Date: 20011130
Docket: T-66-86A
Neutral Citation : 2001 FCT 1322
BETWEEN:
BERTHA L'HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
[1] This is a motion brought pursuant to Rule 369 seeking various remedies against the plaintiff for alleged failure to comply with the Court's directions and the Rules in respect of the examination for discovery of the plaintiff by the Crown.
[2] While this action and a similar action (T-66-86B) were initially joined, they have since been severed; notwithstanding such severance, I have allowed them to continue concurrently up to the present pending an appeal of the severance ruling to the Court of Appeal. The severance has now been confirmed and the two files will proceed separately henceforth: 2001 FCA 339.
[3] The Crown's Notice of Motion and accompanying Motion Record were filed on October 22, 2001. After receiving an extension of time, the plaintiff's Response was filed on November 20, 2001. The Crown's Reply was filed on November 26, 2001. In its Response, the plaintiff seems to indicate some intention of bringing a cross-motion, which she would like for me to consider at the same time as this Motion, but no such Motion or Motion Record has been filed. For its part, the Crown in its Reply has abandoned its claim for a finding of contempt against the plaintiff.
[4] On July 11, 2001, the Court ordered that the Crown conduct its examination for discovery of the plaintiff between September 10 and 14, 2001. Accordingly, the Crown sought copies of the plaintiff's documents. By cover letter dated August 14, 2001, the plaintiff purported to provide the Crown with copies of their Schedule I documents. The Crown alleges that many of the documents are missing altogether and that most of the documents that are there do not properly correspond to the document number assigned. The Crown advised plaintiff's counsel of these problems on August 30, 2001, and on September 10, 2001, the Crown provided plaintiff's counsel with a detailed list of documents that were missing from their production. Crown counsel apparently returned the plaintiff's documents on November 16, 2001 and plaintiff's counsel asserts that he is endeavouring to correct these problems. It is not denied that the documents are in a state of such disorder that to date it has been impossible for Crown counsel to make any intelligent use of them.
[5] The examination for discovery of the plaintiff, Chief L'Hirondelle (AL'Hirondelle"), took place in Edmonton on September 11 and 12 but was for the reasons already indicated limited to matters which did not require reference to the plaintiff's documentary production. During the examination, plaintiff's counsel took the position that the Sawridge Indian Band ("Sawridge") is not a plaintiff in this proceeding and therefore refused to acknowledge that L'Hirondelle's answers were binding upon or made on behalf of Sawridge. Seventeen undertakings were also given by the plaintiff but none appear to have been answered at the time the Crown filed its Notice of Motion. On September 28, 2001, the Court directed that undertakings should be answered forthwith, or as a rule of thumb, within one month of being given. The plaintiff now alleges that the undertakings have been substantially completed and delivered to the Crown by cover of letter dated November 20, 2001.
[6] In preparation for her examination, Chief L'Hirondelle indicated that she read through her Statement of Claim but that she did not read the Statements of Defence or any other documents that have been produced in the litigation. She said that she did not talk to other members of the Band nor did she read any of the transcripts or information from the first trial. She also turned a blind eye to the legislation being challenged, the Band's membership code, and any activities surrounding the passage of Bill C-31.
[7] The Crown argues that Sawridge is named in the style of cause as though it was a plaintiff, that allegations in the Amended Statement of Claim are made on behalf of the Band, the rights claimed belong to the collective qua Band (defined as "First Nations"), numerous pre-trial steps have confirmed that the band is a party, and relief is sought on behalf of the Band. Aboriginal and treaty rights, they say, are collective rights. Furthermore, in its Reply, the Crown alleges that this issue has been resolved by the Court of Appeal in an interlocutory appeal decision herein rendered earlier this month. Since the plaintiff now admits that her answers on discovery are binding on all represented plaintiffs and since the pleadings make it plain, as the Court of Appeal has found [2001 FCA 339], that the Band is one of the persons purported to be represented by the plaintiff, I do not think it necessary to pursue this question any further. The plaintiff's answers bind all the represented plaintiffs and it is, at the very least, a convenient shorthand to refer to all the latter collectively as the Band.
[8] The Crown relies on several factors to support its contention that the plaintiff has not complied with the Court's directions and the Rules. First, the Crown alleges that the plaintiff was uninformed about her claim and made no efforts to inform herself. Second, the Crown complains that the plaintiff was unable to answer her undertakings within a month. Even at the time of filing its Reply, the Crown submitted that fourteen of seventeen undertakings remained unanswered, either in whole or in part. Third, the Crown alleges that it was prevented from obtaining proper discovery due to plaintiff's counsel who propped up witnesses by providing answers, attempted to cue the witness, or became inflammatory so that the witness would not have to answer questions. Fourth, the Crown complains that it has still not received a proper set of the plaintiff's documents.
