Tyler Hazelwood CPN7 Referrer / Plaintiff - v. -, 2022 ABKB 739

Court of King’s Bench of Alberta Citation: Hazelwood v Schlotter, 2022 ABKB 739 Date: 20221107 Docket: 1601 13111 Registry: Calgary Between: Tyler Hazelwood CPN7 Referrer / Plaintiff - and - Jason P. Schlotter Corporation and Jason P. Schlotter Respondents / Defendants _______________________________________________________ Reasons for Decision of the Honourable Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On June 17, 2022, Michael Aasen, Counsel for Tyler Hazelwood, referred a third-party claim (“the Third-Party Claim”) as a candidate Apparent Vexatious Application or Proceeding (“AVAP”) pursuant to Civil Practice Note No. 7 (“CPN7”) paragraph 6. The Third-Party Claim was filed by Jason P Schlotter and his professional corporation (collectively “Schlotter”), Hazelwood’s former Counsel. The Third-Party Claim names Michael D Aasen Professional Corporation, Hazelwood’s current Counsel, as the third-party Defendant.

[ 2 ] After review of the referral, the Court, pursuant to its inherent jurisdiction, raised the issue of a potential conflict of interest. After receipt of written submissions, this Decision now concludes the potential conflict issue. II. Background A. The Three Claims 1. The Graf Action [ 3 ] Schlotter was Counsel for Hazelwood in a wrongful dismissal claim (“the Graf Action”) against Hazelwood’s former employer, Graf Canada (“Graf”). [ 4 ] Hazelwood fired Schlotter and hired Michael Aasen as new counsel on the Graf Action. 2.

The Schlotter Claim [ 5 ] Hazelwood is the Plaintiff in a claim for negligence and breach of contract against Schlotter (“the Schlotter Claim”). Michael Aasen is Counsel for Hazelwood on this claim. 3. The Third-Party Claim [ 6 ] Schlotter is the Plaintiff in a claim for contributory negligence against Michael Aasen. B. Schlotter’s Alleged Mishandling of the Wrongful Dismissal Claim [ 7 ] Hazelwood claims damages against Schlotter for negligence and breach of contract.

The Schlotter Claim arises out of the alleged mishandling by Schlotter, between April 23, 2015 and March 2, 2016, of Hazelwood’s wrongful dismissal claim - the Graf Action - against his former employer, Graf. [ 8 ] On or around June 25, 2015, Schlotter filed a Statement of Claim on behalf of Hazelwood and served the claim on Graf. Graf served its Statement of Defence on Schlotter on or around July 15, 2015. [ 9 ] On or around September 8, 2015, Schlotter purported to serve, by fax, Hazelwood's Affidavit of Records on Counsel for Graf.

Schlotter never received Graf’s Affidavit of Records, which was required to be served two months after service of Hazelwood's Affidavit of Records. [ 10 ] On or around March 2, 2016, Hazelwood changed counsel, retaining Michael Aasen at McLennan Ross LLP (“MR”). [ 11 ] On April 12, 2016, MR wrote to Graf requesting their Affidavit of Records. Counsel for Graf advised, on the same day, that they had not been served with Hazelwood’s Affidavit of Records. Graf told MR that Schlotter had faxed the Affidavit of Records to the main reception line, not a fax line, so it was not received.

MR served Hazelwood’s Affidavit of Record on Graf on April 12, 2016. [ 12 ] On or around April 28, 2016, Hazelwood was made aware Graf had gone into receivership. Hazelwood was advised Graf would not have enough assets to pay any unsecured creditors, thus Hazelwood could not recover damages for wrongful dismissal. [ 13 ] On or around June 3, 2016, Hazelwood met with a former executive of Graf who advised him that Graf had been, at all times, willing to settle the Graf Action. [ 14 ] Hazelwood, with MR and specifically Aasen as counsel, filed the Schlotter Claim on October 3, 2016. C.

The Third-Party Claim [ 15 ] The Third-Party Claim alleges that, in the event Schlotter is held liable in the Schlotter Claim, Schlotter is entitled to contribution and indemnity, pursuant to the Contributory Negligence Act , RSA 2000, c C-27 and the Tortfeasors Act , RSA 2000, c T-5 , from Aasen and MR. Schlotter alleges Aasen and MR are liable for the alleged damages suffered by the Hazelwood and in respect of which Schlotter may be found liable. III.

