KEITH ANSTEAD Plaintiff - v. -, 2023 SKKB 226

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 226 Date: 2023 10 27 Docket: QBG-SA-00493-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: KEITH ANSTEAD Plaintiff - and - SASKATCHEWAN MEDICAL ASSOCIATION Defendant Counsel: E.F. Anthony Merchant, K.C. for the plaintiff C. Ryan Lepage for the defendant ___________________________________________________________________________ FIAT CURRIE J. October 27, 2023 ___________________________________________________________________________ [ 1 ] The representative plaintiff in this class action, Dr.

Keith Anstead, applies for an order returning the action to the Judicial Centre of Regina. The defendant, the Saskatchewan Medical Association (“the SMA”) opposes the application. A. Circumstances [ 2 ] Dr. Anstead commenced this action in January 2013 in the Judicial Centre of Regina.

The class action claim relates to an arrangement, negotiated between the SMA and the Government of Saskatchewan, by which full-time surgical assistants (“FTSAs”) are compensated at a lower rate than are office-based physicians for the same services. [ 3 ] The action proceeded in Regina to a certification hearing before Justice Zarzeczny, the designated judge. On December 12, 2014 he declined SMA’s request that he dismiss the claim for lack of jurisdiction, and he certified the action ( Anstead v Saskatchewan Medical Association , 2014 SKQB 406 , [2015] 7 WWR 535 ).

The SMA pursued appeals from these decisions, but the Court of Appeal in one instance on March 9, 2015 declined to grant leave ( Saskatchewan Medical Association v Anstead , 2015 SKCA 19 ) and in the other instance on November 9, 2016 struck the appeal ( Saskatchewan Medical Association v Anstead , 2016 SKCA 143 ). [ 4 ] The action now must make its way to a trial.

Pleadings have closed, but questioning has not been conducted. [ 5 ] In May 2022 the SMA requested that the Regina local registrar transfer the action, under s. 22(3) and (4) of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 (rep) (“the QB Act ”), to the Judicial Centre of Saskatoon, on the basis that the SMA is headquartered there and carries on business there. As required by the QB Act , the local registrar transferred the action. [ 6 ] Subsequently Dr. Anstead served notice of his application for an order, under s. 22(9) of the QB Act , transferring the action back to the Judicial Centre of Regina.

Continued management of the action until trial – including hearing applications such as Dr. Anstead’s – is in the hands of the designated judge, but Justice Zarzeczny has retired from the court. The Chief Justice has appointed me to take over as the designated judge, and so Dr. Anstead’s application was argued before me. [ 7 ] Dr.

Anstead asserts that the action should be transferred back to Regina for two reasons: (1) the SMA has acquiesced to the action being located in Regina, by virtue of it having participated in the action there for nine years before arranging for the transfer; and (2) in any event, Regina is the appropriate judicial centre in which to conduct the action. [ 8 ] The relevant statutory provisions appeared in ss. 22 and 24 of the QB Act , which was in force until it was replaced in 2023 by The King’s Bench Act , SS 2023, c 28 .

The King’s Bench Act bears the same provisions (the few editing differences having no effect of substance), so no issue arises from the change from the QB Act to The King’s Bench Act . [ 9 ] If I grant the order sought by Dr. Anstead I will make it under The King’s Bench Act , since it is the statute that

is in force now. For that reason, in this decision I will refer to the provisions of The King’s Bench Act . [ 10 ] The relevant provisions of The King’s Bench Act are s. 5 -2 (s. 22 of the QB Act ) and s. 5-4 (s. 24 of the QB Act ): 5-2

(1) Subject to this section, all actions shall be commenced and, unless ordered otherwise, tried at the judicial centre nearest to the place where: (

a) the cause of action arose; (

b) the defendant or one of several defendants resides when the action is commenced; or (

c) the defendant or one of several defendants carries on business when the action is commenced.

(2) If the parties have agreed in writing to venue, the plaintiff may commence the action at the judicial centre specified in the agreement as long as that judicial centre has not been disestablished and, if the place specified in the agreement as the venue for the action was a judicial district, it is deemed to be the judicial centre of the same name.

(3) Except where the parties have agreed in writing to venue, an action may be commenced at any judicial centre, but unless an action is commenced at one of the judicial centres mentioned in subsection (1), a defendant may request a transfer of the action in accordance with subsection (4) or (5).

(4) If there is only one defendant, the defendant may, at any time after entering a defence and before the action is set down for trial, file with the local registrar at the judicial centre where the action was commenced a notice requesting a transfer of the action to a judicial centre mentioned in subsection (1) that is specified in the notice.

(5) If there are 2 or more defendants, any defendant may, at any time after entering a defence and before the action is set down for trial, file with the local registrar at the judicial centre where the action was commenced: (

a) a notice requesting a transfer of the action to the judicial centre nearest to the place where the cause of action arose; or (

b) with the concurrence of all other defendants, a notice requesting a transfer of the action to a judicial centre mentioned in subsection (1) that is specified in the notice.

(6) On receipt of a notice requesting the transfer of an action: (

a) the local registrar shall immediately forward to the local registrar at the judicial centre specified in the notice all documents in the action and transfer all matters in the action to that judicial centre; and (

b) unless otherwise ordered, the action shall be continued at the judicial centre specified in the notice as if it had been commenced there.

