Loraas v Loraas Disposal North Ltd., 2023 SKCA 131

Court of Appeal for Saskatchewan Docket: CACV4097 and CACV4104 Citation: Loraas v Loraas Disposal North Ltd. , 2023 SKCA 131 Date: 2023-11-28 Docket CACV4097 Between: Carman Loraas, 102069948 Saskatchewan Ltd., Loraas Disposal South Ltd., Loraas Equipment South Ltd., and 101133174 Saskatchewan Ltd. Appellants (Applicants (Defendants)) And Loraas Disposal North Ltd., Loraas Equipment North Ltd., and 102069624 Saskatchewan Ltd. Respondents (Respondents (Plaintiffs)) And Curtis West, Greenland Waste Disposal

(2003) Ltd., 625279 Saskatchewan Ltd., Triways Disposal Services 2009 Ltd., Crown Shred & Recycling Inc. Non-Parties (Defendants) And Robert MacKay and Brooks Mack, in their capacity as trustees of Carman Loraas Trust 2019 #2 Non-Parties (Defendants) Docket CACV4104 Between: Curtis West, Greenland Waste Disposal

(2003) Ltd., 625279 Saskatchewan Ltd., Triways Disposal Services 2009 Ltd., Crown Shred & Recycling Inc. Appellants (Applicants (Defendants)) And Loraas Disposal North Ltd., Loraas Equipment North Ltd., and 102069624 Saskatchewan Ltd. Respondents (Respondents (Plaintiffs)) And Carman Loraas, 102069948 Saskatchewan Ltd., Loraas Disposal South Ltd., Loraas Equipment South Ltd., and 101133174 Saskatchewan Ltd. Non-Parties (Defendants) And Robert MacKay and Brooks Mack, in their capacity as trustees of Carman Loraas Trust 2019 #2 Non-Parties (Defendants) Before: Schwann, Tholl and McCreary JJ.A.

Disposition: Appeals dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Tholl The Honourable Madam Justice McCreary On appeal from: QBG-RG-00764-2021 (Sask KB), Regina Appeal heard: October 3, 2023 Counsel: James Ehmann, K.C., and Kamara Willet t for Carman Loraas, 102069948 Saskatchewan Ltd., Loraas Disposal South Ltd., Loraas Equipment South Ltd., and 101133174 Saskatchewan Ltd. Douglas Hodson, K.C., and Paul Olfert for Loraas Disposal North Ltd., Loraas Equipment North Ltd., and 102069624 Saskatchewan Ltd.

George Morris for Curtis West, Greenland Waste Disposal

(2003) Ltd., 625279 Saskatchewan Ltd., Triways Disposal Services 2009 Ltd., and Crown Shred & Recycling Inc. Peter Abrametz for Robert MacKay Braydon Goldstein for Brooks Mack Schwann J.A. I. INTRODUCTION [ 1 ] A Court of King’s Bench judge dismissed two applications brought by Carman Loraas, 102069948 Saskatchewan Ltd.,

Loraas Disposal South Ltd., Loraas Equipment South Ltd., and 11133174 Saskatchewan Ltd. The first application was to permit the redaction of the identity of certain individuals named as beneficiaries in a trust deed and the second was for an order setting aside appointments for questioning of the personal defendants: Loraas v Loraas Disposal North Ltd. (27 October 2022) Regina, QBG-RG- 00764-2021 (Sask KB) [ Chambers Decision ]. An appeal is taken from those rulings. [ 2 ] Curtis West, Greenland Waste Disposal

(2003) Ltd., 625279 Saskatchewan Ltd., Triways Disposal Services 2009 Ltd., and Crown Shred & Recycling also appeal from the Chambers judge’s refusal to set aside the appointments, albeit on slightly different grounds. [ 3 ] For the reasons set out below, I conclude that both appeals must be dismissed. II. BACKGROUND [ 4 ] As I discuss below, these appeals arise out of an action brought in what was then the Court of Queen’s Bench (which is now the Court of King’s Bench), involving a number of individuals and corporate entities.

I find it useful to begin by setting out the various actors. [ 5 ] The plaintiffs in the King’s Bench action and the respondents in these appeals are Loraas Disposal North Ltd., Loraas Equipment North Ltd., and 102069624 Saskatchewan Ltd. For ease of reference, I will refer to them as the “Loraas North Parties”. [ 6 ] The defendants in the action, and the appellants on the appeal in CACV4097, are Carman Loraas, 102069948 Saskatchewan Ltd., Loraas Disposal South Ltd., Loraas Equipment South Ltd., and 101133174 Saskatchewan Ltd., which I will refer to as the “Carman Parties”.

Robert Mackay and Brooks Mack are also named as defendants in their capacity as trustees of a trust that was established by Carman. [ 7 ] Curtis West, Greenland Waste Disposal

(2003) Ltd., 625279 Saskatchewan Ltd. [625 Ltd.] Triways Disposal Services 2009 Ltd., and Crown Shred & Recycling Inc. are another set of defendants in the King’s Bench action. I will refer to them as the “Curtis Parties”. They, too, appeal from the Chambers Decision , albeit separately in CACV4104. [ 8 ] The backdrop to these appeals is as follows. Loraas Disposal Services Ltd. [LDS] carried on the business of residential, commercial and industrial waste collection, as well as disposal and recycling services in south and central Saskatchewan. LDS also operated a landfill and recycling plant near Saskatoon.

From 1967 until 2019, Bruce Loraas and Carman Loraas, brothers, operated the company on a 50–50 basis. Carman was in charge of the Regina base of operations and Bruce was in charge of operations in and around Saskatoon. [ 9 ] The relationship between Bruce and Carman waned over the years. Their discord resulted in litigation that the parties settled in February of 2019 through a series of complex written agreements and instruments [collectively, the Settlement Agreement].

In very rough terms, the parties agreed to resolve their differences by dividing the assets of LDS between them on a north–south basis. [ 10 ] The Settlement Agreement required several measures to be undertaken, including the following: (

a) The execution of respective confidentiality, non-competition and non-solicitation agreements [NCA]. Carmen’s NCA was executed and made effective on February 13, 2019; the material terms of which are these: (

i) it had a term of five years, running from February 13, 2019, until February 12, 2024; (ii) Carman agreed not to compete with Bruce’s group of companies in the Saskatoon business territory; and (iii) competing was “defined to include both direct as well as indirect action, including advising, assisting or holding an interest in other entities engaged in competition” with the Loraas North Parties in the Saskatoon territory ( Chambers Decision at para 21). (

b) By September 30, 2019, Carman agreed to divest himself of his interests in his holding company, 625 Ltd., which owned shares in several operations that carry on business in and around Saskatoon, including Greenland Waste Disposal

(2003) Ltd. [Greenland] and Crown Shred & Recycling (Prince Albert). [ 11 ] By way of further background, Greenland is a waste collection and disposal business that operates out of Prince Albert and the surrounding area. Loraas Environmental Services Ltd., which is operated by Bruce’s son, Aaron Loraas, competes with Greenland.

