STANDING BUFFALO DAKOTA FIRST NATION APPLICANT - v. -, 2023 SKKB 196

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 196 Date: 2023 09 12 Docket: KBG-RG-02445-2022 Judicial Centre: Regina ___________________________________________________________________________ BETWEEN: STANDING BUFFALO DAKOTA FIRST NATION APPLICANT - and - RON S.

MAURICE PROFESSIONAL CORPORATION OPERATING AS MAURICE LAW BARRISTERS AND SOLICITORS RESPONDENT ___________________________________________________________________________ CORRECTED FIAT : The text of the original fiat has been changed per the corrigendum released September 20, 2023. (A copy of the corrigendum is appended to this corrected fiat). ___________________________________________________________________________ Counsel: Mervin C. Phillips and Nathan Xiao-Phillips for the applicant Corey Omer for the respondent ___________________________________________________________________________ FIAT MORRALL J.

September 12, 2023

___________________________________________________________________________ [ 1 ] This fiat will address my ruling with respect to compliance with Practice Directive #11 [PD#11] as it pertains to the upcoming hearings in this matter set for September 18 and 19, 2023. [ 2 ] I will provide some limited background information on these proceedings. [ 3 ] On February 21, 2023 I issued my fiat, 2023 SKKB 42 , in relation to issues involving the transfer of files pertaining to a solicitor’s lien. During arguments, I had been very generous in allowing counsel to argue over the course of two days.

However, as part of my ruling with respect to one aspect of those arguments, I found Mr. Phillips’ presentation to be “prolix” and that he introduced unneeded complexity into the matter. I note that ruling is now before the Court of Appeal. [ 4 ] A hearing date was eventually set for May 3, 2023 to determine whether privilege applied to certain documents that Standing Buffalo Dakota First Nation [SBDFN] wished to be disclosed.

In another very lengthy application, an adjournment was granted on that date and I issued a fiat adjourning the matter to September 18 and 19, 2023 with certain timelines that I had hoped would bring some order and focus to the proceedings.

I had generally indicated that proceedings were to be confined to the argument regarding privilege, any application to amend pleadings by any party and Maurice Law Barristers and Solicitors’ [Maurice] application to bifurcate proceedings. [ 5 ] Unfortunately, the proceedings and documentation have multiplied like unfortunate Tribbles from the original Star Trek TV series. [ 6 ] In order to focus and bring order to the proceedings as well to ensure fairness and balance to all parties so that they had timely notification of the court’s intentions, I indicated that I would be expecting compliance with PD#11 at the telephone conference call that occurred August 16, 2023.

At that time, Mr. Phillips indicated that he would be requesting more time than that provided for in PD#11.

He did so properly using the procedure provided for in the practice directive by letter dated August 31, 2023. [ 7 ] Over the course of the last number of months, the court has received many applications, emails, briefs of law and letters relating to this upcoming hearing date as well as the telephone conference call date of August 16, 2023. [ 8 ] Out of these documents, the following issues will need to be determined at the upcoming hearing date: 1) Should I preside in relation to any or all the applications set for September 18 and 19, 2023? 2) If the answer to all is no, then the matters will be adjourned for another Justice to consider. 3) If the answer is yes to all, then I will consider the following other applications and issues. 4) If the answer is yes to some, then I will only consider the applications that I have determined I can hear. 5) What order is appropriate in relation to the Privilege Claimant First Nations’ application to claim privilege with respect to certain documents? 6) What orders are appropriate in relation to SBDFN’s application to amend its originating application, production of further documents, cross-examination of various individuals, striking of affidavit and an order that Maurice should file an affidavit of documents within a certain period of time? 7) What order is appropriate in relation to Maurice’s application to bifurcate proceedings? 8) What order is appropriate to make in relation to SBDFN’s application to strike dated September 1, 2023? 9) What order is appropriate to make in relation to the Privilege Claimant First Nation’s application of August 31, 2023? 10) What order is appropriate to make in relation to Maurice’s application dated September 8, 2023 pursuant to Rule 3-55?

[ 9 ] I note that I waited until I had received all materials from all parties in relation to these various applications so that I could gauge the amount of time required by all parties to make effective oral presentations to the court. [ 10 ] By letter dated August 31, 2023, Mr. Phillips argued that the two full hearing days scheduled should be allocated so that the Applicant (presumably SBDFN) receive one full day and the respondents receive one full day between them. [ 11 ] By letter dated September 8, 2023, Mr.

Omer at page two and three of his letter argues for an adaptation of PD#11 to account for the multiple applications in the case at bar and notes that the Privilege Claimant First Nations, Kawacatoose First Nation and Star Blanket First Nation have all consented to his proposed time allocation. [ 12 ] In determining an appropriate procedure, I must take into account multiple factors including the need for effective and efficient oral advocacy, the need to provide equal time to all involved parties to make these submissions, the nature and complexity of the applications, the availability and timing of additional written submissions after the oral presentation, the differing interests of the parties in relation to the disparate applications, and the adequacy of the written submissions already provided. [ 13 ] I will also advise at this juncture, so as to be fair to all parties, that I will not allow any party to provide me with a so called “compendium” or any other written document at the outset of the hearing that contains additional material not previously provided to the other parties as part of this hearing.

