BRYAN CONSTRUCTION LTD. PLAINTIFF - v. –, 2023 SKKB 26

KING’S BENCH FOR SASKATCHEWAN 2023 SKKB 26 Date: 2023 02 03 Docket: QBG-PA-00147-2016 Judicial Centre: Prince Albert BETWEEN: BRYAN CONSTRUCTION LTD. PLAINTIFF - and – KHAMI CHOKANI and ANN-MARIE ELMA CHOKANI DEFENDANTS/ DEFENDANTS TO THIRD PARTY CLAIM - and – BRYAN CONSTRUCTION LTD. DEFENDANT BY COUNTERCLAIM -and- GRAND TRUNK DEVELOPMENTS LTD. THIRD PARTY DEFENDANT/ PLAINTIFF BY THIRD PARTY COUNTERCLAIM -and- DKM ENGINEERING LTD. and P. MACHIBRODA ENGINEERING LTD. THIRD PARTY DEFENDANTS

BILL CHOW, RUSZKOWSKI CONSTRUCTION CO. LTD., and RUSZKOWSKI ENTERPRISES LTD. FOURTH PARTY DEFENDANTS ___________________________________________________________________________ Counsel: Paul Fedoroff for Bryan Construction Ltd. Nathan Phillips for the Chokanis Milad Alishahi for DKM Engineering Ltd. David Girard for P. Machibroda Engineering Ltd. Kaylea Dunn for Grand Trunk Developments Ltd. ___________________________________________________________________________ DECISION MORRALL J.

February 3, 2023 ___________________________________________________________________________ Introduction [ 1 ] This is an application by the third-party defendant, DKM Engineering Ltd. [DKM] for an order pursuant to The Queen’s Bench Rules , Rule 6-13 and the inherent jurisdiction of the court mandating the following individuals’ attendance for the purposes of cross-examination: 1) Ann-Marie Elma Chokani; 2) Allen Kelly; 3) David Dennis; 4) Russel James Renneberg. [ 2 ] The application was filed with the court at 3:51 p.m. on December 15, 2022 and served on the parties at 4:56 p.m. on December 15, 2022.

The matter was heard and argued on January 19, 2023 at 2:00 p.m. [ 3 ] These are complicated proceedings but it is not necessary to provide extensive background details given the limited relief requested. However, given that delay is an issue with respect to an aspect of this application, it will be useful to undertake a cursory review of this lawsuit that is acquiring some of the trappings of a Dickensian saga.

The Proceedings [ 4 ] On August 3, 2016 a statement of claim was issued by Bryan Construction Ltd. against Khami and Ann-Marie Elma Chokani [Chokanis] seeking damages in the amount of $111,742.83 amongst other relief. [ 5 ] On September 7, 2016, the Chokanis filed their statement of defence and counterclaim against Bryan Construction Ltd. [Bryan Construction]. Further, on September 14, 2016, the Chokanis filed third party claims against Grand Trunk Developments Ltd. [Grand Trunk], DKM and P.

Machibroda Engineering Ltd. [Machibroda]. [ 6 ] On October 7, 2016, a statement of defence on behalf of DKM was filed. [ 7 ] On October 24, 2016, Bryan Construction Ltd. filed their statement of defence to the counterclaim.

[ 8 ] On November 1, 2016, Grand Trunk filed their statement of defence. [ 9 ] On November 4, 2016, Machibroda filed their statement of defence. [ 10 ] There were further documents filed and a case management judge was assigned by the court on January 17, 2017. [ 11 ] On February 17, 2017, a notice of fourth-party claim was filed by Machibroda against Bill Chow [Chow], Ruszkowski Construction Co.

Ltd. [Ruszkowski] and Clunie Consulting Engineers Ltd. [Clunie]. [ 12 ] On March 27, 2017, Ruszkowski filed their fourth-party statement of defence. [ 13 ] On March 28, 2017, Clunie filed their fourth-party statement of defence. [ 14 ] On April 28, 2017, Chow filed his fourth-party statement of defence. [ 15 ] A case management conference was held on June 8, 2017 and Machibroda filed a notice of discontinuance against Clunie on August 16, 2017. [ 16 ] On January 22, 2018, an application was filed by DKM requesting that pursuant to Rule 4-7 the Chokanis discontinue their claim against DKM and various other relief. [ 17 ] On February 14, 2018, the case management judge that was appointed recused himself and the hearing date that was scheduled for February 26, 2018 for DKM’s application pursuant to Rule 4-7 was vacated. [ 18 ] On September 4, 2019 DKM filed an application seeking

