COURT FILE NUMBER Q.B. No. 1038 of 2018 COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE APPLICANT SASKATOON HUMBOLDT BRONCOS MEMORIAL FUND INC. IN THE MATTER OF THE INFORMAL PUBLIC APPEALS ACT, SS 2014, c 1-9.0001 AND IN THE MATTER OF FUNDS DONATED THROUGH THE GOFUNDME ONLINE FUNDRAISING PLATFORM IN RESPONSE TO AN ACCIDENT ON APRIL 6, 2018 INVOLVING PERSONS TRAVELLING ON THE HUMBOLDT BRONCOS JUNIOR HOCKEY TEAM BUS THIRD AFFIDAVIT OF DARRIN DUELL I, Darrin Duell, of the City of Saskatoon, in the Province of Saskatchewan, MAKE OATH AND SAY AS FOLLOWS: 1. I am the President and Treasurer, and a director, of the Applicant, Humboldt Broncos Memorial Fund Inc. ("HBMFI"). As such, I have personal knowledge of the facts and matters hereinafter deposed to, except where stated to be sworn based upon information and belief, and where so stated, I verily believe the same to be true. 2. HBMFI was established to receive, manage and distribute monies (the "Net Funds") donated through an online fundraising campaign on the GoFundMe website in response to a vehicular accident involving the Humboldt Broncos Junior Hockey team bus (the "Bus") in the Province of Saskatchewan on April 6, 2018 (the "Accident"), and all activities ancillary thereto. 3. Pursuant to paragraphs 11 through 15 of the Order (the "Initial Order") of the Honourable Mr. Justice N.G. Gabrielson of the Court of Queen's Bench for Saskatchewan (the "Court") dated August 15, 2018, an Advisory Committee (the "Advisory Committee") was appointed to inquire into and to prepare a report to the board of directors of HBMFI (the "Advisory Committee Report") containing the recommendations of the Advisory Committee regarding the allocation of the Net Funds in a fair, equitable and transparent manner which is consistent with the Object of the Trust (as defined in the Initial Order). 17674361
4. On November 13, 2018, the Advisory Committee delivered the Advisory Committee Report to the board of directors of HBMFI. A copy of the Advisory Committee Report will be filed in Court. 5. In the Advisory Committee Report, the Advisory Committee made the following recommendations (the "Advisory Committee Recommendations") to the board of directors of HBMFI: (c) That in addition to the initial payment of $50,000 previously made to each of the families of the sixteen persons who died in the Accident, that the Net Funds be allocated so as to pay the additional sum of $475,000 to each such family, for a total payment to such families of $525,000 as set forth in Schedule "1" to the Advisory Committee Report; That in addition to the initial payment of $50,000 previously made to each of the thirteen surviving claimants injured in the Accident, that the Net Funds be allocated so as to pay the additional sum of $425,000 to each such claimant, for a total payment to such claimants of $475,000 as set forth in Schedule "2" to the Advisory Committee Report; and That any of the Net Funds remaining in trust subsequent to the above-noted payments be distributed to the thirteen surviving claimants in equal shares, share and share alike. 6. As at November 21, 2018, the total aggregate amount of funds on deposit to the credit of HBMFI at the investment management firm of RBC Dominion Securities Inc. ("RBCDS") was approximately $13,284,235.31, calculated as follows: Cumulative deposits to RBCDS on behalf of HBMFI: $14,641,989.18 (Less interim distribution of $1,450,000.00 comprising 29 payments of $50,000.00): $(1,450,000.00) $13,191,989.18 Plus: Interest earned to November 1, 2018: $78,122.13 Plus: Estimated interest earned from November 1 to November 21, 2018: $14,124.00 TOTAL NET FUNDS: $13,284,235.31 7. In addition to the amounts held to the credit of HBMFI at RBCDS, there remains an additional sum of $47,927.86 to the credit of HBMFI held in trust for HBMFI at the law firm of MLT Aikins LLP. 17674361 2
8. On the afternoon of Wednesday, November 14, 2018, there was delivered by facsimile transmission to the office of MLT Aikins LLP, counsel to HBMFI, a letter dated November 1 3, 2018 addressed to MLT Aikins LLP from Stacy L. Maurier (Ms. Maurier) of Estate Connection Law Office of St. Albert, Alberta (the "November 13 Maurier Letter"). Attached to the November 13 Maurier Letter was a 29-page document (the "November 13 Maurier Letter Attachment") comprising: (c) an alphabetical list of the names of the 29 persons on the Bus at the time of the Accident; six pages entitled "Humboldt GoFundMe Court Application" containing a fourparagraph statement concluding with "... it is our wish that the GoFundMe (now the Humboldt Broncos Memorial Fund Inc.) funds be distributed evenly amongst the 29 families that were on the Bus" and bearing various signatures; and twenty-three untitled pages containing no statement or content and bearing various signatures. 