Docket: T-2579-91
Citation: 2017 FC 75
Ottawa, Ontario, January 20, 2017
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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ROGER SOUTHWIND
FOR HIMSELF, AND ON BEHALF OF THE MEMBERS OF THE LAC SEUL BAND OF INDIANS
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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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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and
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HER MAJESTY THE QUEEN IN RIGHT OF
MANITOBA
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Third Party
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ORDER
AND REASONS
Introduction
[1]
The Plaintiffs called Patt Larcombe as a witness
and now, after the close of their case, seek to recall her or alternatively to
strike portions of the evidence of Dr. Gwen Reimer, Canada's reply witness to
Ms. Larcombe.
[2]
Ms. Larcombe, a cultural geographer, was called
by the Plaintiffs and was qualified by the Court as an expert witness. She
prepared an expert report dated April 2013 [the Larcombe Report] marked as
Exhibits 7769-7776 on the "lifestyle and
livelihood impacts and losses experienced by the Lac Seul First Nation (LSFN)
as a consequence of the use of Lac Seul as a reservoir for hydroelectric
generation and water control purposes since 1929." The part of
that report, relevant to this motion, was "Tab A3:
Loss of Use - Trapping Income" [Exhibit 7772]. She provided an
opinion on the loss of trapping income experienced by the Plaintiffs as a
consequence of the flooding of Lac Seul. Canada delivered a reply to the
Larcombe Report from its expert, Dr. Gwen Reimer, dated March 27, 2014 [the
Reimer Report] marked as Exhibit 7982. Ms. Larcombe replied to the Reimer
Report on June 30, 2014 [the Larcombe Reply Report] marked as Exhibit 7778, and
further provided an addendum to the Larcombe Reply Report on July 4, 2014,
directed specifically to the issue of loss of trapping income [the Larcombe
Trapping Reply Report] marked as Exhibit 7779. Ms. Larcombe testified over 6
days and Dr. Reimer testified for 2 days.
[3]
The Court, on the agreement of counsel, issued
an Order permitting the experts to use and rely on an aide-mémoire when
presenting their evidence. This was an efficient way of proceeding as nearly
all of the reports submitted are quite voluminous. The Larcombe Report is 352
pages, the Reimer Report is 250 pages, the Larcombe Reply Report is 71 pages,
and the Larcombe Trapping Reply Report is 20 pages.
[4]
An aide-mémoire used by a witness is not an
exhibit at trial or evidence. A pre-trial Order dated June 23, 2016,
circumscribed it:
The Court grants leave to all parties to use
an aide-mémoire when conducting an examination-in-chief of that party's expert
witness. The aide-mémoire (1) shall not form part of the trial record; (2)
shall be a summary or slide presentation which shall reflect what is set out
in the expert's report and shall not contain any new information; and (3)
any such summary or slide presentation is to be prepared by the expert and is
to be shared with the other parties at least ten (10) days before the expert is
to give evidence. [emphasis added]
[5]
Counsel exchanged the aide-mémoire and any "new" documents to be put to the witness not
already included in the Joint Book of Documents prior to a witness being
called. After Dr. Reimer had been qualified, Canada informed the Court that
there were additional documents that it wished to have entered as exhibits and
that these had been provided to the parties the previous week. They were:
a.
An errata list, subsequently entered without
objection as Exhibit 7993;
b.
Revised Table 6.1, subsequently entered without
objection as Exhibit 7994;
c.
Supplemental Table 1 "HBC
Muskrat, Beaver and Mink Pelts collected - 'Savanne Region Posts:
Superior-Huron (1925-27, 1929-30, 1932-34) & James Bay - Line & Island
(1945-56)" marked as Exhibit 5 for Identification;
d.
