Mann v Mann, 2022 SKCA 94

Court of Appeal for Saskatchewan Docket: CACV3505 Citation: Mann v Mann , 2022 SKCA 94 Date: 2022-08-11 Between: James Mann Applicant/Appellant (Applicant) And Jason Mann and 101187148 Saskatchewan Ltd. Respondents/Respondents (Respondents) And Peter T. Bergbusch, Q.C. and Miller Thomson LLP Respondents/Non-Parties (Non-Parties) Before: Leurer J.A. (in Chambers) Disposition: Application dismissed Written reasons by: The Honourable Mr.

Justice Leurer On application from: QBG 692 of 2019, Saskatoon Application heard: June 27, 2022 Counsel: James Mann on his own behalf Oluwadamilola Asuni for James Mann (limited retainer) Robert Hawkes, Q.C. for Jason Mann Randall Sandbeck, Q.C. for 101187148 Saskatchewan Ltd., Peter Bergbusch, Q.C. and Miller Thomson LLP Leurer J.A. I.

INTRODUCTION [ 1 ] The appellant, James Mann, applies for an order disqualifying lawyers from Miller Thomson LLP, counsel of record for the respondent, 101187148 Saskatchewan Ltd. [7148], “from continuing to represent the respondent in this court and in any other court”. [ 2 ] This appeal, and several others related to it, arise out of an ongoing dispute principally between James Mann and the respondent, Jason Mann. Because James Mann and Jason Mann share a surname, I will refer to them by their first names. [ 3 ] James and Jason are equal shareholders in 7148.

Their dispute also implicates other corporations, including AgraCity Crop & Nutrition Ltd. [AgraCity], which is jointly owned by James and Jason, and Farms and Families of North America Inc. (carrying on business as Farmers of North America) [FNA], which is owned solely by James. [ 4 ] There is a complicated history of corporate and commercial dealings among these parties. Miller Thomson provided advice in relation to many of these dealings and other matters. In some cases, there is disagreement as to the client for whom that law firm acted.

The application to disqualify Miller Thomson is based on the idea that its past roles means that it should not now be allowed to act against James. [ 5 ] I have concluded that James’ application must be dismissed. In the reasons that follow, I will first address the request for an order disqualifying Miller Thomson from acting in relation to ongoing matters in other courts. After that, I will consider the request that Miller Thomson be disqualified from acting in the various appeals involving the parties before this Court. II. REQUEST THAT MILLER THOMSON BE DISQUALIFIED FROM ACTING IN OTHER COURTS

[6] My sole authority in relation to James’ application is found in s. 20(1) of The Court of Appeal Act, 2000, SS 2000, c C-42.1,which provides as follows: Judge in chambers 20(1) A single judge sitting in chambers may hear and dispose of an application or motion that is incidental to an appeal or matter pendingin the court and that does not involve the decision of the appeal on the merits. (Emphasis added) [7] James has offered no case authority to justify a conclusion that an order disqualifying Miller Thomson from acting in othercourts is “incidental” to an appeal or matter pending in the court. [8] In Strata Plan 1229 v Trivantor Investments International Ltd. (1996), (BC CA), 24 BCLR (3d) 292 (CA) at para 25 [Strata Plan 1229], the British Columbia Court of Appeal construed the words “an order incidental to theappeal” found in that province’s legislation to constitute authority for that Court to allow for the making of “an order that has a minor orsubordinate role in relation to the outcome of the appeal”.

This definition was approved by Wilkinson J.A. in Stevenson Estate v Bank ofMontreal, 2009 SKCA 11 at para 10, 320 Sask R 168, which in turn was adopted by Schwann J.A. in Canadian National RailwayCompany v SSAB Alabama Inc., 2019 SKCA 33 at para 34 [Canadian National Railway]. [9] The language found in s. 20 is similar to that used in s. 10, which provides that this Court has both appellate jurisdiction and“any original jurisdiction that is necessary or incidental to the hearing and determination of an appeal”. The Honourable Stuart J.

