KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 261 Date: 2023 12 05 File No.: QBG-RG-00713-2022 Judicial Centre: Regina BETWEEN: EMMA BEMROSE, PLAINTIFF - and - DR. RUBEN MANZ, RUBEN A. MANZ D.C. PROF. CORP., and CHIROPRACTORS’ ASSOCIATION OF SASKATCHEWAN, DEFENDANTS Corrected FIAT: The text of the original fiat has been changed per the corrigendum released December 12, 2023. A copy of the corrigendum is appended to this corrected Fiat. Counsel: Iqbal S. Brar for the plaintiff Talon M. Regent for Dr. Ruben Manz and Ruben A. Manz D.C. Prof. Corp. James S.

Ehmann, K.C. for Chiropractors’ Association of Saskatchewan ___________________________________________________________________________ FIAT BARDAI J. December 5, 2023 ___________________________________________________________________________ [ 1 ] The plaintiff, Emma Bemrose, being the proposed class representative [Plaintiff], has commenced a claim against Dr. Ruben Manz, Ruben A. Manz D.C. Prof. Corp., and the Chiropractors’ Association of Saskatchewan [Association] pursuant to The Class Actions Act , SS 2001, c C-12.01 [ Act ]. The statement of claim alleges that Dr.

Ruben Manz sexually assaulted the Plaintiff and others and seeks to bring the action on behalf of all those who were treated by Dr. Manz and were subjected to sexually inappropriate conduct by Dr. Manz.

[ 2 ] As against the Association, the claim alleges that the Association had a duty to inform the public of investigations and to stop or prevent Dr. Manz from engaging in sexually inappropriate and abusive behaviour as against the proposed class. The claim alleges the Association was negligent, potentially breached a fiduciary duty and is vicariously liable for the conduct of Dr. Manz. [ 3 ] The Plaintiff applies to cross examine the Association in respect of affidavits filed in connection with a pending class certification hearing. The Association has filed affidavits from Denise Gerein [Ms.

Gerein] sworn January 3, 2023, Karen Stroud [Dr. Stroud] sworn January 4, 2023, and Ms. Gerein sworn April 27, 2023. [ 4 ] The evidence of Dr. Stroud, a member of the investigation committee of the Association, is that: (

a) The Association received three complaints alleging sexual impropriety by Dr. Manz; (

b) The Association conducted interviews of Dr. Manz and the initial complainant. Dr. Manz denied any sexual impropriety and so the matter was referred to a discipline committee to determine whether Dr. Manz had acted inappropriately; (

c) A second complaint was then received by the Association; (

d) The Association learned through CTV news that Dr. Manz had been arrested and charged with sexual assault during the course of providing chiropractic treatments; (

e) The Association brought a court application which resulted in a consent order pursuant to which conditions were imposed on Dr. Manz; (

f) A request was then received by counsel for Dr. Manz to stay the disciplinary matters before the Association pending the outcome of the criminal complaints but the investigation committee was not prepared to suspend disciplinary proceedings; this ultimately resulted in a practice restriction agreement, requiring, among other things, statutory declarations every two months; (

g) The Association posted notice of the order and practice restriction agreement to its website pending the outcome of criminal and disciplinary complaints; (

h) The Association understands that the criminal complaints are set to go to trial in January of 2024; (

i) The Association and investigation committee have at all times acted in good faith. [ 5 ] The evidence of Ms. Gerein, the Registrar of the Association, is that: (

a) In May 2021 the Association became aware of criminal charges against Dr. Manz upon being contacted by police; (

b) Dr. Manz continues to provide the required statutory declarations; and (

c) The Association has only ever received three complaints. Position of the Parties [ 6 ] The position of the Plaintiff is that the affidavits are sparse and that cross-examination will provide “clarity” to the evidence. For example, clarity in the complaints process, clarity in the role of the Association, clarity as to who received complaints at the Association and what they did with those complaints, clarity in the involvement of the Association, the Committee and the Registrar with respect to their contacts with complainants and authorities.