Supplemental Table 2.1 "Muskrat
'Expected Harvest' Model if 1925-1930 Average used as Pre-Flood Baseline,"
Supplemental Table 2.2 "Muskrat 'Expected
Harvest' Model if 1925-1934 Average used as Pre-Flood Baseline,"
and Supplemental Table 2.3 "Muskrat 'Expected
Harvest' Model if 1932-1934 Returns used as Pre-Flood Baseline" all
of which were collectively marked as Exhibit 6 for Identification; and
e.
Trapline Supplement.
[6]
Counsel for the Plaintiffs expressed concern
that the latter three documents "are actually the
product of some kind of estimate or additional analysis or calculation that was
done by Dr. Reimer" outside her report. Canada responded that
these documents contained data or information that was in her report, albeit
presented in a different manner, and that there was no new data presented.
[7]
The Court was unable to determine whether the
documents contained "new" information
or analysis without the benefit of Dr. Reimer's testimony. Accordingly, it was
ruled that the impugned documents could be put to Dr. Reimer and she could
explain them. If the Plaintiffs then had an objection to the evidence, it
would be addressed, including any request to recall Ms. Larcombe. Canada
abandoned any attempt to rely on item e, the Trapline Supplement, and it is no
longer in issue.
[8]
Item c, Supplemental Table 1, was put to Dr.
Reimer during her examination in chief. Item d, Supplemental Tables 2.1, 2.2
and 2.3, were never put to the witness, although she did speak to slide 24 of
her aide-mémoire and did speak to the trends derived from those tables.
[9]
At the conclusion of Dr. Reimer's
cross-examination, the Plaintiffs renewed their objection and indicated that
they wished to recall Ms. Larcombe because "we
have some concerns about some of the new data or analysis that's being
presented and we would like to have the opportunity … to recall Ms. Larcombe to
address those specific analyses." Canada objected, taking the
position that the data was in the report and that if the Plaintiffs' witness
was recalled it would be splitting its case.
[10]
The Plaintiffs were directed to have Ms.
Larcombe prepare a further report [the Larcombe Supplementary Reply Report]
outlining the evidence she would tender if the Court permitted her to be
recalled. The Larcombe Supplementary Reply Report dated December 12, 2016,
consists of 13 pages of text and an additional 13 pages of charts and graphs.
The proposed evidence is set out under five headings:
2.0 Reimer's Supplemental Table 1 Omits Key Data;
3.0 Reimer's Analyses and Errors in Supplemental Tables 2.1-2.3;
4.0 Reimer's New Aide Memoire Graphs Contain Errors;
5.0 Reimer's New "77 Trapline"
Analysis is Flawed; and
Appendix A: Missing 3 Years of Pre-Flood HBC Data.
The Law
[11]
In support of its position, Canada relies on the
rule against a party splitting its case. The law that a party is not permitted
to split its case, except in very limited circumstances, is based on general
principles of fairness and a recognition that prejudice to the opposite party
arises if case-splitting is permitted. The rule and its application is
summarized in the decision of the Supreme Court of Canada in Krause v The
Queen, [1986] 2 S.C.R. 466 [Krause] at 473-474:
The general rule is that the Crown, or in
civil matters the plaintiff, will not be allowed to split its case. The Crown
or the plaintiff must produce and enter in its own case all the clearly
relevant evidence it has, or that it intends to rely upon, to establish its
case with respect to all the issues raised in the pleadings; in a criminal case
the indictment and any particulars. This rule prevents unfair surprise,
prejudice and confusion which could result if the Crown or the plaintiff were
allowed to split its case, that is, to put in part of its evidence -- as much
as it deemed necessary at the outset -- then to close the case and after the
defence is complete to add further evidence to bolster the position originally
advanced. The underlying reason for this rule is that the defendant or the
accused is entitled at the close of the Crown's case to have before it the full
case for the Crown so that it is known from the outset what must be met in
response.
