Ammazzini v Anglo American PLC, 2019 SKCA 142

Court of Appeal for Saskatchewan Docket: CACV3391 Citation: Ammazzini v Anglo American PLC , 2019 SKCA 142 Date: 2019-12-24 Between: Daniel Ammazzini and Olson Goldsmiths Inc.

Applicants/Prospective Appellants (Plaintiffs) And Anglo American PLC, De Beers Canada Inc., De Beers S.A., De Beers Centenary A.G., De Beers Canada Holdings Inc. (formerly known as De Beers Canada Corporation), and De Beers UK Limited (formerly known as the Diamond Trading Company Limited) Respondents/Prospective Respondents (Defendants) Before: Caldwell J.A. (in Chambers) Disposition: Application denied On Application From: 2019 SKQB 60 , Regina Application Heard: September 11, 2019 Counsel: E.F.

Anthony Merchant, Q.C., Anthony Tibbs, Iqbal Brar and Akash Cheema for the Prospective Appellants Katherine Kay and Danielle Royal for the Prospective Respondents David Jones and Jonathan Fung for the non-party Kirk Brant Caldwell J.A. I.

Introduction [ 1 ] Daniel Ammazzini and Olson Goldsmiths Inc. [Applicants] seek leave to appeal against the decision of a Court of Queen’s Bench Chambers judge ( Ammazzini v Anglo American PLC , 2019 SKQB 60 [ Ammazzini QB 2019 ]) permanently staying an action [Saskatchewan Action] the Applicants had brought against Anglo American PLC, De Beers Canada Inc., De Beers S.A., De Beers Centenary A.G., De Beers Canada Holdings Inc., and De Beers UK Limited [Respondents]. [ 2 ] Having considered the application for leave and the draft notice of appeal under the framework established in Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 , 227 Sask R 121 [ Rothmans ], I deny leave to appeal against the decision in Ammazzini QB 2019 for the reasons that follow.

II. background [ 3 ] In a nutshell, the Saskatchewan Action is a prospective multi-jurisdictional class action that was commenced in 2011 under The Class Actions Act , SS 2001, c C-12.01 . In the Action, the Applicants allege the Respondents have, since January 1, 1994, conspired to unlawfully impose, maintain and fix the price of natural diamonds.

The Applicants seek damages, special damages and punitive damages as well as disgorgement of unlawfully obtained profit. [ 4 ] In December 2014, the British Columbia Supreme Court certified a class action proceeding [BC Action], which had been commenced in 2007, having common issues aligned with those advanced in the later Saskatchewan Action (see Fairhurst v Anglo American PLC , 2014 BCSC 2270 [ Fairhurst 2014 ]).

In 2016, the Superior Court of Ontario certified a class action [Ontario Action] also having common issues similar to the BC and Saskatchewan Actions (see Brant v De Beers Canada Inc. , 2016 ONSC 7515 [ Brant 2016 ]), which had been commenced in Ontario in 2010. And, in 2018, the Québec Superior Court certified another parallel class action [Québec Action] (see Sanderson v De Beers Canada Inc. , 2018 QCCS 267 [ Sanderson 2018 ]). The BC and Ontario Actions have been prosecuted jointly by a consortium of class action lawyers, with the BC Action taking the lead.

The Saskatchewan Action has been prosecuted by Merchant Law Group LLP, separate and apart from the other Actions. There are also class action proceedings addressing the same subject matter in the United States of America. [ 5 ] On application by the representative plaintiffs in the BC and Ontario Actions, the Chambers judge had earlier granted a conditional stay of the Saskatchewan Action (see Ammazzini v Anglo American PLC , 2016 SKQB 53 [ Ammazzini QB 2016 ], aff’d 2016 SKCA 164 , 405 DLR (4th) 119 [ Ammazzini CA 2016 ]).

In Ammazzini QB 2016 , the Chambers judge directed that the Saskatchewan Action would remain stayed until the certification application in the Ontario Action had been decided, which has now occurred (see Brant 2016 ).

This Court upheld that interim stay in Ammazzini CA 2016 . [ 6 ] In the meantime, however, the parties to the BC, Ontario and Québec Actions reached a so-called national settlement under which the defendants agreed to pay 9.4 million CAD to all Canadian resident purchasers of gem grade diamonds between January 1, 1994, and October 14, 2016, in exchange for, inter alia , the dismissal of those Actions and either the dismissal or the permanent stay of the Saskatchewan Action.

The Courts of BC, Ontario and Québec have approved the national settlement and the defendants have notified Canadians of that settlement in accordance with its terms. Nonetheless, the orders approving the national settlement in those jurisdictions are all contingent on a Court of this province dismissing or permanently staying the Saskatchewan Action.

Accordingly, the Respondents applied before the Chambers judge to have the Saskatchewan Action dismissed or permanently stayed under the multi-certification provisions of ss. 6 and 6.1 of The Class Actions Act , which resulted in the decision in Ammazzini QB 2019 . [ 7 ] Of note, the representative plaintiff in the Ontario Action [Mr. Brant] filed evidence and made submissions before the

Chambers judge as to the preferability of having the claims asserted in the Saskatchewan Action resolved under the multi-jurisdictional Ontario Action.

It is also noteworthy that, even though the Saskatchewan Action has been conditionally stayed since 2016, the Saskatchewan representative plaintiffs applied to the Court of Queen’s Bench in May 2018 to amend their pleadings to seek certification of a national class on behalf of all Canadian resident purchasers of gem grade diamonds who had opted out of the national settlement and those who had acquired gem grade diamonds after the settlement date in the Ontario Action.

The proposed amendments to class membership would also exclude the class members in the Ontario Action—i.e., those persons covered by the national settlement. III. chambers decision A. Introductory matters [ 8 ] In Ammazzini QB 2019 , the Chambers judge laid the groundwork for his decision by recounting the procedural history and status of the Saskatchewan Action and of the BC, Ontario and Québec Actions. He then gave an account of his earlier ruling under a challenge to the standing of Mr.

Brant, qua representative plaintiff in the Ontario Action, to appear on and make submissions in an application under the Saskatchewan Action, writing: [ 9 ] Kirk Brant is the plaintiff in the Ontario action. At the hearing of this application, the Saskatchewan plaintiffs objected to Mr. Brant being permitted to tender evidence and to make submissions. I ruled that it was appropriate for me to consider and hear Mr. Brant’s evidence and submissions. [ 10 ] That ruling was based on Chief Justice Richards’ analysis of Mr. Brant’s standing, at paras. 36-51 of [ Ammazzini CA 2016 ].

Chief Justice Richards concluded that Mr. Brant did not have standing to apply for a stay of this action, but that he did have standing to tender evidence and to make written and oral submissions relating to the question of whether it would be preferable to resolve the claims or issues in the multi-jurisdictional class proceedings in the Saskatchewan court or elsewhere. [ 11 ] That question is before me on this application, and so Mr. Brant has standing to tender evidence and to make written and oral submissions, as he has done. B.

Applicable law [9] Following this, the Chambers judge revisited his decision in Ammazzini QB 2016 , observing that this Court had upheld his assessment of the authority of a judge to order a stay of proceedings under s. 6(2) of The Class Actions Act .

In that regard, Richards C.J.S., who had been aware that a national settlement was then pending, wrote in Ammazzini CA 2016 : [74] ... [W]hen the certification judge decides whether to permanently stay the Ammazzini Action, he will necessarily be alert to the question of whether the Settlement Agreement protects or responds to the interests of the proposed class members in the Ammazzini Action, including those resident in Saskatchewan. This same question will necessarily be front and centre if and when Mr. Brant applies in Ontario to have the settlement approved. [75] ...

