Date: 20010313
Docket: T-850-99
Neutral citation: 2001 FCT 179
Ottawa, Ontario, Tuesday the 13th day of March 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
PHYLLIS RANDALL, LONNIE DODGE, JOSIE DODGE, ROBERT K. SCOTT, BRIAN WELCH, FLOYD SCOTT, ANTHONY DODGE (A.K.A. ARTHUR DANIEL SIMONS), MABEL HAWCO, CHRISTOPHER HAWCO SR., SUSAN DE LEARY, WILLIAM DELEARY, LISA BRUMMIT, LAURA BRUMMIT MERCER, WALLACE KENNEY, RENA H. THOMPSON, PAMELA DODGE, TERESA JACOBS, ELLA ROBITAILLE, CAROLINE JUNE WELCH, TONY DONOVAN, JO ANN WILSON, ROBERT DODGE, JOSEPH CHAMBERLIN, MARGARET VANDERWEIDE, MARIE DUCKWORTH, SHAWN DUCKWORTH, IAN DUCKWORTH, DAVID MCPHEE, JANICE DODGE, DANIEL CHAMBERLIN, NANCY LAMOREUX, JAMES ALLAN DODGE, SANDRA DODGE, WENDY DONOVAN CAMPBELL, DARRYL R. JACOBS, EDWARD A. JACOBS, ANGELA HIGGINS, WILLIAM DODGE, FLORENCE DODGE, STANLEY JAMES SCOTT, STEVEN SCOTT, DANIEL SCOTT, JACK SCOTT, MARY FRANCES DUCKWORTH, CANDICE BRUMMITT, VICKY BAKELAAR-CORNELL, MICHAEL CORNELL, WILLIAM DUNN, SARA ANN SCOTT, PAT BRUMMITT, WILSON DODGE, SR., ELIZABETH DODGE, WILSON DODGE, JR., WILSON DODGE, III, MYRTLE JOYCE, EVA TYLER, RONALD DOOLITTLE
Plaintiffs
- and -
CALDWELL FIRST NATION OF POINT PELEE AND PELEE ISLAND BAND COUNCIL, LARRY JOHNSON, HENRY SOLOMON, FRANKLIN SOLOMON and DONALD SOLOMON
Defendants
AND
Docket: T-1230-99
BETWEEN:
LOUISE HILLIER, JANNE PETERS, MELODY WATSON, JIM PETERS,
SUSIE PETERS, VIDA PETERS, ERIC PETERS, JUNE PETERS, CARRIE PETERS, JODY PETERS, LINDSAY PETERS, RALPH PETERS, GERALDINE PETERS, YVONNE PETERS, DAVID HILLIER, DENNIS HILLIER, KEN FORD, MARGARET PETERS-NELNOR, ISSAC PETERS, DIANE PETERS, DANIELLE PETERS, ISSAC PETERS, JR., MILDRED FORD, JANET ALLEN, ELIZABETH WENZLER, RUTH SIMPSON and STEVE SIMPSON
Plaintiffs
- and -
CALDWELL FIRST NATION OF POINT PELEE AND PELEE ISLAND BAND COUNCIL, LARRY JOHNSON, HENRY SOLOMON, FRANKLIN SOLOMON and DONALD SOLOMON
Defendants
REASONS FOR ORDER AND ORDER
[1] The plaintiffs in both proceedings appeal from a portion of the orders of Prothonotary Lafrenière pronounced on December 5, 2000. At issue are:
i) paragraph 7 of the order issued in T-850-99 and paragraph 8 of the order issued in T-1230-99, each as follows:
The plaintiffs' motion for an Order compelling the Indian Commission of Ontario to produce any and all documentation in its possession relating to its involvement in the negotiation of the Agreement in Principle reached between the Caldwell First Nation of Point Pelee and Pelee Island and Her Majesty the Queen in Right of Canada, including any and all memoranda, communications, and correspondence exchanged by the Caldwell First Nation of Point Pelee and Pelee Island, Her Majesty the Queen in Right of Canada, and the Indian Commission of Ontario, be and the same is hereby dismissed.
ii) paragraph 8 of the order issued in T-850-99 and paragraph 9 of the order issued in T-1230-99, each as follows:
The plaintiffs' motion for an Order compelling Her Majesty the Queen in Right of Canada to produce any and all documentation in its possession relating to the negotiation and attainment of the Agreement in Principle reached between the Caldwell First Nation of Point Pelee and Pelee Island and Her Majesty the Queen in Right of Canada, including any and all memoranda, communications, and correspondence exchanged by the Caldwell First Nation of Point Pelee and Pelee Island, Her Majesty the Queen in Right of Canada, and the Indian Commission of Ontario, be and the same is hereby dismissed.