The plaintiff or the Crown may be allowed to
call evidence in rebuttal after completion of the defence case, where the
defence has raised some new matter or defence which the Crown has had no
opportunity to deal with and which the Crown or the plaintiff could not reasonably
have anticipated. But rebuttal will not be permitted regarding matters
which merely confirm or reinforce earlier evidence adduced in the Crown's case
which could have been brought before the defence was made. It will be
permitted only when it is necessary to insure that at the end of the day each
party will have had an equal opportunity to hear and respond to the full
submissions of the other. [emphasis added and cited case law omitted]
[12]
The Plaintiffs acknowledge that this is an
accurate statement of the law, but submit that they are not engaged in
case-splitting. They also rely on the decision of Justice Stratas in Amgen
Canada Inc v Apotex Inc, 2016 FCA 121 [Amgen], and particularly
paragraph 10 thereof where he states that "considerations
of procedural fairness and the need to make a proper determination can require
the Court to allow the filing of reply evidence."
[13]
I agree with Canada that Amgen has no
application to the issue before me. Amgen dealt with whether, and if so
when, a moving party on a motion in writing might tender reply evidence -
something not specifically dealt with in the Federal Courts Rules,
SOR/98-106. It offers no assistance when considering the well-established rule
against case-splitting.
[14]
The question to be addressed is whether Dr.
Reimer has advanced evidence that was not in her report, such that the
Plaintiffs have not had the opportunity to deal with it, thus justifying the request
to recall Ms. Larcombe.
[15]
The Plaintiffs submit that during the trial "the Court has consistently ruled that if evidence was
not set out in the original expert report, it will not be admitted into the
trial record" and they reference rulings made during the testimony
of five witnesses: Trevor Falk, Norris Wilson, Peter Zuzek, Cliff Hamal, and Alan
McCullough.
[16]
While Canada accepts that "numerous objections to new evidence (not found in the
expert report) were made by counsel and ruled upon by the Court" it
says that not all evidence tendered by the experts was actually in their
reports. It points particularly to the testimony of Ms. Larcombe and "new" evidence that she provided regarding
Hudson Bay Company [HBC] post closures prior to 1945 and an analysis of
trapline records. No objection made by any of the opposing parties to that
evidence at the time it was tendered, unlike the situation here.
[17]
The proposed evidence that the Plaintiffs wish
to elicit from recalling Ms. Larcombe fall under five headings, each of which
is discussed and analyzed below.
The
Proposed Evidence
A.
Section 2.0 of the Larcombe Supplemental Reply
Report
(1)
The Issue
[18]
Section 2.0 of the Larcombe Supplemental Reply
Report, including Appendix B (Tables B-1 to B-4), relates to Dr. Reimer's
Supplemental Table 1.
[19]
The Plaintiffs submit that Dr. Reimer introduced
a new analysis about how the effects of HBC post closures were "shared" among all posts in the Lac Seul
section and selected others. This "shared-effect"
analysis was not in the Reimer Report and thus they say that the analysis could
not have been anticipated. Moreover, the Plaintiffs submit that Dr. Reimer
extended the "shared-effect" analysis
beyond muskrat (to include Beaver and Mink), and she incorrectly transcribed
the historical mink data. The Plaintiffs submit that admitting further
examination of Ms. Larcombe and the Larcombe Supplemental Reply Report allows
the Court to properly adjudicate the issue of the impact of HBC post closures.
[20]
Canada submits that in section 2.0, Ms. Larcombe
provides an analysis on the HBC posts in existence in 1945 in support of her
view that the returns for Lac Seul and Hudson Posts in 1945 do not reflect
trapping harvest "recovery"
post-flooding. Instead, Ms. Larcombe claims that increases in fur returns at
the two posts in 1945 reflect additional collection from the regional posts
that closed in the prior period. Canada submits that Ms. Larcombe raised the
issue of the impact of HBC post closures in the Larcombe Trapping Reply Report
but she failed to do the follow-up analysis that she now seeks to do. This, it
submits, violates the rule against case-splitting.
