CHIEF RONALD MICHEL, CHIEF OF THE PETER BALLANTYNE CREE NATION, ON HIS OWN BEHALF v. ON BEHALF OF ALL, 2023 SKKB 81

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 81 Date: 2023 04 20 Docket: QBG-SA-02182-2004 Judicial Centre: Saskatoon BETWEEN: CHIEF RONALD MICHEL, CHIEF OF THE PETER BALLANTYNE CREE NATION, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHER MEMBERS OF PETER BALLANTYNE CREE NATION, AND PETER BALLANTYNE CREE NATION PLAINTIFFS (RESPONDENTS) - and – THE GOVERNMENT OF SASKATCHEWAN AND SASKATCHEWAN POWER CORPORATION DEFENDANTS (APPLICANTS) THE ATTORNEY GENERAL OF CANADA THIRD PARTY (RESPONDENT) Counsel: Monique Pongracic-Speier, K.C. and Gita Keshava for the plaintiffs/respondents P.

Mitch McAdam, K.C. and Macrina Badger for the defendant/applicant, Government of Saskatchewan James S. Ehmann, K.C. and Diana K. Lee, K.C. for the defendant/applicant, Saskatchewan Power Corporation J. Neil Goodridge and Samantha Gergely for the third party (respondent)

___________________________________________________________________________ JUDGMENT R.S. SMITH J. April 20, 2023 ___________________________________________________________________________ [ 1 ] The Court is met with a number of fractious procedural applications.

Saskatchewan Power Corporation [SaskPower] seeks to amend its amended statement of defence as well as its third party claim against the Attorney General of Canada [Canada]. [ 2 ] The defendant, The Government of Saskatchewan [Saskatchewan], requests similarly that it amend its statement of defence and its third party claim against Canada. [ 3 ] Finally, not to be outdone, the plaintiff, Chief Ronald Michel, on his own behalf and on behalf of the Peter Ballantyne Cree Nation [PBCN], seeks an order bifurcating the trial.

Specifically, PBCN asserts that it is only logical that there firstly be a trial on the issue of liability. Once that is established, there can be a second trial over the issue of damages which could be a fairly problematic and far-reaching debate. Background [ 4 ] In 2004, PBCN sued all three defendants for flooding portions of an Indian Reserve occupied by PBCN, thus wrongly depriving it of its use of reserve lands.

PBCN advanced a multitude of claims, including a claim that the defendants were committing a continuing trespass. [ 5 ] In June 2014, the defendants applied to the Court to strike out the claim, asserting that the claims were statute- barred. On October 7, 2014, I issued a judgment ( 2014 SKQB 327 , 455 Sask R 60) granting the defendants’ application and striking the claim on the basis that the various claims therein were statute-barred. [ 6 ] My judgment was appealed, and the Court of Appeal upheld much of my reasoning saving and excepting on the topic of continuing trespass.

The Court of Appeal found my analysis wanting on that score ( 2016 SKCA 124 , [2017] 1 WWR 685). [ 7 ] The Court of Appeal confirmed that there is a continuing trespass by the defendants on the Indian Reserve and directed at paragraph 265: [265] The appeal with respect to the claim for the continuing tort of trespass against Saskatchewan and SaskPower is allowed. Having determined that the Cree Nation has a claim in continuing trespass against Saskatchewan and SaskPower, the matter is returned to the Court of Queen’s Bench to determine the following issues: (

i) the merits of SaskPower’s arguments relating to the consent issue as identified in paras 147 to 148 of this judgment; and (ii) damages. [ 8 ] Thereafter, Saskatchewan and SaskPower amended their defences to allege that the land subject to flooding was not an Indian Reserve.

This did not catch PBCN by surprise as everyone knew that debate was in the offing, even prior to my 2014 decision. [ 9 ] In a judgment dated December 23, 2019 ( 2019 SKQB 334 ), Konkin J. concluded that the defendants were correct and that the subject property was not an Indian Reserve and that the claim should be struck on that basis. [ 10 ] To no one’s surprise, PBCN appealed to the Court of Appeal. The Court of Appeal’s approach was not to overrule Konkin J.’s decision on the issue that the land is not a reserve but rather to deal with the debate by way of issue estoppel.