summary judgment pursuant to Rule 7-2 and 7-5 against the Chokanis. [ 19 ] On October 2, 2019, the Chokanis filed an application pursuant to Rule 3-72(1)(c)(ii) for leave to amend their statement of defence, counterclaim and third-party claim. [ 20 ] On October 23, 2019 a case management conference was held before a new case management judge. [ 21 ] On December 17, 2019, the court allowed the Chokanis application to amend and ordered costs against DKM and Machibroda. [ 22 ] On September 1, 2020, a second application was filed by DKM to dismiss the Chokanis claim pursuant to Rule 7-2 and 7-5. [ 23 ] On February 26, 2021, Machibroda brought their application to dismiss the Chokanis claim pursuant to Rule 7-2 and 7-5. [ 24 ] The fiat of the court dated June 4, 2021 details the court’s direction with respect to the Chokanis further questioning, the potential for discontinuance, and the presumption that DKM’s

summary judgment application did not proceed due to COVID issues. The court also noted the unavailability of the June 14, 2021 date set by the local registrar to hear the first stage of the Practice Directive #9 process on Machibroda’s February 26, 2021 application. [ 25 ] On June 7, 2021, the Chokanis brought applications against DKM and Machibroda to appoint proper officers for each company pursuant to Rule 5-19(5). [ 26 ] On August 18, 2021 the court noted in a fiat that there were five applications before the court. The court set timelines for the

summary judgment applications as he noted that counsel for the Chokanis advised they were considering bringing a

summary judgment application against Bryan Construction. The Court ordered that application be made by August 30, 2021. The court then dismissed the application by the Chokanis for proper officers with costs. With respect to the

summary judgment applications of DKM and Machibroda, he ordered that the Chokanis must file any reply material no later than September 30, 2021 and that DKM and Machibroda had until November 29, 2021 to file any reply material. Further, it was ordered that there would be no questioning by the Chokanis of DKM and Machibroda pending completion of the

summary judgment applications except as may be permitted by the

summary judgment hearing judge in relation to the

summary judgment applications. [ 27 ] On October 1, 2021, the court granted an eight day extension to the Chokanis for filing materials. [ 28 ] During the time periods set by the court, numerous affidavits were sworn by individuals involved in these applications. [ 29 ] On November 10, 2022, the court issued a fiat as a result of a case management conference on November 4, 2022. The court indicated it was advised that all affidavit material necessary to allow the

summary judgment applications by DKM and Machibroda had been filed. However, counsel for the Chokanis advised that his clients had issues with some of the material filed and anticipated seeking leave to cross-examine on the affidavits or making an application to strike some or all of the affidavit material.

The court then expressed concern that the Chokanis had made no application despite all affidavit material being filed at the end of December 2021. [ 30 ] The court then noted the dates of January 19 and 20, 2023 being available for the parties to bring an application for hearing and stated that, “Any party intending to make an application respecting the admissibility of evidence must serve and file their application no later than December 15, 2022, failing which no further applications can be made in relation to the two outstanding

summary judgment applications without the express leave of the court.”

[ 31 ] Further, in the last paragraph of the fiat, the court stated as follows: The court took note of the concerns expressed by counsel for DKM and P. Machibroda that counsel for the Chokanis have failed to make any applications to address the evidentiary and procedural concerns prior to this date.

The court shares those concerns and directs that any steps required to be taken by the Chokanis will be completed within the deadlines set out in the fiat, failing with any steps permitted by the Chokanis within this fiat shall no longer be available to them. [ 32 ] In addition to the material filed by DKM for this application, on December 16, 2022, a notice of objection to affidavit evidence dated December 15, 2022 was filed by the Chokanis in relation to certain affidavits filed by Machibroda and DKM and also made returnable on January 19, 2023. [ 33 ] On January 3, 2023, DKM’s counsel sent a letter indicating it was their view that the application for cross- examination be heard prior to hearing the substantive

summary judgment application. [ 34 ] On January 10, 2023, counsel for the Chokanis sent a letter outlining their objections to DKM’s application for cross-examination and advising that, if the application is permitted to proceed and cross-examination ordered, they will be submitting that “cross-examination should be ordered in relation to all non-expert affidavits tendered in relation to the pending

summary judgment applications even in the absence of an application for cross-examination”. [ 35 ] On January 17, 2023, counsel for the Chokanis sent a further letter indicating that they will not make an application at that point in time to strike the

summary judgment applications but will later seek express leave of the court to bring a formal application to address this issue. [ 36 ] It was also decided between the parties prior to this application that the Chokanis’ objection to the affidavit evidence would not be heard concurrently with DKM’s present application. Position of the Parties [ 37 ] While both Mr. Fedoroff and Mr.