9. The November 13 Maurier Letter stated: that Ms. Maurier's client had recently been in contact with all 29 families that were affected by the Accident; and that Ms. Maurier's client "has been able to obtain all their signatures consenting to this distribution and is in the process of having all the witnesses to those signatures complete and Affidavit of Execution". 10. The board of directors of HBMFI has noted from its review of the November 13 Maurier Letter Attachment: (c) that two of the signatures on the November 13 Maurier Letter attachment were not witnessed; that three of the witnesses to the signatures on the November 13 Maurier Letter Attachment have not printed their names on the document and have signed with an illegible signature, such that their identities are unknown; that one of the signatures on the November 13 Maurier Letter Attachment purports to have been applied to that document by a family member whose mental competence has been put in issue by other family members at the time of 17674361 3
the interviews of families conducted pursuant to the Initial Order by the Information Resource Persons, which person is the subject of a Power of Attorney in favour of another family member; (d) (e) that two surviving spouses of deceased persons on the Bus at the time of the accident have not signed the November 13 Maurier Letter Attachment; and that one of the parents of a deceased person on the Bus at the time of the Accident has not signed the November 13 Maurier Letter Attachment. The board of directors of HBMFI has determined from its review of the Advisory Committee Report: (c) (d) (e) that three of the 24 families interviewed by the Advisory Committee claimed to speak for all 29 of the families of persons on the Bus at the time of the Accident (paragraph 35 of the Advisory Committee Report); that those three families asserted to the Advisory Committee that all of the other claimants and their families were unanimous in their support of an equal distribution to all 29 families (paragraph 35 of the Advisory Committee Report); that many of the families felt pressured to conform to the view that an equal distribution to all 29 families was appropriate (paragraph 36 of the Advisory Committee Report); that not all of the families of passengers who died in the Accident support an equal distribution (paragraph 37 of the Advisory Committee Report); and that some of the families interviewed by the Advisory Committee made it clear that they had overtly supported an equal distribution in order to maintain harmony within the group of all 29 families (paragraph 37 of the Advisory Committee Report). 1 2. By reason of the facts and matters described above, the board of directors of HBMFI determined that it would be appropriate to instruct counsel to HBMFI to write to Ms. Maurier: to request that Ms. Maurier authorize HBMFI to include a copy of the November 13 Maurier Letter and the November 13 Maruier Letter Attachment with the 17674361 4
materials to be filed by HBMFI on the public Court file in support of the application for a final order allocating the Net Funds; (c) to request that Ms. Maurier provide HBMFI with copies of the Affidavits of Execution pertaining to the signatures appearing on the November 13 Maurier Letter Attachment (the "Affidavits of Execution"); and to indicate that, given the time-sensitive nature of the application scheduled for hearing by the Court on November 28, 2018, HBMFI required that it be provided with the Affidavits of Execution by close of business on Monday, November 19, 2018 (in order to be in a position to consider the Affidavits of Execution in regard to the hearing of the application scheduled for November 28, 2018). 13. By letter dated November 16, 2018 addressed to Ms. Maurier (the "November 16 MLT Aikins Letter"), MLT Aikins LLP (counsel to HBMFI) communicated to Ms. Maurier the request and information described above in the immediately preceding paragraph. Attached and marked as Exhibit "A" to this Affidavit is a true copy of the November 16 MLT Aikins Letter. 14. Despite follow up e-mail correspondence sent by MLT Aikins LLP to Ms. Maurier following up on the November 16 MLT Aikins Letter on Saturday, November 17 and Tuesday, November 20, 2018, MLT Aikins LLP has not received any Affidavits of Execution directly from Ms. Maurier. Further, MLT Aikins LLP has not received authorization from Ms. Maurier to include the November 13 Maurier Letter or the November 13 Maurier Letter Attachment with the materials to be filed by HBMFI on the public court file in support of the application for a final order allocating the Net Funds. 