(2)
Discussion and Analysis
[21]
Using the HBC Fur Reports, the Reimer Report set
out the fur returns for a number of seasons for the Lac Seul post and Hudson
post in Table 5.5. Table 5.7 of the Reimer Report depicts the fur returns for
the Lac Seul post and Hudson post in 1945/46. In the Reimer Report, Dr. Reimer
discusses Ms. Larcombe's use of the Cowan report data, which Ms. Larcombe
relied on to calculate her expected harvest and impacted harvest for muskrat.
Dr. Reimer refers to Table 5.7 in her discussion to indicate that muskrat
populations were recovering. Finally, Dr. Reimer uses the Cowan report data as
well as the longer term pre- and post-flood muskrat data (found in Table 5.5
and Table 5.7) to illustrate that pre- and post-flood muskrat collection
decreased by 43-44% as opposed to Ms. Larcombe's assumed decrease of 85%.
[22]
In the Larcombe Trapping Reply Report, Ms.
Larcombe, in response to Dr. Reimer, suggested that the data on which she based
her opinion may be affected by possible HBC post closures:
Reimer (pg. 112, para 3) suggests the
post-flood baseline number (average muskrat/year) should be 2,570 almost double
the figure (1,340) indicated by Cowan. Annual data to support Cowan's average
(1,340) for the period 1935-1940 (i.e. 1934/35-1939/40) appear to be lost from
the archival record. Reimer's number (2,570) is calculated by averaging
Cowan's number (1,340) and a single year report by the HBC (her Table 5.7) for
the year 1944/45 (3,800). She suggests the higher number for this single year
is an indication that muskrat production at Lac Seul/Hudson was
"recovering." Reimer does not indicate if the other HBC posts listed
in her Table 5.5 remained operational in the year 1944/45. If one or more
of these other posts were closed by that year, then production from those posts
may be included in the combined total for the Lac Seul and Hudson post.
[emphasis added and footnotes omitted]
It should be noted
in the quoted paragraph above that Ms. Larcombe is responding to 1944/45 data
that Dr. Reimer subsequently corrected to be 1945/46 data.
[23]
During Dr. Reimer's testimony, she referenced
Supplemental Table 1 in relation to the issue raised by Ms. Larcombe that HBC
post closures could have inflated the fur returns at Lac Seul and Hudson
posts. Ms. Larcombe provides no specific data or evidence regarding post
closures or their impact, although it was available to her. Dr. Reimer
testified that despite two posts closing, the benefit to the other four
remaining posts were shared (an increase is observed at all four posts).
[24]
Dr. Reimer's Supplemental Table 1 sets out the
fur returns of muskrat, beaver, and mink for HBC posts at Lac Seul, Hudson, Red
Lake, Grassy Narrows, Sioux Lookout, and Pine Ridge posts as well as percentage
calculations. While the data for the Lac Seul and Hudson posts appears in
Table 5.5 and Table 5.7 of the Reimer Report, the data for Red Lake, Grassy
Narrows, Sioux Lookout, and Pine Ridge posts did not appear and was not
discussed in the Reimer Report. On its face, as the Plaintiffs suggest, this
is new, notwithstanding that the data was extracted from source materials
referenced in the Reimer Report.
[25]
In her proposed Supplementary Reply Report, Ms.
Larcombe reaches a similar conclusion to her conclusion in the Larcombe
Trapping Reply Report: that the closure of HBC posts increased the furs traded
and recorded at the Lac Seul and Hudson posts.
[26]
Ms. Larcombe correctly asserts in the
Supplementary Reply Report that Supplemental Table 1 was used by Dr. Reimer to
support that "the closure of HBC posts did not
inflate fur returns at the Lac Seul and Hudson Posts in 1945/46; and therefore
… the 1945/46 fur returns for Lac Seul and Hudson HBC posts continue to
demonstrate harvest recovery from Lac Seul flooding and regulation by the
mid-1940s."