Girard made concise submissions on behalf of Bryan Construction and Machibroda respectively, the bulk of the arguments were focused between the Chokanis and DKM. [ 38 ] DKM submits that their application for cross-examination should be allowed given there is a sincere and legitimate need to cross-examine the requested affiants to clarify and resolve the inconsistencies in the evidence before the court.

They argue that if I find that their 56 minute tardiness in serving materials contrary to the court order from November 10, 2022 impacts their application, I should grant express leave to proceed or apply Rule 12-1 to validate service. [ 39 ] The Chokanis submit that for a number of reasons that the application should be denied. Firstly, they argue that due to the operation of Rule 12-13(2), DKM’s application was past the deadline imposed by the court and therefore improperly brought.

Other reasons include but are not limited to the fact that DKM’s brief of law was served late, DKM’s brief of law contained erroneous assertions, and the prejudicial delay in commencing this application. Further, they submit that if I do grant DKM’s application, I should order the cross-examination of six individuals by counsel for the Chokanis without a formal application and without express leave due to fairness and procedural reasons.

The Law [ 40 ] The decision of Casbohm v Winacott Spring Western Star Trucks , 2018 SKQB 15 [ Casbohm ] is the leading case with respect to determining whether cross-examination should be allowed pursuant to Rule 6-13(1) in a

summary judgment context. The court states as follows: [72] Rule 7-3(2) clearly provides that an adverse inference can be drawn against the party who does not cross-examine or file reply or rebuttal evidence. This suggests that the Rules contemplate that even applicants for

summary judgment may wish (and in some cases, will be required) to challenge the evidence given by the opposing party. While it is true that a party who applies for

summary judgment is effectively asking the court to find that the matter can be disposed of on the basis of the “affidavit and other evidence” before it, because there is no genuine issue requiring a trial, this does not mean that such a party must simply accept all other evidence given by the opposing party without question. To find that merely applying for

summary judgment would then preclude that party from applying to cross-examine the opposing party’s deponents would be to interpret the Rules in a narrow and overly technical way, which is contrary to their spirit and purpose. As Chief Justice Richards said in Borowski v Stefanson , 2015 SKCA 70 , at para 24 , 467 Sask R 71 , the Rules are intended to be the servant of the court process, not its master. [73] With respect to the defendants’ second and third arguments, I do not agree that the Rules prohibit the cross-examination of Mr. Kiszka or Mr. Kozlowski.

While Rules 5-20 and 5-42 limit questioning of experts and non-parties to certain circumstances, it must be remembered that “questioning” within the scope of

Part 5 of the Rules is very different than cross-examination on affidavits in relation to an application.

Part 5 does not apply in the circumstances here. This application is governed by Rule 6-13. [74] In this case, the principles outlined in Wallace [ Wallace v Canadian National Railway , 2009 SKQB 178 , 338 Sask R 174 ] guide my consideration. While I recognize that cross-examination ought not be granted lightly, there is clearly some contradictory evidence before the court on issues of importance. In particular, the opinion evidence in the affidavit of Mr. Kiszka, regarding the cause and mechanism of Mr. Casbohm’s fall, and nature and cause of the damage to the ladder conflicts with the evidence contained in the affidavits filed in

support of Mr. Casbohm’s application. [75] As is often the case, the weight that might ultimately attach to an opinion will depend on whether, and to what extent, any facts upon which the expert bases that opinion are found to be proven. Mr. Kiszka bases his opinion, in part, on the evidence given by Mr. Bubnick and Mr. Kozlowski. Evidence in the affidavits of Mr. Bubnick and Mr. Kozlowski also conflicts with the accounts given by Mr.

Casbohm, and some of the evidence relied upon by the experts who filed affidavits for him. [76] Applying the criteria set out in Wallace , the key questions that I must determine on this application are whether Mr. Casbohm has demonstrated that cross-examination will assist in resolving the issues before the court, and whether permitting cross-examination will result in an injustice. That determination, in the context of this case, must take into account that the application to which the affidavits relate is a

summary judgment application, and must be mindful of the need in such circumstances to respect the principle of proportionality, as set out in Rule 1-3. [77] When considering the question of whether cross-examination will assist in resolving the issues, I bear in mind that the Claim in this matter was filed more than 11 years ago. The parties have already fully exchanged documents. Extensive questioning of both the plaintiff and the proper officer for the defendant has already taken place. [78] The expert reports, however, are a relatively new development.

