Date: 20010905
Docket: T-1244-92
Neutral citation: 2001 FCT 990
BETWEEN:
PERCY RICHARD WARD AND BERT WARD
Plaintiffs
- and -
SAMSON CREE NATION NO. 444 AND CHIEF AND
COUNCIL OF SAMSON CREE NATION NO. 444
Defendants
- and -
HER MAJESTY THE QUEEN as represented by
THE MINISTER OF INDIAN AND INUIT AFFAIRS
Defendants
[1] This is a motion brought pursuant to Rule 369 by the defendant Band seeking to compel answers to undertakings or more informed answers on a cross-examination on an affidavit.
[2] The following statement of the issues is taken from the Band's written submissions and is not contested by the Crown:
3. On May 31, 2001, Lana Dolezal, paralegal for the Department of Justice, swore an Affidavit in response to the Plaintiff's Motion for Summary Judgment, attaching more than 21 documents as Exhibits to her Affidavit.
Affidavit of Lana Dolezal. [Tab B]
4. On June 28, 2001, Cross-Examination of Lana Dolezal took place.
Cross-Examination Transcript. Tab C.
5. Ms. Dolezal stated at page 2, line 11 of the Cross-Examination, that she was authorized to give answers on behalf of the Crown:
"To the extent of my knowledge".
6. In Exhibit B to Ms. Dolezal's Affidavit, the Director wrote:
... it was ascertained that the two men in question were both of white status, the conclusive part of the evidence of their white status consisting of the fact that Jacob Jos. Ward, father of James, receipt [sic] scrip as a half-breed on September 6, 1886, and that John Hodgson, father of fred, [sic] received scrip as a half-breed under date of December 27, 1894. ¼
7. At pages 6 and 7, line 7, of the Cross-Examination, Undertaking No. 2 was requested:
Produce Scrip documents for Jacob Ward, and also advise whether Jos. stands for Joseph. Also advise of Name of Band that Jacob was a member of before he withdrew from Treaty, and provide documents prepared for his withdrawal from Treaty.
8. The Crown's Response on August 1, 2001, was:
No undertaking was given to the examiner's request. [Tab D]
9. Exhibit I to the Affidavit states in paragraph 2 of page 1:
"In 1942, investigation disclosed that James Ward was a non-Indian (half-breed) who married an Indian woman from the Ermineskin Band. Ward, father of James, received scrip on September 16, 1886, for himself and his son, James."
10. Undertaking No. 3 requested:
Advise whether Jacob Joe Ward received scrip on September 6 or September 16 of 1886. Also produce all documents for scrip for Jacob's son James Ward and produce all withdrawal from Treaty documents relating to James Ward.
11. The Crown's Response on August 1, 2001 was:
No undertaking was given to the examiner's request. [Tab D]
12. Exhibit A for Identification was shown to Ms. Dolezal at page 8, lines 12 to 18 and the question put to her was:
¼ And I'd ask you to review that document and tell me whether or not you take the position that that is a document from the Indian Commissioner, and if you do, then I'd like to enter it as an exhibit to this cross-examination.
Tab C, Exhibit "A".
13. However, Ms. Kohlman took the position at page 8, lines 24 to 26 that:
I don't think that this witness has the authority to bind the Crown with statements of positions of the Crown.
14. At page 9, lines 9 to page 11, line 8 the following exchange between counsel occurred:
Ms. Kohlman: That may be. Our position is that through this cross-examination, it's not appropriate for this person to be producing additional documents or to be making comments upon the authenticity of documents or whether they were signed or what the Crown's position is about these documents. Those are more properly questions of discovery. What I am prepared to do is to produce to you an Affidavit of Documents of the Crown in this action within say two weeks. You can then review the whole of the documents that the Crown has in its possession and if you determine that you need to make discovery of the Crown before responding to the plaintiff's summary judgment motion, then its our position that's something you need to take before the court. But partial discovery isn't going to occur through this witness.
