Date:
20090421
Docket: A-154-08
A-112-08
Citation: 2009 FCA 123
CORAM: RICHARD C.J.
EVANS J.A.
SHARLOW
J.A.
Docket: A-154-08
BETWEEN:
SAWRIDGE BAND
Appellant
(Plaintiff)
and
HER MAJESTY THE QUEEN
Respondent
(Defendant)
and
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN’S ASSOCIATION OF CANADA
Respondents
(Interveners)
Docket: A-112-08
AND BETWEEN:
TSUU T’INA FIRST NATION
(formerly the Sarcee Indian Band)
Appellant
(Plaintiff)
and
HER MAJESTY THE QUEEN
Respondent
(Defendant)
and
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN’S ASSOCIATION OF CANADA
Respondents
(Interveners)
Heard at Ottawa, Ontario, on April 20 and 21, 2009.
Judgment
delivered from the Bench at Ottawa, Ontario, on April 21, 2009.
REASONS FOR JUDGMENT OF THE COURT BY:
SHARLOW J.A.
Date:
20090421
Docket: A-154-08
A-112-08
Citation: 2009 FCA 123
CORAM: RICHARD
C.J.
EVANS
J.A.
SHARLOW J.A.
BETWEEN:
Docket: A-154-08
BETWEEN:
SAWRIDGE BAND
Appellant
(Plaintiff)
and
HER MAJESTY THE QUEEN
Respondent
(Defendant)
and
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN’S ASSOCIATION OF CANADA
Respondents
(Interveners)
Docket: A-112-08
AND
BETWEEN:
TSUU T’INA FIRST NATION
(formerly the Sarcee Indian Band)
Appellant
(Plaintiff)
and
HER MAJESTY THE QUEEN
Respondent
(Defendant)
and
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN’S ASSOCIATION OF CANADA
Respondents
(Interveners)
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on April 21, 2009)
SHARLOW J.A.
[1]
These are
appeals of the decision of Justice Russell to dismiss the appellants’ action
and to award costs totalling approximately $1.7 million in favour of the Crown
and the other respondents (interveners at trial). That award includes a
substantial amount as increased costs in excess of full indemnity. The reasons
for dismissing the action are reported at 2008 FC 322. The reasons for the
costs award are reported at 2008 FC 267. The appellants are seeking a retrial.
[2]
Despite
the thorough and lengthy written and oral submissions of counsel for the
appellants, we can discern no error on the part of Justice Russell that
warrants the intervention of this Court. We do not consider it necessary to
discuss the grounds of appeal in detail. We will offer only the following
comments.
[3]
The dismissal of the
action was the end of the retrial of an action commenced on January 15, 1986.
The appellants were seeking an order declaring that certain amendments to the Indian
Act, R.S.C. 1985, c. I-5, breached the appellants’ rights under section 35
of the Constitution Act, 1982. The statutory amendments compelled the
appellants, against their wishes, to add certain individuals to the list of
band members. The appellants argue that the legislation is an invalid attempt
to deprive them of their right to determine the membership of their own bands.
[4]
The
first trial began in September of 1993 and ended with a dismissal of the action
on July 6, 1995 (Sawridge Band v. Canada (T.D.), [1996] 1 F.C. 3). That decision was
set aside by this Court on the basis of a reasonable apprehension of bias (Sawridge
Band v. Canada (C.A., [1997] 3. F.C. 580, application
for leave to appeal dismissed December 1, 1997). A new trial was ordered. It
began in January of 2007, after almost 10 years of procedural disputes and
delays.
[5]
The action
was dismissed again because, on January 7, 2008, the appellants informed
Justice Russell that they would not be calling further evidence. This was in
response to Justice Russell’s oral ruling on September 11, 2007 striking all of
the appellants’ past and future lay witnesses because of non-compliant
will-says. There being no case for the Crown to answer, the action necessarily
failed. The action was formally dismissed on March 7, 2008.
[6]
In
deciding to call no further evidence on the retrial, the appellants were not
abandoning the cause that led them to begin the action in 1986. Rather, they
chose to end the action when they did in order to challenge a series of rulings
made by Justice Russell precluding the appellants from eliciting any evidence
from lay witnesses that had not been disclosed in the will-says for those
witnesses, as well as the oral ruling on September 11, 2007. The appellants also
argue that Justice Russell’s conduct since his appointment as trial judge raises
a reasonable apprehension of bias.
[7]
It is not necessary
to recount the lengthy procedural history of this matter, which is described in
detail by Justice Russell. We note, however, that during the process of case
management and after the discovery process had become hopeless, Justice
Hugessen made an order requiring the appellants to produce will-say statements
for all lay witnesses proposed to be called at trial. In June of 2004, Justice
Russell found the appellants’ first attempt at will-says to be inadequate and ordered
new will-says (2004 FC 933). He found the second attempt also to be inadequate
(2004 FC 1436) and ordered a third attempt (2004 FC 1653). None of these orders
was appealed.
