Docket: T-195-92
Citation:
2016 FC 733
Toronto, Ontario, June 29, 2016
PRESENT: The Honourable Mr. Justice Mandamin
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BETWEEN:
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ALDERVILLE INDIAN BAND NOW KNOWN
AS MISSISSAUGAS OF ALDERVILLE
FIRST NATION, AND GIMAA JIM BOB
MARSDEN, SUING ON HIS OWN BEHALF
AND ON BEHALF OF THE MEMBERS OF
THE MISSISSAUGAS OF ALDERVILLE
FIRST NATION
BEAUSOLEIL INDIAN BAND NOW KNOWN
AS BEAUSOLEIL FIRST NATION, AND
GIMAA RODNEY MONAGUE, SUING ON
HIS OWN BEHALF AND ON BEHALF OF
THE MEMBERS OF THE BEAUSOLEIL
FIRST NATION
CHIPPEWAS OF GEORGINA ISLAND
INDIAN BAND NOW KNOWN AS
CHIPPEWAS OF GEORGINA ISLAND FIRST
NATION, AND GIMAANINIIKWE DONNA
BIG CANOE, SUING ON HER OWN BEHALF
AND ON BEHALF OF THE MEMBERS OF
THE CHIPPEWAS OF GEORGINA ISLAND
FIRST NATION
CHIPPEWAS OF RAMA INDIAN BAND NOW
KNOWN AS MNJIKANING FIRST NATION,
AND GIMAANINIIKWE SHARON STINSON-
HENRY, SUING ON HER OWN BEHALF
AND ON BEHALF OF THE MEMBERS OF
THE MNJIKANING FIRST NATION
CURVE LAKE INDIAN BAND NOW KNOWN
AS CURVE LAKE FIRST NATION, AND
GIMAA KEITH KNOTT, SUING ON HIS
OWN BEHALF AND ON BEHALF OF THE
MEMBERS OF THE CURVE LAKE FIRST
NATION
HIAWATHA INDIAN BAND NOW KNOWN
AS HIAWATHA FIRST NATION, AND
GIMAANINIIKWE LAURIE CARR, SUING
ON HER OWN BEHALF AND ON BEHALF
OF THE MEMBERS OF THE HIAWATHA
FIRST NATION
MISSISSAUGAS OF SCUGOG INDIAN BAND
NOW KNOWN AS MISSISSAUGAS OF
SCUGOG ISLAND FIRST NATION, AND
GIMAANINIIKWE TRACY GAUTHIER,
SUING ON HER OWN BEHALF AND ON
BEHALF OF THE MEMBERS OF THE
MISSISSAUGAS OF SCUGOG ISLAND
FIRST NATION
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN
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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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ORDER AND REASONS
[1]
Pursuant to the May 3, 2016 oral direction, the
Plaintiff First Nations seek leave to introduce the April 18, 2016 Reply Report
of Dr. J. Michael Thoms, as redacted and re-filed on June 3, 2016, written in
response to the Report of Dr. Gwen Reimer regarding the honour of the Crown.
[2]
The Defendant Canada submits Dr. Thoms’ Report
is an attempt to reiterate, rehabilitate and expand on evidence he has already
given in the proceedings. Canada says Dr. Thoms uses this report to articulate
a distinct argument that the Crown has failed to uphold the honour of the Crown
in its failure to implement the pre-confederation treaties. In doing so Dr.
Thoms again covers ground presented in his original evidence or ties new
evidence to his previous evidence to buttress arguments previously made.
[3]
Canada submits the First Nations must meet the
test for re-opening their case. Since the First Nations’ application was by way
of an abbreviated motion unaccompanied by evidence other than this new report
and the trial record, Canada’s position is that the Court can determine the
matter of leave only if the Court also implements mitigative measures.
Otherwise a full motion based on an evidentiary record is required.
[4]
The Third Party Ontario does not object to the
Court determining the First Nations application on the basis of the materials
filed in the abbreviated motion. Ontario characterizes Dr. Thoms’ Report as a
response on the honour of the Crown rather than a reply to Dr. Reimer’s report.
Ontario submits that its willingness not to oppose the Court granting leave
subject to appropriate measures to mitigate any prejudice that might arise on
the filing of Dr. Thoms’ Report.
[5]
In the main, I agree with Ontario’s submissions
for the reasons that follow. I will grant leave to the First Nations to file
Dr. Thoms’ Reply Report with appropriate mitigative measures as set out below.
