Date: 20061004
Docket: T-66-86
Citation: 2006
FC 1179
Ottawa, Ontario,
this 4th day of October, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
-
and -
HER
MAJESTY THE QUEEN
Defendant
-
and -
CONGRESS
OF ABORIGINAL PEOPLES,
NATIVE
COUNCIL OF CANADA (ALBERTA),
NON-STATUS
INDIAN ASSOCIATION OF ALBERTA
and
NATIVE WOMEN=S ASSOCIATION OF CANADA
Interveners
Docket:
T-66-86-B
BETWEEN:
TSUU
T=INA FIRST NATION
Plaintiff
-
and -
HER
MAJESTY THE QUEEN
Defendant
-
and -
CONGRESS
OF ABORIGINAL PEOPLES,
NATIVE
COUNCIL OF CANADA (ALBERTA),
NON-STATUS
INDIAN ASSOCIATION OF ALBERTA
and
NATIVE WOMEN=S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
MOTION
[1]
The Plaintiffs have
brought a motion in writing pursuant to Rule 369 of the Federal Courts Rules,
1998 that asks the Court for leave to extend the date of service of Dr.
Earle Waugh’s March 2006 primary expert report (Waugh Report) to March 27,
2006.
BACKGROUND
[2]
On March 26,
2004, Justice Hugessen set out the procedure for the exchange of expert
reports:
5.
All expert
reports for use at trial are to be served by July 15, 2004.
6.
Rebuttal
expert reports (which shall be limited to answering or contradicting any expert
reports produced by others) are to be served by October 29, 2004.
7.
Any other
expert reports may only be produced by leave of the Court obtained on prior
motion.
[3]
On October
25, 2005, the Plaintiffs advised that they would be seeking consent to serve
the Waugh Report in relation to “Nature’s Law.”
[4]
On March
27, 2006 the Plaintiffs served a copy of the Waugh Report on the Crown.
[5]
A copy of Dr.
Waugh’s curriculum vitae was attached to the Waugh Report..
[6]
In March
30, 2006, the Crown made a request of the Plaintiffs to designate the area of
expertise for which they intended to qualify Dr. Waugh. In addition, the Crown
advised that once provided with a statement of qualifications for Dr. Waugh,
the Crown would consent to the late service on the same terms and conditions
put forth by the Plaintiffs in respect of the late acceptance of Dr. von
Gernet’s methodology report.
[7]
The
conditions for acceptance of Dr. von Gernet’s methodology report were set out
in the Plaintiffs’ response to the Crown’s motion seeking leave to serve Dr.
von Gernet’s report. The conditions were:
a)
That the
Plaintiffs may file a rebuttal report within a reasonable time to be agreed
upon by the parties, failing which to be ordered by the Court;
b)
That the
Plaintiffs be entitled to make further representations to the Court in relation
to the effect the proposed report will have on the time required to properly
prepare for trial;
c)
That the
Court makes no finding at this time with respect to admissibility of the
proposed report, including in relation to issues of relevance, necessity,
exclusionary rules and qualifications of the proposed expert; and
d)
The
Plaintiffs reserve the right to object to the introduction of the proposed
report at trial on the basis of , inter alia, relevance, necessity, and
the existence of an exclusionary rule or the qualifications of the proposed
expert.
[8]
Having not received a
response to the March 30, 2006 letter, the Crown, again by letter of May 3,
2006, requested information regarding the area of expertise for which the
Plaintiffs proposed to have Dr. Waugh qualified. The Crown advised the
Plaintiffs of its concerns regarding adequate time to prepare a rebuttal expert
report if necessary.
[9]
On May 12, 2006, the
Plaintiffs advised the Crown that Dr. Waugh’s areas of expertise were set out in
his curriculum vitae, and that they sought consent for the late service
of the Waugh Report on the same conditions set for the admission of the Dr. von
Gernet methodology report.
