STANDING BUFFALO DAKOTA FIRST NATION APPLICANT - v. -, 2023 SKKB 42

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 42 Date: 2023 02 21 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 ___________________________________________________________________________ FIAT MORRALL J. February 21, 2023 ___________________________________________________________________________

ITEM PARAGRAPH Introduction ................................................................................................... 1 The Proceedings ...................................................................................... 2 - 9 The Facts .............................................................................................. 10 - 39 Issues .................................................................................................... 40 - 47 The Law ............................................................................................. 48 - 176 Application to strike....................................................................... 48 - 78 Should the Court amend paragraphs 2, 3 and 4 of the origination application .............................................................. 79-93 Has a full accounting been made............................................... 94 - 106 Has Maurice delivered a true copy of all the invoices issued? .................................................................................. 107 - 117 Solicitor’s lien and quantum of security ................................ 118 - 124 Solicitor’s lien and contingency agreements ......................... 125 - 126 Meaning of the word “outstanding”........................................ 127 - 130 Material prejudice ..................................................................... 130 - 138 Everything is a contingency agreement ................................. 139 - 144 Inequitable application ............................................................. 145 - 149 Privilege ..................................................................................... 150 - 154 Determination of appropriate security ................................... 155 - 169 Quantum of costs ...................................................................... 170 - 176 Supervisory authority ............................................................................... 177 Introduction [ 1 ] There are a multitude of proceedings and complex arguments made in relation to this matter.

On the one side, the applicant, Standing Buffalo Dakota First Nation [SBDFN], wants their files back as they terminated their lawyer’s retainer. On the other side, the respondent, Ron S. Maurice Professional Corporation operating as Maurice Law Barristers and Solicitors [Maurice], wants to be paid for their work. These are their court applications.

The Proceedings [ 2 ] SBDFN filed an originating application on October 19, 2022 returnable November 3, 2022 against Maurice requesting the following orders or remedies: 1) An interim order pursuant to s. 30 of The Legal Profession Act, 1990 , SS 1990-91, c L-10.1 [ LPA ] and s. 6(1) (

a) of The Professional Corporations Act , SS 2001, c P-27.1 [ PCA ], and the inherent jurisdiction of the Court declaring that Maurice is incapable of recovering any fee, reward, or disbursement from SBDFN with respect to the time period from October 1, 2019 through October 6, 2022, and that its purported January 30, 2020 contingency fee agreement with SBDFN is thereby null and void; 2) An interim order pursuant to s. 66 of the LPA and the inherent jurisdiction of this Court that on or before November 9, 2022, the respondent shall deliver to SBDFN a true copy of all invoices that it has issued to the applicant since October 1, 2019 including but not limited to invoices #6237, 6238, 6239, 6240, 6241, 6242, and 6378; 3) An interim order pursuant to s. 66 of the LPA and the inherent jurisdiction of this Court that on or before November 18, 2022, Maurice shall deliver to SBDFN all property of SBDFN in the possession, custody or control of Maurice, including but not limited to files, documents, notes, correspondence, emails, electronic files, minute books, minutes, resolutions, written instructions, authorizations, and similar other documents, of any nature whatsoever whether active or inactive, of SBDFN and all its business, operating, and related entities; 4) An interim order that on or before November 18, 2022, Maurice shall deliver to SBDFN a full accounting of all funds that it has

received from or on behalf of the applicant since October 1, 2019; 5) An interim order adjourning this application insofar as it relates to the balance of the relief requested hereunder until at least 45 days after the respondent has complied with the interim orders sought in paragraphs 2-4, with leave to amend the relief sought and grounds for same herein, and to file its evidence in relation to the final orders sought; 6) If Maurice is determined to be incapable of recovering a fee, reward or disbursement from SBDFN, a final order that Maurice return to SBDFN all funds that it has received from or on behalf of SBDFN since October 1, 2019; 7) If Maurice is determined to be capable of recovering a fee, reward or disbursement from SBDFN, a final order pursuant to:

a) Section 64 of the LPA determining that the January 30, 2020, contingency fee agreement of Maurice with SBDFN is unfair and unreasonable; b) Section 67(1) of the LPA and pursuant to the inherent jurisdiction of this Court that the following invoices of Maurice be referred for assessment by the Local Registrar in Regina with the assessment to be conducted on a quantum meruit basis: invoices #7351, 7412, 7413, 7414, 7415, 7416, 7417, and such further invoices as may be requested and allowed by this Court; and 8) Costs on a solicitor and client basis. [ 3 ] On November 3, 2022 the matter was heard with Maurice requesting an adjournment.

In a fiat dated November 4, 2022, the Court granted an unconditional adjournment until November 24, 2022 for a special hearing date, denied SBDFN’s request for an interim production order sought in paragraph 3 of the originating application as a condition of the adjournment, and made a number of orders of which the following are salient here: [20] … (

a) The originating application is adjourned to November 24, 2022 at 10:00 a.m. At that time: (

i) only the requests for interim relief set out in paragraphs 1 to 4 of the originating application will be heard; (ii) the requests for relief in paragraphs 5 to 8 of the originating application will be spoken to for purposes of case management only; … [21] This order is without prejudice to any decision which may be made by the Justice hearing the application on November 24, 2022, including whether some or all of the requests for interim relief are appropriately determined on an interim basis or should be heard and determined only on a final basis together with the rest of the application. [ 4 ] On November 17, 2022, SBDFN served a Notice to Produce upon Maurice requesting production of various documents and a retainer agreement.

This document is appended to the reply interim affidavit of Chief Rodger Redman sworn November 21, 2022. [ 5 ] On November 21, 2022 both parties jointly requested a case management order, albeit for different reasons. [ 6 ] On November 24, 2022, the matter was argued and an informal application to amend was made. I directed that a formal application should be made.

Counsel for SBDFN did not complete his initial arguments and the matter was adjourned to December 21, 2022 for continuation. [ 7 ] On December 6, 2022 a notice of application was filed by SBDFN returnable December 21, 2022 requesting an order pursuant to Rule 3-72 of The Queen’s Bench Rules amending the originating application so as to remove the word “interim” from paragraphs 1 to 4 of the originating application and an order that the costs for the application be in the cause. [ 8 ] On December 7, 2022 a notice of application was filed by Maurice returnable December 21, 2022 requesting the following relief: 1) Pursuant to Rule 7-9, for an order striking paragraph 1 of the originating application of SBDFN; 2) An order for costs of and incidental to the application and Maurice’s response to paragraph 1 of the originating application to date on a solicitor and client basis. [ 9 ] On December 21, 2022, the matter was fully argued and the decision was reserved.

The Facts [ 10 ] Not including affidavits of service, the parties have filed the following sworn material: 1) Interim affidavit of Chief Rodger Redman sworn October 18, 2022 (Volumes 1 and 2); 2) Interim affidavit of Chief Redman filed sworn October 31, 2022; 3) Interim Affidavit of Anna Lomma sworn November 1, 2022; 4) Affidavit of Chief Matthew Peigan sworn November 16, 2022;

5) Affidavit of Melanie Webber sworn November 17, 2022; 6) Reply affidavit of Chief Redman sworn November 21, 2022; 7) Affidavit of Diane Phillips sworn November 22, 2022; 8) Interim affidavit of Anna Lomma filed November 22, 2022; and 9) Affidavit of Chief Redman sworn December 6, 2022 [ 11 ] In addition to these affidavits, SBDFN indicated in their originating application that it wished to rely on the following additional material: 1) Certificate of Allison Williamson issued October 6, 2022 (re: Ron S.