(7) Notwithstanding subsections (3) to (6), no family law proceeding shall be transferred from the judicial centre at which the action was commenced without the consent of the parties or an order of a judge.

(8) Notwithstanding any agreement to the contrary or any provision in a mortgage of land or in an agreement for the sale of land, all actions for foreclosure or sale under a mortgage, or for enforcement of the vendor’s lien, specific performance, termination, cancellation or rescission of a contract respecting land, shall be commenced and, unless otherwise ordered, continued and tried at the judicial centre nearest to which the land or any part of it lies.

(9) A judge may order the transfer of any action to any judicial centre. … 5-4 If an action or matter has been commenced at the wrong judicial centre: (

a) a judge may order the record to be transferred to the proper judicial centre on any terms as to costs or otherwise that the judge considers appropriate; and (

b) if an order is made pursuant to clause (a): (

i) the local registrar at the wrong judicial centre shall transmit to the local registrar at the proper judicial centre all documents in the action or matter; and (ii) the action or matter shall be continued or dealt with as if it had been commenced at the proper judicial centre. B. Acquiescence: conduct of the SMA [ 11 ] Dr. Anstead argues that, by participating in the action in Regina for nine years, the SMA has acquiesced to Regina being the appropriate judicial centre.

Such acquiescence, he argues, is binding on the SMA, so that the SMA is estopped from taking the position that Regina is not the proper judicial centre. [ 12 ] The principle of estoppel by acquiescence is a common law principle. Common law, which is judge-made law, is subject to statute law, which is law made by a legislature. Here the application of estoppel by acquiescence is foreclosed by the provisions of s. 5-2(4) of The King’s Bench Act :

(4) If there is only one defendant, the defendant may, at any time after entering a defence and before the action is set down for trial, filewith the local registrar at the judicial centre where the action was commenced a notice requesting a transfer of the action to a judicialcentre mentioned in subsection (1) that is specified in the notice. [Emphasis added] [13] The King’s Bench Act expressly permits a defendant to have the action transferred to a different judicial centre,provided the request is made before the action is set down for trial, regardless of how much time has passed and regardless of howinvolved in the proceedings the defendant has been.

In light of s. 5-2(4) it is not open to the court to rule, on the basis of acquiescence,that a transfer may not be pursued. [14] For this reason, I do not find that the SMA’s acquiescence to the action proceeding in Regina for several yearsprevents the SMA from asserting that Saskatoon is the appropriate judicial centre. C. Acquiescence: conduct of the court [15] In a related argument, Dr.

Anstead refers to s. 5-6 of The King’s Bench Act: 5-6 Notwithstanding anything in this or any other Act or in any regulation or rule of court, if an action or matter has been commenced atthe wrong judicial centre or an application has been made to the wrong judge as persona designata or otherwise, and no objection hasbeen taken by anyone on that ground or the judge has found against such an objection: (

a) a judge who proceeds to try the action, dispose of the matter or hear the application is deemed to have jurisdiction; and (

b) the judgment or findings of a judge described in clause (

a) have the same effect as if the action or matter had been commenced atthe proper judicial centre or the application had been made to the proper judge. [16] Dr. Anstead argues that if, as argued by the SMA, Regina was not the appropriate judicial centre in which tocommence the action, in light of this matter having been conducted in Regina over the course of nine years s. 5-6 now operates to deemRegina as the proper judicial centre. [17] I do not accept that argument.

Section 5-6 does not purport to transform a wrong judicial centre into anappropriate judicial centre. Rather, s. 5-6 only provides that if a matter proceeds in the wrong judicial centre those proceedings are validnotwithstanding their having taken place in the wrong judicial centre. D. Appropriate judicial centre: law regarding transfer [18] The starting point of a determination of the proper judicial centre begins with s. 5-2(1) of The King’s Bench Act: 5-2(1) Subject to this section, all actions shall be commenced and, unless ordered otherwise, tried at the judicial centre nearest to theplace where: (

a) the cause of action arose; (

b) the defendant or one of several defendants resides when the action is commenced; or (

c) the defendant or one of several defendants carries on business when the action is commenced. [19] Dr. Anstead asserts that the first step in the analysis is to determine whether this action was properlycommenced in Regina by operation of s. 5-2(1). If so, he says, then the May 2022 transfer of the action ought not to have been requestedby the SMA. He points to the condition that is included in s. 5-2(3):

(3) Except where the parties have agreed in writing to venue, an action may be commenced at any judicial centre, but unless an action iscommenced at one of the judicial centres mentioned in subsection (1), a defendant may request a transfer of the action in accordancewith subsection (4) or (5). [Emphasis added] [20] Dr. Anstead asserts that a majority of the class members reside in and work (or worked) in Regina, and so it wasin Regina that they experienced the loss that is identified in the action, so that the cause of action arose in Regina.

Therefore, he says,Regina is one of the judicial centres listed in s. 5-2(1), and so the SMA was not empowered by the Act to request the Regina localregistrar to transfer the action. [21] In so arguing, Dr. Anstead relies on the remarks of Justice Armstrong in Wahler v Association of ProfessionalEngineers (Saskatchewan) (1991), (SK KB), 95 Sask R 281 (QB). In that case the plaintiff commenced the action inSaskatoon, the defendant had the action transferred by the local registrar to Regina, and the plaintiff applied for an order transferring theaction back to Saskatoon.