I.
Background
[6]
The First Nations introduced the issue of the
honour of the Crown in the Sixth Further Statement of Claim in October 2013.
This amendment, introduced mid-trial, was occasioned by the Supreme Court of
Canada’s decision in Manitoba Metis Federation Inc. v Canada, 2013 SCC
14, which effectively decided that a failure to uphold the honour of the Crown
could be a basis for a cause of action.
[7]
In their motion for leave to amend their
statement of claim to incorporate a claim of a failure to uphold the honour of
the Crown, the First Nations stated their evidence in relation to their claim
of Canada’s breach of its fiduciary obligations also constituted the evidence
they were advancing in relation to the new claim that Canada failed to uphold
the honour of the Crown in its negotiation and signing of the 1923 Williams
Treaties. They advised they did not intend to call further new evidence in
support of the allegation relating to a failure to uphold the honour of the
Crown.
[8]
Notwithstanding the First Nations’ statement that
they did not intend to call further evidence on the issue of the honour of the
Crown, both Canada and Ontario elected to produce expert reports on the issue
of the honour of the Crown. Canada advised it commissioned a new expert report
by Dr. Paul McHugh. This report has not yet been provided to the other parties
or the Court. Ontario commissioned Dr. Reimer to also produce a new expert
report on the honour of the Crown. Dr. Reimer’s report was filed May 25, 2015.
[9]
Following the filing of Dr. Reimer’s report on
the honour of the Crown on May 25, 2015, the First Nations advised the Court
they anticipated filing Dr. Thoms reply by October 1, 2015. Subsequently, they
revised that advice to December 2015.
[10]
Although witnesses have been heard out of order
to advance the trial process of hearing evidence, both Canada and Ontario had
insisted they could not proceed with their principal liability witnesses unless
the First Nations closed their case. Accordingly, the First Nations, after
reiterating their intention to file a reply report by Dr. Thoms, closed their
case on April 8, 2016. The First Nations finally provided Dr. Thoms’ Report to
Canada and Ontario on April 19, 2016.
[11]
After hearing submissions on the issues arising
in trial management on May 3, 2016, I directed the First Nations to apply for
leave to file the Dr. Thoms’ Report by way of an abbreviated motion, with the
initial question being whether the application for leave to file should be by
way of a full motion.
II.
Issues
[12]
In my view, the issues are as follows:
a)
Is a full motion necessary?
b)
How is Dr. Thoms’ Report to be regarded?
c)
Should leave be granted to file the Thoms’
Report?
d)
What mitigative measures, if any, are necessary?
III.
Analysis
A.
Is a Full Motion Necessary?
[13]
I am of the view that a full motion is not
required to address the First Nations application for leave to file Dr. Thoms’ Report.
The First Nations signalled their intention to have Dr. Thoms reply to Dr.
Reimer’s Supplemental Report while their case was open. They closed their case
as part of the measures to keep this proceeding moving, having regard to the
looming limitation of judicial resources available to complete this trial.
[14]
The First Nations counsel has said the very long
delay in producing the report related to Dr. Thoms’ health issues but counsel
did not offer evidentiary support for this question. However, Dr. Thoms’
earlier testimony had been delayed or interrupted for health reasons. Neither
Canada nor Ontario have chosen to directly challenge the representations on
this point by counsel for the First Nations. Accordingly, I will accept the
explanation proffered for the delay.
[15]
The parties have had adequate notice of the
abbreviated motion concerning the application for leave to apply. Dr. Thoms’
Report was provided to Canada and Ontario on April 19, 2016. I had provided a
direction on the way of proceeding on May 3, 2016. The abbreviated motion was
heard on May 19, 2016.
[16]
I also find that the information available in
the reports by Dr. Reimer and Dr. Thoms together with the trial record is
sufficient to assess the usefulness of Dr. Thoms’ Report without the need for
additional affidavit evidence. Any prejudice to Canada or Ontario can be
addressed in the mitigative measures I will discuss later in these reasons.
[17]
Given the length and complexity of this
proceeding, it was appropriate that the application for leave be addressed in
an abbreviated motion. Rules 3, 53, and 55 provide me with sufficient
discretion for proceeding by way of the abbreviated motion. I will consider the
First Nations’ application for leave to file Dr. Thoms’ Report on the basis of
the material before me.
B.
How is Dr. Thoms’ Report to be Regarded?