The Court’s Concern [ 16 ] The Application for Leave to file a Third-Party Claim was referred by Aasen as a candidate Apparent Vexatious Application or Proceeding, thus subject to review pursuant to CPN7. DLA Piper (DLA), Counsel for Schlotter, in the alternative requested a Case Management Justice. [ 17 ] The Court raised a preliminary issue: has a conflict of interest emerged that would prohibit the proposed Third Parties (Aasen and MR) from continuing to act as Hazelwood’s representatives?

Pursuant to the Court’s inherent jurisdiction to intervene in cases of potential lawyer conflicts of interest, the Court instructed the parties to provide written submissions that respond to this issue.

[ 18 ] The merit of the Third-Party Claim and CPN7 review is not relevant to the current conflict of interest issue, and, instead, will be addressed subsequently, if necessary. IV.

Summary of the Submissions [ 19 ] The Court, on May 27, 2022, outlined by letter its concerns that a conflict of interest might have arisen. The Court requested written submissions from Hazelwood by June 17, 2022 and from Schlotter by June 30, 2022. Written submissions were received from both parties on the specified dates. [ 20 ] Hazelwood was entitled to a written rebuttal to be filed by July 8, 2022, though no rebuttal was received by the Court. A.

Submissions by McLennan Ross, Counsel for Hazelwood [ 21 ] MR submits that there is no conflict of interest between MR and their client, Hazelwood, as they submit, the allegations against Schlotter and those in the Third-Party Claim are not factually or legally parallel. [ 22 ] The allegation of negligence in the Graf Action includes the failure to: 1. properly serve Hazelwood’s Affidavit of Records, 2. recognize the Affidavit of Records had not been properly served, 3. respond to Hazelwood’s communication, and 4. advance the Graf Action for approximately six months. [ 23 ] When MR received Hazelwood’s file, they discovered, within two weeks, that the Affidavit of Records had not been properly served.

MR immediately corrected the error. Graf filed for bankruptcy approximately two weeks later. [ 24 ] MR understands there is no allegation that MR committed an error between the date it was retained by Hazelwood and the date Graf filed for bankruptcy protection. The only allegation against MR, per the Third-Party Claim, is that MR failed to obtain a settlement from Graf during that period. The allegations in the Third-Party Claim do not describe any alleged error by MR with respect to its representation of Hazelwood. [ 25 ] MR submits lawyers are agents of their clients per

Part 2, Division 4 of the Alberta Rules of Court , Alta Reg 124/2010 . MR also cites Rule 3.2-4 of the Alberta Code of Professional Conduct (“ Code ”), which states that “a lawyer must obtain instructions from the client on all matters not falling within the express or implied authority of the lawyer.” [ 26 ] MR argues that lawyer and client are one. If the lawyer is negligent, the client may have a claim against the lawyer.

MR submits that, in its representation of Hazelwood, it is acting as an agent for Hazelwood and at all times sought and followed Hazelwood’s instructions. [ 27 ] MR concedes that, as a defence, Schlotter may argue Hazelwood was contributorily negligent during the period when he retained new counsel. Schlotter may allege Hazelwood failed to properly pursue a settlement during the two months before Graf went bankrupt.

MR argues that an allegation of contributory negligence by Hazelwood does not create a separate legal dispute between Schlotter and MR, as MR was, at all times, acting as an agent for Hazelwood, and that, as such, any disputes about MR’s actions are actually a dispute between Schlotter and Hazelwood. [ 28 ] MR notes that, to defend against the Third-Party Claim, it would have to disclose solicitor-client communications.

This could not be done without a waiver of privilege by Hazelwood. [ 29 ] MR is concerned that allowing the Third-Party Claim may encourage defendants to advance claims that force plaintiffs to incur the cost of retaining new counsel, despite being satisfied with current counsel. B.

Reply Submissions by DLA Piper, Counsel for Schlotter [ 30 ] DLA’s position is that MR is in a conflict of interest with Hazelwood. [ 31 ] DLA submits the relevant legal framework is Rule 3.4-12 of the Code , which states that “[a] lawyer must not act when there is a conflict of interest between lawyer and client, unless the client consents and it is in the client’s best interests that the lawyer act.” [ 32 ] DLA argues that there are legal and factual parallels between the original claim and the Third-Party Claim, but they do not allege MR and Schlotter committed identical acts of negligence. [ 33 ] DLA alleges the critical element of Hazelwood’s claim is that there was an opportunity to settle the Graf Action prior to bankruptcy, but Schlotter failed to seize it.