Maurice Professional Corporation, and similar); 2) Certificate of Allison Williamson issued October 6, 2022 (re: Dean M. Rask Law Prof. Corp., and similar); 3) Affidavit of Chief Ananas sworn April 6, 2021 in QBG-RG-00748-2021; and 4) Affidavit of Ron S. Maurice sworn May 4, 2021 in QBG-RG-00748-2021. [ 12 ] I have considered all the above material, as applicable, in coming to my decision. I will briefly reiterate some of the salient facts in order to provide some background to the applications that are presently before the Court.

I note that neither party has applied to cross-examine any of the affiants referred to above. [ 13 ] The applicant, SBDFN, is a First Nation located in Saskatchewan with approximately 1,320 members, approximately 500 of which reside on the First Nation. SBDFN operates a school, medical facility, band office and other essential facilities on the First Nation.

Chief Redman was elected chief of SBDFN on August 3, 2022 after having served as Chief between 2001 until 2019. [ 14 ] A contingency fee retainer agreement [Agreement] was executed between SBDFN and Maurice dated January 30, 2020 with the signatories being Ron S.

Maurice on behalf of Maurice signing in Alberta and Chief Roberta Soo-Oyewaste, Councillor Kimberly Goodfeather, Councillor Sandra Redman, Councillor Dwayne Redman, Councillor Minnie Ryder, Councillor Brendan Wajunta and Councillor Beckie Yuzicappi signing in Saskatchewan on behalf of SBDFN. [ 15 ] The agreement was seven pages long and contains clauses relating to Maurice assisting SBDFN in advancing certain specific claims (clause 3), options in terms of retaining Maurice other than by contingency fee agreement including an acknowledgment of s. 64(3) of the LPA (clause 5), an understanding that Maurice is entitled to be paid for their professional services with remuneration being tied to an hourly billing rate (clause 6), a calculation of the payable contingency fee in relation to the specific claims (clause 9), conditions with respect to fees and disbursements should SBDFN terminate the Agreement (clause 20) and Maurice’s assertion of a solicitor’s lien should termination occur (clause 23) amongst other clauses. [ 16 ] Ron S.

Maurice is a lawyer licensed to practice law in Saskatchewan having been admitted to the Saskatchewan bar on September 6, 1991.

His firm name is Maurice Law with an address in Alberta. [ 17 ] According to Maurice’s trust ledger dated September 20, 2022, between June 9, 2020 and February 25, 2022, Maurice received a total of $420,053.63 in trust from SBDFN and Maurice applied that money to various outstanding accounts. [ 18 ] Although there is no affidavit evidence as to the specific date of termination of this relationship, there is a Band Council Resolution dated September 9, 2022 made by the SBDFN demanding that “Maurice Law and Ron S.

Maurice” suspend all services to SBDFN, transfer all their files back, return all trust funds, and provide a full accounting including a copy of all retainer agreements, contracts, written instructions and invoices or bills to SBDFN. This document was delivered to Maurice on September 13, 2022. [ 19 ] Prior to September 13, 2022, the total amount of invoices issued by Maurice to SBDFN was $382,151.57. [ 20 ] On September 20, 2022, Maurice issued SBDFN six invoices totalling $599,982.69.

However, some of the invoices had been paid by money already in trust. [ 21 ] According to the invoices issued, SBDFN owes Maurice $104,594.88 for fees and $68,347.81 for disbursements on the contingency files. These are files referred to in the Agreement as “Claims” or “Claim”. SBDFN would also owe Maurice certain monetary amounts depending on the success of the settlement of the continency matters according to the Agreement.

SBDFN further owes Maurice $405,894.36 for fees and $12,997.36 for disbursements on the non-contingency fee files. [ 22 ] There have been various emails exchanged between the parties demanding certain things and responding to various matters before and after the commencement of the originating notice. [ 23 ] Chief Redman deposed in paragraphs 3, 4 and 5 along with Exhibit “17” of his interim affidavit sworn October 18, 2022 and paragraph 18 of his reply interim affidavit sworn November 21, 2022 along with the contextual paragraphs preceding that SBDFN will suffer serious prejudice should they not receive access to the files being withheld by Maurice. [ 24 ] The affidavit of Chief Matthew Peigan sworn November 16, 2022 provides additional information with respect to a specific contingency claim referred to in clause 3 of the Agreement that Maurice was in the midst of advancing for several First Nations.

It was referred to as the “joint use and benefit of Last Mountain IR 80A Fishing Station” claim [IR 80A]. Chief Peigan is the chief of the Pasqua First Nation who are one of the parties to this action. This complex claim against the Canadian government was

commenced in 2008 without any involvement from SBDFN. SBDFN was eventually added on July 30, 2019 and in 2020 entered into a memorandum of understanding [MOU] with nine other First Nations.

The MOU memorialized the parties agreement to put their judicial review applications in abeyance and seek a negotiated settlement with Canada as well as setting out allocations of compensation between the parties in the event of a successful settlement. [ 25 ] Chief Peigan further indicates that eight of the claimants including SBDFN retained Maurice to act as a negotiator and legal counsel furthering their collective interests, and materials have been produced for the purposes of settlement negotiations with Canada.

He believes that there is a potential to imperil the interests of the other parties should SBDFN withdraw from the MOU as a result of having new legal counsel who may wish to pursue a different legal path. (While this is opinion evidence, I include it solely for narrative purposes related to better understanding Chief Peigan’s assertions in paragraph 26.) [ 26 ] Finally, Chief Peigan avers that he does not consent to Maurice disclosing any of the file materials produced for the benefit of the other parties for the purposes of negotiations with Canada to SBDFN or their legal counsel.

He wishes to assert any available privilege or protection from disclosure over the documents until they are able to obtain assurances that the interests of SBDFN continue to align with those of the other claimants. [ 27 ] The affidavit of Ms.

Webber sworn November 17, 2022 provides some background information on the files from Maurice that SBDFN wishes to retrieve along with invoices and the accounting materials from those files based on her knowledge from acting on most of SBDFN’s files and subsequently reviewing the file materials. [ 28 ] Firstly, she swears that all invoices issued to SBDFN relating to work done by Maurice since October 1, 2019 have been sent in compliance with paragraph 2 of the originating application. [ 29 ] Secondly, she swears that a trust accounting ledger that indicates all amounts received by Maurice from or on behalf of SBDFN and the disposition of such funds since October 1, 2019 has been sent in compliance with paragraph 4 of the originating application. [ 30 ] Thirdly, she notes that there are six main files opened by Maurice related to SBDFN pursuant to the Agreement as follows: 1) General File 2) Comprehensive Claim - Land Entitlement Claim 3) IR 80A Claim 4) Comprehensive Claim – RRISD Table 5) Agricultural Benefits 6) Comprehensive Claim – Treaty Annuities. [ 31 ] She notes that there are 19 distinct files under the “General File” heading.

Maurice was instructed to act on behalf of SBDFN on these 19 files and all the time and disbursements were specifically billed to the General File.

Further, in relation to a file relating to an ongoing employment dispute involving SBDFN that was opened under the General File, they are prepared to immediately transfer those files to the applicant’s counsel so as to avoid any potential prejudice to SBDFN. [ 32 ] Fourthly, she reviews the contents of the six main files and provides a general description of the various material contained therein. [ 33 ] Fifthly, in relation to the IR 80A claim, she provides specific details in relation to this claim that alleges that the Crown is in breach of its fiduciary responsibility to implement land surrenders that were in the best interests of the various claimant First Nations.

