Cowessess First Nation No. 73 Applicant/Respondent (Applicant) v. Phillips Legal Professional Corporation, Mervin Phillips, and, 2018 SKCA 101

Court of Appeal for Saskatchewan Docket: CACV3263 Citation: Cowessess First Nation v Phillips Legal Professional Corporation , 2018 SKCA 101 Date: 2018-12-21 Between: Cowessess First Nation No. 73 Applicant/Respondent (Applicant) And Phillips Legal Professional Corporation, Mervin Phillips, and Nathan Phillips Respondents/Appellants (Respondents) And Saskatchewan Ministry of Justice Intervenor Before: Jackson, Whitmore and Schwann JJ.A. Disposition: Application dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Whitmore The Honourable Madam Justice Schwann On Application From: 2018 SKQB 156 , Regina Application Heard: October 5, 2018 Counsel: T. Joshua Morrison and Al Brabant for the Applicant W. Timothy Stodalka for the Respondents Macrina Badger for the Attorney General (non-party) Jackson J.A. I.

Introduction [ 1 ] This application raises the question of whether an order made pursuant to s. 67(1)(a)(iii) of The Legal Profession Act, 1990 , SS 1990-91, c L-10.1, referring a series of lawyer’s bills for assessment to the local registrar, after the expiry of 30 days after the client’s receipt of the bill, is an interlocutory or final order. If it is an interlocutory order, no appeal lies to this Court unless leave has been granted pursuant to s. 8 of The Court of Appeal Act, 2000 , SS 2000, c C-42.1, or the Court is prepared to grant leave nunc pro tunc.

Resolution of the matter is significant for the parties as the amount of the contested bills exceeds $800,000 and the bills span more than a two-year period. [ 2 ] At one time, Phillips Legal Professional Corporation, Mervin Phillips, and Nathan Phillips [collectively, the Law Firm] were the lawyers acting for the Cowessess First Nation [Cowessess]. After the leadership of Cowessess changed, it applied to have prior accounts with the Law Firm taxed.

The Chambers judge hearing the matter granted the request of Cowessess and referred a number of accounts to the local registrar for taxation pursuant to s. 67(1)(a)(iii) of The Legal Profession Act, 1990 ( Cowessess First Nation v Phillips Legal Professional Corporation , 2018 SKQB 156 [ Chambers Decision ]).

In addition to directing that certain bills be referred for assessment, the Chambers judge ordered the Law Firm to pay solicitor–client costs to Cowessess in the amount of $20,000. [ 3 ] The Law Firm appealed the decision referring the bills for assessment and the solicitor–client costs order to this Court, without obtaining leave to appeal, pursuant to s. 8 of The Court of Appeal Act, 2000 . Cowessess now applies to a panel of the Court for an order quashing the notice of appeal pursuant to Rule 46.1(1)(

a) of The Court of Appeal Rules on the basis that the Chambers Decision is interlocutory in nature and, therefore, leave to appeal was required. In the alternative, Cowessess has asked that the notice of appeal be quashed pursuant to Rule 46.1(1)(

b) and (

d) of The Court of Appeal Rules on the grounds that it is vexatious and an abuse of the process of the Court. [ 4 ] For the reasons that follow, I have concluded that the Chambers Decision is final and, in any event, I would grant leave to appeal nunc pro tunc. I also decline to quash the appeal on the grounds that allege it is vexatious and an abuse of the process of the Court. II. Application to Quash on the Basis that the Order Is Interlocutory 1.

Procedure followed [ 5 ] On May 26, 2016, Cowessess applied by way of an originating notice pursuant to Rule 3-49 of The Queen’s Bench Rules for a series of orders, including an order pursuant to s. 67(1)(a)(iii) of The Legal Profession Act, 1990 . For ease of reference, the salient part of s. 67(1) provides as follows:

Application for taxation 67(1) A bill of fees or disbursements with respect to services performed by a member may be assessed: (

a) on application to the court: (

i) by the person charged with the bill, within 30 days after the day on which the person received the bill; (ii) by the member, if no application is made pursuant to subclause (i); or (iii) by the person charged with the bill, after the expiration of the time set out in subclause (i), if the court is satisfied that it is in theinterests of justice to do so … . (Emphasis added) [6] The Chambers judge referred some 67 bills, totalling approximately $800,000, to the local registrar for assessment. The billswere issued in relation to many different files.

The first is dated September 30, 2013, and the last sometime in the spring of 2016. 2. Final versus interlocutory [7] Much has been written on the question of what constitutes an interlocutory or final order for the purposes of determiningwhether leave to appeal is required. I do not intend to add extensively to what has already been canvassed in the legal texts or in earlierdecisions of this Court.

Indeed, in Saskatchewan Medical Association v Anstead, 2016 SKCA 143 [Anstead], and Agri Resource Mgt.2001 Ltd. v Saskatchewan Crop Insurance Corporation, 2017 SKCA 35, [2017] 8 WWR 215 [Agri Resource] (leave to appeal to theSCC refused, ), the Court has recently and comprehensively reviewed the governing authorities. [8] Agri Resource considered when an application is interlocutory for the purpose of determining whether evidence may beadmitted on information and belief, and Anstead canvassed the Court’s recent jurisprudence on when an order is final or interlocutoryfor appeal purposes.

On that latter point, Ottenbreit J.A., for the Court in Anstead, wrote as follows: [56] It has long been the law in this jurisdiction that orders which do not finally dispose of the “substantive issue” in an action are notfinal but interlocutory: Beaver Lumber Co. Ltd. v Cain, (SK CA), [1924] 3 WWR 332 (Sask CA), per Martin J.A. (ashe then was) at 334.

Conversely, an order is final when, if allowed to stand, it finally disposes of the rights of the parties: AlexanderHamilton Institutes v Chambers (1921), (SK CA), 65 DLR 226 (Sask CA), per Turgeon J.A. (as he then was) at 228. [9] For a general overview of this area of the law see the following: The Honourable Stuart J.

Cameron, Civil Appeals inSaskatchewan: The Court of Appeal Act and Rules Annotated (Regina: Law Society of Saskatchewan Library, 2015) at 42 to 50 [CAAnnotated]; William Stevenson and Jean Coté, Civil Procedure Encyclopedia, vol 4 (Edmonton: Juriliber, 2003) at 76-123 to 76-146[Civil Procedures]; John Sopinka, Mark A. Gelowitz and W. David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed(Toronto: LexisNexis Canada, 2018) at 18–37 [Conduct of an Appeal].

It is sufficient to state that determining whether a particular orderis final or interlocutory can be difficult when there has been no prior decision of an appeal court resolving the status of that particulartype of order. [10] It is common ground that an order refusing to refer a lawyer’s bill for assessment under s. 67(1)(a)(iii) is a final order.

Forexample, this Court has raised no issue regarding its jurisdiction to hear appeals from the Court of Queen’s Bench refusing to refer a billfor assessment: see Williams v Merchant, 2008 SKCA 35; or Cowessess First Nation v Brabant and Company Law Office, 2016 SKCA35, 476 Sask R 171.

Other Canadian authorities have held, expressly, that an order refusing to refer a bill for assessment is a final order:Stabile v 413582 Ontario Ltd. (1981), (ON SC), 128 DLR (3d) 489 (Ont H Ct J)); and Katana v McComb Dockrill,2008 ONCA 224, 237 OAC 220. [11] The order before the Court on this occasion, however, grants the client’s request to refer a lawyer’s bill for taxation and setsthe scope of the local registrar’s review. In such circumstances, no authorities have held, one way or the other, that such an order is afinal or an interlocutory order.

Some authorities could be taken as treating such orders as final, but have not held so conclusively: West vLogie Family Law, 2018 ABCA 255, 72 Alta LR (6th) 52; and Greenslade v Starcom International Optics Corporation (1997), (BC CA), 86 BCAC 66.

