Onion Lake Cree Nation Appellant (Respondent) v. Charmaine Stick and Canadian, 2020 SKCA 101

Court of Appeal for Saskatchewan Docket: CACV3471 Citation: Onion Lake Cree Nation v Stick , 2020 SKCA 101 Date: 2020-08-18 Between: Onion Lake Cree Nation Appellant (Respondent) And Charmaine Stick and Canadian Taxpayers Federation Respondents (Applicants) Before: Ottenbreit, Caldwell and Leurer JJ.A. Disposition: Application to adduce fresh evidence granted; Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Caldwell On appeal from: 2019 SKQB 178 , Regina Appeal heard: June 12, 2020 Counsel: Annemarie Clarke for the Appellant Jason Clayards for the Respondents Leurer J.A. I. Introduction [ 1 ] Onion Lake Cree Nation [Onion Lake] appeals the decision of a Court of Queen’s Bench Chambers judge finding it in contempt of a previous order of that court: Stick v Onion Lake Cree Nation , 2019 SKQB 178 [ Chambers Decision ]. [ 2 ] The Chambers judge did not have the benefit of evidence or submissions from Onion Lake.

This occurred because the applicants for the contempt order had failed to serve Onion Lake’s legal counsel with the contempt application. Onion Lake has applied for the admission of fresh evidence to explain how this came to pass as well as to support certain arguments it makes in its appeal. [ 3 ] I would admit the fresh evidence. With the benefit of Onion Lake’s submissions, I conclude that it did not breach the previous court order. I would therefore allow Onion Lake’s appeal and set aside the finding of contempt. My reasons follow. II. Background A.

First Nations Financial Transparency Act [ 4 ] The First Nations Financial Transparency Act , SC 2013, c 7 [ FNFTA ] is intended to “ enhance the financial accountability and transparency of First Nations by requiring the preparation and public disclosure of their audited consolidated financial statements ” and other information (s. 3).

It contains detailed provisions that are designed to fulfil this stated purpose and to allow the federal government and others to apply to a superior court for an order directing compliance with its requirements. [ 5 ] When it was passed in 2013, the FNFTA created significant controversy. Onion Lake refused to comply with its terms. Onion Lake took the position, which it continues to maintain, that the FNFTA is unconstitutional on various grounds.

In 2014, Onion Lake commenced an action in the Federal Court of Canada, seeking certain declarations and damages: Onion Lake Cree Nation v Canada , 2017 FC 1049 [ Onion Lake Federal Court Action ]. The Onion Lake Federal Court Action is ongoing. [ 6 ] Onion Lake also opposed an application brought by the federal government for an order compelling it and other First Nations to comply with the FNFTA : Canada (Attorney General) v Cold Lake First Nations , 2015 FC 1197 , [2016] 1 CNLR 1 [ Federal Disclosure Action ].

The Federal Disclosure Action was later stayed, principally on the basis that the constitutional issues raised by Onion Lake and other First Nations should be resolved in the Onion Lake Federal Court Action or in a separate action commenced by the Sawridge First Nation. B. The Compliance Order [ 7 ] Charmaine Stick is a member of Onion Lake. Canadian Taxpayers Federation [CTF] is an advocacy group whose self-described mandate is “to promote the responsible and efficient use of tax money”. [ 8 ] Ms. Stick and CTF [collectively Respondents] were unhappy that Onion Lake was refusing to comply with the FNFTA .

In October 2016, they issued an originating notice [Enforcement Application]. The Enforcement Application sought, on behalf of Ms. Stick,

an order pursuant to s. 10 of the FNFTA requiring Onion Lake to provide to her within 21 days copies of certain specified financial records relating to the 2014 and 2015 fiscal years and, on behalf of CTF, an order pursuant to s. 11 of the FNFTA requiring Onion Lake to publish on its internet site or other publicly available internet site within 21 days copies of the same specified documents. [ 9 ] In response, Onion Lake served its own notice of application [Stay Application], seeking an order staying the Enforcement Application pending determination of the Onion Lake Federal Court Action or a lifting of the stay of the Federal Disclosure Action . [ 10 ] The Enforcement Application and the Stay Application came before Barrington-Foote J. (as he then was) in Chambers on May 3, 2017.

In a judgment dated June 15, 2017, Barrington-Foote J. granted the Enforcement Application and dismissed the Stay Application: Stick v Onion Lake Cree Nation , 2017 SKQB 176 , 10 CPC (8th) 58 . In doing this, Barrington-Foote J. attached significance to the fact that Onion Lake had not raised the constitutional issues that were in play in the Onion Lake Federal Court Action and the Federal Disclosure Action .

In this regard, after taking note that the “Federal Court actions are the foundation for [Onion Lake’s] stay application” (at para 10), and the role that Onion Lake’s constitutional arguments played in those proceedings, Barrington-Foote J. continued: [18] I advised counsel at the beginning of this hearing that Onion Lake’s failure to raise the constitutional issues might affect the outcome of the stay application.

I also noted that Rule 3 -53 of The Queen’s Bench Rules authorizes the court to order that rules which apply to an action started by statement of claim apply to an action started by an originating application. Onion Lake nonetheless did not seek an adjournment to enable counsel to seek instructions to raise the constitutional issues in this action. It instead chose to pursue this application based on the material before me.

I have made my decision accordingly. [ 11 ] Justice Barrington-Foote returned to this later in his reasons: [31] For reasons noted by counsel for the applicants, however, the respondent’s submissions − to the extent that they depend on the notion that this action and the Onion Lake Action [ Onion Lake Federal Court Action ] either are or engage the underlying concerns raised by parallel or duplicative proceedings − suffer from a fundamental flaw. This application is for the relief specified in ss. 10 and 11 of the Act . The constitutional issues have not been raised by any party to this application.

I have not been asked to decide those issues, and would not do so by granting the order sought . [32] There is, accordingly, no duplication. This application does not raise the same issues as the Cold Lake action [ Federal Disclosure Action ]. There is no risk that my decision in this case will be inconsistent with any decision that might be made in the Onion Lake Action in relation to the constitutional issues . Given that the constitutional issues are not in play in this action, Onion Lake will not be called upon to assert or defend its constitutional position in two actions.

The last step in this application − but for my decision − was the hearing of the competing applications dealt with in this fiat. There will be no parallel proceedings. As such, Onion Lake will not incur more legal fees or other costs in this proceeding, other than those which they may choose to incur to review my decision. (Emphasis added) [ 12 ] The formal order issued following from Barrington-Foote J.’s judgment [ Compliance Order ] stated as follows: The Court orders: 1.

Onion Lake shall comply with the duties imposed by sections 7 and 8 of the First Nations Financial Transparency Act within 30 days of June 15, 2017. 2. The application by Onion Lake for a stay is dismissed. 3. The parties have leave to speak to costs. [ 13 ] Onion Lake’s appeal to this Court from the Compliance Order was dismissed on March 26, 2018: Onion Lake Cree Nation v Stick , 2018 SKCA 20 , [2018] 5 WWR 111 [ Appeal Decision ]. C.

The Contempt Application [ 14 ] On February 19, 2019, the Respondents served Walter Pahtayken, a councillor of Onion Lake, with a notice of application dated February 15, 2019 [Contempt Application]. The Contempt Application was returnable in the Court of Queen’s Bench on April 4, 2019, and requested an order “declaring Onion Lake Cree Nation to be in contempt of Court for failing to comply with the obligations imposed by sections 7 and 8 of the First Nations Financial Transparency Act (the “Obligations”), as ordered by the Honourable Mr. Justice B.A. Barrington-Foote on June 15, 2017”. [ 15 ] Mr.