Finally, the Plaintiff says there are contradictions between the evidence of the Association and the legislative requirements of The Chiropractic Act, 1994 , SS 1994, c C-10.1 , along with inconsistencies in exchanges between the Registrar and one of the complainants. [ 7 ] The Association for its part says that the majority of proposed common issues are, at their core, questions pertaining to the standard of care, what duties were owed by the Association and whether such duties were breached.

They say that the proposed common issues are problematic in the way they are presented but regardless, cross-examination of the Association’s witnesses are unlikely to assist the Court in determining the issues on certification. Issue [ 8 ] Should the Court permit the Plaintiff to cross-examine Ms. Gerein and/or Dr. Stroud? Law and Analysis [ 9 ] With any application, the starting point is Rule 1-3(4) of The King’s Bench Rules which provides:

(4) Resolving a claim justly in a timely and cost effective way includes, so far as is practicable, conducting the proceeding in ways that are proportionate to: (

a) the amount involved in the proceeding; (

b) the importance of the issues in dispute; and (

c) the complexity of the proceeding. [ 10 ] In class proceedings, the amount involved in the lawsuit will almost always be significant when looking at the

total quantum of all claims and all claimants. At the present stage of the litigation, being certification, the Court is trying to define theissues in dispute and assess their importance. Class actions, are by their very nature, complex proceedings but the fact that the Court isfaced with complex proceedings, involving important issues and potentially significant damages is not on its own determinative.

TheCourt must still examine the specific issue being raised (in this case cross-examination) and the legal test to be applied in the context ofthe relief sought. [11] The parties are on common ground as to the state of the law. Unlike other jurisdictions, there is no automaticright to cross-examine in Saskatchewan. Leave of the Court is required. In Ter Keurs Bros.

Inc. v Last Mountain Valley (RuralMunicipality), 2019 SKCA 10 at para 27, 429 DLR (4th) 269, the Court notes: 27 It is settled law that a party does not have an automatic or inherent right to cross-examine an affiant on his or her affidavit (see, forexample: Wallace v Canadian National Railway, 2009 SKQB 178, 338 Sask R 174; Crown & Hand Pub Ltd. v Bank of AmericaCorporation, 2013 SKQB 348, 430 Sask R 80). A party making a request of this nature must establish that the cross-examination willassist in resolving the issue before the court and not result in an injustice.

Granting leave to cross-examine on an affidavit is adiscretionary remedy. [12] Rule 6-13 of The King’s Bench Rules provides: 6-13(1) On any application or petition, evidence may be given by affidavit, but the Court may, on the application of either party, orderthe attendance for cross-examination of the person making the affidavit.

(2) The party applying for any cross-examination pursuant to subrule (1) shall bear the costs of the cross-examination. [13] The general principles governing this type of application are set out in Wallace v Canadian Pacific Railway,2009 SKQB 178 at para 5, 81 CPC (6th) 125: 5 The law with respect to when a court ought to exercise its discretion in favour of a request to permit cross-examination on a deponent’saffidavit is well settled. The general principles and criteria considerations gleaned from the jurisprudence in this jurisdiction may besummarized as follows: 1.

There is no inherent right to cross-examine a deponent on his affidavit. 2. Granting leave to cross-examine on an affidavit is a discretionary remedy. 3. Permission to cross-examine on the affidavit may be granted by the Court pursuant to Rule 317. 4. The party making the request must establish that the cross-examination will assist in resolving the issue before the Court and that itwill not result in an injustice. 5. Leave to cross-examine will be sparingly, and not routinely, granted. 6.

Generally, leave to cross-examine ought only be granted where there is contradictory evidence before the Court; however, in theabsence of contradictory evidence, the Court may nonetheless grant leave where there is a sincere and legitimate need for clarification ofthe information deposed to and that information is solely within the knowledge of the affiant. 7. Generally, leave to cross-examine on an affidavit ought not be granted on interim applications. 8. There is no enhanced right of cross-examination under The Class Actions Act, S.S. 2001, c. C-12.01. The general principles apply. See Schroeder v.