Paragraphs 55 to 57 of SaskPower’s brief address the Court of Appeal’s approach: 55. This proposed amendment pleads that although the Court of Appeal has found that Saskatchewan and SaskPower are precluded, by issue estoppel, from contending that the Southend Land is not a reserve, the fact and legal reality that this court (i.e., Konkin J.) has decided that the Southend Land is not a reserve remains as a determination untouched or disturbed by the judgment of the Court of Appeal.

In other words, although SaskPower and Saskatchewan are estopped from asserting that the Southend Land is not a reserve, this Court is not estopped and cannot ignore the undisturbed finding of Konkin J. 56. In ( Michel v Canada (Attorney General ) 2019 SKQB 334 , Konkin J. of this court, after an extensive review of historical facts and expert surveyor evidence, found that the Southend Land is not a reserve. The primary factual evidence presented to and considered by Konkin J. were historical records dating back to 1921. 57.

The Court of Appeal specifically observed in Michel CA [2021 SKCA 126] that it was not dealing with that part of Konkin J.’s judgment (paragraph 219 of Michel ). It follows that there continues to be an undisturbed judgment of this court that the Southend Land is not a reserve. Saskatchewan and SaskPower are estopped from contending otherwise, but the court is faced with the undisturbed judgment of Konkin J., holding that the Southend Land is not a reserve. There can be no trespass in that regard. [ 11 ] In short, the Court of Appeal overruled Konkin J.’s grant of

summary judgment in favour of Saskatchewan and SaskPower and remitted the remaining issues to the Court of Queen’s Bench (now Court of King’s Bench). [ 12 ] The parties now look to hone their pleadings with a view to advancing towards Questioning or perhaps, yet another

summary judgment application. I will deal with each party’s procedural request separately.

Governing Law [13] The legal principles with respect to amending a pleading are well-established. The relevant Rules of TheQueen’s Bench Rules (the name change to The King’s Bench Rules has yet to take place) read as follows: 3-72(1) A party may amend the party’s pleading, including an amendment to add, remove, substitute or correct the name of a party, asfollows: (

a) before a statement of defence is filed, any number of times without the Court’s permission; (

b) subject to subrule (2), in the case of an action proposed as class action, before a statement of defence is filed; (

c) after a statement of defence is filed: (

i) by agreement of the parties filed with the Court; or (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just. …

(3) Parties shall make all amendments to their pleadings that are necessary to determine the real questions in issue between the parties. [14] In Casbohm v Winacott Spring Western Star Trucks, 2018 SKQB 15 at paras 26-33, 30 CPC (8th) 175, theCourt laid out the law governing amendments to pleadings: [26] Amendments to pleadings are not unusual. In fact, they are encouraged where appropriate.

As Justice Scherman noted in Boisvertv Milton No. 292 (Rural Municipality), 2015 SKQB 2, 464 Sask R 28, Rule 3-72(3) of The Queen’s Bench Rules is mandatory, andrequires parties to make the amendments necessary to determine the real questions in issue in an action.

At para. 8 of that decision, hewrote: 8 Existing case law has established that the following principles apply to applications to amend pleadings: i.) Leave to amend is a discretionary remedy, but the practice is to allow amendments where it is necessary to determine the issuesbetween the parties and it can be done without injustice to the other side; ii.) There is no injustice to the other side if it can be compensated in costs; iii.) The court’s discretion is wide and should be exercised so as to ensure the real issues are dealt with as expeditiously andinexpensively as possible; and iv.) If the amendments are opposed, the court must consider the proposed amendments as if the opposing party had applied to strike thepleadings under Rule 7-9(2). [27] The threshold for amending pleadings is low: Rekken v Health Region #1, 2014 SKQB 271, 453 Sask R 1.

Generally speaking,application of the Rules favours permitting amendments to pleadings where such amendments can be made without injustice to theparties, and where the amendments are necessary to determine the real issues: Dundee Realty Corporation v City of Regina, 2014 SKQB73[Dundee]. In Harvey v Western Canada Lottery Corporation, 2015 SKQB 102, [2015] 9 WWR 391, Schwann J., (as she then was)wrote: 22 The law governing amendment of pleadings in an ordinary action (i.e. pursuant to Rule 3-72(1)) is well known.