DLA believes Hazelwood must establish that there was an opportunity to settle that was ignored or else his claim fails. DLA submits that Schlotter and MR have “the same comparative blameworthiness.” [ 34 ] DLA accepts that MR is Hazelwood’s agent, but states that an agent has a duty to avoid conflicts with the interests of their principal. [ 35 ] DLA submits that it is in MR’s interest to minimize Schlotter’s potential liability in order to defeat allegations against MR.

Therefore, DLA submits it is not in Hazelwood’s best interests to retain MR as counsel. [ 36 ] The Court notes that most of DLA’s submissions relate to the merits of the claim, not the issue of a potential conflict of interest. V. The Factual and Legal Basis [ 37 ] The Court noted in the May 27, 2022 letter to the parties that “the proposed Third Party Claim and the Statement of Claim have, factually and legally, parallel bases for liability.” The Court, with the benefit of the written submissions of the parties, clarifies that statement.

I now examine in more detail the differences in the facts underlying the two claims. [ 38 ] The Schlotter Claim makes specific allegations of negligence that go beyond the failure to obtain a settlement. These include, as noted in

Part IV(A), the failure to properly serve Hazelwood’s Affidavit of Records, the failure to recognize the Affidavit of Records had not been properly served, the failure to respond to Hazelwood’s communication and the failure to advance the Graf Action for approximately six months. [ 39 ] The only specific claim in the Third-Party Claim relates to MR’s alleged failure to obtain a settlement from Graf prior to Graf’s bankruptcy. The Third-Party Claim does not allege negligence related to the service of documents or client communications.

As a result, the scope of the Third-Party Claim is narrower than the Schlotter Claim. [ 40 ] The facts underpinning the specific allegations of negligence are different. They can be easily distinguished by time period: 1. the Schlotter Claim pertains to the period between April 23, 2015 and March 2, 2016, and 2. the Third-Party Claim pertains to the period between March 3, 2016 and April 27, 2016. [ 41 ] The Court has not given weight to the proposition that a conflict exists in part because the claims are legally and factually similar.

The only overlap apparent at this stage is an allegation of negligent failure to obtain a settlement, and, even then, the facts underpinning the claims are from different points in time. VI. Analysis A. Brief Conclusion [ 42 ] It is premature to remove Hazelwood’s Counsel, MR, for potential conflict of interest. The Court may revisit this decision at a later stage if circumstances change. B.

The Court’s Inherent Jurisdiction to Resolve Conflicts of Interest [ 43 ] The basis for the Court’s action with respect to the potential conflict of interest was laid out succinctly in Canadian National Railway Co v McKercher LLP , 2013 SCC 39 at para 13 [ CNR ]: Courts of inherent jurisdiction have supervisory power over litigation brought before them. Lawyers are officers of the court and are bound to conduct their business as the court directs. When issues arise as to whether a lawyer may act for a particular client in litigation, it falls to the court to resolve those issues.

The courts’ purpose in exercising their supervisory powers over lawyers has traditionally been to protect clients from prejudice and to preserve the repute of the administration of justice, not to discipline or punish lawyers. [ 44 ] Therefore, the Court, of its own initiative, can take the steps necessary to ensure a conflict of interest does not threaten the repute of the administration of justice, including removing counsel. C.

The Potential Conflict of Interest [ 45 ] The duty to avoid conflicting interests flows from a lawyer’s duty of loyalty to their client: CNR at para 19 , citing R v Neil , 2002 SCC 70 at para 19 [ Neil ]. [ 46 ] Per the Code , “[a] lawyer must not act when there is a conflict of interest between lawyer and client, unless the client consents and it is in the client’s best interests that the lawyer act”: Rule 3.4-12.

Per the Code Commentary, “[i]f a lawyer’s own loyalty, interest, or belief would impair the lawyer's ability to carry out a representation, the lawyer may not act”: Rule 3.4-12(1). “If the conflicting interest of the lawyer does not impair the lawyer’s objectivity, the lawyer should nonetheless decline to act unless the representation is in the client’s best interests”: Rule 3.4-12(1). [ 47 ] The Court is not bound by the letter of Law Society’s rules, but the Code is considered an important statement of public policy: CNR at para 16 . [ 48 ] The prejudice of concern in this instance is the risk that “the lawyer ‘soft peddles’ his representation of a client in order to serve his own interests”: CNR at para 23 .

