Date: 20070724
Docket: T-66-86
Citation: 2007 FC 768
Ottawa, Ontario,
this 24th day of July, 2007
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
THE
MOTION
[1]
The Crown has brought a motion in writing pursuant to Rule
369 of the Federal Court Rules, 1998.
[2]
The motion is for an order seeking advice and directions
as follows:
a)
Leave to
have the von Gernet Sur-Rebuttal Report entered as an exhibit at the trial of
these actions, and to have Dr. von Gernet testify in respect thereto; and
b)
Advice and
directions as to whether the Court prefers to have the von Gernet Sur-Rebuttal
Report entered as an exhibit and have Dr. von Gernet testify in respect
thereto:
1.
as part of
the Crown’s case, when Dr. von Gernet testifies in respect of the von Gernet
Primary Report; or
2.
in
sur-rebuttal, following the calling of Dr. Miller and the entering of the
Miller Rebuttal Report;
c)
A
direction that no further service of the von Gernet Sur-Rebuttal Report is
required as a pre-condition to its being entered as an exhibit at trial of
these conjoined actions; and
d)
Such
further and other relief as this Honourable Court deems just.
POSITION OF PARTIES
[3]
The Crown
says a sur-rebuttal report is required in this case because, in preparing his
primary report, Dr. von Gernet could not have anticipated the attacks upon his
erudition and scholarship that are contained in Dr. Miller’s rebuttal report,
and the proposed sur-rebuttal report meets the criteria for a proper sur-reply
set out in Eli Lilly Canada v. Apotex Inc., [2006] F.C.J. No. 1210 at
para. 24, and does not contravene the prohibitions set out in Halford v.
Seed Hawk Inc., [2003] F.C.J. No. 237 at paras 15-16.
[4]
The
Plaintiffs do not address the Crown’s assertion that Dr. Miller’s rebuttal
report attacks the credibility of Dr. von Gernet’s academic calibre and
criticizes his methodologies and research in ways not addressed in Dr. von
Gernet’s primary report, and in ways that could not have been anticipated in
the primary report.
[5]
The
Plaintiffs say, however, that it will be sufficient “to permit the primary
expert to comment on the rebuttal report during examination in chief” because
this is the approach that was taken regarding the Plaintiffs’ expert (Professor
Moore) in the first trial of these actions.
[6]
In
addition, the Plaintiffs say that the Crown’s motion is, in any event,
“premature, because the Court should consider all the circumstances and
evidence regarding Dr. von Gernet’s testimony once he is called by the Crown,
so that the Court can properly determine at that time whether Dr. von Gernet
should be allowed to provide any sur-rebuttal evidence.”
REASONS
[7]
I have
read the materials and the written submissions of the parties.
[8]
The Court
has already allowed the Crown to file a primary report and the Plaintiffs to
file a rebuttal report on the understanding that the Court was making no
findings regarding admissibility, or issues such as relevance, necessity,
exclusionary rules or qualifications, all of which are left for future
determination by the Court after hearing counsel. Allowing the Crown to enter
the sur-rebuttal report would, as the Crown concedes, be subject to the same
qualifications.
[9]
As the
Crown says, “it goes without saying that the admissibility of the Sur-Rebuttal
Report hinges on the admissibility of both Dr. von Gernet’s Primary Report and
Dr. Bruce Miller’s Rebuttal Report.”
[10]
So I see
no prejudice or unfairness to the Plaintiffs if the Crown is permitted to enter
the sur-rebuttal report subject to the same qualifications.
[11]
The real
issue is the timing of when Dr. von Gernet should speak to his sur-rebuttal
report, assuming it is admissible.
[12]
Because
the primary report and the rebuttal report are both subject to admissibility
arguments and findings, the logic would suggest that sur-rebuttal will not even
become an issue until such time as the Court has addressed admissibility for
both the primary report and the rebuttal report. And this in turn would suggest
that the need for sur-rebuttal may not arise unless and until the Court hears
from Dr. Miller anything that might give rise to sur-rebuttal in accordance
with the usual criteria.
[13]
In other
words, the Court is of the view that the spirit and intent of what has already
been established for the primary and rebuttal report dictates the logic and
fairness of what should occur with the sur-rebuttal report. The limited nature
of the sur-rebuttal means that it would only come into play if Dr. Miller’s
attacks on Dr. von Gernet’s qualifications and scholarship are established and are
found to be admissible, and the Court will not know this unless and until Dr.
Miller testifies.
ORDER
FOR THE REASONS GIVEN, THIS COURT ORDERS
that
1.
Subject to
paragraph 4 below the Crown is granted leave to serve and file the Sur-Rebuttal
Report and to have Dr. von Gernet testify in respect thereto;
2.
No further
service of the Sur-Rebuttal Report of Dr. von Gernet is required;
3.
Any
testimony that Dr. von Gernet may provide with regards to the Sur-Rebuttal
Report shall follow the calling of Dr. Miller and the entering of the Miller
Rebuttal Report and shall be dependant upon Dr. Miller’s testimony;
4.
The Court
makes no finding at this time regarding the admissibility of Dr. von Gernet’s
Sur-Rebuttal Report, and issues such as relevance, necessity, exclusionary
rules and qualification are left for future decision by the Court after hearing
counsel.
“James Russell”
FEDERAL
COURT
NAME
OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86-A
STYLE OF
CAUSE: SAWRIDGE BAND v. HER MAJESTY THE QUEEN ET AL
T-66-86-B
TSUU T’INA FIRST NATION
(formerly the Sarcee Indian Band) v. HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING:
REASONS FOR ORDER: RUSSELL J.
DATED:
APPEARANCES:
Edward
H. Molstad, Q.C. FOR PLAINTIFFS
Nathan Whitling
Catherine Twinn FOR
PLAINTIFFS
Wayne M. Schafer FOR
DEFENDANT
Janet Hutchison FOR
INTERVENER
CONGRESS
OF ABORIGINAL
PEOPLES
Derek A.
Cranna FOR
INTERVENER
Jeremy Taylor NATIVE
COUNCIL OF
CANADA
(ALBERTA)
Mary Eberts FOR
INTERVENER
NATIVE
WOMEN’S
ASSOCIATION
OF CANADA
Michael Donaldson FOR
INTERVENER NON- STATUS INDIAN
ASSOCIATION OF ALBERTA
SOLICITORS OF RECORD:
Parlee
McLaws LLP FOR PLAINTIFFS
Edmonton, Alberta
Twinn Law Office
Slave Lake, Alberta FOR
PLAINTIFFS
John
Sims FOR DEFENDANT
Deputy
Attorney General of Canada
Chamberlain
Hutchison FOR INTERVENER,
Edmonton,
Alberta CONGRESS OF ABORIGINAL
PEOPLES
Field
LLP FOR INTERVENER,
Edmonton,
Alberta NATIVE
COUNCIL
OF
CANADA (ALBERTA)
Law Office of Mary Eberts FOR
INTERVENER,
Toronto, Ontario NATIVE
WOMEN’S
ASSOCIATION
OF
CANADA
Burnet
Duckworth & Palmer LLP FOR INTERVENER,
Calgary, Alberta NON-STATUS INDIAN
ASSOCIATION
OF ALBERTA
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