Justice Armstrong referred to the equivalent of s. 5-2(3) and he said at paragraph 16: [16] The plaintiff’s application thus requires firstly a determination whether any of the three alternatives in s. 53(1.1) above, makesthe judicial centre of Saskatoon appropriate. If Saskatoon is found appropriate, the application by the plaintiff succeeds. If Saskatoon isnot appropriate, then as a second determination one must decide whether any of the three alternatives points to the judicial centre ofRegina as appropriate. [22] Justice Armstrong ruled, as Dr.

Anstead argues here, that where the action was commenced in accordance withwhat now is s. 5-2(1), the defendant had no right to have it transferred and it should be transferred back to the original judicial centre

without any further consideration. [ 23 ] A different approach was identified by Justice Klebuc (as he then was) in Thomas v Peace Hills Trust Co. , 2001 SKQB 421 , [2002] 1 WWR 176 . There he reviewed the evolving case law and, focusing on what now is s 5-2(9), he said at paragraphs 23 to 25: [23] Section 22(9) of the Act vests judges with judicial discretion to transfer an action to any judicial centre. The scope of s. 22(9) was considered in Stewart v. Ross, [1986] S.J. No. 607 (QL) (Q.B.) .

There, the plaintiff commenced her action at the Judicial Centre of Battleford where she resided nearby, notwithstanding that the cause of action arose near the Judicial Centre of Saskatoon where the defendant carried on business. The defendant requested a transfer of the action to the Judicial Centre of Regina which the plaintiff resisted. The chamber judge denied the application and made the following observations regarding s. 22(9), then s. 53(5): The first question raised by the motion is when should a judge intervene to interrupt the operation of the system.

The power to intervene is set out in subsection (5) and is discretionary. No limitations upon its exercise appear in the statute, and no guidelines. The plaintiff argues that I should intervene to order the trial at Battleford because that would be more convenient for her and her witnesses. But what of the inconvenience then to the defendant? Or the convenience or inconvenience to witnesses nearest centres other than Battleford or Regina? If convenience or inconvenience is to be the measure, then to which party is which centre convenient, or more convenient, or most convenient?

Convenience may well be one of the factors to be contemplated when making a determination under subsection (5), but in my opinion it must rank as the weakest ground for interfering with the system. ... [24] A factual scenario akin to the one in the instant case arose in Saskatchewan Government Insurance Office v. Buildall Construction Ltd. et al. (1978), 13 C.P.C. 164 (Sask. Q.B.) . Although the chamber judge was satisfied that Regina would be the forum conveniens , he dismissed the application because of the decision in Gallant and Carter v. F.W. Woolworth Co. Limited , dated May 9, 1968.

There, the Saskatchewan Court of Appeal held that the chamber judge erred in transferring the action based on convenience because the right to transfer an action under s. 53(2)(

a) and (

b) of The Queen's Bench Act , R. S.S. 1965, c. 73 [now s. 22(4) and (5) ] was limited to circumstances where the action was commenced at a judicial centre other than the one specified in s. 53(1) [now s. 22 (1) ]. The broad discretion contained in s. 22(9) did not exist in 1968. Therefore, the decision does not apply in the instant case. [25] In

summary, I conclude that the discretion granted by s. 22(9) of the Act empowers this Court to prohibit or grant a transfer of an action on the basis of a particular judicial centre being the forum conveniens . I am further satisfied that the Judicial Centre of Battleford is the forum conveniens based on the substantial number of witnesses resident nearby; the fact that many of the defendants’ principal witnesses live in Alberta and therefore will have to travel in any event; and that all members of the Saulteaux Band are functionally and substantively plaintiffs in the within action for they beneficially own the funds that the Trustees sue to recover. … [Emphasis added] [ 24 ] This

interpretation, by which the approach in Wahler no longer applies by virtue of the broad discretionary power in s. 5-2(9), was endorsed by the Court of Appeal in Superior Construction Solutions Inc. v Hamilton Construction Corp. , 2016 SKCA 130 , 403 DLR (4th) 428 .

Justice Caldwell said at paragraph 12: [12] Given the inherent jurisdiction of the Court of Queen’s Bench, the foregoing statutory provisions and The Queen's Bench Rules , we conclude a judge of the Court of Queen’s Bench has a broad discretionary power to transfer any action brought before that Court in one judicial centre to another judicial centre of the Court, whether the action was commenced in the wrong judicial centre or not .

For the purposes of these written reasons, we need not comment upon the factors that bound the exercise of that discretion; it is enough that it exists. [Emphasis added] [ 25 ] Justice Caldwell’s reference to “whether the action was commenced in the wrong judicial centre or not ” is significant. Here Dr. Anstead insists that this action was not commenced in the wrong judicial centre, but that factor is not determinative. The Court of Appeal has ruled that, regardless of where the action was commenced, this court has the power to transfer the action.

Since it is a “broad discretionary power”, that power includes both the power to transfer and the power to decline to transfer. [ 26 ] Justice Robertson reached the same conclusion in Toronto-Dominion Bank v Janzen , 2021 SKQB 38 . After a detailed review of the legislation and the case law concerning judicial centre transfer, he concluded at paragraphs 63 to 66: [63] Subsection 22(9) states “A judge may order the transfer of any action to any judicial centre.”