Pahtayken was also served with three affidavits to supplement those already on the court file. Together, these three new affidavits gave some brief procedural history of the proceedings subsequent to the grant of the Compliance Order and evinced that: (

a) On April 27, 2018, that is within 15 days of the dismissal of the appeal from the Compliance Order , Onion Lake had posted on the internet and provided to Ms. Stick copies of the 2015 and 2016 audited financial documents as well as related documents; (

b) Changes to the council of Onion Lake had occurred after an election and by-election. Mr. Pahtayken was identified as a current councillor of the band; and (

c) Onion Lake had not released financial documents relating to 2017 or 2018, to Ms. Stick or otherwise, notwithstanding attempts by Ms. Stick to secure copies of those documents. [ 16 ] Neither the notice of application, nor any of the affidavits, was served on legal counsel for Onion Lake. In this Court, the Respondents acknowledged that this was an “oversight”.

[ 17 ] The Contempt Application came before the presiding judge in regular Chambers on its original return date (April 4, 2019). No one appeared for Onion Lake. No evidence was filed on its behalf. Notwithstanding that the Respondents’ counsel was aware that Onion Lake remained represented by legal counsel and the fact that Onion Lake’s counsel had appeared previously in all matters before the Court, the Respondents’ counsel made no inquiries about their failure to appear that day. Instead, he took the position that, as the material had been served on Mr.

Pahtayken, the application should proceed. [ 18 ] The Chambers judge received submissions from the Respondents and reserved her decision. In a written judgment dated July 24, 2019, the Chambers judge found Onion Lake to be in contempt of court ( Chambers Decision at para 12(a)). D. The Chambers Decision [ 19 ] The Chambers judge found that the Compliance Order “established an ongoing obligation on the part of Onion Lake Cree Nation to comply with ss. 7 and 8 of the Act ” (at para 6).

She concluded that “Canadian common law supports that an Indian Band recognized under the Indian Act , RSC 1985, c I-5 , can be held in contempt of court” (at para 9). The Chambers judge then instructed herself on the three elements that must exist for a party to be found in civil contempt of a court order, as set out in Carey v Laiken , 2015 SCC 17 , [2015] 2 SCR 79 [ Carey ] , and found that the test set out in that case had been met: [11] In this case, each branch of the test for contempt is met.

First, this Court’s June 15, 2017 order is plain and unambiguous: the respondent was required to provide financial disclosure pursuant to the Act and the Act requires financial disclosure on an ongoing basis. Second, it is clear that Onion Lake Cree Nation had notice of the order because it retained counsel and appealed the order to the Saskatchewan Court of Appeal, who dismissed the appeal and further affirmed the First Nation’s obligation to comply.

Finally, the evidence demonstrates that the First Nation has not complied with its obligation to provide and publish disclosure for the 2017 and 2018 financial years, despite being asked to do so by Ms. Stick, and despite being properly served with this application.

I am therefore convinced beyond a reasonable doubt that Onion Lake Cree Nation is in civil contempt of an order of this Court. [ 20 ] As a result of her finding that Onion Lake was in contempt of the Compliance Order , the Chambers judge ordered a fine of $10,000, but also allowed that the fine would be waived if Onion Lake purged its contempt by publishing the required information within 30 days of the Chambers Decision . E.

Events subsequent to the Chambers Decision [ 21 ] On July 26, 2019, two days after the release of the Chambers Decision , counsel for the Respondents sent an email to counsel for Onion Lake “as a courtesy”. The email explained that counsel had been “instructed to prepare and serve an application in relation to Onion Lake’s refusal to comply with the provisions of the [ FNFTA ]”, the application had been served on Mr. Pahtayken, and, “[a]s the application sought a declaration of contempt, it was required to be personally served on Onion Lake”.

The email attached a copy of the Chambers Decision and indicated that counsel would “be proceeding to take out an order and determining costs in the near future”. [ 22 ] On August 2, 2019, by email, counsel for the Respondents served on Onion Lake’s legal counsel a draft of the formal order to be issued arising from the Chambers Decision .

The email also asked for confirmation as to whether Onion Lake’s counsel would be able to accept service on behalf of Onion Lake and stated that if this confirmation was not received that day, “we will proceed to arrange for a process server to personally serve one of the councillors”. F. Onion Lake’s appeal and application for fresh evidence [ 23 ] Onion Lake moved promptly to challenge the finding of contempt. On August 23, 2019, it filed a notice of appeal and made an application to adduce as fresh evidence an affidavit sworn by Onion Lake’s associate director of operations . The affidavit shows that: (

a) Throughout all proceedings relating to the Compliance Order , Onion Lake was represented by legal counsel. It had changed counsel for the purposes of the appeal from the Compliance Order but after the conclusion of the appeal, Onion Lake’s original counsel resumed that role; (

b) On April 25, 2018 – that is, 29 days after the Court of Appeal had dismissed Onion Lake’s appeal from the Compliance Order – Onion Lake had posted on the internet the 2015 and 2016 financial documents required by the FNFTA ; (

c) On July 19, 2018 – that is two days after they were fixed by Barrington-Foote J. – Onion Lake paid the costs of the proceedings in the Court of Queen’s Bench. Costs in relation to the proceedings in this Court were settled later, and these were paid on September 20, 2018; (

d) Between September and November 2018, emails had been exchanged between counsel for the parties concerning disclosure of the 2017 financial documents. In this correspondence, counsel for the Respondents took the position that Onion Lake was “clearly in breach of the order of Mr. Justice Barrington-Foote and

section 7 of the [ FNFTA ]”, and raised the spectre of “further applications to the court, either under the authority of the [ FNFTA ] or for contempt of court”. Counsel for Onion Lake advised they were awaiting instructions; (

e) On November 8, 2018, having received no reply to previous requests for the disclosure of the additional financial documents, counsel for the Respondents again wrote to Onion Lake’s counsel, reiterating their position that Onion Lake was in breach of the Compliance Order and the FNFTA , and concluding that if the requested documents “have not been disclosed, and are not publicly available on a website by November 19, 2018, I have been instructed to prepare and serve an application for relief”; (

f) No further communication or correspondence occurred between counsel for the Respondents and counsel for Onion Lake between November 8, 2018 and July 26, 2019;

(

g) On November 26, 2018, Onion Lake commenced an action in the Court of Queen’s Bench for Saskatchewan challenging theconstitutionality of the FNFTA; and (

h) Mr. Pahtayken, who was served with the Contempt Application and supporting affidavits, did not bring the matter to theattention of either the Onion Lake Band Council or Onion Lake’s legal counsel “because he understood (correctly) that Witten LLP wasrepresenting [Onion Lake] and he believed that Witten LLP was aware of the Application and would take the necessary actions to protectthe interests of [Onion Lake]”. III. Issues [24] As I will explain, the outcome of Onion Lake’s appeal is appropriately determined by the answer to two questions: (

a) Did the Chambers judge err by hearing the Contempt Application without seeking proof of service on counsel for OnionLake? (

b) Did the Chambers judge err in finding that the Compliance Order created an ongoing obligation to comply with the FNFTA? [25] I will also address Onion Lake’s application to admit fresh evidence, although the outcome of this appeal can be determinedwithout the need to refer to this evidence. IV. Analysis A. Did the Chambers judge err by hearing the Contempt Application withoutseeking proof of service on counsel for Onion Lake? [26] Throughout these proceedings, before and after the Contempt Application was served, Onion Lake has been represented bylegal counsel.