[18]
The First Nations had represented the Dr. Thoms’
Report would be in the nature of a reply which suggests that the report would
be advanced in the course of the reply phase of the First Nations’ case. Dr.
Thoms titles his report as a ‘Reply Report’. However, in their submissions,
the First Nations describe the report as a ‘Rebuttal Report’.
[19]
Dr. Thoms Report is more in the nature of the
First Nations’ resiling from their statement that they did not intend to call
evidence on the allegation of a failure to uphold the honour of the Crown.
Instead of merely disputing the factual evidence offered in Dr. Reimer’s
Supplemental Report, Dr. Thoms is advancing an alternate approach to assessing
whether the honour of the Crown has been upheld. While Dr. Reimer focussed on
the process by which the Crown’s officials entered into pre-confederation
treaties, asking whether the Crown properly adhered to its procedures established
for treaty making, Dr. Thoms looks to whether the Crown fully implemented the
pre-confederation treaties entered into with the First Nations.
[20]
In advancing his alternate approach, Dr. Thoms
goes over his previous evidence relating to the allegation of breach of fiduciary
duties but now does so through the lens of the alleged failure to uphold the
honour of the Crown.
[21]
The First Nations initially chose not to call
evidence on the honour of the Crown, only deciding it was necessary to do so
when Ontario produced Dr. Reimer’s Supplemental Report on the topic. Since Dr.
Thoms does introduce an alternate theory on the honour of the Crown with new
evidence coupled with references to his previous evidence, his report is in
response rather than in reply. Such would have been ordinarily introduced in
the course of the First Nations’ main case rather than in reply.
[22]
The result of the First Nations’ choice not to
lead on the topic of the honour of the Crown is that Ontario leads off on the
subject and gets to further reply after the First Nations’ response. This is
the consequence of the First Nations’ election in this matter.
[23]
Canada and Ontario identified Dr. Thoms’
references to his earlier testimony as problematic. Canada characterizes Dr.
Thoms’ repetition as an attempt to rehabilitate his evidence after cross
examination. Dr. Thoms appears to have meticulously identified wherever he
makes statements that relate to his previous testimony. I should think those
references are of assistance should Canada or Ontario wish to cross examine on
those references.
[24]
Ontario has proposed Dr. Thoms not repeat any
previous testimony. The references to his previous testimony contained
within Dr. Thoms’ Report should remain but not be reiterated in any examination
in chief. However, he should be allowed to respond if the references are
raised in cross examination.
[25]
Considering the foregoing, I agree with Ontario
that Dr. Thoms’ Report must be considered part of the First Nations’ case.
C.
Should leave be granted to file Dr. Thoms’
Report?
[26]
The First Nations say they must have the
opportunity to respond meaningfully to expert evidence of the opposing parties,
especially having regard to the fact that Dr. Reimer’s report was filed after
the conclusion of testimony by the First Nations’ corresponding experts, Mr.
Morrison and Dr. Thoms.
[27]
The issue of an allegation to fail to uphold the
honour of the Crown is relatively new in Canadian jurisprudence. The concept
of the honour of the Crown first arose in R v Taylor and Williams,
[1981] 3 CNLR 114, in 1982. In that case it was used as an aid in the
interpretation of an 1818 Indian treaty, one of the First Nations’
pre-confederation treaties. The principle was more closely examined in R v
Badger, [1996] 1 S.C.R. 771, in 1996 where it was held to be a fundamental feature
of Crown - First Nations treaty relations. The concept was reinforced in Mikisew
Cree First Nation v Canada, 2005 SCC 69, in 2005 where it was
related to post treaty relationships between the Crown and the First Nation in
question. It received its most recent examination in Manitoba Metis
Federation in 2013 where the Supreme Court of Canada set out the honour of
the Crown as central in the overall context of Crown-Aboriginal relationships.
[28]
While the First Nations initially took the
position that they would rely on the evidence they were leading in support of
the breach of fiduciary duties, the choice by Ontario to commission Dr. Reimer
to provide an expert report on the honour of the Crown reopened the door for
the First Nations to respond with Dr. Thoms’ Report. As I have already noted,
the approach adopted by the First Nations results in Ontario being entitled to
reply to Dr. Thoms’ Report.
[29]
The issues arising with respect to the honour of
the Crown are important and must, in my view, be addressed fully in evidence
and, ultimately, in submissions grounded in evidence. I am satisfied that the
issues involving the honour of the Crown necessarily require examination of the
facts involved. In this regard, I am assisted by receiving evidence from the Parties
on this important question.