She then provides a detailed overview of the Government of Canada’s specific claim policy and notes that the government’s general policy is to refuse to negotiate a specific claim while it is proceeding before the courts or the specific claims tribunal. In other words, to proceed with negotiations, the parties must agree to stay proceedings. [ 34 ] Additionally, she provides a chronological history of the IR 80A claim and notes that SBDFN retained Maurice on January 30, 2020. Shortly after, Ms.

Webber provided a briefing note regarding a potential conflict of interest between Little Black Bear First Nation and SBDFN as a result of retaining Maurice. On February 21, 2020, SBDFN passed a band council resolution acknowledging the potential conflict of interest and providing instructions to Maurice. On November 25, 2020, Canada sent letters to the claimants (including SBDFN) offering to negotiate the IR 80A claim so long as the court proceedings were stayed. All agreed. The matters were then initially stayed until November 25, 2022.

There has been no settlement proposal on any of the remaining claimants that continue to employ Maurice with respect to this claim. [ 35 ] Finally, Ms.

Webber states that Maurice has asserted a solicitor’s lien on all SBDFN files and property which it continues to hold pending payment of its fees and disbursements pursuant to the Agreement. [ 36 ] Chief Redman indicates that, although the SBDFN is unable to divert funding to post security for the return of its files, it has been able to secure $100,000 for immediate deposit as security. [ 37 ] Chief Redman also swears that they have commenced and progressed the originating application and the amendments thereto exclusively in good faith. [ 38 ] I have reviewed the affidavit of Chief Edwin Ananas with attachments (494 pages) sworn April 6, 2021 and the

affidavit of Ron Maurice with attachments (2,232 pages) sworn May 4, 2021. Both affidavits relate to a solicitor’s lien issue in a separate piece of litigation involving the Beardy’s and Okemasis’ First Nation and the respondent in this matter.

For the purposes of this proceeding, I do not find it necessary to refer to these documents in detail as they do not form a significant basis for any argument relating to the issues before the Court in this specific proceeding. [ 39 ] I have also been advised by counsel for SBDFN that on January 20, 2023 the Federal Court of Appeal has ordered that the application related to the IR 80A file will be held in abeyance for a further 90 days.

Issues [ 40 ] Despite the breadth of the affidavit evidence and legal argument that has preceded this decision, it is important to note that this matter is winding its way through the first stage in a two-stage process pursuant to Practice Directive #9. It may be that the parties may have to avail themselves of Rule 3-53 of The Queen’s Bench Rules given the need for discovery and the contentious nature of some of the proceedings.

However, as noted in paragraph 21 of Kassian v Dynamic Glass & Door Ltd. , 2017 SKQB 22 , the format of the hearing of an originating application and whether or not other procedures should apply are issues to be decided by the hearing judge, not the case management judge. [ 41 ] This matter is not yet at the case management stage nor are we finished the first stage of the process. As stated in Chernick v Chernick , 2020 SKQB 168 : 18 The chambers judge at the first step will not order the

summary judgment application to be scheduled for hearing unless it is ready to be heard. This requires a qualitative evaluation of the materials supporting the application. To be done properly, all materials should be filed before the second step hearing is scheduled. [ 42 ] At the heart of this application is a claim by SBDFN that the Agreement with Maurice is unfair and that their invoices should be taxed or assessed.

However, this claim is made somewhat blindly as neither SBDFN nor their new legal counsel have all the files and are therefore not in a position to properly assess them, not having fully paid the invoices rendered by Maurice who are asserting a retaining solicitor’s lien on their files.

Pursuant to s. 66(5) of the LPA , it is incumbent on the Court to devise a fair process having regard to the evidence to ensure a proper determination can take place without jeopardizing Maurice’s right to be paid for their work and while also respecting the right of SBDFN to properly assess Maurice’s bill to determine whether it is indeed fair and reasonable. [ 43 ] However, there are other issues in this matter. [ 44 ] The Court must also examine the legitimacy of paragraph 1 of SBDFN’s originating application where SBDFN alleges that the Agreement between Maurice and SBDFN was null and void as a result of certain statutory

interpretations. There must be a determination of this issue before the Court can proceed to examine the other claims.

The existence of a contractual agreement between the parties has a large impact on the nature of the claims in paragraphs 6 and 7 of SBDFN’s originating application as well as the appropriate terms and conditions that should be in place in order for Maurice to return the files sought to SBDFN pursuant to s. 66(5) of the LPA . [ 45 ] Concurrent with this determination is Maurice’s application to strike paragraph 1 of SBDFN’s originating application pursuant to Rule 7-9, and SBDFN’s application to amend paragraphs 1-4 by removing the word “interim” and replacing it with “final” pursuant to Rules 3-72 and 1-3 of The Queen’s Bench Rules . [ 46 ] I also note that there was argument in SBDFN’s brief of law filed November 21, 2022 that certain portions of the affidavits of Ms.

Webber and Chief Peigan contained inadmissible opinion evidence, although there was no formal application made by SBDFN to strike those portions of the affidavits.

In coming to my conclusions on the evidence provided, I will ignore any portions in all the various affidavits filed in this matter that contain material that contravene The Queen’s Bench Rules . [ 47 ] Therefore, in consideration of Practice Directive #9, Justice Kilback’s fiat of November 4, 2022 and in order to facilitate the orderly consideration of the parties’ various applications and submissions pursuant to s. 29 of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , and the foundational Rules of Court, I frame the issues in the following order: 1) Should the Court strike paragraph 1 of SBDFN’s originating application pursuant to Rule 7-9? 2) Should the Court amend paragraphs 1 to 4 of SBDFN’s originating application dated October 19, 2022 and replace the word “interim” with “final”? 3) If the Court does not strike paragraph 1 of SBDFN’s originating application, can a final order be made with respect to the legality of paragraph 1 pursuant to Rules 7-2 and 7-5 of The Queen’s Bench Rules ? 4) Has a full accounting of the monies advanced to Maurice been made and, if not, what further steps, if any, should be ordered? 5) Has Maurice delivered to SBDFN a true copy of all the invoices issued to SBDFN? 6) Pursuant to s. 66(5) of the LPA , what is the appropriate quantum of security, if any, that should be paid into court in order for the files of SBDFN presently held with Maurice pursuant to a solicitor’s lien to be transferred back to SBDFN? 7) What costs should be ordered for these applications, if any? 8) Should the Court retain some supervisory authority in order to ensure and monitor compliance with any orders made?

The Law

Application to Strike [48] Rule 7-9 of The Queen’s Bench Rules states as follows: Striking out a pleading or other document, etc. in certain circumstances 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of thefollowing: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

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 of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a). [49] In their notice of application dated December 7, 2022, Maurice applies to strike paragraph 1 of SBDFN’soriginating application in its entirety pursuant to Rule 7-9(2)(a), 7-9(2)(

b) and 7-9(2)(e). [50] With respect to an application to strike under Rule 7-9(2)(a), the Saskatchewan Court of Appeal in Harsch vSaskatchewan Government Insurance, 2021 SKCA 159, [2022] 2 WWR 675, outlined the considerations a Court must take into accountas follows: 17 The legal principles that govern applications to strike pleadings on the basis that they fail to disclose a reasonable cause of actionare well-known. In Merchant, Ryan-Froslie J.A. summarized them in this way: [18] Chief Justice McLachlin, writing for the Supreme Court of Canada, in R v Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3SCR 45 set out the principles governing such applications: (

a) it is incumbent on a plaintiff to clearly plead the facts upon which it relies in making its claim (para 22); (

b) such applications proceed on the basis that the facts pled are true, "unless they are manifestly incapable of being proven" (paras 22and 23); (

c) a claim will only be struck if it is plain and obvious it discloses no reasonable cause of action, that is, it has no reasonable prospect ofsuccess (para 17); and (d) "[t]he law is not static and unchanging", thus, the approach taken in applications to strike "must be generous and err on the side ofpermitting a novel but arguable claim to proceed" (para 21).

