Date: 20010706
Docket: T-2022-89
T-1254-92
Neutral Citation: 2001 FCT 765
T-2022-89
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf
of all of the other members of the Samson Indian Nation and
Band and the SAMSON INDIAN BAND AND NATION
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE
MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT, AND THE MINISTER OF FINANCE
Defendants,
- and -
CHIEF JEROME MORIN acting on his own behalf
as well as on behalf of all the MEMBERS OF ENOCH'S BAND
OF INDIANS AND THE RESIDENTS THEREOF ON AND
OF STONY PLAIN RESERVE NO. 135
AND EMILY STOYKA and SARA SCHUG
Intervenors.
T-1254-92
AND BETWEEN:
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
AND THE MINISTER OF FINANCE
Defendants
Re: Undertakings, Particulars, Production of Council Minutes
and Solicitors' Files
[1] These Reasons concern three motions brought by the defendants (the "Crown") in these two actions that are being tried together. The Crown seeks by various means to obtain information in regard to the respective cases it has to meet in light of the pleadings.
[2] The first motion, heard November 3, 1999, seeks an order directing responses to certain undertakings to consider questions arising in discoveries of the plaintiffs' respective representatives which the plaintiffs subsequently object to answering, mainly on grounds that the questions asked are not appropriate questions in discovery, many of them seek legal conclusions or opinions of experts, and thus the undertakings do not require answers.
[3] The second and third motions, heard January 21, 2000, respectively seek an order for further and better particulars concerning allegations made by the plaintiffs in their statements of claim, and an order directing production of Band Council Minutes and solicitors' files, which concern legal advice or discussions, claimed by the plaintiffs as subject to solicitor-client privilege. The Crown claims entitlement to production by waiver of the plaintiffs' claim to privilege because of the latters' allegations about the state of their knowledge at relevant times, the lack of provision of independent legal advice and the absence of informed consent for matters they may be said to have accepted.
[4] The motions were raised in the course of case management proceedings as the date anticipated for trial to commence, in May 2000, was drawing near. All three motions concern discoveries, particulars and document production relating to oil and gas issues raised in the actions. While these issues are not expected to be introduced at trial before the late fall of 2001, at the earliest, I regret that I have been delayed in determining these matters after hearing the motions.
[5] I briefly refer to recent jurisprudence dealing with the modern approach to disclosure required in preparation for hearings at trial. I then turn to each of the three motions in turn.
[6] The defendants rely on the modern approach to disclosure and the Crown's entitlement to know the case it has to meet at trial. Disclosure by pleadings, by particulars, by written examination or by oral examination for discovery is intended by the Court's rules to ensure the parties are aware of the case each hopes to establish and the other party is to meet, to clarify the issues on which the parties differ, to enhance the possibility of settlement of some or all issues, and for issues that do go to trial, to avoid surprise and to permit efficient use of time by counsel and the Court.
[7] In Montana Band et al. v. Canada, (1999), 172 F.T.R. 46 at 51 (T.D.), Mr. Justice Hugessen commented, in relation to discovery, inter alia:
...
The general purpose of examination for discovery is to render the trial process fairer and more efficient by allowing each party to inform itself fully prior to trial of the precise nature of all other parties' positions so as to define fully the issues between them. It is in the interest of justice that each party should be as well informed as possible about the positions of the other parties and should not be put at a disadvantage by being taken by surprise at trial. It is sound policy for the Court to adopt a liberal approach to the scope of questioning on discovery since any error on the side of allowing questions may always be corrected by the trial judge who retains the ultimate mastery over all matters relating to admissibility of evidence; on the other hand any error which unduly restricts the scope of discovery may lead to serious problems or even injustice at trial.
...
Subject to certain special exceptions such as claims to privilege, the key to the propriety of any question on discovery is relevance; that, in its turn, is determined by the pleadings (Rule 240).
While the usual practice is for examinations on discovery to be conducted orally, the Rules make provision for examination by means of written interrogatories and it seems to me that the Court should, as a matter of policy, encourage the use of such interrogatories in appropriate cases. They are likely to be far less time consuming and should do away entirely with any necessity for adjourning the discovery to allow the witness to inform him or herself of the appropriate facts.
...