While a “compendium” containing material that simply highlights and focuses the reader to specific parts of the voluminous documentary record of these proceedings is appropriate, additional material not previously provided to the court and the other parties pursuant to the directions I have given will require leave of the court for every specific document tendered and an explanation on why the document was not previously provided to the other parties. [ 14 ] I do this to eliminate trial by ambush and to ensure that the parties are able to focus their submissions on the material previously given and not have to attempt to quickly review last minute material.

Again, my hope is to ensure a level playing field in order to make submissions. [ 15 ] I will also note that after the hearing is completed in this manner and only if it is determined that I may hear some or all of the applications, I will provide a week for any of the applicants (meaning those who filed a notice of application to be heard on September 18, 2023 and previously on May 3, 2023) who wish to provide additional written submissions to do so.

Thereafter, if any of the respondents wish to file any material in reply, I will provide them with an additional week after the initial week given to the applicants to provide additional written submissions. [ 16 ] It is again my hope that this will ensure I receive all the submissions made by a party, even if they felt they could not make all the relevant submissions on behalf of their client, despite the ample, in my opinion, time I am about to provide the litigants. [ 17 ] With respect to the positions outlined by the litigants, given my experiences with the prior submissions made at various points throughout this action, I find that the interests of justice are best served by focusing the parties on a series of delineated applications rather than allowing a boundary-less free for all environment. [ 18 ] Therefore, in consideration of these above factors and taking into account some of the additional provisions provided to the parties along with the requests made to the court, I make the followings orders pursuant to PD#11 and the inherent jurisdiction of the court to control its own process: 1) With respect to the SBDFN’s application that I not hear any of the applications scheduled for September 18, 2023, I will provide 15 minutes to SBDFN, and 15 minutes to all other interested parties should they wish to provide submissions on this matter.

SBDFN will have a 5 minute right of reply. After hearing submissions, I will determine whether I am able to make a decision that morning and, if so, I will provide a time to the parties that morning when we will reconvene to hear my decision. If I cannot decide in the morning, the matter will be adjourned to a time when I am ready to render my decision. If I decide that I cannot hear the applications, all parties will reconvene to find a new date with a different Justice.

If I decide I can hear some or all of the applications, we will immediately proceed to hear the applications I am able to determine. 2) With respect to the Privilege Claimant’s application originally set for May 3, 2023, I will provide 30 minutes to the Privilege Claimant First Nations, 30 minutes to SBDFN, 10 minutes to any other interested party and the Privilege Claimant First Nation shall have a 5 minute right of reply. 3) With respect to SBDFN’s application dated July 17, 2023 to amend and for discovery and the Privilege Claimants’ August 31, 2023 application to strike, I will provide 45 minutes for SBDFN, 30 minutes to the Privilege Claimant First Nations and 30 minutes for submissions from any other interested party.

Thereafter, both SBDFN and the Privilege Claimant First Nations will each have 15 minutes to reply. 4) With respect to SBDFN’s application to strike dated September 1, 2023 and Maurice’s application pursuant to Rule 3-55 dated September 8, 2023, I will provide each applicant one set of 30 minutes to argue for their application and against the other and they will each have one set of 15 minutes to reply. 5) With respect to Maurice’s application to bifurcate dated July 17, 2023, I will provide Maurice 30 minutes to make submissions,

SBDFN 30 minutes to respond and Maurice will have 10 minutes to reply. [ 19 ] While I might not have been so generous as to provide a total of 60 minutes for SBDFN to argue with respect to their application to amend dated July 17, 2023, given the consent of Maurice and the other litigants, I will grant the request with the modification to delineate the form of the argument made. [ 20 ] I also note that the proceedings shall be argued in the order provided for above. [ 21 ] I have also endeavoured to provide this fiat in as timely a fashion as possible so that the parties have ample time to adapt their submissions to fit within the boundaries outlined in this fiat so that the purposes and principles of PD#11 be respected and a level playing field is ensured for all parties in this upcoming hearing.

J. J.P. MORRALL KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 196 Date: 2023 09 12 Docket: KBG-RG-02445-2022 Judicial Centre: Regina ___________________________________________________________________________ BETWEEN: STANDING BUFFALO DAKOTA FIRST NATION APPLICANT - and - RON S. MAURICE PROFESSIONAL CORPORATION OPERATING AS MAURICE LAW BARRISTERS AND SOLICITORS RESPONDENT Counsel:

Mervin C. Phillips and Nathan Xiao-Phillips for the applicant Corey Omer for the respondent ___________________________________________________________________________ CORRIGENDUM TO FIAT DATED SEPTEMBER 12, 2023 MORRALL J. September 20, 2023 ___________________________________________________________________________ [ 22 ] The fiat of September 12, 2023 shall be amended as follows:

a) Paragraph 3 shall be amended by adding “, 2023 SKKB 42 ,”;

b) Paragraph 4 shall be amended by omitting “’s” and adding “Barristers and Solicitors’”; c) Paragraph 8(2) shall be amended by omitting “is”;

d) Paragraph 21 shall be amended by amending “is” to “in”. J. J.P. MORRALL