Buffalo v. Canada, 2001 FCT 765, 2001 FCT 764

Date: 20010706

Docket: T-2022-89

T-1254-92

Neutral Citation: 2001 FCT 764

                                                                                                T-2022-89

BETWEEN:

CHIEF VICTOR BUFFALO acting on his own behalf and on behalf

of all of the other members of the Samson Indian Nation and

    Band and the SAMSON INDIAN BAND AND NATION

                                                                             Plaintiffs,

                                       - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE

     MINISTER OF INDIAN AFFAIRS AND NORTHERN

    DEVELOPMENT, AND THE MINISTER OF FINANCE

                                                                          Defendants,

                                       - and -

       CHIEF JEROME MORIN acting on his own behalf

as well as on behalf of all the MEMBERS OF ENOCH'S BAND

OF INDIANS AND THE RESIDENTS THEREOF ON AND

                OF STONY PLAIN RESERVE NO. 135

             AND EMILY STOYKA and SARA SCHUG

                                                                                           Intervenors.

                                                                            T-1254-92

AND BETWEEN:

CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation

                                                                              Plaintiffs

                                       - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

AND THE MINISTER OF FINANCE

                                                                           Defendants

                          REASONS FOR ORDER

Review of Crown Documents

Claimed as Subject to Solicitor-Client Privilege

MacKAY J.:

[1]              These Reasons concern the disposition of motions by counsel for the plaintiffs in these actions, T-2022-89 by the Samson plaintiffs and T-1254-92 by the Ermineskin plaintiffs, being tried together, for review by the Court of documents claimed by the defendants to be subject to solicitor-client privilege. The plaintiffs seek an Order for production of documents which the Court determines, upon its review, are not properly subject to the privilege claimed.

[2]              There is history behind these motions, traceable through decisions of this Court in case management of these actions and decisions of the Court of Appeal^[1]. A summary of that history is included in the decision of Madam Justice Desjardins writing for the Court of Appeal in the most recent of those decisions, Samson Indian Nation and Band v. Canada^[2]. It need not be repeated here.

[3]              Suffice it to say that this Court set out the basis for assessing claims that documents included in the extensive lists accompanying the defendants' affidavits of documents as subject to solicitor-client privilege, are or are not so subject in the special circumstances of these cases where the plaintiffs' claims arise from alleged breach by Her Majesty's servants of fiduciary duties owed to the plaintiffs. The basis for assessment was developed^[3] on the principles enunciated by the Court of Appeal in its 1995 decision^[4], and it was further elaborated on in relation to a sample of more than 100 documents selected for review by the parties^[5].

[4]              The basis for assessment and its elaboration in relation to the sample of documents was upheld by the Court of Appeal^[6]. In addition, it was the basis for review by counsel for the defendants (the "Crown"), in both actions, of all the documents previously claimed by the Crown as subject to solicitor-client privilege. Thereafter, documents deemed by the defendants as not subject to privilege, as a result of that review, were produced.

[5]              In the course of that review, a number of documents, originally claimed as subject to privilege, were determined by the Crown not to be relevant in these proceedings. Documents so assessed and the documents confirmed on review by the Crown to be subject to solicitor-client privilege were estimated in the spring of 2000, shortly before trial commenced, to number about 6000. Then, as the case management process was winding down, the plaintiffs asked that the documents then claimed as privileged be reviewed by the Court on a document by document basis. That is the process approved, for resolution of differences over claims of privilege, by the Supreme Court of Canada in Descôteau et al. v. Mierzwinski^[7].

[6]              Separate submissions were not made by the plaintiffs in support of their requests for review of the documents subject to the defendants' claims of privilege. Rather, the Court's review was undertaken in light of its recollection of the plaintiffs' submissions on all previous occasions when the matter of solicitor-client privilege was argued, submissions which are reflected summarily in the earlier written decisions of this Court and the Court of Appeal. In addition, the Court's review was undertaken with reliance on the elaboration of the application of the privilege in these cases, particularly as set out in this Court's decisions of March and September 1996^[8], upheld in effect by the Court of Appeal^[9]. Annex A includes terms of the Orders of March and September 1996, elaborating the basis for application of solicitor-client privilege claimed by the Crown. Finally, where there was doubt about the claims to privilege, this Court applied the principle set out in Descôteau, supra, that conflicting claims to privilege are to be resolved, absent any other clear choice, in favour of protecting confidentiality, i.e. upholding the claim.

[7]              In June and November 2000, and in April 2001, the Court received shipments of documents, from the defendants, assembled mainly in 65 binders. The spine of each binder bears a description of the documents it contains. The last shipment in April 2001, was of documents that were originally, but are no longer, claimed as subject to Cabinet privilege pursuant to s. 39 of the Canada Evidence Act, R.S.C. 1985 c. 5, as am. ("Act"). The statutory privilege, for a term of 20 years, established by s. 39(4) of the Act, has expired since the documents were originally claimed as privileged, and certain of those documents are now claimed as subject to solicitor-client privilege.

[8]              In addition to the documents received in binders, the Court received two documents under cover of a letter dated December 19, 2000, from counsel for defendants, requesting that those documents, claimed as subject to solicitor-client privilege, also be reviewed by the Court.

[9]              Having now completed review of all the documents received by the Court, mainly contained in the binders listed by the descriptions appearing on the spines of the binders as set out in Annex B, the Court now, by separate Order, directs production of those documents listed in the Order.

[10]             It should not be a surprise that relatively few documents among those examined are now ordered to be produced. After all, the Crown, as a party responsible to produce all relevant documents except those for which it claims privilege, has already determined the documents are privileged by its original classification, a determination now confirmed for many documents by its review of those originally claimed, in light of the principles and elaboration established by the Court's decisions of March and September 1996. Further, from my review of the documents remaining subject to the claim of privilege following review by counsel for the Crown, it is evident that in many cases there are copies of the same document, possibly produced from different sources, and in other cases they are drafts of essentially the same document. Thus, the number of separate documents, in the sense that each deals with a separate subject, or if they deal with the same subject, each document deals with it in a separate manner, is considerably less than the total number of documents.

[11]             Further, where the face or text of a document, presuming it is relevant, fails to clearly indicate that it is not subject to solicitor-client privilege, the claim to privilege has not been aside in accord with the principle set out in Descôteau, supra.

[12]             An Order now issues directing production of those documents determined not to be subject to solicitor-client privilege.

[13]             These Reasons and the Order now issued are equally applicable to the two actions, and a copy of each shall be filed on each of files T-2022-89 and T-1254-92.

                                                                        (signed) W. Andrew MacKay

________________________________

JUDGE

OTTAWA, Ontario

July 6, 2001.

Endnotes