Onion Lake submits that the Chambers judge erred by hearing the Contempt Application without service of that applicationon its counsel. The Respondents’ position is that service of the Contempt Application on Mr. Pahtayken, in his capacity as councillor forOnion Lake, met all requirements. [27] The parties agreed that the Respondents were required to serve the Contempt Application directly on Onion Lake and thatservice on Mr. Pahtayken as its councillor accomplished that direct service.

The issue is whether the Respondents were also required toserve Onion Lake’s legal counsel. [28] The requirement that, when a party is represented by counsel, service be effected through that counsel, is found in The Queen’sBench Rules [Rules]: Service on a person represented by a lawyer 12-9(1) Subject to the express provisions of any enactment and to subrule (2), service of a document on a person who is represented by alawyer respecting the proceeding to which the document pertains must be effected by service on the lawyer. [29] As can be seen, Rule 12-9(1) is expressly made subject to Rule 12-9(2), which states that Rule 12-9 “does not apply to asubpoena or an application for committal of a person for contempt of Court”.

Both parties proceeded on the basis that the ContemptApplication fell within the scope of this exception, as an application “for committal of a person for contempt of Court”.

I will do so aswell, without purporting to decide if it is possible to commit a First Nation band for contempt or whether the exception has applicationwhen relief, other than committal, is requested in connection with an alleged contemptuous act. [30] Elsewhere, the Rules address the service requirements associated with an application for a declaration for civil contempt: Declaration of civil contempt 11-26(1) Except when a person is before the Court as described in subclause (3) (a)(ii) or (v), before an order declaring a person in civilcontempt of Court is made, notice of the application for a declaration for civil contempt must be served on the person in the same manneras a commencement document. (Emphasis added) [31] Also relevant is Rule 12-2(1): Personal service 12-2(1) Service of a document must be effected by personal service of that document on the person to be served except where: (

a) an enactment or order of the Court provides otherwise; or (

b) these rules authorize service by an alternative or special mode of service. [32] Although it could point to no express requirement in the Rules requiring that its counsel be served in addition to the serviceeffected on it through its councillor, Onion Lake argued that this obligation should be implied. The most helpful authority to its position is354415 Alberta Ltd. v Qureshi (1992), 1992 ABCA 89 , 127 AR 148 (WL) (CA) [Qureshi]. In that case, the Alberta Court of

Appeal held that an onus rests on a person seeking a contempt remedy “to prove that notice of the application has been given both tocounsel for the respondent and to the respondent, the person accused of contempt” (at para 13, emphasis in original). However, on thefacts, Qureshi involved a situation where the lawyer had been served and not the accused. It seems that the court was not making a pointthat was any different than many other cases: personal service is required on an alleged contemnor.

Indeed, in Qureshi, the court notedthat it is “for the judge hearing the application to decide whether the applicant has established that sufficient notice was given to therespondent” (at para 13). [33] Onion Lake also refers to The Law Society of Saskatchewan’s Code of Professional Conduct (adopted February 10, 2012, andconsolidated March 6, 2018) which requires legal counsel to “be courteous and civil and act in good faith” (at 7.2-1).

It says that a similarethical requirement found in the rules of conduct of the Law Society of British Columbia has been interpreted to require service on arespondent’s legal counsel when an applicant’s legal counsel is aware of that representation: McLeod (Re), 2019 LSBC 33 at para 173[McLeod]. [34] I generally favour an

interpretation of rules of court that aligns with the professional responsibilities of lawyers. As stated bySopinka J. in MacDonald Estate v Martin, (SCC), [1990] 3 SCR 1235 at 1246, “an expression of a professional standardin a code of ethics relating to a matter before the court should be considered an important statement of public policy”. Nonetheless, the twoare analytically distinct.

This point was made by the Supreme Court of Canada in Canadian Pacific Railway Co. v McKercher LLP, 2013SCC 39, [2013] 2 SCR 649 [McKercher]: [16] Both the courts and law societies are involved in resolving issues relating to conflicts of interest — the courts from the perspectiveof the proper administration of justice, the law societies from the perspective of good governance of the profession: see R. v. Cunningham,2010 SCC 10, [2010] 1 S.C.R. 331. In exercising their respective powers, each may properly have regard for the other's views. Yet eachmust discharge its unique role.

Law societies are not prevented from adopting stricter rules than those applied by the courts in theirsupervisory role. Nor are courts in their supervisory role bound by the letter of law society rules, although “an expression of a professionalstandard in a code of ethics . . . should be considered an important statement of public policy”: Martin, at p. 1246. (Emphasis added) [35] This distinction, between rules of professional conduct and the requirements found in the rules of court, appears in McLeoditself.

In finding that the respondent counsel in that case had failed to conduct himself in a manner characterized by courtesy and goodfaith, the professional disciplining body noted that the conduct might not have offended the rules of court: [159] It is important to remember this exchange between the Court and the Respondent at the conclusion of the hearing of December 8,2016: Mr.

McLeod: You said that the patient should be served personally for very good reasons, so it’s not filtered through Jacqueline Horton.I want direction on whether I should also serve Jacqueline Horton or leave it so the filter doesn’t exist, and then should it be the standard10 days? The Court: It’s a professional courtesy; you can choose to – I’m not directing that service be on Ms. Horton. But yes, you can bring itback in the usual notice period after service on the patient. [160] The Respondent could not have had a clearer indication of his professional responsibilities than that.

He chose to ignore it. [161] It is the finding of this Panel that the Respondent obtained the Committeeship Order in relation to JS without providing notice ofthe application hearing to her counsel when he knew, or ought to have known, that she was represented by counsel who intended toparticipate in the application. By doing so, he failed to conduct himself in a manner characterized by courtesy and good faith, contrary torules 2.1-4(

a) and 7.2-1 of the BC Code. (Emphasis added) [36] Ultimately, I am not persuaded that the fact that the failure to serve Onion Lake’s counsel may have constituted a breach ofprofessional obligations on the part of the Respondents’ counsel allows for an

interpretation of the Rules so as to require both personalservice and service on a party’s counsel. [37] The requirement for personal service of a contempt application reflects underlying common law principles. Both Bhatnager vCanada (Minister of Employment and Immigration), (SCC), [1990] 2 SCR 217 at 225–226 and Morasse v Nadeau-Dubois, 2016 SCC 44 at paras 94–99, [2016] 2 SCR 232, speak of the requirement of personal service or actual knowledge of a court orderas a precondition to liability in contempt.

In Aalbers v Aalbers, 2011 SKCA 156 at para 34, 385 Sask R 141, Caldwell J.A. approved ofthe procedure described by McIntyre J. in Berg v Bruton, 2006 SKQB 17 at para 3, 276 Sask R 130, as follows: (

c) The Court must be satisfied beyond a reasonable doubt that a respondent had notice of the order which he or she is alleged to havebreached and of the motion seeking a finding of contempt. The clearest evidence of this would be personal service upon the respondent ofboth the order and the motion. Rules 21(3) and 26(2) [now Rule 12-9(2)] are clear that service of a contempt application on a party’saddress for service or on counsel of record does not constitute service on the respondent; … (

e) When the motion is served all affidavit evidence in support must be served at the same time so that the respondent is clearly advised ofthe evidence to be adduced against him or her. A person facing possible imprisonment must be fully advised of the nature of the chargeagainst him or her; … (Emphasis added)

[38] In this context, Rule 12-9(2) seems intended to ensure that an alleged contemnor is personally served with the application forcommittal, rather than exempting a requirement of service on that party’s lawyer. For this reason, it would be compatible with the purposeof Rule 12 to require service of a contempt application on both the alleged contemnor and its legal counsel. Other Rules are designed in theexpectation that, when a party is represented by a lawyer, the lawyer is the conduit through which court proceedings occur.