See also Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA) at para 16 [Sagon]; and Filson vCanada (Attorney General), 2015 SKCA 80 at para 19, 388 DLR (4th) 66 [Filson]. [19] In deciding an application to strike a claim on the basis it discloses no reasonable cause of action, a judge is limited to consideringonly the statement of claim, any document referred to therein, and any response to a request for particulars (Sagon at para 16; Filson atpara 20).

A judge is not permitted to consider affidavit or other extraneous evidence. 18 The requirement to accept the pleaded facts as true when considering an application to strike means that the plaintiff's claim is to beevaluated in its best light. The task for a reviewing judge in an application under Rule 7-9(2)(

a) is to determine, by considering the wholeof the statement of claim, whether sufficient facts have been pleaded to establish the essential legal elements of a cause of action(Harpold [2020 SKCA 98] at para 26; Reisinger [2017 SKCA 11] at para 20). 19 It is also important to bear in mind two other things. First, in the context of an application under Rule 7-9(2)(a), the question iswhether the statement of claim pleads sufficient facts to establish a cause of action known at law; the plaintiff does not have to pleadfacts to negate defences the defendant may have to that cause of action.

Second, the refusal of a court to strike a claim does not mean thata plaintiff will succeed at trial. It simply means that the claim may proceed to trial, where the plaintiff will have to prove the claim in theusual way (Taheri [2021 SKCA 9] at para 22). [51] With respect to an application to strike under Rule 7-9(2)(

b) and 7-9(2)(e), the decision of Siemens v Baker,2019 SKQB 99, outlined the considerations a Court must take into account as follows:

22 Sagon v Royal Bank (1992), (SK CA), 105 Sask R 133 (Sask CA) is the seminal case relating to striking apleading. It is especially relevant for present purposes because it addressed an application alleging a statement of claim was deficient, inpart, because it was scandalous, frivolous, vexatious, and an abuse of process. Respecting arguments that the pleading ran afoul of whatare now Rules 7-9(2)(

b) and 7-9(2)(e), Sherstobitoff J.A. said this: [18] Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirelydifferent footing [than the ground of disclosing no reasonable cause of action]. Instead of considering merely the adequacy of thepleadings to support a reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiffin bringing it. Evidence other than the pleadings is admissible.

Success on such an application will normally result in dismissal of theaction, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the samefacts. Odgers on Pleadings and Practice, 20th Ed. says at pp. 153-154: "If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an ordermay be made. But it is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases.

Its exercise wouldnot be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could beproved." (footnotes omitted) [19] Finally, a separate mention should be made of the power of the court to prevent abuse of its process, a power which is inherent aswell as conferred under rule 173. Bullen and Leake [Precedents of Pleadings, 12th ed.] defines the power as follows at pp. 148-149: "The term 'abuse of the process of the court' is a term of great significance.

It connotes that the process of the court must be carried outproperly, honestly and in good faith; and it means that the court will not allow its function as a court of law to be misused but will in aproper case, prevent its machinery from being used as a means of vexation or oppression in the process of litigation. It follows that wherean abuse of process has taken place, the intervention of the court by the stay or even dismissal of proceedings, 'although it should not belightly done, yet it may often be required by the very essence of justice to be done'.

"The term 'abuse of process' is often used interchangeably with the terms 'frivolous' or 'vexatious' either separately or more usually inconjunction." (footnotes omitted) 23 Although these terms are often used interchangeably, it is helpful to differentiate among them. A pleading will qualify as"scandalous" if it levels degrading charges or baseless allegations of misconduct or bad faith against an opposite party. See: Paulsen vSaskatchewan (Ministry of Environment), 2013 SKQB 119 (Sask QB) at para 45, (2013), 418 Sask R 96 (Sask QB) [Paulsen] and theauthorities cited there.

Courts in British Columbia, for example, have described a scandalous pleading as "one that is so irrelevant that itwill involve the parties in useless expense and prejudice the [pursuit] of the action by involving them in a dispute apart from the issues".See: Turpel-Lafond v British Columbia, 2019 BCSC 51 (BC SC) at para 23, (2019), 429 DLR (4th) 131 (BC SC) [Turpel-Lafond]quoting from Woolsey v Dawson Creek (City), 2011 BCSC 751 (BC SC [In Chambers]) at para 28. 24 A pleading will qualify as "vexatious" if it was commenced for an ulterior motive (other than to enforce a true legal claim) ormaliciously for the purposes of delay or simply to annoy the defendants.

See: Paulsen, at para 46. Put another way, it is vexatious if itdoes not assist in establishing a plaintiff's cause of action or fails to advance a claim known in law. See: Turpel-Lafond, at para 23. 25 A pleading will qualify as "frivolous" if it is plain or obvious or beyond reasonable doubt the claim it advances is groundless andcannot succeed.

See: Hunt v T & N plc, (SCC), [1990] 2 SCR 959 (SCC) at 980; Paulsen at para 47; and WayneroyHoldings Ltd. v Sideen, 2002 BCSC 1510 (BC SC) at para 17. 26 Finally, the concept of a pleading qualifying as an abuse of process is somewhat more expansive than the other categoriesidentified above. In Bear v Merck Frosst Canada & Co., 2011 SKCA 152, 345 DLR (4th) 152 (Sask CA), for example, the Court ofAppeal described it at para. 36 as "a flexible concept not restricted by the requirements of issue estoppel" reflecting "the inherent powerof a judge to prevent an abuse of his or her court's authority".

Writing for the court, Richards J.A. (as he then was) elaborated at para. 38as follows: [38] The need to maintain the integrity of the adjudicative process sits at the heart of the concept of abuse of process. The Supreme Courtof Canada explained this point as follows in Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77: [51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of theadjudicative process. Three preliminary observations are useful in that respect.

First, there can be no assumption that relitigation willyield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, therelitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly anadditional hardship for some witnesses.

Finally, if the result in the subsequent proceeding is different from the conclusion reached in thefirst on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, therebydiminishing its authority, its credibility and its aim of finality.

See also: Cameco Corp. v Insurance Co. of State of Pennsylvania, 2010 SKCA 95, [2010] 10 WWR 385 per Cameron J.A. at paras. 47-50. 27 More recently, the Court of Appeal explained in Canada (Attorney General) v Merchant Law Group LLP, 2017 SKCA 62, [2017]10 WWR 664 (Sask CA) [Merchant Law Group (SKCA)] that there "is no set test for determining whether something amounts to anabuse of process". Rather, such a determination is discretionary. See: Merchant Law Group (SKCA) at para 100. 28 Finally, any applicant asserting that a statement of claim runs afoul of Rules 7-9(2)(

b) or (

e) bears the onus to establish that "thealleged cause of action is such that no reasonable person could treat it as bona fide and contend that [the plaintiff] was entitled toapproach the court with such a complaint". See, for example: Kichula v Farm Credit Corp. (1991), (SK KB), 95 SaskR 245 (Sask QB) at para 18; and Rubbert v Boxrud, 2014 SKQB 221 (Sask QB) at para 38, (2014), 450 Sask R 147.