[27]
I accept that Dr. Reimer's Supplementary Table 1
was, as she testified, a direct response to the suggestion by Ms. Larcombe that
her data may have been skewed by post closures. That response required a
detailed examination of all of the fur returns at all of the nearby HBC posts
including those two closed prior to the 1945/46 year (namely Sioux Lookout in
1937, and Pine Ridge in 1938). I agree with the submission of Canada that the
evidence of Dr. Reimer in this respect could reasonably have been anticipated
by Ms. Larcombe either in her Reply Report or her oral evidence:
This issue is not just one that could
reasonably have been anticipated: it was actually raised by Ms. Larcombe
herself in her Trapping Reply Report, in response to the Reimer Report. Ms.
Larcombe could have followed through on her own query, researched and opined on
this issue and made these points at the time of her Trapping Reply Report. She
chose not to.
[28]
Having speculated about the impact of post
closure on Dr. Reimer's opinion, it was plain and obvious that Dr. Reimer would
respond. It is unfair and prejudicial to Canada that rather than conduct a
thorough analysis of this speculative statement and address it when first
called, Ms. Larcombe waited to do so after Dr. Reimer has addressed her
concern. As it was an area that should have been anticipated by the witness,
having raised it herself, it does not fall within the exception in Krause and
thus Ms. Larcombe cannot be recalled to address it now.
B.
Section 3.0 of the Larcombe Supplemental Reply
Report
(1)
The Issue
[29]
Section 3.0 of the Larcombe Supplemental Reply
Report, including Appendix C, relates to Dr. Reimer's Supplemental Tables 2.1,
2.2, and 2.3 as well as slide 24, bullet 4 of her aide-mémoire.
[30]
The Plaintiffs submit that Dr. Reimer's
testimony is about using the numbers on slide 24 as a starting point to model a
column of numbers representing the baseline for each of her supplemental
tables. The Plaintiffs allege that Dr. Reimer compared the numbers from the baseline
column against the numbers in the "actual
return" columns during the 1940s and 1950s. They say that Canada
confirmed that Dr. Reimer's testimony respecting slide 24 is in direct
reference to her Supplemental Tables 2.1, 2.2, and 2.3. It is alleged that
Canada is attempting to introduce new information and analysis after the
Plaintiffs have closed their case. The Plaintiffs request that Dr. Reimer's
testimony with respect to slide 24 and Supplemental Tables 2.1-2.3 be struck.
[31]
Canada accepts that in the Larcombe Supplemental
Reply Report, Ms. Larcombe takes issue with and offers a correction of Dr.
Reimer's calculations and figures in Supplemental Tables 2.1, 2.2, and 2.3
which relate to bullet 4 on slide 24 of Dr. Reimer's aide-mémoire. Canada notes
that Supplemental Tables 2.1, 2.2, and 2.3 were never put to Dr. Reimer in her
examination, and that only three adjusted "alternative
muskrat baseline" figures were cited by Dr. Reimer when speaking to
slide 24. Canada submits that Ms. Larcombe's evidence is "trivial and collateral to the Plaintiff's case"
as she does not rely on these three numbers to ground her muskrat model.
Instead, it notes that Ms. Larcombe maintains her reliance on the 1940 Cowan
figures set out in the Larcombe Report.
(2)
Discussion and Analysis
[32]
Supplemental Tables 2.1, 2.2, and 2.3 were never
directly put to Dr. Reimer during her examination in chief or her
cross-examination; they are not exhibits; and form no part of the evidence at
trial. Nonetheless, Dr. Reimer's testimony with respect to bullet 4 on slide
24 of her aide-mémoire is in reference to her Supplemental Tables 2.1, 2.2, and
2.3. During Dr. Reimer's examination in chief, counsel for Canada stated as
follows:
I'll just note at this point that Dr. Reimer
just referred to Supplemental Table 2.1, 2.2, and 2.3 on the bottom of slide
24. … As Dr. Reimer explained, this is the math behind the three alternative
baselines that were proposed …by Ms. Larcombe in her reply report.
