Date: 20011130
Docket: T-66-86B
Neutral Citation : 2001 FCT 1323
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)
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-66-86A) 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 he would like 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.
[5] By letter dated July 26, 2001, the Crown confirmed that it would conduct its examinations for discovery during the week of September 10 - 14, 2001 at the Crown's office in Edmonton from 10:00 a.m. until 5:00 p.m. each day. By letter dated September 5, 2001, the Crown asked to start with the plaintiff's deponent in the L'Hirondelle action (T-66-86A) on the first day but was unsure of how long that examination would take. Regardless, the Crown asked that a deponent in this action be ready and available as early as September 12, 2001. No reply was received to the Crown's letters. The examination of Chief L'Hirondelle, the plaintiffs' deponent in T-66-86A, did eventually take place on September 11 and 12, 2001. In reasons issued concurrently herewith, I explain why that examination was incomplete and unsatisfactory. Crown counsel, on September 12th, purported to reserve its rights to further examination in that file and chose to commence examinations for discovery in the present action but nobody appeared on that day or the next day.
[6] The Crown persevered in its attempts to examine a deponent in this action. On October 4, 2001, the Crown issued a Direction that Bruce Starlight ("Starlight"), the representative plaintiff herein, should attend an examination for discovery on behalf of himself, the members of the Sarcee Band, and the Sarcee Band. Conduct money was also sent to Starlight. However on November 13, 2001, Starlight did not appear but Mr. Harley Crowchild ("Crowchild") was present to take his place. The Crown objected but nonetheless proceeded to examine Crowchild under reserve of objection.
[7] By its present Motion, the Crown complains of the plaintiff's conduct in failing to attend an examination for discovery during the week of September 10th to 14th and for failing to comply with Orders of this Court dated March 19, 2001 and July 11, 2001. The Crown alleges that the plaintiff had adequate notice of the examinations for discoveries as two separate Orders dealt with this matter. It is alleged that the plaintiff was well aware of those Orders and that letters were sent to counsel for the plaintiff confirming the place, time and proposed order of discoveries. The Crown also alleges that it was willing to accommodate a Starlight deponent by conducting its examinations in Calgary on September 13th and 14th but that its offer was refused.
[8] In its Reply, the Crown also argues that it is entitled to examine Starlight, the representative plaintiff, rather than Crowchild. It is submitted that plaintiff's counsel effected the substitution unilaterally. Furthermore, the Crown alleges that, by his conduct during the examinations for discovery on November 13 and 14, 2001, plaintiff's counsel continued his pattern of deliberate delay and abuse of process. Crown counsel eventually adjourned the examination in order to seek instructions from the Court. More specifically, the Crown complains of the following:
1. Counsel refused to allow his witness to answer certain questions contrary to an Order of this Court;
2. Once it was pointed out to counsel that a claim for privilege was the only exception to the Court's Order, he asserted privilege over any question about the assets of the Tsuu T'ina Band, the scarcity of which was referred to by the witness as a concern relating to Bill C-31;
3. Counsel raised many objections to the same question and did so in a way that was particularly disruptive to the proceedings;
4. Counsel interjected inappropriately in order to prompt the witness or disrupt the proceedings; and
5. By taking the majority of the undertakings sought under advisement, counsel was simply trying to avoid the consequences of an Order requiring that answers be given within one month (31 undertakings were sought, 2 were given, 10 were refused, and 19 were taken under advisement).
[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] Regarding the plaintiff's alleged failure to produce a deponent in this action, the plaintiff relies on the Order dated March 16, 2001 where discoveries were scheduled for the weeks of September 10 and November 12, 2001 and the subsequent direction that the Crown would proceed first. In the absence of any direction to the contrary, the plaintiff submits that he was entitled to be examined in the court area closest to where he resides - in this case, Calgary. It is argued that the plaintiff had a reasonable expectation that counsel for the Crown would conduct its examination for discovery in Edmonton during the entire week of September 10, 2001 and that she would then use the week of November 12, 2001 in Calgary to examine a deponent in this action. In my view, these arguments are simply untenable in light of the failure of plaintiff's counsel to respond in any way to the letters sent to him by the Crown. This is more than gross professional lack of courtesy (although it is certainly that); it renders counsel's assertions in his written representations to the Court simply unbelievable. That is a sad state of affairs.
[11] The analysis of the facts in this Motion involves trying to hit 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] First, it must be clear from what I have already said that I regard the failure to produce the plaintiff Starlight on September 13 and 14 as inexcusable. Plaintiff's counsel was clearly on notice that such production was required and made not the slightest attempt to advise the Crown that there was any problem. When the objection was made that Starlight was in Calgary, it was immediately revealed as being frivolous by the fact that counsel refused the Crown's offer to go to Calgary to conduct the examination.
[13] Subsequent to the bringing of this Motion, the conduct of the plaintiff and his counsel has, if anything, gotten worse. At the examinations scheduled in Calgary on November 13 and 14, 2001, plaintiff's counsel chose, on no one's authority but his own, to produce a person other than the representative plaintiff and one whose substitution for the named plaintiff had been specifically refused by the Court more than three years previously. Starlight was the plaintiff and a witness during the first trial; he is apparently still a member of the Band Council and not in poor health. I can think of no good reason why he should not continue or should be removed as plaintiff at this late stage.
[14] Finally, the transcript of Crowchild's examination has been provided to me and reveals that counsel for the plaintiff has not complied with either the Order of this Court or Rule 241. More specifically, I have ordered that:
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. [2001 FCT 1089 at para. 11]
[15] Crown counsel has provided numerous examples where counsel for the plaintiff has failed to comply with this order and acted inappropriately. I am satisfied that the transcript evidences a pattern of uncooperative and obstructive behaviour on the part of plaintiff's counsel which, in my view, is worthy of serious reprimand. Repetition of this conduct will not be tolerated and I would order the plaintiff to remedy this situation forthwith.
[16] As in the related case, I propose to sanction plaintiff's conduct, which is particularly bad, by forfeiting a number of the days previously assigned to this plaintiff for his discovery of the Crown's representative. The conduct being significantly worse than in the other case, the number of forfeited days will be ten.
[17] The Crown may, at its sole option, treat the examination of Crowchild as a nullity or may use any answers obtained without prejudice to its right to examine the true representative plaintiff. The latter shall respond to any direction to attend and failure to do so shall result in the striking of the statement of claim and the dismissal of the action with costs.
[18] Undertakings given during the Crowchild examination, including those taken under advisement, shall be answered by December 14, 2001.
[19] The plaintiff shall pay the costs of the examination of Crowchild (including the Crown's cost of obtaining transcripts) and shall pay the costs of the Motion, hereby fixed in the amount of $2000, forthwith and in any event of the cause.
ORDER
1. The plaintiff shall respond properly to any notice to attend on pain of seeing the action dismissed summarily with costs.
2. The plaintiff shall pay the costs of the examination of Crowchild on November 13 and 14, 2001, including the Crown's cost of obtaining transcripts, forthwith. The Crown may, at its option, make use of any such answers or may treat the examination as a nullity.
3. The number of days allotted for the examination on discovery by the plaintiff of the Crown's representative is hereby reduced by ten.
4. Undertakings given during the Crowchild examination, including those taken under advisement, shall be answered by December 14, 2001.
5. The plaintiff shall pay to the Crown the costs of this motion which are hereby assessed and fixed in the amount of $2,000 forthwith and in any event of the cause.
Judge
Ottawa, Ontario
November 30, 2001