Montana Band v. Canada, 2001 FCT 1306

Date: 20011127

Docket: T-617-85

                                                        Neutral Citation : 2001 FCT 1306

BETWEEN:

MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo,

Rema Rabbit, Carl Rabbit and Darrell Strongman,

suing on their own behalf and on behalf of all other members

of the Montana Indian Band, all of whom reside on the

Montana Reserve No. 139, in the Province of Alberta.

                                                                                                    Plaintiffs

                                                    - and -

                              HER MAJESTY THE QUEEN

                                                                                                  Defendant

                                                    - and -

SAMSON BAND, Chief Victor Buffalo, and Larron Northwest,

Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo,

Raymond Lightning, Stan Crane, Lawrence Saddleback,

Todd (Chester) Buffalo, Arnup Louis, Lester B. Nepoose,

Jim Omeasoo, and Robert Swampy, Councillors of the

Samson Band, sued on their own behalf

and on behalf of the members

of the Samson Band of Indians,

                                                                                           Third Parties

                                                    - and -

ERMINESKIN BAND, Chief Eddie Littlechild and Ken Cutarm,

Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee,

Arthur Littlechild, Richard Littlechild, Emily Minde,

Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe,

Councillors of the Ermineskin Band, sued on their

own behalf and on behalf of the members of the

Ermineskin Band of Indians.

                                                                                           Third Parties

                                                   - AND -

                                                                                     Docket: T-782-97

BETWEEN:

CHIEF FLORENCE BUFFALO acting on her own behalf

and on behalf of all the members of the

SAMSON CREE NATION AND BAND

- and -

THE SAMSON CREE NATION AND INDIAN BAND

                                                                                                    Plaintiffs

                                                    - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

and Her Majesty the Queen in Right of Canada as

represented by the MINISTER OF INDIAN AFFAIRS

AND NORTHERN DEVELOPMENT Parliament

Buildings, Ottawa, Ontario

                                                                                                Defendants

                                                   - AND -

                                                                                   Docket: T-2804-97

BETWEEN:

ERMINESKIN CREE NATION and Chief Gerald Ermineskin,

Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening,

Carol Margaret Wildcat, Carol Elizabeth Roasting,

Glenda Rae White, Craig Alton Makinaw, Councillors of the

Ermineskin Cree Nation, suing on their own behalf and on

behalf of the ERMINESKIN CREE NATION

                                                                                                    Plaintiffs

                                                    - and -

                          HER MAJESTY THE QUEEN and

                  THE ATTORNEY GENERAL OF CANADA

                                                                                                Defendants

                     REASONS FOR ORDER AND ORDER

HUGESSENJ.

[1]                 This is a motion brought pursuant to Rule 369 by the Crown defendant to force the plaintiffs Samson and Ermineskin to give further and better responses to certain written interrogatories and supplementary interrogatories. The action is in the final stages of a very long discovery process and the trial is now scheduled to begin in September 2002.

[2]                 Since the two plaintiffs are separately represented and the issues raised differ, it is appropriate to deal with them separately.

[3]                 First, with regard to Samson, the Crown is objecting to 91 answers that have been given under reserve of objection. Virtually all of those objections are based on the decision of the Alberta Court of Appeal in the case of Can-Air Services v. British Aviation Insurance Co. (1988), 91 A.R. 258 (Alta C.A.). I have previously in this case expressed some doubts as to the relevance of that decision to the circumstances of discovery here:[2000] 1 F.C. 267 (F.C.T.D.). I have also in this case previously indicated my opinion that where a question is answered under reserve of an objection, the final decision on that objection should be left to the trial judge if and when the matter is raised at trial. Questions answered under reserve are nonetheless answered and since the question of admissibility is always, in the final analysis, a matter for the trial judge, it is simply a needless waste of counsel's and the Court's time and energy to insist on arguing the matter at this time. I do not read Rule 95(2) as creating a right for the questioning party (although it may be otherwise for the party questioned) to insist on having the objection decided before trial:

[4]                 Second, the Crown takes issue with some 221 responses where Samson indicates that the source of its information is the "Samson Cree Nation Archival and Historical Research Department". They say that that answer is contrary to law and to an earlier Order in which I directed that, "Answers based on information (other than oral history) must state the source of such information": (19 July 2001), Calgary T-617-85 at para. 9 (F.C.T.D.). The Crown submits that Samson must reference the documents that form the source of the information and cannot simply say "according to our information". The Crown further objects to 23 instances where Samson responded by saying, "The Samson Cree Nation Archival and Historical Research Department's information is...". The Crown submits that it is inappropriate for Samson to qualify its answers in this way since the Department is not a party to the action and since they must identify their source. Those responses, they say, should be amended so that they are responses on behalf of Samson and so that they comply with my earlier Order.

