LOUIS GARDINER, MARGARET AUBICHON, MELVINA AUBICHON, EMILE JANVIER, DUANE FAVEL, v. DONNA JANVIER, 2023 SKKB 237

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 237 Date: 2023 11 03 Docket: KBG-SA-01263-2022 Judicial Centre: Saskatoon BETWEEN: LOUIS GARDINER, MARGARET AUBICHON, MELVINA AUBICHON, EMILE JANVIER, DUANE FAVEL, and DONNA JANVIER PLAINTIFFS - and - THE ATTORNEY GENERAL OF CANADA AND HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF SASKATCHEWAN DEFENDANTS Counsel: Margaret L. Waddell, Tina Q. Yang for the plaintiffs and Adam Babiak E.F. Anthony Merchant, K.C. for the remaining plaintiffs on Court File No. QBG-RG-02035-2005 David C.

Culleton and Brent Thompson for the defendant, The Attorney General of Canada Jeffrey G. Brick for the defendant, His Majesty the King in Right of the Province of Saskatchewan __________________________________________________________________________ JUDGMENT BARDAI J.

November 3, 2023 ___________________________________________________________________________ Introduction and Procedural History [ 1 ] There are two competing claims filed by representative plaintiffs on behalf of those who attended the Île-à-la- Crosse residential school [School]. [ 2 ] The Aubichon v Attorney General of Canada and The Government of Saskatchewan action was commenced by the Merchant Law Group LLP [Merchant Law] on December 9, 2005 as Regina QBG-RG-02035-2005 [ Aubichon Action]. [ 3 ] The second action, being Gardiner v The Attorney General of Canada and His Majesty the King in Right of the Province of Saskatchewan , was commenced in December 2022 by the law firm of Waddell Phillips and filed as Saskatoon KBG-SA-

01263-2022 [ Gardiner Action]. [ 4 ] Both the Aubichon Action and the Gardiner Action raise allegations arising from similar facts, being the treatment of principally Métis children at the School. [ 5 ] In March 2023, I was assigned by the Chief Justice pursuant to s. 4 of The Class Actions Act , SS 2001, c C- 12.01 [ Act ], to consider certification of the Gardiner Action.

Section 4 of the Act states: Plaintiff’s class action 4

(1) A resident of Saskatchewan who is a member of a class of persons may commence an action in the court on behalf of the members of that class.

(2) The member who commences an action pursuant to subsection (1) shall: (

a) apply to the chief justice of the court for the designation of a judge to consider an application mentioned in clause (b); (

b) apply to the judge designated pursuant to clause (

a) for an order: (

i) certifying the action as a class action; and (ii) subject to subsection (4), appointing the member as the representative plaintiff for the class action; and (

c) give notice of the application for certification to the representative plaintiff in any multi-jurisdictional class action, or any proposed multi-jurisdictional class action, commenced elsewhere in Canada that involves the same or similar subject-matter. … [ 6 ] I am not assigned to hear an application for certification in the context of the Aubichon Action.

The task of determining certification in that case falls to Keene J. who is assigned to decide the issue of certification in that lawsuit. [ 7 ] The result is that there are now, in effect, two judges seized with applications for certification on two separate proceedings brought pursuant to the Act raising what are essentially the same allegations by the same or similar classes of plaintiffs against the same defendants. [ 8 ] Counsel for the Gardiner claimants, by way of Notice of Application dated April 21, 2023, seeks: Remedy claimed or sought: 1.

The plaintiffs, Louis Gardiner, Margaret Aubichon, Melvina Aubichon, Emile Janvier, Duane Favel, and Donna Janvier, bring this application for the following relief: a. An order granting a permanent stay of the proceedings in Aubichon et al. v Attorney General of Canada and the Government of Saskatchewan , Court File No. Q.B.G. 2036 of 2005 (the “ Aubichon Action ”); b. A declaration that no other actions may be commenced in Saskatchewan without leave of the court in respect of the subject matter of this action; c.

An order directing that Merchant Law Group LLP (“ MLG ”) immediately deliver the file, including all personal documents, filed court documents and correspondence with opposing counsel, of the former clients of MLG in the Aubichon Action in its possession to Waddell Phillips PC, in accordance with these former clients’ direction to MLG; d. An order for costs of this application to be payable to the plaintiffs at the highest allowable scale, if opposed; and … [ 9 ] Neither the Government of Saskatchewan nor the Government of Canada have taken any formal position in regard to the Gardiner application.

They simply want to know who will have carriage of the matter, whether it will be Waddell Phillips, Merchant Law or both in the context of two proceedings, though to be clear, the Government of Saskatchewan understandably does not want to have to fight two identical or virtually identical lawsuits. [ 10 ] The issue concerning which judge, myself or Keene J., should have carriage was brought before the Chief Justice in the context of the Aubichon Action where Chief Justice Popescul was asked to, in effect, replace a judge who had already been designated to hear the issue of certification pursuant to Rule 3-90 of The King’s Bench Rules, which provides: Application to the Chief Justice 3-90 An application to the Chief Justice for the appointment of a designated judge may be made without notice and must be made:

(

a) within 90 days after the later of: (

i) the date on which the statement of defence was served and filed; and (ii) the date on which the time prescribed for service and filing of the statement of defence expires without it being served and filed; or (

b) with leave of the Court, at any other time. [ 11 ] The Chief Justice found that it was not appropriate to appoint me as the designated judge in the Aubichon Action as Keene J. has already been appointed in the context of that proceeding. As noted by the Chief Justice in his decision, Keene J. is ready, willing and able to consider the certification application in the Aubichon Action.