Section 24 authorizes a judge to order the record to be transferred where an action has been commenced at the wrong judicial centre. I do not read s. 22(3) as limiting the authority conferred by s. 22(9) or s. 24. [64] In Thomas , Klebuc J. found that s. 22(9) of the Act conferred “broad discretion” to transfer actions and made older cases to the contrary inapplicable: [24] ... The broad discretion contained in s. 22(9) did not exist in 1968. Therefore, the decision does not apply in the instant case. [25] In

summary, I conclude that the discretion granted by s. 22(9) of the Act empowers this Court to prohibit or grant a transfer of an action on the basis of a particular judicial centre being the forum conveniens . ... [65] The Court of Appeal in Superior Construction Solutions Inc. v Hamilton Construction Corp. , 2016 SKCA 130 , 403 DLR (4th) 428 , also recognized “a broad discretionary authority to transfer any action”:

[12] Given the inherent jurisdiction of the Court of Queen’s Bench, the foregoing statutory provisions and The Queen’s Bench Rules , we conclude a judge of the Court of Queen’s Bench has a broad discretionary power to transfer any action brought before that Court in one judicial centre to another judicial centre of the Court, whether the action was commenced in the wrong judicial centre or not.

For the purposes of these written reasons, we need not comment upon the factors that bound the exercise of that discretion; it is enough that it exists. [66] Where appropriate then, the court can, on its own initiative or upon application of any party, transfer an action to another judicial centre. [ 27 ] Thus on this application I am empowered by s. 5-2(9) to exercise my discretion to choose the appropriate judicial centre in which this action will continue. [ 28 ] In exercising my discretion to determine the appropriate judicial centre for this action, I will consider what is fair and reasonable in the circumstances of this case.

In so doing, I will take into account a factor that was focused on by both parties here: convenience. Convenience has been considered as a factor in such applications previously. For example, Justice Klebuc referred to it as a factor at paragraph 25 of Thomas , a reference that was quoted with approval by Justice Robertson at paragraph 64 of Janzen . E. Objection regarding affidavits [ 29 ] In support of this application Dr. Anstead has filed his own affidavit sworn July 14, 2022 and the affidavit of Dr. Darcy Ready sworn the same date.

The SMA objects to portions of the affidavits. [ 30 ] The objection relates mainly to statements in the affidavits that are not within the affiants’ personal knowledge and that also are not identified as being based on information and belief. The SMA acknowledges that, on this interlocutory application, the affidavit evidence need not include only information based on an affiant’s personal knowledge.

The affidavit evidence may include information that is based on the affiant having been so informed by someone and on the affiant believing it to be true. [ 31 ] This principle appears in Rule 13-30 of The Queen’s Bench Rules : 13-30

(1) Subject to subrule (2), an affidavit must be confined to facts that are within the personal knowledge of the person swearing or affirming the affidavit.

(2) In an interlocutory application, the Court may admit an affidavit that is sworn or affirmed on the basis of information known to the person swearing or affirming the affidavit and that person’s belief.

(3) If an affidavit is sworn or affirmed on the basis of information and belief in accordance with subrule (2), the source of the information must be disclosed in the affidavit.

(4) The costs of every affidavit that unnecessarily sets forth matters of hearsay or argumentative matter, or copies of or extracts from documents, must be paid by the party filing the affidavit.

(5) If an affidavit based on information and belief is filed and does not adequately disclose the grounds of that information and belief, the Court may direct that the costs of the affidavit shall be paid personally by the lawyer filing the affidavit.

(6) An affidavit filed in a subsequent proceeding for the same action must not repeat matters filed in earlier affidavits, but may make reference to earlier affidavits containing those matters. [ 32 ] Here, the SMA argues, many of the factual statements included in the affidavits: (

a) are outside the personal knowledge of the affiant; and (

b) appear without disclosure of the source of the information. [ 33 ] Dr. Anstead’s affidavit commences with the following statement, at paragraph 1: 1. I am the representative plaintiff in the class action filed under QBG 119 of 2013 at the judicial centre of Regina and as such I have personal knowledge of the matters and facts hereinafter deposed to, except where stated to be on information and belief, and where so stated, I verily believe same to be true. [ 34 ] As will be seen, however, in subsequent paragraphs Dr.

Anstead does not disclose the sources of the information that he sets out, where that information is not within his personal knowledge. [ 35 ] The SMA asserts as well that parts of Dr. Anstead’s affidavit include speculation, opinion or argument. Flowing from Rule 13-30, and long-established in the case law, is the principle that an affidavit is not to contain speculation, opinion or argument, since none of those constitutes a statement of fact. [ 36 ] Most of the SMA’s objections are well-founded. Below are excerpts from Dr. Anstead’s affidavit.