Marginal support for the proposition can also be found in Civil Procedures, vol 3 (at 44-42, n 7),where the authors cite Robins v Randell (1977), (ON SC), 17 OR (2d) 242 (SC (Master)),[1] which was affirmativelyconcluded in Randell v Robins (1979), (ON SC), 22 OR (2d) 642 (H Ct J), as an example of when a motion to tax asolicitor–client account was held to be a final motion, but this determination was made on the basis that affidavits on information andbelief were not permitted as the matter was required to be brought by originating motion. [12] With this being the state of the law, it falls to this Court to decide, as a matter of first instance, whether an order granting arequest for assessment pursuant to s. 67(1)(a)(iii) of The Legal Profession Act, 1990, is a final or interlocutory order. 3.

Arguments of Cowessess [13] Cowessess puts forward a number of arguments in support of its contention that the order is interlocutory. Its primaryargument is that the reference to the local registrar under s. 67(1)(a)(iii) of The Legal Profession Act, 1990, is merely a step in the overallprocess: i.e., the reasonableness of the accounts is the real issue that has yet to be determined. According to this argument, the localregistrar ultimately determines whether the fees in question must be paid, and that, then, is the final order.

Relying on Agri Resource(and ultimately on Bozson v Altrincham Urban District Council, [1903] 1 KB 547 at 548), Cowessess asserts that the order does notfinally dispose of the rights of the parties. In that regard, Cowessess urges the Court to reason by analogy from other applications, whichcould be said to serve a “gateway” function to what will be a subsequent proceeding in the Court of Queen’s Bench.

[14] In support of this argument, Cowessess asks the Court to compare an order made pursuant to s. 67(1)(a)(

i) of The LegalProfession Act, 1990, which permits a referral for taxation within 30 days of receiving a bill, with an order made pursuant to s. 67(1)(a)(iii), which permits a referral 30 days or more after the client receives the bill, if the court is satisfied that it is in the interests of justice todo so. Cowessess reasons that, since no one would suggest that an order made pursuant to s. 67(1)(a)(

i) is a final order, an order madepursuant to s. 67(1)(a)(iii) cannot be final either. Cowessess also asks this Court to note that it was entitled to submit statements sworn oninformation and belief pursuant to Rule 13-30(2) of The Queen’s Bench Rules because “an application to refer a lawyer’s bill forassessment is interlocutory” (Chambers Decision at para 9). 4. The Law Firm’s arguments [15] In response to these arguments, the Law Firm asserts that, by applying the test in Anstead, the only result can be that the orderis final.

In addition, counsel for the Law Firm invites this Court to expand the notion of what constitutes a final order or, at least, toexpress the test differently, having regard for a line of jurisprudence beginning with Ball v Donais (1993), (ON CA),64 OAC 85 (CA) [Ball]: [3] The effect of the order of Daudlin J. was to preclude the defendant’s entitlement to raise thereafter, as a defence to this action, theplaintiff’s failure to sue within the limitation period prescribed by the Highway Traffic Act.

While that order did not finally dispose of therights of the parties to the litigation, it did, subject to appeal therefrom, finally dispose of the issue raised by that defence, and therebydeprived the defendant of a substantive right which could be determinative of the entire action. (Emphasis added) In Ball, it was held that an order declaring an action was not statute barred by a limitation period is final and not interlocutory. [16] Since Ball, the Ontario Court of Appeal has made similar pronouncements with respect to other orders that dispose of a singleissue: (

a) Abbott v Collins (2002), (ON CA), 62 OR 3d 99 (CA) – an order refusing to declare that the Courtlacked jurisdiction because the matter was governed by the Union’s collective agreement grievance procedure was held to be a finalorder because “it precludes the defendants hereafter from raising the question of the court’s jurisdiction over the subject matter of theapplication” (at para 6); (

b) M.J. Jones Inc. v Kingsway General Insurance Company (2003), (ON CA), 178 OAC 351 (CA) – anorder dismissing a motion to dismiss or stay an action on the ground that the Superior Court lacks jurisdiction over out-of-provincedefendants or on the ground of forum non conveniens is a final order for the purposes of appeal because it “precludes the defendantshereafter from raising the question of the court’s jurisdiction over the subject matter of the application” (at para 8); or (

c) Hopkins v Kay, 2014 ONCA 514 – the Court held that “the refusal to dismiss or stay the action based on lack of jurisdiction[is] a final order” (at para 8); the “defendant is precluded from continuing to dispute the court’s jurisdiction over the subject matter of theaction. The order therefore is final on the jurisdiction question” (at para 9). [17] The authors of Conduct of an Appeal review this line of authority in some detail (see pages 18 to 33).

