Ottawa, Ontario, this 17th day of June, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
SAWRIDGE BAND
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
AND BETWEEN:
Docket: T-66-86B
TSUU T'INA FIRST NATION
(formerly the Sarcee Indian Band
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The genesis of this motion by the Plaintiffs is an interlocutory motion by the Defendant, Her Majesty the Queen (the "Crown"). The Crown, in her motion, seeks to determine whether some of the witnesses whom the Plaintiffs propose to call at trial can offer relevant and admissible testimony on the matters in issue in the actions. In support of her motion, the Crown includes the affidavit of Lana Dolezal. The first part of Ms. Dolezal's affidavit consists of an account of events related to the motion. The second part of the affidavit attaches copies of documents (the "Documents") which are relied upon by the Crown, in her Written Representations. Ms. Dolezal makes no statements or comments about the Documents but merely attaches them to her affidavit.
[2] In the motion before me, made in writing pursuant to Rule 369 of the Federal Court Rules,
the Plaintiffs seek an order instructing the Crown to produce an informed witness to respond to the Plaintiffs' cross-examination on the affidavit, as submitted in the Plaintiffs' letter dated January 12, 2005. The relevant portion of that letter is as follows:
First, I wish to cross examine on the affidavit filed by the Crown sworn January 6, 2005 in support of their recent motion. . . .
The affidavit was sworn by a paralegal in the Edmonton Regional office of the Department of Justice named Lana Dolezal. Much of the affidavit provides background material most of which is
non contentious. However, in the affidavit beginning at paragraph 13 there are attached a number of documents concerningfederal government policy on self government; the implementation of the inherent right of aboriginal self government; agreements between Her Majesty the Queen and the Sawridge Band; and a discussion paper with respect to the Sawridge Band government negotiations which was apparently prepared by the Department of Indian Affairs dated July 7, 1989. I wish to cross examine with respect to these paragraphs and documents.
I want to say at the outset that I do not believe that a paralegal is the correct person to answer the kinds of questions that I intend to ask with respect to these documents and I am going to ask the Crown to produce an informed person who can answer questions. For example, my preference would be to ask those who prepared and are responsible for these policies procedures and documents to be produced to answer questions. The Crown has chosen to rely on these documents. I believe it is only fair that someone who can answer questions in relation to them be produced. . . .
[3] As noted, the requested relief is that I order the Crown to produce a different person to respond to questions about the Documents. However, the first issue to be determined is whether the Plaintiffs have any right to compel answers of the deponent, Ms. Dolezal. This is a threshold question. If the Plaintiffs cannot compel the chosen deponent to respond, it follows that another person should not be compelled to answer the questions.
[4] In my view, the most succinct statement of the current state of the law on the scope of cross-examination on an affidavit, in the context of an interlocutory motion such as this, is set out by Reed J. in Castlemore Marketing Inc. v. Intercontinental Trade and Finance Corp. [1996] F.C.J. No. 201, at para. 1:
An affiant is required to answer questions on matters which have been set out in the affidavit as well as any collateral questions arising from his or her initial answers. In Bally-Midway Mfg. Co. v. M.J.Z. Electronics Ltd. (1984), 75 C.P.R. (2d) 160, Mr. Justice Dubé stated that cross-examinations on affidavits are confined to "the issues relevant to the interlocutory injunction and/or all allegations contained in the affidavit". In [Weight Watchers International Inc. v. Weight Watchers of Ontario Ltd. (No. 2) (1972), 6 C.P.R. (2d) 169 (F.C.T.D.)], Mr. Justice Heald relied upon jurisprudence which held that a person cross-examining on an affidavit was not confined to the area within the four corners of the affidavit but could cover any matter relevant to the determination of the issue in respect of which the affidavit was filed. In addition to being relevant, the question of course must not be of such a general nature that it cannot be intelligently answered, and the Court will exercise its discretion and disallow any question which it considers in the nature of a "fishing expedition".
[5] The Plaintiffs relied on many cases to support their position on this motion. However, none of those cases reach conclusions or express views that are in disagreement with the foregoing extract from Castlemore Marketing.
[6] Applying these principles to the case before me, I would dismiss this motion.
[7] The first difficulty with the motion before me is that the Plaintiffs' request is of a general nature making it impossible for any meaningful response. The Plaintiffs have not provided any information on the specific nature of its proposed cross-examination. All we have are general statements that the Plaintiffs want to ask questions about the Documents.