[ 52 ] Of note, if a pleading is any of “scandalous, frivolous or vexatious”, it is an abuse of process of the Court and may be struck out. (See Yashcheshen v Janssen Inc ., 2022 SKCA 140 at para 23 .) [ 53 ] It is within this legal framework that I must analyze SBDFN’s argument pled in paragraphs 1, 10, 11, 12 and 13 of their originating application.

In order to ensure that the applicant’s claim is viewed in its best light and applying the principles outlined in Thirsk v Saskatchewan (Public Guardian and Trustee) , 2017 SKQB 66 at para 11 , I will assume that the word “final” has replaced the word “interim” in para. 1 so that no argument will be considered related to the lack of availability of interim declaratory relief. [ 54 ] Before delving into the argument on this issue, I will outline the statutes in question to provide appropriate context. [ 55 ]

Section 30 of the LPA states as follows: Authority to practise law 30

(1) Subject to

section 31, no persons other than members who hold a licence shall: (

a) practise law in Saskatchewan; or (

b) hold themselves out as, or represent themselves to be, persons who may practise law in Saskatchewan.

(2) Subject to

section 31, a person, other than a member who holds a licence, who commences, prosecutes or defends an action or proceeding in a court of civil or criminal jurisdiction or acts as counsel or a lawyer in an action or proceeding is: (

a) incapable of recovering any fee, reward or disbursement on that account; and (

b) deemed to be guilty of a contempt of the court in which the proceeding has been commenced, carried on, defended or prosecuted, and may be proceeded against for contempt before the Court of Appeal or a judge of the court sitting in chambers.

(3) Nothing in this

section affects the ability of a person or entity to provide members of the public with information of a general nature about the law and legal procedures or any other legal information as defined in the rules. [ 56 ]

Section 2 - 29 of The Legislation Act , SS 2019, c L-10.2 , states as follows: 2-29 … “ person ” includes a corporation and the heirs, executors, administrators or other legal representatives of a person; … [ 57 ] Section 4(1) of the PCA states as follows: Incorporation 4

(1) One or more members of an association may incorporate a corporation pursuant to The Business Corporations Act for the purpose of carrying on, in the name of the corporation, the business of providing professional services that may lawfully be performed by members of the association. … [ 58 ] Section 6(1) of the PCA state as follows: Restrictions on practising in name of corporation 6

(1) No person shall carry on, purport to carry on or advertise the carrying on of the business of providing professional services that may lawfully be performed by members of an association by, through or in the name of a professional corporation unless: (

a) the professional corporation is registered and holds a valid permit; (

b) subject to subsection (2), all of the issued voting shares of the professional corporation are legally and beneficially owned by one or more members of the association; (

c) subject to subsection (2), all of the issued non-voting shares of the professional corporation are legally and beneficially owned by: (

i) members of the association; (ii) spouses, children or parents of members of the association who own voting shares; (iii) a corporation incorporated pursuant to The Business Corporations Act , all of the shares of which are owned by individuals mentioned in subclause (

i) or (ii); or (iv) a trust, all of the beneficiaries of which are individuals mentioned in subclause (

i) or (ii); (

d) all of the directors of the professional corporation are members of the association; and (

e) all persons who carry on the business of providing professional services that may lawfully be performed by members of the association by, through or in the name of the professional corporation are members of the association.

[59] Essentially, SBDFN argues that s. 30 of the LPA operates as a complete bar to a corporation practicing law inSaskatchewan as they are “persons” who are not members that can hold license under ss. 30(1) and 30(2) of the LPA.

Therefore, Mauriceis incapable of recovering any fee or disbursement and the Agreement between Maurice and SBDFN is null and void given that Maurice,as an Alberta corporation, is not a member of the Law Society of Saskatchewan [LSS] with a permit to practice in Saskatchewan.Further, given that Maurice is not duly registered to practice law in Saskatchewan, it is not subject to regulation by the LSS and thereforecannot be issued a permit to practice law in Saskatchewan.

However, the argument provides an exception for Saskatchewan-based legalcorporations as the prohibition barring professional corporations from practicing law does not apply if the corporation holds a “permit”under s. 6(1)(

a) of the PCA. They also find support for this conclusion from selections of Hansard in 2001 addressing the enactment ofthe PCA. [60] Maurice responds by submitting that s. 30(1) and s. 30(2) of the LPA plainly apply only to individuals and notentities. Further, the

section has nothing to do with law firm “permits” which has a different meaning in both the LPA and PCA. Theyfurther argue that it is contrary to common sense that the legislature intended to constitute a sweeping prohibition on the operation ofnon-Saskatchewan law firms structured as professional corporations without making it explicit in some form. [61] There is no reported authority in Canada that has considered the argument and statutory

interpretation advancedby SBDFN. However, given that the law is not “static and unchanging” and I must take a generous approach in applications to strike anderr on the side of permitting a novel but arguable claim to proceed, I will fully canvass the potential validity of such an argument. [62] The Saskatchewan Court of Appeal has had many occasions over the years to determine the legal framework inwhich they must analyze the meaning of various statutes.

In Phillips Legal Professional Corporation v Schenher, 2020 SKCA 87, 43RFL (8th) 281 [Schenher], the Court provided the following concise overview in a matter involving solicitor’s liens: 83 In Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 SCR 27 (SCC), the Supreme Court of Canada endorsed theprinciple expressed by Elmer A. Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1983) at 89, that the proper approachto statutory

interpretation is to read the words of

an Act in their entire context and in their grammatical and ordinary sense, harmoniouslywith the scheme of the Act, the object of the Act and, in this case, the intention of the Legislature.

Section 2-10 of The Legislation Act,SS 2019, c L-10.2, codifies this approach with respect to the

interpretation of Saskatchewan statutes and, in addition, provides insubsection (2) that: "Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberalinterpretation that best ensures the attainment of its objects". 84 The purpose of The Legal Profession Act, 1990 is to authorize the legal profession to regulate itself in the public interest.

Solicitor'sliens have long been considered in the public interest because they give solicitors security for the payment of fees and expenses, thusencouraging them to act for persons with limited financial means: Taylor [(2002), (ON CA), 26 RFL (5th) 208 (OntCA)] at para 29. [63] The decision of Zielke v Law Society of Saskatchewan, 2021 SKCA 156, 467 DLR (4th) 427 [Zielke], is alsovery instructive. In this matter, the Court found that The

Summary Offences Procedure Act, 1990, SS 1990-91, c S-63.1, provides anexception to the prohibition found in s. 30(1) of the LPA that would otherwise exist to prevent Mr. Zielke from acting as an agent, paid orunpaid, in traffic offence matters. The Court engaged in the following detailed analysis of s. 30(1) and 30(2) of the LPA: 22 In accordance with this guidance, I would begin my consideration of s. 30 with its text. In this regard, s. 30(1) of the LPA provides alist of activities in which only "a member who holds a certificate" may engage. The term "member" is defined in s. 2(1)(

h) as meaning a"member of the society admitted pursuant to subsection 4(1)". Section 4(1) provides that the Law Society "may admit lawyers andstudents-at-law to be members". The LPA defines "certificate" to mean "a certificate issued to a member by the society entitling themember to practise law in Saskatchewan" (s. 2(1)(b)). The result of all of this is that only lawyers may engage in the conduct listed in s.30(1) unless some other exception applies. 23 Section 30(1) lists four categories of activities that non-lawyers must not undertake.