Section 6(2), as emphasized above, is entirely clear. In an effort to avoid chaotic and unproductive overlap in class action litigation, a certification judge must consider whether it would be preferable for some or all of the claims or common issues raised in a Saskatchewan action to be resolved in a class action commenced elsewhere in Canada. … [10] As noted, in the Ammazzini QB 2016 decision, the Chambers judge had found it was preferable to conditionally stay the Saskatchewan Action while the Ontario Action proceeded to settlement.

In Ammazzini QB 2019 , the Chambers judge approached the application for a permanent stay on the basis that he had to “consider, in addition to [the reasons in Ammazzini QB 2016 ], whether the settlement protects or responds to the interests of the proposed class members in this Saskatchewan action” (at para 14).

The Chambers judge identified the class members as being “not just Saskatchewan residents, but … residents of all provinces of Canada, except British Columbia, who purchased gem grade diamonds in the period January 1, 1994 to the present” (at para 15). [11] As to the factors relevant to the decision he was called upon to make, the Chambers judge looked to Perdikaris v Purdue Pharma Inc. 2018 SKQB 86 , 17 CPC (8th) 119 [ Perdikaris ], where Barrington-Foote J. (as he then was) had, in the course of declining to approve a proposed settlement, reviewed the jurisprudence and identified the criteria for determining whether a class action settlement is reasonable ( Ammazzini QB 2019 at para 19).

At bottom, Barrington-Foote J. ruled that a “proposed settlement need only fall within a zone of reasonableness” ( Perdikaris at para 60 ). [ 12 ] The Chambers judge also observed that the decisions of the courts that had approved the national settlement in the BC and Ontario Actions had cited substantially the same factors as Justice Barrington-Foote. However, the Chambers judge cautioned himself that he was not to “merely rubberstamp” the approval of the BC, Ontario and Québec Courts (at para 22).

Rather, because he could also not “ignore” their analyses (at para 23), the Chambers judge adopted the approach taken in Bancroft-Snell v Visa Canada Corporation , 2018 ONSC 5166 at para 115 , which recognises that each court “has an independent and solemn obligation to review a settlement, to consider any objections, and to make a determination of whether it is fair and reasonable and in the best interests of the class”. C. Factors considered 1.

Hard-fought litigation [ 13 ] On the question of whether the national settlement fell within the “zone of reasonableness”, the Respondents argued that the litigation preceding it had been “hard-fought”. The Applicants strongly objected to this characterisation, remarking that the Respondents’ arguments were entirely self-serving and cautioning that the Respondents had a vested interest in seeing the national settlement imposed.

[ 14 ] Addressing these arguments, the Chambers judge found that the national settlement was “not an early settlement, and it was not reached in any apparent haste”, with the representative plaintiffs’ counsel showing “a willingness to risk substantial resources in the matter” (at para 27). The Chambers judge then quoted from the

summary of the highlights in the Ontario Action ( Brant 2016 at paras 3 and 4 ) as procedural evidence that supported his findings. [ 15 ] Nonetheless, the Chambers judge remarked that “the assertion of hard-fought litigation is neither to be simply accepted at face value nor to be a sole determining factor in the consideration of a settlement” (at para 30). On the evidence, however, the Chambers judge accepted that the litigation “fairly falls under the description of ‘hard-fought’” (at para 31), which supported a finding that the national settlement fell “within the zone of reasonableness” (at para 32). 2.

Litigation risks [ 16 ] Under the second factor he considered, the Chambers judge remarked that, if there were no national settlement, the Actions would proceed to trial and, in that eventuality, he found the following litigation risks would exist (at para 33): (

a) the British Columbia Court of Appeal might overturn the certification decision; (

b) the Ontario certification might be overturned on appeal; (

c) the courts could determine that an aggregate assessment of damages was not possible in light of the complex distribution chain; (

d) the courts could find that the defendants’ conduct did not constitute a price-fixing conspiracy, but was unilateral or monopolistic conduct that is not unlawful per se in Canada and does not give rise to a private claim for damages under the Competition Act , RSC 1985, c C-34 ; (

e) even if a conspiracy were proven, the courts could find that the agreement entered into by the defendants was ineffective, or that any illegal agreement had little or no effect on prices; (

f) the courts might not allow the “umbrella purchaser” claims made on behalf of class members who did not, directly or indirectly, purchase diamonds from the defendants but purchased diamonds mined by a non-conspirator entity; (

g) there might be appeals on substantive issues even if the plaintiffs were successful in all phases of the litigation; [and] (

h) the courts might find some, or all, of the class members’ claims were time-barred. [ 17 ] The Chambers judge also recognised that the issue of the viability of umbrella purchaser claims had been argued before the Supreme Court of Canada but had not yet been decided (note that the Supreme Court’s decision on that issue was released after I heard argument in this leave application, see Pioneer Corp. v Godfrey , 2019 SCC 42 , 26 BCLR (6th) 1 [ Godfrey ]).

The Chambers judge did acknowledge, however, that the then current state of the law provided some reason for optimism from the point of view of class action plaintiffs (at para 35). And, indeed, the majority of the Supreme Court later ruled that umbrella purchasers do have a cause of action ( Godfrey at para 57 ).

However, as the decision in Godfrey was still pending, the Chambers judge also recognised that the then state of the law left open a litigation risk with respect to the umbrella purchaser issue. [ 18 ] On the whole of it, the Chambers judge concluded there were “substantial risks in this litigation”, focussing chiefly on the fact that certification as a class action remained “less than certain”, that it was “not assured” the plaintiffs would establish liability or, if liability were established, what damages could be readily predicted (at para 36).

On the whole of it, the Chambers judge found the litigation risks supported settlement rather than proceeding with litigation, subject to the adequacy of the settlement. 3. Adequacy of the settlement [ 19 ] Turning to the adequacy of the national settlement, the Chambers judge addressed the Applicants’ criticism of the national settlement on the grounds that it was not equivalent to the settlement reached in the American class action, where the defendants had agreed to pay 295 million USD.

In the Applicants’ estimation, the 9.4 million CAD national settlement breaks down to a significantly lower amount per Canadian than does 295 million USD per American and therefore the amount was said to be wholly inadequate. [ 20 ] However, the Chambers judge found the evidence indicated the jewellery market in Canada was “notably smaller than in the US, not only of course in gross terms but in relative terms”, which meant, to the Chambers judge, that a population ratio “does not provide helpful information” (at para 39).

In support of his finding, the Chambers judge adopted Rady J.’s assessment of a similar argument made in Brant 2016 , where she had observed that such a comparison was misplaced because: (

a) the relative size of the United States and Canadian population does not translate accurately into the relative size of the jewellery market. Available market data would suggest that Canada has a small share of the diamond jewellery market by retail sales value; (

b) the United States settlement was negotiated after default judgments were signed against the defendants there; (

c) the United States claims were brought under the Sherman Act which, with the Clayton Act , create a private right of action for monopolization and the potential to recover treble damages; [and] (

d) De Beers restructured its business, reducing its market power – after the United States class period but during the Canadian class period. [ 21 ] The Chambers judge rejected the evidence of Scott Olson, an officer of Olson Goldsmiths Inc., as to the adequacy of the national settlement as “not helpful” because Mr. Olson’s opinion was based on “speculation and guesswork” (at para 43) and because “the factual basis for [his] evaluation opinion is not established” (at para 45). Secondarily, the Chambers judge remarked that Mr. Olson’s

evaluation “amounts to an expression of opinion, and [he] is not established as having the requisite expertise to provide such an opinion” (at para 46). [ 22 ] Turning to the hypothetical, the Chambers judge opined that, even if the Applicants had shown that the settlement payment to each class member would be “disappointingly low”, the establishment of that fact would not necessarily have led him to conclude that the settlement is inadequate; rather, “[t]he obvious question to ask in that case is whether it is possible to do better” (at para 48).