Rule 2-36(1)provides that the “lawyer or firm of lawyers whose name appears on a commencement document, pleading, affidavit or other documentfiled or served in an action as acting for a party is a lawyer of record for that party”. This occurred here. According to Rule 2-36(3), a“lawyer of record remains a lawyer of record until the lawyer ceases to be a lawyer of record under these rules”. Rule 2-37(

b) is acompanion to this provision, imposing a duty on the lawyer of record as including to continue to “act as lawyer of record while the lawyeris recorded in that capacity”. The Rules prescribe a mechanism for a lawyer of record to be changed (Rule 2-40) or withdraw (Rule 2-41).Where there is a lawyer of record, “the party for whom the lawyer of record acts may not self-represent unless the Court permits” (Rule 2-36(2), emphasis added).

All of this would tend to support an expectation that, when a party engages legal counsel, its counsel would beserved even where there is also a specific requirement that the party itself be served. [39] However, ultimately, I am drawn back to the fact that Rule 12-9(1), which is the source in the Rules for the requirement toserve a represented party through counsel, does not state that personal service of a contempt application is to be in addition to service oncounsel.

Instead, on its face it expressly provides for personal service in substitution for, that is instead of, service through counsel. [40] If I had been able to find a reasonable interpretative foothold that would have allowed me to conclude that the Rules requiredservice on both Onion Lake directly and on its counsel, I would have stood on it.

I would encourage the drafters of the rules of court toconsider whether the Rules, as I have interpreted them, comport with their intentions when Rule 12-9 was adopted. [41] For these reasons, I would conclude that the Chambers judge did not err when she proceeded to hear the contempt applicationin the absence of proof of service on the counsel for Onion Lake. B. Did the Chambers judge err in finding that the Compliance Order createdan ongoing obligation to comply with the FNFTA? [42] Contempt is “the intentional doing of

an act which is in fact prohibited by [a court] order” (Re Sheppard v Sheppard (1976), (ON CA), 67 DLR (3d) 592 at 595 (Ont CA); Carey at para 62). Onion Lake says that the Chambers judge erred byinterpreting the Compliance Order as directing ongoing compliance with the FNFTA. Onion Lake’s challenge to the Chambers judge’sinterpretation raises two subsidiary questions: (

a) By what standard is the Chambers judge’s

interpretation of the Compliance Order to be reviewed? (

b) Did the Chambers judge err in her

interpretation of the Compliance Order? 1. By what standard is the Chambers judge’s

interpretation of the Compliance Order to be reviewed? [43] Onion Lake argues that “whether the learned Chambers Judge erred in finding the [Compliance Order] established anongoing obligation under the Act is a question of law reviewable on a standard of correctness”.

For their part, the Respondents contendthat given “the fact that this is not a prohibitive injunction but a direction to comply with existing legislative obligations … [, the]interpretation of the order may be a mixed question, subject to the palpable and overriding error standard”. [44] In my view, the applicable standard of review was settled in Fettes v Culligan Canada Ltd., 2010 SKCA 151, 326 DLR (4th)463 [Culligan]. The principal issue in Culligan was whether an order of the Court of Queen’s Bench enjoining conduct of the respondentwas sufficiently clear to support a finding of contempt.

Justice Jackson described that issue as “a question of law, reviewable on a standardof correctness” (at para 18). Even allowing for the possibility that a Court order may contain a prohibition that is not sufficiently clear toground a prosecution for contempt but nonetheless is clear enough in its terms to be enforced in other ways, the point I understandJackson J.A. to be making is that the

interpretation of a Court order involves a question of law. [45] The Respondents “acknowledge this Court’s finding” in Culligan but advance the argument that it should be revisited “in lightof more recent jurisprudence”. However, in my respectful view, none of the cases the Respondents cite assist their arguments in relation tothe standard of review issue. [46] The Respondents first refer to 1984 Enterprises Inc. v Strider Resources Ltd., 2013 MBCA 100, [2014] 2 WWR 49 [1984Enterprises].

In that case, the appellants were found to be in contempt of an order prohibiting them from removing materials affected by abuilders’ lien “to the prejudice of the lien” from a specific mining property (at para 1(i)). The appellants sought to set aside the findings ofcontempt on various bases. The first statement drawn by the Respondents from 1984 Enterprises related to the submission that thelanguage of the order was ambiguous due to the inclusion of the words “to the prejudice of the lien”.

This argument had not been made tothe motions judge and was rejected by the Manitoba Court of Appeal in the following terms: [43] A simple reading of those words would suggest that a removal which was to the disadvantage of or negatively affected the lienholder’s interest in the property, is what is prohibited.

Defendants cannot insist on absolute precision and must be prepared to make a fulland honest attempt to comply … (Authorities omitted; emphasis added by the Respondents) [47] Justice Monnin, speaking for the Court, also rejected an argument that, because the objects removed from the jobsite wererecoverable, the removal was in furtherance of the lien and not to its detriment: [48] The removal of the concentrate from the property without any notice to 1984 or obtaining its consent and placing it surreptitiouslyin a locale known only to Cook and his subcontractor without providing details of its new location or of the items removed were contraryto both the spirit of the prohibition contained in the motion judge’s order and the actual wording of the order.

It was not an error on the

part of the motion judge to so conclude. (Emphasis added by the Respondents) [48] Respectfully, the passages relied on by the Respondents from 1984 Enterprises have nothing whatsoever to do with the standard applicable when an appeal court reviews the

interpretation placed on a court order by a first instance court. In both passages, the Court was commenting on an approach that any court – whether that of the court of first instance or an appeal court on review – might take when interpreting a court order.

I note that in paragraph 44, immediately after making the statement that defendants “cannot insist on absolute precision and must be prepared to make a full and honest attempt to comply” with the order, Monnin J.A. stated: [44] In my view, the wording of the s. 35 order is not ambiguous such that the appellants were unclear as to what they could or could not do.

It would have been impossible to list all situations where a removal might or might not have been permissible. [ 49 ] This passage suggests to me that Monnin J.A. felt that he was free to reach his own conclusion with respect to the meaning of the order alleged to have been breached by the contemnors in that case. Finally, I observe that in Culligan , Jackson J.A. had noted it to be “ self-evident that an enjoined party cannot insist on absolute precision in an injunction” (at para 19), yet she still applied a correctness standard to the issue of the proper

interpretation of the order in question. [ 50 ] The Respondents also rely on the following statement made in the majority judgment in Bernard v Canada (Attorney General) , 2014 SCC 13 , [2014] 1 SCR 227 [ Bernard ] to support their argument that a standard of review other than correctness should be applied to a review of the Chamber judge’s

interpretation of the Compliance Order : [35] The Federal Court of Appeal agreed with the Board that its mandate on the redetermination as set out in the Court of Appeal’s earlier decision was limited to the question of how much home contact information the employer could disclose to the union without infringing an employee’s rights under the Privacy Act . It was argued that the Court of Appeal erred in this regard. However, that view was clearly not shared by Blais C.J., who was the president of the panel in both proceedings before the Court of Appeal. Giving some weight to the Court of Appeal’s

interpretation of its own order in these circumstances is not so much a matter of deference as of operating on the common-sense assumption that the Court knew what it meant . We would hesitate to say that the Board made a reviewable error by interpreting the Court of Appeal’s order in the same way that court itself did or by failing to deal with an issue that manifestly has no merit. But we see no need to reach any final view on this point. (Italicized emphasis in original; underlined emphasis added by Respondents) [ 51 ] The suggestion, as I understand it, is that an appeal court should defer to the

interpretation given by a first instance court to its own order. However, the context for this statement in Bernard distinguishes the case from the present situation. [ 52 ] Bernard involved an application for judicial review of a decision of the Public Service Labour Relations Board [Board] to share employee contact information with the certified union. The Board had made an order providing for disclosure of information.