Cameronin Civil Appeals in Saskatchewan: The Court of Appeal Act & Rules Annotated, 1st ed (Regina: Law Society of Saskatchewan Library,2015) [Annotated Act and Rules], has provided helpful guidance as to when, incidental to an appeal, this Court may exercise its originaljurisdiction (at 63): To the extent

section 10 confers such jurisdiction on the Court of Appeal, it does so only to the extent this jurisdiction is necessary orincidental to the hearing and determination of a properly constituted appeal.

The effect is to supplement the appellate jurisdiction of thecourt to the end of ensuring, to the extent reasonably possible, that the whole of the matter in issue on appeal may be efficiently andeffectively determined without the need, unless this should prove unavoidable, of having to direct a new hearing or to remit the matter tothe court or tribunal of first instance. (Italicized emphasis in original; underlined emphasis added) [10] The language of s. 10 is broader than that found in s. 20 – allowing the Court to exercise original jurisdiction where a matter isnecessary or incidental.

Even with this expanded power, the guidance provided in the Annotated Act and Rules links the determination asto whether an order falls within the scope of the statutory power to whether it can be connected to the issues to be decided in the appeal. [11] However the matter is viewed, I cannot see how an order disqualifying Miller Thomson from acting in other courts can be saidto be incidental to any matter pending in this Court.

The disqualification of counsel in other courts does not play a “minor or subordinaterole in relation to the outcome of the appeal” (Strata Plan 1229 at para 25) – it plays no role whatsoever. Similarly, the making of such anorder in relation to the representation before other courts plays no role at all in the efficient and effective determination of this or any otherappeal pending in this Court, to paraphrase the Annotated Act and Rules. [12] Justice Schwann reached a similar conclusion in Canadian National Railway.

There, she found that, in an appropriate case, s.20 of The Court of Appeal Act, 2000 would allow a judge of this Court sitting in Chambers to make an order disqualifying counsel fromrepresenting a party in an appeal. However, she also concluded that she had no authority to make an order that would have disqualifiedcounsel from acting in the underlying action.

She found that request to be “undoubtedly beyond the jurisdiction of s. 20(1), since it is farmore than being incidental to a matter before this Court” (at para 36, emphasis in original). [13] Based on all of this, I must conclude that, as a single judge of this Court sitting in Chambers, I have no power to make an orderdisqualifying Miller Thomson from acting in other courts. III. REQUEST THAT MILLER THOMSON BEDISQUALIFIED FROM ACTING IN THIS COURT A.

Jurisdiction and issue [14] As I have noted, in Canadian National Railway, Schwann J.A. found in s. 20 of The Court of Appeal Act, 2000 the authority fora judge of this Court sitting in Chambers to declare counsel to be disqualified from acting in an appeal. Justice Sherstobitoff reached thesame conclusion in Shingoose v Harripersad, 2005 SKCA 102, 275 Sask R 125 [Shingoose]. These two decisions satisfy me that a singlejudge of this Court sitting in Chambers has jurisdiction to grant this part of the relief requested by James.

The question is whether thispower should be exercised. [15] Consideration of this question begins with a closer examination of the procedural history of this and several other appeals. I willthen review the basis for the request that I disqualify Miller Thomson from acting in relation to these matters. B. Some further background [16] In May of 2019, James brought an originating application against Jason and 7148, seeking to invalidate certain corporateactions. Miller Thomson acted on behalf of 7148 in opposition to this application. Jason was separately represented.

[ 17 ] This application came before a Court of Queen’s Bench judge sitting in Chambers, who reserved his decision after argument was made. Later, while the matter was still under reserve, James served a notice of application seeking an order disqualifying Miller Thomson from acting as counsel for 7148 [2019 Disqualification Application]. [ 18 ] The Chambers judge issued a fiat on September 27, 2019, dismissing James’ original application, with more detailed reasons to follow. These detailed reasons were provided on October 2, 2019: Mann v Mann , 2019 SKQB 262 .

On October 9, 2019, the Chambers judge issued a separate fiat stating that, given that decision, he was “now functus officio ” and, accordingly, “the hearing related to the possible disqualification of [Miller Thomson]” would not proceed. [ 19 ] James filed a notice of appeal from the decision dismissing his originating application. This appeal has been assigned number CACV3505.