Leave to amend isdiscretionary and amendments will generally be allowed whenever it can be done without injustice or prejudice to the other side, andwhere considered necessary to determine the real issues. An amendment should be allowed however careless or negligent the firstpleading, and however late the proposed amendment provided it can be done without injustice or prejudice to the other party. There is noinjustice if the other side can be compensated by costs. Prevailing jurisprudence suggests the court’s discretion should be exercisedliberally for purposes of determining the real issues at trial. (Beemer v.

Brownridge, (SK CA), [1934] 1 W.W.R. 545(Sask. C.A.); Field v. GlaxoSmithKline Inc., 2013 SKQB 113, 416 Sask. R. 238 [Field]) 23 It is also accepted law that the court should not exercise its discretion to amend pleadings where the proposed amendment is futile,clearly bad in law, constitutes an abusive process, or cannot survive a strike application. (Rekken Estate v. Health Region No. 1, 2014SKQB 271; Duke v. Puts, (SK KB), [1998] 6 W.W.R. 510 (Sask. Q.B.) [Duke]; Judith River Farm & Water Ltd.Partnership v. Saskatchewan, 2003 SKQB 443, 243 Sask. R. 74 [Judith River]; Alves v. Sunquest, 2011 SKCA 116, 377 Sask.

R.68 [Alves116]) 24 Amendments to pleadings are subject to the same test as an application to strike with Rule 7-9 establishing the conditions upon whicha strike motion will be entertained. Sagon v. Royal Bank (1992), (SK CA), 105 Sask. R. 133 (Sask. C.A.) is theleading authority with respect to motions to strike.

It confirms that a motion to strike for failing to disclose a reasonable cause of action isbased on the pleadings alone and asks simply whether it is plain and obvious the pleadings disclose no reasonable cause of action. [28] Deciding whether to permit amendments to pleadings is an exercise in judicial discretion. That discretion should be appliedliberally, but additional scrutiny may be required where the amendment either asserts new claims or substantially alters the nature of theoriginal claim.

The guiding consideration, though, remains whether the amendment can be made without causing injustice to the otherparty: Dundee, at para 13; Seagrove Capital Corp. v Leader Mining International Inc., 2000 SKQB 230, 193 Sask R 273. [29] An amendment may not be permitted in certain circumstances, for instance if it materially alters the course of a complex action(see APM Operators Ltd., Potash Corporation of Saskatchewan Mining Limited, Texasgulf Potash Corporation Limited and SACC

Potash Ltd. v Allendale Mutual Insurance Company (1984), (SK KB), 37 Sask R 156 (QB)), or if it does not serve anypurpose essential to the determination of the real issues between the parties (see Clark (W.) Land Services Ltd. v Roxy-Clarion PetroleumLtd. (1986), (SK KB), 47 Sask R 31 (QB), or if it is an abuse of process (see Kleiman Enterprises Ltd. v UnocalCanada Ltd. (1998), (SK KB), 165 Sask R 85 (QB).

If the proposed amendments seek to make fundamental changeswhich effectively “cannibalize” the original proceedings, they should not be permitted: The Insurance Company of the State ofPennsylvania v Cameco Corporation, 2008 SKCA 54, 310 Sask R 89 [Cameco]. [15] In the recent decision of Cupola Investments Inc. v Zakreski, 2021 SKCA 86 at paras 45-54, the SaskatchewanCourt of Appeal helpfully summarized the key principles applicable to amendment applications. The three principles that inform theCourt are as follows: [45] The first principle relates to purpose.

Amendments are allowed to enable the court to determine the true points of controversy thatrequire a judicial determination. In keeping with the overarching purpose for allowing amendments, they are liberally granted whenrequired for this reason.