To a large extent, the issue of liability will be impacted by the findings respecting the nature and mechanism of Mr. Casbohm’s fall. Crucial to that determination is evidence regarding the quality and fitness of the ladder when Mr. Casbohm used it, the manner in which he used it, and the interaction between Mr. Casbohm and Mr. Kozlowski at that time. [79] In my view, given the nature of the issues in dispute and the nature of the critical evidence relating to those issues, it is clear that the cross-examination sought by Mr. Casbohm will assist in resolving important matters. The deponents that Mr.

Casbohm proposes to cross-examine give evidence which bears directly on the issue of liability. As Justice Barrington-Foote noted in Regional Tire [ Regional Tire Distributors (Saskatchewan) Inc. v Quality Tire Service Ltd ., 2016 SKQB 411 ], at paras 12-13 : 12 … There are many conflicts in the evidence which are relevant to the

summary judgment application. Cross-examinations would enable the parties to test and better understand those conflicts… … 13 Further, the evidence generated through cross-examination should assist the plaintiff in deciding whether to proceed with its

summary judgment application, in whole or in part… It is… likely that cross-examinations will result in a more timely and effective process. [80] Those comments have particular resonance in the circumstances of the application before me. I am satisfied that permitting cross- examination will assist in resolving the issues before the court. [81] With respect to the question of injustice, two key considerations in the circumstances of this case are: (

i) time, and (ii) expense. These considerations relate primarily to the cross-examination of Mr. Kiszka. He does not live in Canada, so arranging for his cross- examination is likely to be costly and logistically difficult. I also bear in mind that Mr. Casbohm would be required, pursuant to Rule 6- 13(2) to bear the costs associated with cross-examination. By filing this application, I infer that he is prepared to do that. In terms of timing, there is nothing before me to indicate that Mr. Kiszka could not be made available within a reasonable time frame.

Given the amount of the claim involved, the importance of Mr. Kiszka’s evidence, and the potential for cross-examination to assist in resolving the matter, I am of the view that the hurdles of time and expense are not sufficient to compel the conclusion that ordering cross-examination would result in an injustice. [ 41 ] The decision of Ter Keurs Bros.

Inc. v Last Mountain Valley (Rural Municipality) , 2019 SKCA 10 [ Ter Keurs ] provides the following concise analysis directing the necessary considerations by a court for this type of application: [35] Framed in the context of the matter under appeal, the Chambers judge who heard this matter was obliged to consider the Ter Keurs application to cross-examine the RM’s affiants having regard to Rule 7-3, the “best foot forward” principle, the proportionality principle,

the jurisprudence relating to cross-examination of affiants (particularly in a

summary judgment context) and (as discussed below) theissues that emerged from the pleadings. In the end, although it was a discretionary decision, it was one which had to have been made withthese principles in mind. Unfortunately, it does not appear as though any of this analysis was undertaken by the Chambers judge. [42] Lastly, the decision of Blue Hill Excavating Inc. v Canadian Western Bank Leasing Inc., 2019 SKCA 22 [BlueHill] provides some further guidance with respect to the propensity of leave being granted in relation to cross-examination in

summaryjudgment matters as follows: [31] Although this Court has reiterated that the rule “does not provide a stated right to cross-examine” (Ter Keurs Bros. Inc. v RuralMunicipality of Last Mountain Valley No. 250, 2019 SKCA 10 at para 30 [Ter Keurs]), cross-examination is often consented to. When itis not, leave is generously granted by the court in the context of

summary judgment applications. All of this occurs because of the court’sexpectation that each party will put its “best foot forward” in leading evidence in relation to the

summary judgment application (TerKeurs at para 54) and the court’s need to decide whether it can “reach a fair and just determination on the merits on [the] motion forsummary judgment” which is the litmus test for whether a genuine issue requiring trial exists (Hryniak [Hryniak v Mauldian, 2014 SCC7, [2014] 1 SCR 87] at para 49).