An exception to the generalized north–south resolution was that Greenland could continue to carry on its business within its traditional territory, provided Carman ceded all management and control of that company in accordance with the timing, process and exceptions set out in the Settlement Agreement.

To that end, Carman transferred a portion of his shares in Greenland, along with management responsibilities, to Curtis. [ 12 ] Another element of the Settlement Agreement was to give Carman time to develop and implement estate planning measures to satisfy the divestiture provisions of the Settlement Agreement. [ 13 ] Carman claims to have complied with the divestiture provisions, including the transfer of securities in 625 Ltd. and shareholder loans owned by that company to the Carman Loraas Trust 2019 #2 [Trust].

He also says that he gifted the remainder of his securities in 625 Ltd. and the shareholder loans to Curtis. These alleged actions were undertaken in response to paragraph 2.4(b)(

i) of the NCA, which provides that the non-competition provisions do not apply to or restrict “testamentary gifts or inter vivos gifts made by Carman either directly or indirectly through any of the Covenantors to Curtis West or to any other individuals as part of Carman’s estate planning process”. [ 14 ] Pursuant to the terms of the Settlement Agreement, Carman provided the Loraas North Parties with statutory declarations

confirming compliance with his divestiture obligations. [ 15 ] The Loraas North Parties asked the Carman Parties to provide information about the Trust, including a copy of the trust deed, the identity of the trustees and all of the beneficiaries named in that trust. Carman produced a copy of the Trust, but the names of the trust beneficiaries (other than Curtis) were redacted from that document. In due course, he also disclosed the names of the trustees. In his April 19, 2021, affidavit, Carman indicates that the redacted beneficiaries are younger than him and are not aware that they benefit under the trust. A.

The litigation [ 16 ] In May of 2020, the Loraas North Parties commenced an action against the Carman Parties, the Curtis Parties and the trustees of the Trust (initially in nominal name only). Their statement of claim is grounded in allegations of fraud, conspiracy and intent to cause harm to the plaintiffs.

The central theme of the claim is that the Trust is a sham and that it was constructed by Carmen to hide his continued interest in 625 Ltd. and other entities that compete with the Loraas North Parties in the Saskatoon area. [ 17 ] In March of 2021, the Loraas North Parties applied to amend their statement of claim. The Carman Parties and the Curtis Parties filed multiple affidavits in opposition to that application.

Those affidavits precipitated an application by the plaintiffs to have them struck and, in the alternative, to be granted leave to cross-examine the affiants. [ 18 ] On May 6, 2021, the Carman Parties and the Curtis Parties each applied for

summary judgment, dismissing the claim against them on the basis that it was “frivolous and plainly and obviously false”. The Carman Parties also applied for an order permitting the redaction of the names of the beneficiaries from the Trust document. [ 19 ] Several weeks later, the Loraas North Parties served Carman, Curtis, Mr. MacKay and Mr. Mack with appointments for questioning pursuant to Rule 5-23 of what was then known as The Queen’s Bench Rules . That action was met by an application brought by both the Curtis Parties and the Carman Parties for an order setting aside the appointments.

The grounds for doing so read as follows: 4. The issuance and delivery of appointments by the Plaintiffs, following service of the

summary dismissal applications and before that application has been heard, is premature, vexatious, evasive, abusive, oppressive and improper in view of the procedural context described above, and in particular, the pending

summary dismissal applications and the pending application of the Plaintiffs for permission to cross-examine on all of the affidavits filed by the Defendants. [ 20 ] Given the multitude of pending applications, the parties agreed to the terms of a consent order, which provided as follows: (

a) pursuant to General Application Practice Directive #9: “Scheduling of

Summary Judgment, Set Aside and Judicial Review Applications” (16 May 2022) (Sask QB) [Practice Directive #9], the initial hearing for

summary judgment and the plaintiffs’ application to amend their statement of claim were adjourned sine die (to be heard concurrently with the

summary judgment application); and (

b) the application to strike the affidavits filed by the Carman Parties and the Curtis Parties, which were filed in opposition to the application for redaction and to set aside the appointments , were set to be heard on June 24, 2021 [Consent Scheduling Order]. [ 21 ] Ultimately, the redaction and appointment applications were heard in September of 2021, with the Chambers Decision issued as a result. B. The Chambers Decision [ 22 ] The Chambers judge addressed the redaction application first.

He identified Omorogbe v Saskatchewan Power Corporation , 2022 SKCA 116 , 473 DLR (4th) 712 [ Omorogbe ], as the governing authority in this province respecting the test for the redaction of information from an otherwise producible document. The Chambers judge then worked his way through the three elements of the Omorogbe test. [ 23 ] The first prong is relevance.

Here, the Chambers judge noted that, pursuant to the dicta in Canadian National Railway Company v Clarke Transport , 2013 SKQB 394 , 432 Sask R 63 [ Canadian National ], relevance for purposes of disclosure is governed by the principles of materiality and proportionality.

He examined the pertinent provisions of the statement of claim and then concluded by stating as follows: “In the circumstances, I am satisfied that the information which the Carman Parties seek to redact – the identity of the unknown Trust Beneficiaries – is materially relevant” ( Chambers Decision at para 67). [ 24 ] Next, the Chambers judge addressed the argument that the disclosure of the names of the beneficiaries would have an unfavourable impact on their future growth and development as individuals, subject them to groundless litigation, and would be contrary to the disclosure obligations under the NCA.