In Frobisher Ltd. v Canadian Pipelines & Petroleums Ltd. (1957), (SK CA), 10 DLR (2d) 338at 432 (Sask CA) [Frobisher], Culliton J.A. (as he then was), stated: While leave to amend is a discretionary right to be exercised by the Court, I think it can be said that the practice is for the Court to allowamendments to pleadings whenever it can be done without injustice to the other side and where it is necessary to determine the issuesbetween the parties. … [46] Similarly, Rule 3-72(3) requires that the parties “shall make all amendments to their pleadings that are necessary to determine thereal questions in issue”.

Of course, there would be a bit of circularity if this provision alone were to be used to justify the addition of adefendant – since an issue cannot be said to exist between a plaintiff and a defendant until the defendant is before the court. However,Rule 3-72(3) reflects the policies inherent in s. 29 of the Act, and the other Rules I have mentioned, that a multiplicity of proceedings isgenerally to be avoided.

Where a proposed amendment relates to a statement of claim, since the issues are in first instance those that aredefined by the plaintiff, this means that the analysis of an amendment request must be centered on the issues the plaintiff presents forresolution. [47] The converse of the idea that amendments are allowed to enable the court to determine the true points in controversy is thatamendments designed to achieve a different purpose may be refused.

This was the case in Scharnagl [2005 SKCA 121, 269 Sask R 259],in which this Court upheld the refusal to allow an amendment to name additional defendants so that their discovery evidence could beread in evidence against them at the trial. Justice Richards (as he then was) held that the appeal could “be resolved on the basis that, inall of the circumstances, the plaintiff had a positive obligation to show why it was necessary to add the respondents as parties and that hefailed to discharge that obligation” (at para 20, emphasis added).

He then noted that the “authorities make it clear that a person shouldnot be named as a defendant in an action simply for purposes of obtaining rights of discovery”. It therefore followed that, “having beenexamined as a non-party, an individual should not be added as a party merely to allow his or her discovery transcript to be read in at trial”(at para 25). [48] The second principle that I wish to emphasize is often taken for granted. It is this: a proposed amendment must be a properpleading.

Speaking of an earlier generation of the Rules, in Roussy v Red Seal Vacations Inc., 2011 SKCA 116 at para 14, 342 DLR (4th)395 [Roussy], Richards J.A. stated that an amendment “should not be allowed if the result would be a pleading that could be struckpursuant to Rule 173” (at para 14). The modern reference would be to Rule 7-9(2), which allows a pleading to be struck for reasons thatinclude that it: (

a) discloses no reasonable cause of action or defence; (

b) is scandalous, frivolous or vexatious; (

c) is immaterial,redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or (

e) is otherwise an abuse ofthe process of the court. I would understand the principle set out in Roussy to equally preclude an amendment that was improper forreasons other than it was susceptible to being struck under Rule 7-9 or which would be undone for other reasons.

For example, as I willdiscuss, if the joinder of a party that is otherwise sanctioned by Rule 3-78 would nonetheless result in a pleading that would beimmediately severed pursuant to Rule 3-80(2), the court would be justified in refusing to grant an amendment to effect the joinder. [49] The third principle of importance here is also mentioned in Frobisher and relates to potential prejudice. This is what Culliton J.A.was referring to when he said that the court’s practice is to “allow amendments to pleadings whenever it can be done without injustice tothe other side” (Frobisher at 432, emphasis added).

This is most often the key point of controversy when an amendment application isconsidered. When considering an amendment request, the court is also concerned with the question of whether material prejudice will becaused by the change in the pleading.

For example, subject now to the legislative intervention on this issue, the expiration of a limitationperiod between the time of an initial pleading and an amendment may be a reason to deny an amendment (vis, The LimitationsAct, SS 2004, c L-16.1, s 20). [50] If a party will be materially prejudiced by the amendment, the subsidiary question that arises is whether there is a way to amelioratethat prejudice or to prevent the injustice that would otherwise be occasioned by allowing the amendment. If the prejudice can besufficiently ameliorated, then it will not generally stand in the way of allowing the amendment.

Beemer v Brownridge,(SK CA), [1934] 1 WWR 545 at para 62 (Sask CA) is a locus classicus on pleadings amendments in this province.

