Docket: T-2579-91
Citation: 2016 FC 890
Ottawa, Ontario, August 3, 2016
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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ROGER SOUTHWIND
FOR HIMSELF, AND ON BEHALF OF THE MEMBERS OF THE LAC SEUL BAND OF INDIANS
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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Defendant
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF ONTARIO
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Third Party
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and
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HER MAJESTY THE QUEEN IN RIGHT OF
MANITOBA
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Third Party
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ORDER
AND REASONS
[1]
The trial of this action is set to commence on
September 12, 2016, for 100 days. The Plaintiffs seek damages for the flooding
of their reserve lands in north-western Ontario and eastern Manitoba. They
claim loss of their land and the use of that land, as well as loss of hunting,
fishing and harvesting rights. The flooding was caused by the building of a
dam on Lac Seul in the 1920s for purposes of generating hydroelectric power.
[2]
The parties have worked co-operatively through
trial management conferences to reach agreement on many aspects of the conduct
of the trial. The parties agreed to prepare and submit a Joint Book of
Documents [JBD] and also agreed to have discussions with a view to reaching agreement
on the authenticity and truth of content of the nearly 7500 documents in the
JBD. The parties have been unable to reach an agreement and Canada has brought
a motion asking for an Order adopting its proposed agreement.
[3]
Notwithstanding that the Court has seen none of
these documents, it is appropriate to issue an Order as to authenticity and
admissibility of some of the documents in this action given (i) the number of
documents, (ii) the duration and complexity of the trial, and (iii) the fact
that most of the documents are ancient documents being more than 30 years old.
[4]
The Joint Trial Chart shows that some 20 expert
witnesses are expected to be called during the trial. In their expert reports,
they have cited documents in the JBD that are housed in a federal or provincial
archival repository [the Cited Archival Documents].
[5]
Canada has proposed, and the other parties
agree, that all Cited Archival Documents ought to be accepted into evidence as
authentic and for the prima facie truth of their contents. This is a
rebuttable presumption, and any party may make submissions as to the weight to
be given to any specific Cited Archival Document.
[6]
Another group of documents in the JBD are
documents the originals of which are housed in a federal or provincial archival
repository, but have not been cited by an expert. Canada proposes that these
documents also be accepted as authentic. However, Canada proposes that they may
only be entered into evidence through a witness or on consent of all the
parties.
[7]
Canada proposes that the exhibits entered and
marked at trial will be the Cited Archival Documents and all other documents
entered into evidence through a witness or by consent of all the parties. Following
the close of evidence, the documents in the JBD that have not been entered as
an exhibit shall be removed from the JBD, have no evidentiary value, and shall not
be relied upon by any party.
[8]
Ontario agrees with Canada’s proposal.
[9]
The Plaintiffs submit that all archival
documents produced by the parties, whether cited by an expert or not, ought to
be taken as authentic and admissible for the prima facie truth of their
contents, and made exhibits at the commencement of trial. They submit that “all Canadian archival documents should be admissible if they
relate to the subject matter of the claim” and argue that “a report does not enhance nor impact age, nature, provenance
nor reliability of the archival documents.” In
short, they take that position that there is no principled basis to distinguish
the treatment of the Cited Archival Documents and the other documents.
[10]
Manitoba notes that there are documents in the
JBD that are not housed in a government archive and it has proposed a variation
on Canada’s proposal. While it agrees with Canada’s proposal regarding Cited
Archival Documents, it submits that many of the other documents would be
admissible either as ancient documents or business records under the Canada
Evidence Act, RSC 1985, c C-5. It further notes that there are a number of
documents on which it intends to rely that are not housed in either a federal
or provincial archival repository. Specifically, it notes that there are records
held by Manitoba Hydro which may not be included in federal or provincial
repositories. It submits that these business records dealing with payments made
to Ontario power authorities should be accepted as evidence and marked as exhibits.