With respect to a current client, the lawyer must not place themselves “in a situation that jeopardizes effective representation”: CNR at para 23 . A lawyer must be a zealous advocate for their client’s interests: CNR at para 25 . Effective representation is threatened where the lawyer is tempted to prefer their own interests over those of their client: CNR at para 26 .

[49] The bright line rule prohibits concurrent representation of clients directly adverse in interest without obtaining their consent,whether the client matters are related or not: Neil at para 29. [50] The bright line rule does not apply to this matter.

The present situation does not involve a lawyer representing two clientsadverse in interests; it involves a lawyer who may have a personal interest in the outcome of their client’s case. [51] Given the bright line rule is not applicable, “the question becomes whether the concurrent representation of clients creates asubstantial risk that the lawyer’s representation of the client would be materially and adversely affected”: CNR at para 38. This is acontextual inquiry: CNR at para 38.

Conflicts of interest must be proven on the balance of probabilities: CNR at para 38. [52] It is not yet established, on a balance of probabilities, that the Aasen and Hazelwood’s interests are adverse. Hazelwood raisesno allegations of negligence against his current lawyer. Further, even in the case of potential negligence by Aasen, Hazelwood and Aasenremain aligned in their interest in finding Schlotter liable in negligence.

Success in the Schlotter Claim would lower the likelihoodHazelwood might bring a claim against Aasen; therefore it is in Aasen’s interest to pursue the Schlotter Claim with diligence and zeal. [53] MR further argues that as Counsel, MR is the agent of Hazelwood. Therefore, any actions by MR are assumed to be at thedirection of Hazelwood. [54] There is a strong presumption that a lawyer is acting as the agent of their client. In Martin v Busenius, 1999 ABQB 100, [1999] 239 AR 334 (Alta QB), Justice Veit held at para 24: Lawyers are agents for their clients.

When lawyers speak, they speak on behalf of their clients. When they agree, they agree on behalf oftheir clients. The Justice system would fall apart if these basic principles did not apply. These standards are not Draconian: a client cansue a lawyer who abuses the agency relationship between them. [55] The actions taken by MR during the two months they were acting for Hazelwood on the Graf Action are presumed to be atthe direction of their client.

There is no allegation by Schlotter in the Third-Party Claim that MR failed to communicate with their clientor failed to follow the instructions of their client. [56] Should Hazelwood believe MR was negligent in the two months they handled the Graf Action, he could bring a claim againstMR. [57] Schlotter, rather than collaterally attacking his former client’s Counsel through a Third-Party Claim, can defend himself byarguing Hazelwood was contributorily negligent by failing to properly instruct Schlotter, Aasen or both. D.

Waiver of Conflict of Interest [58] If there is a conflict of interest between lawyer and client, the client can waive the conflict: Rule 3.4-2. While there is noexplicit requirement of independent legal advice prior to waiving a conflict of interest, the best practice is that the consent be obtainedafter full disclosure and independent legal advice: R v Neil at para 29.

However, consent may not be sufficient to overcome all problemsrelating to conflicts of interests: Alberta Union of Provincial Employees v United Nurses of Alberta, Local 168, 2009 ABCA 33 at para30. [59] At this stage, no conflict has been found, so the capacity of Hazelwood to waive the conflict is not at issue. E. A Lawyer’s Duty to the Court [60] The present situation may raise a potential conflict between Aasen’s …obligation of objectivity and detachment, which are owed to the court, and his obligations to his client to present evidence in asfavourable a light as possible.

This is a conflict that cannot be waived by the client as the conflict is between counsel and thecourt/justice system: Urquhart v Allen Estate, [1999] OJ No 4816 (ON Sup Ct) at para 27 [Urquhart] (emphasis added). [61] Aasen may be motivated by his own self-interest to not disclose evidence relating to his handling of the Graf Action.

Whilethis may not generate a conflict with Hazelwood’s interests, as both Aasen and Hazelwood are aligned in a desire to prove that Schlotterwas entirely responsible for Hazelwood’s loss, Aasen may be tempted to not meet his obligation to the Court to disclose all relevant andmaterial evidence: See Alberta Rules of Court, Rules 5.6(1), 5.10. [62] Even if Aasen believes he was not negligent in his handling of the Graf Action, he may be reticent to disclose anything thatcould be seized on by the Defendants, given the Defendants have revealed an intention to raise contributory negligence. [63] In the case of a conflict of interest, “[d]isqualification may be required: (1) to avoid the risk of improper use of confidentialinformation; (2) to avoid the risk of impaired representation; and/or (3) to maintain the repute of the administration of justice”: CNR atpara 61.