This first order had been quashed by the Federal Court of Appeal, with a direction that the “Board should have considered the application of the Privacy Act to the disclosure of home contact information under the Public Service Labour Relations Act , rather than simply adopting the agreement arrived at by the parties” (at para 13). The matter was remitted to the Board, which made a slightly revised order. This revised order then became subject to an application for judicial review by the Federal Court of Appeal and subsequent appeal to the Supreme Court.

One of the issues before the Supreme Court became whether the Board decision was unreasonable because of its failure to consider certain arguments that the disclosure of the employee’s contact information gave rise to a breach of the employee’s rights under the Canadian Charter of Rights and Freedoms . This question turned on the proper

interpretation of the remittal order made by the Federal Court of Appeal. This somewhat complicated context informs four points that I would make about Bernard . [ 53 ] First, the standard of review in Bernard was fixed because of the nature of the proceedings. The reasonableness standard applied to the Board’s

interpretation because the nature of the proceeding was that of judicial review of an administrative body. Second, as I interpret the passage relied on by the Respondents in this case, the Supreme Court was simply making the point that the Board’s

interpretation of the Federal Court of Appeal order aligned with that placed on the order by that Court itself, including one of the judges who had participated in making that order. Third, as the last sentence in the passage quoted foreshadows, all of this was in any event beside the main point in Bernard , since the Court went on to conclude that there was no merit to the employee’s Charter arguments. Fourth, the Supreme Court observed that “[g]iving some weight” to the Federal Court of Appeal’s

interpretation was “not so much a matter of deference”, seemingly eschewing the idea that such standard applied, but instead followed from the operation of “the common sense assumption that the Court knew what it meant” (at para 35).

There is no room for a similar “common sense” assumption referred to by the Supreme Court where, as here, the Compliance Order is not being interpreted by the judge who made it but, instead, by a different judge. [ 54 ] Finally, the Respondents refer to Campbell v Campbell , 2016 SKCA 39 , [2016] 8 WWR 631 [ Campbell ] for the proposition that “the pleadings and surrounding circumstances should be reviewed to properly interpret the order in question”.

They assert that since “extrinsic factors” are to be accounted for, “determining [the] clarity of the order requires consideration of more than just the words used in the order itself”. This, the Respondents say, converts the question of

interpretation into more than a pure question of law. I agree with the idea that to properly interpret the Compliance Order it is necessary to look beyond the words used. As I will explain, this weighs heavily in my determination that the Chambers judge erred in her

interpretation of the Compliance Order . However, I do not agree that this makes the question of the

interpretation of a court order anything other than a question of law. [ 55 ] This last argument made by the Respondents is premised on the notion that a consideration of factors beyond words used in an order elevates the question into one of mixed fact and law. The argument ignores that the proper

interpretation of other law-making instruments involves much more than consideration of the words used. For example, when ambiguity arises in the

interpretation of statutes, regulations and other statutory instruments, one must read and analyze the words of the text “in light of a purposive analysis, a scheme analysis, the larger context in which the legislation was written and operates, and the intention of the legislature, which includes

implied intention and the presumptions of legislative intent” (Ruth Sullivan, Statutory

Interpretation, 3d ed (Toronto: Irwin Law, 2016) at46; see also Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at paras 26–30, [2002] 2 SCR 559; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at 21). Therefore, the notion the pleadings and surrounding circumstances should be reviewedto properly interpret an order does not mandate the application of a standard of review other than correctness. [56] Although not made in precisely these terms, the point the Respondents seem to be making is that, for the purposes of appellatereview, decisions relating to the

interpretation of court orders should be approached like those of involving the

interpretation of contracts.As recently explained by the Supreme Court in Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633 [Sattva], andLedcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 SCR 23 [Ledcor], the

interpretation of acontract often involves a mixed question of fact and law, not one of pure law, which is therefore reviewable by an appeal court on thepalpable and overriding error standard. However, several factors make the comparison to the presumptive standard of review in contractinterpretation cases not apt in the present context. [57] First, the role of a trial court interpreting a contract differs from the role of a first instance court interpreting a previous courtorder. When interpreting a contract, the trial court makes the findings of fact that bear on the issue of

interpretation. In contrast, very oftenthe judge or court interpreting an order is not the same judge or court that made the order in first instance. This is the situation here. Whilethe judge or court interpreting the order must have regard for the context in which it is made, that is a far different matter than beinginvolved in making the essential findings of fact that influence the order’s

interpretation. [58] Second, an appeal court has a different role or purpose in ensuring the uniformity in the

interpretation of a court order than itdoes when a contract is interpreted. Sattva recognized that a “central purpose of drawing a distinction between questions of law and thoseof mixed fact and law”, and with it the attraction of a palpable and overriding standard of review, “is to limit the intervention of appellatecourts to cases where the results can be expected to have an impact beyond the parties to the particular dispute” (at para 51, see alsoLedcor at paras 19–48).

This, it is said “reflects the role of courts of appeal in ensuring the consistency of the law, rather than in providinga new forum for parties to continue their private litigation” (at para 51). While in many cases a court order directly relates to the privateaffairs of litigants, often it does not.

More importantly, a court order, every much as a statute, is about the exercise of the state’s authority.The court’s concern, when enforcing compliance using the authority to cite for contempt, is about the respect for the authority of the courtas an organ of the state: “Contempt of court for breach of a court order is an offence against the authority of the court and theadministration of justice” (SNC-Lavalin Profac Inc. v Sankar, 2009 ONCA 97 at para 14, 304 DLR (4th) 251).

Chief Justice Lamerexpanded on this idea in Vidéotron Ltée v Industries Microlec Produits Électriques Inc., (SCC), [1992] 2 SCR 1065 at1075: … The penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of “public law”, in asense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue. In UnitedNurses of Alberta v.

Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901, McLachlin J. established a direct connectionbetween contempt of court and the rule of law, at p. 931: The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law isdirectly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process andrespect, courts since the 12th century have exercised the power to punish for contempt of court.

As the fact that arts. 49 to 54 [the Quebec Code of Civil Procedure, CQLR c C-25], concerning contempt of court, are included in thechapter entitled “Powers of Courts and Judges” clearly indicates, the power to punish for contempt of court is an integral part of theinherent powers of the courts (see Canadian Broadcasting Corp. [v Quebec Police Commission, (SCC), [1979] 2 SCR618]), and as such it constitutes an essential element in the proper administration of justice. [59] Therefore, while the operational impact of a particular court order may be limited to the parties to a lis, issues of enforcementhave much broader import. [60] Finally, if this Court were to adopt the palpable and overriding error standard to its review of the

interpretation given to courtorders by a first instance court, it would suggest that the meaning given to a Court order could legitimately vary according to the viewtaken by the judge or Court making it. Respect for the rule of law demands that a court order, much like a statute, must have a singular,correct, meaning. [61] For all these reasons, in my respectful view, the proper

interpretation of a court order is, like a statute, a question of law. ThisCourt is therefore entitled to review the

interpretation given to the Compliance Order by the Chambers judge and substitute its owninterpretation if it disagrees with the Chambers judge. 2. Did the Chambers judge err in her

interpretation of the Compliance Order? [62] The Chambers judge’s analysis leading to her conclusion that the Compliance Order “established an ongoing obligation on thepart of Onion Lake Cree Nation to comply with ss. 7 and 8 of the Act” (at para 6) is confined to two paragraphs in which she consideredthe words of that order and ss. 7 and 8 of the FNFTA: [7] It is clear from the language of the June 15, 2017 order that the respondent’s obligation to comply with the requirements of the Actis ongoing.

