Executive Summary: Key Legal and Evidentiary Issues

• Classification of the Chambers judge’s orders as interlocutory rather than final, triggering the statutory requirement for leave to appeal before the Court of Appeal could be seized
• Interpretation and application of the Saskatchewan jurisprudence on what constitutes a “final order,” including Poffenroth, Standing Buffalo, Miller and related authorities in assessing whether rights in issue were substantively determined
• Evaluation of whether interlocutory, largely procedural rulings (recusal, adjournment reconsideration, venue, brief of law, scheduling, and costs) merely advanced the judicial review toward a hearing on the merits or finally disposed of substantive rights
• Consideration of the legal test and criteria for granting leave to appeal nunc pro tunc, including the Rothmans framework (merits and importance) and whether those criteria were met on Ms. Soldan’s proposed grounds
• Application of procedural fairness principles, including audi alteram partem and nemo judex in causa sua, to the Chambers judge’s handling of the adjournment and his ability to reconsider his own order
• Determination of whether the Chambers judge’s discretionary procedural decisions (especially venue and case management) warranted appellate intervention, and the consequent allocation of costs in both courts

Background and procedural history

The dispute arises from a conflict between the Law Society of Saskatchewan and Birgit Soldan in relation to the discipline of a lawyer. The underlying proceeding is a judicial review application in the Court of King’s Bench, commenced by originating notice, in which Ms. Soldan challenges a Law Society discipline decision. In the course of that judicial review proceeding, a Chambers judge of the Court of King’s Bench made several procedural rulings adverse to Ms. Soldan. These rulings collectively formed what the Court of Appeal refers to as the Chambers Decision (2025 SKKB 191). Dissatisfied with these outcomes, Ms. Soldan filed a notice of appeal to the Court of Appeal for Saskatchewan, seeking to challenge the entirety of the Chambers Decision.

The Chambers decision and issues in the court below

In the Chambers Decision, the King’s Bench judge dealt with multiple interlocutory applications brought by Ms. Soldan in the context of her judicial review. First, Ms. Soldan sought to have the Chambers judge recuse himself. The judge refused to recuse, rejecting her claim of reasonable apprehension of bias. Second, she asked the judge to reconsider a previously granted adjournment of the judicial review hearing. That reconsideration application was dismissed, with the Chambers judge explaining why her objection had been adequately considered and why the audi alteram partem rule had not been breached. Third, Ms. Soldan attempted to have the judge reject a brief of law filed by the Law Society. This application was also dismissed, leaving the Law Society’s legal brief on the record. Fourth, she applied to transfer the venue of the judicial review from Regina to Melfort. The judge instead concluded that, having regard to The King’s Bench Act and Rule 3-3 of The King’s Bench Rules, Regina was the proper venue and declined the requested change. Fifth, the Chambers judge established a litigation schedule for the hearing of the judicial review application, thereby setting timelines and structure for the case to proceed. Finally, he ordered Ms. Soldan to pay costs of $300 to the Law Society, payable forthwith, as a consequence of these unsuccessful interlocutory applications.

Appeal to the Court of Appeal and narrowing of the issues

Following the Chambers Decision, Ms. Soldan filed a notice of appeal to the Court of Appeal, purporting to appeal “the whole” of that decision. During oral and written argument, however, she narrowed her challenge. She expressly withdrew her appeal from the portion of the Chambers Decision in which the judge declined to recuse himself based on a reasonable apprehension of bias, confirming that she accepted that conclusion. She nonetheless maintained a recusal-based challenge founded on a different principle: the doctrine of nemo judex in causa sua. On this theory, she argued the Chambers judge should have recused himself from hearing her application to reconsider the adjournment because he was the judge who had granted the adjournment in the first place. In addition, she continued to contest the other case-management rulings, including the refusal to change venue, the acceptance of the Law Society’s brief of law, the litigation schedule, and the $300 costs order. Importantly, she argued that each of these rulings amounted to a “final order” from which she could appeal as of right, without leave. In the alternative, if leave were found to be necessary, she asked the Court of Appeal to grant leave nunc pro tunc, thereby regularizing her already-filed notice of appeal.