However, his appeal did not encompass the Chambers judge’s determination that he would not decide the 2019 Disqualification Application, nor did James take any steps to pursue that application while many other matters proceeded in the Court of Queen’s Bench. [ 20 ] The filing of this notice of appeal did not cause matters to stand still in the Court of Queen’s Bench. Several other proceedings were initiated. Throughout, Miller Thomson appeared as counsel of record for 7148 and AgraCity. These proceedings led to the making of various orders, including the following: (

a) Farms and Families of North America Inc. (Farmers of North America) v Mann (6 December 2019) Saskatoon, QBG 1336 of 2018; (

b) Mann v Mann ; Farms and Families of North America Inc. (Farmers of North America) v AgraCity Crop & Nutrition Ltd. (7 April 2020) Saskatoon, QBG 948 of 2017; QBG 1336 of 2018; (

c) Mann v Mann ; Farms and Families of North America Inc. (Farmers of North America) v AgraCity Crop & Nutrition Ltd. (9 April 2020) Saskatoon, QBG 948 of 2017; QBG 1336 of 2018; (

d) Mann v Mann (30 April 2020) Saskatoon, QBG 1548 of 2018; (

e) Farms and Families of North America Inc. (Farmers of North America) v AgraCity Crop & Nutrition Ltd. (16 April 2021) Saskatoon, QBG 1336 of 2018; and (

f) Mann v Mann (21 December 2021) Saskatoon, QBG 948 of 2017. At no point during the proceedings leading to the making of these orders did James formally pursue the conflict issue he identified in the 2019 Disqualification Application. [ 21 ] James launched an appeal from each of these orders (respectively CACV3536, CACV3634, CACV3637, CACV3649, CACV3815 and CACV3986). As a result of all of this, there are now seven appeals pending in this court pertaining to the dispute between James and Jason.

In all but one of these appeals, Miller Thomson appears as counsel of record for either 7148 or AgraCity. [ 22 ] While matters have been actively litigated in the Court of Queen’s Bench, very little was done by the appellants to prosecute any of the seven appeals. On October 5, 2020, Schwann J.A. made orders directing that the five oldest of these appeals be perfected on or before November 4, 2020.

Following the making of these orders, appellants’ factums were filed, as were appeal books, although the former amounted to little more than a reproduction of the notices of appeal and the latter were, at least in some instances, incomplete. The seven appeals were then brought under case management. [ 23 ] At a case conference held on April 19, 2022, James advised that he was again pursuing an application in the Court of Queen’s Bench to disqualify Miller Thomson from continuing to act for 7148 and AgraCity. At the same time, he indicated that he intended to seek similar relief in this Court.

He asked that he not be required to take any steps in prosecution of any of the seven appeals until the issue of Miller Thomson’s representation in them was determined. The respondents agreed with this latter request and the application now before me was filed.

Although it is styled as an application in CACV3505, all parties approached the argument before me on the basis that my determination of the conflict issue in this appeal would apply to the other six appeals as well. [ 24 ] The final background matter of note is that, at the hearing of James’ application to disqualify Miller Thomson, I was advised that James had brought the contemplated application in the Court of Queen’s Bench for an order disqualifying Miller Thomson from acting in matters adverse to him.

The evidence supporting the most recent application in the Court of Queen’s Bench echoes that originally filed in connection with the 2019 Disqualification Application. The application was argued on June 15, 2022, and the judge who had heard the matter has reserved his decision. C. Evidence and arguments [ 25 ] In an affidavit, James has given detailed evidence about what he calls the “FNA Group of Companies”. His affidavit includes a history of his dealings with Jason and various corporate entities, only some of which I have mentioned in these reasons.

James also describes the role played by Miller Thomson lawyers in many commercial transactions. He links parts of this to the disputes that have given rise to the seven appeals that are pending in this Court. [ 26 ] James invokes many of the leading cases dealing with lawyers’ conflicts of interest. He argues that the evidence shows that Miller Thomson has received confidential information attributable to a solicitor and client relationship relevant to the issues in the seven appeals and that there is a risk that the confidential information will be used to his prejudice.