Issues [43] The following are the issues that need to be addressed in relation to DKM’s applications: 1) Is DKM’s time of service fatal to their ability to bring the application? 2) Did DKM fail to exercise reasonable diligence in bringing this application? 3) Should DKM be allowed to cross-examine the affiants requested pursuant to Rule 6-13? 4) Should the Chokanis be allowed to cross-examine their requested affiants if the court grants DKM’s request to cross-examine?

Time of Service [44] In addressing the Chokanis’ initial objections with respect to the timing of the service, it is clear that pursuant toRule 12-13(2), the 56 minute faux pas by DKM in serving their applications on the parties opposite would mandate that the effective dateof service becomes December 16, 2022. This would make it one day late and not in compliance with the court’s fiat of November 10,2022. [45] It is generally noted that the court has a wide discretion to validate service.

However, where there is non-compliance with service requirements imposed by statute, the remedial provisions of The Queen’s Bench Rules do not apply. (seeUniversity of Saskatchewan v Van Oder (1974), (SK CA), [1975] 2 WWR 162). The matter in question here is as aresult of a deadline imposed by the court, and not a statute, so Rule 12-1(1) may apply to validate service. [46] Additionally, the court in the November 10, 2022 fiat noted that “express leave” could be obtainednotwithstanding failure to comply with the deadline.

Therefore, it is open to DKM to apply for this “express leave” to pursue thisapplication as well. [47] Both avenues available to DKM relate to the determination of whether the court should exercise theirdiscretionary powers in matters where there has been non-compliance with the Rules or court order. In a perfect world, there would beperfect compliance and no need to resort to these provisions. In fact, in a perfect world, it is unlikely we would need a court system.However, we do not live in a perfect world.

Much ink has been spilled advising litigants and others involved in the judicial process thatcourt orders are not suggestions. Due to factors involving shifting priorities, unforeseen events, simple mistakes and countless otherreasons, rules and orders are not followed and enforcing compliance and determining next steps is a difficult process. On the one hand,the court must uphold the rules of law and engender respect for our procedures and rules.

On the other hand, it is incumbent that courtsrecognize human frailties including our own and ensure that, despite errors made by counsel through inadvertence or otherwise, litigantshave their day in court.

The reference to The Queen’s Bench Rules being the servant and not the master of the court process in paragraph72 of the Casbohm decision must guide the court’s direction in this matter. [48] I believe that the answers to the following two core questions must guide the courts in exercising theirdiscretion: 1) Did the litigant try to comply? 2) Was there any incurable prejudice as a result of the non-compliance? [49] With respect to attempts at compliance, the courts will be cognizant that due to strategic and tactical factors alitigant may choose certain courses of action.

These actions can be inferred through inaction despite recognizing a fast-approachingdeadline. In these cases, a court will be less likely to grant a discretionary remedy. On the other hand, should there be attempts atcompliance which are imperfect due to human frailties, then a court will be much more likely to exercise their discretionary power infavour of that litigant. [50] With respect to prejudice, the courts will understand that costs and/or adjournments are able to cure prejudice inmany cases.

However, this factor would operate in combination with the first factor as there is not a “one size fits all” test that wouldcover every situation facing a court. A court would have to analyze both factors and make a determination based on the factual matrixbefore it in order to render a just decision. [51] In applying this reasoning to the case at bar, given this application by DKM was not made returnable for

approximately 34 days after service, it is difficult to see how any prejudice could result from a 56 minute delay. I also note that while the brief of law was served slightly late as well, the Chokanis counsel did not request an adjournment and did not have any trouble making lengthy and complex submissions in opposition to DKM’s motion.

He also provided the court with a voluminous compendium of materials designed to provide context and augment his lengthy oral submissions. [ 52 ] From the timing of the service, I also find that there was an intention to comply as it was only the strict application of the Rules that rendered actual service on December 15, 2022 at 4:56 p.m. effective service on December 16, 2022.

While there is certainly a need for such a rule to prevent mischief that often occurs with late filing in family law applications, I find that the circumstances here militate in favour of the exercise of discretion. [ 53 ] Therefore, having regard to the purpose of The Queen’s Bench Rules and the circumstances of this case, I will grant express leave for DKM to proceed with this application. Concurrently, I will also validate service pursuant to Rule 12-1(1) and deem the service effective on December 15, 2022 in compliance with the court’s fiat.