It is sufficient to notethat this approach focusses on whether the order in question deprives the applicant of a substantive right that could be determinative ofthe entire action. 5. Analysis [18] In my view, it is not necessary to restate the Court’s definition of what constitutes a final order or to consider whether thisCourt would arrive at the same conclusions as the Ontario Court of Appeal in the above-mentioned cases.

It is sufficient to applyAnstead, and ask this question: Does the Chambers Decision finally dispose of the rights of the parties? [19] Applying this test, I have concluded that the order does dispose of the Law Firm’s right to contest the jurisdiction of the localregistrar to assess the bill of fees for accounts rendered after the expiry of the 30-day period mentioned in s. 67(1)(a)(i).

I reach thisconclusion by considering the nature of the appeal structure, which, for all intents and purposes, renders much of what has been decidedby the Chambers Decision final in nature. [20] Beginning with the statutory structure, s. 69 of The Legal Profession Act, 1990, sets out what the local registrar can consider: Costs 69 Every order for a reference pursuant to clause 67(1)(

a) shall direct, and every reference pursuant to clause 67(1)(

b) shall request, thelocal registrar to: (

a) assess the costs; and (

b) certify the amount that the local registrar may determine to be due to or from each party with respect to the bill and the costs of theassessment.

The local registrar has only the authority conferred by statute and does not have the authority to reconsider the question whether “it is inthe interests of justice” to permit an assessment of fees 30 days or more after the date Cowessess had received the bills in question.Within the parameters of the case law that speaks to a local registrar’s role, the authority of the local registrar is limited to assessing thecosts and certifying the amount that has been determined to be due to or from each party. [21] True, a right of appeal exists from the local registrar’s decision to the Court of Queen’s Bench: “A party to a reference may

appeal the decision of the local registrar to the court” (The Legal Profession Act, 1990, s 72). But, again, that right of appeal is only inrelation to the local registrar’s decision. Importantly, it does not extend to an appeal of the Chambers Decision, and, in particular, thedetermination that “it is in the interests of justice” to extend the limitation period to refer a bill to the local registrar under s. 67(1)(a)(iii). [22] I acknowledge that there is a further right of appeal from the decision made by the Court of Queen’s Bench under s. 72 to theCourt of Appeal, pursuant to s. 7(2)(

a) of The Court of Appeal Act, 2000: “an appeal lies to the court from a decision … of the Court ofQueen’s Bench or a judge of that court …”.

The question is whether this right of appeal permits the Court to consider whether a referralwas properly made under s. 67(1)(a)(iii), referring the matter to the registrar, or, in other words, whether the Chambers Decision will, atsome later point, become appealable if it is interlocutory, and leave is not granted. [23] In direct answer to that question, I know of no authority that would allow the Law Firm to appeal or cross-appeal theChambers Decision made under s. 67(1)(a)(iii) as part of their notice of appeal or cross-appeal from a decision of the Court of Queen’sBench, made pursuant to s. 72. [24] I recognize that s. 9(5) of The Court of Appeal Act, 2000, fixes the time for appealing an incidental order made in Chambers: Appeal periods 9(5) Where a decision is made during or after the hearing of an application in chambers and the decision is only incidental to theapplication and does not dispose of the matter in issue, a notice of appeal from the incidental decision must be served not later than 15days after the date of the judgment on the matter in issue in the application, and a party appealing from the judgment may include in thenotice of appeal of the judgment an appeal from the incidental decision.

While the application of this provision has never been particularly clear, it can be said with some certainty that a determination madeunder s. 67(1)(a)(iii) would not be “incidental” to the local registrar’s decision – it fixes the scope of the local registrar’s jurisdiction.(Also see Rule 12 of The Court of Appeal Rules and pages 53 to 56 of CA Annotated for a discussion of s. 9(5)). [25] Nor could it be considered incidental to the resolution of the originating application made to the Chambers judge. It was thewhole of the dispute that was before him.