Put into the positive, unless some otherexception applies, only a lawyer may: (a) "practise at the bar of any court of civil or criminal jurisdiction in Saskatchewan" (s. 30(1)(a)); (b) "advise, do or perform any work or service for fee or reward, either directly or indirectly, in matters pertaining to the law ofSaskatchewan or of any jurisdiction outside Saskatchewan" (s. 30(1)(b)); (c) "sue out any writ or process" (s. 30(1)(c)); or (d) "commence, carry on or defend any action or proceeding in any court" (s. 30(1)(d)). 24 In the context of the first issue in this appeal, the most important feature from this list is that the charging of a fee or receipt of areward is mentioned only in association with the conduct described in s. 30(1)(b).

In this regard, while the prohibition created by s.30(1)(

b) only applies in circumstances where the non-member received a fee or reward, the prohibitions created by subsections (a), (c)and (

d) are not so limited. Therefore, an examination of the plain text of s. 30(1) leads to the conclusion that a non-lawyer would breachthe statute if they undertook any of the activities described in s. 30(1)(a), (

c) or (d), even if they were not compensated in any way. 25 Of course, the modern approach to statutory

interpretation involves consideration of more than the text of a provision. The SupremeCourt noted in Canada Trustco Mortgage Co. v Canada, 2005 SCC 54 at para 10, [2005] 2 SCR 601, that, "[w]hen the words of aprovision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the otherhand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role". In thiscase, s. 30(1) appears to me to be quite clear.

While a court must strive to read a statute as a "harmonious whole", the Court in CanadaTrustco indicated that the "relative effects of ordinary meaning, context and purpose on the interpretive process may vary" (at para 10).In this case, consideration of other applicable factors reinforces the conclusion that s. 30(1) should be given the meaning that flows froma plain reading of its text.

26 First, the idea that a fee need not be charged for a violation of s. 30(1) (a), (

c) or (

d) to be found is consistent with established legislative norms. The Legislature is presumed to avoid "superfluous or meaningless words" and "[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose" (Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed (Markham: LexisNexis Canada, 2014) at §8.23 [ Sullivan ]). Accordingly, the inclusion of the reference to fee or reward in s. 30(1) (b), and the associated absence of such language in ss. 30(1) (a), 30(1) (

c) and 30(1) (d), must be seen to be deliberate and therefore should be given meaning and effect in the

interpretation of the statute. 27 Notably, the type of activity mentioned in s. 30(1) (

b) is distinct from that referred to in the other provisions. While s. 30(1)(a), (

c) and (

d) are fundamentally concerned with activities directly related to court processes, s. 30(1)(

b) captures work or services related to the law that occur outside of the courts. Justice Barrington-Foote (as he then was) explained this distinction in Law Society of Saskatchewan v Siekawitch , 2016 SKQB 345 : [15]

Section 30 addresses two kinds of activities. First, it deals - in ss. 30(1)(a), (

c) and (d) — with the institution and conduct of legal proceedings in the courts. The provision of the services for these purposes is prohibited regardless of whether they are provided for a fee or reward. Second, it deals in s. 30(1)(

b) with advising, doing or performing any other work in matters pertaining to the law. The provision of those services is prohibited only if they are provided for a fee or reward. 28 In Siekawitch , Barrington-Foote J. concluded that the "fee or reward" aspect of s. 30(1)(

b) distinguishes that provision from s. 30(1) (a), (

c) and (d). He held that advising, doing or performing any work or service in matters pertaining to the law of Saskatchewan or of any jurisdiction outside Saskatchewan is only precluded where a fee or reward is charged. On the other hand, practising at the bar of any court in Saskatchewan, suing out any writ or process, or commencing, carrying on or defending any action or proceeding in court is restricted regardless of whether the agent is remunerated.

As I will explain, it is not necessary for the purposes of this appeal to attempt to give a definitive meaning to what activities might be involved in s.30(1)(b), as Mr. Zielke's conduct falls clearly within the scope of other parts of s. 30(1). 29 An examination of the object of the LPA supports the understanding that activities mentioned in s. 30(1)(a), (

c) and (

d) are prohibited even if the agent receives no compensation. The object of the LPA can be seen from ss. 3.1 and 3.2 of that Act, which provide as follows: Duty of society 3.1 In the exercise of its powers and the discharge of its responsibilities, it is the duty of the society, at all times: (

a) to act in the public interest; (

b) to regulate the profession and to govern the members in accordance with this Act and the rules; and (

c) to protect the public by assuring the integrity, knowledge, skill, proficiency and competence of members. Protection of the public 3.2 In any exercise of the society's powers or discharge of its responsibilities or in any proceeding pursuant to this Act, the protection of the public and ethical and competent practice take priority over the interests of the member. 30 Said more simply, the LPA 's object is to regulate the legal profession in the public interest.

As the Supreme Court of Canada noted in Pharmascience Inc. v Binet , 2006 SCC 48 at para 36 , [2006] 2 SCR 513, "[t]he privilege of professional self-regulation ... places the individuals responsible for enforcing professional discipline under an onerous obligation. The delegation of powers by the state comes with the responsibility for providing adequate protection for the public".

The qualified monopoly created by s. 30 is part of the overall statutory scheme the Legislature has constructed to achieve this broad objective. 31 Before the Chambers judge and before this Court, the Law Society emphasized the need to protect members of the public from representation by non-qualified individuals. It points out that, to be effective, an advocate must have specialized knowledge. Issues of both substantive and procedural law are often intertwined when a representative appears in court.

While the same may be said about at least some of the activities that are described in s. 30(1)(b), in connection with which a fee must be charged for a breach of statute to occur, the interests are different when a non-qualified person appears as counsel in court. An advocate's actions may well impact the parties, witnesses, judges and possibly others. The manner of representation can also affect the efficiency of the proceedings and access to justice in general.

All of this provides a reason for the Legislature to have prohibited non-lawyers from providing representation to others in court proceedings, even in the absence of a fee or reward, unless an exception applies. 32 Other parts of the LPA reinforce this understanding of s. 30(1). The legislation recognizes certain exceptions to the restrictions otherwise imposed by s. 30. For example, s. 31 states that s. 30 does not apply to "a member of a police force appearing for the Crown before a judge of the Provincial Court of Saskatchewan or justice of the peace"(s. 31(c)), or government employees "prosecuting

summary conviction cases" (s. 31(d)). These provisions reflect the fact that the government does not need protection from its employees or from police officers. Similarly, s. 31(

f) allows "a person who is a plaintiff or defendant in proceedings and who commences, prosecutes or defends in the person's own name an action or proceeding in a court of civil or criminal jurisdiction" to represent themself. In essence, through s. 31(f), the Legislature determined not to protect persons from themselves. 33 I do not see s. 30(2) as affecting this conclusion. According to s. 30(2) (a), a person who is not a member of the Law Society who participates in court proceedings may not recover any fee, reward or disbursement. They also may be found in contempt pursuant to s. 30(2) (b).