DJO Canada, Inc., 2009 SKQB 169; R. v. Brooks, 2009 SKQB 75, [2009] S.J. No. 111 (QL); Cole v. Prairie CentreCredit Union, 2007 SKQB 171, 295 Sask. R. 159 (Q.B.); Hoffman v. Monsanto Canada Inc., 2003 SKQB 564, 242 Sask. R. 286;and Canada Safeway v. Saskatchewan Human Rights Commission (1993), (SK KB), 108 Sask. R. 253 (Q.B.). [14] In the context of a class action where the affidavit evidence is put forward in the context of a certificationapplication, the Court must consider whether cross-examination will assist in resolving the issues on certification without giving rise toinjustice.

Ultimately, the question the Court must answer is “whether the issue proposed to be canvassed on cross-examination is relevantto the question before the Court on the application for certification, and not an issue to be determined at trial”. See Hoffman v MonsantoCanada Inc., 2003 SKQB 564 at para 23, 242 Sask R 286. [15] In a certification application, the Court must answer five questions which are set out in s. 6(1) of the Act: 6(1) Subject to subsections (2) and (3), the court shall certify an action as a class action on an application pursuant to

section 4 or 5 if the court is satisfied that: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class; (

c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affectingindividual members; (

d) a class action would be the preferable procedure for the resolution of the common issues; and (

e) there is a person willing to be appointed as a representative plaintiff who:

(

i) would fairly and adequately represent the interests of the class; (ii) has produced a plan for the class action that sets out a workable method of advancing the action on behalf of the class and ofnotifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. (

a) Reasonable Cause of Action [16] When assessing whether or not a claim pleads a reasonable cause of action, the question is whether, assumingthe facts alleged by the Plaintiff to be true, there is a reasonable prospect of success. Here, the Court examines whether the claim pleadsthe elements of each cause of action advanced. Claims are read generously with a view to accommodating inadequacies in drafting. InWilson v Saskatchewan Water Security Agency, 2023 SKCA 16 at para 17, 478 DLR (4th) 170, the Court provides a

summary of theprinciples and considerations when assessing whether a claim pleads a reasonable cause of action: 17 I would first note that, with the one exception discussed below, the Chambers judge correctly identified the law that governs anapplication to strike pursuant to Rule 7-9(2)(a). The

summary of the principles to be applied on such an application that is most oftenreferred to by this Court is found in Collins v Saskatchewan Rural Legal Aid Commission, 2002 SKQB 201, which adopts the reasoningin Sagon: [11] The principles which apply to an application to strike a plaintiff’s claim under Rule 173(

a) are the following: (

i) The claim should be struck where, assuming the plaintiff proves everything alleged in the claim there is no reasonable chance ofsuccess. (Sagon v. Royal Bank of Canada et al. (1992), (SK CA), 105 Sask.R. 133 at 140 (C.A.)); (ii) The jurisdiction to strike a claim should only be exercised in plain and obvious cases where the matter is beyond doubt. (Sagon, at140; Milgaard v. Kujawa et al. (1994), (SK CA), 123 Sask.R. 164 (Sask.

C.A.)); (iii) The court may consider only the claim, particulars furnished pursuant to a demand and any document referred to in the claim uponwhich the plaintiff must rely to establish its case (Sagon, at p. 140); (iv) The court can strike all, or a portion of the claim (Rule 173); (

v) The plaintiff must state sufficient facts to establish the requisite legal elements for a cause of action. (Sandy Ridge Sawing Ltd. v.Norrish and Carson (1996), (SK KB), 140 Sask.R. 146 (Q.B.)). See also R v Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45; Merchant Law Group LLP v Slusar, 2022 SKCA 75;Saskatchewan Power Corporation v Swift Current (City), 2007 SKCA 27, [2007] 5 WWR 387; Warren K. Winkler, Paul M.

