Samson Indian Band and Nation v. Canada, docket A-793-96

     A-793-96

CORAM:      STONE J.A.

         DESJARDINS J.A.

         McDONALD J.A.

B E T W E E N :

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario

     Appellants

     (Defendants)

     - and -

CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and THE SAMSON INDIAN BAND AND NATION

     Respondents

     (Plaintiffs)

Heard at Ottawa, Ontario, on Thursday, September 25, 1997.

JUDGMENT rendered at Ottawa, Ontario, on Friday, October 10, 1997.

REASONS FOR JUDGMENT BY:      STONE J.A.

CONCURRED IN BY:      DESJARDINS, J.A.

     McDONALD J.A.

     A-793-96

CORAM:      STONE J.A.

         DESJARDINS J.A.

         McDONALD J.A.

B E T W E E N :

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario

     Appellants

     (Defendants)

     - and -

CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and THE SAMSON INDIAN BAND AND NATION

     Respondents

     (Plaintiffs)

     REASONS FOR JUDGMENT

STONE J.A.

         This appeal is from an order of MacKay J., of October 3, 1996, made in his capacity as a case management judge. It was heard together with an appeal from the same order in Court file No. A-794-96.

         As appears from one of the recitals in that order it was made with a view to clarifying "the intent" of the learned Judge's order of March 14, 1996, "as it may apply" to any certificate "filed in future in these actions" pursuant to subsection 39(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended by S.C. 1992, c. 1, s. 134 [Schedule VII, item 5].

         The circumstances in which the order of March 14, 1996 was made need to be understood. Prior to that date the appellants had filed a series of affidavits of documents pursuant to Rule 448. Among the documents listed in these affidavits were documents which were later discovered and asserted to contain confidences of Her Majesty's Privy Council. By an order made by the case management judge on September 9, 1994, the appellants were required on or before October 20, 1994, to file an amended affidavit of documents in the following form as to Schedule IIB thereof:

...the Amended Affidavit shall include in Schedule II all documents previously listed (or subsequently discovered) in separate lists or classifications, as follows:

Schedule IIB -      Documents listed for which privilege is claimed in accord with s. 39 of the Canada Evidence Act under a certificate filed in compliance with that section on or before October 20, 1994; if no such certificate is filed by that date any documents that might have been claimed as privileged in accord with s. 39 shall be produced forthwith.

         The Clerk of the Privy Council filed a section 39 certificate dated December 14, 1994, within an enlarged time limit. Schedule A of the certificate listed some 37 documents that had already been listed by the appellant in previously filed affidavits of documents. The respondents complained of the sufficiency of the section 39 certificate because, as they contended, the bare list in Schedule A, without more, made it quite impossible for them to identify the documents that had been already listed in affidavits of documents pursuant to Rule 448. A practical solution to the problem was found when the appellants agreed to provide information to counsel for the plaintiffs and to the Court that would identify among the documents already listed those that were now the subject of the section 39 certificate. Paragraph 2 of the order of March 14, 1996 required the appellants' counsel to provide counsel for the plaintiffs and the Court with "information...that will identify the documents earlier listed that are included in the certificate".

         Subsequent to the date of that order a difficulty arose with respect to its application to documents of the appellants that are not already listed in affidavits of documents and in the certificate dated December 14, 1996. It was this difficulty that the case management judge addressed in his order of October 3, 1996, which reads in part:

1.      All documents in the possession, power or control of the defendants relevant to matters in issue in these actions shall be included in an affidavit of documents pursuant to Rule 448, including documents subject to any claim pursuant to Section 39 of the Canada Evidence Act.

2.      Documents claimed to contain a confidence or confidences of the Queen's Privy Council for Canada shall be included in a certificate filed pursuant to Section 39 of the Canada Evidence Act, with sufficient information to identify those documents as they are listed and described in the affidavit(s) of documents filed on behalf of the defendants in accord with clause 1 hereof.

         The appellants submit that the case management judge erred in two respects. First, they contend that he erred in ordering that a certificate filed pursuant to section 39 of the Canada Evidence Act must contain sufficient information to identify documents constituting confidences of the Queen's Privy Council as such documents are listed and described in an affidavit of documents. Secondly, they argue that he erred in ordering that documents subject to an objection filed pursuant to section 39 be described in an affidavit of documents in such a way as to clearly identify such documents pursuant to Rule 448. These assertions call for an examination of section 39 and of the decided cases.