Since it is clear that the answers to interrogatories will almost always be prepared by or with the very active assistance of counsel, evasive, unresponsive or ambiguous answers are not to be tolerated. By the same token, questions whose answers may require some element of law over and above their primarily factual basis may be allowed a somewhat greater latitude.
...
[8] In accord with the general principle of disclosure, in Sierra Club of Canada v. Canada (Minister of Finance) (1999), 174 F.T.R. 270 (T.D.), Mr. Justice Pelletier, considering an application for directions to answer questions refused in discovery on an affidavit, directed that the questions be answered despite argument that the questions sought answers concerning the law or an interpretation of an act of Parliament. In the view of Pelletier J. the questions concerned the factual bases underlying a particular view or interpretation of the law, and he directed that the underlying facts and the interpretation of the law based upon them be disclosed where this was the ground upon which the application was made. In that case even if a legal interpretation was provided by a party's solicitor, the facts underlying it were not subject to solicitor-client privilege, nor was the interpretation precluded from discovery as part of the solicitor's work product.
[9] In Global Petroleum Corp. v. CBI Industries Inc. (1998), 172 D.L.R. (4th) 689 (N.S.C.A.) Mr. Justice Chipman, in dismissing an appeal from a chambers judge who had ordered reattendance of witnesses to answer questions refused in discovery, commented (at 693):
...The rules respecting procedure and discovery in civil matters should be liberally interpreted to give effect to full disclosure prior to trial. The object is to avoid surprise, save expense, and encourage settlement. ...
Further, at 695, Chipman J.A. commented:
...facts of which the appellants were aware that relate to the allegations in their statement of claim -- whatever the source, including lawyers -- must be disclosed. The source need not be.
Before us, the appellants pointed to a number of questions required to be answered which were framed as follows or to the like effect:
Q - what evidence do you have in your possession respecting...
In each and every case in which Hamilton J. ordered that the question be answered, she determined that what in substance was requested was a fact. Her order requires that the witnesses disclose facts, not the evidence to be relied on in establishing such facts. ...
I. Motion: to respond to oil and gas undertakings
[10] The defendants seek an order that the plaintiffs respond to certain questions asked in oral discovery of the plaintiffs' representatives in regard to oil and gas issues, which the plaintiffs took under advisement and ultimately refused to answer. The questions are separately numbered for each of the two actions. I here set out the questions for the Samson action and then for the Ermineskin action, grouped generally in respect of the arguments of the parties, with the questions as phrased and numbered in the transcript of discovery. Directions, with brief reasons, in respect of these questions, are then set out.
[11] A general objection to the defendants' motion as it applies to many questions at issue is that the questions are improper in discovery, in form or wording, for they seek particulars regarding the plaintiffs' pleadings. It is urged that particulars, or further particulars, be sought by written demands. That is urged particularly in this case where the plaintiffs' representatives in discovery were not personally responsible for pleadings and could only be expected to respond after consulting counsel. The defendants urge that they simply seek information to which they are entitled in order to prepare a defence. In view of the unusual arrangements for trial to commence before discoveries of the whole case are completed, that information should be provided in any way possible. The plaintiffs urge that questions in discovery, demands for particulars and written interrogatories, though they may serve the same general purposes, are well-established processes and are not interchangeable.
Action T-2022-89
[12] In the Samson action (T-2022-89) four questions are in issue. These questions, and relevant summary arguments, are as follows:
OG10 Taken under advisement: advise what return or what royalty does the Plaintiff say that the Crown ought to have obtained, (reference paragraph 31(A)).
OG11 Taken under advisement: advise what the particulars are of 31(B) in terms of what provisions ought to have been imposed on what agreements to obtain what royalty.
The defendantsurge that they are entitled to know the position of the plaintiff in terms of facts underlying the allegations set out in the paragraphs referred to in the statement of claim.
The plaintiffsobject on several grounds. It is urged that the information the defendants seek has already been made available by the summary of oil and gas issues identified by Samson plaintiffs and produced to the defendants in the course of case management proceedings. I am not persuaded that that summary of the issues, which is mainly set out in the form of questions, is an appropriate response to the questions now asked by the defendants. The plaintiffs further object because in their view both questions OG10 and OG11 seek opinions, legal or expert. Legal questions are objected to, questions for expert opinions will be provided in due course from experts.
