Date: 20041125
Docket: T-66-86A and T-66-86B
Citation: 2004 FC 1653
Ottawa, Ontario, this 25th day of November, 2004
Present: The Honourable Justice James Russell
BETWEEN:
SAWRIDGE BAND
Respondent
and
HER MAJESTY THE QUEEN
Applicant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Respondent
and
HER MAJESTY THE QUEEN
Applicant
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
THE MOTIONS
[1] I have before me two motions heard in Edmonton on November 18 and 19, 2004. In one of them, the Plaintiffs seek leave of the Court to serve witness lists and will say statements in accordance with a revised schedule and procedure, and to call those witnesses at trial for whom revised will say statements have been provided. In the other, the Interveners seek clarification and direction from the Court on the scope of their role at trial.
[2] Both motions have important implications for the timing and conduct of the trial that is due to begin on January 10, 2005. They are somewhat interconnected and I have considered them together, but the convergence and concentration of issues occasioned by the proximity of the trial has prompted me to deal with them in separate reasons and orders. By far the most pressing matter is the range of problems caused by the Plaintiffs' failure to serve adequate witness lists and will say statements which has thrown the schedule for the trial into disarray.
THE PLAINTIFFS' LEAVE MOTION
[3] The Plaintiffs' motion is a consequence of my own order of October 18, 2004, in which I struck the witness list and will says produced by Plaintiffs by September 15, 2004 for non-compliance with the Pre-Trial Order of Mr. Justice Hugessen dated March 26, 2004, and granted the Plaintiffs leave to apply to the Court "with proposals for a workable solution to the problems caused by their non-compliance with the Pre-Trial Order and their productions of deficient witness lists and will says."
[4] The "workable solution" proposed by the Plaintiffs is as follows:
(a) the Plaintiffs will serve revised will say statements on or before December 14, 2004, to be served as they are completed;
(b) if the Crown has any concerns with respect to the will say statements, they shall advise the Plaintiffs promptly so that they can be addressed by the Plaintiffs;
(c) the Plaintiffs have and will continue to serve the will say statements to the Interveners. Any concerns of the Interveners will be considered by the Plaintiffs. However, the Plaintiffs' response to any such concerns raised may depend upon the permitted scope of intervention; and
(d) if the Crown feels their concerns have not been addressed, they may seek the direction of the Court in writing for a determination. The Interveners' role concerning the Plaintiffs' will say statements will, we believe, be defined and the Plaintiffs will, of course, act accordingly.
[5] It is immediately apparent that this proposal does not address the issue of a witness list, but the Plaintiffs did agree at the hearing in Edmonton that a new witness list would be helpful and they undertook to provide one if their proposal was accepted.
[6] The rationale for the Plaintiffs' proposal is set out in their written submissions:
(a) the proposal will result in will say statements that comply with the Reasons for Order of October 18, 2004;
(b) the proposal addresses the concern of the Court that counsel have adequate will says for preparation for trial and for effective trial procedure, as the will say statements will be provided at least one month before trial;
(c) the proposal sets out a mechanism for any concerns about the will say statements to first be discussed by counsel before raising them with the Court;
(d) it is submitted that there is no prejudice that will arise if the proposal is approved;
(e) it is unlikely that there will be a delay of the trial if the Plaintiffs' proposal is approved; and
(f) the Plaintiffs will have the opportunity to call witnesses to support their case and ensure all relevant evidence is brought before the Court at trial.