Those parts objected to by the SMA are italicized, and I explain my ruling on each objection: (

a) Paragraph 7 begins: 7. The SMA opposed the certification for lack of jurisdiction. Their exception was not against the jurisdiction of the judicial centre of Regina. Even then it may have been too late to object to the judicial centre of Regina, more than a year after the case was commenced, …

The impugned words constitute argument, and so I disregard them. (

b) Paragraph 25 provides: 25. It is less common for FTSA’s to provide services at Saskatoon hospitals than it is for them to provide services at Regina hospitals. Much surgical assistant work at Saskatoon hospitals is conducted by surgical residents under training. In his affidavit Dr. Anstead has described his medical career as having taken place in Regina. It is evident that he has been involved in health care for many years as a fully participating FTSA, but it also is evident that he is not and has not been involved in the administration of surgical care anywhere in the province.

The information in paragraph 25 is not within his personal knowledge. The information must have come to him from some source, but he has not disclosed the source. As the source of the information is undisclosed, I disregard paragraph 25. (

c) Paragraph 26 provides: 26. If surgical assistance is required at other hospitals throughout Saskatchewan, a surgeon may require the services of a FTS[A], or rely on the services of a local general practitioner. If the services of a FTSA is required, it is usually arranged in advance so that the particular FTSA may travel from, usually, Regina. I accept that almost all of paragraph 26 is within Dr. Anstead’s personal knowledge. As a practising FTSA he would have experienced firsthand what he describes in the paragraph, up to and including the word “travel” in the second-last line.

The last three words, however, purport to describe the usual province-wide practice by which FTSAs are dispatched to provincial hospitals. As I have said above, it is evident that such information is not within Dr. Anstead’s personal knowledge. It must have come to him from some source, but he has not disclosed the source. I disregard the last three words of paragraph 26. (

d) Paragraph 29 provides: 29. I know that many of the doctors will want to attend in whole or in part for the common issues trial and for the class members who reside in Regina, that will be, in practical terms, impossible for doctors who live in Regina. The majority of class members reside in Regina and if class members from Saskatoon wanted to attend it is more appropriate that a few be inconvenienced if they decided to travel to Regina than for many to be inconvenienced if they decided to travel to Saskatoon.

But in reality, because of the way FTSAs work, only class members in the city where the common issues trial is heard will have the opportunity to attend for part of the trial. The statements of fact appearing in this paragraph, as discussed above, must have come from an undisclosed source. In addition to the statements of fact, the paragraph consists of argument. For these reasons, I disregard paragraph 29. (

e) Paragraph 31 provides: 31. For this reason, transferring the action to the judicial centre of Saskatoon will cause significant inconvenience and loss of surgery time. This paragraph presents argument, being the conclusion that Dr. Anstead suggests should be drawn from the facts. Furthermore, as discussed above Dr. Anstead is not and has not been involved in the administration of surgeries, so that he does not have personal knowledge that might form the basis of postulating what might be the effects – specifically, inconvenience and loss of surgery time – of some Regina FTSAs being required to attend court in Saskatoon. I disregard paragraph 31. (

f) Paragraph 34 provides: 34. Surgery is not done on a whim or on the basis that the doctors are probably available. Surgery is booked and we have to be in attendance so, for me and other witnesses, surgery for four or five days for each of us would have to be cancelled and that [a]ffects a great deal of surgery. The impugned words are outside the personal knowledge of Dr. Anstead, as he is not involved in scheduling surgery and in knowing the capacity of the healthcare system to fill all of the needs for surgical assistants. Furthermore, the impugned words largely constitute argument. I disregard the impugned words. (

g) Paragraph 36 provides: 36. FTSAs usually work a full day of surgery. We go from one surgery to the next.

The surgeons being assisted by us prepare, do their consultations with the patient, examine charts and x-rays, and then come in for one or two surgeries while the FTSAs go from surgery to surgery, from surgeon to surgeon, and taking an FTSA out of a hospital for a day, or in this instance many days including the potential requirement for travel to Saskatoon, waiting to be heard, being heard, and then travel back to Regina, would mean that potentially dozens and dozens of surgeries would be either in jeopardy or have to be delayed.

The first part of the impugned words – from “The surgeons being assisted” to “from surgeon to surgeon” is within Dr. Anstead’s personal knowledge, from his work with surgeons over many years. The balance of the impugned words, as above, are outside Dr. Anstead’s personal knowledge and constitute argument. I disregard that part of paragraph 36 beginning with “and taking an FTSA out of a hospital” to the end.

(

h) Paragraph 37 provides: 37. All of us are working FTSAs with ongoing patient responsibilities. The intention is to call doctors most significantly impacted which means doctors who are most actively engaged in practice as an FTSA. With a Regina trial, it will be possible to coordinate my testimony and the availability of these other witnesses. A Saskatoon trial will involve expense and disruption to our practices and potentially disrupt surgeries in Regina for the entire period of the common issues trial. As above, the impugned words are outside Dr. Anstead’s personal knowledge and constitute argument. I disregard them. (

i) Paragraph 38 provides: 38. All of the class members and other professional surgeons, who are to be called as witnesses at the trial, work full-time in Regina. The necessity of extended travel and time will have a direct negative effect on patient waiting time for surgery. It will cause more surgical delays and suffering for patients post pandemic. As above, the impugned words are outside Dr. Anstead’s personal knowledge and constitute argument. I disregard them. (

j) Paragraph 39 provides: 39. Apart from the additional expense for the Class Members, I believe that would contribute or cause reschedulings of surgeries to the detriment of the general public and cause the surgical waiting list to be extended. As above, the impugned words are outside Dr. Anstead’s personal knowledge, and his expressed belief constitutes either opinion or argument, or both. I disregard paragraph 39. (

k) Paragraph 42 provides: 42. While the recovery for individual class members cannot be small, it will not be huge either.