He further says that, because of this, it is in the interests of justice for Miller Thomson to be removed as counsel in all appeals pending in this Court touching on his disputes with Jason. [ 27 ] In opposition to James’ motion, the respondents have filed two affidavits sworn by Peter Bergbusch and Stewart Berringer,

partners of Miller Thomson. These affidavits attach affidavits that were sworn previously in connection with the 2019 DisqualificationApplication by James, as well as by both Mr. Bergbusch and Mr. Berringer. Mr. Bergbusch and Mr. Berringer both confirm the truth oftheir previous affidavits. In addition to providing detail of the Miller Thomson representation, these affidavits disclose that, at least asearly as August 23, 2018, James’ counsel asserted that Miller Thomson was in a conflict of interest.

Miller Thomson replied to thatassertion with an explanation as to why it did not consider a conflict of interest to exist. The remainder of the respondents’ evidenceexplains this assertion and also provides further detail about the procedural history of the dispute between James and Jason, and thevarious corporations. [28] The respondents present two main arguments. First, they take the position that, when the evidence is critically examined, noconflict of interest exists.

In this regard, they say that when acting for various companies, Miller Thomson has consistently been instructedby Jason, and its dealings with James or the “FNA Group of Companies” have been limited and unrelated to the issues in the presentdispute. They say that no confidential information has been shared. Second, they submit that James has waived his right to raise anallegation of the existence of a conflict of interest. D.

Analysis [29] While I agree with the respondents that I should make no order disqualifying Miller Thomson from appearing as counsel inthese appeals, my reasons for doing so are not as broad as the grounds they present to oppose this relief. [30] My consideration of James’ request begins with a proper understanding of the role of this Court. I do this fully cognizant of thefact that, as a single judge sitting in Chambers, I am not acting as the Court. However, my role as a single judge is defined by my place asa member of it. [31] This Court is one of appeals.

It reviews the decisions made by other courts and tribunals for error. This means that, in mostcontexts, relief that is being requested for the first time should be sought in the court or tribunal with original jurisdiction and not in thisCourt. In Valley Beef Producers Co-operative Ltd. v Farm Credit Corp., 2002 SKCA 100 at para 35, [2002] 11 WWR 587, with referenceto Kourtessis v Minister of National Revenue, (SCC), [1993] 2 SCR 53 at 69, Cameron J.A. reminded that appeals “aresolely creatures of statute”.

He described the primary purpose of The Court of Appeal Act, 2000 to be “to confer and give effect to rights ofappeal” (at para 45). [32] In Geller v Saskatchewan (1985), (SK CA), 48 Sask R 239 (CA) [Geller], the appellant sought judicialreview of certain governmental acts relating to her dismissal as the director of the Saskatchewan Human Rights Commission.Saskatchewan applied to strike the motion on the grounds that it should have been brought to the Court of Queen’s Bench. In this context,Cameron J.A. wrote: [4] Rather than apply in the first instance to the Court of Queen’s Bench, Mr.

Taylor, as he and others have successfully done in thepast, applied directly to this court. We appreciate his desire to have his client’s case dealt with in the most expeditious and economicalway. At the same time, however, there is nothing out of the ordinary in the application, and the Court of Queen’s Bench is empowered todeal with it.

This being a court whose primary jurisdiction is appellate, we think that only in special cases, of which this is not one, or inextraordinary circumstances should this court entertain, in the first instance, an application inviting the exercise of its concurrent originaljurisdiction. Such applications, generally speaking, are to be made to the Court of Queen’s Bench. (Emphasis added) [33] The idea that this Court should be a first-instance decision maker only in “special cases” or “extraordinary circumstances” hasbeen emphasized in many subsequent cases.

See, for example only: Maurice v Priel (1987), (SK CA), 60 Sask R 241(CA) [Maurice]; Royal Canadian Mounted Police v Commission of Inquiry (Sask.) (1992), (SK CA), 100 Sask R 313(CA) [Royal Canadian Mounted Police]; Pearlman v University of Saskatchewan, 2006 SKCA 105, 289 Sask R 36 [Pearlman]; Hartwig vSaskatchewan (Commissioner of Inquiry), 2007 SKCA 41 [Hartwig]; Stevenson Estate v Bank of Montreal, 2009 SKCA 11 at paras 13–15, 320 Sask R 168; and Pederson v Saskatchewan (Minister of Social Services), 2016 SKCA 142 at para 24, 408 DLR (4th) 661. [34] This case is very different from those where orders were made in first instance in this Court.