The Chambers judge found those submission unpersuasive. On the evidence before him, he concluded that the Carman Parties had not met the onus of rebutting the presumption in favour of disclosure by establishing a “compelling reason for the proposed redaction, which cannot otherwise be achieved by the existing protections provided for in the Rules ” (at para 74). [ 25 ] The Chambers judge next turned to the applications to set aside the appointments for questioning that were brought pursuant to Rule 5-3(1) and

Part 1 of the Foundational Rules. He noted that Rule 5-3(1) allows a court to modify or waive any right or power or make any order considered warranted where “a person acts or threatens to act in a manner that is vexatious, evasive, abusive, oppressive, improper or tediously lengthy” (Rule 5-3(1)(a)). [ 26 ] In their brief of law, the Carman Parties had principally argued that a determination as to whether the appointments should be set aside would be premature and, in any event, was a matter that ought to be left to the

summary judgment judge ( Chambers Decision ):

[86] Carman, Curtis, Robert and Brooks, through their respective counsel, assert, at paragraph 2 of the Carman Parties’ Brief: The opposition to the Appointments is based on the notion that the same are premature, vexatious, abusive, and have an improperprocedural impact on the current proceedings. The Appointments would hijack the discretion of the judge in the pending

summaryjudgment applications to decide whether oral questioning should be ordered. [27] In responding to that argument, the Chambers judge observed that the

summary judgment process “does not operate as anabsolute bar to oral questioning or the cross-examination of affiants” and that

Part 7 of The Queen’s Bench Rules allows a judge to“shape the process in a

summary judgment application to achieve the goals of flexibility and proportionality” (Chambers Decision atpara 99). He found it persuasive that the parties had agreed to have the questioning application proceed prior to the

summary judgmentapplication being heard (which, at that point, had been adjourned sine die). After reviewing the case authorities that had been referred tohim by the parties, the Chambers judge was unpersuaded that the appointments should be set aside. [28] The application to quash or set aside the appointments was, therefore, dismissed. III. ISSUES [29] This appeal is best resolved by answering the following questions: (

a) Did the Chambers judge err in failing to redact the names of the undisclosed beneficiaries? (

b) Does the service and filing of an application for

summary judgment under

Part 7 of The Queen’s Bench Rules affect ordisplace the operation of

Part 5? (

c) Did the Chambers judge address the argument advanced by the Curtis Parties? IV. STANDARD OF REVIEW [30] The orders under appeal are discretionary decisions. Thus, the following holds true: “The description of a decision asdiscretionary is best understood as a shorthand statement that the legal principles that govern the decision [are] such that theycontemplate more than one potential outcome, based on the application of the judgment of the court with the authority to find the factsand appl[y] those principles” (Stromberg v Olafson, 2023 SKCA 67 at para 119 [Stromberg]).

Although it has often been said that anappellate court is to take a deferential stance toward such decisions, the standard of appellate review depends on the nature of the allegederror. [31] A

summary of the approach to be taken by an appellate court in reviewing discretionary decisions is found in MacInnis vBayer Inc., 2023 SKCA 37 [MacInnis]: [38] … Although it is often said that discretionary decisions are entitled to deference, the fact is that an alleged error by a court inarriving at a discretionary decision is subject to appellate review in accordance with the appellate standards of review specified inHousen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. As is always the case, the standard of review depends on the nature of the erroralleged, not the type of decision that was made.

The standard of review in relation to alleged errors of law is correctness, where nodeference is called for.

An appellate court may intervene in a discretionary decision if there has been an error of law, including an error inthe identification or application of the legal criteria that govern the exercise of the discretion: “Such errors may include a failure to giveany or sufficient weight to a relevant consideration” (Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161). [39] An appellate court may also intervene if there has been a palpable and overriding error of fact or of mixed fact and law: see also, forexample, 676083 B.C.

Ltd. v Revolution Resource Recovery Inc., 2021 BCCA 85 at para 30, 49 BCLR (6th) 101; Ernst & Young vKoroluk, 2022 SKCA 81 at paras 25–26; Finkel v Coast Capital Credit Union, 2017 BCCA 361 at para 55, 2 BCLR (6th) 300; AICLimited v Fischer, 2013 SCC 69 at para 65, [2013] 3 SCR 949 [Fischer]; and Lewis v WestJet Airlines Ltd., 2022 BCCA 145 atparas 30–31, 468 DLR (4th) 713.

However, an appellate court is not entitled to substitute its own decision for that of the judge merelybecause it would have exercised the discretion differently: Friends of the Oldman River Society v Canada (Minister of Transport), (SCC), [1992] 1 SCR 3 at 76–77. [32] The reasoning in MacInnis was affirmed in Stromberg, where the majority said as follows: [119] On the same note, the Federal Court of Appeal adopted the Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, standards ofreview where the appeal is of a discretionary, interlocutory order in Decor Grates Incorporated v Imperial Manufacturing Group Inc.,2015 FCA 100 at paras 14–29, [2016] 1 FCR 246.

As Stratas J.A. commented in that case, “Discretionary orders, such as the one in issuein this case, are the result of applying law to the facts of particular cases—in other words, they are questions of mixed fact and law” (atpara 18). I agree. The description of a decision as discretionary is best understood as a shorthand statement that the legal principles thatgovern the decision such that they contemplate more than one potential outcome, based on the application of the judgment of the courtwith the authority to find the facts and applies those principles.

That may be so, for example, because there are a number of factors thatmay or may not properly be found to apply on the facts, the weight that may properly be accorded to different factors, or the nature of agoverning principle. For a further refinement of the standard of review of discretionary decisions, see Abrametz v Law Society of Saskatchewan, 2023 SKCA114 at paras 29 and 30. V. ANALYSIS

A. The redaction decision [ 33 ] The Chambers judge correctly identified Omorogbe as establishing the framework for determining whether information should be redacted from an otherwise producible document. In concise terms, the Omorogbe test is this: [55] … a party seeking to justify a redaction from a producible document must show that: (

a) the information removed from the document is not relevant to an issue in the action; (

b) there is, in the evidence or record, a compelling reason for the redaction ; and (

c) the existing protections provided for in the Rules , and as may be supplemented by other measures, are insufficient to protect the interest that is said to justify the redaction. [ 34 ] It is important to note at the outset that the Omorogbe test is conjunctive in nature, meaning that an applicant seeking redaction of a producible document must satisfy a judge that all three branches of the test are met before such an order will be granted. [ 35 ] The Carman Parties assert that the Chambers judge erred in the application of the law to the facts and, more specifically, failed to undertake any analysis of the relevance prong of the Omorogbe formula.

They say the Chambers judge did not apply Canadian National to identify whether the names of the beneficiaries would serve to prove or disprove something in their claim or consider whether knowing the names of the beneficiaries spoke to an issue in the within action. The Carman Parties ask how knowledge of the identities of the trust beneficiaries will serve to prove or disprove the allegation in the statement of claim, since the claim is focused on Carman’s misdeeds, not those of the beneficiaries.

Knowledge of the identities of the beneficiaries, the Carman Parties assert, will not allow a person to discern whether it is any more or less likely that Carman did the things alleged in the statement of claim. [ 36 ] The Carman Parties suggest the aforementioned matters are errors of law that are reviewable on the correctness standard.