D.
Other Issues
[30]
Ontario raises issues with Dr. Thoms’ resorting
to the original Haldimand records, which comprise some 90,000 original
documents. Dr. Reimer had referred to the Haldimand records but relied in the
main on secondary sources. It is for the expert witnesses to decide how they
would access historical documents, either by relying on secondary sources
considered to be reliable or by examining original source documents. In any
event, neither Dr. Reimer nor Dr. Thoms are canvassing the entirety of the Haldimand
documents. Both focus in on a select range of documents relating to matters
they consider significant. In any event, the mitigative measures on timing
would address any prejudice arising by Dr. Thoms’ use of primary documents.
[31]
Both Ontario and Canada object to passages in
Dr. Thoms’ Report which they consider to be legal opinion. Ontario helpfully
identified those specific passages to which they had objection.
[32]
The First Nations volunteered to review the
Report with Dr. Thoms and redact any passages that may be at controversy. Dr.
Thoms’ redacted Report is now filed. All but one of the passages objected to have
been either redacted or reworded. The remaining passage can be addressed after
that matter comes under cross-examination.
E.
Mitigative Measures
[33]
Given the late production of Dr. Thoms’ Report
after the closing of the First Nations’ case, I agree that mitigative measures
are necessary to offset any prejudice.
[34]
Canada proposes if leave is granted, appropriate
responsive mitigative measures are required to adjust the trial process to the
real impact of introducing Dr. Thoms’ Report. Canada submits the Parties
should confer on scheduling and the Court make available a prothonotary as a
facilitator. Failing agreement, the prothonotary would prepare a report for
the Court.
[35]
I do not see any advantage in making available a
prothonotary to facilitate the Parties working out scheduling. The legal and judicial
resources available for this extensive trial are limited and referring the Parties
to a prothonotary merely diverts the Parties’ efforts away from moving on with
the trial.
[36]
I agree with the approach proposed by Ontario.
In particular Ontario proposed that Dr. Thoms:
a. testify before Dr. Reimer and Mr. Dewhurst;
b. not be permitted to repeat any testimony he addressed previously.
I agree with both
these propositions.
[37]
Canada had speculated Dr. Thoms may have to be
on the stand as much as twenty days. I consider that to be excessive. Ontario
also submitted Dr. Thoms examination in chief be not more than four days. The
First Nations had offered to forego examination in chief and simply present Dr.
Thoms for cross-examination by Canada and Ontario. Both Canada and Ontario
considered the First Nations offer as feasible.
IV.
Conclusion
[38]
I consider it appropriate to grant the First
Nations request:
a. dispensing with the requirements of a full motion.
b. granting leave to file Dr. Thoms’ Report.
c.
granting leave to include Dr. Thoms’ Report and
testimony as part of the First Nations’ case.
[39]
I further consider it appropriate to grant
Ontario’s request:
a.
for leave to file a reply by Dr. Reimer without
the necessity of making a motion;
b. for Dr. Thoms to testify before Dr. Reimer;
c. for Dr. Thoms not to repeat any evidence covered in prior testimony;
[40]
Finally, I will direct the First Nations to
forego an examination in chief and present Dr. Thoms for cross examination.
V.
Costs
[41]
Canada asks for costs of the motion be awarded
to Canada (and Ontario). The First Nations long delay in producing Dr. Thoms’
Report has clearly complicated matters. However, I have accepted the health
reason proffered by the First Nations as contributing to the delay and there
are other reports that are approaching delays of similar lengths. Further, the
First Nations has offered significant measures to alleviate any prejudice
arising on the delay.
[42]
Accordingly, I conclude costs will be in the
cause.
ORDER
THIS COURT ORDERS that:
1.
leave to file Dr. Thoms’ Report is granted
without the further necessity to fulfil the requirements of a full motion under
Rule 359;
2.
leave is granted to include Dr. Thoms Report and
corresponding testimony as part of the First Nations’ case;
3.
Ontario is granted leave to file a reply by Dr.
Reimer to Dr. Thoms’ Report without the necessity of making a motion for leave;
4.
Dr. Thoms must testify before Dr. Reimer;
5.
the First Nations will forego an examination in
chief for Dr. Thoms and present him for cross examination;
6.
Dr. Thoms is not to repeat any testimony covered
previously unless raised in cross examination; and
7.
costs in the cause.
"Leonard S. Mandamin"
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