         Subsection 39(1) of the Canada Evidence Act reads:

39.(1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.

         There can be no doubt of the effect of a certificate filed in conformity with the terms of subsection 39(1). A court is not to examine documents listed in a certificate that tracks the language of that subsection. In Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641 (C.A.), this Court was guided by the views of Strayer J. (as he then was) in Smith, Kline & French Laboratories Limited v. Attorney General of Canada, [1983] 1 F.C. 917 (T.D.). At page, 654 Iacobucci C.J. (as he then was) stated for the Court:

Strayer J. found the certificate in Smith, Kline to be defective because it in effect did not track the language of subsection 36.3(2). Requiring it to do so admittedly may be formalistic, but, as he notes, litigants and the courts are entitled "at least to the assurance that the Clerk of the Privy Council has directed his mind to those criteria and limitations". Therefore tracking the language of the subsection is not an empty exercise. It is what is required and I see no reason why the words should not be so interpreted.

(footnote omitted)

         I am mindful that the actions have been under case management for some time, and that in cases of this magnitude the role of the case management judge is as difficult as it is vital. In his reasons for the order of March 14, 1996, MacKay J. explained some of the difficulties facing the appellants in producing documents, when he stated at pages 3-4:

The nature of the claims, extending over many years, presents major difficulties for document production in accord with the Court's rules, particularly for the defendants, who early found that records of more than one government department or agency required examination for relevant documents. With the Court's directions in case management, initiated under the Associate Chief Justice, the parties developed a process for document production as a continuing process anticipating a series of affidavits of documents. Counsel for Her Majesty and the other defendants established processes to facilitate document production to assist all parties and to meet the Court's pre-trial procedures. This has been a major task for, as noted in the affidavit of Gregor MacIntosh, sworn and filed October 20, 1994, the computer system developed to manage documents in these actions by that time contained records of more than 50,000 documents retrieved from files in Ottawa, Calgary and Edmonton.

Thus, for example, after the first affidavits of documents were filed in the spring of 1994 as directed by the Court, access to documents and production of copies was initiated and carried on as documents became available and were processed by defendants' counsel. That process has made it possible to commence examinations for discovery before all documents were produced. As we shall note, supplementary affidavits have since been filed as directed by the Court, and the process of document production is on-going.

         Rule 448 is clear on its face with respect to the contents of an affidavit of documents, and the time within which it is to be filed. It reads in part:

448.(1)      Every party to an action shall file an affidavit of documents and serve it on every other party to the action within 30 days from the close of pleadings or such other period as the parties agree or the Court orders.

(2) An affidavit of documents (Form 19) shall contain

(a) separate lists and sufficient descriptions of all documents relevant to any matter in issue that

(i)      are in the possession, power or control of the party and for which no privilege is claimed,

(ii)      are or were in the possession, power or control of the party and for which privilege is claimed,

(iii)      were but are no longer in the possession, power or control of the party and for which no privilege is claimed, and

(iv)      the party believes are in the possession, power or control of a person who is not a party to the action;

(b) a statement of the grounds for each claim of privilege in respect of a document;

(c) a description of how the party lost possession, power or control of any document and its current location, so far as the party can determine;

(d) a description of the identity of each person referred to in paragraph (a)(iv), including the person's name and address, if known; and

(e) a statement that the party is not aware of any other relevant document other than those that are listed in the affidavit or those that are or were only in the possession, power or control of another party to the action.

         As is apparent from the reasons given by the case management judge on March 14, 1996, in the circumstances it became necessary to manage these requirements with some degree of flexibility. At the same time, it is important in any litigation before the Court that unnecessary delays in the period leading to trial, and the attendant expenses, be avoided as much as possible. One of these three actions, T-2022-89, was commenced more than eight years ago. The other two were commenced on May 18, 1990 (T-1386-90) and on May 28, 1992 (T-1254-92). Progress towards trial has been painfully slow. The actions were set down for an estimated 120 day trial to commence at Calgary on January 8, 1996. That date had to be moved so as to allow for the completion of pre-trial preparation. April 1, 1997 was next fixed as the commencement date, but this had to be changed to September 8, 1997. By an order of August 29, 1997, the trial was further adjourned and October 21, 1997 was fixed for its commencement "for consideration of preliminary matters and confirmation of scheduling and other arrangements for trial".

