2016 SKPC 094, 2016 SKPC 094

PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: July 14, 2016 Citation: 2016 SKPC 094 File: 356/15 Location: Regina, Saskatchewan Phillips Legal Professional Corporation -and - The Fond Du Lac First Nation, Earl Lidguerre, Rita Adam, Georgie McDonald, Louis Mercredi, and Alex Mercredi FIAT P.

DEMONG, J [ 1 ] The plaintiff in these proceedings has brought action against several defendants seeking recovery on a quantum meruit basis for legal services allegedly provided to them jointly and severally. [ 2 ] Following an order granted by me for substitutional service of the summons and claim on a number of the defendants, default judgment was entered on December 7, 2015, jointly and severally against some, but not all, of the defendants, specifically, Fond Du Lac Denesuline First Nation, Earl Lidgeurre, Rita Adam, Georgie McDonald, Louis Mercredit and Alex P. Mercredi.

The claim against Julies Lidgeurre, Dorothy Adam, Elli Adam, William Adam, Leonard Adam, Derrick McDonald, Marilyn Fern, and Willie John Laurent was dismissed. These defendants are no longer parties to this action. [ 3 ] On March 4, 2016, Bruce Slusar, acting for Fond du Lac First Nation, William Adam, Marilyn Fern, Willie John Laurent, Georgie MacDonald, and Elli Adam brought application to set aside the default judgment alleging that they each have a valid defence to

the action and that they did not receive notice of the default judgment proceedings. [ 4 ] Mr. Slusar has been advised that the action against four of his clients, William Adam, Marilyn Fern, Willie John Laurent and Elli Adam were dismissed as the plaintiff had not provided proof of service on these individuals. Therefore, the application is being brought on behalf of Fond du Lac First Nation and Georgie McDonald only.

The application was set for April 13, of 2016. [ 5 ] On April 6, 2016, seven days before the proposed application, Nathan Phillips, acting for the plaintiff, asked for an adjournment of the application to set aside so that he could cross-examine on the affidavits which had been provided by Mr. Slusar’s clients and so that he could provide additional affidavit evidence in support of his opposition to the application. Notwithstanding that Mr.

Phillips had more than a month to consider his position on this matter, his request was brought a scant four working days before the application was to proceed. [ 6 ] On April 13, 2016, counsel presented before the Court to discuss Mr. Phillip’s request to cross-examine, and to deal with the scheduling of a new date for the application to set aside. With Mr. Slusar’s consent the Court set a new date for the hearing and cross- examination.

The Court directed, inter alia , that the defendants were to file with the Court, with proof of service, their respective dispute notes ten clear days before the hearing date, and that the plaintiff, if it chose to file additional affidavit material it was to do so, with proof of service within the same time frame. I would note that each of the parties were to file their materials with proof of service within the time frame set out above. [ 7 ] On April 26, 2016, Mr. Phillips sent a letter to the Court expressing his belief that a case management conference might resolve substantive issues surrounding the claim.

He requested that the Court direct that the matter be set down for a case management conference to be conducted prior to the application set for July 11, 2016. There was nothing in that letter to suggest that his belief had ever been communicated to opposing counsel prior to his request to this Court or that he had sought Mr. Slusar’s consent to setting the matter down for case management. The Court in turn directed Mr. Phillips to contact opposing counsel to obtain his agreement. I presume that Mr.

Slusar did not agree, as no written consent from opposing counsel was received by the Court. [ 8 ] On June 29 th , one day before both of the parties were required to file their materials, Mr. Phillips again requested an adjournment suggesting that if his enforcement efforts against the remaining default judgment debtors (which had only been commenced on June 15 th provided successful), there would be no need to proceed with the application. Once again, there was nothing in his letter to indicate that Mr.

Phillips had contacted opposing counsel to discuss this suggestion prior to his request for an adjournment other than the fact that he had copied this letter to opposing counsel. Once again, the Court advised Mr. Phillips that if he could obtain the consent of opposing counsel, the Court would consider the request. That reply was sent to Mr. Phillips on June 29, 2016 by facsimile. The court record indicated that facsimile was attempted but was not received by the Phillips law firm’s fax. A note to file indicates that Mr.