[5]                 Samson, however, asserts that not all information is based on documentary evidence. They allege, on the one hand, that where information is based on or results from documentation, they have referred to the appropriate document. And on the other hand, where information is based on or results from knowledge gained in the community and through the years in a department at the Samson Cree Nation, the name of that department has been provided. In their view, no more can be said. Samson also responds by saying that all the answers provided are its answers and not those of the Department.

[6]                 While I agree that knowledge of a "department" of a Band is to be treated as knowledge of the Band itself and the answers given are given by the Band, which is the party to the action, it is my view that both categories of objection by the Crown are well taken. The questions properly sought the sources of the Band's information. To state that such source is a "department" of the Band itself is in effect to state "I know because I know". It is likewise with those answers which attribute information or knowledge to the "department": the department's knowledge or information is that of the Band and the source, whatever it may be, must be stated. The Band will be ordered to answer such questions properly.

[7]                 Third, the Crown takes issue with 15 responses where Samson has objected on the basis that the questions asked are questions of law. The Crown submits that the impugned questions merely ask Samson's position and that the Court has already dealt with this issue.

[8]                 All of these questions ask for Samson's position on a certain point and then ask them to state the facts upon which they rely. Many relate to the validity of an agreement or the legal effect of some action. I am not persuaded that any of the questions are genuine attempts to discern a position of the Band which is otherwise obscure or uncertain and some of them unabashedly require that a legal opinion be given. The following are particularly flagrant examples:

2 (f) It is your position that members of a band cannot release their interest in their band reserve? State the facts on which you rely.

56. With respect to your response to question 122, is it your position that all the criteria for Half-Breed Scrip are contained in the referenced documents? Do you adopt the contents of these documents? If these documents do not contain all the criteria for Half-Breed Scrip, please identify the other criteria and identify the sources of this information.

136. With respect to your response to question 257 and paragraph 40 of your statement of claim, is it your position that the surrender was invalid since it was not taken from the Samson Cree Nation or the Ermineskin Cree Nation? If so, why was it not necessary to take a surrender from the Bobtail members of Samson and Ermineskin? State all facts on which you rely.

I am satisfied that the disguise given to these questions of law is too transparent and no answer need be given to any of the questions in this group.

[9]                 Fourth, the Crown objects to 53 responses where Samson has replied that "this will be the subject matter of expert evidence." While the Crown concedes that a party is not required to disclose the evidence of its experts on discovery, it asserts that the information and facts on which the expert(s) may provide an opinion are subject to discovery. The Crown is concerned that, after discoveries have closed, if Samson decides not to call expert evidence on a certain point, its ability to discover on an issue would be taken away. The Crown also submits that these responses suggest that some of the facts that Samson has knowledge of will be disclosed through its experts. Samson, on the other hand, argues that its responses have been put in a proper context and that it has provided its information where any information is known.

[10]            This debate raises the familiar dichotomy between questions of pure fact and questions of history which may be the subject of opinion evidence. While a party cannot be compelled on discovery to reveal its experts' opinions, it must disclose all the facts and documents on which it is intended that those experts will be asked to give their opinions. Answers such as the ones here in question are clearly inadequate for they disclose no information whatsoever and simply state that the answer will be the subject of opinion evidence. If, as the Band argues, the expert opinions will be limited to those matters of fact set out in the surrounding questions, it has only to state so. The Band will be ordered to state the facts and sources on which its experts have been or will be asked to give their opinion.

[11]            I turn next to the Crown's motion as it relates to the plaintiff Ermineskin.

[12]            It would appear that the Crown asked 108 questions seeking admissions or denials from Ermineskin based on the pleadings of other parties. Ermineskin, in an unsworn set of answers, provided an unqualified answer to 60 of those questions and objected to the rest. Ermineskin's objection was upheld by me on July 19, 2001: supra, at para. 6. In the affidavit that it finally swore on October 2, 2001, Ermineskin qualified its 60 responses for the first time by stating that its answer was under reserve of objection. The Crown now takes issue with 33 of those answers. The Crown argues that at this point Ermineskin cannot object to the questions or withdraw any formal admissions save by application to the Court: Archambault v. Ministre du Revenu national (1998), 189 F.T.R. 37 (F.C.T.D.). Therefore, the Crown suggests that the time has passed for making legal objections and that Ermineskin should not be permitted to take back responses freely given after it has discovered that it failed to rely upon all legal arguments that were available. Ermineskin submits that its original responses were incomplete because they were unsworn and in draft form and that it was not until October, 2001 that it finally gave answers in proper form.

[13]            In my view, Ermineskin is not attempting to withdraw admissions for the answers do not contain any. The mere fact of answering a question to which one might have objected is not an admission that the question is proper. The Archambault decision is therefore of no relevance. Whether or not Ermineskin can now qualify previously unqualified answers by stating that such answers are now under reserve of objection does not have to be decided. The Crown has its answers to the questions and if and when it wishes to use them at trial the parties will be at liberty to argue whether or not the Band was foreclosed from objecting.