Delay in bringing application [ 54 ] The next issue to address is whether DKM’s delay in bringing this application is fatal to their request to cross- examine the affiants. [ 55 ] In this regard, I note the comments of the court in Sun Country Regional Health Authority (Sun Country Health Region) v Mamchur , (29 June 2018) Regina, QBG-RG-01366-2015, where the court stated as follows: [7] While it is not codified in The Queen’s Bench Rules, the jurisprudence suggests that a party seeking leave to cross-examine a deponent on an affidavit must exercise reasonable diligence in making the request (see, for instance, Boaden Catering Ltd. v Real Food for Kids Inc., 2016 ONSC 4098 , aff’d 2017 ONCA 248 ). [8] In this case, I am not satisfied that it is appropriate to grant SCHRA’s application for leave to cross-examine Mr.

Hobday on his affidavit, at least at this stage. I will explain. [9] To begin, I am unable to conclude that SCRHA has exercised reasonable diligence in making the application to cross-examine Mr. Hobday. All other deponents who filed affidavits in relation to the

summary judgment application have been cross-examined. No evidence was led as to why SCRHA did not seek to cross-examine Mr. Hobday sooner than it did. [10] In addition to that, while there is some conflict between the evidence contained in Mr. Hobday’s affidavit, and the affidavit evidence filed in support of SCHRA’s application for

summary judgment – relating to how the bursary program in question works, and the physician hiring and recruitment practices of the Saskatchewan Medical Authority and SCRHA – I am unable to conclude, at this stage, that cross-examination is necessary to resolve that conflict. Nor am I able to say, at this stage, that such conflict is of any particular significance. That is not to say that the judge hearing the

summary judgment application would be precluded from ordering cross- examination of Mr. Hobday, if he or she were of the view that was necessary to resolve important evidentiary conflicts. But, on the basis of the evidence before me, I simply cannot conclude, at this stage, that such a step is necessary. [11] This portion of the application is dismissed. To be clear, my decision in this respect does not bind the judge hearing the

summary judgment application. If that judge determines under Rule 7-5(2) or (3) that such cross-examination (or the hearing of oral evidence) is necessary and appropriate, he or she may so order. [ 56 ] However, in Casbohm the same Justice said as follows at para. 62: 62 A similar sentiment was expressed by the Alberta Court of Appeal in P. Burns Resources Ltd. v. Patrick Burns Memorial Trust (Trustee of) , 2015 ABCA 390 , 612 A.R. 63 (Alta. C.A.) . In that case the court noted that whether document production and questioning should proceed prior to the hearing of a

summary judgment application is a discretionary decision. That discretion should be exercised giving due consideration to the purposes of the

summary judgment provisions, and keeping in mind the need for proportionality, the need to facilitate resolution of the issues, and the need to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases their cost. [ 57 ] Given the previously outlined Court of Appeal analysis in Ter Keurs and Blue Hill , I find that delay is not a distinct separate category that the court would need to consider as in a Judicial Review decision under Rule 3-56(3) where undue delay would, if it was found, operate to deny the remedy sought.

However, it is a factor to consider along with many others in determining the merits of the application as a whole. However, given that the submissions largely focused on this issue during oral argument, I will provide my analysis under this separate heading. [ 58 ] In assessing reasonable diligence or improper delay, I begin with a review of the initial pleadings and proceedings as previously outlined in this fiat. I agree with counsel for the Chokanis that no evidence with respect to delay was filed by DKM.

However, I do not believe it is necessary in these circumstances to rely on such evidence, if it would have existed, as a result of inferential principles and the weight that should be placed on this issue in the context of the facts in the case at bar. [ 59 ] From my review I find this matter has been delayed due to the complexity arising from a multitude of actions and parties, due to COVID, and for the reasons noted in the various fiats. I note that there has been no actual evidence proffered by the Chokanis with respect to prejudice as a result of the delay.

However, in Agri Resource Mgt. 2001 Ltd. v Saskatchewan Crop Insurance Corp. , 2017 SKCA 35 , [2017] 8 WWR 215 [ Agri Resource ], the court stated the following on this issue: [40] Moreover, two types of prejudice come into play in the analysis – actual prejudice, which must be established by evidence, and inferred prejudice, which generally can be assumed from the length of the delay. In ICC , Richards J.A. described these two types of

prejudice as follows: [45] … (

a) The prejudice the defendant will suffer in mounting its case if the matter goes to trial – As indicated, this is an important consideration. Relevant matters here would include failing memories on the part of witnesses, the disappearance or death of witnesses over the course of time and the loss or destruction of physical evidence. It will be to a defendant’s advantage to file affidavit material detailing the anticipated prejudice. However, a court can infer that the passage of time will typically have at least some effect on the memories of witnesses.