Ms. Kennedy: Okay. Here's the problem. You have produced certain documents in the summary judgment application.
Ms. Kohlman: Right.
Ms. Kennedy: They are incomplete to deal with the issues that are raised by the summary judgment application. I am entitled, first of all on a cross-examination, to the additional documents that are related to the documents that have been raised in the Affidavit. And I am also entitled to all of the materials that relate to the issues that are raised in that Affidavit relating to the summary judgment. And this is a document that relates specifically to the validity of the scrip certificates from September of 1886. And I would ask you to quickly look at that document and you will immediately see that it is particularly relevant to the issue of scrip certificates issued or purportedly issued to Jacob Ward in September of 1886.
Ms. Kohlman: Okay. That may well be. I can't tell you right now whether we have this document in our possession as well. I would assume we do, if its from public archives. Our preference is to deal with your request for documents by producing an Affidavit of Documents of the Crown and we would undertake to do that very quickly --
Ms. Kennedy: That may be your preference, but I am going to insist that my request for --
Ms. Kohlman: We have a conference on July 4. We can deal with it then perhaps.
¼
15. Exhibit "C" to the Affidavit contains a letter dated October 6, 1944 addressed from John Laurie, Indian Association of Alberta to Dr. H.W. McGill, Indian Affairs Branch. Undertaking No. 5 requested advise as whether something was missing from the back of the document or whether there was another page to the document.
16. The Crown response was:
We do not currently have access to an original of Exhibit C (Letter ¼) although attempts are being made to locate same. As the document did not originate with the Crown, to the best of our knowledge Exhibit C is complete.
17. Exhibit I and Exhibit Q contain a statement that James Ward was married to an Ermineskin woman. Undertaking No. 6 requested:
Advise whether the Crown admits that James Ward married a woman who was a member of the Ermineskin Band.
18. The Crown response on August 1, 2001 was:
No undertaking was given to the examiner's request.
19. Exhibit N contains a letter which contains a statement that Percy Ward was placed with Sam Crier's family as a child and that he was raised as their child.
20. Undertaking No. 7 requests:
Advise whether Indian Affairs takes the position that Percy Ward was placed with the Sam Cryer [Crier] family to be raised, and advise what information Indian Affairs has as to who Sam Cryer [Crier] is.
21. The Crown's response on August 1, 2001 was that no undertaking was given.
[3] It is quite clear from an examination of the transcript that no undertakings were in fact given. That is entirely normal since on a cross-examination on an affidavit there is no obligation on the part of the witness to be informed and thus no requirement that she further inform herself. If the witness cannot elucidate upon any of the facts deposed to that may go to her credibility but that is all. Even credibility is unlikely to be much affected where the question relates to the contents of ancient documents to which the witness was not a party and which most probably predate her lifetime by many years. Cross-examination on an affidavit is not a substitute for examination for discovery either oral or documentary and is not the proper method of obtaining relevant documents in the possession of the opposite party. Finally, it is clear that, the witness not being the legal representative of the party who has produced her, she cannot be made to state that party's position on any fact in issue. My views on the differences between examination for discovery and cross-examination on affidavits were fully stated as follows in Merck Frosst Canada Inc. v. Canada (Minister of Health),(1997) 146 F.T.R. 249 or (1997) 80 C.P.R (3d) 550.
It is well to start with some elementary principles. Cross-examination is not examination for discovery and differs from examination for discovery in several important respects. In particular:
a) the person examined is a witness not a party;
b) answers given are evidence not admissions;
c) absence of knowledge is an acceptable answer; the witness cannot be required to inform him or herself;
d) production of documents can only be required on the same basis as for any other witness i.e. if the witness has the custody or control of the document;
e) the rules of relevance are more limited.
[4] Accordingly, it is my view that the motion is unfounded and should be dismissed with costs.
ORDER
The motion is dismissed with costs.
Judge
Ottawa, Ontario
September 5, 2001