KEVIN W. STUART, PLAINTIFF - v. -, 2023 SKKB 108

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 108 Date: 2023 05 25 Docket: QBG-PA-00212-2015 Judicial Centre: Prince Albert BETWEEN: KEVIN W. STUART, PLAINTIFF - and - ATTORNEY GENERAL OF CANADA, DEFENDANT Counsel: Kevin Stuart on his own behalf Stephen A. McLachlin for the Attorney General of Canada ___________________________________________________________________________ FIAT POPESCUL C.J.K.B.

May 25, 2023 ___________________________________________________________________________ [ 1 ] The plaintiff, Kevin Stuart, has filed a request for case management [Request] pursuant to Rule 4-5 of The Queen’s Bench Rules . Counsel for the defendant objects to the appointment of a case management judge. [ 2 ] The Request filed by Mr. Stuart is 18 pages long and contains information that extends far beyond what is intended by Rule 4-5. Similarly, counsel for the defendant filed a six-page letter in opposition to Mr. Stuart’s Request that provides much more information than is necessary.

None of the cases referred to by counsel for the defendant were on point or helpful. [ 3 ] It is apparent that there is some confusion as to how the provisions in “Part 4, Division 2, Court Assistance in Managing Litigation” are intended to operate. As a result, I will provide some guidance. [ 4 ] The “Request for Case Management” provisions were introduced in the “new” Queen’s Bench Rules on July 1, 2013. The process permits a party to make a request for a case management order, in Form 4-5, to me, as the Chief Justice.

The completion of Form 4-5 should not be an onerous task and need only concisely set forth the basis for the request. Typically, Form 4-5 explains the reasons why a case management judge order would be beneficial, such as that the matter is complex, and/or that numerous interim applications are anticipated.

[ 5 ] Rule 4-6 directs that when deciding whether a particular action should be subject to case management that I, as Chief Justice, should consider “all the relevant circumstances, including, any or all of the following”: Appointment of case management judge 4-6 … (

a) the purpose and intention of the rules described in rule 1-3; (

b) the complexity of the issues of fact or law; (

c) the importance to the public of the issues of fact or law; (

d) the number and type of parties or prospective parties, and whether they are represented; (

e) the number of proceedings involving the same or similar parties or causes of action; (

f) the amount of intervention by the Court that the proceeding is likely to require; (

g) the time required for questioning, if applicable, and for preparation for trial or hearing; (

h) the number of expert witnesses and other witnesses; (

i) the time required for the trial or hearing; (

j) whether there has been substantial delay in the conduct of the proceeding. [ 6 ] A case management judge appointed pursuant to Rule 4-5 is a motion’s judge who, by virtue of Rule 4-7(2) “... shall hear every application filed with respect to the action ...”. Although Rule 4-7(1)(

e) specifically permits the case management judge to “facilitate efforts the parties may be willing to take towards the efficient resolution of the action ... through negotiation or a dispute resolution process other than trial”, the case management judge’s role is not one of a settlement pre-trial conference judge. See Babich v Babich , 2017 SKCA 48 , [2017] 11 WWR 54 . [ 7 ] When seeking the assistance of the Court to assist the parties in managing litigation, regard should also be had to the case conference procedure, as described in Rule 4-4.

This mechanism provides the parties with a quick and easy opportunity to get before a judge. That process is triggered by either a direction from the Court (e.g. out of chambers) or by one party filing a request for a conference with the Court in Form 4-4. The local registrar, upon receipt of a Form 4-4 request, normally responds by expeditiously scheduling a case conference. Generally speaking, the case conference would be a single-event appearance before a judge where, for example, timelines are set and/or discussions are had respecting process.

The precise parameters of what can be accomplished at a case conference are still being developed. However, this process is not intended to act as a settlement pre-trial conference, although the Court is specifically given authority by Rule 4-4(4)(

f) to consider anything, that, “... may aid in the resolution or facilitate the resolution of a claim”. [ 8 ] Rule 4-4 requests and Rule 4-5 requests are quite different. A Rule 4-4 request is made to the local registrar and is intended to give the parties quick access to a judge to help them address and resolve, primarily, procedural issues on a “one-off” basis.

A Rule 4-5 request is made to the Chief Justice and results in having a dedicated judge assigned to the action to hear and decide all applications that would otherwise be placed on a chambers list to be considered by whichever judge happens to be assigned to hear chambers applications on that date. [ 9 ] For complex cases, when multiple interim applications are anticipated, or other relevant factors as outlined in Rule 4-6 are present, it makes sense and promotes efficiencies to have a single judge dedicated to hear all interim motions, rather than having interim applications randomly placed on chambers lists to be heard by a variety of different judges.

While on the one hand having a single judge dedicated to hear all interim motions respecting a particular action is attractive, on the other hand it can potentially lead to delays and scheduling complications because the judge appointed is the only judge that can hear an application and they must find time in their busy

schedule to hear the motions on special dates that are available to them. Accordingly, it is a balance. What makes the most practical sense? [ 10 ] It would seem to me that, in most cases, it should be self-evident to the parties whether a case management order would be beneficial to the process. After all, there is usually little downside to the appointment of a single judge hearing all interim applications.

However, in those cases when a party is not in agreement with the appointment of a case management judge, resort should be had to General Application Practice Directive #8 “Communication and Correspondence with Judges” [GA-PD #8]. GA-PD #8 prohibits lawyers and parties to a court proceeding from communicating directly or indirectly with a judge except in certain situations.

One of those situations, as set out in para. 2(c), is: The communication is in writing and is for the purpose of notifying the court of the party’s objection to a without notice application by the opposite party. [ 11 ] As outlined in paras. 3 and 4 of GA-PD #8, the communication is to be addressed to the local registrar and copied to all opposing parties. [ 12 ] Except for addressing the correspondence to me personally, as opposed to the local registrar, counsel for the defendant followed the correct procedure in forwarding the letter to the Court, with a copy to Mr.

Stuart. [ 13 ] I will now proceed to assess whether a case management judge should be appointed in this case pursuant to Mr. Stuart’s request.

[ 14 ] The case before the Court was commenced on August 12, 2015. To date, there have been no applications made by either side. The Request filed by Mr. Stuart goes on at great length about perceived problems that he has encountered in moving his action forward. However, the Request does not refer to any specific applications that Mr. Stuart intends to bring in the foreseeable future. Although in the vast majority of cases, case management orders have been granted where parties have filed requests, this is not one of them.

There is, at this time, nothing to manage and no applications to hear. [ 15 ] Accordingly, Mr. Stuart’s Request for the appointment of a case management order is denied. He may wish to utilize the case conference process set forth in Rule 4-4 or simply bring whatever application he intends to bring by setting it on a regular chambers day to be determined by the presiding judge. C.J.K.B. M.D. POPESCUL