Date: 19971107
Docket: T-1636-81
T-3150-92
T-956-93
BETWEEN: T-1636-81
JOE MATHIAS and the
SQUAMISH INDIAN BAND et al.,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN et al.,
Defendants.
BETWEEN: T-3150-92
CHIEF WENDY GRANT and the
MUSQUEAM INDIAN BAND et al.,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN
RIGHT OF CANADA et al.,
Defendants.
AND BETWEEN: T-953-93
LEONARD GEORGE as Chief,
and the BURRARD INDIAN BAND et al.,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN
RIGHT OF CANADA et al.,
Defendants.
ORDER AND REASONS THEREFOR
MR. JUSTICE JOYAL
[1] On this motion, the Court is asked to settle a dispute between the plaintiffs and the defendants relating to the propriety of certain questions put by the plaintiffs in the examination for discovery on October 27, 1997, of one William R. Cooke, a representative of the defendant.
[2] The basic issue between the parties is the scope of discovery. The issue is particularly muddled as the facts of the case involving conflicting interests in Indian Reserve No. 6 located in Vancouver, B.C., are dated from 1913 and running through the early 1960's. The record of events in said circumstances must necessarily rely on historical documents and not on oral testimony. Further, the usual question and answer format as to the knowledge of a witness of certain facts is accordingly circumscribed.
[3] There is the additional factor that extensive written discoveries have been exchanged between the parties, that the protracted litigation, begun in 1981, involves not only the parties themselves but two other Indian Bands, all of them claiming from the defendant Crown. Court files are accordingly replete with lengthy correspondence between several sets of counsel, a lot of it dealing with the admissibility and the relevancy of questions put to each other's witnesses. There are in fact three cases before the Court being tried together. Proceedings have already taken a year and it is expected that another year will be required to wrap things up.
[4] As mentioned earlier, the basic issue before me is to delineate as far as possible the area of fact-gathering interrogation on discovery of the Crown representative, Mr. Cooke, when the whole story of the historical events may only be found in Crown documents, aided or abetted when possible by the viva voce testimony. Mr. Cooke is a 25-year career officer with the Department of Indian Affairs and Northern Development and from which he retired in 1993 after serving as Regional Director General of Indian Affairs in British Columbia. During the interrogation, counsel for the plaintiffs put to him some 25 questions to which objections were taken on grounds that:
| 1. prior agreement had been reached between the parties to limit considerably the scope of the discovery process; |
| 2. the question was as a matter of law objectionable; |
| 3. the plaintiffs' were estopped from seeking answers to the kinds of questions to which they had themselves previously objected in the course of their own discovery; |
| 4. to extend the field of discovery of documents as urged by the plaintiffs would cause serious delays in the proceedings relating to Phase II which was already scheduled for opening Statements on December 15, 1997 and for the beginning of the evidentiary stage on January 26, 1998. |
| 5. many of the questions were of a nature to solicit merely opinions and not facts and that said opinions were better left to expert historians. |
[5] It is not the first time that contentious issues are raised in Indian claims proceedings dealing with discovery. Addy J. faced the problem in Wewayakum Indian Band v. Canada et al. [1992] 2 C.N.L.R. 177, when he noted the purpose of discoveries and interrogatories and the field of disclosure made possible from them. He quoted at p. 184 from Reading and Bates Construction Co. et al. v. Baker Energy Resources Corp. (1988) 25 F.T.R. 226 at 229 as follows:
| "The purpose of discovery, whether oral or by production of documents, is to obtain admissions to facilitate proof of the matters in issue between the parties. The prevailing trend today favours broadening the avenues of fair and full disclosure to enable the party to advance in his own case or to damage the case of his adversary. Discovery can serve to bring the issues more clearly into focus, thus avoiding unnecessary proof and additional costs at trial. Discovery can also provide a very useful tool for purposes of cross-examination.". |
On the issue of so-called opinion evidence, Addy J. said this at p. 186:
| "Although often referred to as an opinion, the mere expression of a simple self-evident conclusion, which in the light of certain facts would necessarily be reached as a matter of course by any ordinary person, is clearly to be distinguished from an opinion resulting from an analysis of certain specified facts, which require special expertise or knowledge, on the part of the person expressing it and is also to be distinguished from an involved or remote conclusion requiring special or detailed consideration or analysis of certain facts and with which every ordinary person would not necessarily agree.". |
Addy J. then added:
| "The essence of what is being advanced by the plaintiff is that only an expert historian is legally capable of testifying as to facts which are beyond living memory. The historian is therefore to be considered as the sole fact-finder as well as the person whose opinion is being sought. Presumably the opinion can also be based on other facts providing they are also found by another historian. This is a strange theory indeed which can be explained only by a narrow and restrictive interpretation of certain pronouncements of some British Columbia jurists. This is also leads to the unacceptable conclusion that where a party's claim is based on Aboriginal title or is based on matters which are beyond living memory, that party would only be subject to production of documents and would not be subject to and could not be examined for discovery on the very facts which are truly relevant to the claim, since the party will obviously not be an expert historian and answers to discovery are required to be given by a party and not by a complete stranger to the action.". |
[6] In an earlier case, dealing again with Indian claims, the case of Cardinal et al. v. The Queen (1977) 2 F.C. 698, the Federal Court of Appeal, at p. 704, in discussing the matters in issue as set out in the pleadings, ruled that evidence of similar facts is not relevant to any of them. In other words, whatever might have been the experience of Crown dealings with other Indian reserves is of no concern.