This is not like an ordinary plaintiff where the judicial system might have an expectation of an ordinary plaintiff bearing the travel expenses, hotel for two or three days awaiting to be heard, meals, and if the class member is retired, money is even a greater problem, and if not retired the problem of disrupting surgeries for a number of surgeons is in addition to the problem of losing money by being away from surgeries unnecessarily and causing patient disruptions, the loss of the use of valuable operating time, further increasing surgical/wait times and the loss of revenue for the primary surgeons.

Paragraph 42 is argument, and I disregard it. (

l) Paragraph 43 provides: 43. I have been available for examination in Regina but the transfer of the file to Saskatoon and this application are causing further delay. The impugned words are argument, and I disregard them. (

m) Paragraph 44 begins: 44. This delay and the disruption to the attempts to have this matter proceed to a common issues trial should be considered in relation to two references. … In paragraph 44 Dr. Anstead then cites excerpts from two decisions of the Court of Appeal. Paragraph 44 is argument, and I disregard it. [ 37 ] Dr. Ready, in his four-paragraph affidavit, identifies himself also as having worked as an FTSA in Regina since 2000. The import of his affidavit is at paragraph 4: 4. Based on my knowledge of and experience with FTSAs in Saskatchewan, I confirm the facts set out at paragraphs 20 to 30 of Dr.

Anstead’s affidavit. [ 38 ] Dr. Ready provides no personal knowledge, or information received from a disclosed source, beyond that provided by Dr. Anstead. Accordingly, those parts of paragraphs 25, 26 and 29 of Dr. Anstead’s affidavit that I am disregarding I likewise disregard in considering Dr. Ready’s adoption of Dr. Anstead’s evidence. F. The appropriate judicial centre for this action [ 39 ] I have said that a determination of the appropriate judicial centre begins with s. 5 - 2(1) of The King’s Bench Act .

The factors listed there are relevant factors to take into account when considering what is fair and reasonable in the circumstances of this case. They are relevant factors if for no other reason than that the Legislature chose to signify their importance by singling them out in s. 5 - 2(1). 1. Where the cause of action arose [ 40 ] Dr. Anstead says that the cause of action (s. 5 - 2(1)(a)) arose in Regina. He bases this on his assertion that, of his estimate of 250 class members, the majority reside in – and work or worked in – Regina or the surrounding district.

Those class members, he explains, suffered the loss that is identified in this action, and so the cause of action arose in Regina. [ 41 ] The only affidavit evidence from Dr. Anstead that is before me on this topic is his statement that “I am aware that the significant majority of the class members, all of whom are FTSAs, live in or around Regina.” This statement was not objected to

by the SMA, and it may be that Dr. Anstead has personal knowledge of the identities of, and residential locations of, the class members. [ 42 ] Countering Dr. Anstead’s statement, though, is evidence in the affidavit of Ed Hobday, the SMA’s administrative director. In his affidavit Mr. Hobday provides statistical records – with the sources disclosed – that tend to contradict Dr. Anstead’s assertion as to where the majority of the class members are located. These records indicate that, of FTSAs practising in Saskatchewan as of July 2022, 28 were located in Saskatoon and 20 were located in Regina.

They further indicate that, as of April 2022, 10,006 surgeries had been performed in Saskatoon and 6,158 surgeries had been performed in Regina. [ 43 ] These statistics raise doubts about Dr. Anstead’s assertion as to the majority of class members residing in Regina and area. Furthermore, there is no dispute that class members are distributed throughout the province. For that reason, it is more accurate to say that the cause of action arose in every judicial centre.

In that sense, neither Regina nor Saskatoon is preferable – neither is distinct for being the only judicial centre in which the cause of action arose. To address s. 5-2(1)(

a) directly, no judicial centre is “the” judicial centre nearest to the place where the cause of action arose. 2. Where the defendant resides [ 44 ]

Section 5 - 2(1)(

b) refers to “the judicial centre nearest to the place where … the defendant … resides …”. Typically a “residence” is associated with a human, someone who resides in a home. Typically, one does not think of a corporation or an association as residing in a home. On the other hand, one may think of the SMA as “residing” in Saskatoon because it is headquartered in Saskatoon and its primary operations are conducted there, as described by Mr.

Hobday in his affidavit at paragraph 32: 32. … Beyond that, while the SMA operates throughout Saskatchewan in certain respects, its executive functions are performed in Saskatoon where it is headquartered. The SMA employs over 50 staff in Saskatoon. All staff responsible for matters associated with physician compensation and economics are located here. [ 45 ] I must ask whether, by using the word “reside”, the Legislature intended to exclude corporations and associations from the application of s. 5 - 2(1)(b). I conclude that it did not. No reason presents itself for the Legislature to have so intended.

Furthermore, if the Legislature had intended that s. 5 - 2(1)(

b) would apply to only humans, and not to corporations or associations, it readily could have said so. It did not. [ 46 ] I conclude that, when a defendant is a corporation or an association, where the defendant resides is determined by considering where the defendant is headquartered and conducts its principal administrative operations. This approach is consistent with the decision of Justice Barclay in Cole v Prairie Centre Credit Union Ltd. , 2007 SKQB 184 at para 14 , 42 CPC (6th) 159 . [ 47 ] Here the SMA is headquartered in Saskatoon, and its principal administrative operations are conducted there.