OG28 Taken under advisement: advise what information Samson has as to whether there was information relating to the capital or revenue accounts as it relates to Pigeon Lake or to the Samson band that they did not receive; also advise of the particulars of any information Samson sought from the Crown but did not receive.
OG162 Taken under advisement: advise whether the only issue in relation to the surface lease rentals is the rate of return or the rental rate which was received; also advise for which time periods and for which leases to which that claim applies.
The defendantsurge that the information sought is needed to ensure that they are not taken by surprise at trial and they are entitled to the information concerning the case they have to meet.
The plaintiffsobject to answer these questions on the ground that the first, OG28, is too broad to be answered in discovery and the Crown knows what information it provided the Samson band and what it did not provide. Moreover, the inconvenience of seeking to respond with information relating to more than 50 years to which the claims raised in the action relate outweighs any benefit the defendants might have from the information.
As for OG162 the defendants submit they are entitled to know details of any claim in relation to the two surface leases, a claim included in the statement of claim as acknowledged by counsel for the defendant in discovery.
The plaintiffsobject on the grounds that question OG162 seeks a legal opinion and that in any event facts underlying the question, i.e. the details of surface leases, are known to the Crown.
[13] Summary Reasons:
(i) The questions in issue, OG10, OG11, OG28 and OG162, all relate to particulars sought in relation to the plaintiffs' amended statement of claim (no. 3). In the circumstances of this case, with the plaintiffs' representative in discovery not in a position to attest from personal knowledge about claims extending 50 years or more, made on behalf of the Chief and people of an Indian band and nation by statement of claim, the questions in discovery are inappropriate.
(ii) Yet the defendants are entitled to particulars of the facts underlying the various claims of the plaintiffs. Whatever the source of those facts, including the plaintiffs' lawyers, or the facts on which expert opinions are sought to be based, the defendants are entitled to have those facts, but not the opinions of lawyers and of experts based on those facts.
[1] Ruling re: undertakings (T-2022-89):
In the circumstances, including the passage of time since the motion was heard, the Court directs that the defendants' motion, in relation to the four questions not responded to in discovery (OG10, OG11, OG28, and OG162), is dismissed, without prejudice to the defendants requesting by written interrogatories, or by written demand for particulars, or for further particulars, as the case may be, the information here sought, to which demand, upon receipt, the plaintiffs shall respond within 30 days.
Action T-1254-92
[14] In the Ermineskin action (T-1254-92) 21 undertakings from oil and gas discoveries were in issue. In initial written representations (Written Representations of the Ermineskin Plaintiffs regarding Oil and Gas Undertakings and Waiver of Privilege, filed as document 126 on October 1, 1999 and discussed November 3, 1999), the Ermineskin plaintiffs submitted that the Crown's motion ought to be dismissed for a variety of reasons. In later written representations (Written Representations of the Ermineskin Plaintiffs in Response to the Defendant's Motion re: Further and Better Particulars, filed as document 136, November 22, 1999) Ermineskin plaintiffs again set out submissions objecting to responding to undertakings. In the plaintiffs' view, the questions are not appropriate for discovery or for responses to undertakings. The plaintiffs also set out their opposition to providing further particulars, heard when the defendants' motion for particulars was heard in January 2000, with discoveries on oil and gas issues then still incomplete, as they continue to be today, though the trial is underway in relation to other matters. Having done that, the Ermineskin plaintiffs then outlined a proposal to provide additional information in respect of many of the undertakings, as well in respect of the particulars raised, to assist the defendants in knowing the case to be met in action T-1254-92.
[15] That proposal, intended to permit the Crown to better prepare for trial, was that Ermineskin plaintiffs would provide a statement regarding their position which answers those of the Crown's questions that Ermineskin considers are appropriately answered at this stage in preparations. This would respond to certain undertakings and supplement and clarify Particulars and the Statement of Issues already delivered by Ermineskin. That further statement proposed would be without all details and facts upon which Ermineskin may ultimately rely in relation to oil and gas issues, since those details may not be fully clarified until discoveries are complete.
[16] Ermineskin indicated it would diligently pursue the provision of the proposed statement to the Crown, though that might take significant time to prepare. Further, Ermineskin indicated it would be prepared to provide further particulars, as noted in submissions and discussions when the Crown's motion for particulars was heard in January 2000.
[17] At the hearings in November 1999, and January 2000, Ermineskin's proposal was welcomed by counsel for the Crown as a means of obtaining the information sought. The statement Ermineskin then was prepared to provide would include the following subjects of relevance to the Crown's requests for the responses to undertakings in issue, or for particulars requested by the demand of July 15, 1999, and as set out in the Defendants' Brief filed October 14, 1999.
General Subject Undertaking or Particulars
|
A. Band governance, Approvals and Consents |
Undertaking No. 1 Demand for Particulars re paragraphs G.1, G.2. |
|
B. Drainage/Insufficient Production - without providing specific figures calculations or other details of expert evidence prior to delivery of expert reports. |
Undertakings Nos. 36, 52, 64 Demand for Particulars, paragraphs A.1(a), A.2, C.1-C.6. |
|
C. Unfavourable Lease Terms and Royalties (with similar reservation as in B. supra.) |
Undertakings Nos. 10, 12, 32, 33, 35, 41, 54, 55. Demand for Particulars A.1(b)-(d) and D.1-D.3. |
|
D. Monitoring, Audits and Enforcement (generally) (with similar reservation as in B. supra.) |
Undertaking No. 63. |
|
E. Gas Cap Unitization (with similar reservation as in B. supra.) |
Demand for Particulars, paragraph E.1. |
|
F. Gas Cost Allowance No full particulars until completion of ongoing audits and related litigation. |
Demand for Particulars paragraph F.1 - Ermineskin confirms gas cost allowance is part of litigation. |
|
G. Tax Ermineskin will provide statement of its position re the Export Tax Issue to generally address Crown's concerns. |
Demand for Particulars paragraphs B.1 and B.2. |
|
H. Home Reserve Ermineskin confirms that at present there is no issue raised re Ermineskin Home Reserve |
Demand for Particulars paragraphs A.1(e) and A.2. |
[2] With the defendants welcoming the proposal of Ermineskin, the only outstanding undertakings of those set out in the defendants' motion would be these:
No. 37:
With reference to paragraph 2 of the particulars at page 5, to advise whether that allegation relates to the return enjoyed by the plaintiffs as lessors or the beneficiaries of the leases No. 52 and 93 at Pigeon Lake.
No. 38:
With reference to the previous undertaking, to advise of what the plaintiff views as adequate and fair and why the return enjoyed by the bands wasn't adequate and fair - taken under advisement.
No. 43:
To advise whether the plaintiff has ever, in this case, indicated to the Crown that the royalty rates are too high and they were having difficulty encouraging exploration on any of the lands in which the plaintiffs have an interest.
[The plaintiffs indicate they will inform the Crown if any instance, (as described in No. 43), of them providing the advice, is discovered. (None yet found).]
No. 44:
With reference to the previous undertaking, to advise if it is the plaintiffs' position that that shouldn't have been the case and that there should have been a special regime for the plaintiffs' lands; and if so, to provide the particulars of that - taken under advisement.
No. 45:
Referring to when the plaintiff alleges that it should have received an adequate return or a fair return or a higher return, to advise what the standard is - taken under advisement.
No. 46:
To advise what the positions of the plaintiff were with respect to whether or not encouragement of exploration on Indian lands was an important consideration or what their view was as to its importance in establishing royalty rates, or rate of return - taken under advisement.
No. 64:
With reference to paragraph 5, to advise whether it's the plaintiffs' position that the operators had undertaken a practice of manipulation of production and a policy of production preferences as implied in the paragraph; and if so provide particulars of that if not already undertaken to do so - taken under advisement.
No. 65:
To advise what the Crown ought to have done with respect to the royalty interest of the plaintiff - taken under advisement.
[3] Summary reasons
(i) In my opinion the questions outstanding in relation to Ermineskin's refused undertakings, in the circumstances of this case, are inappropriate questions posed to the plaintiffs' deponent in discovery. For the most part they seek information about matters underlying the plaintiffs' pleadings, matters ordinarily pursued by demands for particulars, and matters that, in the circumstances, cannot be expected to be known, in this case, by the plaintiffs' deponent in discovery.