For example, in Maurice, a judgeof the Court of Queen’s Bench sought to prohibit the Law Society of Saskatchewan from inquiring into and determining matters in aprofessional complaint against him. While the appeal was resolved on the issue that the judge was not a member of the Law Society,Bayda C.J.S. explained that the “reason for making the application returnable in this court and not the Court of Queen’s Bench is self-evident”.

He found that it was “‘in the interests of justice’ within the meaning of that phrase as used in rule 37 of the Court of AppealRules that this court should hear the application in the first instance”. It was for this reason he concluded that the “application falls intothe category of a ‘special case’ as contemplated by Geller and thus beyond the scope of the direction in Geller” (at para 40).

To similareffect are Royal Canadian Mounted Police, Pearlman and Hartwig, each of which involved, in one way or the other, a challenge to actionsor decisions by judges of the Court of Queen’s Bench, rendering it appropriate that the first-instance challenge be made in this Court.Finally, this Court exercised inherent jurisdiction in Moore v Hurst, 2021 SKCA 27, 59 CCPB (2d) 167, to set aside an order of the Courtof Queen’s Bench as a nullity, since, if such jurisdiction were not exercised, an order made without jurisdiction would have continued tostand and this would have been an injustice.

These cases do not purport to represent every circumstance in which this Court will make afirst-instance order. However, collectively, they illustrate that the Court has consistently declined to exercise its original jurisdiction wherethe matter could, and should, have been brought to the Court of Queen’s Bench.

If all of this is true for the Court, it most certainly mustalso be so for a single judge of this Court sitting in Chambers. [35] The facts here do not present a special case or extraordinary circumstance that would justify a determination to be made in firstinstance by a judge of this Court as to whether Miller Thomson is in a conflict of interest. Rather, the proper place for James to have thisissue first determined is in the Court of Queen’s Bench. This is where he first raised the issue in 2019. James has offered no compellingreason why he could not have done so after that date.

It is where he has pursued the matter again in 2022. [36] I am reinforced in my conclusion that it is inappropriate for me to make a first-instance decision in relation to the alleged

conflict by the facts, by the outcome and reasons in both Shingoose and Canadian National Railway . [ 37 ] Shingoose arose in the context of a parenting dispute. An order was made, and appeal taken from it. At the same time, a Court of Queen’s Bench judge had found the law firm that represented one of the parties to be in a conflict of interest that disqualified them from acting in that dispute. Notwithstanding the second order, the law firm went on record for the appellant in the appeal from the parenting order.

This prompted an application by the respondent for an order removing them as counsel of record in the appeal. Justice Sherstobitoff, who granted this order, clearly did so based on the finding that had been made in the Court of Queen’s Bench.

After noting that the law firm “has been found by a court of competent jurisdiction to be disqualified from acting because of conflict of interest” he held that it was “open to this Court, in these circumstances, to decline to hear the person in respect of the matter from which he has been disqualified, except through his client or independent counsel retained by that client” (at para 9). [ 38 ] In Canadian National Railway , an application was brought to disqualify counsel who appeared, for the first time, in the context of an application for leave to appeal.

The applicant for the order removing them justified bringing the application before a judge of this Court in Chambers because the lawyers had not been on record in the Court of Queen’s Bench. As I have noted, Schwann J.A. found within s. 20(1) of The Court of Appeal Act, 2000 the jurisdiction to order removal of counsel in an appeal. However, she declined to make that order. Justice Schwann pointed to seven different factors that she stated had “guided the exercise of [her] discretionary authority” (at para 40).

Although the overall factual situation was different than that here, several of the factors relied on by Schwann J.A. in her determination not to make an order disqualifying the law firm resonate in the present circumstances. These include: (

a) the lack of connection between the representation by the law firm in the appeal to the impairment of the applicant’s position in the ongoing dispute between the parties; (

b) the fact that the lawyer had accepted the retainer in good faith, believing that he was not in a solicitor-client relationship with the applicant; (

c) the fact that the applicant “knew or should reasonably have known” of the lawyer’s involvement with the other party for two years prior to the application and, in spite of this, “no conflict or loyalty concerns were raised” for some time (at para 40(e)); and (

d) the respondent’s right to a choice of counsel. In the latter regard, Schwann J.A. noted that “a litigant’s right to be represented by counsel of choice [is] a fundamental value in our justice system”, which “is not discarded lightly without a serious and compelling reason to do so” (at para 40(f)).