[11]
It further notes that there are a significant
number of documents that are documents relating to the Manitoba Natural
Resources Transfer Agreement [MNRTA], including letters and memoranda with
respect to it prepared by Canada, Manitoba, or Ontario. There are also a
number of documents related to the Lac Seul Storage Agreement [LSSA] including payments
made under the LSSA and the MNRTA, documents made by Canada, Manitoba, or
Ontario respecting payments over the 50 year amortization period of paragraph 8
of the MNRTA, documents created by Canada, Manitoba, or Ontario after 1980 respecting
further requests for payments under paragraph 8 of the MNRTA, governmental and
power authority documents related to a proposed new LSSA in the 1980s and
1990s, and correspondence between Canada and Manitoba respecting Canada’s
specific claims process and its request for a standstill agreement with
Manitoba with respect to claims brought by First Nations.
[12]
Manitoba proposes that all of this evidence
should be subject to the same terms as Cited Archival Documents. It submits
that these documents are as necessary and reliable as the Cited Archival
Documents and it notes that there is no living person to testify to the “vast majority” of them.
[13]
I have considered and weighted all the written submissions.
I am guided by a number of considerations.
[14]
First, the rationale underlying the admission of
historical documents rests on two principles: necessity and reliability: See Canada
(Minister of Citizenship and Immigration) v Seifert, 2006 FC 270 [Seifert]
at para 7 and the decisions cited therein. As regards most if not all of the
documents in the JBD, they are historical and there is no-one who has knowledge
of them and can testify as to their authenticity and the truth of their
content. Accordingly, necessity has been made out. The question becomes
whether they are reliable.
[15]
All parties accept the reliability of the Cited
Archival Documents. This Court in Canada (Minister of Citizenship and
Immigration) v Fast, 2003 FC 1139 [Fast] at para 36 stated that
documents relied on by experts are prima facie reliable:
So, as a general rule, it is my view that
proof of the reliability of the documents is supplied by the fact that
professional historians have relied upon them in coming to the conclusions which
they have put before the Court. This does not preclude a challenge to
particular documents, or classes of documents. Furthermore, the question of
weight is always an issue. Consequently, I am prepared to receive archival
documents in evidence in proof of their contents where the reliability of the
documents for that purpose is asserted, implicitly or explicitly, by a
professional historian or other witness whose familiarity with the documents
permits them to make such an assertion.
[16]
In Seifert, Justice O’Reilly held that
historical documents “authored by persons who were
responsible for the stewardship of the Canadian government at the very highest
levels – at Cabinet and at the upper echelons of the bureaucracy” should
also be accepted prima facie to be reliable. In doing so, Justice O’Reilly
observed that he had “been given no reason to suspect
that the authors were mistaken or motivated by a desire to mislead.”
[17]
My understanding is that all or most of the documents
in the JBD that are other than Cited Archival Documents were generated by
persons within one of the governments involved in this action or by the
Plaintiffs or persons retained by or acting on their behalf. Some may not have
been at the “highest level”. However, unlike in
Seifert, I have seen none of these documents and it is premature to make
a blanket ruling of the sort sought by the Plaintiffs or Manitoba.
Nonetheless, if there is no agreement on the admissibility of these documents,
a mechanism must be made available to have them entered under the rationale in Seifert,
if it is warranted.
[18]
I am cognisant that this and other courts have
adopted a flexible approach to the rules of evidence in aboriginal cases. I
accept the submission of the Plaintiffs in paragraph 21 of their memorandum:
In the context of Aboriginal rights
litigation, the “ancient documents rule” is now applied in conjunction with a
necessity and reliability analysis. Document that are more than 30 years old
are – in the absence of suspicious circumstances – said to “prove themselves:”
citing Sopikna et al, The Law of Evidence in Canada, Fourth Edition, at
para 18.102, and see also Sawbridge Band v Canada, 2004 FC 1721.
[19]
For these reasons, I will render an Order as to
the authenticity and admissibility of the documents in the JBD that lies between
that sought by Canada and that proposed by the Plaintiffs and Manitoba. I
reiterate for the benefit of all parties the proviso stated by Justice O’Reilly,
at paragraph 9 of Seifert:
I must emphasize that, where I have ruled a
document admissible as evidence of the truth of its content, this does not
necessarily mean that I take a particular fact as having been proved. At this
stage, I am simply deciding whether a document constitutes admissible
evidence. It is only at the end of the case, based on the whole of the
evidence, that I will decide the facts.