[7] The Crown takes issue with the Plaintiffs' proposal and the will say statements produced since October 18, 2004 on several grounds:
(a) the proposal merely allows the Plaintiffs to produce will say statements up to December 14, 2004 without any negative consequence to them for failing to comply with Mr. Justice Hugessen's Pre-Trial Order;
(b) it would force the Crown to analyse the will says of the Plaintiffs and prepare for trial on a "piece-meal" basis right up to the eve of the trial;
(c) it would force the Crown to prepare challenges to the will say statements right up to December 14, 2004 and, if necessary, bring those challenges to the Court in the short amount of time available before trial;
(d) the Crown will only fully know the case it has to meet after December 14, 2004 and will not have sufficient time to prepare for trial;
(e) no revised witness list has been provided to date, so that no one knows as yet how many witnesses will be called and who they are;
(f) the Plaintiffs have not provided a trial schedule to date indicating the sequence and the duration for calling their witnesses at trial;
(g) bearing in mind the severe conflict between the parties on this issue, the Crown will be forced to make any challenges to the will say statements sporadically as they come in, or in an omnibus motion on the eve of the trial;
(h) the Crown has serious concerns about the 18 will say statements produced by the Plaintiffs at the time of the motion hearing. Protracted challenges will be necessary.
[8] The Interveners also point out a number of concerns with the Plaintiffs' proposal and the will say statements produced to date, and I note, in particular, the concerns of NCCA that the party whose witnesses will go first at the trial is now disclosing its witnesses last and taking advantage of its own default by tailoring some of its evidence to meet the will says served by NCCA. The NCCA is also of the view that the Plaintiffs' will say statements produced to date contain a great deal of argumentative and collateral material that is irrelevant to the issues defined in the pleadings and that reveals that Plaintiffs' real purpose is to use the trial as a "soapbox from which they seek to advance their political agenda, making broad political arguments in favour of aboriginal self-government, rather than focussing on the specific constitutional questions which are actually in issue."
ANALYSIS
[9] I do not believe this motion is the appropriate place to examine the criticisms made concerning the content of the will say statements produced to date by the Plaintiffs, except that the Court must acknowledge the clear indication that challenges are likely to be made and that they may well be made before trial. The parties hold widely divergent views as to what this trial should deal with and, in light of the large number of witnesses the Plaintiffs have indicated they intend to call, the Crown and the Interveners have justifiable concerns about the barrage of further evidence and what it means for the conduct and duration of the trial. Normally, of course, I would leave these matters to be dealt with at trial, but the history of this action has shown time and again that it would be naive to assume that normal procedures will suffice. I have taken careful note of Mr. Justice Hugessen's words in his order of March 6, 2002 that he was "driven to the regretful conclusion that the parties are simply incapable or cannot be trusted to conduct this litigation themselves even when case managed." This motion and the reasons for it are ample proof that nothing has changed in this respect. Because the Plaintiffs have not yet produced a new witness list, and because at the time of the motion hearing they have only put forward 18 will say statements out of a possible 140 - 150 (some of them obviously highly controversial), the Court is in no position to assess what the situation will look like once the Plaintiffs have delivered the full quota. I am simply not willing to go forward in the hope that all will be well when so little is known about the Plaintiffs' witnesses, their number, or why they are even necessary, and the history of the action indicates that repeated Court intervention has been necessary to avoid procedural quagmires and tactical stand-offs.
[10] My concern at this stage remains fairness to all parties to the extent of their respective interests. My review of the Plaintiffs proposal suggests to me that its essence is that witness lists and will says that should have been served on or before September 15, 2004 will now be served on or before December 14, 2004. The trial should still commence on January 10, 2005, so that the Crown and the Interveners will have a fairly short time period (and one that includes the Christmas season) to review the material, prepare for trial and complete any challenges they may wish to make. The Plaintiffs will thus secure a three-month extension with no real compensatory concessions to the other side to deal with the consequences of the Plaintiffs' default. If Mr. Justice Hugessen ordered the serving of witness lists and will says four months before the trial, I am sure that, with his knowledge of this action and his obvious concerns about the conduct of the parties, he had good reason for doing so. And when he made his order of March 26, 2004, it must also be kept in mind that he did not know that the Plaintiffs intended to call approximately 140 to 150 witnesses to supplement the voluminous record that already exists on the issues in this dispute. It would be sheer folly for the Court to now jettison Mr. Justice Hugessen's wisdom, as embodied in his order, and to go forward on the basis of the Plaintiffs' proposal.