In it, Martin J. (as hethen was) found the general rule to be as stated by Lord Esher in Steward v North Metropolitan Tramways Co. (1886), 16 QBD 556 (CA)at 558 [Steward] (citing Clarapede & Co. v Commercial Union Association (1883), 32 WR 262 (CA)), as follows: … “The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and howeverlate the proposed amendment, the amendment should be allowed, if it can be made without injustice to the other side.

There is noinjustice if the other side can be compensated by costs: but, if the amendment will put them into such a position that they must beinjured, it ought not to be made.” … [51] Justice Martin also referred, to like effect, to the following passage from the judgment of Lord Justice Lindley in Steward (at 559):

… I entirely agree with the terms in which the rule as to amendments has been laid down in the cases cited by the Master of the Rolls. I think an amendment ought always to be allowed except when the other party cannot be placed in the same position, but an injury would be occasioned to him by the amendment which could not be compensated by costs. … [ 16 ] As the case management judge, I have considerable authority and flexibility when dealing with procedural applications. Rule 4-7 of The Queen’s Bench Rules provides: 4-7

(1) A case management judge, or, if the circumstances require, any other judge, may: (

a) order that steps be taken by the parties to identify, simplify or clarify the real issues in dispute; (

b) set aside or adjust dates by which a stage or a step in the action is expected to be complete and order the parties to comply with the dates; (

c) make an order to facilitate an application, proceeding, questioning or pre-trial proceeding; (

d) make an order to promote the fair and efficient resolution of the action by trial; (

e) facilitate efforts the parties may be willing to take towards the efficient resolution of the action or any issue in the action through negotiation or a dispute resolution process other than trial; and (

f) make any procedural order that the judge considers necessary.

(2) Unless the Chief Justice or the case management judge directs otherwise or these rules provide otherwise, the case management judge shall hear every application filed with respect to the action for which the case management judge is appointed. SaskPower’s Proposed Amendments to its Statement of Defence [ 17 ] The amendments sought by SaskPower are efficiently reviewed at paragraph 21 of its brief. It provides: 21. By way of brief

summary, the amendments now sought by SaskPower to its Statement of Defence which are opposed by the Plaintiffs or Canada are: (

a) an expansion on the already plead defence (paragraphs 4D, E and F of the existing Statement of Defence) of Crown Immunity (paras 4B1, 4C, 4F, 4G1, 4G2, and 4G3 of the proposed amendments); (

b) that the Plaintiffs, independently of the letter of Canada to CRPC dated July 10, 193 [ sic ], consented to the construction of Whitesand Dam and the partial flooding of the Southend Land for the useful life of the dam (see paras 10A1, 10A2, 10E(b)(ii), 22.1, 25(f), 25A(o), 25B(c), 40A, 40B, 40C, 44A, 44B, 44C, 44D, 44D2, 44D6, 44D8, 44D9, 44J, 44K and related proposed amendments); (

c) although Saskatchewan and SaskPower are barred by issue estoppel from contending that the Southend Land is not a reserve, this court is bound by the undisturbed finding of Konkin J. that the Southend Land is not a reserve (para 10E(b)(

i) of the Second Proposed Amended Statement of Defence); (

d) whether the within action is barred by the doctrines of Champerty and Maintenance (para 10H of the Second Proposed Amended Statement of Defence); (

e) the role of the Master Agreement on apportionment in relation to the defences of consent and estoppel by representation (paras 40A to 40C of the Second Proposed Amended Statement of Defence); (

f) whether estoppel by representation is a defence to the within action (paras 22.1, 40A, 40B, 40C, 44A, 44B, 44C, 44D and 44D12 to 15); (

g) whether SaskPower acted with a colour of right when it took over operation of Whitesand Dam in 1981, leaving the Plaintiffs either without a remedy or entitled to only nominal damages (para 44I of the Second Proposed Amended Statement of Defence); (

h) whether the doctrine of statutory authority bars the within action (paras 65.1 to 65.4 of the Second Proposed Amended Statement of Defence); and (

i) whether the defence of core policy immunity bars the within action (paras 65.5 to 65.9 of the Second Proposed Amended Statement of Defence); and (

j) whether equity is a complete defence. [ 18 ] SaskPower adds at paragraphs 22 to 24, the following: 22. The proposed amendments are necessary to determine the real issues between the parties and will not do any injustice to either PBCN or Canada. 23. Moreover, many of the proposed amendments are close cousins of defences raised by the existing pleadings and do not introduce anything dramatically new or different. Indeed, it could be reasonably argued that the points of argument identified by most of the proposed amendments are embraced by SaskPower’s existing Statement of Defence. Most of the proposed amendments fall within the umbrella of the existing pleadings.