[33]
The following is bullet 4 of slide 24 of Dr.
Reimer’s aide-mémoire:
• Larcombe reply
report (2014, Part II, p. 6) presents 3 alternative baselines as per 1925-34
returns:
- Supplemental Table 2.1 (1925-30, 4 seasons): Pre-flood
muskrat avg. 2,777 (adjusted to 3,537) = expected harvest lower
than actual returns in 1945-46 & 1950s.
- Supplemental Table 2.2 (1925-34, 6 seasons): Pre-flood
muskrat avg. 4,551 (adjusted to 5,796) = expected harvests somewhat
higher than actual returns in 1945-46 & 1950s.
- Supplemental Table 2.3 (1932-34, 2 seasons): Pre-flood
muskrat avg. 8,098 (adjusted to 10,313) = expected harvests much
higher vs. actual returns in 1945-46 & 1950s (but lower
than Cowan).
[34]
The Plaintiffs' complaint about the evidence
given by Dr. Reimer is that her "adjusted"
figures are not accurate (see the Larcombe Supplementary Reply Report at page
8); however, Ms. Larcombe does not provide the Court with accurate "adjusted" numbers from which the Court can
determine whether, as Dr. Reimer testified, regardless of these three baseline
figures, as adjusted, the baseline Ms. Larcombe used - Cowan's figure - is much
higher, thus supporting her opinion that it is not an appropriate baseline to
use.
[35]
Ms. Larcombe further says that Dr. Reimer "erroneously starts modelling in 1930/31 to 1933/34 when
the actual harvests for those years were known." However, the
years used to develop a baseline were not chosen by Dr. Reimer. They were the
years expressed by Ms. Larcombe in the Larcombe Trapping Reply Report. All Dr.
Reimer did, was to extrapolate from Ms. Larcombe's illustrations of the annual
average muskrat production for different groupings of seasons in the pre-flood
period. This hardly requires further comment from Ms. Larcombe who could have
anticipated that the various possible baselines would be examined in this
manner.
[36]
In light of that, the Court must agree with
Canada that the proposed evidence of Ms. Larcombe on this section is irrelevant
and inconsequential or should have been anticipated. Her other criticisms and
proposed evidence relates to the Supplemental Tables 2.1-2.3, which do not
constitute evidence in this trial.
[37]
I am not prepared to recall Ms. Larcombe to
simply point out that Dr. Reimer's adjusted figures are inaccurate, when that
point can be made effectively by counsel in closing submissions.
C.
Section 4.0 of the Larcombe Supplemental Reply
Report
(1)
The Issue
[38]
Section 4.0 of the Larcombe Supplemental Reply
Report relates to slides 25, 27, and 29 of Dr. Reimer's aide-mémoire.
[39]
Canada submits that the graphs depicted on
slides 25, 27, and 29 of Dr. Reimer's aide-mémoire are merely graphic
depictions of data that was included in the Reimer Report. It submits that
this material does not meet the test of being "not reasonably
anticipated", and that Ms. Larcombe provided evidence previously similar
to the evidence proposed in the Larcombe Supplemental Reply Report. As a
result, Canada contends that it is unnecessary to recall Ms. Larcombe or accept
this section of the Larcombe Supplemental Reply Report as it is a re-iteration
of evidence already given before the Court.
[40]
The Plaintiffs accept that Section 4.0 of the
proposed recall evidence relates to previously discussed data; however, they
submit that the proposed analysis addresses how Dr. Reimer manipulated that
data to create a new dataset found only in her aide-mémoire. The Plaintiffs
submit that this evidence could not have been anticipated and they request that
Dr. Reimer's evidence respecting these slides be stricken from the record. If
so, they say that Ms. Larcombe's additional evidence would not be required.