[11] Viewed against the framework of Mr. Justice Hugessen's Pre-Trial Order, the Plaintiffs' proposal looks to me like an exercise in rank opportunism that is dismissive of the rights of other parties and the procedures that Mr. Justice Hugessen forged to deal with the exigencies of this action.
[12] To accept the Plaintiffs' proposal would be to accept and condone their taking an additional three months to produce a witness list and will say statements without much in the way of an explanation, other than repeated complaints that they are very busy. The Court might have been more convinced by their inadequate excuses if they had come forward to discuss the problems before default occurred, and if they had raised and explored with Mr. Justice Hugessen why it was necessary to call in excess of 140 witnesses for a re-trial of issues for which there is already an extensive record. The Plaintiffs say they need "many voices" to make their case, but until the witnesses are finally identified and the will say statements are produced, there is no way for anyone to judge whether their purpose is genuine or obstructive, or what implications this might have for trial preparation and the conduct of the trial itself.
[13] In the end, the Court is faced with a difficult choice in this motion. To allow the Plaintiffs to proceed as they suggest would be to allow them to profit from their non-compliance with Mr. Justice Hugessen's Pre-Trial Order at the possible expense of the rights of other parties and disastrous consequences for the conduct of the trial. The Plaintiffs' proposal is not a "workable solution" to the problems caused by their default. The Plaintiffs have indicated that, although they think the standards set for the will says in my order of October 18, 2004 are high, they accept them and are willing to comply with them. But the pre-trial record is far from complete and the trial schedule and trial process remain impossible to chart and anticipate in any meaningful way.
[14] At the same time, the Court is very much concerned to ensure that the Plaintiffs are given the opportunity to make their case in the most effective way possible. The Court does not wish to interfere with normal trial procedure or place obstacles in the way of the Plaintiffs calling those witnesses they feel they need to assert their position. Any interference by the Court at this stage would, under normal circumstances, be unnecessary.
[15] But as the history of this action has proved on several occasions, leaving the parties to follow normal procedures results in total inertia or administrative chaos. The parties - in this case the Plaintiffs - simply cannot be trusted to conduct this litigation themselves.
[16] Reluctantly, then, I have come to the conclusion that it would be derelict of this Court to allow the parties to go to trial until the Plaintiffs' witnesses have been fully disclosed, adequate will say statements have been produced, the Crown and the Interveners have been given a reasonable opportunity to review the witness list and the will says, and the Court itself is satisfied that the barrage of witnesses (revealed for the first time on September 15, 2004 and apparently not raised with Mr. Justice Hugessen) is a legitimate exercise by the Plaintiffs of their litigation rights.
[17] The stark alternative would be to simply deny this motion and move forward to trial on the basis of the relevant portions of the record of the first trial and the other materials filed to date. The reason I am rejecting such a draconian approach at this time (although I do not rule out that it may yet be necessary) is that this action has repeatedly required Court intervention to move forward. This has, unfortunately, resulted in a culture of dependancy and non-cooperation. The Court has been forced repeatedly to revert to its general powers and obligations under Rule 3 of the Federal Court Rules, 1998 to ensure the most just, expeditious and least expensive determination of every proceeding on its merits. I believe it would be unrealistic and foolish for the Court to now retreat and expect the parties to somehow miraculously change and manage the progress towards trial in the normal manner.
[18] In view of the belated disclosure that the Plaintiffs intend to call in excess of 140 witnesses at trial, their breach of Mr. Justice Hugessen's Pre-Trial Order, and their failure to provide a workable solution to the problems caused by that breach, the Court is no longer willing to accept on trust that the Plaintiffs require such a prodigious number of witnesses to support claims for which there is already a voluminous record covering the same issues.