In assessing that submission, I do not take them to argue that the Chambers judge erred in principle by failing to identify the correct legal test governing his determination, that he misapprehended or failed to consider material evidence, or that he failed to give sufficient weight to a relevant consideration. Rather, as I understand their argument, the error is said to be embedded in how the Chambers judge applied the law to the facts.

With respect, that is a question of mixed fact and law: see Décor Grates Incorporated v Imperial Manufacturing Group Inc. , 2015 FCA 100 at para 18 , 472 NR 109, and Stromberg at para 119 . The standard of appellate review for questions of mixed fact and law is palpable and overriding error in the absence of an extricable question of law (and none was suggested here): see Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235.

This means that, for the Carman Parties to succeed on appeal, they must persuade this Court that the Chambers judge committed a palpable or obvious error that was overriding: i.e., in the sense that it affected the result. [ 37 ] Properly understood, the Carman Parties’ argument appears to be that the Chambers judge erred by failing to undertake a detailed analysis of how disclosure of the names of the beneficiaries is relevant to the statement of claim. There are several problems with this argument. [ 38 ] I begin by making three brief observations.

First, and as noted above, this argument does not give rise to an error of law. It is a question of mixed fact and law, which is subject to the palpable and overriding error standard of review. Second, the Carman Parties’ position appears to be an attack on the sufficiency of the reasons. It is accepted law that insufficient reasons, on their own, do not give rise to a free-standing ground of appeal: see Bhagaloo v M2 Construction & Development Ltd. , 2021 SKCA 168 at para 37 , [2022] 3 WWR 179.

Third, the Carman Parties’ argument ignores the consistent direction provided by the Supreme Court not to parse the reasons but to “review a trial judge’s reasons generously and as a whole, bearing in mind the presumption that judges know the law” ( Barendregt v Grebliunas , 2022 SCC 22 at para 104 , 469 DLR (4th) 1 [ Barendregt ]). [ 39 ] Putting all that aside, it is fair to say the Chambers judge did not undertake a robust analysis of how the identification of the names of the beneficiaries was relevant in the context of the claim. That said, I am satisfied that he was alive to (

a) what constituted relevance within the meaning and intent of The Queen’s Bench Rules and (

b) the pertinent provisions of the statement of claim that bore on that issue, notably the allegation of a conspiracy between Carman and the other defendants to facilitate a breach of the NCA. After reviewing the statement of claim, the Chambers judge detailed how, in his view, identification of the names of the unknown beneficiaries was relevant to the action ( Chambers Decision ): [64] In their Brief, the Plaintiffs maintain that the Trust is a “sham”, the sole purpose of which is to disguise and hide Carman’s interest in [625 Ltd.] and its subsidiaries, which continue to compete with the Plaintiffs.

It is their position that Carman is a contingent beneficiary of the Trust, which does not expressly preclude reversion of the Trust res to Carman as Settlor and, further, that the Trust has been created in such a way as to facilitate the return of the Trust res, namely, shares in [625 Ltd.] following the expiration, after 5 years, of the covenants in the Carman NCA. [ 40 ] A review of the judgment as a whole satisfies me that the Chambers judge was alert to the concept of relevance and how knowledge of the names of the beneficiaries was relevant to the plaintiffs’ root allegation that the trust is a sham, that Carman continues to direct the management of the companies he claims to have divested, and that he is, in consequence, in breach of the NCA.

Knowledge of the identity of the unknown beneficiaries and how much control, if any, Carman exerts over them may tend to prove or disprove whether Carman controls the Trust. [ 41 ] Neither was it dispositive that the unknown beneficiaries are non-parties to the litigation. A somewhat similar situation arose in Marsella v BDBC , 2021 ONSC 3276 , where the defendant bank had redacted the names of certain people referred to in its producible documents, who happened to be non-parties to the litigation.

In refusing an order for redaction, the master made this observation: [4] And while it is true that the names of certain persons not parties to the litigation are contained in the redacted portions of the documents (the documents having now been reviewed by the court and by counsel for the plaintiff), I agree with Mr. Taylor when, relying on Murchison v. Export Development Canada , 2016 ONSC 3084 , at para. 22 , he says that “[t]he truth seeking function of the justice system frequently requires production of confidential information even information about parties who are not themselves litigants”.

Then too, it cannot here be said that the plaintiff’s allegations are so narrowly pled that the redacted information is clearly not relevant, as BDBC suggests.

[ 42 ] The Chambers judge’s conclusion on the relevance part of the test was a full answer to the Carman Parties’ application. However, for the sake of completeness, the Chambers judge went on to address the remaining two Omorogbe factors. [ 43 ] Before the Chambers judge, the Carman Parties had argued that the unnamed individuals were much younger than Carman and not aware that they had been named as beneficiaries in the Trust. In his affidavits, Carman intimates that he consciously chose not to inform them of their status so as not to undermine their growth and development as persons.

The Carman Parties built on this argument by suggesting that the terms of the NCA do not oblige Carman to disclose the names of any beneficiaries in his testamentary or inter vivos estate planning documents. These arguments are largely rehashed on appeal. [ 44 ] As to the first of those propositions, the Carman Parties urge this Court to take judicial notice of how wealth conferred unexpectedly on a young person may stunt their ambition. Once again, they fail to identify any error on the part of the Chambers judge.

In my view, this argument is little more than an invitation for this Court to remake the redaction decision from the ground up. Respectfully, that is not in keeping with the standard of review nor with the role of this Court: see Barendregt at para 102 . Even if the Court were permitted to do so, that argument is advanced without an evidentiary foundation and is premised on the idea that judicial notice can be taken of such a broad proposition.

With respect, I am not persuaded this is an appropriate situation in which to take judicial notice nor, for that matter, have the Carman Parties provided any legal support for it. [ 45 ] Neither do I accept the suggestion that the restrictive terms of the NCA should somehow override or take on greater significance than The Queen’s Bench Rules . Once again, the Carmen Parties offer no case authority to support this argument. In fact, their position appears to ignore the plain reading of the rights of parties entrenched under

Part 5 of those rules with respect to the disclosure and production of relevant documents.

Part 5 of The Queen’s Bench Rules “provides for disclosure of information” and intends the “mutual exchange of information before trial, both to encourage settlement and avoid surprises and delay at trial.

There should be full disclosure of all relevant information ” (emphasis added, PCL Construction Management Inc. v Expocrete , 2021 SKQB 76 at para 25 , 63 CPC (8th) 229 [ PCL ]). [ 46 ] The Carman Parties say the Chambers judge’s error is embedded in the following statement from his reasons: “The fact that the Carman NCA does not expressly provide the Plaintiffs with the right to the information sought is moot ; the documents at issue, including the Trust deed, have been disclosed and the Court has concluded that the identity of the Trust Beneficiaries is, in the circumstances, materially relevant” (emphasis added, Chambers Decision at para 73).