15. Since the delivery of the November 16 MLT Aikins Letter, MLT Aikins LLP has received five Affidavits of Execution regarding the November 13 Maurier Letter Attachment comprising: (c) an Affidavit of Execution which was delivered to MLT Aikins LLP on the afternoon of Monday, November 19, 2018; an Affidavit of Execution which was delivered to MLT Aikins LLP on the evening of Monday, November 19, 2018; an Affidavit of Execution which was delivered to MLT Aikins LLP on the morning of Tuesday, November 20, 2018; 17674361 5
(d) (e) an Affidavit of Execution sworn by the witness to the signatures of two persons, which was delivered to MLT Aikins LLP on the morning of Wednesday, November 21, 2018; and an Affidavit of Execution sworn by the witness to the signatures of two persons, which was delivered to MLT Aikins LLP on the afternoon of Wednesday, November 21, 2018. 16. The board of directors of HBMFI has determined that it is appropriate to instruct counsel to HBMFI to apply to the Court on behalf of HBMFI (at the hearing of the final order application) for an Order approving, and authorizing HBMFI to implement, the Advisory Committee Recommendations, for the following reasons: (c) (d) (e) The Advisory Committee met with 24 of the 29 families affected by the Accident (in person or by telephone) and conducted structured, focused and meaningful interviews which allowed the Advisory Committee to obtain detailed input from the families as to their views on how the Net Funds should be allocated; The circumstances surrounding the preparation of the November 13 Maurier Letter Attachment and the signatures appearing on that document (as more particularly described above) raise a number of unanswered questions regarding the document (as more particularly described above in paragraphs 10 and 11 hereof); A request by HBMFI that it be provided with the Affidavits of Execution in order to assist in answering questions regarding the November 13 Maurier Letter Attachment has only yielded five Affidavits of Execution; The Advisory Committee Report was thorough, complete, well-reasoned and prepared with the benefit of direct input from the families affected by the Accident; and The Advisory Committee Recommendations are supported by a cogent analysis of the issues and a careful review of all relevant information. 17. The board of directors of HBMFI convened three separate meetings to consider the Advisory Committee Recommendations on Thursday, November 15, 2018; Monday, November 19, 2018 and Wednesday, November 21, 2018. The reason for these multiple meetings was to allow the proponents of the November 13 Maurier Letter Attachment additional time within which to provide to HBMFI Affidavits of Execution which would 17674361 6
verify or substantiate the accuracy of that document and the authenticity of the signatures on that document (which they ultimately were unable to fully provide). 18. At its meeting on November 21, 2018, the board of directors of HBMFI unanimously resolved to instruct counsel to HBMFI to apply to the Court of Queen's Bench for Saskatchewan for an Order approving and authorizing HBMFI to implement the Advisory Committee Recommendations. Attached and marked as Exhibit "B" to this Affidavit is a true copy of the resolution described in this paragraph. 19. I make this affidavit in support of an application by HBMFI for an Order approving, and authorizing HBMFI to implement, the Advisory Committee Recommendations in the manner more particular described in the draft Order filed in support of this Application. SWORN BEFORE ME at the City of Saskatoon, ) in the Province of Saskatchewan, this 22nd day ) of Noyimber, 2018. ), -..., ) COMMISSIONER FOR OATHS for Saskatchewan. fvly-goldrnisr inn Fxpilezi, ) ) DARRIN DUELL CONTACT INFORMATION AND ADDRESS FOR SERVICE: Name of firm: MLT Aikins LLP Lawyer in charge of file: Jeffrey M. Lee, Q.C. and Paul Olfert Address of firm: 1500, 410 22nci Street E, Saskatoon SK S7K 5T6 Telephone number: 306.975.7100 Email address: jmlee@mitaikins.com / polfert@mitaikins.com File No: 68034.1 17674361 7
