Date: 20010615
Docket: T-617-85
Neutral Citation : 2001 FCT 666
BETWEEN:
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo,
Rema Rabbit, Carl Rabbit and Darrell Strongman,
suing on their own behalf and on behalf of all other members
of the Montana Indian Band, all of whom reside on the
Montana Reserve No. 139, in the Province of Alberta.
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
SAMSON BAND, Chief Victor Buffalo, and Larron Northwest,
Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo,
Raymond Lightning, Stan Crane, Lawrence Saddleback,
Todd (Chester) Buffalo, Arnup Louis, Lester B. Nepoose,
Jim Omeasoo, and Robert Swampy, Councillors of the
Samson Band, sued on their own behalf
and on behalf of the members
of the Samson Band of Indians,
Third Parties
- and -
ERMINESKIN BAND, Chief Eddie Littlechild and Ken Cutarm,
Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee,
Arthur Littlechild, Richard Littlechild, Emily Minde,
Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe,
Councillors of the Ermineskin Band, sued on their
own behalf and on behalf of the members of the
Ermineskin Band of Indians.
Third Parties
- AND -
Docket: T-782-97
BETWEEN:
CHIEF FLORENCE BUFFALO acting on her own behalf
and on behalf of all the members of the
SAMSON CREE NATION AND BAND
- and -
THE SAMSON CREE NATION AND INDIAN BAND
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and Her Majesty the Queen in Right of Canada as
represented by the MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT Parliament
Buildings, Ottawa, Ontario
Defendants
- AND -
Docket: T-2804-97
BETWEEN:
ERMINESKIN CREE NATION and Chief Gerald Ermineskin,
Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening,
Carol Margaret Wildcat, Carol Elizabeth Roasting,
Glenda Rae White, Craig Alton Makinaw, Councillors of the
Ermineskin Cree Nation, suing on their own behalf and on
behalf of the ERMINESKIN CREE NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN and
THE ATTORNEY GENERAL OF CANADA
Defendants
(Delivered from the Bench at Ottawa,
Ontario on June 14, 2001)
[1] I am going to dismiss this motion and I can state my reasons very shortly.
[2] With regard to the first branch which alleges deficiencies in Schedule II of the affidavits of documents of the various plaintiffs, the evidence is clear that an agreement was reached between counsel for the Crown and counsel for the plaintiffs Samson Band and Ermineskin Band respectively (indeed, I was present at the session of the Court when that agreement was spoken to) as to the adequacy of the then existing Samson affidavit and the then proposed Ermineskin affidavit; I am satisfied that the affidavits now produced are in accordance with those agreements. There is no reason why counsel should not reach such an agreement, there is nothing of public order in the provisions of the rules requiring production of documents and it is normal and proper and right that counsel should agree between themselves as to what could and should be produced and that the Court should honour those agreements. No good reason has been given for the Crown's present attempt to resile from that agreement. The suggestion from counsel that the agreement was entered into by mistake is supported by absolutely no evidence.
[3] With regard to the Schedule II of Montana Band, I am satisfied that the draft Schedule II, which is presently in existence, is in entire compliance with the rules and with the jurisprudence under the rules. It is the case, however, that it is only in draft form. There is a good reason for that. It was sent to Crown counsel by Montana Band counsel with a request that Crown counsel indicate any deficiencies in the affidavit so that they could be corrected before it was filed. That request was not responded to.
[4] I am, as I say, satisfied that the draft is in satisfactory form and I shall give an order that Montana Band complete and sign that draft affidavit by the end of this month, that is June 29, 2001.
[5] The second part of the motion deals with allegedly incomplete or insufficient productions. The law is clear that the burden of showing that another party's productions are inadequate lies on the party making that allegation. There are three components to documents which are required to be produced. It must be shown that the document exists, that it is in the possession or control of the party from whom production is sought and that the document is relevant. I do not propose to deal with the issue of relevance because I expressed some views in this very case about the effect of a severance order which I gave in January of this year on the issues in the case and in particular with respect to discoveries. It is my understanding that my decision on that point has been appealed and counsel tell me that it is very likely that the Court of Appeal will be able to deal with the matter within the next few weeks. We shall, at that point, presumably have some enlightenment from the Court of Appeal as to whether or not my view was correct and I think it would be wrong for me to expand on it at this point.