Phillips was advised of the court’s position. [ 9 ] Within 40 minutes of the Court’s response, Mr. Phillips, sent another letter to the Court, but this time suggesting that the application should be adjourned, but for a different reason, he inclined to the view that the remaining defendants (those persons against which he had already obtained judgment), and against whom he is adverse in interest with, and whom he does not represent, might not have been served with the application to set aside and on that basis inclined to the view that the matter could not proceed.

He offered no case law in support of the proposition that these judgment debtors have the right to attend subsequent hearings in this matter. He provided nothing to suggest that he himself, had altered these judgment debtors of his own application to cross-examine on affidavits. [ 10 ] Mr. Phillips then asked the Court for further reasons as to why his original request for an adjournment was not granted, and opined that because it appeared that Mr.

Slusar’s clients would not be prejudiced, there would be no reason why this Court would decline his request for an adjournment. (This request had not been declined, he had been instructed to obtain consent of the other party). In his words, ‘There appears to be no prejudice whatsoever to Mr. Slusar’s clients, in the absence of which I have yet to encounter any Court refusing such request’. Mr. Phillips would invite this Court to conclude that it alone does not automatically allow adjournment requests which have not been agreed to by both parties.

Is it allowed in the Court of Queen’s Bench, in apparent contradiction to its Practice Directive #7 which directs that an appropriate request to adjourn means ‘a written request to adjourn by all parties involved in the application’. Is it regularly allowed in our Court of Appeal? [ 11 ] No materials were received by this Court from either party on the 30 th of June, 2016, the date that materials were to be filed. July 1, 2016 was a Friday and a holiday. [ 12 ] On July 4, 2016 Mr. Phillips’ sent the Court three letters.

Had my two day trial not fallen through, I would not have been made aware of them until July 6, 2016.

[ 13 ] The first letter badly asserted that the defendants had failed to serve a dispute note. This bald assertion was made notwithstanding that Mr. Slusar had filed a letter with the Court on that date confirming that the dispute note had been served on July 4, 2016. This letter included proof of service. On the strength of this assertion Mr. Phillips requested that the Court dismiss the application. But what of Mr. Phillips? He did not file his materials until July 4, 2016 either . Does he presume that he can avoid the consequences of late compliance but that all others should be sanctioned? [ 14 ] Mr.

Phillips went on to say that in the absence of the defendant’s dispute note he was effectively unable to provide his own affidavit materials to the Court. (In another letter of same date he speaks to the fact that he is ‘severely prejudiced’) Severely prejudiced? The defence that was filed is what the Court fully expected to see and which any reasonable lawyer would expect to See. It was a blanket denial that the defendants had contracted for legal services.

I use the words ‘expected’ and ‘reasonable’ because this defence was clearly articulated in the affidavits that were filed by the defendants on April 6, 2016. Moreover, Mr. Phillips did in fact file his affidavit on July 4, 2016. [ 15 ] Mr. Phillips then invited the Court to exercise on the basis of this prejudice, its jurisdiction to direct payment into Court of the entirety of the amount claimed, and he sought his costs for having to file his affidavit. Why? Mr. Phillips was required to file his affidavit materials no later than June 30, 2016. Had Mr.

Slusar’s clients taken full advantage of the order I made, they could have filed and served their materials at 3:59 p.m. on that date. Mr. Phillips would still have not had the advantage of reading the pro forma defence would have been filed before being required to file his affidavit. He would still have been required to incur the costs of preparing those materials. [ 16 ] Mr. Phillips posits that had Mr. Slusar provided his immediate consent to the adjournment sought by Mr. Phillips then he would not have had to file his materials. Why does he think this? Mr.

Slusar’s consent to an adjournment would not have negated Mr. Phillip’s requirement to comply with my order. My order didn’t say that the materials would not have to be filed if the parties consented to an adjournment. [ 17 ] Strangely Mr.