The order does not specify a time limitation, nor does it specify that only specific financial years must be disclosed. On thecontrary, it states: “Onion Lake shall comply with the duties imposed by sections 7 and 8 of the First Nations Financial Transparency Actwithin 30 days of June 15, 2017.” [8] The Act is also clear that the disclosure obligations under ss. 7 and 8 are ongoing and mandatory for every financial year.

Ittherefore follows that after the respondent complied with the June 15, 2017 order by disclosing and publishing the financial statements for2015 and 2016, it was required to do so for the financial years that followed. Currently, those years are 2017 and 2018. [63] Onion Lake says that the Chambers judge erred in her approach. It submits she should have “considered the pleadings (the

Respondents’ Originating Application), the [ Compliance Order ] itself, Justice Barrington-Foote’s written reasons for making that Order, the circumstances in which the Order was granted (including the specific language of the Act), and the factual/evidentiary context in which his Order was made”. [ 64 ] The starting premise for Onion Lake’s argument is unassailable and is, as I have already noted, one with which the Respondents take no issue.

The correct approach to interpreting a court order requires consideration of the circumstances in which it was made, including the pleadings, particularly the relief requested. This specific point was made in Yu v Jordan , 2012 BCCA 367 , 354 DLR (4th) 8, which also dispelled any suggestion that the proper

interpretation of the order was governed by the subjective views of the parties: [53] In my view, the

interpretation of a court order is not governed by the subjective views of one or more of the parties as to its meaning after the order is made. Rather an order, whether by consent or awarded in an adjudicated disposition, is a decision of the court. As such, it is the court, not the parties, that determines the meaning of its order.

In my view, the correct approach to interpreting the provisions of a court order is to examine the pleadings of the action in which it is made, the language of the order itself, and the circumstances in which the order was granted . (Emphasis added) [ 65 ] This passage was quoted by Bauman C.J.B.C. in Sutherland v Reeves , 2014 BCCA 222 , 61 BCLR (5th) 308, who also went on to add that, “in addition to examining the language of the Order, it is necessary to review the pleadings and surrounding circumstances” when interpreting a court order (at para 31).

Much the same point was made in Sans Souci Ltd. v VRL Services Ltd. , [2012] UKPC 6 at para 13 and Re Sharpe , [1992] FCA 616 (Aust) at para 20 [ Sharpe ].

In the latter case, the Court stated that “even if a judgment is not ambiguous, it is nevertheless proper (if not essential) in construing it to have regard to the factual context in which the judgment was given and that this context includes the pleadings, the reasons for the judgment and the course of evidence at the trial”. [ 66 ] In Campbell , Ottenbreit J.A. referred to Sharpe as providing the governing interpretative principles and then proceeded to “examine the language of the order, the pleadings and the circumstances in which the order was made” for the purposes of interpreting the order before the Court (at para 18). [ 67 ] Notwithstanding their expressed agreement with the idea that while this Court should “take into account the pleadings and context of the underlying dispute, that cannot serve as a launching pad to challenge the validity of the [ Compliance Order ]”, the Respondents contend that Onion Lake is mounting a “collateral attack” on the Compliance Order , and attempting “to re-litigate the issues that should have been raised on the appeal from that Order”.

The Respondents further say that “[n]one of the challenges now raised [by Onion Lake] were raised when the [ Compliance Order ] was appealed”. [ 68 ] Sorting through the parties’ arguments requires that a closer look be taken, first, at the circumstances leading to the Compliance Order and, second, at the issues in the subsequent appeal from the Compliance Order to this Court. [ 69 ] The starting point is provided by the FNFTA . The obligations imposed on Onion Lake are found in ss. 7 and 8 : Copies — members 7

(1) A First Nation must, on the request of any of its members, provide the member with copies of any of the following documents: (

a) its audited consolidated financial statements; (

b) the

Schedule of Remuneration and Expenses; (

c) the auditor’s written report respecting the consolidated financial statements; and (

d) the auditor’s report or the review engagement report, as the case may be, respecting the

Schedule of Remuneration and Expenses. Time limit

(2) The First Nation must provide the copies without delay, but has until 120 days after the end of the financial year in question to provide them if the request is received within those 120 days. Fee

(3) A First Nation may charge a fee for providing the copies, but the fee must not exceed the cost of the service. Internet site — First Nation 8

(1) A First Nation must publish the documents referred to in paragraphs 7(1)(

a) to (

d) on its Internet site, or cause those documents to be published on an Internet site, within 120 days after the end of each financial year. [ 70 ]

Section 10 of the FNFTA gives standing to a member of a First Nation, such as Ms. Stick, to apply to a superior court for an order requiring compliance with s. 7 : Application by member of First Nation 10 If a First Nation fails to provide copies of any document under

section 7 , any member of that First Nation may apply to a superior court for an order requiring the council to carry out the duties under that

section within the period specified by the court.

[ 71 ]

Section 11 of the FNFTA gives similar standing to others to apply for an order requiring compliance with s. 8 : Application by any person 11 If a First Nation fails to publish any document under

section 8 , any person, including the Minister, may apply to a superior court for an order requiring the council to carry out the duties under that

section within the period specified by the court. [ 72 ] The Enforcement Application describes in very specific terms the relief the Respondents were seeking from the Court: 1. The Applicant, Charmaine Stick (“Stick”), seeks the following remedies: (

a) An Order pursuant to

section 10 of the First Nations Financial Transparency Act (the “ Act ”) requiring the Onion Lake Cree Nation (“Onion Lake”) to provide the Applicant, Stick, within 21 days, copies of: (

i) its audited consolidated financial statements for the fiscal years 2014 and 2015 ; (ii) the

Schedule of Remuneration and Expenses Onion Lake was required to prepare for the fiscal years 2014 and 2015 ; (iii) all written reports provided by an auditor respecting the consolidated financial statements for the fiscal years 2014 and 2015 ; and (iv) all auditor’s reports or review engagement reports that were prepared respecting the

Schedule of Remuneration and Expenses for the fiscal years 2014 and 2015 all as contemplated by sections 6 and 7 of the Act . (

b) in the alternative, the Applicant Stick seeks an Order requiring Onion Lake to provide her, within 21 days, (

i) copies of any audited financial statements for the fiscal years 2014 and 2015 ; and (ii) an accounting of all monies received, irrespective of source, and all monies distributed, paid out, loaned, gifted or otherwise expended by or on behalf of Onion Lake for the fiscal years 2014 and 2015 . For greater clarity this includes any accounts receivable or other payment obligations in favour of Onion Lake (whether past due, presently due, or due in the future), including bad debts or other accounts that may or may not be collected. 2. The Applicant, Canadian Taxpayers Federation (“CTF”), seeks the following remedies: (

a) An Order pursuant to

section 11 of the Act requiring Onion Lake to publish on its Internet site or another publicly available Internet site, within 21 days, copies of: (

i) its audited consolidated financial statements for the fiscal years 2014 and 2015 ; (ii) the

Schedule of Remuneration and Expenses Onion Lake prepared or had prepared for the fiscal years 2014 and 2015; (iii) all written reports provided by an auditor respecting the consolidated financial statements for the fiscal years 2014 and 2015 ; and (iv) all auditor’s reports or review engagement reports that were prepared respecting the

Schedule of Remuneration and Expenses for the fiscal years 2014 and 2015 . (Emphasis added) [ 73 ] The Enforcement Application is therefore unequivocal: Ms. Stick and CTF were seeking orders that related only to the production of the financial records for 2014 and 2015. Notwithstanding the explicit nature of the relief they were seeking, the Respondents argue that the Enforcement Application should be interpreted as containing a request for ongoing disclosure.

