CHRISTOPHER POINTER Plaintiff - v. -, 2023 SKKB 90

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 90 Date: 2023 04 27 Docket: QBG-SA-00058-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: CHRISTOPHER POINTER Plaintiff - and - SASKATCHEWAN GOVERNMENT INSURANCE and CINDY ROMING Defendants Counsel: Jonathan S. Abrametz for the plaintiff Scott R. Spencer and Ryan D. Kitzul for the defendants ___________________________________________________________________________ FIAT CURRIE J.

April 27, 2023 ___________________________________________________________________________ [ 1 ] The defendants, Saskatchewan Government Insurance (“SGI”) and Cindy Roming (now a former employee of SGI), apply for leave to cross-examine the plaintiff, Christopher Pointer, on his affidavit. He filed that affidavit in support of his application for certification of this action as a class action.

Circumstances [ 2 ] The claim in this action relates to the no-fault insurance system that is described in The Automobile Accident Insurance Act , RSS 1978, c A-35 (“ AAIA ”). [ 3 ] As set out in his notice of application for certification, Mr. Pointer proposes that this action be certified on behalf of the following class: (b) … “all persons who were in a motor vehicle accident in the Province of Saskatchewan since January 1, 1995, who applied to SGI for no-fault benefits pursuant to

Part VIII of the AAIA, including their estates, but excluding those [who] made a tort election pursuant to sections 40.2 and 40.3 of the AAIA at the time of their motor vehicle accident, and also excluding those who died of a cause related to the accident”; [ 4 ] Mr. Pointer proposes that the claim asserted in the class action would be as follows: (d) … the class asserts claim against the Defendants of failing in its duty to assess unscheduled permanent impairments, unlawfully.

This includes malfeasance in public office, institutional breach of the duty of utmost good faith in fair dealing, and unlawful concealment [of] institutional decision to frustrate access to unscheduled permanent impairment benefits. … [ 5 ] Mr.

Pointer proposes that the remedy claimed would be as follows: (d) … The class claims as relief against SGI and Roming declaration by the Court as to their unlawful conduct, and damages including, general damages, punitive damages, damages for malfeasance in public office, breach in the utmost duty of good faith, aggravated damages for mental distress, special damages, and costs to indemnify the class; [ 6 ] In his affidavit Mr. Pointer refers to a

schedule of permanent impairments that is identified in the AAIA and in The Personal Injury Benefits Regulations , RRS c A-35, Reg 3 . By law, he says, SGI is required to assess even permanent impairments that do not appear on that schedule. His allegation in this action is that SGI has failed to assess such unscheduled permanent impairments, for him and for others. [ 7 ] As would be expected, in his affidavit Mr. Pointer provides information to which the court will refer in determining whether to certify pursuant to s. 6(1) of The Class Actions Act , SS 2001, c C-12.01 : 6

(1) Subject to subsections (2) and (3), the court shall certify an action as a class action on an application pursuant to

section 4 or 5 if the

court is satisfied that: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class; (

c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affecting individual members; (

d) a class action would be the preferable procedure for the resolution of the common issues; and (

e) there is a person willing to be appointed as a representative plaintiff who: (

i) would fairly and adequately represent the interests of the class; (ii) has produced a plan for the class action that sets out a workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. Authority for cross-examination on an affidavit [ 8 ] In Saskatchewan, a party requires the court’s leave to cross-examine a deponent on the deponent’s affidavit, as described in Rule 6-13 of The Queen’s Bench Rules : 6-13

(1) On any application or petition, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross-examination of the person making the affidavit.

(2) The party applying for any cross-examination pursuant to subrule (1) shall bear the costs of the cross-examination. Whether to order cross-examination [ 9 ] The defendants say that cross-examination on an affidavit is routine and expected in a prospective class action such as this, so that leave should be granted. [ 10 ] Mr. Pointer asserts that leave to cross-examine is not routinely granted.

Rather, he says, leave to cross-examine typically is granted only where there is a contradiction in evidence or where there is a genuine need for clarification and that clarification is solely within the knowledge of the affiant. In contrast, Mr. Pointer observes that the defendants here have filed no affidavits, so that there is no contradiction in evidence. Furthermore, he says that the defendants have identified no contradiction within his affidavit. [ 11 ] In so arguing, Mr.