(ii) Yet the defendants are entitled to information about facts underlying the claims of the plaintiffs and to have those in time to properly know and prepare for the case to be met. That entitlement may have been, or may yet be, met, in part at least, by the provision by Ermineskin plaintiffs of the further position statement, as outlined in their Written Representations...re: Further and Better Particulars (Document 136, filed November 22, 1999), which the defendants welcomed at the hearing. If that statement has not yet been provided, the Ermineskin plaintiffs should review whether added information is possible for the undertakings and demands for particulars outstanding, and then provide, without delay, the statement proposed.
[18] Ruling re: undertakings (T-1254-92)
In the circumstances, the Court directs:
(i) that the defendants' motion in relation to 21 questions outstanding, raised by undertakings refused, is dismissed;
(ii) the position statement outlined by Ermineskin plaintiffs in document 135 filed November 22, 1999, shall be provided, if it has not yet been, to defendants on or before August 7, 2001, or such other date as the parties may agree, or failing agreement, as the trial judge may direct; and
(iii) unless the parties agree on another process for meeting the defendants' entitlement to know the case to be met, paragraphs (i) and (ii) of this direction are without prejudice to the defendants requesting, by written demand for particulars, or for more and better particulars, as the case may be, the information sought by outstanding undertakings Nos. 37, 38, 43, 44, 45, 46, 64, and 65, set out in the defendants' motion materials if this information is not included in the Ermineskin plaintiffs' proposed further statement concerning facts.
II. Motion: the Defendants further demands for particulars
[19] The defendants issued a Demand for Particulars under a covering letter dated July 15, 1999, addressed to both Samson plaintiffs in action T-2022-89 and Ermineskin plaintiffs in action T-1254-92. That Demand sought particulars as set out in Annex A to these Reasons. Ermineskin plaintiffs initially refused to respond to the Demand and Samson plaintiffs provided a few particulars, but responded to most questions that they were improper for they sought opinions, including legal and expert opinions, not appropriate for a Demand for Particulars. The motion now brought seeks an Order to provide those particulars, originally requested in July 1999, in preparation for trial.
[20] The Samson plaintiffs ultimately provided a response to the Demand, setting out few particulars and objecting generally with respect to most issues raised, which in their view sought opinions, not facts.
[21] The plaintiffs object to responding to the Demand for several reasons. Ermineskin plaintiffs, with whom Samson plaintiffs agree, urge that the Demand is not in form or substance a request for particulars of the plaintiffs' pleadings. It refers to matters not included in the pleadings or particulars already provided. Moreover, the plaintiffs say they should not be confined by pleadings and particulars until they have had full opportunity to ascertain the facts through discovery which, on oil and gas matters, remains outstanding. Further, many of the particulars sought are said to concern issues of legal or expert opinion, or matters of the quantum of damages claimed, not appropriate for responding by particulars.
[22] Particulars serve to inform the other side of the nature of the case to meet, they avoid surprise and enable the other side to prepare for trial, and they limit the issues to be tried [see Gulf Canada Ltd. v. "The Mary Mackin" (1984), 52 .N.R. 282 at 284 (F.C.A.)]. Particulars required for trial preparations have been accepted as broader in scope than those required for drafting pleadings [Canada Post Corp. v. Epost Innovations Inc. (1999), 2 C.P.R. (4th) 21, at para. 17 (F.C.T.D.)].
[23] Despite their objections, counsel for Ermineskin indicated willingness, welcomed by the defendants as earlier noted, that a further statement of facts would be provided to seek to respond to the defendants' requests for information, in order to prepare their defence to the claims. As indicated in dealing with the undertakings, supra, the Ermineskin proposal would seek to respond, so far as could be done at this stage, to the defendants' concerns as raised by the demands listed in Annex A as:
A(1)(a) to(d), A(2)
B(1) and (2)
C(1) to (6)
D(1) to (3)
E(1)
G(1) and (2)
[24] As to particulars A(1)(e) and A(2), Ermineskin plaintiffs deny that any issue regarding the Ermineskin Home Reserve is raised in this action. As to F(1), Ermineskin confirms that the gas cost allowance issue is part of the litigation at this stage, though full particulars could only be provided after completion of ongoing audits and related litigation.
