Date: 20011003
Docket: T-66-86A
Neutral Citation : 2001 FCT 1089
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
Interveners
AND
Docket: T-66-86B
BETWEEN:
BRUCE STARLIGHT suing on his own behalf and
on behalf of all other members of the Sarcee 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
Interveners
(Delivered from the Bench at Edmonton,
Alberta, on September 28, 2001)
[1] I have before me this morning 3 motions : the first brought by the intervener the Non-Status Indian Association of Alberta which seeks to have me set immediately a trial date and also set a very strict schedule to force the plaintiffs and the defendant to get on with this case and bring it on to trial because it has been much too long in coming on. The other two motions are one brought by the plaintiff which seeks to obtain a further and better affidavit of documents, leave to cross-examine on the affidavit of documents and other related matters. The other is a cross-motion by the Crown which seeks to withdraw a first supplementary affidavit of documents which was sworn in January of this year and seeks extension of time with respect to the filing of a supplementary affidavit of documents in the second of these files, T-66-86B, and also an extension of time to file a section 39 certificate.
[2] I shall deal first with the plaintiff's motion. In my view, the plaintiff has not made out a case for requiring a further affidavit of documents at this time nor for cross-examining the deponent of that affidavit. Plaintiffs' counsel has drawn my attention to what he says are gaps in the documents produced or mentioned in the affidavit. I am not persuaded that there are gaps. In fact, I find that the evidence on the record indicates the way that the discovery was made that the first supplementary affidavit of documents was woefully misbegotten and that indeed, since then, the Crown has worked hard and diligently and honestly and has attempted to produce and has produced all the documents that it has presently or has knowledge of. It avails nothing for the plaintiff to tell me and point out to me that the deponent Pascuzzi, the person responsible for the preparation of the lists of documents admits that that preparation is a "work in progress". One need only to look at the volume of documents involved, the period of historical time involved and the complexity of the issues involved to recognize that the production of an affidavit of documents in a case like this sort by the Crown is virtually always going to be a work in progress and I read, and I think Crown counsel properly invites me to read, the admissions by the deponent, the person responsible, as being nothing more than an indication that it is virtually certain that other documents will show up in the course of historical and other kinds of research. That is no reason to have us waste time and money in a dilatory cross-examination of the deponent of the affidavit.
[3] Plaintiffs' counsel also draws my attention to what at least at first blush appeared to be claims for privilege in the second supplementary affidavit of documents which are unfounded. Here again, I do not think that this is a ground for cross-examining the deponent to the affidavit who in my experience is extremely unlikely to be able to throw any light whatever on the claims for privilege in the affidavit of documents. It is simply normal that a deponent of an affidavit of documents will rely on the advice of counsel in determining what documents should be listed as being subject to privilege. If plaintiff wishes to take issue with some of these claims for privilege, the obvious first thing to do is to communicate with counsel for the Crown and indicate the concerns. Counsel ought to be able to resolve most of these concerns between themselves. Indeed, they ought to be able to resolve all of them between themselves. But if subsequently it becomes necessary for the Court to examine some of the documents which it certainly can not do today because they are not before it, that can be done and I would suggest that the convenient practical way to do that is by means of a motion pursuant to Rule 369 because the actual viewing or reading of the documents will have to be done by me and as counsel know, I cannot actually read documents myself; I have to do that with the aid of a scanner. It would be very much simpler if I am simply given the list of the documents, the documents themselves and counsel submissions from each side so that I can read the documents and determine whether or not it is a proper claim for privilege. That can be done quickly and easily and probably does not need to be done by me at all.
[4] That brings me next to the Crown's cross-motion. It seeks, as I say, first of all leave to withdraw the first supplementary affidavit of documents which was served in January of this year. That affidavit is clearly wrong in a multitude of respects. It was clearly prepared sloppily and badly. It is not possible on the evidence to indicate exactly what went wrong. It appears to be a combination of errors by a combination of people for all of which the Crown properly takes responsibility. But it equally convinces me that the first supplementary affidavit of documents was given inadvertently and should be withdrawn and should not be further used. Plaintiffs invite me to find that there is here some double dealing by the Crown or something dubious; that the Crown is acting in a suspicious manner. I reject that contention not only because the evidence does not support it, but because it is contrary to common sense. There is absolutely no benefit that could possibly accrue to the Crown in having falsified the first supplementary affidavit of documents. And I note that the wrongful nature of that affidavit was first drawn to every body's attention by the Crown itself. I repeat, I am perfectly satisfied that that document was inadvertently served and it should be and is now withdrawn and will not be heard of again.
[5] That brings me to the other requests by the Crown, the first has to do with serving a further supplementary affidavit of documents in the case of Starlight, (the second supplementary affidavit which has been served was only in the case of L'Hirondelle). There appears to be agreement that that affidavit can be served within 30 days and an order will go to that effect.
[6] The other extension of time which is sought by the Crown is a very much more serious matter. It seeks from me an extension of time in which the Crown may produce a certificate pursuant to section 39 of the Canada Evidence Act objecting to the disclosure of certain documents on the grounds that they are confidences of the Queen's Privy Council for Canada.