However, the fact that the Legislature has limited the remedies available to a person who has appeared for another in court, or attached a consequence to a person who may have charged a fee for representing another in court, is not a reason to interpret the prohibitions contained in s. 30(1)(a), (

c) and (

d) as being restricted or limited to circumstances where a fee is charged. Recalling that the activities contemplated by s. 30(1)(a), (

c) and (

d) are restricted regardless of whether a fee is charged, s. 30(2) (

a) simply serves to underline that the recovery of any fees in relation to those activities is precluded. Highlighting the focus on events and processes that

occur in the context of courts, s. 30(2) (

b) explicitly references the possibility of contempt proceedings against those who are not entitled to engage in the activities reserved for members of the Law Society. 34 Considering all of this, the Legislature must be taken to have concluded that, unless some exception applies, non-lawyers are prohibited from undertaking the court-related activities described in s. 30(1) (a), (

c) or (

d) of the LPA , even if a fee is not charged or a reward is not received. I would add only that the rather archaic language with which these prohibitions are expressed appears to be a product of the fact that s. 30(1) finds its historic roots in statutory language that, in this province, can be traced to s. 8(1) of The Legal Profession Act , SS 1907, c 19 and, before that, to s. II of

An Act for consolidating and amending several of the Laws relating to Attornies and Solicitors practising in England and Wale s, 6 & 7 Vict, c73, passed in 1843. [ 64 ] Based on the analogous case law above and the modern statutory

interpretations as they relate to the LPA , I find that the claims outlined by SBDFN in paragraphs 1, 10, 11,12 and 13 of its originating application, even assuming all matters to be proven, are meritless and have absolutely no chance of success for the reasons I will outline below. [ 65 ] Firstly, it is impossible for any corporation or entity, in whatever geographical location they may be incorporated, to be a member who holds a licence as the term is defined in s. 30 of the LPA . In paragraph 22 of the previously quoted Zielke decision the Court of Appeal has specifically validated this

interpretation as it categorically stated: “that only lawyers may engage in conduct listed in s. 30(1)”. Contextually, it is clear that only individual human lawyers may engage in this conduct and that corporate entities do not form some sort of exception. The fact that the term “persons” may include corporations in some instances does not mean that “persons” must include corporations in every iteration.

The contextual approach taken by the Saskatchewan Court of Appeal in Zielke is binding and the final word on the matter. [ 66 ] Counsel for Maurice has also provided this Court with a helpful authority from the United States where the California Court of Appeal was faced with a similar issue. In Daybreak Group, Inc v Three Creeks Ranch , LLC , 162 Cal App 4 th 37 (2008) [ Daybreak ], they stated as follows: Rather than file any responsive pleading, Three Creeks filed a motion to quash service for lack of personal jurisdiction. In doing so, Three Creeks acted through its counsel, R.

Allan Payne, of Doney Crowley Bloomquist Payne Uda P.C., a law firm located in Helena, Montana. Despite the firm’s location, Payne is licensed to practice law in California, and listed his State Bar number on the motion. Daybreak and Rudat opposed the motion to quash on the merits, and apparently filed a separate motion to strike the motion – we say “apparently,” because that motion is not included in our record.

However, the opposition to that motion to strike is in our record, and it reflects that the basis of the motion was an assertion that although Attorney Payne was licensed to practice in California, the law firm of Doney Crowley Bloomquist Payne Uda P.C., was not “admitted to the California bar and therefore cannot appear as counsel of record” in a California state court.

In its opposition to the motion to strike, Three Creeks pointed out there was no provision for a “firm” or other “entity” to be admitted to practice law in California, and asserted that Three Creeks’s “counsel of record” was Payne, a licensed member of the State Bar. The court subsequently granted the motion to quash. On appeal, Daybreak does not dispute the merits of the motion to quash.

Instead, it relies solely on the contention that the court should have rejected the motion because it “was not properly before the court by a legal entity represented by an attorney.” Daybreak acknowledges that Payne, the attorney who appeared on Three Creeks’s behalf in the court below, is a licensed member of the California State Bar, but claims, based upon no authority whatsoever, that “[t]he counsel of record for [Three Creeks] was the law firm ” and that “ [ t ] he firm was making the appearance.” (Italics added.) Based upon that unsupported claim, Daybreak argues the firm, as an entity, was required to comply with the requirements of California Rules of Court, rule 9.40 (rule 9.40), prior to making its court “appearance” on Three Creeks’s behalf.

The argument makes no sense. Rule 9.40(

a) governs eligibility for a pro hac vice designation.

It provides in pertinent part: “A person who is not a member of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice , provided that an active member of the State Bar of California is associated as attorney of record. …” It is tempting to reject Daybreak’s argument on the simple, and obvious, basis that rule 9.40 applies by its terms only to a “person” – a wrinkle not even acknowledged by Daybreak – but that point is muddied somewhat by California Rules of Court, rule 1.6(14), which provides for purposes of the rules of court, “person” includes a corporation or other legal entity.

In theory, then, a “person” subject to the requirements of rule 9.40 could include a law firm. However, it does not.

And the reason it does not is that rule 9.40 limits eligibility for a pro hac vice designation to a person who is “a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States.” To the best of our knowledge, there are no bars within the United States, whether federal, state, territorial or insular possessory, which admit law firms as “members.” More importantly, as pertains to this case, Daybreak has provided no evidence whatsoever that Montana admits law firms as members of its state bar.

Absent some evidence that the law firm of Doney Crowley Bloomquist Payne Uda P.C. was in fact a “member in good standing of the state bar of Montana,” and thus was at least theoretically eligible for a pro hac vice designation under rule 9.40, we could not conclude the trial court erred in refusing to penalize its client for the firms failure to apply for it. The order is affirmed. Three Creeks Ranch is to recover costs on appeal.

[ 67 ] This American case law follows the common sense interpretative approach taken by the Court in Zielke . Individual human members are the persons in question because that makes sense in the context of the statute. Similarly to the Daybreak decision, there is no evidence or basis to interpret that either the Law Societies of Saskatchewan or Alberta admit law firms as “members”. [ 68 ] Secondly, it is logical that only individuals and not corporations, wherever they may be incorporated, could commit any of the prohibited acts in s. 30(2) of the LPA which may disentitle them to a fee or disbursement.

Given the reference to “member of the Law Society” in para. 33 of Zielke who cannot be corporations or other entities, the Saskatchewan Court of Appeal has again made a binding contextual analysis indicating that individual human beings are those who could run afoul with the law society should they commit the prohibited acts referenced therein. While lawyers may be a part of a firm however constituted, the firm is not the individual who is “commenc[ing], prosecut[ing]or defend[ing] an action or proceeding in a court of civil or criminal jurisdiction”.

The clear contextual unambiguous meaning demonstrates corporate entities do not play a

part in the

interpretation of s. 30(2) of the LPA . [ 69 ] Thirdly, it is clear from the legislative history of the LPA and PCA as well as the purpose of these Acts noted in the case law that the intention of the Legislature in drafting s. 30 was to regulate the conduct of individual lawyers and not law firms, however constituted.

Further, the tenor of modern legislation in this area has been generally expansive in welcoming a variety of types of multi-jurisdictional competitive entities. [ 70 ] Since the adoption in 2002 of The Professional Corporations Regulations , 2002 , RRS c P-27.1 Reg 2 , pursuant to the PCA , Saskatchewan incorporated professional corporations that are law firms require a permit from the LSS. It was not until 12 years later in 2014 that the LSS began to explore firm regulation.

In 2014, the LSS proposed Bill 106, The Legal Profession Amendment Act, 2014 , SS 2014, c 15 , (27th Leg, 3rd Sess), which gave the LSS the ability to regulate firms by virtue of the new definition of “member” to include firms “except where the context requires otherwise”.

There was no suggestion in any debate that these “firms” somehow required a “license” in order to collect fees, nor that out-of-province professional corporations were universally barred from providing legal services in Saskatchewan. [ 71 ] Therefore, it would not be logical to assume that, when the PCA was passed, the Legislature would have intended it to operate as an exception to particular law firm structures because there were no such restrictions imposed by the LSS in 2002. [ 72 ] Of more import, there is no mention anywhere of a sweeping prohibition of out-of-province professional entities practicing law in Saskatchewan.