They say that, if the relevance finding is set aside by this Court, their argument about the terms of the NCA takes on an increased level of significance. [ 47 ] I agree with the Carman Parties to the limited extent that the provisions of the NCA are not moot. Mootness refers to a matter in which a controversy no longer exists. What the Chambers judge no doubt intended to convey is captured by the last sentence of paragraph 73, where he made this point: “As such, and irrespective of any contractual entitlement, there is a general presumption that those documents must be disclosed in their entirety”.

He referenced PCL , Tomcala v Input Capital Corp. , 2022 SKQB 89 , and Canadian Pacific Railway Company v Saskatchewan , 2022 SKQB 28 , 467 DLR (4th) 163, for the general proposition that when a document is listed by a party without reservation, it must be disclosed and that the applicant bears the onus of establishing that an exception should be made.

Without commenting on the correctness of those decisions, I simply observe that, on appeal, the Carman Parties do not take issue with the principle of law the Chambers judge drew from them. [ 48 ] The Queen’s Bench Rules , of course, are not unyielding; there are exceptions (e.g., documents that attract solicitor–client privilege) and modifications can be made pursuant to court order by operation of Rule 5-3. However, the Carman Parties’ argument goes well beyond what is contemplated by The Queen’s Bench Rules.

To conclude on the second point, I see no principled basis for why the Chambers judge should have acceded to their argument that the terms of the NCA take precedence over The Queen’s Bench Rules and, therefore, conclude appellate intervention is not warranted. [ 49 ] The final argument is that, once the names of the beneficiaries are disclosed to the Loraas North Parties, they will be added as defendants to the litigation.

With respect, that possibility is no more than speculation, and, until it happens (if it ever does), the beneficiaries enjoy the protection of Rule 5-4, which provides that information obtained during discovery is subject to an implied undertaking that it will not be used for a collateral or ulterior purpose. [ 50 ] To conclude, the Carman Parties bore the onus of satisfying the Chambers judge on all three prongs of the Omorogbe test in order for a redaction order to have been made. I see no errors in the Chambers judge’s reasons that warrant appellate intervention.

This ground of appeal must, therefore, be dismissed. B. The

summary judgment issue and the appointments [ 51 ] Both the Carman Parties and the Curtis Parties appeal from the Chambers judge’s refusal to set aside the appointments respecting the questioning of Carman, Curtis, Mr. MacKay and Mr. Mack. (For ease of reference I will refer to the Carman Parties and the Curtis Parties collectively as “the appellants” under this head of argument.) At root, this prong of the appeal engages the questions of whether (

a) a party to an action can rely on their right under The Queen’s Bench Rules to question the opposing party in the face of an extant

summary judgment application and (

b) the steps in civil proceedings must be filtered through the

summary judgment process, including whether, from a procedural standpoint, the

summary judgment process should take precedence. [ 52 ] The position of the Carman Parties and Curtis Parties is succinctly expressed in an exchange of correspondence between legal counsel on the issue of questioning before the appointments were taken out. Counsel for the Carman Parties took this stance, on May 12, 2021: In our view, it will be for the

summary dismissal application judge to decide, in the context of our

summary dismissal application, whether the leave to cross-examine which you have applied for should be granted. Similarly, it will be within the purview of the

summary dismissal application judge to decide whether oral evidence is required. [ 53 ] Counsel for the Loraas North Parties saw things differently. In reply to the aforesaid letter, he said as follows:

Our right to conduct questioning in this action is not dependent upon, nor in any way related to, our right to cross-examine on your affidavits filed in response to our application to amend [our statement of claim] and in support of your

summary judgment application. We do not require permission from the

summary judgment application judge to exercise our right to question the Defendants in this proceeding. [ 54 ] As is evident from the parties’ correspondence, they advocate for two fundamentally different perspectives on how the rules of civil procedure should intersect with the

summary judgment process, after an application of that nature has been filed. [ 55 ] On appeal, the appellants contend the Chambers judge fundamentally misunderstood their argument. They say that, contrary to the reasons expressed by the Chambers judge, it was their position that questioning was inappropriate and, if allowed, served to undermine the authority of the Court of Queen’s Bench. For that reason alone, they had urged the Chambers judge to set aside the appointments.

Second, citing Holmes v Jastek Master Builder 2004 Inc. , 2021 SKQB 32 at paras 21 , 22 and 27 [ Holmes-QB ], leave to appeal to Sask CA refused, 2021 SKCA 57 [ Holmes-CA ], and McCorriston v Hunter , 2019 SKCA 106 at para 44 , 33 RFL (8th) 310 [ McCorriston ], the appellants assert that if the Chambers judge was not prepared to outright set aside the appointments, he should have either deferred that determination to the judge hearing the

summary judgment application or rolled up his sleeves to assess their application in light of the evidence filed thus far in the

summary judgment application. While they acknowledge that, in the appropriate circumstances, rights of discovery may be justified, this was not one of those situations because, they submit, the claim is devoid of merit and destined to fail. Thus, in order to resolve the application, the Chambers judge was required to dig into the evidence to determine whether the claim was vexatious or an abuse of process. [ 56 ] I will deal with each of these arguments in turn. 1. Appointments and the pending

summary judgment application [ 57 ] The appellants submit that Holmes-QB and McCorriston stand for the proposition that interim applications that challenge the suitability of the

summary judgment process are most appropriately addressed when the

summary judgment application is heard. They say this approach is sensical because it respects the goal of achieving a cost-effective resolution as dictated by the Foundational Rules. By way of illustration, the appellants point to Rule 7-5(3), which empowers a

summary judgment judge to determine whether oral evidence should be presented. [ 58 ] The appellants assert that service of the appointments was done with disregard for the

summary judgment track that had been initiated by them and was a blatant, backdoor attempt to circumvent the discretion of the

summary judgment judge, who is charged with determining whether there should be oral evidence. They take issue with the Loraas North Parties’ approach because it effectively (

a) pre-empts them from being able to argue that there is no genuine issue requiring trial and (

b) insulates the Loraas North Parties from a potentially unfavourable ruling on their application to cross-examine the appellants on their affidavits. [ 59 ] As I discuss below, I am not persuaded by the appellants’ arguments. [ 60 ] At root, I take the appellants to argue that the filing of a

summary judgment application modifies the application of The Queen’s Bench Rules where a defendant has applied for

summary dismissal of a claim. When faced with that circumstance, the appellants say the Chambers judge had to give primacy to the

summary judgment process and the Foundational Rules, which call for a proportional response. [ 61 ] In assessing this argument, the logical starting place is with The Queen’s Bench Rules .