The Chief Justice at para. 21 of his decision of July 28, 2023 ( Aubichon v Attorney General of Canada (28 July 2023) Regina, QBG-RG-02036-2005 (Sask KB), notes that there is nothing in The Queen’s Bench Rules (as it then was) or the legislation that permits an application to “replace a designated judge when, in the view of a non-party, a different judge is better positioned to manage the matter”.

The Chief Justice at paras. 22-23 of his decision held: [22] Given that there is an active case management order on the 2005 Action, which appoints Keene J. as the designated judge to hear the class action certification application and any other applications that arise relating to the conduct of the class action, I find that the Application of the non-parties is improper in the present circumstances. 2. Timing and Content of the Application [23] Further, I find that this Application is untimely and may ultimately be resolved or rendered moot by the determination of Bardai J. following the August 2, 2023 hearing.

If, for example, Bardai J. determines that the 2005 Action should not proceed, an order replacing the designated case management judge will be unnecessary. To the contrary, if the 2005 Action is permitted to proceed and the 2022 Action discontinued, Keene J. may continue in his case management function. If both the 2005 Action and the 2022 Action continue to proceed, the existence of separate case management judges may not be problematic.

Evidence of the Gardiner Plaintiffs in Support of the Application [ 12 ] The issues before me which require determination are those set out in the Gardiner Notice of Application. In support of the application, the Court has received affidavits from Duane Favel, Herb Norton, Melvina Aubichon, John Kingman Phillips, K.C. and Nancy Amaya. [ 13 ] Mr. Phillips is counsel for the proposed plaintiffs in the Gardiner Action.

His affidavit indicates that his firm has been retained by 23 of the plaintiffs in the Aubichon Action as well as several others after his office was contacted by the Métis Nation of Saskatchewan and the Île-à-la-Crosse Boarding School Steering Committee. According to Mr. Phillips, the “Aubichon plaintiffs were all dismayed that nothing was happening in that action, and that it appeared that Merchant Law had no intention of proceeding with the action, to the extreme detriment of the plaintiffs and the proposed class”. [ 14 ] Mr.

Phillips says that Merchant Law has not prosecuted the claim they commenced with any diligence and has not provided their clients with any updates, legal advice or requests for instruction in more than a decade. He says his firm has the experience, resources and ability to prosecute the action on behalf of the proposed putative class in a timely manner. [ 15 ] Melvina Aubichon is a former plaintiff in the Aubichon Action. She is Métis and attended the School between 1967-1972. Her evidence is that she met with a lawyer from Merchant Law even before 2005 respecting her case.

Merchant Law at the time was recruiting people to start up a class action against the Government of Canada. She says she put her trust in Merchant Law and retained the firm under a contingency fee arrangement. She gathered all of her documents and sent them to Merchant Law. She has since requested that her information be forwarded to her new counsel, Waddell Phillips, but Merchant Law has failed to follow her instructions. [ 16 ] Ms. Aubichon’s evidence is that after signing on with Merchant Law, she heard nothing further from them.

She called the firm several years after retaining the firm and was told that there was no progress to report. Ms. Aubichon says she only now understands that she was put forward by Merchant Law as a proposed representative plaintiff. As far as she is aware, no steps have been taken by Merchant Law to prosecute the action, since an application to strike was determined in 2007. Ms. Aubichon has lost faith in Merchant Law’s ability to prosecute her case. [ 17 ] Mr.

Duane Favel, another proposed representative plaintiff, is the mayor of Île-à-la Crosse, Saskatchewan and a member of the proposed Family Class as defined in the Gardiner Action. Mr. Favel’s father attended the School in the 1940s and 1950s. Mr. Favel also attended the School from 1967-1972. He is a member of the Île-à-la-Crosse Boarding School Steering Committee, a not-for-profit association that advocates for survivors of the School. Mr.

Favel says that, since 2005, as far as he is aware, only two things have happened in relation to the prosecution of the Aubichon Action, namely, the claim was amended to include the Government of Saskatchewan and Merchant Law successfully defended against an application brought by the Government of Saskatchewan to strike the lawsuit as against it. Much like Ms. Aubichon, Mr. Favel is frustrated by the lack of progress. Mr.

Favel says that since the claim was commenced by Merchant Law, approximately half of the named plaintiffs in the action have passed away and the claims of these individuals were not continued by their estates. Mr. Favel says that of the names listed in the Aubichon Action commenced by Merchant Law, only four of the listed claimants remain clients of Merchant Law. All others have discontinued their claims and retained Waddell Phillips or passed away. [ 18 ] Herbert Norton, another proposed class member, tells a similar story. He attended the School between 1959- 1960.

He, likewise, says he trusted Merchant Law, provided them with his documents and then never heard from them again. Mr. Norton also takes issue with an apparent decision taken in 2018 by Merchant Law not to negotiate but instead to continue with litigation.

[ 19 ] Finally, on behalf of the applicants is the affidavit of Ms. Amaya, who is a law clerk at Waddell Phillips. Her evidence is that a number of former students who attended the School have now retained Waddell Phillips. Many of these claimants had previously engaged Merchant Law. Ms. Amaya says that requests for information from Merchant Law have largely gone unanswered.

None of the records concerning Waddell Phillips’ clients who were formerly represented by Merchant Law have been provided, notwithstanding the fact that Merchant Law has acknowledged having individual files for many of these Waddell Phillips’ clients. Evidence filed by or on behalf of Merchant Law respecting the Aubichon Action [ 20 ] Merchant Law has filed affidavits from Lenitta Covill, Joshua Diehl and Dr. Jacqueline Maurice. [ 21 ] Joshua Diehl is a 37-year old whose mother attended the School and who is prepared to act as a representative plaintiff. Mr.