[25] I acknowledge there is a problem in requiring particulars in an action where discoveries are incomplete. That is especially the case where much of the information underlying the action is within the hands and control of the party seeking particulars. All of the parties acknowledge that this case is unusual in its scope and in its organization. No one seriously disagrees that the Crown is entitled to know and to prepare for the case it has to meet, and all parties acknowledge the plaintiffs' respective inabilities to know full details of the facts underlying their claims until discoveries are completed.
[26] The proposal of Ermineskin to provide a further fact statement to seek to furnish information sought by the Crown to prepare to meet the plaintiffs' case, without prejudice to the plaintiffs' interests, provides a middle ground and it holds the prospect of progress. This was supplemented by an indicated willingness on the part of Ermineskin to provide appropriate particulars as discovery is completed with respect to the somewhat discrete phases proposed for trial of these actions. The following direction is intended to implement the Ermineskin proposal if that has not been done, and to apply that proposal to the Samson action.
[27] Ruling as to Further Particulars
The Court directs that:
(i) Ermineskin's proposal to provide a further statement concerning the facts of action T-1254-92, without providing further particulars at this stage, be implemented on or before August 7, 2001, or such date as the parties may agree, if that has not yet been done. A similar statement shall be provided by Samson plaintiffs in action T-2022-89, by the same date;
(ii) Henceforth, as discoveries terminate in respect to particular issues phased for trial the defendants may direct a further written demand for particulars, or written interrogatories, about the plaintiffs' claims in regard to those issues and the plaintiffs shall respond within 21 days of receipt of such a demand;
(iii) In light of these directions, the defendants' motion for further particulars to be provided at this stage, in both actions, is dismissed.
III. Motion: for production of Band Councils' Minutes and Solicitors' files
[28] I turn finally to the defendants' motion for production of Band Councils' Minutes, and solicitors' files, which the plaintiffs claim are subject to solicitor-client privilege. The motion relies on jurisprudence that where a party places its own state of mind or knowledge in issue, either by its claim or by an affirmative defence, it has waived its claim of privilege over any solicitor-client communication which is relevant to its knowledge or state of mind. The defendants urge that both Samson and Ermineskin plaintiffs have filed replies clearly stating they did not have knowledge of the material facts upon which their claims are based until shortly before their respective actions were commenced.
[29] The Crown contends the information it seeks concerning legal advice requested and received by the plaintiff Bands is fundamental to the plaintiffs' claims that they had no previous knowledge of the facts upon which their claims are based and, thus, did not understand their legal position. The plaintiffs claim they were not provided with advice of independent counsel even after 1951 when the Indian Act was amended to permit Bands to consult counsel. Yet there is some evidence, from the Crown's own records, of the involvement of counsel on behalf of the Bands. The Crown seeks full information, from Band Councils' Minutes and from solicitors' files, about legal advice provided, and when it was provided to the Bands.
[30] Both Samson plaintiffs and Ermineskin plaintiffs deny they have put their state of mind or their knowledge at issue by replies that respond primarily to the defendants' reliance upon statutory limitations of actions. Ermineskin urges that such reliance is unconstitutional and contrary to treaty-protected interests. Both concede there may be implied waiver of solicitor-client privilege, but only in respect of discrete issues and then with reference to parts or all of particular documents. It is urged that it is inappropriate to order production of all band council minutes or solicitors' files that may have some relevance to a general issue or claim raised by the Crown.
[31] I am persuaded it is not timely to order production of solicitor-client privileged documents, or band council minutes, on the general principles here raised by the Crown. I concede that there may well be instances where the plaintiffs' state of mind or knowledge of a particular matter is an issue, and that in such circumstances it would be unfair to have the plaintiffs rely on privilege to avoid indicating the true state of their knowledge at relevant times. The issue raised by the Crown's motion will not go away, and it may be significant for aspects of the plaintiffs' claims or the defendants' claims in defence. It would be well if the parties can resolve a process and principles for disclosure of such information as the defendants here seek, but upon a discrete basis with respect to issues agreed upon.
[32] In the circumstances, I dismiss the application by the defendants for an Order that the plaintiffs produce Band Council Minutes and solicitors' files concerning legal advice provided to the plaintiffs from time to time, both of which are claimed as subject to solicitor-client privilege. That is without prejudice to the defendants' renewing their application in respect of discrete issues.