It is in the very nature of an “interlocutory” order that it is subsumed by the resolution of themain dispute between the parties.

Here, that is not the case. [26] Every appeal must be brought from the final decision of the litigation in question (Civil Procedures at 76-128 and 76-129).Only in exceptional circumstances does an interlocutory appeal survive the final judgment: Andrews v Canadian Northern Railway, (SK CA), [1918] 2 WWR 331 (Sask CA); Wozny v Kasky (1960), (BC CA), 23 DLR (2d) 626 (BCCA);Sinclair Canada Oil Co. v Great Northern Oil Co. (1967), (SK CA), 66 DLR (2d) 258 (Sask CA); and Kitchen vKitchen (1984), (SK CA), 34 Sask R 295 (CA).

If this Court did classify the Chambers Decision as interlocutory, andif leave were not granted, the decision to refer would effectively be unappealable. [27] In direct response to Cowessess’s arguments, it is not enough to classify an order as interlocutory simply by saying that it is “astep in the process”. Not all final orders bring the dispute to an end.

A review of the decisions mentioned in CA Annotated (at 48) andCivil Procedures (at 76-139 to 76-146) make that plain: see, for example, Saskatoon (Health Board) v Popowich (1999), (SK CA), 177 Sask R 226 (CA), where, in finding an order requiring disclosure of documents to be final, Vancise J.A. wrote, “Inmy opinion, the order the appellant is appealing is, as between the appellant and the respondent, a final order. It is not interlocutory. It isdeterminative of the issue, that is disclosure, as between these parties one of whom is not a party to the action.

The matter is thereforeproperly before this court” (at para 3). [28] Similarly, in Mitchell v Mitchell (1996), (SK CA), 144 Sask R 223 (CA), Bayda C.J.S. (in Chambers)confirmed this Court’s jurisprudence that an order removing a firm of solicitors from a particular litigation file is a final order.

Whilethese two decisions involve what could be considered “non-parties”, Civil Procedures speaks to this: “the fact that there are outstandingissues for other proceedings does not make a final order interlocutory” (at 76-124 to 76-125), and “the mere involvement of the non-partydoes not make an otherwise interlocutory order, final” (at 76-126). [29] Nor does the analogy with s. 67(1)(a)(

i) carry much weight. The issue of whether a s. 67(1)(a)(

i) order is final is not beforeus. Further, no statutory limits affect a Chambers judge’s discretion under s. 67(1)(a)(i). Subclause 67(1)(a)(

i) does not expand thelimitation period for assessing a lawyer’s accounts past 30 days from the client’s receipt of the bill based on the determination of what is“in the interests of justice”. [30] I recognize the similarity between an order under s. 67(1)(a)(iii) and other orders of the Court of Queen’s Bench that grantleave to proceed in that court: for example, see Avco Financial Services Canada Ltd. v Little (Bankrupts), (1990), (SKCA), 85 Sask R 1 (CA) (an order granting a creditor leave to sue a bankrupt creditor in Queen’s Bench under s. 69(1) of the Bankruptcyand Insolvency Act, RSC 1985, c B-3); Newgrade Energy Inc. v Kobota America Corp. (1991), (SK CA), 97 Sask R32 (QB), leave to appeal to SKCA refused, 97 Sask R 32 (an order granting leave to commence an action for damages for tort committedoutside the province); Bank of Nova Scotia v Span West Farms Ltd., 2003 SKCA 35, 232 Sask R 279 (an order by a Queen’s Benchjudge granting leave to appeal to Queen’s Bench from a decision of an arbitrator under The Arbitration Act, 1992, SS 1992, c A-24.1).Such orders have been held in this jurisdiction to be interlocutory: see CA Annotated at 48.

