Date: 20010509
Docket: T-2655-89
Neutral Citation: 2001 FCT 456
BETWEEN:
ELIZABETH BERNADETTE POITRAS
Plaintiff
- and -
WALTER PATRICK TWINN,
THE COUNCIL OF THE SAWRIDGE BAND,
THE SAWRIDGE BAND and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Defendants
(Delivered from the Bench at Ottawa, Ontario,
Wednesday, May 9, 2001)
[1] To the extent that the present motion seeks to examine the deponent produced by the Crown for examination for discovery on matters related to the preparation and content of the affidavit of documents which was sworn for the Crown by another deponent, (and there is nothing wrong with the two persons being different under the Rules) it is clearly unfounded. In any event, and as a general rule, affidavits of documents are not normally subject to cross-examination without leave, and to examine a deponent on discovery with respect to matters concerning the manner of preparation of the affidavit of documents is simply not proper discovery since it does not relate to the pleaded issues in the case.
[2] Furthermore, to the extent that the motion seeks to oblige the Crown to produce allegedly relevant documents which it has not produced, I am not satisfied that there is any material presently on the record which establishes that the allegedly non-produced and relevant documents either exist or are relevant and the burden of making that showing lies upon the moving party. It is an unwarranted extension of the scope of the decision of the Court of Appeal in Everest and Jennings Canadian Ltd v. Invacare Corporation[1] with which I am very familiar, to say that because a document can be shown to have come from a particular file, every other document in that file is automatically relevant and must be produced. That is not the proposition for which that case stands.
[3] It is also not warranted for the Band to suggest as it does here that it should be allowed to examine at large the documents contained in the Crown's files in order to find out if there are any relevant documents which have not been included in the affidavit of documents. That, of course, defeats the whole purpose of an affidavit of documents and would allow unlimited documentary discovery at large prior to discovery properly so called.
[4] An affidavit of documents is a very solemn document. It is an affidavit and, unless and until the contrary is shown, it is to be taken as setting out what it alleges accurately and fairly and that is why provision is made in the Rules for a solicitor to instruct and advise the person preparing the affidavit as to his or her obligations. A party seeking to have an affidavit of documents set at nought, which is in effect what this present motion seeks in part, has a heavy burden and that burden has not been discharged.
[5] That brings me to the second part of this motion, namely, the claim for privilege in the affidavit of documents of the Crown. In this aspect, I am in agreement with the Band's submissions, the claim for privilege is altogether too broad and vague. Twenty two documents or bundles of documents are identified by an index number only. A further file is identified by a description only, namely the solicitors' trial file. There is no indication with respect to any of those documents or bundles of documents as to whether or how many documents they contain, there is no indication as to their dates, and there is only the most general indication as to the author and recipient of each of those documents. This is clearly inadequate. While I agree that the description of a document to which privilege is claimed should not be such as to defeat the claim for privilege itself, the mere indication of a date and either the name or title or initials of the author and the recipient will normally not defeat a claim for privilege unless there is some special circumstance attaching and there has been no suggestion that that is the case here.
[6] Accordingly, I will order that the motion will be allowed in part and the Crown will be required to produce a further and better affidavit of documents with respect to its claim for privilege within the next 30 days.
[7] Success being divided, I propose to make no order as to costs.
Judge
Ottawa, Ontario
May 9, 2001