         In framing his October 3, 1996 order, the case management judge apparently sought to insure that the appellants list all of their section 39 documents in a Rule 448 affidavit or affidavits, while at the same time preserving the integrity of any section 39 certificate subsequently filed in respect of any of the documents so listed. I see two difficulties with the manner in which the order is expressed. The first is that paragraph 1 of the order requires that documents "subject to any claim pursuant to Section 39" be included in the affidavit. The second is that paragraph 2 requires any such certificate to contain "sufficient information to identify those documents as they are listed and described in the affidavit(s) of documents" filed pursuant to paragraph 1. It seems to me that the phrases at the end of both paragraphs of the order of October 3, 1996, are at odds with the principle in Canada Cartage, supra, and with the effect of a section 39 certificate. As that case makes clear, it is sufficient compliance with section 39 of the Canada Evidence Act that the certificate track the language of subsection (1) thereof. The added requirement in paragraph 2 of the order goes beyond what is permitted by the case law. In my view, as well, paragraph 1 of the order would have the effect of requiring that a Rule 448 affidavit particularize those documents that are "subject to any claim pursuant to Section 39" even though, in fact, no claim under that section had yet been made.

         That said, the appellants' obligation to comply with the requirements of Rule 448 remains. Unless and until a section 39 certificate is filed, it simply cannot be said that a privilege is "claimed" under Rule 448 (2)(ii). The obligation, as I see it, is for the appellants to list all of their documents "relevant to any matter in issue" in the manner required by the rule. Obviously, if the affidavit of documents is preceded or accompanied by a section 39 certificate, then the documents listed in the certificate need not also be listed in the affidavit. If a section 39 certificate is thereafter filed in respect of any document listed in an affidavit of documents, the appellants should follow the admirable precedent of March 1996 by providing counsel for the respondents and the Court with sufficient information as would identify the objected to documents as are already listed in the affidavit.

         During the oral hearing counsel for the appellants was unable to give an undertaking of a date by which all of the appellants' documents not already listed in an affidavit of documents will be disclosed. I accept the difficulty facing counsel. It will be in the interests of justice and the orderly progression of these actions towards trial, nevertheless, that this process be completed as expeditiously as possible. In my view, a further period of three months should be sufficient to do so. If this period should prove insufficient, it may be extended by an order of the case management judge on consent of the parties. Failing such consent, the period may be extended by the case management judge on motion supported by affidavit evidence of the reason for any extension, and of the amount of time required to complete the Rule 448 discovery process.

         In the result I would allow the appeal and would vary the order of October 3, 1996 as follows: (1) by deleting from paragraph 1 thereof the words "including documents subject to any claim pursuant to Section 39 of the Canada Evidence Act"; (2) by deleting from paragraph 2 thereof the words "with sufficient information to identify those documents as they are listed and described in the affidavit(s) of documents filed on behalf of the defendants in accord with clause 1 hereof"; (3) by adding a requirement that the documents referred to in paragraph 1 be listed in an affidavit of documents to be filed by the appellants not later than January 15, 1998, unless an extension of this time limit is granted by the case management judge on consent of the parties or on evidence establishing the amount of additional time required to complete the Rule 448 discovery process. The affidavit of documents need not list any document in respect of which a certificate pursuant to section 39 of the Canada Evidence Act is filed by the appellant prior to or contemporaneously with such affidavit; (4) and by adding that upon filing of a section 39 certificate subsequent to the filing of an affidavit pursuant to item (3) hereof, the appellants shall provide counsel for the plaintiffs and the Court with information sufficient to identify the documents that are listed in the affidavit. The costs should be in the cause.

         I would dispose of the appeal in Court File No. A-794-96 in the same manner for the same reasons. A copy of these reasons shall be filed therein and upon filing shall become reasons for judgment in that matter.

     "A.J. STONE"

     J.A.

"I concur

Alice Desjardins J.A."

"I concur

F.J. McDonald J.A."

                         FEDERAL COURT OF CANADA

                         Court No. A-793-96

                     BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario

    

     - and -

CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all the other members of the Samson Indian National and Band and THE SAMSON INDIAN BAND AND NATION

             ________________________________________

                     REASONS FOR JUDGMENT

     ________________________________________