[20]
Although the Order as to authenticity and
admissibility will provide that many of the documents in the JBD be entered at
the commencement of trial as an exhibit, a mechanism will be provided to permit
a party to subsequently seek an Order admitting a document as an exhibit
without the need to call a witness to speak to it, and a mechanism will also be
provided to permit the Court to remove any specific document if a party successfully
challenges its authenticity or admissibility.
[21]
I am cognisant of the concerns Canada expressed
relating to the proposal to mark every document in the JBD as an exhibit at the
commencement of trial. It says that such a process “fails
to provide the trial judge with a useful and meaningful record and is unfair to
the parties especially where they may be taken by surprise during closing
arguments.”
[22]
If a party relies on a document with no context
or little relevance to the issues, it is not likely to find much favour with or
be given any weight by the Trial Judge. I agree with Canada that the parties ought
to provide the Trial Judge with a useful and meaningful record. It is
certainly open to any party in oral submissions to submit that such a document relied
on without context, where some is required, ought to be given little or no
weight. However, in the end, the weight to be given any document will depend
on all of the circumstances, including the nature of the document at
issue.
[23]
I also note Canada’s concern regarding surprise
at the conclusion of trial as to documents to be relied on in oral
submissions. I question whether any surprise can realistically be said to be
possible. This action has been proceeding for decades, and it is difficult to accept
that the use any party may make of any of the documents - especially as they
relate to events that occurred last century – can take anyone by surprise.
[24]
The Trial Chart provides that all parties will
prepare and exchange written submissions after the close of the evidence phase
of the trial. As part of that process the Court asks each party to include a
list of the exhibits on which it intends to rely. There will thus be no
surprise during the oral submissions.
ORDER
This Court Orders that the admissibility and authenticity
of the documents in the Joint Book of Documents of the parties shall be dealt
with in the following manner:
Joint Book of
Documents:
1.
As a matter of convenience, the parties shall
compile a Joint Book of Documents [JBD] comprised of all documents produced
prior to the start of trial by any party in this action.
2.
The documents in the JBD will be sequentially
numbered in chronological order.
3.
Where multiple copies of a document have been
produced, the parties will make reasonable efforts to ensure that the JBD
contains only the best available copy of the document.
4.
An electronic version of the Joint Book will be
available at trial, pursuant to the e-trial plan attached to the Order of Mr.
Justice Zinn dated June 15, 2016.
5.
The inadvertent inclusion of a privileged
document in the JBD is not a waiver of privilege over the document, but any
claim of privilege must be made before the document is entered and marked as an
exhibit.
Cited
Archival Documents:
6.
For the purposes of the trial, subject to the
terms of this Order, any document cited and relied on by the parties’
respective experts, the original of which is housed in a federal or provincial
archival repository, is authentic and admissible into evidence [Cited Archival
Documents]. The parties shall agree on a list of the Cited Archival Documents
and they shall be entered as exhibits in chronological order at the
commencement of trial.
7.
In order to compile the documents that
constitute the Cited Archival Documents, the Parties shall:
- exchange their lists, in an agreed upon
format, of Cited Archival Documents, including reference to the experts’
reliance on the documents, within seven (7) days of the date of this
Order; and,
b.
within ten (10) days thereafter, Canada will
compile a list of all of the Cited Archival Documents.
Other documents in the JBD
8.
The remaining documents in the JBD are either:
a.
a document that is more than 30 years old which
is not cited and relied on by the parties’ respective experts and was not
prepared for the purposes of this litigation, but which is housed in a federal
or provincial archival or record repository [Non-Cited Archival Documents]; or
b. a document that is neither a Cited Archival Documents nor a Non-Cited
Archival Documents [Remaining JBD Documents].
9.
For the purposes of the trial, unless prior to
trial a party raises any question as to its authenticity, each Non-Cited
Archival Document will be accepted as authentic and is potentially admissible
into evidence. On or before September 3, 2016, each party shall prepare and
exchange with the others a list of the Non-Cited Archival Documents that it
agrees should be entered as an exhibit. The parties shall agree on a list of
the Non-Cited Archival Documents agreed upon by all parties in this manner and
they shall be entered as exhibits in chronological order at the commencement of
trial.
10.
