Chief Ronald Michel, Chief of the Peter Ballantyne Cree Nation, on his own behalf v. on behalf of all other, 2018 SKCA 90

Court of Appeal for Saskatchewan Docket: CACV3312 Citation: Peter Ballantyne Cree Nation v Saskatchewan , 2018 SKCA 90 Date: 2018-11-19 Between: Chief Ronald Michel, Chief of the Peter Ballantyne Cree Nation, on his own behalf and on behalf of all other members of Peter Ballantyne Cree Nation, and Peter Ballantyne Cree Nation Prospective Appellants (Applicants/Plaintiffs) And The Government of Saskatchewan and Saskatchewan Power Corporation Prospective Respondents (Respondents/Defendants) The Attorney General of Canada Prospective Third Party Respondent (Respondent/Third Party) Before: Caldwell J.A. (in Chambers) Disposition: Leave to appeal denied Written reasons by: The Honourable Mr.

Justice Caldwell On Application From: 2018 SKQB 250 , Saskatoon Application Heard: October 24, 2018 Counsel: Thomas R.

Berger, Q.C. and Monique Pongracic-Speier, Q.C. for the Prospective Appellants Mitch McAdam, Q.C. for the Government of Saskatchewan James Ehmann, Q.C. for Saskatchewan Power Corporation No one appearing for the Attorney General of Canada Caldwell J.A. [ 1 ] Chief Ronald Michel and the other prospective appellants [together, PBCN] seek leave to appeal against the September 19, 2018, fiat of the Court of Queen’s Bench ( Peter Ballantyne Cree Nation v Canada (Attorney General) , 2018 SKQB 250 [ QB Fiat ]), which allowed the Government of Saskatchewan [Saskatchewan] and Saskatchewan Power Corporation [SaskPower] to amend their statements of defence. [ 2 ] In brief terms, a Queen’s Bench Chambers judge exercised his discretion under Rule 3-72 of The Queen’s Bench Rules to permit Saskatchewan and SaskPower to amend their pleadings to address an issue as to whether certain land [Southend Land] was, in fact and in law, land reserved for PBCN.

Relatedly, the Chambers judge permitted Saskatchewan to amend its statement of defence to include claims of entitlement to declarations (

i) that the Southend Land is provincial Crown land and (ii) that the order-in-council reserving the Southend Land for PBCN is unconstitutional, as well as a claim of entitlement to an order of possession of the Southend Land. While the QB Fiat also contains permission for Saskatchewan and SaskPower to file third-party claims against the Attorney General of Canada [Canada], that aspect of the decision is not challenged by PBCN or by Canada.

In all respects, the QB Fiat addresses interlocutory matters and, therefore, PBCN has properly sought leave to appeal against it ( The Court of Appeal Act, 2000 , SS 2000, c C-42.1, s 8(1); Kidd v Flad , 2007 SKCA 130 ). [ 3 ] The QB Fiat results from the exercise of judicial discretion under Rule 3-72(1)(c)(

i) of The Queen’s Bench Rules , which allows a party to amend its pleadings after a statement of defence has been filed “with the Court’s prior permission, in any manner and on any terms that the Court considers just.” In broad strokes, under its proposed appeal, PBCN alleges the Chambers judge abused his discretion by committing several errors in principle, by disregarding material matters of fact and by failing to act judicially ( Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119). [ 4 ] At the root of the allegations is PBCN’s assertion that the Chambers judge erred because: (

i) the status of the Southend Land as reserve land is res judicata , (ii) Saskatchewan and SaskPower are otherwise estopped from questioning the status of the Southend Land, and (iii) in that the amendments to the pleadings impugn a constitutional instrument, the amendments are themselves an abuse of process. These arguments were put to and acknowledged by the Chambers judge.

However, in particular terms, PBCN says the Chambers judge failed to come to grips with this Court’s decisions in Peter Ballantyne Cree Nation v Canada (Attorney General) , 2016 SKCA 124 , [2017] 1 WWR 685 [ SKCA No. 1 ], and Peter Ballantyne Cree Nation v Canada (Attorney General) , 2017 SKCA 5 , [2017] 5 WWR 84 [ SKCA No. 2 ], failed to consider or apply the principles of issue estoppel, failed to consider whether there were grounds to permit relitigation of the status of Southend Land, relied on irrelevant considerations and facts drawn from the record, and overlooked or ignored the real prejudice that would befall PBCN if the amendments were allowed. [ 5 ] For the purposes of this application, PBCN’s proposed grounds of appeal fall to be assessed under Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 , 227 Sask R 121 [ Rothmans ], where the discretionary power to grant leave is exercisable on considerations of merit and importance that must weigh decisively in favour of leave being granted. [ 6 ] To be clear, the issue in this application is not whether the Southend Land is, in fact or in law, reserve land or even whether Saskatchewan and SaskPower’s pleadings have any merit.

At this stage, I am not called upon to make any assessment in that regard. Rather, the question before me is simply whether PBCN has shown that the merit and importance of its allegations the Chambers judge erred weigh decisively in favour of granting leave.

[ 7 ] In my assessment, the greatest obstacles to granting leave in this case are the adjudicative framework pertaining to the exercise of the discretionary power under Rule 3-72 and the standard of review applied in appeals against the exercise of judicial discretion. In that regard, Saskatchewan and SaskPower say the proposed appeal is prima facie frivolous or destined to fail in any event. While the adjudicative framework and the standard of review are not automatic bars to leave being granted, I am satisfied that the proposed appeal is founded on very fragile ground. I reach that conclusion because Rule 3-72(1)(c)(

i) describes a broad judicial discretion to permit amendments “in any manner and on any terms that the Court considers just” and, given the procedural history in this matter, PBCN has not persuaded me that the errors alleged go to the result of the Chambers judge’s decision. At the end of the day, an appeal is taken from a decision or against a result, not the reasons for it. [ 8 ] The proposed appeal finds little to shore up its footing under the other aspects of the Rothmans framework.

If leave is granted, the resulting appeal will further delay the already long-delayed proceedings and add unduly to the cost of the matter for all parties. In terms of Rule 3-72, the alleged errors that PBCN seeks to address on appeal are particular to the QB Fiat and to proceedings between the parties. I am not persuaded that the decision under the QB Fiat bears heavily or potentially prejudicially on the course or outcome of the proceedings. As Saskatchewan observed, much of the record or evidence that bears upon the issue framed by the amendments forms an integral part of the existing proceedings.

The QB Fiat does not raise a new, uncertain or unsettled point of law, or a new, controversial or unusual issue of practice. Finally, the QB Fiat does not bar PBCN from raising its res judicata and issue estoppel arguments before the Court of Queen’s Bench. [ 9 ] In short, I am not persuaded the criteria set forth in Rothmans weigh decisively in favour of granting leave. I dismiss PBCN’s application for leave to appeal against the QB Fiat with costs to Saskatchewan and SaskPower. “Caldwell J.A.” Caldwell J.A.