24. The balance of the proposed amendments arise from the most recent decision of the Court of Appeal in this mattersuch that it was either not possible or not reasonably advisable to have raised them earlier in the litigation. [19] I agree with SaskPower’s observation that the amendments are, to a great extent, a variation of themes that haveexisted and been in play throughout the litigation. However, there are two exceptions which I believe are problematic. [20] First, SaskPower proposes to amend paragraph 10E(b)(i). The new pleading proffered is: 10E. Therefore: … (b)(

i) by the judgment of Konkin J. dated December 23, 2019, this Court held that the Southend Land is not areserve. On the appeal from that judgment, the Court of Appeal, by judgment dated September 22, 2021, did not set aside or disturb thefinding that the Southend Land is not a reserve. Instead, the Court of Appeal dismissed the applications by Saskatchewan and SaskPowerfor

summary judgment, on the ground that Saskatchewan and SaskPower were barred by issue estoppel from contending that theSouthend Land is not a reserve. Although Saskatchewan and SaskPower are barred from contending the Southend Land is not a reserve,the fact and legal reality that this Court has decided that the Southend Land is not a reserve remains and precludes a further judgment ofthis Court premised on the Southend Land being a reserve; [21] Respectfully, this is an argument, not a pleading. Further, it purports to declare and restrict what the Court ofAppeal can find. Again, this is not acceptable. SaskPower’s application to amend paragraph 10E(b)(

i) is denied. [22] The other problematic proposed amendment comes under the heading Champerty and Maintenance at paragraph10H, which provides: 10H. Knowingly procuring an Order-in-Council, with purported retroactivity, to establish the flooded acres as reserveland, is tantamount to consent to the flooding, precluding an action in trespass. Further, the Plaintiffs’ steps to procure the Order-in-Council, and Canada’s granting of it, are acts whose sole purpose was to facilitate the trespass claim at hand, in violation of the laws ofchamperty and maintenance.

SaskPower relies on the principles of champerty and maintenance and say that the action should bedismissed. [23] I have no difficulty with the first sentence of paragraph 10H as it purports to lay the facts out that amount toconsent. This is not new and is legitimately in debate.

The next sentence, invoking the spectre of the commercial offences of champertyand maintenance, goes too far. [24] Those called to the bar in the 1970s in Saskatchewan may remember that they had to take an oath swearing thatthey would not engage in maintenance and champerty, although I expect there were a number that were somewhat unsure as to what theparticulars of those sins were. [25] The rules prohibiting maintenance and champerty were first introduced in medieval England.

They wereintended to prevent abuses of justice by corrupt nobles and royal officials who associated themselves with fraudulent and vexatiousclaims, strengthening the credibility of the claims in return for a share of the profits. [26] In more modern times, the prohibition of third party funding was based on the public policy ground ofprotecting the purity of justice.

There was fear the third party could manipulate the litigation process and, as Lord Denning put it, “betempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses” (Re Trepca Mines (No.2), [1963] Ch 199). [27] The current zeitgeist, with its emphasis on access to justice, has to a great extent, rendered concerns about theeconomic crimes of maintenance and champerty as out of date. [28] More to the point, in relation to this debate, whatever maintenance and champerty have been, they have neverbeen a defence to continuing trespass.

To permit the proposed amendment would simply be mudding the waters and sending counsel offon an irrelevant tangent. [29] Accordingly, the proposed amendment at paragraph 10H, being the first sentence thereof, is permitted. Thebalance is precluded. [30] All of SaskPower’s remaining amendment requests to its amended statement of defence may proceed. SaskPower’s Proposed Amendment to its Third Party Claim Against Canada [31] A brief review of SaskPower’s proposed amendments to the third party claim against Canada are set out atparagraphs 117 and 118 of their brief: 117.