Part 5 of those rules deals with document disclosure and production, as well as prescribing when and how the parties may question each other about the dispute. The purpose of

Part 5 is to require the parties to “share information relevant to any matter in issue in the action” for purposes of identifying “what is in dispute” and “what evidence is available about the dispute” (first page to

Part 5 of The Queen’s Bench Rules ). [ 62 ]

Part 7 sets out the various means by which parties can resolve a claim without the need for a trial, with the rules for

summary judgment adjudication laid out in Division 2 thereof. It is of significance that nothing in Division 2 stipulates that the

summary judgment process trumps or in any way displaces the operation of the remainder of The Queen’s Bench Rules once an application for

summary judgment is filed. Neither, for that matter, does

Part 5 contain language that ousts or suspends a party’s right to disclosure, production and questioning in the normal course in the face of a

summary judgment application. If the Court of Queen’s Bench had intended that result, Rule 5-18 (which sets out the right of any party to an action to question the opposing party without a court order) could have been prefaced with words, such as, “Subject to

Part 7”. No such language exists. [ 63 ] Simply put,

Part 5 and

Part 7 operate independently from each other, and there is nothing in The Queen’s Bench Rules stipulating that, once a

summary judgment application is filed, the process and procedures for discovery, including questioning, are displaced, suspended or deferred to allow for the

Part 7

summary judgment adjudication process to run its course. As an aside, I note the drafters of the rules did, in fact, put their mind to adjustments to the questioning process in family law proceedings by prefacing Rule 5- 18(1) with the phrase, “Subject to

Part 15”. From this, it can be reasonably inferred that they were alert to the need to place limitations on those rights and obligations but chose not to adopt the same approach in relation to the

summary judgment process. [ 64 ] I have also considered but ultimately reject the appellants’ argument that, once a

summary judgment application is brought, it is implicit that every subsequent application must be vetted through that process or be analyzed with an eye to the bottom-line question of whether there is a genuine issue requiring a trial. While there is always room for judicial

interpretation of The Queen’s Bench Rules , particularly where words or provisions are ambiguous or vaguely drafted, as I discuss below, the appellants’ argument essentially calls for this Court to, on the one hand, overlook the clear expression of a litigant’s right to questioning yet, on the other hand, read words into

Part 7 Division 2 that are simply not there. The Court of King’s Bench (as it is now called) is the master of its own processes and procedures. If that court wishes to modify its rules with respect to

summary judgment to give effect to the idea that, once filed, all subsequent applications and procedures must be filtered through the

summary judgment adjudicative apparatus, that is a choice for that court to make.

[ 65 ] Practice Directive #9 also bears on this issue. It deals with the scheduling of

summary judgment applications and offers a measure of assistance in understanding the process envisioned by the Court of King’s Bench. Paragraph 5 is relevant to the issue on appeal. It provides as follows: 5.

The Chambers judge at the initial appearance will manage the application, which may include determining the parties’ readiness to proceed, deciding the amount of time necessary to hear the application, setting timelines when certain actions are to be taken, resolving preliminary issues and, when appropriate, ordering that a date and time for the application be scheduled to be heard. [ 66 ] A fair reading of this passage leads me to conclude that the court envisioned the possibility of interim, case-management-type steps being left in the hands of a Chambers judge, including the responsibility for “resolving preliminary issues”.

Admittedly, the language of paragraph 5 is somewhat vague as to what types of preliminary steps or issues the court had in mind, but, at a minimum, it does not provide that every application and proceeding must get filtered through the

summary judgment process or be handled by the

summary judgment judge nor does it preclude the possibility of other processes and procedures being taken. [ 67 ] Neither do I find the jurisprudence relied on by the appellants an aid in assisting their cause. The decisions in Thompson v Consolidated Fastfrate Inc ., 2005 SKQB 226 , 267 Sask R 134, and Sol v del Rosario , 2014 ABQB 310 , 65 CPC (7th) 132, are either distinguishable on their facts, not on point, or not sufficiently analogous to be of any persuasive value. The two that come closest to the issue raised on this appeal are Holmes-QB and McCorriston . [ 68 ] In Holmes-QB , the applicants sought a predetermination of whether

summary judgment was an appropriate adjudicative action and sought to have the pending

summary judgment application dismissed without hearing the issue on its merits. That question was put to the case management judge, not the

summary judgment judge. The case management judge concluded that only the

summary judgment judge could hear an application to determine whether a trial was required. In denying leave to appeal in Holmes-CA , Leurer J.A. (as he then was) observed that a resolution of whether

summary judgment was the appropriate process to determining the merits of litigation “is a question that is properly addressed only when the

summary judgment application is heard” (at para 22). Respectfully, that was not the same issue that was presented to the Chambers judge in the matter at hand. [ 69 ] The appellants also rely on McCorriston , which they say stands for the proposition that to resolve the question of whether the appointments should be quashed, the Chambers judge had to dig into the evidence filed in the

summary judgment application to determine if the claim is vexatious. In other words, they say he had to address the very issue raised in the

summary judgment application. I do not interpret McCorriston as standing for that premise. [ 70 ] In McCorriston , one of the parties had applied for

summary judgment to resolve contentious issues in a family dispute. When the matter came before a Queen’s Bench Chambers judge, the first question he was asked to resolve was whether the

summary judgment’s adjudicative process could be used to resolve the issues in dispute instead of a trial, being the customary course of action in a family law proceeding. The Chambers judge concluded that the

summary judgment process was appropriate and then proceeded to resolve the entire matter through that process. That decision was subsequently overturned by this Court because, in deciding if

summary judgment was the appropriate process, the judge had neither resolved the conflicts in the evidence nor determined if those conflicts were relevant to his determination. It was those errors in principle that caused that judge to fail to appreciate that, in a

summary judgment context, process and the genuine issue determinations go together. Speaking for the Court, Leurer J.A. observed as follows: “The assessment of whether

summary judgment is appropriate as a process and whether there is a genuine issue requiring trial must generally be answered at the same time , because in most cases they are two sides of the same coin” (emphasis in original, at para 44). He went on to note that, in order to assess if a trial is required , “a Chambers judge must get into the detail of how the issue and evidence interrelate, and then decide if the evidence allows the issue to be fairly resolved” (at para 44). That statement, however, followed this: “in most cases, the issue at large when a motion for