Those orders, however, can be consideredtrue gateway orders to the Court of Queen’s Bench, from which there will be a full right of appeal. In this case, as I have indicated, theright of appeal from the decision of the officer of the court, upon whom the Court of Queen’s Bench confers jurisdiction unders. 67(1)(a)(iii), is limited. [31] In reaching the conclusion that this is a final order, I have not overlooked what the Chambers judge said with respect towhether the parties could submit affidavits on information and belief. That decision is not before us at this time.

Further, as CameronJ.A. stated for the Court in Silcorp Ltd. v KJK Holdings Inc. (1992), (SK CA), 90 DLR (4th) 488 (Sask CA), ordersmay be final for one purpose but interlocutory for another.

[32] Thus, I conclude that the Chambers Decision is final and leave to appeal is not required. I would, however, in any event, grantleave nunc pro tunc. III. Whether Leave Should Be Granted Nunc Pro Tunc [33] The Court’s jurisdiction to grant nunc pro tunc orders is sparingly exercised, so as not to defeat the general purpose of theleave requirement: Grant v Saskatchewan Government Insurance, 2003 SKCA 17 at para 5, 227 Sask R 316. Nonetheless, if I had notfound this Chambers Decision to be final, I would have granted leave nunc pro tunc.

Counsel for the Law Firm made a concerteddecision to comply with this Court’s prior authorities. He was satisfied that the matter was a final one. He thought that if he applied inChambers for leave, he ran the risk of the Court asserting its jurisdiction under Iron v Saskatchewan (Minister of the Environment)(1993), (SK CA), 103 DLR (4th) 585 (Sask CA) (leave to appeal to the SCC denied, [1993] 3 SCR vii), and refusingleave, if it is a final order.

There has been no delay, other than that occasioned by the fact that neither party has acted particularlypromptly with respect to obtaining the issuance of the Chambers Decision.[2] [34] I appreciate that, instead of granting leave nunc pro tunc, I could extend the time to allow the Law Firm to apply in Chambersfor leave; but, in my view, applying the test in Rothmans, Benson and Hedges Inc. v Saskatchewan, 2002 SKCA 119 at para 6, 227 SaskR 121, I have no doubt but that leave would be granted in any event, having regard for the importance of the appeal to the Law Firm, thesheer volume of accounts and the arguability of at least some of the grounds of appeal.

Requiring the matter to be considered by a singlejudge in Chambers of this Court would only increase the cost and length of these proceedings. [35] The fixing of the breadth of the jurisdiction of the local registrar should be settled before embarking upon what may be anarduous task. Counsel advises the Court that the difference between confining the local registrar’s jurisdiction to the 30-day period,mentioned in s. 67(1)(a)(i), and extending it back to 2013, will require many days of work on behalf of the local registrar. The partiesshould know for certain whether that work is required. IV.

Application to Quash on the Basis that the Notice ofAppeal Is an Abuse of Process [36] Cowessess is not seeking to quash the notice of appeal on the grounds that it is devoid of merit, but rather on the grounds thatit is, in its opinion, so lengthy and disorganized that Cowessess would be prejudiced if the appeal proceeds and it is required to respondto it. [37] The notice of appeal raises 53 grounds of appeal, plus 39 sub-grounds, and is over 13 pages in length.

According toCowessess, the notice of appeal leaves the reader with a complete lack of certainty as to what the central issues are. [38] Length and disorganization alone have not, to date, been sufficient to quash an appeal as frivolous and vexatious. Much work,however, will be required to determine all of the issues that are truly at stake in this appeal. Counsel for the Law Firm, who did not draftthe notice of appeal, advises the Court he is not seeking to file an appeal factum of any greater length than 40 pages. Further, he assuresthe Court that all will become clear once the factum is developed.

In declining to quash the appeal, I am relying on this assurance in thefull expectation that this will indeed be the case. The Court’s decision in this regard is not intended, in any way, to constrain a futurepanel of the Court from exercising its discretion to control its own process, including with respect to costs. This aspect of the applicationis dismissed on that basis. V. Conclusion [39] The application is dismissed with costs in the usual way. “Jackson J.A.” Jackson J.A.I concur. “Jackson J.A.”forWhitmore J.A.I concur. “Schwann J.A.” Schwann J.A.