In that regard, the Chambers judge acknowledged the Applicants had said they could better the result but “[t]hey do not suggest how they will do better, whether in settlement or at trial” and “[a]s to settlement, they do not indicate what persuasion is available to them to bring the defendants to the table with more money” (at para 49).

The Chambers judge assessed the Applicants’ confidence in this regard as being “based on faith that the plaintiffs’ case is strong, both on liability and on damages”, which the Chambers judge noted he had already found was “not the case” because there were risks that could reduce recovery “to less than the amount of the settlement or to zero” (at para 50). 4.

Behaviour modification [ 23 ] The Applicants’ argument under this rubric was cast in terms of new, expert evidence that was not before the Courts of BC or Ontario, which they said showed the Respondents’ alleged wrongdoing was continuing—i.e., the national settlement had not served to modify the Respondents’ behaviour. The Chambers judge was unpersuaded by this argument because he found the evidence did not support it.

He found the factual basis that underpinned the Applicants’ expert evidence actually pre-dated the national settlement and the opinion was, therefore, “of no assistance in considering whether the settlement has resulted in any modification of the defendants’ behaviour” (at para 56). In short, the Chambers judge found the proffered evidence “does not establish the point that the Saskatchewan plaintiffs seek to make” (at para 58). 5.

Other Factors [ 24 ] Noting there were relevant factors other than those that had been expressly argued before him, the Chambers judge observed that the Courts of BC and Ontario had examined those factors and had “concluded without reservation that they lead to being satisfied as to the appropriateness of the settlement” (at para 59). Having reviewed the same factors, the Chambers judge stated he had reached the same conclusion as had the judges in BC and Ontario for the reasons they had given. D.

Duplicative action [ 25 ] Having found in Ammazzini QB 2016 (at paras 23–27, 30, 31 and 59) that the Saskatchewan Action was duplicative of the BC and Ontario Actions, the Chambers judge stated that he remained persuaded of that fact. He then turned to address the Applicant’s application to amend the statement of claim to modify the class description. In that regard, the Chambers judge wrote: [61] … If the class description were so amended, the class identified in the Saskatchewan action would include those persons who are not in the class covered by the settlement.

Effectively, the Saskatchewan plaintiffs aim to continue the Saskatchewan action as a class action on behalf of those people who have opted out of the Brant settlement (who number about 70 people across Canada) and those people who have purchased diamonds since October 14, 2016, which is the end of the class period in the settlement. [62] This amendment would not change my conclusion that the Saskatchewan action is duplicative.

In so saying, I have in mind the remarks of Justice Richards (as he then was) at para. 74 in Bear v Merck Frosst Canada & Co. , 2011 SKCA 152 , 385 Sask R 76: [74] The lesson to be drawn from these authorities is that it is sometimes necessary and appropriate to look below the surface of class action proceedings in order to preserve the integrity of the administration of justice. In this regard, it is clear that class action litigation has some unique features.

Because there are a number of individuals with the same claim, it is possible to imagine a situation where a certification application is made and dismissed, another class member then steps forward as the proposed representative plaintiff with a refined certification application in hand only to have it dismissed, a third class member then steps forward with yet another approach to certification, and so on and so on. This would obviously be undesirable on a number of levels, especially those concerning the need for finality in litigation and the efficient use of the judicial system.

This is so regardless of whether a putative member of a proposed class can, in some formal way, be considered to be a privy of the representative plaintiff who brings an unsuccessful certification application. Simply put, a defendant in a class action environment should not face a revolving door of representative plaintiffs who serially advance certification application after certification application until they (perhaps) find one that succeeds. [63] The amendment proposed by the Saskatchewan plaintiffs presents a similar situation.

As to those persons who have opted out of the Brant class action settlement, the choice of opting out of that class action did not open the door to participating in another, similar class action. Rather, it opened the door to pursuing litigation in a regular, non-class action, court action.

As to those persons who have purchased and will purchase gem grade diamonds since October 14, 2016, the proposed amendment presents the prospect of serial class actions, which is not appropriate. [64] My conclusion remains that the Saskatchewan action is and would be duplicative of the other proceedings, and it serves no useful purpose. E. Abuse of process [ 26 ] Lastly, the Chambers judge revisited an issue he had identified but not addressed in Ammazzini QB 2016 (at para 61), finding it was now appropriate to consider whether the Saskatchewan Action constituted an abuse of process.

Drawing on the statements of principle in cases like Johnson v Equifax Inc. , 2018 SKQB 305 at para 21 , Hafichuk-Walkin v BCE Inc. , 2016 MBCA 32 at paras 39 and 40 , [2016] 6 WWR 266, Boehringer Ingelheim (Canada) Ltd. v Englund , 2007 SKCA 62 at para 40 , [2007] 9 WWR 434, and Bear v Merck Frosst Canada & Co . , 2011 SKCA 152 at para 74 , 345 DLR (4th) 152 [ Merck Frosst ], the Chambers judge concluded the Saskatchewan Action, “as it now stands and as the Saskatchewan plaintiffs would amend it, falls into the category of being vexatious and oppressive – of being an abuse of process” (at para 70).

F. Permanent stay [27] The Chambers judge summarised his findings and stated his conclusion on the application for a permanent stay of proceedingsin the Saskatchewan Action in these terms: [71] For the above reasons, I conclude that the settlement is reasonable and appropriate, and specifically that it protects and responds tothe interests of the class members proposed in this Saskatchewan action. I conclude that the Saskatchewan action remains duplicative andunnecessary.

I conclude that, in the circumstances, the Saskatchewan action amounts to an abuse of process. [72] For these reasons, I conclude that permanently staying this Saskatchewan action as a class action proceeding is appropriate. [73] A stay, rather than a dismissal, is appropriate because the action remains a regular (non-class action) action that the plaintiffs areentitled to pursue as they wish. There is no reason for dismissing the action.

What is required is making clear that the action may notproceed as a class action. [74] Therefore, I order that any and all class action proceedings in this action are permanently stayed. G. Costs [28] The Chambers judge also addressed costs in his reasons, having regard for s. 40 of The Class Actions Act: 40(1) The court or the Court of Appeal may award costs that the court or Court of Appeal considers appropriate with respect to anyapplication, action or appeal pursuant to this Act.

(2) In determining whether a costs award should be made pursuant to subsection (1), the court or the Court of Appeal may take intoaccount one or more of the following: (

a) the public interest; (

b) whether the action involved a novel point of law; (

c) whether the action was a test case; (

d) access to justice for members of the public using class action proceedings; and (

e) any other factor that the court or the Court of Appeal considers appropriate.

(3) Class members, other than a person appointed as representative plaintiff for the class, are not liable for costs except with respect to thedetermination of the class member’s individual claim.

(4) This

section applies to proceedings commenced and costs incurred before, on or after this

section comes into force. [29] Here, the Chambers judge noted that the Respondents had been successful in the application before him and, ultimately, in theSaskatchewan Action. Accordingly, the Chambers judge awarded the Respondents one set of taxable costs under Column 3, as thelitigation had been “among the most complex” (at para 76). The Chambers judge acknowledged he had the discretion not to award costsagainst the Applicants but declined to exercise that discretion given the “duplicative and unnecessary nature of this action” (at para 77).However, as the Applicants had not invited or drawn Mr.