Had the Legislature intended such a monumental shift towards protectionism, surely it would have said something somewhere. The fact that there is no debate or authority for this proposition is another logical reason why the submission of SBDFN advancing this

interpretation is wholly and completely meritless. For example, one notes the National Mobility Agreement 2013 (Federation of Law Societies of Canada – October 2013) that recognized the utility of facilitating a nationwide regulatory regime for the inter-jurisdictional practice of law.

As well, the New West Partnership Trade Agreement which is a 2010 accord between the governments of Saskatchewan, Alberta, Manitoba and British Columbia with one of its principles being to “ELIMINATE barriers that restrict or impair trade, investment or labour mobility” is another agreement that indicates the various governments proclivity towards eliminating trade barriers. [ 73 ] When examining the purposes of the LPA noted by the Court of Appeal in para. 84 of Schenher and paras. 29 and 30 of Zielke , it is illogical to believe that the purpose of regulating in the public interest so as to ensure broad access to justice by all members of society would lead to an

interpretation of its statute that would drastically eliminate competition from law firms from other jurisdictions. It is contrary to common sense to believe the ultimate goal of the legislature or the LSS would be to create a more constrictive monopoly that would increase rates, decrease choice and limit opportunity. Given the importance of ensuring that lawyers act for people of limited means, no common sense purposive

interpretation would support the elimination of any motivation for a broad range of lawyers to practice in Saskatchewan. [ 74 ] In some cases, the law related to a statutory

interpretation of a particular type of clause in an agreement is not settled and a Court may find that, given the potential competing

interpretations, there is an arguable claim to proceed. For example, in Merchant Law Group LLP v Slusar , 2022 SKCA 75 (under appeal to the Supreme Court of Canada), the Court said as follows: 41 The respondents offer competing quotes from some of the same cases and other related ones, which they submit supports an

interpretation of the IRSSA [Indian Residential Schools Settlement Agreement] that is contrary to the

interpretation contended by Merchant Law. The fact that some support for each position can be found in the jurisprudence lends credence to the notion that the outcome in this matter is not plain and obvious. [ 75 ] However, in the case at bar, there are no competing authorities or any competing logical arguments that could be made to justify SBDFN’s position.

Given that there is nothing in the material filed that would lead to the conclusion that Maurice’s Agreement with SBDFN was illegal, I find the Agreement is not null and void and can be relied upon in this proceeding. [ 76 ] Therefore, pursuant to Rule 7-9(2)(a), in considering only the originating application of SBDFN in its best light and without considering any extraneous evidence, affidavit or otherwise, I find it is plain and obvious that paragraph 1 of the originating application of SBDFN discloses no reasonable cause of action and there is no arguable claim to proceed for the reasons given above.

While according to the case law this is a heavy legal burden for Maurice to attain, I have found that they have met the standard and paragraph 1 must be struck. [ 77 ] With respect to the application to strike by Maurice pursuant to Rule 7-9(2)(

b) and (e), I note that Maurice bears the onus of establishing valid grounds to strike. While there may exist an argument that SBDFN has an ulterior motive for vitiating the Agreement so as to attempt to extricate themselves from paying for the entirety of Maurice’s work despite the affidavit evidence alleging good faith, I find that the evidence falls short of establishing a basis that the claim is vexatious. Further, given there were no clear allegations of misconduct or bad faith imputed to Maurice by SBDFN, the claim could not be characterized as scandalous either. [ 78 ] However, the test for a “frivolous” claim under this Rule is whether it is plain or obvious or beyond reasonable

doubt the claim advanced is groundless and cannot succeed. Bearing this in mind, I find that for the same reasons given during myconsideration of Rule 7-9(2)(

a) that paragraph 1 is frivolous and must be struck. While I have the ability to consider extraneous evidencein making this determination, I find that all the material filed by the respective parties does not alter my determination of the legalargument related to the statutory

interpretation of paragraph 1 of SBDFN’s originating application. The argument proffered by SBDFN isgroundless with or without the various affidavits and extraneous material filed in this matter. It is without question that SBDFN’sinterpretation of the statute has no basis in law. Should the Court amend paragraphs 2, 3 and 4 of the originating application? [79] Rule 3-72(1) sets out in broad terms the requirements for a party to amend its pleadings as follows: Amending a pleading 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 a 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. [80] The Saskatchewan Court of Appeal in Cupola Investments Inc. v Zakreski, 2021 SKCA 86 [Cupola], hasprovided a detailed analysis of the purpose behind the Rule and the legal framework guiding a determination of whether an amendmentshould be made as follows: B. What principles apply when a court considers whether to authorize an amendment to a statement of claim to add a party? 1.

Key principles applicable to amendment applications 44 Because I have determined that the appropriate approach in this case was to center the analysis in the principles applicable to theamendment of pleadings pursuant to Rule 3-72, it is useful to summarize three such principles that inform that Rule. 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 [The Queen’s Bench Act, 1998, SS 1998, c Q-1.01], and the other Rules Ihave mentioned, that a multiplicity of proceedings is generally to be avoided.

Where a proposed amendment relates to a statement ofclaim, since the issues are in first instance those that are defined by the plaintiff, this means that the analysis of an amendment requestmust be centered on the issues the plaintiff presents for resolution. 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], in which thisCourt upheld the refusal to allow an amendment to name additional defendants so that their discovery evidence could be read in evidenceagainst them at the trial. Justice Richards (as he then was) held that the appeal could "be resolved on the basis that, in all of thecircumstances, the plaintiff had a positive obligation to show why it was necessary to add the respondents as parties and that he failed todischarge that obligation" (at para 20, emphasis added).

He then noted that the "authorities make it clear that a person should not benamed 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 Limitations Act, SS2004, 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 toameliorate that prejudice or to prevent the injustice that would otherwise be occasioned by allowing the amendment. If the prejudice canbe sufficiently 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 he then was) found the general rule to be as stated by Lord Esher in Steward v North Metropolitan Tramways Co (1886), 16QBD 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. Ithink an amendment ought always to be allowed except when the other party cannot be placed in the same position, but an injury wouldbe occasioned to him by the amendment which could not be compensated by costs. ... 52 In addition to costs, another way that prejudice associated with the grant of an amendment can often be ameliorated is through thegrant of an adjournment. 53 The principles I have just reviewed are based on consideration of previous iterations to Rule 3-72.

However, they remain acceptedas being applicable to the exercise of discretion under the modern Rule. See, for example only, Harvey v Western Canada LotteryCorporation, 2015 SKQB 102 at paras 22-24, [2015] 9 WWR 391, per Schwann J. (as she then was), leave to appeal dismissed, 2015SKCA 75. 54 I would not wish this brief review of key concepts to be understood as an expression of every principle that may come to bear in thecontext of a particular amendment application.

Nor do I intend to usurp the authority of the many decisions of this Court and the Court ofQueen's Bench that have both established, and well-summarized, the principles that apply to applications to amend pleadings and appliedthem in a nuanced way to specific cases.

However, consideration of the purpose for the amendment, the propriety of the pleading andpotential prejudice caused by the amendment underpin the exercise of discretion in most amendment decisions, including those thatrelate to an amendment that results in the addition, removal, substitution or correction of the name of a party. [81] In Chilly’s Water and Septic Inc v Saskatchewan, 2018 SKQB 254, the Court provides a brief synopsis of thetests involved as follows: 26 The jurisprudence cited above clearly indicates that while the granting of leave to amend is a discretionary remedy, the practice isto allow amendments where it is necessary to determine the issues between the parties and when it can be done without injustice to theother side.

It is also not necessary to show that the proposed

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