A risk to the repute of the administration of justice is potentially engaged in this case. [64] At this stage, it is premature to disqualify Hazelwood’s Counsel, Aasen, because of a potential conflict between Counsel’sinterests and his obligations to the justice system. The allegations against Aasen are pleadings; they are mere speculation.

Speculation isnot enough to justify disqualification: Biocomposites Group Inc v 0975138 BC Ltd (DH Manufacturing), 2019 ABQB 937 at para 16.No evidence has been adduced yet; no discovery or questioning has taken place. [65] The Code Commentary recognizes that a conflict of interest may be revealed as new information emerges: Rule 3.4-1(2). As

evidence is adduced, the new information may demonstrate a risk that Aasen will be unable to fulfill his duty of objectivity anddetachment towards the Court. At this point, the Court may revisit this decision and find a conflict of interest that requiresdisqualification. F. The Lawyer as Witness [66] It is trite law that “a lawyer should not act as both witness and advocate on the same file since, in general, this will create aconflict of interest”: Moad v Shepherd, 2017 ABQB 330 at para 6.

The Code states that “[t]he lawyer who is a necessary witness shouldtestify and entrust the conduct of the case to another lawyer”: Rule 5.2-1.

This type of conflict cannot be waived by the client as itviolates a duty owed to the Court, not the client: Harder v Sartorio, 2020 ABQB 404 at para 20; Moad at para 14. [67] Counsel will not be removed if there is only a mere possibility they may be required to give evidence; they must be a likelywitness: Forward v Zurich Insurance Co, 2002 ABCA 123 at para 7. [68] In Antongiovanni v Phung, [2001] OJ No 4659 (ON Sup Ct) [Antongiovanni], Master Dash was seized with a motion toremove the Plaintiff’s solicitor for reasons of conflict of interest: para 1.

An issue for trial was the discoverability date of the Plaintiff’sinjuries: para 1. The Defendants claimed the Plaintiff’s solicitor would be a necessary witness on the discoverability issue and was thusin a conflict of interest: para 1. [69] The Court noted that “[u]ntil the questions refused on discovery are answered, it is not known whether the Plaintiff's counselfailed to act with due diligence in their file management so as to put the Plaintiff's discoverability date in jeopardy”: Antongiovanni atpara 58.

If the Plaintiff and Counsel made a joint decision not to commence the action at a particular time and the client was fullyinformed, it might be possible there was no conflict of interest: Antongiovanni at para 58. Until the completion of discovery, thepotential conflict was only speculative: Antongiovanni at para 58.

The present case is similar; there is insufficient evidence at this stageto determine whether MR acted with diligence to advance the Graf Action and thus there is insufficient evidence to determine whetherAasen is a likely witness. [70] If the Third-Party Claim is allowed to proceed and it becomes likely that Aasen will be required as a witness, he will bedisqualified from acting as Hazelwood’s counsel. VII. The Right to Choice of Counsel [71] When considering the removal of counsel of choice, the Court recognizes the importance of allowing litigants to choosecounsel as they see fit.

In CNR, the Supreme Court of Canada noted this involves a balancing of values: …an effective and fair conflicts rule must strike an appropriate balance between conflicting values. On the one hand stands the highrepute of the legal profession and the administration of justice.

On the other hand stand the values of allowing the client’s choice ofcounsel…; (CNR at para 22.) The Ontario Superior Court of Justice stated that “[r]emoval of counsel of choice is an extreme remedy and should only be done in theclearest of circumstances”: Antongiovanni at para 58. [72] In Urquhart, Justice Gillese, as she then was, described, at para 19, when a court should consider removal of counsel ofchoice: [A] court should be slow to interfere with the litigant's right to choose his or her own counsel. Fraressi v. Wanczyk, [1995] B.C.J. No.1046 (B.C.S.C.).

When a litigant is deprived of services of a lawyer whom she has chosen, there will be some hardship imposed on her.The imposition of such hardship can only be justified if it is done to prevent the imposition of a more serious injustice. It follows that theremoval of counsel should be only to relieve the risk of real mischief and not a mere perception of mischief. Chapman et al. v. 3MCanada Inc. et al. (1995), (ON SC), 25 O.R. (3d) 658 (Ont. Ct. Gen.