Brant into the Saskatchewan proceedings, the Chambers judge declined to awardcosts in favour of Mr. Brant. IV. The Right of appeal [30] Although not raised by the parties as an issue in this application, paragraph 3 of the draft notice of appeal identifies the sourceof the Applicants’ right of appeal as s. 8(1) of The Court of Appeal Act, 2000, SS 2000, C-42.1. Section 8(1) states that no appeal lies tothis Court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the Court.

I havethree observations about this. [31] First, the Legislature has conferred specific and conditional rights of appeal under s. 39 of The Class Actions Act; however, anorder permanently staying an action is not one of the orders in respect of which the Legislature has granted a right of appeal. That is, thestatute does not say there is a right to appeal, whether conditional or limited, against such an order when it is made in the context of classproceedings.

Given that lacuna, it is important to recall that in Kourtessis v M.N.R., (SCC), [1993] 2 SCR 53 at 69–70,the Supreme Court said, “it remains true that there is no right of appeal on any matter unless provided for by the relevant legislation”.However, a permanent stay of the class actions aspect of this Action is arguably akin, at least in result, to an order refusing to certify anaction as a class action. The Legislature has conferred a conditional right to appeal an order refusing to certify a class action unders. 39(3)(

a) of The Class Actions Act. Nonetheless, the rough analogy of a permanent stay to a refusal to certify seems inapt given thedifferent legal analyses the decisions call for, even though they both end class proceedings. [32] Second, if the decision in Ammazzini QB 2019 is understood to fall within the general right of appeal afforded under The Courtof Appeal Act, 2000 (as reference to s. 8(1) in the draft notice of appeal appears to suggest), it is difficult to see how the Chambers judge’sdecision to permanently stay the Saskatchewan Action is not a final decision, as opposed to an interlocutory one. If it is a final decision,then leave is not required by reason of the operation of ss. 7(2)(

a) and 8(1) of The Court of Appeal Act, 2000. Even if it is an interlocutorydecision, it arguably falls within the exception under s. 8(2)(a)(iii), which provides that leave is not required to appeal against the“granting or refusal of an injunction”.

[33] Third, in Iron v Saskatchewan (Minister of the Environment and Public Safety) (1993), (SK CA), 109 SaskR 49 (CA) (per Bayda C.J.S., with Vancise J.A. concurring and Jackson J.A. dissenting), the majority ruled that an appellant’s election totreat a final decision as interlocutory and to seek leave to appeal against it precluded the appellant from relying on the general,unconditional right of appeal under what is now s. 7(2)(

a) of The Court of Appeal Act, 2000. In this case, of course, the Applicants havedone just that—they have sought leave to appeal and, thereby, they have elected to treat the decision as an interlocutory decision thatrequires leave to appeal. [34] Accordingly, without ruling on the final or interlocutory nature of the order below or the source of the right of appeal, I haveapproached this application for leave under s. 8(1) of The Court of Appeal Act, 2000 as though the decision in Ammazzini QB 2019 were aninterlocutory decision of a judge of the Court of Queen’s Bench for which leave to appeal is required. V.

Rothmans and class action proceedings [35] The Applicants propose to appeal against the permanent stay of any and all class action proceedings in the SaskatchewanAction and against the costs award on 16 principal grounds. The proposed grounds of appeal fall to be evaluated under the well-settled testset forth in Rothmans, namely, before leave will be granted, the applicant must establish that the merit and importance of the proposedappeal weigh decisively in favour of granting leave.

In Qually v Qually (1986), (SK CA), 53 Sask R 161 (CA) at para4, the Court underscored that “leave will not necessarily be granted simply because an arguable point is raised” (see also Steier vUniversity Hospital (1988), (SK CA), 67 Sask R 81 (CA) at 7). [36] Indeed, in applications for leave to appeal against a decision made under The Class Actions Act, the Chambers judge is taskedwith evaluating the broader implications of the proposed appeal.

In this regard, in Safioles v Saskatchewan, 2015 SKCA 122, 472 Sask R38, Jackson J.A. (in Chambers) wrote: [6] From the early history of The Class Actions Act, it is quite clear the Court favoured an approach that addressed the request forleave in a global way; that is to say, whether leave should be granted in relation to the decision as opposed to the individual grounds ofappeal. … … [12] There can be no template for the writing of reasons; but when leave is granted, it is not necessary for the Chambers judge to passon each ground of appeal.

The proposed appellants apply for leave to appeal from the decision under appeal (see [Sorotski v CNH GlobalN.V., 2006 SKCA 77, 285 Sask R 125] at para 17). The grounds of appeal contained in the draft notice of appeal serve to focus theattention of the parties, whose arguments must address the merits of the various grounds of appeal, but it is not necessary in every case forthe Chambers judge to subject each ground of appeal to extensive scrutiny in the written reasons.

Indeed, to subject each ground of appealto extensive analysis in the decision granting leave runs the risk of increasing the cost and the attendant delay and may give theappearance of tying the hands of the panel hearing the appeal.

Exceptions to this approach exist, notably in [Ross v Saskatchewan, 2014SKCA 96, 446 Sask R 6] and [Pederson v Saskatchewan (Minister of Social Services), 2015 SKCA 87]; but, as a general rule, the Court’sapproach has been relatively consistent since [Frey v Bell Mobility Inc., 2010 SKCA 38] regarding the level of analysis of the merits of theproposed appeal (see, e.g., [DJO Canada, Inc. v Schroeder, 2010 SKCA 100]).

Only when the Chambers judge denies leave is it commonto provide more expansive reasons explaining why the applicant for appeal has not met the Rothmans test for leave (see, e.g., [R v Brooks,2010 SKCA 55, 350 Sask R 261]). (Emphasis in original) [37] Nonetheless, a judge may grant leave to appeal on a selective basis, choosing to grant leave on one issue in a draft notice ofappeal but to deny leave on another, often giving more extensive reasons for a denial of leave (see, as examples of this, Telus Corporationv Frey, 2010 SKCA 32 (per Smith J.A. in Chambers); Bourgault Industries Ltd. v Canada (Attorney General), 2011 SKCA 29, 366 SaskR 312 (per Klebuc C.J.S. in Chambers); GMRI Canada Inc. v Saskatoon (City), 2007 SKCA 39 (per Smith J.A. in Chambers)).

VI. Leave analysis [38] Given the breadth and number of the proposed grounds of appeal, I am hard pressed to conclude that the proposed appeal is, asa whole, prima facie destined to fail. [39] Nonetheless, at root, the challenge to the permanent stay of the Saskatchewan Action granted in Ammazzini QB 2019 may wellfail on appeal to this Court. While an appeal is taken against a result or a decision and not the reasons for it, the adjudicative frameworkthat led to the result will invoke a standard of appellate review that may inherently curtail an appellant’s prospects of success on appeal.

Inthis case, the Chambers judge’s decision to permanently stay the Saskatchewan Action results from an exercise of judicial discretion(Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391 at para 87 [Tobiass]) and,therefore, that decision would be owed a good measure of deference by this Court under the applicable standard of review. [40] In Tobiass, the Supreme Court unanimously adopted the standard of appellate review of discretionary decisions from Elsom vElsom, (SCC), [1989] 1 SCR 1367 at 1375, where the Court said, “an appellate court will be justified in intervening in atrial judge’s exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to aninjustice”.

In Rimmer v Adshead, 2002 SKCA 12, [2002] 4 WWR 119, Cameron J.A. set out the standard of appellate review ofdiscretionary orders similarly, in these terms: [58] In turning to this issue [namely, the exercise of judicial power], it is necessary to bear in mind that the powers in issue arediscretionary and therefore fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon theirproper exercise. The discretion is that of the judge of first instance, not ours. Hence, our function, at least at the outset, is one of review

only: review to determine if, in light of such criteria, the judge abused his or her discretion. Did the judge err in principle, disregard a material matter of fact, or fail to act judicially? Only if some such failing is present are we free to override the decision of the judge and do as we think fit.