On or before September 3, 2016, each party shall
prepare and exchange with the others a list of the Remaining JBD Documents that
it agrees are authentic and should be entered as an exhibit. The parties shall
agree on a list of the Remaining JBD Documents agreed upon by all parties in
this manner and they shall be entered as exhibits in chronological order at the
commencement of trial.
11.
For the purposes of trial, any document in the
JBD that has not been marked as an exhibit at the commencement of trial in
accordance with the process described above, may subsequently be accepted and
entered as an exhibit if it is identified by a witness called to testify at the
trial, or upon successful motion by a party to be made prior to the close of
its case, unless otherwise agreed to by the Trial Judge, to have the document
entered as an exhibit, without the need to have a witness speak to it.
Authentic Documents
12.
Subject to the exceptions outlined in this Order,
“authentic” means, to the extent applicable to any particular document, that:
a.
the document was authored by the person or
entity by whom it appears to have been authored;
b.
the document is a true copy of the original
document and was printed or signed as it purports to have been;
- the document was made on or about the
date it appears to have been made or was sent on or about the date it
appears to have been sent and was received within a reasonable period of
time after its date; and
d.
the document was received by the person or
entity to whom it appears it was sent.
13.
Notwithstanding the foregoing, any party may
lead evidence or challenge that a document is not authentic, should the party
have formed that view. A party who intends to dispute the authenticity of a document
shall provide as much advance notice of its intention, including particulars of
the challenge, as is reasonably possible.
14.
The following exceptions shall apply to documents
that are handwritten:
a.
the authenticity of handwritten notes and records
must be proven by a witness unless otherwise agreed;
b.
experts may attest as to the most likely author
of a handwritten document, and this evidence may be contradicted by other
evidence, including expert testimony;
c.
where a transcription is included in the JBD, it
is not agreed that the transcription is necessarily accurate in every respect,
and it is open to any party to challenge the accuracy of the transcription
based on the original document or on other evidence or argument; and
d.
handwritten documents that the Court concludes
are illegible shall have no evidentiary value.
15.
Subject to the other terms of this Order, unless
the Trial Judge rules that a document is not authentic, it may be entered as an
exhibit and used at trial for the prima facie truth of its contents,
recognizing that such evidence is rebuttable and that the evidence offered by
any such document will be considered in light of evidence provided by the
witnesses and other documents.
16.
Notwithstanding the foregoing, any party may:
a.
lead evidence to contradict, supplement, qualify
or contextualize the substance of any document, or of any part of a document;
and
b.
make any argument as to the interpretation,
relevance, reliability or weight of any document.
17.
Nothing in this Order shall:
- restrict the right of any party to
tender proof of any fact by filing additional documents or through other
evidence permitted by the evidentiary rules or order of the Court; or,
b.
restrict the right of any party to tender
documents in any manner that might be permitted if the Order had not been made.
Exhibits
18.
Subject to the other terms of this Order, a
separate agreement of all Parties, or the Court ordering otherwise, the
following documents shall be entered and marked as exhibits at trial:
(a)
Cited Archival Documents pursuant to paragraph 6
hereof;
(b)
Non-Cited Archival Documents pursuant to
paragraph 9 hereof;
(c)
Remaining JBD Documents pursuant to paragraph 10
hereof;
(d)
other JBD documents subsequently accepted as
exhibits pursuant to paragraph 11 hereof;
(e)
documents entered into evidence through a
witness; and
(f)
documents entered into evidence by way of
consent of all parties.
19.
Only documents entered and marked as exhibits at
trial are evidence.
20.
Any document that has not been entered and
marked as an exhibit during the trial will:
a)
have no evidentiary value;
b)
shall not be relied on by any party; and,
c)
shall be removed from the JBD at the close of
the evidentiary portion of the trial.
21.
This Order applies to all documents included in
the JBD as of the commencement of trial. Any documents added after the
commencement of trial will be subject to this agreement only if the Court
Orders or all parties agree.
22.
This agreement does not prevent the parties from
entering into any subsequent agreement on the authenticity and/or admissibility
of any other document or groups of documents.
23.
Each party will prepare and exchange written
submissions after the close of the evidence phase of the trial and as part of
that process each party shall include a list of the exhibits on which it
intends to rely.
"Russel W. Zinn"
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