Perell,Jasminka Kalajdzic & Alison Warner, The Law of Class Actions in Canada (Toronto: Thomson Reuters Canada Limited, 2014) at 73;and MacInnis v Bayer Inc., 2023 SKCA 37. [17] The focus at this stage of the inquiry is the Plaintiff’s statement of claim. The evidence of the defendants offersno assistance at this stage of the inquiry. In fact, very limited evidence is permitted (limited to the documents referenced in the claimupon which the Plaintiff must rely). Beyond that, the Court only considers the Plaintiff’s pleadings and responses to particulars. (

b) There is an Identifiable Class [18] The Supreme Court of Canada in Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57 at para 99,[2013] 3 SCR 477 [Pro-Sys Consultants], provides a useful

summary of the standard of proof that must be met in order to satisfy thestatutory criteria: 99 The starting point in determining the standard of proof to be applied to the remaining certification requirements is the standardarticulated in this Court’s seminal decision in Hollick. In that case, McLachlin C.J. succinctly set out the standard: “... the classrepresentative must show some basis in fact for each of the certification requirements set out in ... the Act, other than the requirementthat the pleadings disclose a cause of action” (para. 25 (emphasis added)).

She noted, however, that “the certification stage is decidedlynot meant to be a test of the merits of the action” (para. 16). Rather, this stage is concerned with form and with whether the action canproperly proceed as a class action (see Hollick, at para. 16; Pro-Sys Consultants Ltd. v. Infineon Technologies AG, 2009 BCCA 503, 98B.C.L.R. (4th) 272 (“Infineon”), at para. 65; Cloud v.

Canada (Attorney General) (2004), (ON CA), 73 O.R. (3d)401 (C.A.), at para. 50). [Emphasis in original] [19] In Western Canadian Shopping Centres Inc. v Dutton, 2001 SCC 46 at para 38, [2001] 2 SCR 534, the Courtprovides guidance as to the importance of the identifiable class requirement and its purpose: 38 While there are differences between the tests, four conditions emerge as necessary to a class action. First, the class must be capable ofclear definition. Class definition is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded),and bound by the judgment.

It is essential, therefore, that the class be defined clearly at the outset of the litigation. The definition shouldstate objective criteria by which members of the class can be identified. While the criteria should bear a rational relationship to thecommon issues asserted by all class members, the criteria should not depend on the outcome of the litigation. It is not necessary thatevery class member be named or known. It is necessary, however, that any particular person’s claim to membership in the class bedeterminable by stated, objective criteria: see Branch [Branch, Ward K.

Class Actions in Canada, Vancouver: Western LegalPublications, 1998] at paras. 4.190-4.207; Friedenthal, Kane and Miller, Civil Procedure (2nd ed. 1993), at pp. 726-27; Bywater v.Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Ont. Ct. (Gen. Div.)), at paras. 10-11.

See also Hollick v Toronto (City) , 2001 SCC 68 at paras 20 and 21 , [2001] 3 SCR 158 . [ 20 ] The evidence of the Association will be of little benefit in determining the question of an identifiable class. (

c) The Claims of the Class Members Raise Common Issues [ 21 ] It is with regard to this requirement that the Plaintiff says the cross-examination of the Association’s witnesses will be of assistance to the Court. The Plaintiff proposes the following common issues relating to the Association in the certification application filed March 3, 2023: 2. Did the Chiropractors’ Association of Saskatchewan owe the Plaintiff and the members of the Class a duty of care? If the answer is yes, what is the applicable standard of care? ... 4.

Did the Chiropractors’ Association of Saskatchewan owe a fiduciary duty to the Plaintiff and members of the Class? ... 9. Does the Chiropractors’ Association of Saskatchewan owe a duty of care to the Plaintiff and members of the Class to provide notice to the Plaintiff, members of the Class, and/or the public when: a. there are any complaints, investigations or decisions concerning its members? and/or b. there are any complaints, investigations or decisions concerning its members that involve allegations of sexual impropriety? c. If the answer to either (

a) or (

b) is yes, what would be the scope of the notice and when is notice required to be given to the Plaintiff, the members of the Class, and/or the public? 10. Does the Chiropractors’ Association of Saskatchewan owe a duty of care to the Plaintiff and members of the Class to administer a complaints process that: a. provides notice to the Plaintiff, the members of the Class, and/or the public of any complaints, investigations or decisions concerning its members? and/or b. provides notice to the Plaintiff, the members of the Class, and/or the public of any complaints, investigations or decisions concerning its members that involve allegations of sexual impropriety? c. If the answer to either (

a) or (

b) is yes, what would be the scope of the notice and when is notice required to be given to the Plaintiff, the members of the Class, and/or the public after the complaint is made? 11. Is the Chiropractors’ association of Saskatchewan vicariously liable for the conduct of its membership and the chiropractic treatment and care they provide to the Plaintiff, the Class, and/or the public when it receives a complaint against a said member or receives notice of conduct of a said member that is contrary to its regulatory bylaws? 12.