The more serious the prejudice a defendant will face at trial, the more likely it is that the interests of justice will tip in favour of striking the claim in question. … [41] In this case, Agri Resource takes issue with the Chambers judge’s finding that SCIC was prejudiced by the delay because of the unavailability of some “key witnesses” and memory impairment as a result of the effluxion of time. However, there was evidence to support those findings and, as such, the judge made no palpable or overriding error ( Nelson (City) v Mowatt , 2017 SCC 8 at para 38 ). [42] Mr.

Jacques attached a list of 65 witnesses to his affidavit of December 2, 2015 (Exhibit GG). Of those 65 witnesses, 14 were deceased, the whereabouts of 23 were unknown, 12 were over the age of 70, and 11 are between the ages of 60 and 70. Mr. Jacques stated, at para 52 of his affidavit, that some of those witnesses are “more instrumental” to SCIC’s defence than others. He then went on to explain in some detail how crop insurance works and, in doing so, identified a number of individuals and the role those individuals played in the events leading up to the action.

Those witnesses would be material to SCIC’s defence and include: Frank Whitely (whereabouts unknown), Al Hanson (deceased), Morley Boyer (deceased), George Trotzuk (deceased), Ralph Mulatz (age 62), Malcom Bains (age 64), Walter Charabin (deceased), Clifford Hanson (deceased), and Ronald Hittel (age 69). In addition, Clifford Mann, who was a director and shareholder of Agri Resource and who dealt with SCIC’s representatives on a number of occasions, is also deceased. Agri Resource filed no evidence to contradict Mr. Jacques’ assertions with respect to the availability or importance of witnesses.

Clearly, based on the evidence as filed, several individuals who had first-hand knowledge of the events leading up to this action can no longer testify and, as a result, SCIC would suffer prejudice. [43] Moreover, while Agri Resource suggests that when a witness died is important to the analysis of prejudice, I do not agree with that assertion. It makes no difference at what point in the proceedings a witness dies.

What is important is whether the death of that witness is prejudicial to the defendant. [44] Finally, it is safe to infer that witnesses’ memories will have faded with the passage of 23 years. [ 60 ] While the Chokanis can rely on some inferred prejudice that would arise from December of 2021 to December 15, 2022, in the context of this application and the proceedings before it, I find that DKM did not contribute to this delay.

From a review of the fiat of November 10, 2022, I find I can infer that based on the fiat which noted the submissions of the Chokanis’ counsel that they have issues with the affidavit material and would be seeking leave to cross-examine DKM’s affidavit providers or making an application to strike were submissions that altered the legal and tactical landscape for DKM.

This change in strategy by the Chokanis would be a reasonable basis for DKM to potentially revise their strategy in the short period of time between the case management conference related to the November 10, 2022 fiat and the deadline ordered by the court. [ 61 ] I also note that the delay here is much less than the 23 years occasioned in Agri Resource or the 11 years noted in Casbohm .

Further, I find 11 months in the context of complex civil proceedings that have been winding their way through the courts since August of 2016 to be not particularly egregious. [ 62 ] Had I considered delay as a separate category, given the importance attached for cross-examination in the

summary judgment context along with the considerations above, I would have found that reasonable diligence was exercised by DKM in these circumstances. Therefore, given the circumstances in this matter, I do not find any conduct by DKM that improperly or unnecessarily delays proceedings or increases their costs. Substantive Merits of the Application [ 63 ] It was noteworthy that the Chokanis did not argue the merits of the application in relation to whether there was contradictory evidence in the material before the court or a legitimate need for clarification of that material.

In DKM’s brief of law, they point to inconsistencies or matters that need clarification with respect to each witness they wish to cross-examine. I agree with those submissions and therefore, using the analysis from the Blue Hill and Ter Keurs decisions, find that DKM’s application should be granted. [ 64 ] However, that does not end the matter.