Final versus interlocutory orders and the need for leave

The central legal issue before the Court of Appeal was whether the Chambers Decision was final or interlocutory. Under The Court of Appeal Act, 2000, a litigant has an appeal as of right from final orders of the Court of King’s Bench, but must obtain leave to appeal from interlocutory decisions. The Court canvassed a consistent line of Saskatchewan authority, including Poffenroth Agri Ltd. v Brown, Standing Buffalo Dakota First Nation v Maurice Law, Miller v Miller Estate, and other cases addressing the final/interlocutory distinction. Those authorities emphasize that an order is interlocutory when it is made during the progress of an action, relates to intermediate matters, and does not decide the substantive merits of a cause of action or defence. In contrast, a final order is one that disposes of the rights of the parties, in a final and binding way, with respect to a substantive issue, even if it does not bring the entire litigation to an end. Applying these principles, the Court rejected Ms. Soldan’s contention that the Chambers judge’s rulings were final simply because they would not be revisited. The Court stressed that if every procedural ruling which finally determined an interim application were treated as final, the final/interlocutory distinction would collapse. Instead, the proper focus is on whether a decision finally determines substantive rights in the action as a whole, or merely sets the stage for their later determination.

Characterization of the Chambers decision as interlocutory

The Court of Appeal concluded that the Chambers Decision was entirely interlocutory. All of the rulings—on recusal, reconsideration of the adjournment, rejection of the Law Society’s brief of law, venue, scheduling, and the $300 costs—were procedural steps taken in the course of the judicial review. None of them decided the ultimate issues in the judicial review, nor did they dispose of any substantive right in a final and binding way. Instead, these rulings were designed to advance the judicial review toward a hearing on the merits. In particular, the venue ruling under The King’s Bench Act and Rule 3-3 was treated as an exercise of procedural discretion that arranged the place of hearing but did not determine the underlying dispute. On this analysis, the Chambers Decision was interlocutory in nature. Accordingly, leave to appeal was required before Ms. Soldan could validly file her notice of appeal to the Court of Appeal. Because she had not obtained leave, the Law Society applied under Rule 46.1 of The Court of Appeal Rules to quash her appeal as unauthorized.

Leave to appeal nunc pro tunc and the Rothmans criteria

Although the absence of leave was sufficient in principle to sink the appeal, the Court went on to consider Ms. Soldan’s fallback request that the Court grant leave to appeal nunc pro tunc. Drawing on Miller and earlier jurisprudence, the Court reiterated that the first step in any nunc pro tunc analysis is whether the proposed appeal satisfies the usual test for granting leave, as framed in Rothmans, Benson & Hedges Inc. v Saskatchewan. That test has two main components: a “merits” component and an “importance” component. If the appeal fails either branch, there is no basis to grant leave, and the Court need not proceed to the secondary considerations (such as whether the appellant acted reasonably in not seeking leave or whether there was undue delay). Here, the Court held that Ms. Soldan’s proposed grounds did not meet the Rothmans criteria. Her challenge to the adjournment was effectively moot, given that the adjournment had already been granted and explained in the Chambers Decision. Her argument that the audi alteram partem rule had been breached was answered at length in the Chambers judge’s own reasons, which the Court of Appeal found sufficient. Her reliance on nemo judex in causa sua was also misplaced: as a matter of principle, where reconsideration of a prior procedural ruling is permitted at all, it is to be heard by the original judge. Any other approach would improperly allow one King’s Bench judge to sit on appeal from another. As for the other case-management decisions (brief of law, venue, scheduling, and related matters), the Court emphasized that these are discretionary decisions, governed by a deferential standard of review and ordinarily left to King’s Bench judges to manage as part of the trial or judicial review process.

Outcome and costs

In light of its analysis, the Court of Appeal granted the Law Society’s application under Rule 46.1 and quashed Ms. Soldan’s notice of appeal on the basis that she required, but had not obtained, leave to appeal an interlocutory decision. Having found that the proposed appeal failed to meet the Rothmans leave criteria on both merit and importance, the Court declined to exercise its exceptional power to grant leave nunc pro tunc. Consequently, the interlocutory rulings of the Chambers judge—including the refusal to recuse, the dismissal of the reconsideration of the adjournment, the acceptance of the Law Society’s brief of law, the designation of Regina as the proper venue, the litigation schedule, and the $300 costs order in the Court of King’s Bench—remained in force. Finally, the Court of Appeal addressed costs of the appeal application. It fixed costs in the Court of Appeal at $1,000, payable by Ms. Soldan to the Law Society. When this is added to the earlier $300 costs order made in the Chambers Decision, the total monetary award in favour of the successful party, the Law Society of Saskatchewan, amounts to $1,300 in costs, with no separate damages award arising from this appellate proceeding.