MLTAIININS WESTERN CANADA'S LAW FIRM November 16, 2018 Via E-Mail: info@estateconnection.com Via Fax: (780) 930-1506 Estate Connection Law Office 101, 200 Carnegie St. Albert, AB T8N 5A7 Attention: Ms. Stacy L. Maurier Dear Ms. Maurier: MLT Aikins LLP 1500-410 22nd Street East Saskatoon, Saskatchewan S7K 5T6 T: (306) 975-7100 F: (306) 975-7145 Jeffrey M. Lee, Q.C. Direct Line: (306) 975-7136 E-mail: jmlee@mltaikins.com Carmen R Balzer Legal Assistant E-mail: cbalztr@mitaikins corn THIS IS EXHIBIT " " referred to the Affidavit of P.\ S RN before me at this day of tick?', 20 14Z A 6011/1 ON gi FOR OATHS for Saskatchewan 0- eing a Solicitor Re: Humboldt Broncos Memorial Fund Inc. ("HBMFI") Thank you for your letter of November 13, 2018 and attached document (copy enclosed). We have provided your letter and the attached document accompanying same to the members of the board of directors of HBMFI. Can you please provide us with authorization to include your letter and the attached document in materials to be placed on the public court file by HBMFI? The third paragraph of your letter indicates that your client is in the process of having all the witnesses to the signatures on the attached document complete an Affidavit of Execution. Can you please arrange to provide us with these Affidavits of Execution as soon as possible? This matter is highly time sensitive, as the hearing before the Court is scheduled to take place on Wednesday, November 28, 2018. In order to be in a position to consider the Affidavits of Execution, the board of directors of HBMFI will require that they be provided with the Affidavits of Execution (in care of this office) by close of business on Monday, November 19, 2018. Please feel free to scan, e-mail or fax them to us. 17649733 v2 MLT AIKINS LLP I FALTAIKINS.COM
MLTAIKINS WESTERN CANADA'S LAW FIRM We look forward to hearing from you as soon as possible. Yours truly, MLT AIKINS IbLP JML:crb cc: Humboldt Broncos Memorial Fund Inc. cc: MLT Aikins LLP Attn: Paul Olfert -2- MLT AIKINS LLP I MLTAIKINS COM 17649733v2
THIS IS EXHIBIT " lis " referred lin the Affidavit of -1V4Nrirtvk NA,' t SWORN before me at this day of 20 1. ----, r C------- A COMMISSIONER FOR OATHS for Saskatchewan WHEREAS: 0 eing a Solicitor A. The Corporation was established to receive, manage, and distribute monies (the "Net Funds") donated through an online fundraising campaign on the GoFundMe website in response to a vehicular accident involving the Humboldt Broncos junior hockey team bus (the "Bus") in the Province of Saskatchewan on April 6, 2018 (the "Accident"), and all activities ancillary thereto. B. Pursuant to paragraphs 11 through 15 of the Order (the "Initial Order") of the Honourable Mr. Justice N.G. Gabrielson of the Court of Queen's Bench For Saskatchewan (the "Court") dated August 15, 2018, an "Advisory Committee" was appointed to inquire into and to prepare a report to the board of directors of the Corporation (the "Advisory Committee Report") containing the recommendations of the Advisory Committee regarding the allocation of the Net Funds in a fair, equitable and transparent manner which is consistent with the Object of the Trust (as defined in the Initial Order). C. On November 13, 2018, the Advisory Committee delivered the Advisory Committee Report to the board of directors of the Corporation. D. In the Advisory Committee Report, the Advisory Committee made the following recommendations (the "Advisory Committee Recommendations") to the board of directors of the Corporation: i. that in addition to the initial payment of $50,000 made to each of the families of the 16 persons who died in the Accident, that the Net Funds be allocated so as to pay the sum of $475,000 to each such family, for a total payment of $525,000, as set forth in Schedule 1 to the Advisory Committee Report; i that in addition to the initial payment of $50,000 made to each of the 13 surviving claimants, that the Net Funds be allocated so as to pay the sum of $425,000 to each such claimant, for a total payment of $475,000, as set forth in Schedule 2 to the Advisory Committee Report; and that any of the Net Funds remaining in trust subsequent to the above-noted payments be distributed to the 13 surviving claimants in equal shares, share and share alike. E. A hearing of the application by the Corporation for a Final Order of the Court authorizing and directing the distribution of the Net Funds (the "Final Order Application") has been scheduled by the Court to take place before the Honourable Mr. Justice N.G. Gabrielson at the Court House in Saskatoon at 10:00 am on Wednesday, November 28, 2018. F. On the afternoon of Wednesday, November 14, 2018, there was delivered by facsimile transmission to the office of MLT Aikins LLP, counsel to the Corporation, a letter dated November 13, 2018 addressed to MLT Aikins LLP from Stacy L. Maurier ("Ms.