Diehl has limited personal knowledge of the facts to which he attests and fairly says that the source of most of his information is Mr. Merchant K.C. He provides evidence about Mr. Merchant’s attendance at a hearing before Justice Ball, Mr. Merchant’s arguments in court, and Mr. Merchant’s efforts up to 2007. However, there are clear and lengthy breaks in the timeline set out in Mr. Diehl’s evidence. For example, between 2007 and 2012, there appears to be minimal activity by Mr. Merchant on the case. Mr. Diehl’s evidence indicates that at some point between 2013-2015 (when exactly is not set out), Mr.

Merchant explained to “some of the named plaintiffs, and they agreed with the plan, that tactically it was important to delay the Île-à-la-Crosse litigation in favour of the Timber Bay litigation… …The advice of Merchant Law Group was that if they could succeed regarding the Timber Bay School, that would help to achieve success regarding the Île-à-la Crosse School.” [ 22 ] It should be noted that when Ball J. retired, Keene J. was assigned to deal with matters relating to certification of the Aubichon Action. [ 23 ] The affidavit of Mr.

Diehl talks about all the steps taken by Merchant Law to move the Timber Bay School litigation forward and the efforts of Merchant Law to move forward with litigation concerning Sixties Scoop cases. The affidavit of Mr. Diehl details Mr. Merchant’s role in moving forward cases involving other residential schools, day schools, political changes over the years, Mr. Merchant’s travel itinerary, efforts to certify a class action pertaining to missing and murdered Indigenous women and other efforts taken by Mr. Merchant to further the cause of First Nations people in Canada.

He says that 288 people contacted Merchant Law about the Île-à-la-Crosse proposed class action. Of these people, about half have since passed away. In the entirety of Mr. Diehl’s affidavit, it appears that only one or two paragraphs convey information to which Mr. Diehl has firsthand knowledge, while the rest is information that has been conveyed to him by Merchant Law or Mr. Merchant. Mr. Diehl was not among the initial claimants listed in the 2005 Aubichon Action. Of course, at that time Mr. Diehl would have only been approximately 19 years old. [ 24 ] The second affidavit comes from Dr.

Jacqueline Maurice, who holds a doctorate in Philosophy and a Master’s in Social Work. Dr. Maurice provides an opinion dated July 24, 2023, entitled “They Were Once Children – Residential Day School Expert Witness Report”. The report itself deals with the legacy of residential day schools and, in particular, the Timber Bay Day School and the Île-à-la-Crosse Day School. The report does include a

section devoted to the Île-à-la Crosse School and the experience of students at that School. Dr. Maurice’s affidavit says that she was retained by Merchant Law but does not say when such retainer came about. It is interesting that the report is dated approximately 18 years after the Aubichon Action was commenced and a few months after this application in the Gardiner Action was brought. [ 25 ] Finally, there are two affidavits from Lenitta Covill, a legal assistant with Merchant Law. The first of her affidavits describes Merchant Law’s expertise in the area of class actions.

The second affidavit, which was late-filed, details Merchant Law’s role in negotiating a memorandum of understanding with the Île-à-la-Crosse Boarding School Steering Committee Inc., Métis Nation Saskatchewan and Her Majesty the Queen in Right of Canada. Acting on behalf of the Steering Committee in the context of those negotiations was the firm of Cassels Brock. It is not clear why this information could not have reasonably been included in the first affidavit and had to be late filed. [ 26 ] Melvina Aubichon has filed reply evidence but much of her evidence is repetitive.

She reiterates not being consulted on decisions respecting her case. [ 27 ] The material filed raise a number of issues, both procedural and substantive: (

a) Can a lawyer file an affidavit in support of an application and have another lawyer from the same office argue the application in Saskatchewan? (

b) Does the Court have the power to stay the Aubichon Action and, if so, should such power be exercised in this case? (

c) What are Merchant Law’s responsibilities to the people who initially retained them? Is Merchant Law required to turn over documents as requested? (

d) Does Merchant Law have a solicitor’s lien on the files of the plaintiffs in the Aubichon Action and, if so, for what? (

a) Can a lawyer file an affidavit in support of an application and have another lawyer from the same office argue the application in Saskatchewan? [ 28 ] Mr. Merchant objects to the inclusion of affidavit evidence from Mr. Phillips on the basis that Mr. Phillips is from the same firm as Ms. Waddell and, accordingly, The King’s Bench Rules in Saskatchewan prohibit Mr. Phillips from swearing and relying on an affidavit in a contested application, while also appearing (or having someone else from his firm appear) to argue the application. [ 29 ] Ms.

Waddell and her colleagues argue that in the context of a carriage motion, the lawyer has to be able to put the evidence before the Court respecting their expertise, and that the normal prohibition against a lawyer acting as advocate and witness at the same time, therefore, does not, or at least, ought not to apply.

[30] As a general rule, the Court wants to hear from the person with the best evidence. This can become problematicwhere the person with the firsthand knowledge is the lawyer. Such is the case here.

Section 5.2-1 of the Code of Professional Conduct ofthe Law Society of Saskatchewan, adopted February 10, 2012 (updated to September 2023) states: Submission of Evidence 5.2-1 A lawyer who appears as advocate must not testify or submit his or her own affidavit evidence before the tribunal unless permittedto do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal oruncontroverted. [31] Lawyers are, generally speaking, only allowed to swear affidavits in proceedings in which they are the advocateif the matters in their affidavit are uncontroverted.