summary judgment is presented is whether the resolution of that issue requires a trial in order to sort out the facts” (emphasis in original, at para 44). [ 71 ] The appellants point to paragraph 44 of McCorriston as authority for the proposition that, in the face of an extant

summary judgment application, all applications must be assessed through the lens of whether there is a genuine issue requiring a trial, which, in turn, necessitates the judge, as per the instruction in McCorriston , to “get into the detail of how the issue and evidence interrelate”. With respect, that is an overly expansive

interpretation of what this Court said. As noted above, it was in the context of dealing with the parties’ submissions on their merits that the judge in McCorriston was asked to decide whether he could invoke the

summary judgment process to resolve the substantive issues before him. That is not the same circumstance that confronted the Chambers judge in the present matter. The Chambers judge here was not asked to determine if

summary judgment, as a process, was appropriate (like the matters in Holmes-QB and McCorriston ); he was asked to excuse compliance with the appellants’ obligation to be questioned. That is a significant and distinguishing feature. [ 72 ] The decision in P. Burns Resources Limited v Honourable Patrick Burns Memorial Trust , 2015 ABCA 390 , 79 CPC (7th) 29 [ Burns-CA ], is more on point. It concerned a ruling made by a master who had set aside appointments for cross-examination on an affidavit and for questioning in the face of a

summary judgment application. He had concluded that, given the pending

summary judgment application, the rules relating to questioning should automatically be put on hold. [ 73 ] On appeal from that decision to the Alberta Court of Queen’s Bench, the master’s decision was overturned. The Queen’s Bench decision was subsequently sustained by the Alberta Court of Appeal, which adopted the following line of reasoning: (

a) the Alberta Rules of Court do not require as a “default position” that the usual procedures relating to document production and questioning be put on hold pending an application for

summary judgment ( Burns-CA at para 7 ); (

b) the Alberta Rules of Court allow for the modification or waiver of questioning, subject to the applicant meeting the criteria for an order of that nature being granted; (

c) whether the operation of Alberta’s Rules of Court respecting questioning should “be suspended in the face of an application for

summary judgment” is a “matter in the discretion of the court” (at para 7); and

(d) “[w]here the nature of the action is such that much of the evidence supporting the cause of action is likely to be in the sole possession of the defendants, the plaintiff is more likely to require access to disclosure of documents and questioning to be able to make full answer to any subsequent application for

summary judgment” (at para 8). [ 74 ] I adopt and endorse the reasoning in Burns-CA . Further, contrary to the position espoused by the appellants, Burns-CA is not confined to circumstances where most of the evidence is within the knowledge and possession of the defendants. It is a factor, to be sure, but it is not a precondition that must be met. See also Rezz Investments Ltd. v 1215972 Alberta Ltd. (22 April 2015) QBG-SA-00925- 2013 (Sask QB). [ 75 ] That said, I recognize there is some support for the appellants’ position in Walia v University of Manitoba , 2005 MBQB 278 , where a master refused a request for discoveries that, if granted, would have caused the defendant’s

summary judgment application for dismissal to be adjourned. In denying the plaintiff’s application, the master said, “To not allow the

summary judgment hearing to proceed, and to allow the pre-trial procedures to run their course, defeats the purpose of the

summary judgment relief” (at para 16). Walia is obviously distinguishable on its facts: the request was made on the same day the

summary judgment application was to be heard, and the issue engaged in the

summary judgment application was a narrow question of law, not one of fact. That is not the situation in the matter at hand. Moreover, Walia has not been followed by other courts as standing for a hard and fast rule that, once a

summary judgment application is on the table, all other processes fall by the wayside: see, for example, Barthe v National Bank Financial Ltd ., 2007 NSSC 331 , 261 NSR (2d) 50 at paras 10 and 13 [ Barthe ]. [ 76 ] The appellants also argue that, in considering their application, the Chambers judge was required to apply the Foundational Rules to the exercise of his discretion. The Alberta Court of Appeal in Burns-CA agreed with that proposition, stating as follows: [9] Whether document production and questioning should proceed prior to the hearing of a

summary judgment application is a discretionary decision under the rules. That discretion must be exercised giving due consideration to the purposes of

Part 5, which include facilitating resolution of issues and discouraging “conduct that unnecessarily or improperly delays proceedings or unnecessarily increases their costs”: Rule 5.1(1). [ 77 ] The Chambers Decision , read in its totality, demonstrates that the Chambers judge understood that he was being called upon to exercise his discretion to manage the litigation in keeping with the rules and Practice Directive #9.

In quoting extensively from paragraphs 60–62 of Casbohm v Winacott Spring Western Star Trucks , 2018 SKQB 15 , 30 CPC (8th) 175 [ Casbohm ] – which relied on passages from Regional Tire Distributors (Saskatchewan) Inc. v Quality Tire Service Ltd. , 2016 SKQB 411 – he can be seen as accepting the proposition that there are no fixed rules about whether document production or questioning should proceed prior to the hearing of a

summary judgment application; rather, it was a question that engaged the exercise of discretion. The Chambers judge’s reasoning is aligned with Burns-CA and Casbohm , which underscore that discretion should be exercised by “giving due consideration to the purposes of the

summary judgment provisions, and keeping in mind the need for proportionality, the need to facilitate resolution of the issues, and the need to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases their cost” ( Casbohm at para 62 ). [ 78 ] The Chambers judge was also alert to the fact that the parties had agreed to the terms of the Consent Scheduling Order, pursuant to which the

summary judgment application was adjourned sine die, with the questioning application heard first. While the appellants say he erred in his

interpretation of what they had intended by the terms of that order, I see no error with how he viewed what was otherwise a short, straightforward order intended to address procedural issues. It was an appropriate factor for him to have considered. [ 79 ] Further, while the

summary judgment process provides an affordable, timely and just determination of civil disputes, that process must be fair; otherwise, it will not produce fair results. In this vein of thought, the Loraas North Parties point to the legal principle that, when the

summary judgment application is eventually heard, they are required to put their best evidentiary foot forward. That point was underscored in Deren v SaskPower , 2017 SKCA 104 [ Deren ], where Caldwell J.A., speaking for the Court, said as follows: [93] When a party applying for

summary judgment has adduced evidence sufficient to make out its claims or defences prima facie , the responding party, whether plaintiff or defendant, will run the risk of losing on the application if it does not adduce evidence that puts the applying party’s evidence, and thereby its success on its claims or defences, into question. See also Hoffart v Carteri , 2020 SKCA 50 at para 40 , [2020] 7 WWR 34.