Either that, or the result must be so plainly wrong as to amount to an injustice and invite intervention on that basis. … [ 41 ] All of which is to say that, at a base level under the standard of review, the Applicants would face an uphill climb to persuade a panel of the Court to intervene and to set aside the permanent stay of the Saskatchewan Action, albeit that that hill is never insurmountable.

A proposed appeal does not lack sufficient merit simply because the decision against which it would be taken results from an exercise of judicial discretion. [ 42 ] When taken to the level of the specific grounds of appeal, some of proposed grounds appear, at first glance, to raise important process and procedure issues in proceedings under The Class Actions Act . However, from the point of view of appellate practice and procedure, many of the same proposed grounds of appeal are expressed in argumentative language and others are not properly framed as grounds of appeal.

Having made those general comments, I turn to consider the merit of the individual proposed grounds of appeal under Rothmans . A. Proposed ground 4(

a) The Learned Chambers Judge erred in law at para. 48 by establishing a new settlement approval test that “disappointingly low” could be “adequate” when the test in Saskatchewan is “fair, reasonable, and in the best interests of the class as a whole[.] [ 43 ] This ground alleges the Chambers judge erred in law by establishing a new test for approving class action settlements when he stated that even a “disappointingly low” settlement could be “adequate”. In my assessment, proposed ground 4(

a) does not raise an arguable point. It is plainly evident from his reasons that the Chambers judge was speaking hypothetically and was not establishing a new standard or modifying the applicable standard. B. Proposed ground 4(

b) The Learned Chambers Judge erred in law and principle when it was incumbent upon him in considering a stay to determine whether the settlement agreement “protects or responds to the interests of the proposed class members in the Ammazzini Action.” The Settlement Agreement and the stay application do not “protect or respond to the interests of the” at least 70 people across Canada who opted out as they are not a part of the settlement, and fundamentally, could not have any application to “protect or respond” to all the putative class members regarding issues since 2016[.] [ 44 ] While this ground alleges error in law and principle, it is largely argumentative and, even then, it fails to identify what error the Chambers judge is supposed to have committed.

Properly framed, a ground of appeal will identify the error alleged with clarity and detail, leaving the evidence to the appeal book and leaving argument to the factum and oral hearing. By squinting at this ground in the draft notice of appeal, I could speculate about the nature of the error the Applicants are trying to assert under proposed ground 4(b), but it does not set forth a proper ground of appeal. C. Proposed ground 4(

c) The Learned Chambers Judge erred in law at paras. 9–11 by concluding that Kirk Brant had standing to make written and oral submissions in the context of the Defendants’ application for a permanent stay or dismissal of the within action when said application was not framed as the continuation of the Plaintiff’s certification application and said written and oral submissions were clearly made in support of the Defendants’ application for a permanent stay or dismissal of the within action[.] (Emphasis in original) [ 45 ] Under this ground, the Applicants seek to revisit an issue addressed by this Court in Ammazzini CA 2016 .

They allege the Chambers judge erred in law when he concluded Mr. Brant had standing to make written and oral submissions in the application before the Chambers judge because, unlike in Ammazzini QB 2016 , the application before the Chambers judge in Ammazzini QB 2019 was not a certification application. However, the ground omits to recount that the Chambers judge ruled Mr. Brant had standing under an interlocutory order made orally in the course of the hearing and from which no appeal has been taken. As the ruling put at issue by proposed ground 4(

c) lies outside the judgment in Ammazzini QB 2019 , the Court would have no jurisdiction to entertain it in an appeal from that judgment. D. Proposed grounds 4(

d) and 4(e) (

d) The Learned Chambers Judge erred in law at paras. 16–58 by assessing the merits of the Plaintiffs’ claims against his conclusions on the reasonableness and appropriateness of the Ontario settlement without considering or allowing access to the judgment seat on the issue of “umbrella purchasers”. Part of the reason that the Ontario settlement was deemed reasonable was because of the considerable litigation risk associated with “umbrella purchasers”, a risk that was materially different under Saskatchewan jurisprudence; (

e) The Learned Chambers Judge erred in fact and in law at paras. 34–35 by concluding that the upcoming resolution of the issue of “umbrella purchasers” by the Supreme Court of Canada could not be substantially advantageous for the within matter warranting certification as it would provide the class of the within matter with causes of action not even pursued or adjudicated by the competing actions in British Columbia or Ontario[.] [ 46 ] At core, these grounds allege the Chambers judge failed to consider or to properly consider the issue of umbrella purchasers as a litigation risk in the context of the Saskatchewan Action.

As he undoubtedly considered the issue (at paras 34 and 35), as did the Courts in Ontario and BC when the issue was raised in the hearings leading to the approval of the national settlement (see Brant v De Beers

Canada Inc. , 2017 ONSC 7269 at para 20 and Fairhurst v Anglo American PLC , 2018 BCSC 59 at para 22 ), I take the Applicants to assert here that the Chambers judge must have miscalculated the litigation risk in the Saskatchewan Action associated with the uncertainty as to whether the Supreme Court of Canada would find that umbrella purchaser claims were viable claims. In this respect, the two grounds of appeal raise an arguable point.

However, I find the merit of the point does not weigh decisively in favour of granting leave because the issue of umbrella purchaser claims played a relatively small role in the Chambers judge’s overall decision to stay the Saskatchewan Action. I am not persuaded the fact the Supreme Court has now issued its decision in Godfrey changes anything in terms of this leave application. E. Proposed ground 4(

f) The Learned Chambers Judge erred in fact and in law at para. 40–41 by considering and applying conclusions not his own which were: (

i) from a different proceeding rendered in a different jurisdiction; (ii) in the context of a settlement motion and not an application for a permanent stay or dismissal of the within action; (iii) based on hearsay evidence relating to Mr. Olson submitted by counsel for Kirk Brant in the Superior Court of Ontario; (iv) based on evidence that could not be reliable or probative as Mr. Olson was never a party to the proceedings initiated by Kirk Brant in the Superior Court of Ontario; (

v) based on evidence on which Mr. Olson could never have had the opportunity to comment or rebut as he had already opted out and thus, had no standing to make any submissions at the proceeding; and (vi) based on an analysis reached by a Court that did not have Mr. Olson’s certification record before it. (Emphasis in original) [ 47 ] There are two aspects to the six sub-grounds under this proposed ground of appeal. First, sub-ground 4(f)(

i) takes issue with the Chambers judge’s agreement (at paras 40 and 41) with Rady J. in the Ontario Action, where she gave reasons for rejecting an argument about the reasonableness of the national class action settlement amount based on a direct, population-based comparison to the United States class action settlement amount ( Brant 2016 at para 30 ). However, I am uncertain what error of fact or law the Chambers judge is supposed to have committed in this regard. I expect the intended allegation is that the Chambers judge failed to exercise his judicial function.

If so, the ground of appeal is manifestly without merit. When the Chambers judge’s reasons are read in full, it is clear he evaluated the Applicants’ arguments about reasonableness and reached his own conclusions in that regard (at paras 38–50). The first aspect of proposed ground 4(

f) does not raise an arguable point. [ 48 ] As to the second aspect, under proposed sub-grounds 4(f)(ii)–(vi), the allegations of error pertain to the Chambers judge’s alleged misunderstanding of the different proceedings, circumstances and statuses of the parties in the Ontario Action versus the Saskatchewan Action, leading to an alleged misapprehension of the weight to be given to certain evidence. As the reasons in Ammazzini QB 2019 establish, the Chambers judge was well aware of the circumstances in Ontario and BC and fully cognisant of the issues at play in the matter put before him.