For the purposes of s. 5-2(1)(b), the SMA resides in Saskatoon. 3. Where the defendant carries on business [ 48 ] In one sense, the SMA carries on business (s. 5 - 2(1)(c)) throughout Saskatchewan, since it is a province - wide association of Saskatchewan physicians. In another sense, the SMA carries on business in Saskatoon because its headquarters is there, and it conducts its principal administrative operations there. [ 49 ] The situation is akin to that of a business that has its office in one city or town, and that provides its services in many locations in the province.

Even that business, though, fairly can be described as carrying on business throughout the province and not just in its home city or town. This was the conclusion reached by Justice Klebuc in Thomas at paragraphs 11 to 22 . [ 50 ] For this reason, I conclude that the SMA carries on business throughout Saskatchewan. Therefore no judicial centre is “the” judicial centre nearest to the place where the SMA carries on business. 4. Where the plaintiff’s witnesses are located [ 51 ] Beyond the provisions of s. 5 - 2(1), Dr.

Anstead points out that all of his trial preparations have been based on the trial taking place in Regina – since the action has been based there for ten years – with all of his witnesses, five or six in number, being resident in or around Regina. [ 52 ] If the trial takes place in Saskatoon, argues Dr. Anstead, the greater inconvenience to these witnesses will be considerable. They will have travel time between the cities, and they will have to spend time waiting to testify – time that, if the trial were in Regina, they could spend in operating rooms. [ 53 ] On the other hand, the statistics provided by Mr.

Hobday indicate that as of July 2022 there were 60 practising FTSAs in Saskatchewan. Dr. Anstead maintains that there are about 250 class members. This could be so, given that the claim reaches back many years. Presumably Dr. Anstead is counting as class members many FTSAs who now are retired. [ 54 ] Referring to Mr. Hobday’s statistics, there may be something in range of 170 retired class members. If any of those class members are among the witnesses that Dr. Anstead has planned to call, they will not miss out on operating time by virtue of testifying.

Indeed, the evidence that is before me does not reveal whether the witnesses that Dr. Anstead plans to call are practising or retired – except that Mr. Hobday has provided records indicating that Dr. Anstead and Dr. Ready currently are not practising. [ 55 ] In any event, although the action is ten years old it has not yet progressed to the stage of questioning. That means that a lot of time will pass before the action gets to the trial. That is time that would permit the parties to locate Saskatoon witnesses, should the trial be held in Saskatoon.

Furthermore, there remains to be canvassed – sometime in the future – the possibility of one or more witnesses testifying at trial by video conference rather than appearing in person.

[ 56 ] In these circumstances, I conclude that Dr. Anstead’s potential witnesses being located in Regina is not a significant factor. 5. Persons wishing to attend the trial [ 57 ] Dr. Anstead also refers to being aware that “a number of the class actions plaintiffs in Regina want to attend the trial”, not to testify but to observe.

A trial in Saskatoon, he says, would make such attendance more difficult and expensive, or would lead to such persons simply not attending the trial. [ 58 ] I am not persuaded that the appropriate judicial centre for an action is determined, even in part, on the basis of convenience to persons who might wish to watch the trial. The fairness and reasonableness of the location to the parties is more important, to the point where convenience to potential spectators is not a factor in the determination. 6. The effect on health care [ 59 ] Dr.

Anstead says that transferring the action to Saskatoon, so that the trial will be conducted in Saskatoon, will result in a significant loss of surgical time in Regina and area, through surgeries being cancelled because of the unavailability of FTSAs in Regina (because they had travelled to Saskatoon), adversely affecting those members of the public who are awaiting surgery. He says so on the basis of statements in his affidavit that, as discussed above, I am disregarding.

Consequently, there is before me no evidence as to how surgeries could or might be affected by some Regina FTSAs travelling to Saskatoon to testify in a trial. [ 60 ] Furthermore, I have reference again to the statistics that have been provided by Mr. Hobday. Those statistics indicate that more surgeries are conducted in Saskatoon than in Regina, and that more FTSAs practise in Saskatoon than in Regina.

Those statistics suggest that a Regina trial – requiring Saskatoon FTSA witnesses to travel – would interrupt the surgery system more than would a Saskatoon trial. [ 61 ] In fact, it is not necessary for me to pursue that discussion. This is because there is no evidence before me concerning the administration, management and scheduling of surgeries or of FTSAs in the province. I have no evidentiary basis on which to determine whether having some FTSAs testifying at a trial would throw the surgery

schedule into disarray, or whether the system could readily adapt to having some FTSAs unavailable while they are engaged in travelling and testifying.

In the absence of evidence on the point I could only speculate as to how the healthcare system would be affected by the trial being held in one city or the other. [ 62 ] Since I am not in a position to determine that factual question, it is not necessary for me to consider the legal question of whether possible interruption of surgery schedules is a factor to be taken into account in determining the appropriate judicial centre for an action. [ 63 ] In this case, the possible effect of the trial on the healthcare system is not a factor in determining the appropriate judicial centre. 7.