Maurier") of Estate Connection Law Office of St. Albert, Alberta (the "November 13 Maurier Letter"). G. Attached to the November 13 Maurier Letter was a 29-page document (the "November 13 Maurier Letter Attachment") comprising: i. an alphabetical list of names of the families of the 29 persons on the bus at the time of the Accident; i six pages entitled "Humboldt Go Fund Me Court Application" containing a fourparagraph statement concluding with "...it is our wish that the Go Fund Me (Now the Humboldt Broncos Memorial Fund Inc.) funds be distributed evenly amongst the 29 families that were on the bus" and bearing various signatures; and twenty-three untitled pages containing no statement or content and bearing various signatures. H. The November 13 Maurier Letter stated: i. that Ms. Maurier's client had recently been in contact with all 29 families that were affected by the Humboldt accident; and that Ms. Maurier's client "has been able to obtain all their signatures consenting to this distribution and is in the process of having all the witnesses to those signatures complete an affidavit of execution". I. The board of directors of the Corporation have noted from their review of the November 13 Maurier Letter Attachment: i. that two of the signatures on the November 13 Maurier Letter Attachment were not witnessed; i iv. that three of the witnesses to the signatures on the November 13 Maurier Letter Attachment have not printed their names on the document and have signed with an illegible signature, such that their identities are unknown; that one of the signatures on the November 13 Maurier Letter Attachment purports to have been applied to that document by a family member whose mental competence has been put in issue by other family members at the time of the interviews of families conducted pursuant to the Initial Order by the Information Resource Persons, which person is the subject of a Power of Attorney in favour of another family member; that two surviving spouses of deceased persons on the Bus at the time of the Accident have not signed the November 13 Maurier Letter Attachment; and
v. that one of the parents of a deceased person on the Bus at the time of the Accident has not signed the November 13 Maurier Letter Attachment. J. The board of directors of the Corporation has determined from its review of the Advisory Committee Report: i. that three of the twenty-four families interviewed by the Advisory Committee claimed to speak for all twenty-nine of the families of persons on the Bus at the time of the Accident (paragraph 35 of the Advisory Committee Report); i iv. that those three families asserted to the Advisory Committee that all of the other claimants and their families were unanimous in their support of an equal distribution to all twenty-nine families (paragraph 35 of the Advisory Committee Report); that many of the families felt pressure to conform to the view that an equal distribution to all twenty-nine families was appropriate (paragraph 36 of the Advisory Committee Report); that not all of the families of passengers who died in the Accident support an equal distribution (paragraph 37 of the Advisory Committee Report); and v. that some of the families interviewed by the Advisory Committee made it clear that they had overtly supported an equal distribution in order to maintain harmony within the group of all twenty-nine families (paragraph 37 of the Advisory Committee Report). K. By reason of the facts and matters described above, the board of directors of the Corporation determined that it would be appropriate to instruct counsel to the Corporation to write to Ms. Maurier: i. to request that Ms. Maurier authorize HBMFI to include a copy of the November 13 Maurier Letter and the November 13 Maurier Letter Attachment within materials to be filed by HBMFI on the public court file in support of the Final Order Application; i to request that Ms. Maurier provide HBMFI with copies of the Affidavits of Execution pertaining to the signatures appearing on the November 13 Maurier Letter Attachment (the "Affidavits of Execution"); and to indicate that, given the time-sensitive nature of the Final Order Appliction scheduled for hearing by the Court on November 28, 2018, HBMFI required that it be provided with the Affidavits of Execution by close of business on Monday, November 19, 2018 (in order to be in a position to consider the Affidavits of Execution in regard to the hearing of the Final Order Application).