[6] With respect to the questions of the existence of the documents which are now sought and of whether or not they are in the possession or control of the plaintiffs, the Crown relies upon a number of documents which it has in its possession and on a number of inferences which it seeks to draw from those documents as to the existence of other documents. I do not find the argument to be persuasive. The documents that are in the Crown's possession are, on the Crown's own saying, relevant but have not apparently as yet been produced by it in this action. I simply note that fact when I compare it with the strictures pronounced by Crown counsel against the plaintiffs for their alleged failures to produce documents. But I do not find persuasive, at the moment, the suggestion that the documents produced by the Crown necessarily demonstrate either that there are in existence other documents which are relevant to this case or that those documents are in the plaintiffs' possession. I cannot pass without comment the entirely unmerited suggestion by the Crown that the plaintiffs and their counsel cannot be relied upon to examine the documents in the plaintiffs' possession and make a judgment of relevance. I suppose, counsel are entitled to their opinion but it is wrong. The rule is very clear. It requires that the initial judgment of relevance of documents for production purposes be made by the party with the assistance of counsel and it requires that the affidavit of a party be supported by a certificate of counsel that the party has been properly instructed as to the obligation which it has under the rules.
[7] Each of the plaintiffs has in response to the Crown's initial request, which was quite properly made by way of letter, indicated that it would undertake a further examination of the documents in order to ensure that there had not been, by inadvertence or mistake, some oversight and to make sure that all relevant documents had in fact been included. Each has indicated that they will attempt to complete this task by the end of August and I shall include in the order which I will give at the end of this session an order that each of the plaintiffs is to complete its examination and if necessary, file a supplementary affidavit of documents by August 31, 2001.
[8] The final branch of the motion is one that I did not call upon counsel for the plaintiffs to respond to. It appears to allege two things, first that some of the documents had been improperly bundled. That is a matter of absolutely no consequence where the documents themselves have been produced to the Crown and I am not at all convinced that there has in any event been improper bundling. The documents which were mentioned to me were all of an archival nature and general descriptions of archival documents such as "documents coming from the Oblate Fathers" or something of that sort, seem to me to be entirely appropriate where documents are a hundred or more years old.
[9] The other part of the criticism under this third branch of the Crown's motion had to do with the alleged illegibility or incompleteness of some documents. I am satisfied that plaintiffs are prepared to provide the best copy they can of the documents in their possession. It is not surprising that archival documents may be illegible or incomplete. Plaintiffs have indicated that they have given what they have and have done their best. I really do not think that it is reasonable for the Crown to ask for more.
[10] This brings me finally to the subject of costs. This motion should not have been brought. It was an entire waste of time. The matters which it dealt with could and should properly have been addressed and dealt with between counsel. There may, and I expect that there will be honest disagreements between the parties as to the relevance of certain documents. But unless and until the general scatter gun approach taken by the Crown is disposed of and unless and until the parties can come to grips with what actual documents they actually disagree upon with respect to relevance and even with respect to their existence and the fact that they are in the possession of the plaintiffs, the Court is not in a position to deal with an application of this sort. It was available to the Crown to discuss this matter with plaintiffs' counsel. I have to say they were urgently invited to do so by the case management judge. The Crown has instead insisted upon playing by the book. Those who play by the book may rightly expect to get the book thrown at them if they get it wrong. I think this is a case for a very substantial order for costs. And in dismissing this motion, I shall make an order that each of the plaintiffs is to be paid $7,500 in costs forthwith and in any event of the cause.
Later
[11] In addition, because it made a written offer of settlement before the hearing, Montana Band is entitled to have its disbursements, including travel expenses and reasonable accommodation expenses of counsel assessed and paid.
Judge
Ottawa, Ontario
June 15, 2001