This is particularly so given his reasons in Ammazzini QB 2016 and this Court’s reasons in Ammazzini CA 2016 . Reduced in this way to allegations of error of fact, the prospects of success on appeal under these sub-grounds are very weak. In my assessment, the sub-grounds lack sufficient merit in the context of the adjudicative framework and the standard of review applicable to discretionary decisions. F. Proposed ground 4(

g) The Learned Chambers Judge erred in fact and in law at paras. 42–47 by: (

i) concluding that Mr. Olson lacked the ‘requisite expertise’ to provide opinion evidence on the Ontario settlement or evidence to support his application for certification; (ii) concluding that Mr. Olson was required to provide evidence to a standard which was is not applicable to interlocutory motions pursued under The Class Actions Act ; (iii) engaging in the impermissible weighing and speculation of Mr. Olson’s uncontroverted evidence; and (iv) not considering Mr.

Olson’s evidence in relation to what would be … some basis in fact test at certification and in essence, impermissibly pre-judging certification and barring certification based on evidentiary tests rather than the some basis in fact standard[.] (Emphasis in original) [ 49 ] The four sub-grounds under proposed ground address the Chambers judge’s rejection of expert opinion evidence tendered by the Applicants, namely, the affidavit of Mr. Olson dated November 3, 2016. The premise that underpinned Mr.

Olson’s opinion evidence was his belief that “well over 50% of people getting married in Canada buy a wedding or engagement ring with a Gem Grade Diamond” (Affidavit of Mr. Olson at para 11). As noted, the Chambers judge rejected this evidence because it engaged in “speculation and guesswork” (at para 43) and the factual basis for Mr.

Olson’s opinion had not been established (at para 45). [ 50 ] While it is arguable that someone may proffer expert evidence in a proceeding to which they are a party ( White Burgess Langille Inman v Abbott and Haliburton Co. , 2015 SCC 23 at paras 35–40 , [2015] 2 SCR 182 [ White Burgess ]; Mouvement la ïque québécois v Saguenay (City) , 2015 SCC 16 at para 106 , [2015] 2 SCR 3), a belief that a set of factual circumstances exists is no foundation for an expert opinion. As such, the only potentially arguable point raised under proposed ground 4(

g) would be whether the “some basis in

fact” standard that applies in a certification hearing also applies in an application to stay an action under The Class Actions Act; but, thatprocedural point would be moot in the context of this proposed ground of appeal because a belief is, self-evidently, no basis in fact. Assuch, I conclude proposed ground 4(

g) is prima facie destined to fail. G. Proposed ground 4(

h) The Learned Chambers Judge erred in fact and law by: (

i) requiring proof of what should have been a common sense acceptance that $9.4 million, with at least 30% (more with taxes) going tolawyers, leaving $6.6 million, of which only $2.9 million (less administrative and processing charges) is available for distribution to themillions of ‘consumers’, was not only “disappointingly low”, but not “fair and reasonable”; and (ii) not acknowledging that any settlement where claimants would receive pennies to a few dollars and in the result, not even apply forcompensation, should have resulted in the Court permitting the Plaintiffs and counsel who want to seek appropriate compensation to goforward[.] [51] Stripping out the argumentative language, proposed ground 4(

h) alleges the Chambers judge erred: (

i) by requiring theApplicants to provide evidence to support their contention that the national settlement was inadequate; and (ii) by failing to acknowledgethe inadequacy of that settlement. Framed this way, the first sub-ground is self-evidently destined to fail. The second is simply anexpression of dissatisfaction with the Chambers judge’s rejection of the Applicants’ position on an issue—that is, it identifies no error inlaw, of fact, in the application of the law to the facts, or otherwise in the exercise of judicial discretion. H. Proposed ground 4(

i) The Learned Chambers Judge erred in law at paras. 48–50 by prejudging the merits of the within action prior to discovery and prior to trialand concluding on a certification record, which was obviously meagre compared to that which would be developed leading to trial, that itwas not “possible to do better” at trial than what is being achieved in the Ontario settlement, instead of considering the matter on a somebasis in fact test[.] (Emphasis in original) [52] As I read proposed ground 4(i), the Applicants assert that the Chambers judge erred in law by relying on his own assessment ofthe merits of the Saskatchewan Action before the parties had had a chance to proceed to discovery and then a trial on the merits on thebasis of a complete record.

Latterly, the Applicants say his assessment should have been made on the “some basis in fact” test, which Iwill address below.

As to the former allegation, I can only interpret the Applicants as saying the Chambers judge should not have heardthe application for a permanent stay of the Saskatchewan Action until after certification and a trial of the common issues, which is abaffling proposition on its own, but it is all the more so given that all proceedings in the Action had been stayed in the interim underAmmazzini QB 2016 and given that the Court in Ammazzini CA 2016 had proactively instructed the Chambers judge on matters that wouldbe at issue when he heard the application for a permanent stay.

From what I can make of it, proposed ground 4(

i) is devoid of merit. I. Proposed ground 4(

j) The Learned Chambers Judge erred in fact and in law at paras. 51–58 by: (

i) considering the recent expert evidence of Dr. Sen in isolation from previous expert evidence of Dr. Sen and that of the Defendantsalready available on the within matter; (ii) engaging in impermissible weighing and speculation of Dr. Sen’s recent uncontroverted expert evidence; and (iii) misapprehending the expert evidence of Dr. Sen; and (iv) not approaching the issue of Dr.

Sen’s evidence on the some basis in fact test being crucially important for post-2016 issues andclaims where the millions of Canadians are now deprived of access to the judgment seat in an impermissible certification preclusion orderbecause of the application of the wrong test[.] (Emphasis in original) [53] This proposed ground raises four issues with the Chambers judge’s handling of the evidence the Applicants’ expert, Dr.Anindaya Sen, a professor of economics at the University of Waterloo. The Applicants had relied on Dr.

Sen’s opinion evidence in hisMay 24, 2018, affidavit to ground their assertion that the Respondents were continuing to commit wrongs after the end of the class periodin the national settlement, thereby permitting the Applicants to argue that the national settlement had not modified the Respondents’behaviour as intended and that it is, therefore, an inadequate settlement. However, the Chambers judge found Dr. Sen’s opinion in thisregard was not based on any relevant evidence that post-dated the end of the class period—i.e., October 14, 2016. As it was withoutfactual foundation, the Chambers judge rejected Dr.

Sen’s opinion. [54] The Chambers judge plainly did not consider the opinion in isolation (see para 53), weigh or speculate about the opinion,misapprehend it or fail to approach it on a “some basis in fact” test. Rather, he rejected Dr. Sen’s opinion without doing any of thesethings because the opinion lacked proper foundation and, therefore, it did not establish the point that the Applicants sought to make.

Thatis, the Chambers judge examined the opinion as expert evidence and found it lacked the necessary criteria to be treated as such (see R vMohan, (SCC), [1994] 2 SCR 9 at paras 17–21; White Burgess) and did not further consider it. None of the allegationsunder proposed ground 4(

j) address how the Chambers judge might have erred in that regard.