THE FACTS
[2] All of the plaintiffs in T-1230-99 and all but three of the plaintiffs in T-850-99 are acknowledged to be members of the Caldwell First Nation of Point Pelee and Pelee Island. They assert that, among other things, the defendants acted without authority or in excess of their authority in negotiating a tentative settlement agreement and trust agreement between the Caldwell First Nation and Her Majesty the Queen in right of Canada.
[3] The background to that allegation is that in 1992 the Indian Commission of Ontario ("Commission"), an independent body created to coordinate and chair negotiations and discussions between federal and provincial governments and first nations, began facilitating discussions between Canada, the Province of Ontario and the Caldwell First Nation relating to the Nation's historic claim of the Caldwell First Nation.
[4] In 1996, the Department of Indian and Northern Affairs accepted the Caldwell First Nation's claim for negotiation. The resultant negotiations led to a proposed settlement agreement dated January 24, 2000. It is asserted that during the negotiations between the Caldwell First Nation and the government of Canada, as facilitated by the Commission, documentation was created and exchanged between the parties.
[5] It was submitted in an affidavit placed in evidence before the Prothonotary that with respect to the Commission: i) during the examination for discovery of one of the plaintiffs evidence was given that the Commission was actively involved in the negotiation of the agreement in principle; ii) the defendants produced copies of documents in their possession from the Indian Commission of Ontario and that "it is apparent" that the Commission has substantial documentation in its possession relating to the negotiations which has not been produced; iii) at the request of counsel for the plaintiffs, counsel for the defendants wrote to the Commission requesting production of the entire file, but to date the plaintiffs had not received any further documents from the Commission.
[6] With respect to the Department of Indian and Northern Affairs, there was evidence before the Prothonotary that: i) on the examination for discovery of the defendants, two defendants were unable to provide detailed information regarding the progress of the negotiations and that the information provided was conflicting; ii) counsel for the defendants wrote to counsel for Her Majesty in right of Canada requesting documentary disclosure of "the entire Canadian government negotiating team's notes and records concerning its dealing with the Caldwell people from January 1, 1996 to the present".
[7] The Prothonotary dismissed the plaintiffs' request for production from the Commission and from Her Majesty in right of Canada on the basis that the documentation requested was protected by settlement privilege which had not been waived by the Commission or the Queen, and on the basis that the plaintiffs had not met their evidentiary burden of establishing that there were relevant documents in the possession of a non-party that were not also in the possession of or available through a party to the proceeding.
ANALYSIS
[8] No question vital to the final issue in this case was before the Prothonotary. Therefore, his discretionary order should not be disturbed on appeal unless it was clearly erroneous in the sense that his exercise of discretion was based upon a wrong principle or upon a misapprehension of the facts (Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)).
[9] I am satisfied that the Prothonotary neither applied any wrong principle nor misapprehended the facts. Indeed before me, in oral argument, counsel for the plaintiffs in substance conceded that the request for production of all notes and records concerning the negotiating team's dealings with the Caldwell people was overreaching. Therefore, on appeal the plaintiffs sought production of only those documents exchanged between all parties to the negotiations, that is documents exchanged between the Caldwell people, the Commission and the government of Canada. The plaintiffs did not seek documents internal to the federal government or the Commission.
[10] Notwithstanding the plaintiffs' efforts to recast their motion to deal with the issue of settlement privilege, there remain the concerns of the Prothonotary that the plaintiffs had not established that the requested documents were not also available through a party to the litigation (see: Industries Perlite Inc. v. Marina Di Alimuri (The), [1994] F.C.J. No. 1772, T-2067-88 (November 25, 1994) (F.C.T.D.)). I remain satisfied that the Prothonotary did not err when he refused the requested order on this ground.
[11] It follows, therefore, that the appeals should be dismissed, without prejudice to the right of the plaintiffs to make further efforts to compel from the defendants or third parties, on a proper evidentiary record, production of a more limited class of documents. A properly framed request may well generate a more favourable response.
[12] I expressly refrain from making any determination on the limited evidentiary record before me as to whether production from the federal government or the Commission, with the consent of the Band Council, of documents once in the possession of the Band Council to members of the Caldwell First Nation can be resisted on the ground of settlement privilege. That is a determination the Prothonotary was not directed to, and which, if required, should be made in the context of specific documents and a proper evidentiary record.
ORDER
[13] For the above reasons, it is therefore ordered that:
1. The plaintiffs' appeals are dismissed.
2. The plaintiffs shall pay to the responding party, the Minister of Indian and Northern Affairs, one set of costs. One half of such costs is to be paid by
the plaintiffs in T-850-99 while the remaining half is to be paid by the plaintiffs in T-1230-99.
"Eleanor R. Dawson"
Ottawa, Ontario