[14]            Second, the Crown takes issue with 27 responses which Ermineskin says seek an admission or denial of allegations made by a third party in its pleadings. The Crown argues that these are follow-up questions and that where Ermineskin provided an unequivocal answer to the original question, it cannot now refuse to answer the follow-up. In their submission, a party cannot refuse to answer a follow-up question that relates to an original answer on the basis that it could have or should have objected to the original question.

[15]            I fail to see the Crown's logic. It seems to me that the Crown is asking these questions precisely because it did not receive an admission or denial the first time around. But an improper question remains improper regardless of when it was asked and cannot be perfected merely by virtue of the fact that it arises from a previous response. The questions are all of a type which I have previously ruled to be improper and the Crown's motion fails in this respect.

[16]            As to costs, the Crown has enjoyed partial success against Samson and is entitled to costs which I would fix in the sum of $1,000. The Crown has had no success against Ermineskin and the latter is entitled to its costs which I fix in the amount of $1,500.

ORDER

1. Samson is ordered to correct its answers to questions from the Crown's Original Written Interrogatories numbered: 1, 3(a), 3(b), 3(c), 3(d), 3(f), 4, 5, 5(b), 5(c), 5(e), 5(f), 5(g), 6, 7, 11, 15(a), 15(b), 15(c), 15(d), 15(e), 15(f), 15(g), 15(h), 15(o), 23, 24, 25, 26, 30, 31, 34, 70, 80, 82, 83(i), 83(ii), 85, 86(i), 86(ii), 91, 97, 100, 107(i), 110, 112, 113, 117, 118, 128, 135, 136, 137, 138, 139, 147, 154, 156, 159, 162, 164(ii), 169(ii), 171, 173, 174, 175, 176, 178, 179, 180, 181, 182, 183, 184, 185, 186, 190(i), 194, 214, 226, 232(i), 232(ii), 261(i), 341, 342, 350, 351, 352, 353, 358, 365(i), 365(ii), 372(i), 377(i), 377(ii), 377(iii), 378, 382, 384, 391(i), 391(ii), 396(ii), 396(iii), 398(i), 398(iii), 398(iv), 398(v), 399(i), 399(ii), 399(iii), 400, 403, 405(i), 407(i), 408(ii), 410, 415(iii), 416(i), 419(i), 419(v), 423(i), 423(iii), 424(ii), 427(vi), 427(xii), 427(xviii), 430(xii), 433(ii), 456(i), 456(ii), 463, 464, 466, 487, 488, 489, 490, 491, 492, 493(i), 493(ii), 495, 513(ii), 514(i), 515(ii), 520, 522(i), 541, 542(ii), 542(iii), 542(iv), 543(i), 547(i), 548(ii), 548(v), 575, 583(i), 586(i), 588(i), 590(i), 592(i), 594(i), 596(i), 598(i), 600(i), 602(i), 604(i), 606(i), 608(i), 610(i).

2. Samson is ordered to correct its answers to questions from the Crown's Supplementary Questions numbered: 12, 66, 73(a), 80(a), 80(c), 87(a), 92, 93(a), 96, 103(a), 103(b), 152(b), 155(a), 157(a), 158, 159, 169, 170, 172, 176(a), 178, 179(a), 186(a), 187(a), 194, 198, 208(a), 209(a), 210, 212, 215(a), 225(a), 233(a), 235(a), 237(a), 240, 241(a), 250(a), 253(a), 275(a), 289(a), 307(b), 311(a), 332, 336(a), 337, 338, 347, 350, 382, 383(a), 4(d), 11(b), 15(b), 19, 26, 37(b), 60(b), 61, 78(a), 89, 97, 100(c), 116(b), 179(b), 179(c), 180, 197(d), 200, 236, 245, 260(b), 260(d), 261.

3. Samson is ordered to correct its answers to questions from the Crown's Supplementary Questions numbered: 4(a), 35(b), 35(c), 35(d), 36(b), 37(a), 38(a), 39(b), 42(e), 44(a), 44(b), 44(c), 44(d), 46, 50, 51(a), 51(b), 54(c), 54(e), 54(f), 54(g), 55(a), 57(a), 60(a), 71(d), 86(d), 94(a), 98, 99, 108(b), 124, 125, 126, 127, 152(b), 162(a), 162(b), 162(c), 174(a), 174(c), 229(b), 272, 273, 290, 291, 292, 293, 294(a), 294(b), 317, 400, 401, 403.

4. Samson shall pay costs to the Crown in the amount of $1,000 forthwith and in any event of the cause.

5. The Crown shall pay costs to Ermineskin in the amount of $1,500 forthwith and in any event of the cause.

                                  ______________________________________

                                                                                                           Judge                             

Ottawa, Ontario

November 28, 2001