They point to two general statements made in the grounds for seeking the relief requested, which stated that they were seeking orders “requiring Onion Lake to comply with its disclosure obligations”. In my respectful view, these equivocal statements do nothing to detract from the specificity of the relief requested in the Enforcement Application. The Respondents can point to no other statement in the evidence, pleadings or submissions that would support a suggestion that, when they presented themselves before Barrington-Foote J., they were seeking an order directing ongoing compliance with the FNFTA .

Nothing in the written submissions filed by the Respondents in the Court of Queen’s Bench suggests the Respondents were seeking any remedies beyond those claimed in the Enforcement Application. The Respondents also conceded in oral argument in this Court that neither they, nor Barrington-Foote J., had raised the possibility of ordering relief that went beyond that requested in the Enforcement Application. [ 74 ] Nothing in the pleadings or proceedings supports the idea that Barrington-Foote J. intended to grant relief, on his own accord, that went beyond that requested by the Respondents.

Consistent with basic rules of procedural fairness, Rule 1-4(2) of the Rules limits the authority of the Court to grant relief not claimed by a plaintiff or applicant:

(2) The Court may grant a remedy whether or not it is claimed or sought in an action on providing the parties with: (

a) a notice of its intention to grant a remedy; and (

b) an opportunity to respond. [ 75 ] It is inherent in this Rule that a party must be given notice and an opportunity to respond, before a Court grants relief that goes beyond that which has been requested by the moving party. The importance of this was discussed in Kirk v Kirk , 2017 SKCA 97 , [2018] 1

WWR 123 [Kirk]. In that case, after several proceedings had been commenced, siblings reached an agreement about how to deal withvarious matters in contention amongst them. One group of the siblings brought an application in the Court of Queen’s Bench seeking anorder giving effect to the agreement. The judge in that case found the agreement to be legally binding but then went on to determineseveral “implementational” issues associated with it (at para 2). This Court held that the judge erred by addressing these issues withoutaffording the affected parties the chance to present evidence or make submissions.

Chief Justice Richards expressed his understanding asto why the judge was motivated to assist the parties, who “had become bogged down in a variety of proceedings” (at para 26).Nonetheless, he concluded that procedural fairness demanded that no shortcuts be taken: [27] The reality, however, is that the Chambers judge went too far in his effort to help bring the matters before him to a resolution.Rule 1-4 does indeed indicate that a judge may grant a remedy whether or not it is claimed or sought in the proceedings.

This, clearly,reflects the view that judges have a responsibility to ensure that a multiplicity of proceedings is avoided if possible and that controversiesare resolved as fully, finally and fairly as circumstances allow. [28] Nonetheless, and at the same time, Rule 1-4 also expressly preserves and acknowledges the rights of parties to be heard. As will berecalled from paragraph 24, above, Rule 1-4 empowers a judge to grant a remedy that has not been claimed or sought but only if (

a) noticeof his or her intention in this regard has been given to the parties, and (

b) the parties had been afforded an opportunity to respond. [29] This important qualifier on a judge’s right to grant unsolicited remedies reflects the principle that a fair hearing is one where theparties know the case they have to meet and have an opportunity to present evidence and make submissions in relation to it. This is afundamental concept and it cannot be sacrificed in the quest for efficiency or the speedy resolution of disputes.

See, for example: Scott vVanston, 2016 SKCA 75 at para 70, [2016] 9 WWR 256; Koback v Koback, 2013 SKCA 91 at para 58, [2013] 10 WWR 491; Whelan vWhelan, 2007 ABCA 282 at paras 5–6, 43 RFL (6th) 274; Parlee v McFarlane (1999), (NB CA), 171 DLR (4th) 292(NBCA) [Parlee]. (Emphasis in original) [76] As I have reviewed, in this case, the Respondents had requested only that the Court order disclosure relating to the fiscal years2014 and 2015.

I see nothing in Barrington-Foote J.’s written reasons that would lead to the conclusion that he intended to order relief thatwent beyond what was requested by the Respondents (applicants before him). To the contrary, in paragraph 3 of his reasons, Barrington-Foote J. wrote: [3] For the reasons that follow, I have decided that the applicants are entitled to the relief sought pursuant to the Act, and that theOnion Lake application must be dismissed.

Given the breadth of the relief provided by the Act, I did not find it necessary t o de al with Ms.Stick’s applications in the alternative. (Emphasis added) [77] The idea that Barrington-Foote J. intended to direct ongoing compliance with the FNFTA is derived solely from the concludingparagraph of his reasons, which was then imported into the Compliance Order: [42] It is accordingly ordered that Onion Lake comply with the duties imposed by s. 7 and s. 8 of the Act, within 30 days of the date ofthis fiat.

The parties’ have leave to speak to costs. [78] However, in the context of the reasons as a whole, this general language is as easily capable of being interpreted as directingthat Onion Lake provide the financial documents requested in the Enforcement Application as requiring ongoing compliance with theFNFTA. Moreover, the Respondents’ proposed

interpretation necessarily requires the conclusion that Barrington-Foote J. ignored Rule 1-4and made an order that stepped beyond the relief they requested in the Enforcement Application. It also ignores the express statement thatthe Respondents were “entitled to the relief sought” (at para 3).When given a choice between two

interpretations of an order, I prefer thatwhich is consistent with basic rules of procedural fairness and the Rules. [79] In this case, while it is possible that the Chambers judge might, of her own initiative, have figured all of this out, it seems clearto me that she failed to look at this context because she did not have the benefit of receiving submissions from Onion Lake’s counsel. Ihave little doubt that, if the Chambers judge had been alerted to the fact that the Respondents were seeking to interpret the ComplianceOrder as a grant of relief that went beyond what they had requested from Barrington-Foote J., she would have rejected that

interpretationand with that would have dismissed the application for contempt. [80] An

interpretation that limits the Compliance Order to a direction that Onion Lake provide copies of and post its financialrecords only for 2014 and 2015 does not, as the Respondents suggest, involve a collateral attack on the Compliance Order. Instead, itinvolves simply reading the Compliance Order in the context in which it was made. I also do not see this

interpretation as involving acollateral attack on the Appeal Decision. Justice Ryan-Froslie described the sole issue in that appeal to be “whether the Chambers judgeerred in exercising his discretion not to grant the stay requested by Onion Lake” (at para 20). The scope of the Compliance Order, and inparticular whether it directed ongoing compliance, was not at stake in that appeal. The result of the appeal to this Court was, therefore,simply to uphold the Compliance Order, whatever it meant. [81] I would, finally, deal with the submission that an

interpretation that limits the Compliance Order to the 2014 and 2015 financialdocuments engenders relitigation of issues already determined by the Court of Queen’s Bench. In my respectful view, this is not apersuasive reason to give that order a reach beyond what was requested in first instance. The argument provides no answer to the fataldefect associated with the failure to provide advance notice to Onion Lake that this type of order was being requested.

The law providesother tools that prevent a party from inappropriately relitigating decided issues, including through the application of principles of issueestoppel and allied doctrines and the Court’s jurisdiction to award costs. [82] In conclusion, in my respectful view, the Chambers judge erred by interpreting the Compliance Order as directing Onion Laketo provide any financial records other than for 2014 and 2015. Her finding was the foundation for her conclusion that Onion Lake was incontempt of the Compliance Order when it failed to provide to Ms.