[33] With the trials now underway, it would be appropriate if this matter is to be pursued, that any renewed motion by the Crown be brought for consideration by the trial judge, who is ultimately responsible for the admission of evidence at trial and who remains current regarding the issues raised by evidence and argument of the parties as the trials proceed.
Ruling
[34] The application of the defendants for an Order that plaintiffs in both actions produce copies of Band Council Minutes and solicitors' files, both claimed as subject to solicitor-client privilege is dismissed, without prejudice to the matter being raised again by the defendants in relation to discrete issues, before the trial judge.
Conclusion
[35] Orders issue, one in each file to direct disposition of the defendants' motions in accord with the Rulings set out in the text of these Reasons.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
July 6, 2001
Annex A
Text of Demand for Particulars addressed to Samson Plaintiffs (T-2022-89) and Ermineskin Plaintiffs (T-1254-92) by the Defendants, July 15, 1999
39. General or Common Issues
(1) In paragraphs 7 to 14 in the List of Issues, the Samson Plaintiffs set out as issues whether or not the Crown achieved a standard of oil and gas management which was appropriate, whether there was sufficient consultation, etc., but no where does the Samson Band set forward its position as to what economic rent ought to have been achieved for Pigeon Lake over and above that achieved by the Federal Crown on Samson's behalf. We want to have Samson's position on the following matters:
(a) Roughly what additional production ought to have been achieved and over what period of time on behalf of the Bands and what ought the Crown to have done to achieve that production?
(b) What price ought to have been deemed or achieved with respect to that production and on what basis does Samson allege that?
(c) What royalty rate ought to have been achieved and over what period of time in addition to that actually received by the Crown on behalf of the Four Bands and what is the basis of this assertion?
(d) What deductions were permitted by the Crown in the calculation of the royalty payable which ought not to have been permitted and on what products and over what period of time?
(e) If there are issues relating to the Samson Home Reserve being pursued in this action, what are these issues and the particulars relating to them?
(2) Ermineskin is making similar allegations and the Crown demands the same particulars insofar as they make the same or similar allegations.
2. Export Tax Charge
(1) What legal advice did the Crown knowingly withhold from Samson in relation to the allegation in page 4 under (a)(iv)?
3. Drainage/Insufficient Production
(1) What reasonable or other measures should the Crown have taken which would have resulted in the Bands obtaining more production than in fact was achieved on their behalf?
(2) What reasonable or other measures should the Crown have taken to ensure that the Bands received a greater cumulative share of production than received on their behalf?
(3) What do Samson and Ermineskin say the Crown ought to have known which would have lead it to believe that the Four Bands were not receiving an equitable share of original oil in place and what do they say the Crown should have done about it?
(4) What direction ought the manager to have made under Section 22 of the 1997 Regulations?
(5) When ought the manager to have made that direction?
(6) What areas do the Bands say the Crown ought to have eliminated from the leases at Pigeon Lake and when?
(7) With respect to page 7, paragraph (v) of Samson's List of Issues, please explain the allegation; what straight line rules are Samson speaking about and what application ought to have been made on the Band's behalf by the Crown and when?
4. Royalty Regime
(1) The Bands allege that the price of natural gas ought to have been higher. How much higher and over what period of time?
(2) Samson alleges that the posted price for oil which was used did not represent the fair value of the product. Over what period of time and how much less than the fair value was it? If Ermineskin makes the same allegation, we request the same particulars from Ermineskin.
(3) What inappropriate or improper deductions in the calculation of the royalty were allowed by the Crown and over what period of time?
5. Gas Cap Unitization Agreement
(1) What tract allocation ought the Crown to have achieved with respect to the Gas Cap Unitization Agreement?
6. Gas Cost Allowance
(1) Is the gas cost allowance issue part of this litigation? If they are, the Crown requests particulars of the gas cost allowance which Samson says the Crown ought not to have permitted, including what deductions, for what properties, and over what period of time?
G. Band Approvals or Consents
(1) If either of the Plaintiff Bands are alleging that consents or approvals were obtained from the Plaintiff Bands on the basis of either inaccurate or incomplete information, the Defendants need particulars of what consents or approvals the Plaintiffs are referring to, and particulars of the inaccurate or incomplete information.
(2) If either of the Bands are alleging that the Crown entered into agreements without the Bands' consent, please identify those agreements.