forward.

In my view, determining whether a decision is interlocutory on the basis ofwhether it disposes of an “important element” of the main issue is not an approach consistent with the jurisprudence of this Court. [56] It has long been the law in this jurisdiction that orders which do not finally dispose of the “substantive issue” in an action arenot final but interlocutory: Beaver Lumber Co. Ltd. v Cain, (SK CA), [1924] 3 WWR 332 (Sask CA), per Martin J.A.(as he then was) at 334.

Conversely, an order is final when, if allowed to stand, it finally disposes of the rights of the parties: AlexanderHamilton Institutes v Chambers (1921), (SK CA), 65 DLR 226 (Sask CA), per Turgeon J.A. (as he then was) at 228.

InSilcorp Ltd. v KJK Holdings Inc. (1992), (SK CA), 90 DLR (4th) 488 (Sask CA), this Court approved the view thatorders may be final for one purpose but interlocutory for another (per Cameron J.A. at 489). [57] This Court has treated decisions which decline to strike out an action as interlocutory and requiring leave (Lockwood vRollheiser, 2006 SKCA 57, 279 Sask R 113 (as beyond the jurisdiction of Queen’s Bench); Bartok v Shokeir (1998), (SK CA), 168 Sask R 280 (CA) (as pleading a novel cause of action); Saskatchewan Party v Progressive Conservative Party ofSaskatchewan, 2008 SKCA 155 (as disclosing no reasonable cause of action)).

This Court has also approached appeals under formerRule 99 of The Queen’s Bench Rules, the predecessor to Rule 3-14, as requiring leave (Moldowan v Saskatchewan GovernmentEmployees Union (1995), (SK CA), 126 DLR (4th) 289 (Sask CA); Pfeil v Simcoe & Erie General Insurance Co. andMcQueen Agencies Ltd. (1986), (SK CA), 24 DLR (4th) 752 (Sask CA)). Recently, this Court approached an appealinvolving the adjournment of a Rule 3-14 application regarding territorial jurisdiction as requiring leave (Hyatt Hotels of Canada Inc. vKnuth, CACV2925, October 6, 2016).

Likewise, this Court has viewed decisions declining to dismiss an action as misconceived asinterlocutory (Mueller v Dagenais, 2007 SKCA 31, 293 Sask R 39; Insurance Company of the State of Pennsylvania v CamecoCorporation, 2009 SKCA 15, 324 Sask R 46; Tournier v Ratt, 2011 SKCA 103, 385 Sask R 41). [58] In contrast, decisions striking out a cause of action as barred by a limitation period have been viewed as final (B.(D.) v C.(M.),2001 SKCA 129, 213 Sask R 272) as have been decisions striking out a misconceived claim (Stadnyk v Saskatchewan (Government),2011 SKCA 30). [59] On the basis of this jurisprudence, the Rule 3-14 decision in this case does not finally dispose of the substantive issue of thecertification and requires leave to appeal.

It would have been final if it resulted in the class action being struck. Accordingly, the appealof SMA is struck on this basis as well. [60] As a final point, SMA argues that striking the appeal leaves it with no further recourse on the comprehensive code issue andits effect on the class action. However, this is not so. Nowhere in his decision does the hearing judge actually say that. He merelydismisses the Rule 3-14 application.

The hearing judge was not satisfied in his Timing Decision that the argument of a comprehensivecode created by SMCIA was uncontrovertedly a jurisdictional issue in any event (at para 16). He determined that the Rule 3-14application was one of two questions fundamental to the sustainability of the action.

It may be inferred from the dismissal of the Rule3-14 application that the hearing judge either determined that the matter of a comprehensive code was not a jurisdictional issue or that ifit was, he was not satisfied the court did not have subject matter jurisdiction for the purpose of determining whether the class action

could be certified . On either basis, he sustained the viability of the class action but left open the potential for the comprehensive code issue to be dealt with down the road as a possible defence to the action. [ 61 ] Dr. Anstead conceded that even if this Court struck SMA’s appeal, it was still open to SMA to argue going forward on the certification that the cause of action has not been proven because of the comprehensive code issue, and the issue may be addressed as part of whether Dr.

Anstead has established that SMA owed class members a duty of fair representation or fiduciary duties as set forth in the first common issue certified. We agree with this approach. VI. Conclusion [ 62 ] The motion to strike the appeal is allowed in the circumstances of this case because to deal with the appeal on its merits would be an abuse of process and also because SMA has failed to obtain leave to appeal. Therefore, it becomes unnecessary to consider the arguments on the appeal proper. The appeal is struck. There will be no order as to costs. “Ottenbreit J.A.” Ottenbreit J.A.

I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Herauf J.A.” Herauf J.A.