[10]
At a May 19, 2006
trial management meeting, the Crown advised that it required some information
regarding how the Plaintiffs intended to qualify Dr. Waugh as the Waugh Report
contained comments and opinions in relation to “ethnohistory, law, linguistics,
and anthropology.” The Court summarized its understanding that “they [the Crown]
are asking for the information, the areas of expertise you [the Plaintiffs]
wish to use in Court so they can consider what they are consenting to.”
[11]
On June 2, 2006, I
directed the Plaintiffs to provide the Crown with the areas of expertise
proposed for Dr. Waugh.
[12]
On July 7, 2006, the
Crown advised the Plaintiffs of Dr. von Gernet’s areas of expertise in response
to the Plaintiffs’ request. The Crown stated:
Dr.
von Gernet is an anthropologist and ethnohistorian specializing in the use of
archeological evidence, written documentation, and oral traditions to
reconstruct the past cultures of Aboriginal peoples, as well as the history of
contact between Aboriginal peoples and European newcomers throughout Canada and
parts of the United States.
[13]
On July 11, 2006, the
Plaintiffs provided what they assert was a Statement of Qualifications for Dr.
Waugh.
[14]
On July 27, 2006, the
Crown expressed its concern about the Statement of Qualifications of Dr. Waugh because
of its lack of specificity. The Crown indicated that it would be impossible to
discern whether any particular statement of opinion set out in the Waugh Report
was being given under one, or more, of Dr. Waugh’s alleged areas of expertise.
The Crown was also concerned that, given the lack of specificity, it was
difficult to determine whether it was necessary to retain an expert rebuttal
witness.
[15]
On August 23, 2006,
the Crown again expressed concerns in respect of how the Plaintiffs intended to
qualify Dr. Waugh.
[16]
On September 8, 2006,
the Plaintiffs provided a proposal regarding the Crown’s acceptance of the late
service of the Waugh Report. The proposal contained terms which the Crown had,
tacitly, accepted on March 30, 2006.
[17]
The proposal did not
provide any information on how the Plaintiffs intended to qualify Dr. Waugh.
[18]
On September 11,
2006, the Crown advised that it was unable to accept the Plaintiffs’ proposal
in respect of the late service of the Waugh Report because it did not address
the Crown’s concerns as to how the Plaintiffs intended to qualify Dr. Waugh as
an expert.
ANALYSIS
[19]
The only real point
of contention between the parties is the areas of expertise for which the
Plaintiffs intend to qualify Dr. Waugh.
[20]
The Crown says it has
always been willing to accept late service of the Waugh Report provided the
Plaintiffs specify the areas of expertise they propose to qualify him in.
[21]
I have already
directed on June 2, 2006 that the Plaintiffs provide the Crown with the
proposed areas of expertise for Dr. Waugh.
[22]
The Plaintiffs
initially advised the Crown on May 12, 2006 that Dr. Waugh’s areas of expertise
were contained in his curriculum vitae. This was not really precise
enough for purposes of trial preparation and that is why I asked the Plaintiffs
to provide further details.
[23]
The Plaintiffs raise
no concerns with regards to the degree of specificity provided by the Crown in
relation to Dr. von Gernet.
[24]
The Plaintiffs say
they have complied with the Court’s direction of June 2, 2006 and refer to
their July 11, 2006 e-mail which attached the Statement of Qualifications for
Dr. Waugh.
[25]
The Plaintiffs say
that if the Statement of Qualifications provided by the Crown in relation to
Dr. von Gernet is compared with the Statement of Qualifications which they
provided to the Crown for Dr. Waugh, the Crown’s complaints about lack of
specificity are unfounded and the Statement of Qualifications for Dr. Waugh is
more detailed than those typically provided at trial.