[7] This principle was later repeated in Ford Motor Co. of Canada v. The Minister of National Revenue (1991) 4 T.C.T. 6156 (Fed. T.D.), when the Court stated that the treatment by the Minister of others subject to the same legislation was not relevant. It was said that to allow discovery into the Crown's treatment of others would invite chaos.
[8] Case law relating to the scope of discovery is now pretty much trite law: the process is to get the facts and not the evidence; questions soliciting expressions of opinion are usually disallowed; with respect to a witness in a representational capacity, the general principle as expressed in R. 458(2) is that the person to be examined shall prior to the examination, become informed by making all reasonable enquiries of any present or former officer, servant, agent or employee of the parties, including any who are outside Canada, who might reasonably be suspected to have knowledge relating to any matter in question in the action. Unfortunately, in the case before me, this particular provision in R. 458(2) simply begs the question: there would not appear to exist any such officer, servant, agent or employee who might have outlived the more critical historical period involved and to whom the representative witness might have directed his enquiries.
[9] What is in fact before the Court, apart from very extensive pleadings, are some 20 - 30,000 documents collected and collated from Crown files and the National Archives, answers to written interrogations, considerable unsworn information provided in writing and massive amounts of correspondence exchanged between various counsel for the parties over a number of years. It bears repetition, however, that this material does not readily provide complete answers to the case before me.
[10] In an effort to come to terms with it, I have tried with respect to some of the objections noted by defendant's counsel to group them into more manageable lists and venture more generalized rulings thereon. On the other hand, particular requests for information objected to are taken under advisement and treated individually. In this endeavour, it must always be kept in mind that the purpose of discovery is to advance and not impede the cause of justice. This, of course, is only a more arcane way of describing a case-by-case approach to the issue.
| 1. Questions relating to the Defendant's Annual Report to Parliament, in V12 Q. 24 - 29 - 34 - 45 - 46 - 51 - 68 - 95: In my respectful view, reports which predate Mr. Cooke's year with the Crown speak for themselves. Questions relating thereto provide essentially opinion or idle speculation. They are issues better left to argument. With respect to reports in more recent years, there might be a wider field of examination but then again, the answers might have very limited content. |
| 2. Questions 98 - 100 - 111: Defendant's objection to these questions are, in my view, well-founded. |
| 3. Question no. 129: Defendant's objection is sustained. |
| 4. Questions nos. 132 - 135: The witness is asked to state whether or not there is documentation giving consideration to the estimated future needs of the Squamish Band in 1946. This question might be termed improper, nevertheless a more general question as to whether or not there was such a policy back then is a proper question which might of course elicit only a qualified reply. On the other hand, Question 136 appears to be a fair question and at that level may be quickly answered by a yes or a no. |
| 5. Questions 149 - 150 - 153: Objection is sustained. |
| 6. Questions 155 - 159: Objection is sustained. |
| 7. Questions 202 - 218 - 223 - 243: Covered in response to Request No. 8. |
| 8. Questions 254 - 259: Admissible if subject matter is within the knowledge of the witness. |
| 9. Requests: |
| (1) No. 6 - Objection sustained. |
| (2) No. 8 - Admissible. |
| (3) No. 12 - This request might only invite a qualified answer but is nevertheless a valid one. |
| (4) No. 14 - This request respecting valuations of I.R. No. 6 lands between 1940 - 1965 is a valid request which may of course invite any kind of qualified reply - but if the intention is with respect to lands adjoining the IR #6 lands, the objection is sustained. |
[11] It appears to me that absolute rules relating to the scope of discovery are not in abundance. They are all somewhat relative to the context of the dispute or controversy between the parties. Furthermore, in terms of a case where the available evidence is historical, it is well to recall the observation of Addy, J. in the Wewayakum Indian Band case (supra) when he hedged considerably on the validity of certain questions asked by one party when the same objections had been forcibly raised by the other party, in relation to the same kind of questions.
