Date: 20020502
Docket: A-549-01
Neutral citation: 2002 FCA 170
CORAM: DÉCARY J.A.
BETWEEN:
CORPORATION OF
THE MUNICIPALITY OF CHATHAM-KENT
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by THE MINISTER OF INDIAN AFFAIRS
and NORTHERN DEVELOPMENT and THE DEPARTMENT
OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT
Respondents
Heard at Toronto, Ontario on Thursday, May 2, 2002
Judgment delivered from the Bench at Toronto, Ontario on Thursday, May 2, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 20020502
Docket: A-549-01
Neutral citation: 2002 FCA 170
CORAM: DÉCARY J.A.
BETWEEN:
CORPORATION OF
THE MUNICIPALITY OF CHATHAM-KENT
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by THE MINISTER OF INDIAN AFFAIRS
and NORTHERN DEVELOPMENT and THE DEPARTMENT
OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
Ontario on Thursday, May 2, 2002)
[1] In this appeal from a decision of Lemieux J. of September 13, 2001, the sole issue is whether the learned Trial Judge erred in finding that the Crown did not waive solicitor-client privilege over certain legal opinions pertaining to land claims involving the Caldwell First Nation.
[2] Lemieux J.'s decision was an appeal from a decision of Prothonotary Lafrenière which also found there had been no waiver. Lemieux J.'s reasons indicate that he considered the applicable law in relation to appeals from discretionary decisions of prothonotaries. His reasons also indicate that he had regard to the relevant law pertaining to implied waiver of solicitor-client privilege by partial disclosure of a legal opinion. He considered the legal opinions and the information that had been disclosed and concluded that there had been no implied waiver.
[3] Although he did not expressly state the specific factors to be taken into account in a case of alleged implied waiver, his reference in his reasons to the decision of Dubé J. in Begetikong Anishnabe v. Canada (Minister of Indian Affairs and Northern Development) (1997), 138 F.T.R. 109, affirmed by this Court at (1998) 234 N.R. 24, indicate that he had these considerations in mind in arriving at his conclusion.
[4] We have not been persuaded that Lemieux J. erred in law, fact or in the exercise of discretion. We will dismiss the appeal with costs, as requested, of $2,500 inclusive of disbursements to Her Majesty the Queen and payable forthwith.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-549-01
STYLE OF CAUSE: CORPORATION OF
THE MUNICIPALITY OF CHATHAM-KENT
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by THE MINISTER OF INDIAN AFFAIRS
and NORTHERN DEVELOPMENT and THE DEPARTMENT OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT
Respondents
DATE OF HEARING: THURSDAY, MAY 2, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: ROTHSTEIN J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON THURSDAY,
MAY 2, 2002.
DATED: THURSDAY, MAY 2, 2002
APPEARANCES BY: Mr. Alan Pope
For the Appellant
Mr. Jonathan Batty, and
Ms. Stephanie Paul
For the Respondents
Page: 2
SOLICITORS OF RECORD: Alan W. Pope
Barrister & Solicitor
202-101 Cedar Street South
Timmins, Ontario
P4N 2G7
For the Appellant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondents
FEDERAL COURT OF APPEAL
Date: 20020502
Docket: A-549-01
BETWEEN:
CORPORATION OF
THE MUNICIPALITY OF CHATHAM-KENT
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT and THE DEPARTMENT OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT
Respondents
REASONS FOR JUDGMENT
OF THE COURT