The amendments which SaskPower proposes to its Third Party claim are substantially the same as the amendmentsbeing proposed by Saskatchewan to its Third Party Claim. SaskPower adopts and relies upon the brief of law of Saskatchewan in supportof the amendments to the Third Party Claim. 118. SaskPower submits at para 6.2 of the Amended Third Party Claim that it is entitled to indemnity or contributionfrom Canada at common law even if such is not permitted by statute.

In addition to principles stated in the English case of Moxham v.Grant (1899), [1900] 1 Q.B. 88(CA), the Supreme Court of Canada has recently held in numerous decisions that a right to contributionmay exist at common law. This point was first made in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997

307 (SCC), [1997] 3 SCR 1210 , where the court, in concluding that a right to contribution from a joint tortfeasor existed at common law stated “that the idea that there can be no contribution between tortfeasors is anachronistic and not in keeping with modern notions of fairness” (see paras 101-102, also see: Blackwater v Plint , 2005 SCC 58 from paras 68 to 73 , Knight v Imperial Tobacco Canada Ltd., 2011 SCC 42 from paras 138-139 ). [ 32 ] As noted, SaskPower and Saskatchewan are, to a great extent, lining up to argue the same point vis- à -vis Canada based on their third party claims. [ 33 ] Canada objects to the amendments by both SaskPower and Saskatchewan on the basis that same constitutes an abuse of process.

It sets out at paragraph 30 of its brief: 30. Neither Saskatchewan nor SaskPower should be granted leave to amend their Third Party Claims to assert slightly differently formulated estoppel or consent arguments than the arguments dismissed by the Court of Appeal. These arguments, based on an expanded series of representations beyond the 1939 consent, are an abuse of process by relitigation. [ 34 ] Then at paragraph 34, Canada adds: 34. The Court of Appeal’s finding negates the possibility of there being a representation to Saskatchewan and SaskPower to ground an estoppel.

Such a representation is a necessary element of both promissory estoppel and estoppel by representation. Even if Saskatchewan and SaskPower are not precluded by issue estoppel from relitigating the exact issue raised in their proposed amended pleadings, it is an abuse of process to relitigate the question of estoppel on a substantially similar basis to the arguments dismissed by the Court of Appeal. [ 35 ] I have observed previously in these proceedings that I do not wish, and I believe it inappropriate, to artificially restrict the issues in debate.

The exact issue articulated in the proposed amendment has not been squarely before the Court of Appeal. Therefore, I conclude it is appropriate to permit the requested amendment, as filed. Saskatchewan’s Proposed Amendments to its Defence and Third Party Claim Against Canada [ 36 ] Starting at paragraph 26, Saskatchewan articulately sums up its position: 26. It is submitted that amendments to pleadings should be allowed unless it is plain and obvious that the arguments will not succeed, or the amendments will cause undue prejudice to the other party.

Saskatchewan acknowledges that the Court must make a preliminary assessment of the new issues that will be raised, on the same standard as would be applied if an application to strike the pleadings had been made. 27. Saskatchewan submits that its proposed amendments easily pass this hurdle. The amendments, for the most part, are simply elaborations on the existing pleadings. They do not raise any truly new issues. To the extent that new issues are raised, they relate to pure questions of law, and they rely on the same historical evidence that is the foundation for the existing pleadings.

Amendments to pleadings are a routine part of litigation in Saskatchewan, particularly litigation that, like in this case, is complex and raises a number of different legal and factual issues and has spanned many years. Additionally, allowing the amendments will not prejudice the Plaintiffs or Third Party as they will have ample time to respond. While the proceedings have been underway for many years, and two attempts have been made to have the claim dealt with by way of

summary judgment applications, the litigation with respect to the remaining defences and the Third Party Claim has not proceeded past the stage of document discovery. In particular, no questioning of witnesses has taken place and therefore the case is still a long way away from trial. Saskatchewan further submits that the amendments will not delay the proceedings, as they are based on similar facts that would be determined alongside the existing defences. 28.