Mr. Merchant says that such is not the case here. [32] In Wanner v Christie, 2016 SKQB 147 at paras 65 and 66, the law respecting affidavits by lawyers wassuccinctly summarized: [65] Although Saskatchewan now has the same code as the UC Code [Law Society of Upper Canada’s Rules of ProfessionalConduct], I agree with the comment of Justice Rosenberg in Planned Insurance [(1989), (ON SC), 68 OR (2d) 271(Ont H Ct J)] that codes of professional conduct are not binding on the court. Accordingly, in my view, the long-standing history ofjudicial comment in Saskatchewan governs the use of affidavits in this application.

The Annotated Rules of Court cite severalSaskatchewan decisions that stand for the proposition that a lawyer cannot advocate from his or her own affidavit. More specifically,Justice Foley in Dustyhorn Estate v Stickney, 2004 SKQB 53, 245 Sask R 132 clarified whether one lawyer in a firm could swear anaffidavit to be argued by another lawyer in the same firm. At paragraph 4 he expressly disallowed such practice, stating: [4] An affidavit taken by Mr. Worme, Q.C., partner to Mr. Curtis, solicitor of record for the applicants, filed in support of the thirdmotion, details matters arising at an inquest into Mr.

Dustyhorn’s death, references studies of the judicial system and advancesarguments in favour of the motion. Regardless of any other objections that may be made to the contents of this affidavit, the matters itreferences are in issue and contentious, such that, whether filed by counsel of record or “a lawyer in his firm”, it is a clear contraventionof the rule laid down by the Court of Appeal in Bilson v. University of Saskatchewan, [1984] 4. W.W.R. 238 (Sask. C.A.) A completepractice directive on this topic is contained as Civil Practice Directive No. 1 in the Court of Appeal Rules.

Rather than striking theaffidavit or adjourning this entire proceeding to enable alternate counsel to be instructed, all parties agreed that the first two motionsshould proceed, while the third motion would be adjourned sine die to be brought on, if necessary, once these other motions are decided. [66] A local practice in Saskatchewan has clearly evolved, endorsed by the courts: no distinction will be drawn to permit lawyer “A” ina firm to swear an affidavit to permit lawyer “B” in the same firm to argue a position based on the statements in the affidavit, unless thecontents of the affidavit are merely formal or uncontroverted. [33] The bottom line is this, the lawyer should not act as witness and advocate at the same time.

This rule avoids asituation where a lawyer is placed in the position of arguing that their witness (being themselves or colleagues in their own office) is/areparticularly credible. [34] If a lawyer feels that they are the appropriate person to swear an affidavit, they must retain third party counsel toargue the motion to which their affidavit pertains. The alternative is to have the client swear the affidavit, identifying counsel as thesource of the information and belief.

Of course, in such situation, the Court may give less weight to the affidavit of the client than wouldbe the case if the lawyer (being the person with firsthand knowledge) had sworn the affidavit. This is, of course, the problemMr. Merchant faces as Mr. Diehl’s affidavit is virtually entirely comprised of information whose source is Mr.

Merchant and/orMerchant Law. [35] In the context of a true carriage motion (being a fight between two or more law firms as to who should beallowed to conduct and direct the proceeding and, in effect, drive the bus on behalf of the plaintiffs), the abilities and experience of thecompeting law firms is an important consideration. Evidence of each law firm’s area of practice allows the Court to assess the relativeexpertise of both firms and their ability to handle the proposed class action.

That said, the motion before me is not a true carriage motion.This is a stay application where the Gardiner claimants are seeking not carriage but to stay or stop the Aubichon Action from proceedingat all. I appreciate the practical effect of a stay would give carriage to Phillips Waddell, but the motion itself seeks a stay. [36] In the end result, I will not consider the affidavit of Mr. Phillips. By the same token, given that Mr. Diehl hasvirtually no firsthand information to offer, I am only prepared to give his evidence minimal weight. (

b) Does the Court have the power to stay the Aubichon Action and, if so, should such power be exercised in this case? [37] Mr. Merchant argues that the Court does not have the power to stay “his” claim or if it does (which he denies),the Court should decline to stay the Aubichon Action and instead allow both the Aubichon Action and the Gardiner Action to proceed.He says that the Aubichon Action is broader than the Gardiner Action and that the Gardiner Action does not cast as wide a net in termsof its proposed classes of claimants. Mr.

Merchant repeatedly in argument referred to the Aubichon Action as “his” claim or thatMerchant Law would decide what course to take in the Aubichon Action. To be clear, the Aubichon Action is not “his” claim; neither he,nor Merchant Law are plaintiffs in that proceeding. They are counsel. [38] Ms. Waddell and her colleagues argue that the Court has the authority to stay the Aubichon Action and shoulddo so in this instance given the failure of Merchant Law to pursue, for years, the claim on behalf of the Aubichon claimants. Further, shecontends that Mr.

Merchant’s concern respecting the scope of the class of claimants can easily be remedied by way of amendment to thestatement of claim in the Gardiner Action. [39] The Government of Saskatchewan takes no formal position but submits that the Court has the power to stay theAubichon Action. From their perspective, they do not want to have to fight two identical lawsuits and say that allowing two claims to

proceed would run afoul of principles of judicial economy. [ 40 ] The parties are on common ground as to the fundamental purposes of class proceedings. Class proceedings are aimed at: (

a) judicial economy (preventing duplication and multiple proceedings); (

b) ensuring access to justice (allowing claims to be pursued in a cost-effective way); and (

c) efficiency and justice by ensuring that where wrongdoing is found, wrongdoers modify their behaviour. See Western Canadian Shopping Centres Inc. v Dutton, 2001 SCC 46 at paras 27 to 29 , [2001] 2 SCR 534 [ Dutton ] . [ 41 ] Some of the same basic principles and concepts set out in the Supreme Court of Canada’s decision in Dutton are also now part of The King’s Bench Rules , Foundational Rules. Rule 1-3(3), for example, provides: 1-3

(3) To achieve the purpose and intention of these rules, the parties shall, jointly and individually during an action: (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense; (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court; (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules; and (

d) when using publicly funded Court resources, use them effectively. [ 42 ] Rule 1-3 is about making justice more accessible and more affordable. The King’s Bench Rules apply to class proceedings by virtue of s. 44 of the Act which states: Rules of Court 44 The King’s Bench Rules apply to class actions to the extent that those rules are not in conflict with this Act . [ 43 ] As a starting point, I accept that the Court has the power to order a stay of proceedings for the purposes of avoiding multiplicity of proceedings and preventing an abuse of the Court’s process.

This power is found in ss. 6 - 4 and 6 - 13 of The King’s Bench Act , SS 2023, c 28 , which states: Multiplicity of proceedings avoided 6-4

(1) The court shall grant to the parties to an action or matter all remedies to which the parties appear to be entitled with respect to any legal or equitable claims that they have properly brought forward so that: (

a) all issues in controversy between the parties are determined as completely and finally as possible; and (

b) a multiplicity of legal proceedings concerning the issues is avoided.

(2) Relief pursuant to subsection (1) may be granted either absolutely or on any terms and conditions that a judge considers appropriate. … Stay of proceedings 6-13

(1) Nothing in this Act prevents a judge from directing a stay of proceedings in any action or matter before the court if the judge considers it appropriate.

(2) Any person, whether a party or not to an action or matter, may apply to the court for a stay of proceedings, either generally or to the extent that may be necessary for the purposes of justice, if the person may be entitled to enforce a judgment, rule or order, and the proceedings in the action or matter or a part of the proceedings may have been taken contrary to that judgment, rule or order.

(3) On an application pursuant to subsection (2), a judge shall make any order that the judge considers appropriate. [ 44 ] The Gardiner claimants further rely on ss. 14 and 15 of the Act in support of their application for a stay but as noted by Leurer J.A. (as he then was) in Larocque v Yahoo! Inc., 2023 SKCA 63 at para 24 [ Yahoo ] , the powers granted by those sections are limited to actions which have been certified. This action has not been certified, nor is it a multijurisdictional claim as was the case in Yahoo or in Ammazzini v Anglo American PLC, 2016 SKCA 164 , 405 DLR (4th) 119 .

That said, it is clear that the Act has not displaced the jurisdiction of this Court to permanently stay a Saskatchewan action. This is evident from the comments of the Court of Appeal at paras. 7 and 75 of the Yahoo decision: [7] The Saskatchewan action was commenced on May 16, 2017, as a proposed class action under the CAA [ The Class Actions Act , SS 2001, c C-12.01 ]. The Judge was designated by Popescul C.J.Q.B. to hear Ms. Larocque’s certification application.

In accordance with the practice in this province, the Judge has also heard all of the applications that have been brought in relation to the Saskatchewan action. … [75] I am satisfied that the Judge was correct to conclude that his jurisdiction to permanently stay the Saskatchewan action had not been displaced by the CAA . More specifically, he correctly concluded that the CAA did not require that Ms. Larocque’s certification

application be heard before consideration was given to Yahoo’s request for a permanent stay. [ 45 ] I am satisfied that the Court indeed does have the power to stay the Aubichon Action, the question is not whether that power exists but, rather, whether it should be exercised based on the facts of this case. [ 46 ] I have been appointed by Chief Justice Popescul to hear an application for certification in respect of the Gardiner Action. I have not been appointed to hear an application for certification in respect of the Aubichon Action. Keene J. has been assigned that task.

A task which he is ready, willing and able to do. What the Gardiner claimants are asking is that I stay the file that is before Keene J. so as to avoid multiple proceedings. Certainly, I agree that multiple proceedings are to be avoided, where reasonably possible and that one of the underlying purposes of class actions is judicial economy. However, Keene J. and I are both justices on the Court of King’s Bench. We both exercise the same authority and are both judicially independent.

If I stay the Aubichon Action, Keene J. will not be able to move ahead with the certification application, an application with which he is assigned and seized. He is the Justice appointed pursuant to s. 4 of the Act to hear that application. I am not. [ 47 ] If I stayed the action that is before Keene J., I would be setting a precedent where one judge of the Court of King’s Bench could tell another judge of the same level of court what to do on a matter with which they are seized. I simply do not have such power. [ 48 ] Further, if the relief sought is granted, it would result in allowing parties to judge shop.

What if the Gardiner claimants preferred Keene J. to Bardai J., they could ask Keene J. to stay the Gardiner Action. I am not prepared to permit this type of judge shopping. [ 49 ] Finally, such a precedent would undermine the power of the Chief Justice under s. 4 of the Act . It is the Chief Justice who has the power to assign a certification judge.

I cannot, in effect, overrule the Chief Justice’s decision by staying the Aubichon Action and staying his assignment of certification on that proceeding to Keene J. [ 50 ] In the end result, in the peculiar circumstances of this case, I am not prepared to grant the stay sought. [ 51 ] It is not clear why the Gardiner claimants (many of whom were at one time plaintiffs in the Aubichon Action) did not simply apply for a stay before Keene J. In any event, the request for a stay is dismissed. Although I am declining to grant a stay, I am not prepared to let this matter languish for another decade.

I have carriage of the Gardiner Action and the certification process in that action. Accordingly, I direct the Local Registrar to

schedule a call with counsel for the parties on the Gardiner Action for the purposes of setting a timeline in order to deal with a certification application on the Gardiner Action. Merchant Law is not a party in the Gardiner Action nor do they represent a party in that action. They are not to be included in the call. Further, this decision is without prejudice to the Gardiner claimants bringing a motion for a stay of the Aubichon Action before Keene J. (

c) What are Merchant Law’s responsibilities to the people who initially retained them? Is Merchant Law required to turn over documents as requested? [ 52 ] Mr. Merchant, during the course of his submissions, suggested: (

a) that in class actions you do not have to get instructions from clients; (

b) that he came up with a strategy whereby his firm would hold this action in abeyance and, instead, pursue a similar action, known as the Timber Bay litigation. Mr. Merchant’s view is that the Timber Bay litigation has a greater chance of success and once judgment is obtained in the Timber Bay litigation, the defendants are likely to settle this action, which, in his view, is weaker and will face problems at the certification stage. This “plan” was not discussed with all of the plaintiffs that retained him. Frankly, it is not clear with whom this plan was discussed. Mr.

Merchant says that it is entirely appropriate and permissible to prefer the Timber Bay litigation over this case because the Timber Bay case has a better chance of success. This, of course, offers little comfort to Melvina Aubichon, Duane Favel and Herbert Norton with whom the special plan was never discussed. Further, there is no evidence to suggest Mr. Merchant told these former clients his view that their case was weak and would struggle to get certified; and (

c) Mr. Merchant did not report to the Aubichon claimants about his strategy, or any progress being made on their case for many years. [ 53 ] Mr. Merchant’s assertions demonstrate a profound misunderstanding of the role of counsel in a class action. Certainly, I agree that once a class action is certified, the identity of all the particular claimants may not be immediately known and so getting instructions or reporting to those claimants is impractical. It is for that reason, of course, that a representative plaintiff(

s) is/are chosen by the Court at the certification stage, if the case is certified. The representative plaintiff(s), once appointed, are responsible for: (

a) giving direction and instruction to counsel; (

b) participating in discoveries; (

c) authorizing settlements; and (

d) prosecuting the lawsuit. [ 54 ] The representative plaintiff(

s) act as a fiduciary towards members of the class, they cannot put their interest ahead of the class. They need to have adequate knowledge and ability to instruct counsel and are answerable to the Court. See: Hoffman v Monsanto Canada Inc., 2002 SKCA 120 at para 16 , 220 DLR (4th) 542; and Warren K. Winkler, Paul M. Perell, Jasminka Kalajdzic & Alison Warner, The Law of Class Actions in Canada (Toronto: Thomson Reuters, 2014) at 152-153. [ 55 ] At paragraph 76 of the Aubichon Statement of Claim, the listed plaintiffs (who are now for the most part

plaintiffs in the Gardiner Action) are proposed as representatives for: Student Class 76.

The Plaintiffs are representatives of a class of persons, representatives, and entities resident or situated in Canada, more particularly described as follows: “All Metis persons, status Indians, and persons who are not status Indians (as is described in the Indian Act of Canada , R.S.C. 1951, c I-29), including their estates, executors, or personal representatives, in Canada, and abroad, who attended Ile a la Crosse. (hereinafter both Class Members are collectively referred to as “petitioner(s)” , “Plaintiff(s)”, “Class Member(s)”, “Group Members” , or the “Class”) the “Group”, “student” or the “public”) Sibling Class 76(

b) The sibling class includes all of the parents and siblings of the student class members. Family Class 76(

c) The family class includes the spouses and children of the student class members. 76(

d) The Plaintiffs anticipate that pursuant to a decision of a certification Judge they will be divided into subclasses based on the types of abuse they suffered. [ 56 ] At this stage, of course, there is no representative plaintiff, a certification hearing has not occurred on either the Gardiner Action or the Aubichon A ction and so at this stage, there are simply proposed representative plaintiffs. [ 57 ] Prior to certification, there are a group of people who approach a lawyer for help. Merchant Law was approached by a number of such persons and entered into retainer agreements with them.

These agreements are, oddly enough, not all the same, but they all identify the person who approached the firm and asked the firm for help as “the Client”. All of these agreements (at least those produced for this application), say that Merchant Law will prosecute the claim on behalf of the Client and, in return, the firm will be paid a fee based on what is recovered by the Client. These agreements do place a great deal of power in the hands of the law firm, but, in my view, they do not displace the ethical obligations owed by the firm and the lawyers in it to their clients.

Those obligations are found in the rules of professional conduct. The Code of Professional Conduct (Consolidation September 2023) at

chapter 3.2-1 states: 3.2 QUALITY OF SERVICE Quality of Service 3.2-1 A lawyer has a duty to provide courteous, thorough and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil. Commentary [1] This rule should be read and applied in conjunction with

section 3.1 regarding competence. [2] A lawyer has a duty to provide a quality of service at least equal to that which lawyers generally expect of a competent lawyer in a like situation. An ordinarily or otherwise competent lawyer may still occasionally fail to provide an adequate quality of service. [3] A lawyer has a duty to communicate effectively with the client.

What is effective will vary depending on the nature of the retainer, the needs and sophistication of the client and the need for the client to make fully informed decisions and provide instructions. [4] A lawyer should ensure that matters are attended to within a reasonable time frame.