Stick, and to post on the internet, its financial records for 2017 and2018. As a result, the finding that Onion Lake was in contempt must be set aside.

C. Other matters 1. Scope of ss. 7 and 8 of FNFTA [83] I have concluded that the Compliance Order directed nothing more than that Onion Lake provide the financial documentsrequested in the Enforcement Application without reference to several other arguments that Onion Lake has brought forward. One of thesewas that ss. 7 and 8 of FNFTA do not allow a superior court to make an order that relates to future years. The Chambers Decision makesno reference to this argument, presumably because Onion Lake was not in court to make it.

Not only do I consider it unnecessary toresolve this issue for the purposes of deciding this appeal, but it is more in keeping with this Court’s role as a court of review that, if it isintended to be raised in the future as a reason why an order directing future compliance not be made, it be first mooted and decided by ajudge of the Court of Queen’s Bench. 2. Fresh evidence [84] Onion Lake invited this Court to consider the affidavit sworn by its associate director of operations.

The affidavit bears onseveral issues that would have been alive had I determined that the Compliance Order directed ongoing compliance with the FNFTA. Forexample, one of Onion Lake’s arguments was that even if a breach of the Compliance Order was made out, the Chambers judge retained aresidual discretion not to find Onion Lake in contempt. Onion Lake argues, among other things, that the evidence shows that it attemptedto comply in good faith with what it understood were its obligations under the Compliance Order.

On the authority of Carey andGreenberg v Nowak, 2016 ONCA 949, 135 OR (3d) 525, it says that the “Chambers judge exercised her discretion unreasonably” infinding it in contempt of the Compliance Order. Of course, many of these facts relating to Onion Lake’s attempted compliance with theorder were unknown to the Chambers judge – which was the point of Onion Lake’s application for fresh evidence in this Court.

Withoutin any way deciding if Onion Lake would have succeeded in its argument on this point, or other points to which the fresh evidence wasdirected, the affidavit could have played a decisive role in the determination of this appeal, should I not have decided the appeal on theissue of the proper

interpretation of the Compliance Order. As a result, the question of the admission of this evidence bears on issues ofcosts and I will say something about the application. [85] Both parties approached the admission of the affidavit with reference R v Palmer, (SCC), [1980] 1 SCR 759 at775 [Palmer]. According to Palmer, the evidence (

a) will not be admitted if, by due diligence, it could have been adduced before the first-instance court; (

b) must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (

c) must be credible inthe sense that it is reasonably capable of belief; and (

d) must be such that, if believed, could reasonably, when taken with other evidencebefore the first-instance court, be expected to have affected the result. The Palmer criteria “reflect the balancing of competingconsiderations relevant to the interests of justice when fresh evidence is offered to attack a determination made at trial” (R v W.(W.)(1995), (ON CA), 25 OR (3d) 161 (WL) (CA) at para 18 [W.(W.)]). I note that the Palmer test is not applied in allcontexts.

For example, in W.(W.), Doherty J. observed that where the material sought to be admitted was “not directed at a finding made attrial, but instead challenge[d] the very validity of the trial process”, different considerations should apply (at para 18; see also NationalTrust Co. v 1117387 Ontario Inc., 2010 ONCA 340 at para 41, 52 CELR (3d) 163; and Langstaff v Marson, 2014 ONCA 510 at para 22,121 OR (3d) 369).

It seems to me that where, as occurred here, the party seeking to adduce the evidence to this Court did not have theopportunity to present evidence to the first instance court, it may be appropriate to relax some aspects of the Palmer test.

In a context likethe present case, focus should, in my respectful view, be on the question of due diligence and relevance, rather than whether the admissionof the evidence might have affected the result itself. [86] Among other arguments they advance, the Respondents say that the due diligence requirement cannot be met because Mr.Pahtayken was aware of the Contempt Application. I cannot agree. The evidence is that Mr. Pahtayken understood – correctly, I might add– that Onion Lake was represented by legal counsel in these proceedings. The evidence is, further, that Mr.

Pahtayken believed –mistakenly, as it turned out – that Onion Lake’s legal counsel was aware of the Contempt Application and was therefore taking theappropriate steps to present Onion Lake’s response to it. Although, as I have explained, the service of the Contempt Application onMr. Pahtayken constituted effective service pursuant to the Rules, the idea that this answers the due diligence question confuses therequirement of valid service with the question of whether a party has exercised due diligence in the presentation of evidence to the Court.

Ido not intend to suggest that parties can ignore the valid service of process, or that the fact of service is not relevant to whether the partyserved has acted diligently for the purposes of considering whether evidence should be admitted on an appeal. However, in the uniquecircumstances of this case, I do not hesitate to conclude that the first part of the Palmer test is met. As stated in Thompson v Thompson,2007 SKCA 142 at para 42, 288 DLR (4th) 344, to “exercise due diligence, one must be aware a meaningful issue exists”.

Here, OnionLake could not file evidence in connection with proceedings that those responsible for directing its legal proceedings were not aware of. [87] The Palmer test reflects the compelling policy objective that there be finality to litigation. Parties are expected to put their bestfoot forward before first-instance decision-makers. Here, I have no doubt that if Onion Lake had been aware of the Contempt Applicationit would have presented the affidavit evidence for consideration by the Chambers judge.

Ultimately, this would have compelled theadmission of the evidence if it had not been possible to decide Onion Lake’s appeal without reference to it. For this reason, in the unusualcircumstances of this case, I would grant the application to admit the fresh evidence even though I have not needed to refer to it for thepurposes of deciding this appeal. 3.

Costs [88] Premised on the idea that Onion Lake had not complied with ss. 7 and 8 of the FNFTA for years after 2016, the Respondentsasked that the costs order made in the Court of Queen’s Bench remain undisturbed and that they be awarded the costs of this appeal in anyevent of the cause. I cannot accept this submission. The fundamental issue before the Court is whether Onion Lake was in breach of theCompliance Order. This order was made on the application of the Respondents. My conclusion is that the Compliance Order has not beenbreached by Onion Lake.

As a result, the application for contempt was ill-founded and Onion Lake, as the successful party, is entitled toits costs in opposing that application.

[ 89 ] As I have determined to allow Onion Lake’s appeal, the order for costs against it in the Court of Queen’s Bench must be set aside and I would also award it costs of the appeal in the usual way. Because of the issues at stake in this appeal, it is appropriate that costs be taxed under Column 4. I would include in this award of costs the application for the admission of fresh evidence, which I would have considered if I had not concluded that, when properly interpreted in the context of the previous proceedings, the Compliance Order did not direct the production of financial records for years after 2015. V.

Conclusion [ 90 ] The Chambers judge based her finding of contempt on the idea that the Compliance Order required Onion Lake to publish its financial records on an ongoing basis. Because the Respondents had not requested an order of this scope, I would not interpret the Compliance Order as containing this direction. This does not mean that Onion Lake has a satisfactory answer for why records for years after 2016 should not be published or that the Court of Queen’s Bench cannot make an order directing this to occur. Those issues, should they remain contentious, are left to be resolved in other proceedings.

However, the bottom line is that Onion Lake did not breach the Compliance Order . [ 91 ] For the reasons I have given, I would allow Onion Lake’s appeal and set aside the order made in the Court of Queen’s Bench finding Onion Lake to be in contempt of court, with costs in its favour as I have directed. “Leurer J.A.” Leurer J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Caldwell J.A.” Caldwell J.A.