Pointer relies on the remarks of Justice Popescul (as he then was) in Wallace v Canadian National Railway , 2009 SKQB 178 at para 5 , 338 Sask R 174 , in which Justice Popescul addressed such a circumstance in the context of former Rule 317, which was the predecessor to Rule 6-13: [5 ] Th e law with respect to when a court ought to exercise its discretion in favour of a request to permit cross-examination on a deponent's affidavit is well settled. The general principles and criteria considerations gleaned from the jurisprudence in this jurisdiction may be summarized as follows: 1.

There is no inherent right to cross-examine a deponent on his affidavit. 2. Granting leave to cross-examine on an affidavit is a discretionary remedy. 3. Permission to cross-examine on the affidavit may be granted by the Court pursuant to Rule 317. 4. The party making the request must establish that the cross-examination will assist in resolving the issue before the Court and that it will not result in an injustice. 5. Leave to cross-examine will be sparingly, and not routinely, granted. 6.

Generally, leave to cross-examine ought only be granted where there is contradictory evidence before the Court; however, in the absence of contradictory evidence, the Court may nonetheless grant leave where there is a sincere and legitimate need for clarification of the information deposed to and that information is solely within the knowledge of the affiant. 7. Generally, leave to cross-examine on an affidavit ought not be granted on interim applications. 8. There is no enhanced right of cross-examination under The Class Actions Act , S.S. 2001, c. C-12.01 .

The general principles apply. [ Emphasis added] [ 12 ] Mr. Pointer further cites the remarks of Justice Schwann in Ter Keurs Bros. Inc. v Last Mountain Valley (Rural Municipality) , 2019 SKCA 10 at para 33 , 429 DLR (4th) 269 : [33] Other factors may include the need to test any conflict in the evidence, the need to allow for exploration of specific issues , and the possibility that evidence generated by cross-examination may actually assist parties in deciding whether to even proceed by way of

summary judgment ( Regional Tire at para 12). On the other hand, there may be occasions where the purpose of cross-examination is not self-evidently to facilitate resolution, but to thwart it. Courts must be alert to "the need to discourage conduct that unnecessarily or

improperly delays proceedings or unnecessarily increases their costs" ( Casbohm at para 62; see also: Regional Tire at para 11). Where cross-examination is considered unlikely to assist in resolving the substantive issues, or is little more than a fishing expedition, cross-examination will be denied ( Wells v General Motors of Canada Company , 2018 SKQB 253 ). [ Emphasis added] [ 13 ] In response, the defendants begin by referring to my decision in M.R.L.P. v Canada (Attorney General) , 2018 SKQB 248 at para 21 : [21] As discussed by Justice G.A.

Smith in Hoffman v Monsanto Canada Inc. , 2003 SKQB 564 , 242 Sask R 286 , at paras 10-13 , the party seeking to cross-examine under this Rule must establish that the cross-examination will assist the court in resolving issues, and that the cross-examination will not produce an injustice.

In the context of a certification application, which is the context here, establishing that the cross-examination will assist the court in resolving issues requires establishing that the cross-examination will assist the court in determining whether the criteria for certification under s. 6(1) of The Class Actions Act , SS 2001, c C-12.01 , are met. [Emphasis added] [ 14 ] The defendants say that their cross-examination of Mr. Pointer will augment the information that is placed before the court.

Thus the court will be put in the best, most-informed position possible to analyze the action with reference to the criteria for certification that appear in s. 6(1) of The Class Actions Act . [ 15 ] In this regard the defendants refer to the remarks of Justice Popescul (as he then was) in Thorpe v Honda Canada Inc. , 2010 SKQB 136 , 352 Sask R 89 . He said at paragraphs 11 and 12: [11] Clearly, there is no inherent right to cross-examine an affiant on his affidavit. An application for leave to cross-examine a deponent pursuant to Rule 317(1) of The Queen's Bench Rules , is considered a discretionary remedy.

The established practice in this province is that cross-examination on an affidavit, on interim applications, is not routinely granted and will be allowed in exceptional cases. The general principles exercised in the application of the discretion conferred by Rule 317 in ordinary actions also apply to class action certification applications. Consequently, the fundamental question that must be determined is whether the cross-examination will assist in the ultimate determination of the s. 6 criteria.