[8]
In November of 2005
Justice Russell made an order permitting the appellants to call 24 of their 57
potential lay witnesses, but prohibiting them from calling the other 33 because
of various failures to comply with the will-say orders (2005 FC 1476). The appellants’ appeal of
that order was dismissed (2006 FCA 228,
application for leave to appeal dismissed, February 8, 2007).
[9]
The
2006 interlocutory appeal
settled a number of issues. One was that the will-says were
intended to provide a substitute for oral discovery, which “the parties had
shown themselves incapable of conducting in a productive and focused manner”
(see paragraph 9 of the reasons of Justice Evans, speaking for the Court). Another was
that it was within
the discretion of Justice Russell not to permit witnesses to be called because
of the appellants' non-compliance with Court orders regarding the filing of
will-says (see paragraph 13 of the reasons of Justice Evans).
[10]
In
oral argument, counsel for the appellants argued that, despite the long history
of controversy about will-says and what would constitute a compliant will-say,
they were not aware when they prepared the third set of will-says that the
evidence they could elicit from a witness for whom a will-say had been served
could not include anything not set out in the will-say. Our review of
the record discloses
that the appellants should have been aware by the commencement of the retrial
that they could be precluded from adducing any evidence from a witness for whom
no compliant will-say had been produced, and that they could also be limited to
eliciting evidence disclosed in the will-say. If they were confused on those points, however, they
did little to clarify the situation when they indicated to Justice Russell
that, although they considered their will-says to be compliant with the
standard he had set, their ability to make their case would be compromised if
they were barred from eliciting any evidence from a witness that did not appear
in the will-say for that witness.
[11]
The
appellants’ equivocation when asked if their will-says were compliant led
Justice Russell to conclude that if the appellants could not adequately make
their case based on what was stated in the will-says, the will-says must
necessarily have been non-compliant. The appellants take issue with Justice Russell’s
interpretation of their submissions and his reasoning. However, based on our
review of the record, Justice Russell’s understanding of the
appellants' position, as expressed many times in his reasons, was reasonably
open to him.
[12]
In
our view, all of the orders and directions which the appellants now seek to
challenge were discretionary decisions made by Justice Russell in furtherance
of his obligation to control the trial process. He was required to discharge
that obligation in circumstances that became increasingly difficult because of
the appellants’ apparent reluctance to accept that a trial judge may exclude relevant
evidence on the basis that it was not properly disclosed in the discovery
process or, as in this case, will-say statements that were intended to stand in
the place of oral discoveries. A failure to make disclosures required by a
court order may and occasionally does result in the exclusion of relevant
evidence.
[13]
Finally,
without endorsing every statement made by Justice Russell in his voluminous
reasons, we find no factual foundation in the record for the appellants’
argument that there was a reasonable apprehension of bias on the part of
Justice Russell. On the contrary, we agree with the other panel of this Court
in the 2006 interlocutory appeal that, given the circumstances facing him,
Justice Russell displayed an appropriate mix of “patience, flexibility, firmness,
ingenuity, and an overall sense of fairness to all parties” (paragraph 22, per
Justice Evans).
[14]
We
express no opinion on the comments of Justice Russell to the effect that he
remains seized of matters relating to the possibility of proceedings against
appellants' former counsel for contempt of court or professional disciplinary
proceedings. No ground of appeal can arise in relation to those matters unless
and until Justice Russell makes an order or renders judgment.
[14]
[15]
The
Crown and other respondents have argued that this appeal is based largely on
debates that were decided against the appellants in prior proceedings, some
going so far as to say that the appeal itself is abusive. While there is some
force in this argument, on balance we have concluded that, after the action was
dismissed, it was open to the appellants to appeal the decision of Justice
Russell to strike the evidence of the witnesses. While we have concluded that
there is no merit in that appeal, it does not follow that the appeal itself is
an abuse of process.
[16]
As
to the appellants’ appeal of the costs awarded at trial, we are not persuaded
that Justice Russell erred in law or failed to exercise his discretion
judicially when he awarded increased costs as he did. In particular, having
considered the entire history of the retrial, we can detect no palpable and
overriding error in Justice Russell’s findings of misconduct on the part of the
appellants.
[17]
This
appeal will be dismissed with costs to the Crown and each of the other
respondents (interveners at trial) on the ordinary scale (that is, the
mid-range of Column III of Tariff B of the Federal Courts Rules). These
reasons will be placed in Court file A-154-08 and a copy will be placed in
Court file A-112-08.
"K. Sharlow"
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