Saskatchewan submits that it is not plain and obvious that any of the new amendments have no chance of success. [ 37 ] In my view, neither PBCN nor Canada should, in any way, be taken by surprise by any of the amendment proposals tendered by Saskatchewan. As previously noted, SaskPower and Saskatchewan are, to a great extent, riding the same horse in their arguments against Canada.

It is totally appropriate that horse be in the race. [ 38 ] Accordingly, all the amendments to the defence put forward by Saskatchewan may proceed, as well as the amendments requested by Saskatchewan in its third party claim against Canada. Amending Canada’s Defence to Third Party Claim [ 39 ] It may be that Canada wishes to amend its defence to the third party claims brought by SaskPower and Saskatchewan. It is, of course, at liberty to do so. Such defence to be filed within 40 days of the date of this judgment.

PBCN’s Application for Bifurcation [ 40 ] PBCN believes that it would be most efficient for all the parties involved to conduct this case in two stages. The first stage would be to determine the defendants’ liability and, if applicable, the Attorney General’s liability under the third party claims. [ 41 ] The second stage will be to address the remedies that arise from the finding in the first stage. [ 42 ] PBCN does not wish to expend considerable effort and time dealing with remedies if it is unsure whether the remedy will be available to it. [ 43 ] PBCN sets out at paragraphs 18 and 19 of its brief: 18.

For the reasons that follow, this Court should exercise its discretion to bifurcate the proceedings into liability and remedies stages. Such an order would be consistent with the purposes of the Rules as set out in Rule 1-3 and the powers of the case

management judge in Rule 4-7. It would promote the efficient resolution of the issues, and may aid the parties in negotiating an ultimate resolution to the dispute, thus avoiding the need for complex and lengthy proceedings on remedies, and thereby respecting the concern for judicial economy. 19. Finally, such an order would be consistent with the linear fashion in which this litigation has proceeded to date and the prior directions of this Court with respect to the conduct of this litigation.

For instance, this Court previously directed the following: … I still cleave to the concept that this debate should proceed in a linear fashion. Firstly, can the claim of the plaintiffs be sustained? That is a complex debate. Secondly, if it is sustained, there is an equally complex debate over the nature of the remedy. [ 44 ] Saskatchewan and SaskPower strenuously complain that unless they know the remedies being sought by PBCN, they are uncertain as to how to make their case. Respectfully, I reject that. Not surprisingly, so does PBCN, which it outlines starting at paragraph 23 of its brief: 23.

The existing and proposed defences to the claim for continuing trespass are conceptually and legally distinct from the remedies questions that will flow from a finding of liability. For instance, the applicability of the Proceedings Against the Crown Act RSS 1978, c P-27 and SS 2019, c P-27.01 to absolve the Defendants of liability, to take one defence asserted by the Defendants, is severable to the questions that will arise with respect to remedies. The same is true of the Defendants’ other statutory defences, and of the defences of laches and acquiescence and abuse of process. 24.

The evidence required to determine the Defendants’ liability in continuing trespass is clearly distinct from that required to determine the appropriate remedies for the trespass.

The evidence related to matters such as the exact extent of the trespass against the Southend Reserve, the Peter Ballantyne Cree Nation’s losses as a result of the trespass, the gains Saskatchewan and SaskPower have realized, and continue to realize because of the trespass, and remediation and restoration costs is plainly not relevant to the question of whether the Defendants, or either of them, is liable for intentionally ponding water onto Reserve lands without legal excuse or justification. 25. In addition, many of the Defendants’ defences are legally, rather than factually, driven.

Such is the case for the Crown immunity defences and the statutory defences. Minimal evidence is required to determine the applicability of these defences. 26. For those defences which are more fact-intensive, such as laches and acquiescence, the evidence required to determine the defence is distinct from the evidence relevant to remedies questions. [ 45 ] In

summary, the request from PBCN is logical, reasonable, and in my opinion operates to the benefit of the parties and the Court. This matter shall be bifurcated. The issues of liability between the parties shall be determined first and thereafter, there shall be a hearing, if necessary, as to remedies. [ 46 ] Costs of this application shall be costs in the cause. ______________________________J. R.S. SMITH