Cross-examination going solely to the merits of the plaintiff's claim is not permitted, although overlap is allowed provided that the testimony being elicited is relevant to at least one of the s. 6 criteria. [12] Notwithstanding the above, it is a fair observation that courts in this jurisdiction have been quite generous in the exercise of the courts' discretion in favour of granting such requests, resulting in frequent orders permitting defendants to cross-examine the plaintiff's affiants.

This could be as a result of a recognition that certification, albeit just a procedural step in a process, can have a significant impact on the parties and a willingness to err on the side of too much information, rather than not enough. The words of Smith J. (as she then was) in Monsanto [2003 SKQB 564 , 242 Sask R 286 ] are apt: [15] Certification of an action as a class action has a significant effect on the defendants, for defence of such an action absorbs considerable resources.

They are entitled to defend such an application fully and this right entails the right to explore matters raised within the plaintiffs' affidavits, including matters pertaining to the deponents themselves, for the purpose of clarifying what may be ambiguous, expanding or narrowing the scope of what is said in the affidavit, or exploring matters going to the credibility of the affiant. [ Emphasis added] [ 16 ] The certification determination is based on the criteria that are set out in s. 6(1) of The Class Actions Act .

Reference to those criteria requires an in-depth analysis of the action and of the circumstances relating to it. The depth of that analysis is demonstrated by typically lengthy and detailed court decisions on the issue of certification. This being the case, the certification judge needs as much information about the action as is possible, to put the judge in the best possible position to make the determination. [ 17 ] The Supreme Court has recognized this need for information in making the certification determination.

In Pro-Sys Consultants Ltd. v Microsoft Corporation , 2013 SCC 57 , [2013] 3 SCR 477 , Justice Rothstein said at paragraph 104, referring to a class representative’s onus of establishing “some basis in fact” for each of the certification criteria: [104] In any event, in my respectful opinion, there is limited utility in attempting to define “some basis in fact” in the abstract. Each case must be decided on its own facts.

There must be sufficient facts to satisfy the applications judge that the conditions for certification have been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage by reason of the requirements of s. 4(1) of the CPA [ Class Proceedings Act , RSBC 1996, c 50 ] not having been met. [E mphasis added] [ 18 ] This need for comprehensive evidence on the certification application means that many defendants will not find it difficult in a prospective class action to obtain leave to cross-examine a plaintiff on the plaintiff’s affidavit.

Such a defendant often will be able to establish that the cross-examination will assist in resolving the certification issue and that the cross-examination will not result in an injustice. [ 19 ] Having said that, I confirm that obtaining an order for cross-examination on an affidavit in a prospective class action is not automatic. Such an order was refused, for example, by Justice Popescul in Thorpe v Honda Canada Inc. , at para 14 . [ 20 ] Here, in his affidavit Mr. Pointer has provided information relating to the s. 6(1) criteria in the course of 48 paragraphs.

Nonetheless, it readily is apparent that additional useful information is likely to be elicited through his cross-examination. Specifically, the defendants have identified some topics on which Mr. Pointer can provide additional information in cross-examination. Those topics include: (

a) the losses for which Mr. Pointer says he was not compensated by SGI, and the history of any application to SGI that he made in connection with those losses (relating to whether he has a cause of action); (

b) what Mr. Pointer knows about the circumstances of other prospective class members, including whether any such other members exist (having uncompensated permanent impairments, relating to whether they have a cause of action); (

c) whether there is similarity among the circumstances of the prospective class members (relating to whether there is an

identifiable class with common issues); (

d) the timing of the losses and claims of other prospective class members (relating to limitation periods and whether prospective class members have a cause of action); and (

e) the effect of Mr. Pointer’s injuries on his current condition (relating to his ability to act as representative plaintiff). [ 21 ] Mr. Pointer’s answers on such topics will assist me in making the certification determination. The defendants have established that they should have leave to cross-examine Mr. Pointer on his affidavit, because the cross-examination will assist the court in determining whether to certify the action, and the cross-examination will not result in an injustice. [ 22 ] Therefore, the defendants have leave to cross-examine Mr. Pointer on his affidavit. “G.M. Currie” J. G.M. CURRIE