Ultimately, Schwann J.A. concluded that she was “not persuaded the integrity and repute of the administration of justice would be tarnished if [the lawyer] is allowed to participate in the leave to appeal application” (at para 41). [ 39 ] In the circumstances of this case, I prefer not to rely on the simple fact of delay by James in making the application to disqualify Miller Thomson or that he has waived his right to raise the issue of waiver. As I understand it, these are issues that have been raised in the application that has been argued and is under reserve in the Court of Queen’s Bench.

For this reason, it is best that I offer no comment on them. However, I would translate the same values that stand behind these considerations and apply them to James’ failure to pursue his application in the Court of Queen’s Bench for seeking a disqualifying order from a judge of this Court. [ 40 ] The evidence before me is unequivocal that James had ample opportunity to apply in the Court of Queen’s Bench before seeking the relief that he has requested that I grant in the context of the application before me.

Specifically, since at least the time of the 2019 Disqualification Application, James has been aware of the same basic facts as those which stand behind the request he has made in this Court. He was aware of these facts when the argument was first made in connection with the application leading to the appeal assigned CACV3505. He was aware of these facts when the argument was made in connection with the orders made in the Court of Queen’s Bench leading to the other appeals to this Court.

Notwithstanding this knowledge, after he was told that the 2019 Disqualification Application would not be heard, he did not press ahead with his disqualification application in the Court of Queen’s Bench until sometime in 2022. Nothing in any of this presents a special case or extraordinary circumstance that would justify me making a decision about this in first instance. [ 41 ] I am also satisfied also that a refusal by me to determine the conflict issue is consistent with the values that underpin the decisions that define when lawyers are in a conflict of interest.

James acknowledges that his arguments depend on the proposition that Miller Thomson is in possession of confidential information that should not be used to his prejudice. James has not explained, in a way that I can understand at least, how Miller Thomson can make use of confidential information in the context of this or the other appeals now pending in this Court. In this regard, although James has referred to the possibility of a fresh evidence application in some of the appeals, James has not particularized what that evidence will be.

Moreover, the test for the admission of that evidence generally requires, among other things, that it could not, by the exercise of due diligence, have been adduced at the earlier hearings leading to the appeals: Barendregt v Grebliunas , 2022 SCC 22 at para 36 , 469 DLR (4th) 1 . Having regard to these two facts, nothing has been presented that allows me to see a realistic risk of the misuse of confidential information that does not already form part of the record in the Court of Queen’s Bench. Beyond any fresh evidence, the records for these appeals have already been set.

Any misuse of confidential information has already occurred in proceedings in the Court of Queen’s Bench. If Miller Thomson were to be disqualified, and new counsel was to be appointed, that counsel would have access to exactly the same record as now before this Court.

In other words, I see no danger of further damage to James’ interests if Miller Thomson is allowed to continue the representation that it has begun in the various proceedings in the Court of Queen’s Bench. [ 42 ] My conclusion that it is inappropriate for me to make a first-instance order makes it unnecessary for me to decide if a conflict of interest exists or, assuming it does exist, if James has waived that conflict. I consider it both appropriate and important that I offer no comment on either of these two issues.

The reason for this is that, as I understand it, these two issues are also before the Court of Queen’s Bench judge who has heard the recent application made by James in that court. That judge should be entitled to decide these issues without being encumbered with what, in context, would be obiter comments from me. The same is true for the division of this Court that would hear any appeal that may be taken from any order that that judge may make, should such appeal be taken. IV.

CONCLUSION [ 43 ] Based on all of this, I am satisfied that I should not make an order disqualifying Miller Thomson from acting in this or any other court. [ 44 ] Jason, independently, and 7148, Mr. Bergbusch and Miller Thomson, together, are each entitled to costs against James, which I fix at $3,500 for each. These costs are payable forthwith.

“Leurer J.A.” Leurer J.A.