ORDER
1. The Plaintiffs' motion is denied. However, on or before December 14, 2004, the Plaintiffs will serve the Crown and the Interveners with their witness lists and will say statements in a form that complies with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, as that order has been further interpreted by this Court, together with a schedule indicating the sequence and the duration for calling their witnesses at trial;
2. On or before December 21, 2004, the Plaintiffs will file with the Court and serve upon the Crown and the Interveners a brief but adequate explanation as to why each of the witnesses disclosed on their witness list is a necessary and material witness, having regard to the following:
(a) the issues of this claim as addressed in the recently amended pleadings;
(b) the fact that this is a re-trial and there is an extensive record of evidence available from the first trial on many of the same issues - including oral history evidence - and evidence at the second trial should not duplicate evidence already given and available;
(c) the fact that the parties are able to read-in evidence from the first trial as well as any additional evidence obtained from further discovery following the order for a re-trial;
(d) paragraph 2 of the order of Mr. Justice Hugessen made December 8, 2000, directs that "no person who testified at the first trial should be called to give evidence at the new trial unless the party wishing to call such person satisfies the trial judge that such person is likely to give evidence that was not given by the person at trial";
3. If the Crown takes objection to the witness lists and will say statements produced by the Plaintiffs in accordance with paragraphs 1 and 2 above, it will bring any such objections and its suggestions for dealing with them to the attention of the Court by way of motion on or before January 8, 2005 or will inform the Court by that date (and sooner if possible) that it has no objections;
4. The Plaintiffs shall have until January 14, 2005 to serve and file responding materials for any such motion as may be brought by the Crown;
5. The date for the hearing of the motion shall be set by the Court after consultation with the parties and shall take place as soon as possible in January 2005;
6. At the hearing of the motion, the Court will hear representations from the Crown, the Plaintiffs and the Interveners and decide if any of the witnesses proposed by the Plaintiffs should be called at the re-trial and any other related matter;
7. The scope of the participation of the Interveners in the motion shall be in accordance with the practice followed to date unless the Court has by that time issued a separate order limiting the participation of the Interveners in any such motion;
8. The commencement of the trial shall be adjourned from the January 10, 2005 date set by Mr. Justice Hugessen to a new date to be set by the Court following the resolution of the matters referred to in this Order and any further representation from the parties concerning required preparation time following the motion and any decision made concerning the motion. The parties should anticipate that any such adjournment period will be relatively brief and they should vigorously continue their preparation for trial accordingly;
9. The written statement deadline of December 15, 2004 shall be extended to allow the parties time to respond to the outcome of the motion and a new deadline date will be set by the Court after hearing representations from the parties on this issue;
10. Any party may address the Court on the matter of costs for this motion.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86 A & T-66-86 B
STYLE OF CAUSE: SAWRIDGE 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
-and-
TSUU T'INA FIRST NATION
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
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: NOVEMBER 18 AND 19, 2004
REASONS FOR ORDER: RUSSELL, J.
DATED: NOVEMBER 25, 2004
APPEARANCES:
Catherine Twinn FOR PLAINTIFF
Twinn Barristers and Solicitors
Slave Lake, Alberta
Philp P. Healey
Aird & Berlis LLP FOR PLAINTIFF
Toronto, Ontario
Kevin Kimmis / James Kindrake FOR DEFENDANT
Department of Justice
Edmonton, Alberta
Mary Eberts FOR NATIVE WOMENS
Eberts Symes Street Pinto & Jull ASSOCIATION OF CANADA
Toronto, Ontario AND NATIVE COUNCIL OF
CANADA
P. Jon Faulds / Derek Cranna FOR NATIVE COUNCIL OF
Field LLP CANADA (ALBERTA)
Edmonton, Alberta
Michael J. Donaldson FOR NON STATUS INDIAN
Burnet, Duckworth & Paulmer LLP
Calgary, Alberta