If the lawyer can reasonably foresee undue delay in providing advice or services, the lawyer has a duty to so inform the client, so that the client can make an informed choice about his or her options, such as whether to retain new counsel. [5] Examples of expected practices The quality of service to a client may be measured by the extent to which a lawyer maintains certain standards in practice. The following list, which is illustrative and not exhaustive, provides key examples of expected practices in this area: (

a) keeping a client reasonably informed; (

b) answering reasonable requests from a client for information; (

c) responding to a client’s telephone calls; (

d) keeping appointments with a client, or providing a timely explanation or apology when unable to keep such an appointment; (

e) taking appropriate steps to do something promised to a client, or informing or explaining to the client when it is not possible to do so; ensuring, where appropriate, that all instructions are in writing or confirmed in writing;

(

f) answering, within a reasonable time, any communication that requires a reply; (

g) ensuring that work is done in a timely manner so that its value to the client is maintained; (

h) providing quality work and giving reasonable attention to the review of documentation to avoid delay and unnecessary costs to correct errors or omissions; (

i) maintaining office staff, facilities and equipment adequate to the lawyer’s practice; (

j) informing a client of a proposal of settlement, and explaining the proposal properly; (

k) providing a client with complete and accurate relevant information about a matter; (

l) making a prompt and complete report when the work is finished or, if a final report cannot be made, providing an interim report when one might reasonably be expected; (

m) avoiding the use of intoxicants or drugs that interferes with or prejudices the lawyer’s services to the client; (

n) being civil. [6] A lawyer should meet deadlines, unless the lawyer is able to offer a reasonable explanation and ensure that no prejudice to the client will result. Whether or not a specific deadline applies, a lawyer should be prompt in handling a matter, responding to communications and reporting developments to the client. In the absence of developments, contact with the client should be maintained to the extent the client reasonably expects. [ 58 ] Although the above rule is set out in the 2023 updated Code of Professional Conduct , it is not new. The Code of Professional Conduct (1991, amended to 2005) provides at

Chapter II, Competence and Quality of Service as follows: Quality of Service 7. Numerous examples could be given of conduct that does not meet the quality of service required by the second branch of the Rule. The list that follows is illustrative, but not by any means exhaustive: (

a) failure to keep the client reasonably informed; (

b) failure to answer reasonable requests from the client for information; (

c) unexplained failure to respond to the client’s telephone calls; (

d) failure to keep appointments with clients without explanation or apology; (

e) informing the client that something will happen or that some step will be taken by a certain date, then letting the date pass without follow-up information or explanation; (

f) failure to answer within a reasonable time a communication that requires a reply; (

g) doing the work in hand but doing it so belatedly that its value to the client is diminished or lost; (

h) slipshod work, such as mistakes or omissions in statements or documents prepared on behalf of the client; (

i) failure to maintain office staff and facilities adequate to the lawyer’s practice; (

j) failure to inform the client of proposals of settlement, or to explain them properly; (

k) withholding information from the client or misleading the client about the position of a matter in order to cover up the fact of neglect or mistakes; (

l) failure to make a prompt and complete report when the work is finished or, if a final report cannot be made, failure to make an interim report where one might reasonably be expected; (

m) self-induced disability, for example from the use of intoxicants or drugs, which interferes with or prejudices the lawyer’s services to the client; (

n) failure to maintain an adequate limitation reminder or tickler system to ensure an effective follow-up procedure with respect to the lawyer’s files. [Emphasis added] [ 59 ] There are numerous cases where lawyers have been found to have engaged in conduct unbecoming for having failed to obtain and follow instructions of a client (assuming the instructions fall within ethical bounds) and/or failing to provide progress reports to clients.

See, for example: Law Society of Saskatchewan v Hardy , 2004 SKLS 4; Hesje v The Law Society of Saskatchewan , 2015 SKCA 2 , 451 Sask R 205 , original decision at 2013 SKLSS 13 ; Peet v The Law Society of Saskatchewan , 2014 SKCA 109 , 446 Sask R 105 , original decision at 2013 SKLSS 5 and The Law Society of Saskatchewan v Zawislak , 2016 SKLSS 1 . [ 60 ] It is, for example, conduct unbecoming to fail to advance files in any way for approximately four years as was

the case in The Law Society of Saskatchewan v Tilling , 2013 SKLSS 12 . It is also a failure to not keep a client informed of progress on their matter, as was the case in The Law Society of Saskatchewan v Hardy , 2011 SKLSS 6 at para 26 , where the hearing committee for the Law Society notes: 26. During the course of the file the Member failed to keep CLIENT “X” reasonably informed as to the status of the matter. On March 15, 2007, approximately 7 months after providing instructions, and having heard nothing from the Member, CLIENT “X” requested an update. A similar request was made on April 23, 2007.

No response was provided by the Member to either of these contacts until May 23, 2007. [ 61 ] Fundamental in the solicitor and client relationship is keeping the client informed of the progress of their claim and getting instructions from the client on strategic choices; like, for example, delaying the prosecution of one client’s cause until there is an outcome in another case. Based on the evidence and the submissions of Mr. Merchant himself, Merchant Law failed to do that. Instead, the evidence of Mr.

Diehl is that he has been told by Merchant Law that they consulted with some, but not all of the people that hired the firm. The evidence does not support a conclusion that the former clients of Merchant Law, who have now retained Waddell Phillips and sworn affidavits in connection with the present application, assigned or appointed a single representative among them to be the point person for giving instructions to counsel or receiving advice from counsel. [ 62 ] Merchant Law did not seek instructions from all the people that came to them for help and with whom they entered into retainer agreements.