L. By letter dated November 16, 2018 addressed to Ms. Maurier (the "November 16 MLT Aikins Letter"), MLT Aikins LLP (counsel to the Corporation) communicated to Ms. Maurier the requests and information described above in Recital paragraph K hereof. Attached and marked as Schedule "A" to this Resolution is a true copy of the November 16 MLT Aikins Letter. M. Despite follow-up e-mail correspondence sent by MLT Aikins LLP to Ms. Maurier following up on the November 16 MLT Aikins Letter on Saturday, November 17 and Tuesday, November 20, 2018, MLT Aikins LLP has not received any Affidavits of Execution from Ms. Maurier. N. Since the delivery of the November 16 MLT Aikins Letter, MLT Aikins LLP has received three Affidavits of Execution, comprising: i. an Affidavit of Execution sworn by the witness to the signature of Karen Doerksen which was delivered to MLT Aikins LLP by e-mail from Karen Doerksen on the afternoon of Monday, November 19, 2018; i an Affidavit of Execution sworn by the witness to the signature of Raelene Herold which was delivered by e-mail from Kevin Mellor, counsel to the Herold family, on the evening of Monday, November 19, 2018; and an Affidavit of Execution sworn by the witness to the signature of Russell Herold which was delivered by fax from Kevin Mellor, counsel to the Herold family, on the morning of Tuesday, November 20, 2018. 0. The board of directors of the Corporation has determined that it is appropriate to instruct counsel to HBMFI to apply to the Court on behalf of HBMFI (at the hearing of the Final Order Application) for an Order approving, and authorizing HBMFI to implement, the Advisory Committee Recommendations, insofar as: i. the Advisory Committee met with 24 of the 29 families affected by the Accident (in person or by telephone) and conducted structured, focused and meaningful interviews which allowed the Advisory Committee to obtain detailed input from the families as to their views on how the Net Funds should be allocated; i the circumstances surrounding the preparation of the November 13 Maurier Letter Attachment and the signatures appearing on that document (as more particularly described in recital paragraph I hereof) raise a number of unanswered questions regarding the document; a request by HBMFI that it be provided with the Affidavits of Execution in order to assist in answering questions regarding the November 13 Maurier Letter Attachment has not been answered;
iv. the Advisory Committee Report was thorough, complete, well-reasoned and prepared with the benefit of direct input from the families affected by the Accident; and v. the Advisory Committee Recommendations are supported by a cogent analysis of the issues and a careful review of all relevant information. NOW, THEREFORE, BE IT RESOLVED THAT: 1. The Corporation is of the view that it is appropriate to instruct counsel to HBMFI to apply to the Court on behalf of HBMFI (at the hearing of the Final Order Application) for an Order approving, and authorizing HBMFI to implement, the Advisory Committee Recommendations. In doing so, after obtaining the consent of the Advisory Committee to do so, counsel to HBMFI shall include the Advisory Committee Report among the materials which it files on the public Court File, serves on the parties on the Service List and posts to the Case Website in support of such court application. 2. Any officer or Director of the Corporation is hereby authorized, in the name and on behalf of the Corporation, to do all such further acts as any such officer or Director may consider to be necessary or desirable in order to give effect to the above resolutions. 3. These resolutions may be signed in as many counterparts as may be necessary, and may be signed by facsimile or other means of electronic communication producing a printed copy, each of which so signed shall be deemed to be an original and, notwithstanding the date of execution, shall be deemed to bear the date and time first written above.