[12] After the trial of that same case, (1995) 99 F.T.R. 1, Teitelbaum J. at p. 16 also had some interesting comments to make. I repeat them here because they very succinctly raise the ultimate issue facing the Court in respect of this claim: what is the proper interpretation to be brought to events which may substantially only be found in old documents and records? Teitelbaum J. said this:
| "After reviewing the extensive written submissions, oral submissions, expert reports and evidence, together with the countless documents, so eloquently described by one witness in the following terms: 'there are many, many, many documents...' [vol. 48, p. 6553] the one thing that the parties have in common is that all three parties have attempted to reconstruct events that took place over the past 100 years, based on numerous documents, which at times are contradictory, without the benefit of witnesses to the actual events which transpired. As such, the court is in effect left to rely on the documentary evidence and is faced with the unenviable and daunting task of sifting through the thousands of documents and the expert reports to somehow ascertain and understand events which transpired over the past 100 years. At the same time, the court must also avoid the tendency to look at one document, in isolation, to support one of the parties submission, without examining the evidence as a whole. As well as not succumbing to the tendency of fastidious over analysis of a particular word or phrase in a particular document. In the case before me, a simple sentence in a letter containing the phrase 'these Indians' either referring to Lekwiltach or Wewaikai became the subject of extensive debate. I would add that I am in no way belittling the role or ability of any counsel, simply that the very nature of this case seemed to draw out a propensity for painstaking analysis. Matters were further complicated by the fact that there did not always appear to be consistency within the documents or by the author of the documents. For example, an individual may have written one thing in one letter and then five years later said the exact opposite in another letter. Therefore, in order to attempt to somehow understand a contradiction or an inconsistency the court must examine the document in the context of the year it was written, what was transpiring at that time and what occurred in the interval. For that reason, in a case such as the one before me, it is crucial and essential that the documents be viewed in their historical context. Ultimately, the task of the court will be to weigh all of the evidence and make findings of fact that are reasonable. In doing so, emphasis must also be placed on interpreting the evidence in the context of the entire historical record rather than isolate a particular event or document as determination of the issue...". |
[13] No doubt, Addy J.'s comments on the scope of discovery lies in the lap of fundamental fairness and an even-playing field. So too the comments of Teitelbaum J. in the difficulties a Court faces in adopting a contextual approach to historical documents when viewed in contemporary terms. Both, in my mind, are gentle reminders that in as lengthy and protracted a piece of litigation as this one, the presiding judge might be spared too many obstructions or challenges.
[14] Costs shall be in the cause.
(Sgd.) "L. Marcel Joyal"
Judge
November 07, 1997
Vancouver, British Columbia
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: T-1636-81 JOE MATHIAS et al.,
- and -
HER MAJESTY THE QUEEN et al.,
T-3150-92 CHIEF WENDY GRANT et al.
- and -
| H.M.Q. |
T-953-93 LEONARD GEORGE as Chief, et al.
- and -
| H.M.Q. |
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 27, 1997
ORDER AND REASONS THEREFOR OF JOYAL, J.
dated November 7, 1997
APPEARANCES:
Mr. Greg McDade and for the Plaintiffs (Joe Mathias et al.)
Mr. J. Rich
Mr. Rod Whittaker for the Defendants
SOLICITORS OF RECORD:
Sierra Legal Defence for Plaintiffs (Joe Mathias et al.)
Vancouver, BC
Ratcliffe & Co. for Plaintiffs (Joe Mathias et al.)
Vancouver, BC
Blake, Cassels for Plaintiffs (Wendy Grant et al.)
Vancouver, BC
Ganapathi Ashcroft for Plaintiffs (Leonard George et al.)
Vancouver, BC
George Thomson for Defendants
Deputy Attorney General
of Canada