[8] To support their motion, the Plaintiffs referred me to a number of cases where deponents were compelled to respond to questions or to inform themselves in order to respond. However, I find this jurisprudence to be unhelpful since, in all of those cases referred to, particular questions or lines of question had been identified by the moving party. In this case, the Plaintiffs have made no attempt to question Ms. Dolezal before bringing this motion and, thus, could not bring to this Court any evidence that particular questions had been refused. Nor have they set out a list of proposed questions. Further, the Plaintiffs have not provided me with any jurisprudence where this or any Court compelled an affiant to inform himself about and answer questions that were not specified or were described in general terms such as are before me.
[9] A party attempting to reply to a motion to compel answers to questions or to compel production of an affiant who can respond must surely be able to clearly understand what information is being sought by the moving party. In this case, both the Crown and this Court are left in the dark, having to speculate as to the questions that are to be posed. In effect, the Plaintiffs seek to conduct a "fishing expedition". On this basis alone, the motion should be dismissed.
[10] Further, even if I speculate or infer, from the filed motion materials, the specifics of the intended questions, I would still dismiss the motion. It appears that the Plaintiffs wish to examine Ms. Dolezal, or others, on the background and contents of a series of documents related to a matter that may or may not be part of the main litigation. In my view, cross-examination on this particular affidavit is not the appropriate vehicle for raising questions related to the pleadings themselves.
[11] The Plaintiffs submit that the Crown has chosen to rely on the Documents and that "it is only fair" that they be allowed to cross-examine on those Documents. I am not persuaded that the Crown has relied on the Documents in the broad manner suggested by the Plaintiffs. The Crown has put forward the Documents for a limited purpose, that being to show that negotiations between the Crown and the Plaintiff Sawridge Band pursuant to the Crown's self-government policy were conducted on a "without prejudice" basis. Thus, it would be improper to allow the Plaintiffs to cross-examine on the content of the Documents; the content of the Documents is not a matter in respect of which the affidavit was filed. Cross-examination on the affidavit should be limited to the issue raised by the motion to which the affidavit relates. In my view, any questions that go beyond the question of whether the negotiations were privileged or other matters specifically addressed in the Crown's motion would have no impact on the outcome of the underlying motion of the Crown and should, thus, be disallowed.
[12] Given that the Plaintiffs have not persuaded me that I should compel Ms. Dolezal to respond to any questions posed on cross-examination as are suggested (but not specifically set out), it follows that I am not prepared to compel the Crown to produce a person to respond. In any event, the Plaintiffs provided me with no authority, within the Federal Court Rules or elsewhere, which requires a party to produce an informed deponent in place of the person who swore the affidavit.
[13] In summary, I decline to grant the requested relief on the basis that:
1. The Plaintiffs have not identified with any specifics the questions they wish addressed by Ms. Dolezal or any other affiant;
2. If the Plaintiffs propose to cross-examine on the contents of the Documents beyond the limited purpose for which they are put forward by the Crown in her motion, such cross-examination would extend beyond the matters in respect of which the affidavit was filed.
ORDER
This Court orders that the motion is dismissed with costs payable forthwith.
"Judith A. Snider"
______________________________
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: T-66-86A and T-66-86B
STYLE OF CAUSE: SAWRIDGE BAND v.
HER MAJESTY THE QUEEN ET AL AND
BETWEEN TSUU T'INA FIRST NATION v.
HER MAJESTY THE QUEEN ET AL
MOTION WITH IN WRITING DEALT IN OTTAWA WITHOUT THE APPEARANCE OF THE PARTIES.
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: June 17, 2005
SOLICITORS OF RECORD:
Catherine Twinn FOR THE PLAINTIFFS, SAWRIDGE BAND
Philip P. Healey AND TSUU T'INA FIRST NATION
Martin Henderson
Paul Fitzgerald FOR THE INTERVENERS,
THE NATIVE COUNCIL OF CANADA
Jon Faulds FOR THE INTERVENERS,
NATIVE COUNCIL OF CANADA (ALBERTA)
Michael J. Donaldson FOR THE INTERVENERS, NON-STATUS INDIAN
ASSOCIATION OF ALBERTA
Mary Eberts FOR THE INTERVENERS,
NATIVE WOMEN'S ASSOCIATION OF CANADA
John H. Sims, Q.C. FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario