Executive Summary: Key Legal and Evidentiary Issues

• Standing Buffalo Dakota First Nation (SBDFN) appealed a Court of King's Bench decision denying it access to sealed documents held by its former counsel, Maurice Law, on grounds of solicitor–client privilege asserted by other First Nations.
   
• Central to the appeal was whether leave was required to challenge various orders, given the distinction between final and interlocutory decisions under The Court of Appeal Act, 2000.
   
• Whether SBDFN had jointly retained Maurice Law alongside the privilege claimants for the Last Mountain Lake Indian Reserve No. 80A claim determined the outcome of the privilege dispute.
   
• SBDFN's application to introduce fresh evidence from Specific Claims Tribunal proceedings was assessed against the four-part Palmer test.
   
• Multiple grounds of appeal alleged errors in the Chambers judge's handling of onus, evidentiary admissibility, and procedural fairness.
   
• Costs orders against SBDFN were treated separately, as interlocutory relief requiring their own leave analysis under the importance and merit criteria.
   

Facts of the case

Standing Buffalo Dakota First Nation (SBDFN) filed an originating application in the Court of King's Bench on October 19, 2022, against its former legal counsel, Ron S. Maurice Professional Corporation, operating as Maurice Law Barristers and Solicitors. As amended, the application sought three remedies: contesting invoices rendered by Maurice Law, setting aside a contingency agreement, and obtaining possession of files Maurice Law retained after the solicitor-client relationship ended. Maurice Law had kept SBDFN's physical files under a solicitor's lien. A 2023 order required Maurice Law to transfer the files upon SBDFN's deposit of a sum into court, subject to privilege claims by other First Nations. Following payment, 11 groups of documents remained withheld under seal, over which Pasqua First Nation, Piapot First Nation, George Gordon First Nation, Muskowekwan First Nation, Muscowpetung First Nation, and Day Star First Nation (the privilege claimants) asserted privilege. SBDFN argued it had jointly retained Maurice Law together with the privilege claimants and other First Nations to pursue a claim against the Government of Canada concerning Last Mountain Lake Indian Reserve No. 80A (the IR 80A Claim), and that the withheld documents were therefore held for their common benefit. In a formal order issued March 12, 2024, the Chambers judge found SBDFN had not established it was part of a joint retainer, upheld the privilege claim, and made numerous other rulings, including costs awards against SBDFN. SBDFN appealed most of these determinations, and also applied to introduce fresh evidence sworn by a legal assistant, comprising affidavits and filings from a related Specific Claims Tribunal proceeding.

Policy and legislative provisions at issue

The right of appeal in this matter is governed by sections 7(2) and 8(1) of The Court of Appeal Act, 2000, which provide that leave is required to appeal an interlocutory decision of the Court of King's Bench, but not a final one. Costs-only appeals separately engage section 6-14(b) of The King's Bench Act, SS 2023. Procedural rulings below drew on Rules 3-51, 4-9, and 7-1 of The King's Bench Rules, and section 67 of The Legal Professions Act, 1990 governed the taxation of Maurice Law's invoices. The underlying joint-retainer analysis also implicated rule 3.4-5(c) of the Law Society of Saskatchewan's Code of Professional Conduct, 2012, which prohibits a lawyer from acting for clients whose interests conflict, informing the principle that jointly retaining clients share common interests and, by extension, no confidentiality among themselves.

Reasoning and analysis

Justice Tholl, writing for a unanimous panel, applied the established test distinguishing final from interlocutory orders — whether an order disposes of the parties' rights on a substantive issue in a final and binding way. Procedural and evidentiary rulings, including disclosure, admissibility, and jurisdictional objections, were found to be prototypically interlocutory and unpersuasively argued, warranting denial of leave nunc pro tunc. The privilege orders presented greater difficulty: the Chambers judge had repeatedly characterized his rulings as provisional within a two-stage process under Practice Directive #9, leaving ambiguity as to finality. Rather than resolve that ambiguity, the Court granted leave nunc pro tunc given the issue's centrality and the absence of prejudice from doing so. On fresh evidence, the Court held SBDFN failed to show the Specific Claims Tribunal materials could not have been obtained earlier through due diligence, noted SBDFN's own qualification that it considered the evidence credible only for the purposes of this appeal proceeding since it intended to challenge that same evidence at the Specific Claims Tribunal, and found nothing in the material established a joint retainer including SBDFN or amounted to an abuse of process. Turning to the merits, the Court rejected each of SBDFN's eight grounds of error: the onus properly rested on SBDFN to prove its inclusion in the joint retainer since privilege itself was not contested; the Chambers judge's reliance on Band Council Resolutions and a 2020 memorandum of understanding was a permissible weighing of evidence rather than a new theory; no formal contract requirement was imposed; the absence of formal admissibility rulings was appropriate absent objections; and the finding of privilege was properly confined to the disputed documents rather than made at large. The Chambers judge's ultimate conclusion — that SBDFN failed to prove it was part of the joint retainer — was a factual finding reviewable only for palpable and overriding error, none of which SBDFN demonstrated.

Ruling and overall outcome