Cross-Examination on Request of the Chokanis [ 65 ] Counsel for the Chokanis made forceful submissions that, if I were to grant leave to cross-examine the individuals that DKM requested, they should also be entitled to cross-examine Jim Markatos, Jim Zakaruk, Ben Robb, Ryan Holtslag, Kelly Pardoski and Phil Bruch. Based on decisions in Sun Country Regional Health Authority (Sun Country Health Region) v Mamchur , 2016 CarswellSask 865 (WL) and Regional Tire Distributors (Saskatchewan) Inc. v Quality Tire Service Ltd. , 2016 SKQB 411 , they

request that the court order cross-examination of the above affiants without limitations. [ 66 ] I agree that there are contradictions that arise between the affidavit evidence by the individuals requested to be cross-examined by the Chokanis. I also agree that there was notice given to the other parties by the letter dated January 10, 2023 of the Chokanis’s intention to proceed this way. Further, I agree that there is authority for the court ordering this procedure in appropriate cases.

This was noted in the leave application to the Court of Appeal in Mamchur v Sun Country Health Region , 2017 SKCA 6 where the court stated as follows: [17] In his last ground of appeal, Dr. Mamchur also submits that the Chambers judge disregarded the order of Smith J. dated September 2, 2016. The thrust of this argument is that Smith J. ordered that all applications should be filed in a timely fashion prior to the hearing date and the Chambers judge, because Sun Country filed no application, should not have ordered cross-examination of Dr. Mamchur.

As stated above, the Chambers judge appears to have granted the order in the exercise of his inherent jurisdiction as he is entitled to do. There appears to be nothing inconsistent with Smith J.’s order in the Chambers judge allowing cross-examination of Dr. Mamchur.

Accordingly, given the standard of review applicable, this ground of appeal is unlikely to succeed. [ 67 ] Therefore, from my review of the authorities, I find that cross ordering cross examination is a discretionary decision that can be made based on the circumstances in the matter before the court. [ 68 ] In the context of the factual matrix of the history of the proceedings outlined at the beginning of this fiat, I find the fiat of the court of November 10, 2022 eminently reasonable.

I also find that there are no circumstances present that would warrant deviating from the procedure outlined by the court in that fiat. The court was specific that all parties need to serve and file their applications by December 15, 2022.

The court then specifically addresses the concerns with the Chokanis dilatory conduct and categorically states that any steps they need to take must be completed within the deadlines set, failing which those steps will no longer be available to them. [ 69 ] In terms of exercising my discretion in this matter, I turn to the considerations outlined previously with respect to the issue of timing of service and the two core questions to be answered. [ 70 ] Firstly, I find that the fact that a party opposite may wish to cross-examine some of the Chokanis’ witnesses as a result of the Chokanis late stated plan to potentially cross-examine some of DKM’s and Machibroda’s witnesses could not be a surprise to the Chokanis given the communality of this procedure in the

summary judgment process. [ 71 ] While I granted leave with respect to DKM’s 56 minute delay, I find the situation to be entirely different for the Chokanis. They did not advise they wished to proceed to pursue any cross-examination until approximately 26 days after the deadline imposed by the court. Further, they were the party who on November 4, 2022, 41 days before the deadline, had indicated they were contemplating an application to cross-examine.

In these circumstances, I find the Chokanis made a tactical or strategic choice to only pursue striking portions of the affidavits proffered by DKM and Machibroda around the deadline imposed by the fiat. There is no evidentiary basis to believe that they were on the verge of or attempting to file material to pursue cross-examination in compliance with the November 10, 2022 fiat. [ 72 ] I also note that, despite more than six years elapsing since the issuance of the original statement of claim, the claim has still not proceeded to trial as preliminary matters continue to stall progress.

In considering the foundational rules, the court must be cognizant not to further stall progress. [ 73 ] Given the clear direction of the court, the need for finality so that matters can progress, and the considerations noted above, I find that I will deny any further cross-examination by the Chokanis in this application.

If they wish to make a formal application to seek express leave of the court, it appears that option is still available to them. [ 74 ] Therefore, I order the attendance of Ann-Marie Elma Chokani, Allen Kelly, David Dennis and Russel Renneberg pursuant to Rule 6-13(1) of The Queen’s Bench Rules for the purposes of cross-examination as it relates to the involvement of DKM in all claims, counter-claims, and defences with respect to this entire file. Rule 6-13(2) will apply as required.

Given Chokanis’ counsel’s representation that he will have two weeks at the beginning of April 2023 to attend to these cross-examinations, I order that the cross-examinations be completed by April 30, 2023 at 5:00 p.m. and that all counsel involved make reasonable efforts to ensure that the matter is completed by that date and time. I will make no order with respect to the amount of time needed to be taken for the cross- examination as I will leave it to counsel to be efficient and professional in that regard. [ 75 ] I will order costs of this application be in the cause. J. J.P. MORRALL