Merchant Law did not inform these people of strategic choices being taken on their file, strategic choices which may have consequences; for example, where steps are not taken to move a case forward in a timely manner, there is always the prospect of an application being brought to dismiss the claim for want of prosecution. Merchant Law did not inform clients of steps being taken on their case, respond to requests for information or explain to all their clients the risks associated with the strategic choice to delay proceeding on this file.

Further, Merchant Law has waited so long to take steps on this file that many of the people who retained them are now deceased. Many of the clients that remain have given Merchant Law express instructions to hand over all records to their new firm, the firm prosecuting the Gardiner Action. In a short letter dated February 16, 2023, Mr. Merchant writes to Ms. Waddell as follows: Dear Ms.

Waddell: Re: Court No.: KBG-SA-01263-2022 Î le- à -la-Crosse – 7700179 I am required to reply to reasonable correspondence from colleagues in the profession and as a result write in response to your request for files. 1 – You misconceive the process. 2 – There are no files. Contact information or correspondence may exist regarding some of these individuals but we assert a solicitor’s lien over this information. 3 – The discontinuance of an action and the commencement of the same action, relying in part on the tolling provisions of The CAA is in effect taking over, or attempting to take over the action.

If successful in this regard, we would be entitled to a portion of any fees recovered if recovered and by way of this letter, advise you that we advance an inchoate claim. Yours truly, MERCHANT LAW GROUP LLP Per: E.F. Anthony Merchant, K.C. EFAM/nc [ 63 ] Later in a letter dated March 13, 2023, Mr. Merchant writes: Dear Ms. Waddell:

Re: Î le- à -la-Crosse Class Action We have individual files for each of the following: Melvina Aubichon Mary McCallum Vital Corrigal Christopher McKay Richard Desjardin Felix Merasty Marie Diachinsky Brenda Montgrand Arthur Durocher Donald Morin Louise (Lariviere) Durocher Floyd Morin Renee Guetre Peter Morin Ronnie Guetre Herb Norton Sarah Hanterman Morley Norton Rene Janvier Matilda Wagner Ronald Laprise Alice Woods Additionally we think we have an individual file for George A. Laliberte but we have not been able to locate it.

We may be able to locate it by the time the issue of a solicitor’s lien on the files has been resolved. As I have indicated previously, you misconceive the situation but if the solicitor’s lien were resolved, the files for example contain the following information: health benefits information tax returns provincial government correspondence retainer agreements notes regarding personal harms copies of separate claims completed Residential School Initial Interview forms photographs of students at the school birth certificates and other information Yours truly, MERCHANT LAW GROUP LLP E.F. Anthony Merchant, K.C.

EFAM/nc [ 64 ] The Aubichon Action has been languishing. Merchant Law did not consult all their clients, did not obtain instructions from all of their clients and did not report to all of their clients for more than a decade. I am not prepared to let the Gardiner Action proceed in a similar fashion. Merchant Law will turn over, within 60 days, any files they have relating to any former clients who have instructed them to do so and who are now represented by Waddell Phillips. (

d) Does Merchant Law have a solicitor’s lien on the files of the plaintiffs in the Aubichon Action and, if so for what? [ 65 ] The issue of the solicitor’s lien claim was not vigorously argued at the hearing. The parties were in agreement that the way this issue should be dealt with is as follows:

(1) Merchant Law has at present an unproven claim for costs as against their former clients who are now represented by Waddell Phillips; (2) in the event of a settlement or decision in favour of the plaintiffs in the Gardiner Action in which the plaintiffs in that action recover any monies from the defendants, Waddell Phillips shall give notice of the settlement or decision to Merchant Law, including the quantum of such settlement; and

(3) Merchant Law may at that time advance a claim for costs based on their individual retainers with their clients and the provable work they performed for such clients. [ 66 ] This approach certainly makes sense and allows the Gardiner Action to proceed without getting sidetracked by this issue. I thank both Waddell Phillips and Merchant Law for the practical approach to dealing with this issue. Conclusion [ 67 ] In

summary I find as follows:

(1) The affidavit of Mr. Phillips is struck and the affidavit of Mr. Diehl is given minimal weight;

(2) The application to stay the Aubichon Action is dismissed without prejudice to a similar application being brought before Keene J. who is seized with that matter;

(3) Merchant Law will turn over, within 60 days, all records they have pertaining to Waddell Phillips’ clients who were their former clients and who have provided them directions to turn over records;

(4) The issue of the claim for a solicitor’s lien shall be dealt with as follows: a. Merchant Law has at present an unproven claim for costs as against their former clients who are now represented by Waddell Phillips; b. In the event of a settlement or decision in favour of the plaintiffs in the Gardiner Action in which the plaintiffs recover any monies from the defendants, Waddell Phillips shall give notice of the settlement or decision to Merchant Law, including the quantum of such settlement. c. Merchant Law may at that time advance a claim for costs based on their individual retainers with their clients and the work they actually performed for such clients.

(5) Given the mixed outcome on this matter I make no order as to costs. [ 68 ] A timeline needs to be set to ensure that the Gardiner Action does not languish in the same way the Aubichon Action has languished. The Local Registrar is instructed to fix a call with the parties (Merchant Law is not a party and does not represent a party) in the first quarter of 2024 to discuss and establish a timeline for the purposes of proceeding with a hearing on the issue of certification.

This will allow time for the files currently in the possession of Merchant Law to be produced and time for the parties to prepare and engage in preliminary discussions as to a timetable for the conduct of a certification hearing. ______________________________J. N. BARDAI