Phillips third letter to the Court on July 4, 2016 included the following concluding passage: If the Court does not dismiss this application, does not require the defendants’ to provide a dispute note, continues to refuse to grant the requested adjournment, and does not require opposing counsel to provide proof of service of the March 7, 2016, summons and supporting affidavits upon any of the other parties to this action, then as a result of paragraph’s 7-11 of the Court’s April 20, 2016 Fiat, ie the refusal of the Court to permit the cross-examination on the merits of the defence, the Plaintiff will no longer cross-examine on any of the affidavits filed thus far … In addition, the plaintiff would also consent to the ju7dgment being set aside against Georgie McDonald, however it will not consent to the judgment being set aside with respect to Fond Du Lac Denesuline First Nation or any other defendant.

Finally, upon receipt of the Defendant’s dispute note, the Plaintiff will provide a supplemental affidavit. What am I to make of this? Is it an admonition to the Court that it has not immediately directed to be done each and everything that Mr. Phillips thinks ought to be done and on an ex parte basis? Is it a passing comment at my earlier decision that on a

Section 37 Application Mr. Phillips will not be allowed to cross-examine on the merits of the defence that is being advanced? Is it a formal withdrawal of his application to cross-examine some defendants but not others? Is it a formal withdrawal of his opposition to setting aside the default judgment against Georgie McDonald? Is he inviting me to step into the fray; to take off my Judge’s robes and try to convince Mr. Slusar of the utility of the bargain that Mr. Phillips appears to be offering? [ 18 ] After having had almost ten weeks since my order for the provision of materials was made, Mr.

Phillips has, with only one day remaining to comply, attempted to foist his self-imposed last minute request for an adjournment on a busy Court and presumably on a busy Mr. Slusar. In so doing, he has inundated this Court with four letters in two days. He has lacked the courtesy, or at least he lacks the experience, to recognize that requests to the Court and to opposing counsel for adjournments should be brought early. Professional courtesy and good practice directs counsel to seek the consent of the other side of the dispute if an adjournment is needed.

If an early request cannot be made, the reason for the delay should be provided to the Court. Requests for direction and/or relief from the Court should not be drafted in a demanding fashion, nor, as I read letters, come across as petulant and recriminatory. In addition, it is simply inappropriate to castigate, in writing, opposing counsel, for a technical breach of an order when one is also in breach. [ 19 ] In future, I will expect Mr. Phillips to conduct himself with the courtesy and respect that this Court has come to expect, and invariably receives from every other lawyers that comes before it.

[ 20 ] In the future, I will expect that if Mr. Phillips seeks relief from this Court, the he will, from now on, and with necessary modification timely comply with those procedures which are set out in R. 6-4 of the Queens’ Bench Rules for Saskatchewan and identify the specific relief sought, the grounds upon which that relief is based, and cite those enactments or case authorities upon which he intends to rely.

Upon receipt of those materials the matter will brought to the attention of an available Judge to consider whether or not the relief can be granted on an ex parte basis, or whether or not the matter will be set down for hearing. [ 21 ] The parties are aware that Mr. Slusar did, in fact, consent to an adjournment on July 4, 2016, and the application date has been vacated. [ 22 ] For the benefit of counsel, I advise that this Court does not have the facility to adjourn a matter sine die . Matters are set over to a date certain.

The Court has this matter set over to the first available full day for a determination of

Section 37 Application, and cross- examination on the affidavits. As indicated in my earlier order, Mr. Slusar’s clients may attend the application by telephone, but he should ensure to make arrangements with the Court Clerk to effect that telephone attendance. [ 23 ] This matter shall be heard on Wednesday, January 4, 2017 at 9:30 a.m., 4 th Floor, 1815 Smith Street, Regina, Saskatchewan . [ 24 ] If this matter is resolved before then, the parties are directed to inform the Court Clerk at their very earliest opportunity that the court time can be otherwise utilized. Dated at Regina, Saskatchewan the 14th day of July, 2016. P. Demong, J