Putting the best evidentiary foot forward “includes such ‘affidavit and other evidence’ as will permit the judge to reach a fair and just determination based on that evidence alone” ( Casbohm at para 64 , quoting Tchozewski v Lamontagne , 2014 SKQB 71 at para 30 , 440 Sask R 34). [ 80 ] It has been repeatedly said that the

summary judgment process, reflecting the principle of proportionality as it does, was intended to provide litigants with a quick and cost-effective means to have the merits of their claim or defence decided without going to trial. However, as the jurisprudence has repeatedly emphasized, that pathway is only open if, in the circumstances of each case, the

summary judgment application would achieve a fair and just adjudication. Fairness, in this context, is largely associated with the first question posed on a

summary judgment application: Is there a genuine issue requiring a trial? (see McCorriston at para 23 ). [ 81 ] However, the Loraas North Parties do not engage with that aspect of fairness. They ask how they can possibly put their best foot forward if they are precluded from questioning the appellants simply because there is an extant

summary judgment application before the court. They express concern with their ability to obtain the necessary information to discharge the evidentiary burden of showing that their claim has a real chance of success when the

summary judgment application is eventually heard. [ 82 ] Framed in this way, the matter at hand bears some similarity to the facts in Deren , where the appellants had argued that the issues raised needed to be decided by a fully informed trier of fact, which was only attainable through the trial process; as such, they said questioning and further investigation was required to develop their case. That argument was dismissed by the

summary application judge and sustained on appeal. What distinguishes Deren from the matter at hand is the fact that the Chambers judge was not deciding the question of whether there was a genuine issue requiring trial. He was asked to determine whether, all things considered, the

appointments should be set aside. The existence of a pending

summary judgment application necessarily factored into that equation. [ 83 ] Putting this into the context of the matter at hand, the Chambers judge was entrusted with making a discretionary decision premised on an understanding that (

a) the appellants had filed an application for

summary dismissal of the statement of claim, (

b) the parties had agreed to adjourn that application sine die, (

c) an appointment for questioning may be set aside pursuant to Rule 5-3(1), (

d) there is no rule or practice directive that automatically stays a party’s right to compel production of documents or oral questioning in the face of a pending

summary judgment application, and (

e) the parties are expected to put their best foot forward on

summary judgment applications. Simply put, whether questioning should proceed prior to the

summary judgment application was a discretionary decision that was properly before the Chambers judge. I see no error of law or fact in the way in which the Chambers judge approached the issue nor in his exercise of discretion. 2. No deferral of application to the

summary judgment judge [ 84 ] Contrary to the appellants’ submission, the Chambers judge was alive to their argument that a determination of whether to set aside the appointments should be made by the

summary judgment judge. He said as follows ( Chambers Decision ): [101] Moreover, whereas it is generally desirable and appropriate that the assigned

summary judgment judge determine whether, for instance, cross-examination or oral questioning is warranted in the circumstances, in the extant case it is the parties themselves, including Carman, Curtis, Robert and Brooks who have determined, by agreement, that the Questioning Application will be decided in advance of their

Summary Judgment Application. [ 85 ] The appellants submit this paragraph evinces two errors. The first is that the need for questioning was subsumed within the broader issue of whether there was a genuine issue requiring a trial, which, in turn, required the Chambers judge to roll up his sleeves and dig into the evidence. The second alleged error is said to reside in his refusal to defer the matter to the

summary judgment judge. [ 86 ] The first argument is addressed above and will not be repeated. [ 87 ] As to the second point, I could find no authoritative decision that holds that, as a general rule, once a

summary judgment application is filed all proceedings must be handled by the

summary judgment judge alone. Not only does Practice Directive #9 not contemplate that approach, but it can be read as supporting the idea that any judge sitting in Chambers may determine interlocutory applications such as those at stake in this matter. Of course, there will be cases where a judge will conclude that the application before them is best dealt with by the judge assigned to hear the

summary judgment application. That assessment is fact specific and contextual. [ 88 ] Further, decisions like Barthe and Burns-CA can be taken to stand for the proposition that a court retains the discretion to engage in procedures related to document production and questioning in the face of a pending

summary judgment hearing. To similar effect is the decision in Casbohm , albeit in the context of an application to cross-examine on affidavits filed in a

summary judgment application, where Kalmakoff J. (as he then was) held that a decision of that nature is not reserved exclusively to the

summary judgment application judge. His reasoning is succinctly summarized as follows: [67] When I consider the cumulative effect of (

i) the wording of Rule 6-13(1); (ii) the absence of any specific contrary provision in the Rules or any relevant legislation; (iii) the jurisprudence relating to

summary judgment applications, including the “best evidentiary foot forward” principle; and (iv) the requirement for proportionality expressed in the Foundational Rules; I am unable to conclude that the decision on whether to permit cross-examination on affidavits is one that can only be made by the judge hearing the

summary judgment application. In my view, it is a decision that can be made by any judge in Chambers, applying the test set out in Wallace [2009 SKQB 178]. [ 89 ] I would not give effect to this argument. 3. Conclusion on redaction and the questioning issues [ 90 ] The appeal brought by the Carmen Parties in CACV4097 is dismissed in its entirety. C.

Appeal in CACV4104: The Curtis Parties [ 91 ] In addition to the arguments outlined above to set aside the appointments, the Curtis Parties say the Chambers judge also erred by failing to address their submission that the Loraas North Parties’ claim against them was premature and, therefore, questioning was inappropriate. The Curtis Parties’ logic goes something like this: pursuant to the terms of a February 13, 2019, guarantee, Curtis agreed to guarantee the performance of Carman and Greenland with respect to their respective covenants and conditions in the NCA.

Because Curtis is the guarantor of one or more of the defendants to the action, the claim against him is purely derivative. As such, he says that he bears no liability under the guarantees unless and until a court rules in favour of the Loraas North Parties on their claim, and an award of damages is made against him under the guarantee. [ 92 ] The Chambers judge did not advert to this argument in his reasons.

In fact, the parties disagree on whether the argument was put to him in either oral or written submissions at the time the application was argued. [ 93 ] Regardless, I would give no effect to this ground of appeal because, at best, it is a defence to Curtis’s claim, and, at that, it is one that has not yet been pleaded. Even if it had been pleaded, as the Loraas North Parties correctly point out, asserting a defence to an action is no basis to excuse them from questioning. [ 94 ] This appeal is also dismissed.

VI. CONCLUSION [ 95 ] The appeal brought in CACV4097 is dismissed in its entirety, with one set of costs payable to the Loraas North Parties by the Carman Parties. [ 96 ] The appeal brought by the Curtis Parties in CACV4104 is dismissed, with one set of costs payable by them to the Loraas North Parties. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A. I concur. “McCreary J.A.” McCreary J.A.