[26]
I have read the
Statement of Qualifications for Dr. Waugh that the Plaintiffs provided on July
11, 2006. The problem with that statement, as well as the previously provided curriculum
vitae for Dr. Waugh, is that it is very wide in its scope and covers a
great many possible areas of expertise. This is why the Crown is asking the
Plaintiffs to make clear which of these many areas they will seek to qualify at
trial. Given the broad range of possibilities, the Crown’s request is not
unreasonable. It will allow the Crown to prepare adequately and may save
unnecessary time and expenditures. What is more, it would cost the Plaintiffs
little more than a letter to Crown listing the areas. The Crown has pointed out
that if one looks at Dr. Waugh’s curriculum vitae and the Statement of
Qualifications provided by the Plaintiffs, the following areas are possibilities:
a)
Family medicine;
b)
Cross-cultural
studies of health and healing;
c)
Comparative
literature;
d)
Philosophy;
e)
History;
f)
Religious studies;
g)
Comparative studies
in film and religion;
h)
Muslims and Islam in North America;
i)
Aboriginal traditions
and cultural studies;
j)
Indigenous religious
traditions;
k)
Anthropology;
l)
Ethnology;
m)
Traditional
Aboriginal beliefs systems of values and perspectives;
n)
Interpretation and
understanding of oral traditions;
o)
Linguistics;
p)
Traditional
Aboriginal laws and governance structures; and
q)
“Nature’s law” in
respect of traditional governance of indigenous peoples of Alberta.
[27]
Preparing to deal
with all of these possibilities could involve enormous amounts of time and
expenditure. And there is nothing that the Plaintiffs will lose from providing
this information other than surprise at trial. At the request of the
Plaintiffs, the Court has already made it clear to the Crown and the
Interveners that surprise at trial will not be tolerated. And as the history of
these proceedings has shown time and again, normal rules cannot be relied upon
and the Court must provide its own solutions to ensure this action comes to
trial in a fair and orderly manner.
[28]
If the Plaintiffs
have any problems with the degree of specificity provided by the Crown in
relation to Dr. von Gernet, they know they have only to raise the matter with
the Court, but they have not indicated any problems in this regard. So I cannot
understand why the Plaintiffs are so resistant to providing the clarification
for Dr. Waugh that I have already asked them to provide. It would cost so
little and could potentially save so much. Consequently, I think it is
reasonable that the Plaintiffs provide the information requested by the Crown as
a condition for an extension of time for serving Dr. Waugh’s report. In fact,
this motion was quite unnecessary and I see no reason why the Plaintiffs could
not have cooperated with the Crown to effect the same result.
ORDER
THIS COURT ORDERS that
1.
The
Plaintiffs will provide the Crown on or before October 13, 2006 with a clear
statement in writing regarding the intended areas of expertise for which they
will seek to qualify Dr. Waugh at trial. That statement will have sufficient
specificity to enable the Crown to determine the type of expert which may be
required to rebut the Waugh Report. It will list the areas of expertise with
the kind of detail found in paragraph 26 to the reasons for this order, and
will designate any other intended areas that are not identified in paragraph 26.
2.
If the
Plaintiffs fail to provide the statement in accordance with paragraph 1 above,
then Dr. Waugh will not be called as a witness.
3.
If the
Plaintiffs do provide a statement in accordance with paragraph 1, then, upon
their doing so, the date of service of the Waugh Report shall be extended to
March 27, 2006 subject to the following conditions:
a) the Crown may serve a rebuttal
report within a reasonable time to be agreed upon by the parties, but failing
agreement at a time to be ordered by the Court;
b) the Crown may make further
representations to the Court in relation to the effect of the Waugh Report on
the time required to properly prepare for trial;
c) the Court makes no finding at
this time with respect to admissibility of the Waugh Report, including in
relation to issues of relevance, necessity, exclusionary rules and
qualifications of the proposed expert;
d) the Crown retains the right to
object to the introduction of the Waugh Report at trial on the basis of, inter
alia, relevance, necessity, and the existence of any exclusionary rule or
the qualifications of the proposed expert.
4.
The Crown
shall have its costs of this motion. Because the Crown has always been prepared
to consent to the late filing of the report of Dr. Waugh on fair and reasonable
terms, and because the Court has already directed the Plaintiffs to provide the
information required, and because this motion would not have been necessary if
the Plaintiffs had behaved reasonably and provided a simple list of proposed
areas, the costs awarded to the Crown shall be payable immediately and in any
event of the cause.
“James Russell”
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