J. Proposed ground 4(

k) The Learned Chambers Judge erred in law by requiring that the Plaintiff prove with evidence that the conduct of the Defendants has continued, rather than accepting the available evidence and pleadings on the ‘some basis in fact’ standard required at certification[.] (Emphasis in original) [ 55 ] Perhaps it is merely a drafting error, but under this ground the Applicants would take issue with the fact the Chambers judge required them to “ prove with evidence that the conduct of the Defendants has continued” (emphasis in original), which is self-evidently bound to fail. The remainder of the proposed ground covers the same issue as proposed ground 4(

j) in that it addresses the evidence of Dr. Sen and the application of the “some basis in fact” standard to the evidence, the latter of which I will address later in these reasons. K. Proposed grounds 4(l), 4(m), 4(

n) and 4(o) (

l) The Learned Chambers Judge erred in fact and law at para 62 and paras 70–71 in finding that as amended, “the Saskatchewan action is duplicative”. It is not and it cannot be because, inter alia , none of the members of the proposed Ammazzini class are parties to the certified actions in British Columbia or Ontario (per the Plaintiffs amended notice of motion for certification and amended pleadings, which the Court recognized at paras 61–62).

Additionally, it being accepted that the Plaintiffs may sue individually, so they may also apply for a class action for the benefit of the at least 70 opt-outs and have access to the judgment seat to decide on certification criteria and procedure, including “ some basis in fact ” test rather than having trial tests applied weighing evidence, as occurred, all of which applies particularly to the larger proposed class concerning the post-2016 conduct; (

m) The Learned Chambers Judge erred in law at paras 62–63 in concluding that “the choice of opting out of [the Ontario] class action did not open the door to participating in another, similar class action[;] rather, it opened the door to pursuing litigation in a regular, non-class action, court action” when there is no statutory or jurisprudential support for such a position and to the contrary, if you can sue singly, you can sue in a class action or minimally stated have access to the court system to determine at certification if you may sue in a class action; (

n) The Learned Chambers Judge erred in fact and in law at paras 65–70 by concluding that this action is duplicative on the basis of authorities that have no application to the present fact situation; (

o) The Learned Chambers Judge erred in law by not permitting the proposed class action on behalf of “all persons, corporations, and entities resident or situated in Canada who purchased natural diamonds for use as gemstones, in jewelry, or for investment, either directly or indirectly, from January 1, 1994 to the present, excluding (with respect to purchases made between January 1, 1994 and October 16, 2016) members of the certified class action in British Columbia styled Fairhurst v Anglo American PLC Vancouver #S071269) and the class proceeding certified for settlement purposes in Ontario styled Brant v De Beers Canada Inc. , (No. 1399/10CP) to proceed to a hearing on certification[.] (Emphasis in original) [ 56 ] Under proposed ground 4(l), the Applicants assert the Chambers judge erred in fact and law when he found the Saskatchewan Action, if it were amended as proposed by the Applicants, would still be duplicative of the Ontario and BC Actions.

Under proposed ground 4(o), the Applicants make a parallel assertion that the Chambers judge erred by not permitting the “proposed class action”—i.e., if it were amended as proposed by the Applicants—to proceed to certification. The Applicants state in their draft notice of appeal that the Saskatchewan Action is not duplicative and cannot be duplicative of those extra-jurisdictional Actions because “none of the members of the proposed Ammazzini class are parties to the certified actions in British Columbia or Ontario”. In this way, proposed grounds 4(

l) and 4(

o) both presuppose that the pleadings in the Saskatchewan Action have been or will be amended to modify the class description, which has not occurred and cannot occur while the Action is stayed.

That is, it is not factually correct to say that none of the proposed class members in the Saskatchewan Action are parties to the BC and Ontario Action. [ 57 ] The Applicants assert additionally that, since a class member may sue individually, a representative plaintiff could also apply for class action certification for the benefit of the 70 class members who have opted out of the Ontario Action and those Canadians who acquired diamonds after October 14, 2016, which is the end of the class period under the national settlement.

Again, this allegation of error presupposes that the pleadings in the Saskatchewan Action has been or will be amended. [ 58 ] The allegations of error under these grounds are misdirected because the Chambers judge found the Saskatchewan Action was duplicative as it stands now (at para 61).

That conclusion is unassailable because, in making it, the Chambers judge drew directly from his reasons and conclusion on that very issue in Ammazzini QB 2016 , which decision was upheld in Ammazzini CA 2016 , and nothing has changed in the interim, by reason of that decision and the stay it imposed. [ 59 ] In that regard, proposed ground 4(

n) asserts the Chambers judge erred by concluding the Saskatchewan Action is duplicative “on the basis of authorities that have no application to the present fact situation”. As I interpret it, proposed ground 4(

n) alleges the Chambers judge erred in his identification and selection of the case authority relevant to the issue of whether an action is duplicative. However, as I read his reasons, the Chambers judge’s conclusion in this regard was driven entirely by his earlier reasons and conclusion in Ammazzini QB 2016 , which this Court upheld in Ammazzini CA 2016 .

I cannot fathom how those decisions could not be relevant “to the present fact situation”. [ 60 ] Of course, speaking hypothetically, the Chambers judge also said in Ammazzini QB 2019 that the Applicants’ proposed amendments to the pleadings “would not change my conclusion that the Saskatchewan action is duplicative” (at para 62). Proposed ground 4(

l) would take issue with this statement by pointing out that, if the pleadings were amended, the class in Saskatchewan would exclude the class members in Ontario and BC. Proposed grounds 4(

m) and 4(

n) allege the Chambers judge incorrectly identified or set out the law or improperly applied the law in addressing that hypothetical circumstance. Under proposed ground 4(o), the Applicants assert the Chambers judge erred by not permitting the Saskatchewan Action to proceed to a hearing on certification on the basis of that hypothetical circumstance.

[61] That is, the allegations of error in proposed grounds 4(l), 4(m), 4(

n) and 4(

o) address a circumstance that has not occurred and,therefore, take issue with an obiter remark by the Chambers judge. I fairly take the Applicants’ point that the Saskatchewan Action mightnot be duplicative if they were only permitted to amend the pleadings to address the fact it duplicates the Ontario and BC Actions.However, nowhere in the draft notice of appeal do the Applicants allege that the Chambers judge erred by failing to consider theirapplication to amend the pleadings before he heard the Respondents’ application for a permanent stay of class action proceedings inSaskatchewan.

As the pleadings stood before the Chambers judge, the Saskatchewan Action was in fact duplicative of the Ontario and BCActions (Ammazzini QB 2016 and Ammazzini CA 2016). Accordingly, I find little merit to these proposed grounds of appeal. L. Proposed ground 4(

p) The Learned Chambers Judge erred in the exercise of his discretion with respect to the order of costs at paras 76–77 in that Saskatchewanis not presumptively or reflexively a costs jurisdiction and much of the action was undertaken prior to the introduction of the limited costsregime to Saskatchewan[.] [62] The final proposed ground of appeal relates to the cost award in Ammazzini QB 2019.

Here, the Applicants assert error on thepart of the Chambers judge in the exercise of his discretion, but do not particularise that error other than to say the Saskatchewan Actionpre-dates the amendments to The Class Actions Act that allowed for awards of costs against plaintiffs. While the costs regime changedafter the launch of the Saskatchewan Action, s. 40(4) plainly states that it “applies to proceedings commenced and cost incurred before, onor after this

section comes into force” and the Court of Queen’s Bench has ruled that the amended provisions apply with retroactive andretrospective effect (see Schneider v McMillan LLP, 2017 SKQB 21 at para 12). In other respects, it is well-understood that the award ofcosts is an inherently discretionary decision (British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 7 at para 42,[2003] 3 SCR 371; Benson v Benson (1994), (SK CA), 120 Sask R 17 (QL) (CA) at paras 89–90). Accordingly, in myassessment, there is minimal prospect of success under this proposed ground of appeal.

M. “Some basis in fact” [63] In reviewing the individual grounds of the proposed appeal, the recurring reference to the “some basis in fact” standard is aleitmotif that unifies many of the Applicants’ allegations of factual error on the part of the Chambers judge and may be said, therefore, toundermine the legal conclusions he reached.

As I understand it, the Applicants’ argument is that the Chambers judge erred in law becausehe held them to a higher standard of proof than that to which they would have been held in a certification hearing, which is whether therewas “some basis in fact” for the Applicants’ assertions (see Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57 at paras 114and 118, [2013] 3 SCR 477). [64] Coming at it from a different angle, the Applicants also say that, when affidavit evidence is contradictory, a Chambers judge isnot entitled to weigh it or to make assessments of credibility and should, instead, move the matter along so that such conflicts may beresolved at trial (citing Bank of Montreal v Schmidt (1989), (SK CA), 75 Sask R 157 (CA); Schedlosky v Weber, 2016SKCA 158; J.L.W. v T.S., 2018 SKQB 35; and Canadian Trade International, Inc. v Klein, 2015 SKQB 45, 469 Sask R 288). [65] Either way, I take the overall argument to be that the Chambers judge erred in law because he was not entitled to weighconflicting affidavit evidence, make findings of credibility and to prefer the evidence of the Respondents over that of the Applicants whendeciding to permanently stay the Saskatchewan Action.

Unfortunately, while this theme of argument runs through several of the proposedgrounds of appeal, it takes some considerable effort to extract it from the proposed grounds of appeal in the draft notice of appeal.Moreover, even if I were to do that, I am not persuaded a ruling by this Court to the effect that the “some basis in fact” standard applies inthe context of an application of the nature that was before the Chambers judge would have any effect on the outcome of this case. [66] I say that because I am not persuaded the Chambers judge actually weighed any of the evidence identified in the draft notice ofappeal, made findings of credibility about the deponents thereof, or preferred the Respondents’ evidence in that regard over that of theApplicants’—as is alleged in the draft notice of appeal.

To do that, the Chambers judge would have had to first admit the expert opinionsin question into evidence and, as I read his reasons, he did not do that. [67] As noted, the Applicants’ evidence in this regard was purported to be expert evidence. Addressing, first, the allegation that theChambers judge preferred the Respondents’ evidence, I note that the Respondents did not set up any evidence to contradict theApplicants’ evidence in this regard. The Applicants acknowledge that fact by describing their expert evidence as “uncontroverted” in theirdraft notice of appeal.

Regardless, the fact that a party has not adduced evidence to controvert the opposing party’s evidence does notmean that the opposing party’s evidence is admissible, credible or reliable, or that it satisfies any applicable persuasive burden.

Put anotherway, the absence of inconsistent evidence or evidence to the contrary does not absolve the trier of fact of the duty to assess theadmissibility of the evidence that is proffered or of the duty to evaluate the credibility of a deponent or the reliability of the admittedevidence and to make rational findings of fact on the basis of the admitted evidence. [68] In particular, regardless of the standard of proof to be applied in a matter, the admission of expert evidence remains, at alltimes, subject to the requirements set forth in R v Mohan and White Burgess.

And, as noted, I read the Chambers judge’s reasons inAmmazzini QB 2019 as a rejection of the Applicants’ opinion evidence—that is, he did not admit it into evidence—because theApplicants’ “expert” opinions did not meet the requirements for admission. As I noted earlier in these reasons, the specific allegations oferror in the draft notice of appeal seek to impugn the Chambers judge’s handling of the expert opinions after their admission intoevidence, e.g., the weight he gave to the opinions or his apprehension of their reliability or their probative value in the context of the issuesbefore him.

Those allegations are misplaced because the expert opinions never made it into the evidence in the first place and theApplicants do not address the reasons the Chambers judge gave for rejecting the opinions. [69] On the whole of it, although the Applicants’ proposed appeal may raise a compelling question of law as to the correct standardof proof in an application of the nature that was before the Chambers judge, I am not persuaded the resolution of that question would haveany bearing on the outcome of the Chambers judge’s decision.

N. Merit and importance generally [ 70 ] As the foregoing indicates, the Applicants have framed some of the grounds of appeal in a way that suggests their proposed appeal could raise important process and procedure issues with respect to The Class Actions Act ; however, when examined in the particular, none of the grounds are compellingly meritorious. [ 71 ] Further, in that the extra-jurisdictional effect of the decision in Ammazzini QB 2019 is to permit the implementation of a national settlement, the proposed appeal would significantly delay the settlement of already lengthy, multi-jurisdictional proceedings.

If leave were granted, it would not only extend the litigation in Saskatchewan but also potentially revive the litigation in BC, Ontario and Québec, which the decision below put to an end. While those extra-jurisdictional considerations must take the backseat to the interests of Saskatchewan litigants in a Saskatchewan action, they remain relevant and material considerations in the context of this application for leave to appeal.

Where the prospects of success on appeal are less than moderate (as I find they are here), it is more likely that granting leave to appeal would unduly and disproportionately add to the cost of an action.

In the circumstances of this case, it is not sufficient that the proposed appeal would raise arguable points; the overall appeal and the arguable points must themselves be sufficiently meritorious terms of the prospects for success to offset the not inconsiderable repercussions of multi-jurisdictional delay and cost that would be brought about by an appeal. [ 72 ] Moreover, in my assessment, the proposed appeal does not adequately address the second reason given by the Chambers judge for permanently staying the Saskatchewan Action, namely, that “as it now stands and as the Saskatchewan plaintiffs would amend it, [it] falls into the category of being vexatious and oppressive – of being an abuse of process” (at para 70).

Nothing in the draft notice of appeal comes to direct grips with this ruling in Ammazzini QB 2019 . Since that ruling could stand regardless of the Applicants’ success in their proposed appeal, I am unable to conclude that the proposed appeal is of sufficient merit for a panel of this Court to consider. [ 73 ] Under the second branch of Rothmans , I find the proposed appeal would bear heavily on the outcome of the Saskatchewan Action because the decision in Ammazzini QB 2019 put a permanent end to the proceedings in that action.

If the permanent stay were set aside on appeal, the Saskatchewan Action would continue, in some fashion. I have concluded, however, that none of the proposed grounds of appeal raise a sufficiently meritorious issue. While the importance analysis under Rothmans differs from its merit analysis, I also find the proposed appeal is not sufficiently important because it would not raise a new, controversial or unusual issue of practice in class action proceedings or a new, uncertain or unsettled point of class action law.

Individually, the proposed grounds of appeal are primarily particular to the case-specific evidence and procedural circumstances addressed in Ammazzini QB 2019 . They do not transcend the particular to implicate the broader framework of class action law, other than in respect of the “some basis in fact” argument, which I have found lacks sufficient merit. [ 74 ] The same may not be said for the proposed appeal as a whole, being an appeal against the stay of the Saskatchewan Action, because it would obviously transcend the particular in its implications by reviving the BC, Ontario and Québec Actions.

The exception to this is proposed ground 4(p), which addresses the costs award; but, if the Applicants were successful under that ground, it would not lead to the stay being set aside and, therefore, would not bear heavily on the outcome of the proceedings. VII. Conclusion on leave [ 75 ] I conclude the Rothmans criteria do not weigh decisively in favour of granting leave and, accordingly, I decline to grant leave to appeal. VIII.

Costs [ 76 ] Although s. 40 of The Class Actions Act does not mandate that costs reflexively follow the cause ( Ammazzini CA 2016 at para 84), I find it is appropriate to order that the Respondents shall have one set of costs in this application. As Mr. Brant is not a party to these proceedings, he shall not have his costs. “Caldwell J.A.” Caldwell J.A.