T-1254-92
BETWEEN:
CHIEF JOHN 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 Nations 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.
REASONS FOR ORDER
MacKAY J.:
These reasons concern my disposition of a motion by Ermineskin plaintiffs whereby they sought an Order that the Crown produce Edward A. Moore as a deponent on behalf of the Crown for purposes of Examinations for Discovery by the Plaintiffs on oil and gas issues. The application was heard in the course of a pre-trial conference in Calgary on August 19, 1997, and these are reasons for the Order issued the following day.
At an earlier stage in these proceedings on September 21, 1995, I dismissed an application by the same plaintiffs for a similar order. In Reasons relating to that decision I noted, inter alia, that
| ...The essence of the plaintiffs' case in this motion is that Mr. Eickmeier [then expected to be the defendant's deponent in regard to oil and gas issues] is not as well informed as Mr. Moore. I do not believe that provides a ground for this Court's intervention under Rule 465 (4). If at a later stage the plaintiffs' experience with Mr. Eickmeier leads to a more negative assessment and that he is indeed uninformed, the plaintiffs would not be barred from advancing another motion inviting the Court to order that someone other than the person nominated by the Crown [be named], who is prepared to serve and whose experience or responsibility qualify them to be the deponent of the Crown in examination for discovery. |
As in the earlier application it is the plaintiffs' submission in this second application that Mr. Moore is more knowledgeable than Mr. Eickmeier, the Crown's deponent, about matters arising in the years 1965 to 1981 when Mr. Moore was the principal officer of Indian Minerals West. Mr. Eickmeier, who was not then employed by the Crown, has to inform himself from review of records and in many cases from advice from Mr. Moore about matters arising in 1965 - 1981.
In addition, a major factor now urged for the order sought arises from timing of pretrial preparations, at this stage, when an anticipated trial start in mid August, 1997 is no longer possible but an early starting date is anticipated. As set out in the affidavit of Ms. Maria Morellato, for the Ermineskin plaintiffs,
| 3. To date, we have been able to confirm only four additional dates for Oil & Gas discoveries, namely two days in September and two days in October. However, we will require many more additional discovery dates for purposes of completing our trial preparation on the Oil and Gas issues. |
| 4. September 1997 will be a very important month for trial preparation work. However, Mr. Eickmeier who is a deponent for the Crown on the Oil and Gas issues will be on holidays for a three-week period during that month. |
| 5. The availability of Mr. Moore as a deponent concerning events surrounding his tenure at Indian Minerals West would be of great assistance in our trial preparation. Members of our litigation team conducting Oil and Gas discoveries continue to experience significant difficulties in conducting effective discoveries because the Crown's deponent, Mr. Eickmeier, has no direct knowledge of important events which occurred between the years 1965 to 1981 other than the information apparent on the face of various documents themselves, information which is apparent to the Plaintiffs themselves but which raises numerous unanswered questions or lines of inquiry. |
| 6. While Mr. Eickmeier is clearly doing his best to answer questions on discovery, in many cases, he simply cannot answer many of them. In many cases, it is necessary for Mr. Eickmeier to speak to Mr. Moore in order to answer Undertakings. This, however, has been a very time-consuming, expensive and inefficient process. |
I note that it is not now argued that Mr. Eickmeier, designated as deponent on behalf of the defendant, is not competent as a deponent. In the opinion of counsel for the defendant, in view of some 200 days of discovery in which Mr. Eickmeier has been engaged, he is now the most knowledgeable person available about oil and gas issues raised by the plaintiffs' claims extending over 50 years or so. That period of course exceeds the years 1965 - 1981 when Mr. Moore was in charge of the agency administering oil and gas resources on and drawn from reserve lands. The plaintiffs make no case that he is not competent. Rather their argument is that examination of Mr. Moore, at least for matters in the years 1965 to 1981 would be more direct and efficient, and further that with Mr. Eickmeier to be away on holiday the Crown should be required to produce Mr. Moore, whom the Crown has retained on contract following his retirement from full-time public service, thus demonstrating the confidence of the Crown in him. In view of the limited time available for discovery in advance of trial, it is urged that his production by the Crown as its deponent, especially in the expected absence of Mr. Eickmeier, is a matter warranting the Court's Order as sought.
In Reasons for Order dated September 21, 1995 in relation to disposition of the Ermineskin plaintiffs' earlier application for a similar order, I reviewed the recent history of Rule 465 of the Federal Court Rules. That led me to conclude that unless there be very exceptional circumstances the Court would not act under the current Rule 465(4) unless it is established that the person designated by the Crown as its deponent is not capable of responding reasonably to questions asked in discovery. Moreover, unless there be some evidence that a person proposed as to replace the designated deponent of the Crown, is willing to act, is capable in terms of health and capacity, and is by experience a person whom the Crown could not reasonably object to as a deponent, it seems to me the Court would not order production of a specific person as a deponent for the Crown. Without such evidence, if action were taken under Rule 465(4) the Court would order that another person, without designating whom that should be, be named as deponent in place of one found to be incapable of acting reasonably as a deponent for the Crown.
In my view, the circumstances here are not so exceptional that the Court would order the Crown to produce Mr. Moore, or any other named person, as the Crown's deponent for examination for discovery by the plaintiffs. It is not established, or even argued, that Mr. Eickmeier is incompetent as a deponent. There is no evidence before me that Mr. Moore, who is apparently now 75 years of age, is willing to act as the Crown's deponent in continuing discoveries, or that if he be willing the Crown now has confidence in his capacity to act in a continuing role as deponent.
In these circumstances, I am not persuaded to issue the Order sought. The plaintiffs' motion is thus dismissed.
Nevertheless, I direct that the defendants give serious consideration to designating Mr. Moore as an additional deponent on behalf of the Crown in relation to oil and gas issues, on certain conditions. There is nothing to preclude designation of more than one deponent. No single deponent could testify from personal experience or knowledge about events occurring over a span of 50 years, the term to which certain claims in this case relate. As noted in the earlier reasons of September 21, 1995
| I am persuaded in the circumstances of this case that Mr. Moore, from his direct experience from 1965 to 1981 may be expected to be the better informed of the two persons here considered as possible deponents, about oil and gas issues arising in those years...I would urge that the Crown here give serious consideration to seeking arrangements with Mr. Moore for him to be a deponent of the Crown in relation to those issues in the years 1965 to 1981... |
The Order now issued, while it dismisses the Ermineskin plaintiffs' application, directs the defendant to give that same matter serious consideration, on certain conditions to be agreed upon by the parties or, if there be no agreement, then as set out in the direction now ordered, i.e., that questions for Mr. Moore be limited to matters reasonably expected to be within his experience or knowledge in light of his senior responsibilities in the years 1965 to 1981, and that the questions not be the same or similar in intent and purpose to questions already directed to Mr. Eickmeier to which he has responded or given an undertaking to respond, in this action or in the related action T-2022-89 by Samson plaintiffs. That direction provides for the Crown to advise the Court and counsel for the plaintiffs about its conclusion in regard to this direction for consideration of naming Mr. Moore, and to provide that advice on or before August 27, 1997.
This is an unusual case. It warrants unusual considerations by the Crown of its responsibilities to the plaintiffs, as First Nations peoples, including the Crown's responsibilities to facilitate procedures, including discovery, to permit the concerns of the plaintiffs to be tried as expeditiously and fairly as possible.
____________________________________
JUDGE
OTTAWA, Ontario
August 26, 1997.