The appropriate judicial centre for this action [ 64 ] In considering what is fair and reasonable in the circumstances of this case, I find that the following factors favour a transfer to the Judicial Centre of Regina: (

a) Regina is a judicial centre in which the cause of action arose (bearing in mind that the cause of action arose in all of the judicial centres); (

b) the representative plaintiff, Dr. Anstead, resides in Regina; (

c) Dr. Anstead anticipates calling witnesses who reside in Regina to testify at the trial. Regina witnesses will be less inconvenienced if the trial is held in Regina; and (

d) although the action has not yet reached questioning, in preparations so far Dr. Anstead and his counsel have proceeded on the basis that the trial will take place in Regina. [ 65 ] In considering what is fair and reasonable in the circumstances of this case, I find that the following factors favour leaving the action in the Judicial Centre of Saskatoon: (

a) Saskatoon is a judicial centre in which the cause of action arose (bearing in mind that the cause of action arose in all of the judicial centres); (

b) the SMA resides in Saskatoon; (

c) the SMA anticipates calling witnesses who reside in Saskatoon, principal among whom will be Mr. Hobday, to testify at the trial. Saskatoon witnesses will be less inconvenienced if the trial is held in Saskatoon; and (

d) although ten years have passed since this action was commenced, it has not yet reached questioning, so there is ample time for the parties to locate and call as trial witnesses persons who reside in Saskatoon and area. [ 66 ] I have said that the three factors listed in s. 5 - 2(1) of The King’s Bench Act are relevant to the determination of the appropriate judicial centre. In this case, I have determined that neither the first factor (where the cause of action arose) nor the third factor (where the defendant carries on business) is an operative factor. The second factor (where the defendant resides) is an operative factor. The SMA resides in Saskatoon.

[ 67 ] There is another aspect of relevance to s. 5-2(1). That aspect is the Legislature’s focus on the circumstances of a defendant. In identifying three important factors in the choice of judicial centre, the Legislature has identified two factors of convenience to a defendant. The Legislature has identified no factors of convenience to a plaintiff.

Probably because a plaintiff chooses to engage in litigation, whereas a defendant is forced into litigation, in this way the Legislature has deemed a defendant’s convenience to be more significant than a plaintiff’s convenience, when it comes to choosing the judicial centre. This is a factor to be taken into account when determining what is fair and reasonable in the circumstances. [ 68 ] In the end, this factor sways the balance in my determination of which judicial centre is appropriate in this case. With the other competing factors not leading to an obvious choice, it is the s. 5-2(1)(

b) factor that leads me to conclude that the defendant’s preference should prevail. [ 69 ] The Judicial Centre of Saskatoon is the appropriate judicial centre for this action. Therefore, Dr. Anstead’s application to transfer the action back to Regina is dismissed. G. Costs [ 70 ] The SMA has been successful on this application. It asks for the costs of this application. [ 71 ] The Class Actions Act , SS 2001, c C-12.01 , provides, in s. 40 : 40

(1) The court or the Court of Appeal may award costs that the court or Court of Appeal considers appropriate with respect to any application, action or appeal pursuant to this Act.

(2) In determining whether a costs award should be made pursuant to subsection (1), the court or the Court of Appeal may take into account one or more of the following: (

a) the public interest; (

b) whether the action involved a novel point of law; (

c) whether the action was a test case; (

d) access to justice for members of the public using class action proceedings; (

e) any other factor that the court or the Court of Appeal considers appropriate.

(3) Class members, other than a person appointed as representative plaintiff for the class, are not liable for costs except with respect to the determination of the class member’s individual claim.

(4) This

section applies to proceedings commenced and costs incurred before, on or after this

section comes into force. [ 72 ] Dr. Anstead argues that costs in the class action process should not be dealt with in the same manner as they are dealt with in a regular court action.

Even though The Class Actions Act permits costs awards, he says, the broad purposes of class action legislation still call for costs not to be imposed, so that costs do not become an impediment to a representative plaintiff pursuing a claim on behalf of a class. [ 73 ] It is undisputed that, as Chief Justice Richards said in Ammazzini v Anglo American PLC , 2016 SKCA 164 at para 84 , 405 DLR (4th) 119 , “s. 40 of the Act clearly does not contemplate that costs in class action matters should reflexively follow the cause”.

If this were not a class action, almost surely I would award the SMA the costs of this application, since the SMA is the successful party. There is something to Dr. Anstead’s observation about the nature of class action proceedings, however. Furthermore, it was not inappropriate or unreasonable for Dr. Anstead to have brought this application or to have argued it.

This is so particularly because the action was commenced in one of the judicial centres in which the cause of action arose, and because the action had been based in the Judicial Centre of Regina for nine years before it was transferred. [ 74 ] In these circumstances, I am not persuaded that it is appropriate for the costs of the application to be awarded to the SMA. Therefore, I order that each party will bear his or its own costs of this application. H. Conclusion [ 75 ] Dr. Anstead’s application for an order transferring the action back to the Judicial Centre of Regina is dismissed.

The Judicial Centre of Saskatoon is the appropriate judicial centre for this action, and the action will remain in this judicial centre. [ 76 ] Each party will bear his or its own costs of this application. “G.M. Currie” J. G.M. CURRIE