[9] Finally, the Crown alleges that it is being denied its right to meaningful documentary and oral discovery and that it is being hampered in its ability to prepare for trial and even to meet its own deadlines. All of this, they say, amounts to serious prejudice.
[10] The plaintiff submits that the defendant's motion is an unreasonable overreaction to the actual circumstances and is unnecessary because the defendant has not suffered prejudice in any material respect.
[11] The analysis of the facts in this motion involves hitting a moving target. The relationship between the parties is clearly dynamic. The facts relevant to the motion change each day and both the plaintiff's Response and the Crown's Reply assert and allege facts happening since the filing of the Motion. However, the parties are under tight deadlines and the Court must do its best to provide guidance to them.
[12] The most important single issue raised by this Motion is the plaintiff's failure to provide proper documentary production. The action is not new. One trial has already been held. It is literally years since a new trial was ordered. With examinations for discovery set to proceed on September 10, 2001, and even though the plaintiff previously complained that a longer period of time was required by her counsel to review the Crown's documents in order to proceed with plaintiff's examination of the Crown's representative, the plaintiff did not provide a copy of her Schedule I documents until August 14, 2001. The plaintiff has been aware of the problems with her document production since at least August 30, 2001 and there is still no evidence that those problems have been corrected. In fact, at this time, it would appear that the Crown is without a set of the plaintiff's documents since they had to be returned for fixing. I have no doubt that this indeed causes the prejudice of which the Crown complains.
[13] Of much less significance is the plaintiff's failure to properly inform herself. The very complexity of this case and the issues makes it virtually certain that no matter how much homework she had done it would have been necessary to give undertakings with regard to a number of questions. But this very fact renders far more critical the inordinate amount of time already taken to satisfy the undertakings. On September 28, 2001, the Court set the "rule of thumb" for answering undertakings at one month from the giving of the undertaking.
[14] The plaintiff accepted seventeen undertakings on September 11 and 12, 2001. She provided partial answers to the Crown on November 20, 2001, more than two months later. The Court also granted the plaintiff's Motion to extend time until that day for filing her Response in the present Motion. The Crown alleges that fourteen undertakings are still unanswered, either in whole or in part. In many instances, the Crown has been referred to the plaintiff's document production. This is unacceptable. If the plaintiff is unable at this very late date to sort out her document production, at least one would expect that she could attach the relevant documents to her answers rather than simply referring the Crown back to her unorganized jumble of documents, which by the way the Crown no longer has in its possession. If the plaintiff wishes to undertake questions and to provide a response at a later date, it must be prepared to provide that response forthwith. The Court's Order is clear in this respect and it is imperative that it be complied with so that this litigation can move forward in a timely manner.
[15] With respect to the conduct of plaintiff's counsel during the examination for discovery, the Court in this case has already stated the following: 2001 FCT 1089 at para. 11.
All objected questions shall be answered under reserve of objection. The only possible exception to that being where there is a claim of privilege, which should be dealt with separately by a motion.
[16] In my view, the transcript of the examination of the plaintiff herein reveals that counsel for the plaintiff has not complied with either the Order of this Court or Rule 241. Crown counsel has provided numerous examples where counsel for the plaintiff has acted inappropriately and I agree with those submissions. Repetition of this conduct will not be tolerated.
[17] Beyond an order designed to oblige plaintiff's counsel to remedy this situation forthwith, I also propose to impose a procedural sanction on the plaintiff for this unacceptable behaviour. As a part of a previous scheduling Order, I granted a number of days to each party for completing their discoveries. Because she has abused the discovery time allotted to her, the plaintiff shall forfeit five days of discovery time previously allotted to her for the examination of the Crown's representative. The plaintiff will also pay the costs of the discovery conducted on September 11 and 12, 2001 (including the Crown's cost of obtaining transcripts) and will pay the costs of this Motion, fixed in the sum of $2,000, forthwith and in any event of the cause.
ORDER
1. The motion is allowed. The plaintiff shall, by 14 December, 2001:
a) provide the Crown with a properly compiled and indexed copy of plaintiff's documentary productions; and
b) fully answer, with no omissions, all the undertakings given;
in default of which the statement of claim shall be struck out and the action shall be dismissed with costs.
2. The number of days allotted to the plaintiff for examination on discovery of the Crown's representative is reduced by five.
3. The plaintiff shall pay the costs of the examination conducted on September 11 and 12, 2001 together with the Crown's cost of obtaining transcripts, and shall also pay the costs of this Motion, hereby assessed in the amount of $2,000, forthwith and in any event of the cause.
____________________________________
Judge
OTTAWA, ONTARIO
November 30, 2001