Was the Chiropractors’ Association of Saskatchewan negligent when: a. it did not provide notice to the Plaintiff, the members of the Class, and/or the public when it received complaints against Dr. Ruben Manz that alleged sexually [ sic ] impropriety? b. it suspended the complaints process when a complainant would not engage in a dialogue or a meeting with Dr. Ruben Manz? c. it did not immediately impose restrictions on the practice of Dr. Ruben Manz when it received multiple complaints against Dr. Ruben Manz? d. it did not immediately impose restrictions on the practice of Dr.

Ruben Manz when it received a complaint against Dr. Ruben Manz that alleged sexually [ sic ] impropriety? e. it did not immediately impose restrictions on the practice of Dr. Ruben Manz when it received multiple complaints against Dr. Ruben Manz alleging sexually [ sic ] impropriety? f. it did not immediately impose restrictions on the practice of Dr. Ruben Manz when it knew or ought to have known of criminal charges against Dr. Ruben Manz alleging sexually [ sic ] impropriety? g. it did not immediately impose undertakings on Dr.

Ruben Manz with respect to how he would provide chiropractic treatment to his patients when it received multiple complaints against Dr. Ruben Manz? h. it did not immediately impose undertakings on Dr. Ruben Manz when it received a complaint against Dr. Ruben Manz that alleged sexually [ sic ] impropriety? i. it did not immediately impose undertakings on Dr. Ruben Manz when it received multiple complaints against Dr. Ruben Manz alleging sexually [ sic ] impropriety? j. it did not immediately impose undertakings on Dr. Ruben Manz when it knew or ought to have known of criminal charges against Dr.

Ruben Manz alleging sexually [ sic ] impropriety?

k. it did not immediately suspend the license of Dr. Ruben Manz pending an investigation when it received a complaint against Dr. Ruben Manz that alleged sexually [ sic ] impropriety? Or l. it did not immediately suspend the license of Dr. Ruben Manz pending an investigation when it received multiple complaints against Dr. Ruben Manz alleging sexually [ sic ] impropriety? m. it did not immediately suspend the license of Dr. Ruben Manz pending an investigation when it knew or ought to have known of criminal charges against Dr. Ruben Manz alleging sexually [ sic ] impropriety? ... 14.

Is the Chiropractors’ Association of Saskatchewan liable to the Plaintiff and the members of the Class for punitive damages? If so, may the amount be determined on an aggregate basis before or after the resolution of individual issues and distributed on a proportional basis? [ 22 ] In The Law of Class Actions in Canada at 109, the authors provide the underlying rational and need to identify common issues in the context of a certification application: The underlying critical ingredient of a common issue is whether the resolution of the common issue will avoid duplication of fact-finding or legal analysis.

It is not necessary that all or even a majority of the questions of law or fact of the class members be identical, similar or related. What is required is that the claims of the members raise some questions of law or fact that are sufficiently similar or sufficiently related that their resolution will advance the interests of the class, leaving individual issues to be litigated later in separate trials, if necessary.

It is generally appropriate to include possible defences among the common issues only when they rise to the level of making a subclass necessary. [ 23 ] A common issue is one which can be decided on a class-wide basis. If the answer to the question is not the same for all members of the class, it is by definition not a common issue. See Toms Grain & Cattle Co. Ltd. v Arcola Livestock Sales Ltd. , 2006 SKCA 20 at para 35 , 279 Sask R 281 . [ 24 ] As noted by the Supreme Court of Canada in Pro-Sys Consultants at para 110 : 110 ...

In order to establish commonality, evidence that the acts alleged actually occurred is not required.