[7] I note that this case is now 15 years old. I further note that there has been an order in place for a new trial for over 5 years. I note that I ordered over a year ago that the Crown must produce its affidavit of documents on February 1st of this year. I note that although that affidavit was served and was, as I said, woefully misbegotten, the Crown had its attention drawn to the fact and became aware of the fact that that was the case no later than May 4 of this year. I am now asked to provide a further extension of time of 6 months for the Crown to get its act together and put in a proper section 39 certificate. I am profoundly unimpressed by the bureaucratic baffle-gab of the Crown's affidavit evidence of the time frames that are said to be required to obtain a section 39 certificate. Section 39 is a drastic provision of the law. It excludes absolutely from the Court's examination documents to which it applies. Naturally, the Court has to recognize the public interest that section 39 seeks to protect and to provide a reasonable period of time in which the Clerk of the Privy Council may make up his mind as to whether documents should or should not be objected to. But there are other balancing considerations, it must be borne in mind that in this case as in many others, we are dealing here with the Crown as a litigant as well as the Crown as a repository of the public interest and the confidences of the Queen's Privy Council of Canada. And the Crown as a litigant must comply with its obligations to produce documents timely. The Crown has already had a very reasonable amount of time in which to decide whether or not to make section 39 objections. I am not going to provide a further 6 months. Plaintiff's counsel has suggested 30 days. I think that might be a little tight but I am prepared to extend it to a month and a half, to November 16, 2001. But if on November 16, there is not a proper section 39 certificate in place, the Crown will be obliged on that day to deliver to plaintiffs copies of all the documents which have so far been withheld on the grounds that they might be subject to a section 39 privilege.
[8] I now turn to the motion of the Non-Status Indian Association of Alberta. First, I accept, without reservation that that intervener and the others as well have an interest in bringing a motion to force this matter on to trial. The matter has been hanging about now for far too long. Neither plaintiffs nor the defendant Crown has given any evidence apart from pious and self-serving declarations of their intention to actually move the matter forward. It is to me almost beyond belief that a case in which some 80 odd days of trial have already been held, in which a new trial has been ordered some 5 years ago, is now virtually no closer to trial than it was at the time the new trial was ordered. The parties have, and I use the word advisedly, been frittering their time away. I am quite satisfied that the only way that I can achieve the duty which is cast on me by Rule 3 of the Federal Court Rules, 1998 is by imposing upon them a strict timetable and limits. That said, however, I am not prepared to do what the motion asks me to do and today set a trial date. I simply do not have sufficient material to be able to give an intelligent estimate of trial time. I will, however, make a number of provisions which are intended to see to it that the parties move the matter forward. Obviously, the orders that I have made to date, which have largely not been complied with, have not been adequate to bring the matter on. Therefore, I propose to do a number of things.
[9] First, I am going to place a limit on examinations for discovery. All examinations are to be completed by May 1, 2002. Each party is to be responsible for scheduling its own examinations and for sending the appropriate notices to compel the attendance of witnesses and counsel. Any conflicts in dates will be settled by reference to the priority of date of service.
[10] The plaintiffs shall be entitled to up to 23 days, of no more than five hours each, of examination for discovery. The defendant Crown, which has already enjoyed three days of examination for discovery, will be entitled to 20 such days. Each intervener shall be entitled to up to three days of discovery.
[11] All objected questions shall be answered under reserve of the objection. The only possible exception to that being where there is a claim of privilege, which should be dealt with separately by a motion. All undertakings shall be answered forthwith, and in any event, no undertakings shall be left outstanding by May 15, 2002. When I say forthwith for other undertakings, the rule of thumb will be one month from the giving of the undertaking.
[12] I remind the parties that failure to answer undertakings timely may result in the striking of some or all of relevant pleadings and the Court is intent on imposing that sanction if the discoveries are not carried out timely. Any motions arising out of examination on discovery shall be brought pursuant to Rule 369 and shall be filed no later than June 3, 2002. They may, of course, be brought sooner, but no such motion will be accepted for filing after that date.
[13] On or before July 15, 2002, plaintiffs shall serve and file a requisition for a pre-trial conference together with all expert reports that they propose to use at trial together with a complete and detailed list of the witnesses that it is proposed to call at trial, together with, in each case, a statement of the evidence that it is proposed that that witness will give.
[14] On or before September 16, 2002, the defendant and the interveners shall do likewise, namely, file a pre-trial conference memorandum, serve their expert reports, and serve a list of the witnesses together with the witness statements. There will be a pre-trial conference which will be held at a location to be determined at a later date, which will be presided by me on the 16th and 17th of October, 2002.
[15] While I am not as yet in a position to determine trial dates, I would expect that a time frame of approximately six months from the date of the pre-trial conference would be one that counsel should be looking at.
[16] On the question of costs, there will be no costs for or against anyone on the motion of the Non-Status Indian Association of Alberta. With respect to both motions heard today brought by the plaintiffs and defendant respectively, although the plaintiffs do not enjoy much success on the motions, there is simply no question that the whole of this unhappy incident is due to the sloppy work that was done by persons for whom the Crown is responsible. Accordingly, the costs of both motions heard today on Column 5 scale may be recovered by the plaintiffs and taxed accordingly.
Judge
Ottawa, Ontario
October 3, 2001