Div.). (Underlining emphasis added.) [73] McClung JA, in Alberta Treasury Branches v Leahy, 1998 ABCA 286 , [1998] AJ No 979 (Alta CA), commentedat para 5 that: [t]he right to counsel of choice in civil matters is well and properly protected in our law.

It is only when some real and identifiable publicinterest intervenes that such a relationship must yield under an impropriety of 'appearance of impropriety' concern. [74] The Court must ask whether a fair-minded and reasonably informed member of the public would conclude that the properadministration of justice required the removal of the solicitor: Beacon Hill Service

(2000) Limited v Esso Petroleum Canada, 2011ABQB 138 at para 35, aff’d 2012 ABCA 269. The balance of interests informing whether to remove counsel of choice is rooted in theparticular facts; it must be “based on the realities of the situation”: Beacon Hill Service

(2000) Limited v Esso Petroleum Canada, 2012ABCA 269 at para 3. Courts will exercise a high degree of restraint before interfering with counsel of choice: Kaiser (Re), 2011 ONCA713 at para 21. [75] Therefore, the Court is further justified in its present position that it is premature to remove MR, Hazelwood’s Counsel ofchoice. Removal of counsel is a decision not taken lightly and only made when necessary to protect the administration of justice.

VIII. Cautions for Counsel A. The Duty of Candour [ 76 ] The Court notes that Aasen has a duty of candour towards his client. This requires him to advise his client on all matters relevant to the retainer: CNR at para 10 . Any factors that affect a lawyer’s ability to provide effective representation must be disclosed: CNR at para 45 . [ 77 ] Aasen must advise his client if and when, if the Third-Party Claim is allowed to proceed, Aasen is likely to be called as a witness.

Based on the case law reviewed above, that development would mean Aasen would be required to withdraw as Counsel, as he cannot be both witness and counsel in the same matter. Raising a potential conflict of interest and pressing for determination is a shared obligation: R v Caines , 2011 ABQB 82 at para 356 . This obligation to identify the point when Aasen will be called as witness and thus required to withdraw bears on Aasen along with the Court. B. Collateral Attacks on Choice of Counsel [ 78 ] The Court further notes that collateral attacks on choice of counsel are not acceptable.

The Court is attuned to the risk of one side “seizing upon a supposed conflict to rid himself of an opposing lawyer”: Leach v Leach , 2016 ONSC 6140 at para 37 . “Courts are rightly allergic to disqualification motions driven purely by tactical considerations”: Saint John Shipbuilding Ltd v Bow Valley Husky (Bermuda) Ltd , 2002 NBCA 41 at para 71 . [ 79 ] Interference in the solicitor-client relationship will always cause damage to one party’s position in litigation: Harder v Sartorio , 2020 ABQB 404 at para 32 .

The defendants in this action were undoubtedly aware of this when they brought the Third-Party Claim against their former client’s current Counsel. IX. The Notice to Admit Facts [ 80 ] DLA claims the facts in paragraphs 1-6 of the fact

section of MR’s written submissions were all explicitly admitted only for the purposes of a trial and are not to be used for an application. [ 81 ] The Court does not need to make any findings of fact in order to dispose of the present issue. It is simply determining whether, on the alleged facts, a conflict of interest exists. Therefore, whether the facts are admitted as true is not relevant. X. Conclusion [ 82 ] At this stage, there is no conflict of interest which presents a substantial risk that Aasen’s representation of Hazelwood would be materially and adversely affected.

It is premature to disqualify Aasen because of a potential conflict between his personal interests and his obligations to the Court; more than speculation is required.

It is also too early to determine whether Aasen will be a likely witness in the eventual trial. [ 83 ] The Third-Party Claim will proceed to a Civil Practice Note No. 7 review. [ 84 ] The Court may revisit these conclusions at a later stage, particularly if the Third-Party Claim is allowed to proceed and evidence is adduced that renders it likely Aasen will be required as a witness at trial. [ 85 ] No costs arise from this Decision since this litigation step was the result of an instruction from the Court and not an application by the parties.

Dated at the City of Calgary, Albert a this 7 th day of November, 2022. J.D. Rooke A.J.C.K.B.A. Appearances: Michael D Aasen for the CPN7 Referrer / Plaintiff

Dana Schindelka for the Respondents / Defendants