Rather, the factual evidence required at this stage goes only to establishing whether these questions are common to all the class members. [ 25 ] The common issues inquiry is not about determining facts in dispute or even seeking “clarity” as to exactly what happened, when, where and why, it is about identifying those questions that are common to all class members. [ 26 ] In my view, the “clarity” sought by the Plaintiff is not about identifying the questions that need to be asked but rather, about trying to find answers to the questions proposed, in particular, answers to questions 12(a)-12(

m) in the certification application. That is what a trial is for. At this stage, the Court is not concerned with reconciling competing expert evidence or determining disputed facts -- the inquiry is focused on identifying the questions that need to be answered and whether such questions are common to all the class members. In my view, cross-examination of the Association’s witnesses will not assist in this exercise. (

d) A Class Proceeding Would be the Preferable Procedure [ 27 ] In Markson v MBNA Canada Bank , 2007 ONCA 334 at para 69 , 85 OR (3d) 321 , the Court provides an apt

summary of the considerations applicable to a preferable procedure analysis: [69] Second, in my view, the motion judge erred in failing to apply the criteria for preferable procedure as articulated by the Supreme Court of Canada. A succinct statement of the applicable principles is set out in Hollick , supra, at paras. 27 to 31 . I would summarize those principles as follows:

(1) The preferability inquiry should be conducted through the lens of the three principal advantages of a class proceeding: judicial economy, access to justice and behaviour modification; (2) “Preferable” is to be construed broadly and is meant to capture the two ideas of whether the class proceeding would be a fair, efficient and manageable method of advancing the claim and whether a class proceeding would be preferable to other procedures such as joinder, test cases, consolidation and any other means of resolving the dispute; and,

(3) The preferability determination must be made by looking at the common issues in context, meaning, the importance of the common issues must be taken into account in relation to the claims as a whole. [ 28 ] The question is whether cross-examination will assist in dealing with these issues. In my view, the answer is no. The common issues in a case like this, as they relate to the Association, are capable of being determined without cross-examination of the Association’s witnesses. Similarly, the importance of those questions does not require the evidence of the Association.

Finally, in my view, the analysis of whether a class proceeding is better than other options and whether it would be fair and manageable in this case, likewise, will not be aided by “clarification” of the facts put in issue by the Plaintiff. Simply put, certification is not the time and place to prove the allegations of fact advanced; it is the time and place to answer only those questions set out in s. 6 of the Act . (

e) A Willing Representative Plaintiff [ 29 ] Obviously, this inquiry will not be aided by cross-examination of the Association’s witnesses.

Summary

[ 30 ] In this case, I have concluded that cross-examination of the Association is unlikely to assist the Court in answering the criteria set out in s. 6 of the Act . The analysis required to determine whether cross-examination is warranted in the context of a class proceeding for the purposes of certification is case specific. There is no one size fits all answer.

Every case will have to be examined in light of the common issues sought to be certified, the nature of the allegations advanced and the criteria set out in s. 6 of the Act . [ 31 ] In this case, on these allegations, and given the common issues sought to be certified as against the Association, I find that cross-examination of the Association will not assist the Court at certification and dismiss the Plaintiff’s application seeking cross-examination. [ 32 ] The parties both brought interesting and well prepared submissions which were of great assistance to the Court. I want to thank them for their briefs.

I leave the issue of costs in respect to this application to be dealt with in the context of the certification hearing. “N. Bardai” J. N. BARDAI KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 261 Date: 2023 12 05 Docket: QBG-RG-00713-2022 Judicial Centre: Regina BETWEEN: EMMA BEMROSE, PLAINTIFF - and - DR. RUBEN MANZ, RUBEN A. MANZ D.C. PROF. CORP., and CHIROPRACTORS’ ASSOCIATION OF SASKATCHEWAN, DEFENDANTS Counsel: Iqbal S. Brar for the plaintiff Talon M. Regent for Dr. Ruben Manz and Ruben A. Manz D.C. Prof. Corp. James S.

Ehmann, K.C. for Chiropractors’ Association of Saskatchewan ___________________________________________________________________________

CORRIGENDUM to Fiat of December 5, 2023 (2023 SKKB 261) BARDAI J. December 12, 2023 __________________________________________________________________________ [1] In paragraphs 3, 4 and 8, “Ms. Stroud” is corrected to read “Dr. Stroud”. J. N. BARDAI