Executive Summary: Key Legal and Evidentiary Issues

• The Government of Saskatchewan sought to have the plaintiff’s expert report struck and requested leave to cross-examine the expert, Dr. Lexy Regush, on her qualifications before the certification hearing.

• The plaintiff opposed striking the expert report before certification, arguing that it should be considered in context alongside the full certification record.

• The Court concluded the dispute over qualifications was a narrow issue suitable for pre-certification determination and would not cause delay or unfairness.

• Cross-examination of Dr. Regush on her qualifications was permitted under Rule 6-13 of the King’s Bench Rules as it would assist the Court in resolving the admissibility issue.

• The Court emphasized that resolving the admissibility of expert evidence early would promote fairness, efficiency, and judicial economy.

• The application to strike the report will be heard concurrently with other preliminary applications on April 25, 2025; costs of the sequencing application will be addressed during the certification hearing.

Facts of the case and judicial findings

In this proposed class action, Chantelle Cheekinew alleges that the Government of Saskatchewan operated a system of “birth alerts” targeting Indigenous, racialized, and disabled pregnant persons. These alerts, issued to healthcare providers, allegedly prompted premature child protection interventions based on discriminatory and speculative assumptions. The claim asserts violations of rights under section 7 of the Canadian Charter of Rights and Freedoms, breaches of privacy, loss of parental relationships, psychological harm, and demands class certification under The Class Actions Act, SS 2001, c C-12.01.

As part of her certification application, Ms. Cheekinew filed an expert report prepared by Dr. Lexy Regush. The Government objected to this report on multiple grounds, including that Dr. Regush lacked appropriate qualifications, her opinions exceeded her expertise, the report did not meet the reliability threshold, and it lacked the required certification under Rule 5-37(3) of the King’s Bench Rules. The Government sought leave to cross-examine Dr. Regush and to strike her report before the certification hearing, prompting the sequencing application addressed in this decision.

Court’s analysis on sequencing and cross-examination

Justice Bergbusch identified the key issues: (1) whether the application to strike the expert report should be heard before certification; and (2) whether the Government should be allowed to cross-examine Dr. Regush on her qualifications.

Citing the Saskatchewan Court of Appeal’s decision in Hoedel v WestJet Airlines Ltd., 2023 SKCA 135, the Court confirmed that judges have discretion to determine the sequence of motions in class actions. The decision referenced a non-exhaustive list of factors from British Columbia v The Jean Coutu Group (PJC) Inc., 2021 BCCA 219, which guide whether interlocutory applications should proceed before certification. These include delay, cost, judicial efficiency, risk of appeal, and the complexity of issues involved.

Justice Bergbusch found that:

• The challenge to Dr. Regush’s qualifications was a narrow issue and suitable for early determination.

• Hearing the application concurrently with other pre-certification motions (set for April 25, 2025) would not cause delay and could avoid later inefficiencies.

• The Court must eventually rule on the admissibility of Dr. Regush’s evidence, and doing so earlier could prevent the plaintiff from presenting inadmissible evidence at certification, as occurred in Graham v Hoffmann-La Roche Ltd., 2020 SKQB 353.

• Although the plaintiff argued that admissibility should be assessed in context, the Court noted that this particular objection related solely to qualifications, which can be addressed without full review of the certification record.

Regarding the request to cross-examine Dr. Regush, the Court applied Rule 6-13 of the King’s Bench Rules and the test from Wallace v Canadian National Railway, 2009 SKQB 178. The Court noted there is no inherent right to cross-examine on an affidavit, and leave is discretionary. However, cross-examination was appropriate here because:

• It was limited to qualifications only, and

• It would assist the Court in making its threshold admissibility determination without causing injustice or delay.

Outcome and procedural orders

Justice Bergbusch concluded that:

• The Government is granted leave to cross-examine Dr. Regush on her qualifications only, for no more than half a day. The Government must bear the initial cost of that cross-examination.

• The Government’s application to strike Dr. Regush’s expert report and parts of her affidavit will be heard on April 25, 2025, concurrently with its other preliminary motions, including the application for production of medical records and to strike parts of the plaintiff’s affidavit.

• Costs for the sequencing application will be addressed during the certification hearing.

The Court emphasized that early resolution of admissibility concerns serves the broader interests of fairness, judicial economy, and procedural efficiency, especially in complex proposed class actions.