(2)
Discussion and Analysis
[41]
Dr. Reimer's testimony is with respect to
Ontario-wide harvest trends, the harvest trends at Lac Seul based on data she
provided in the Reimer Report, and Ms. Larcombe's expected harvest baseline.
She comments on Ms. Larcombe's choice of using the Cowan data with respect to
muskrat, and recovery of beaver and mink by the 1950s.
[42]
Ms. Larcombe's specific proposed evidence in the
Larcombe Supplemental Reply Report relates to Dr. Reimer having "filled in" missing data in the graphs,
comparing adjusted expected harvest levels with un-adjusted HBC trends, and
mixing three sets of unrelated data on the graphs. However, as none of the
graphs are in evidence and neither the oral testimony nor the Reimer Report
focuses on the matters complained of, the proposed corrections are irrelevant
and unnecessary.
D.
Section 5.0 of the Larcombe Supplemental Reply
Report
(1)
The Issue
[43]
Section 5.0 of the Larcombe Supplemental Reply
Report relates to Dr. Reimer's "77 trapline"
Analysis.
[44]
The Plaintiffs submit that Dr. Reimer's analysis
on slide 21 of her aide-mémoire did not exist when Ms. Larcombe completed the
Larcombe Reply Report or testified. They say that Dr. Reimer's new analysis
including slide 21, her testimony, and the correction made on her errata list
became necessary because Dr. Reimer never investigated whether the 77 traplines
were licensed to Lac Seul band members, until after Ms. Larcombe testified.
The Plaintiffs contend that the new analysis could not have been anticipated as
it was not set out in the Reimer Report.
[45]
The Plaintiffs also submit that Dr. Reimer's 77
LSFN trapline analysis respecting both trapline licensee affiliation and
activity are incorrect, and the Court should accept Ms. Larcombe's evidence in
this regard to have the benefit of Ms. Larcombe's corrections.
[46]
Canada submits that Ms. Larcombe's proposed
reply in section 5.0 is purely rebuttal evidence on the trapline cards that
could have been provided in the Larcombe Trapping Reply Report. Canada alleges
that Ms. Larcombe's testimony demonstrates that she failed to conduct an
analysis of the trapline cards, and only conducted this analysis following
Canada's case. It submits that it is also too late at this stage to propose
corrections to Dr. Reimer's Appendix B.1 Table, which was included in the
Reimer Report. Canada contends that Ms. Larcombe could have presented her
analysis with respect to trapline licensee affiliation and activity in the
Larcombe Trapping Reply Report, and as a result the Plaintiffs are violating
the rule against case-splitting.
(2)
Discussion and Analysis
[47]
In the Reimer Report, Dr. Reimer stated at page
120 "Fur production returns from 77 LSFN
licensees in the Lac Seul, Sioux-Hudson and Ear Falls-Goldpines Band areas
in the Patricia West District are recorded…" [emphasis added].
[48]
While, slide 21 and Dr. Reimer's testimony
provided more information regarding the 77 licensees than is in the Reimer
Report, Ms. Larcombe had a full opportunity to investigate these licensees and
their affiliations after reviewing the Reimer Report, which referenced "77 LSFN licensees" (albeit incorrectly and
corrected in Dr. Reimer's errata sheet to reflect that the 77 licensees were
comprised of 73 Band identifications and additional four who were unidentified).
[49]
Ms. Larcombe could have investigated the "77 LSFN licensees" in her Trapping Reply
Report, but chose not to do so and it is too late for her now to say that this
is required. The active season analysis that Ms. Larcombe purports to correct
was presented in the Reimer Report, and any reply to this information at this
stage is not appropriate and is case-splitting.
E.
Appendix A of the Larcombe Supplemental Reply
Report
(1)
The Issue
[50]
In Appendix A to the Larcombe Supplemental Reply
Report Ms. Larcombe provides data that was not previously discovered by either
expert. This data is the HBC return data for three years (Outfit 258 or
1927/28, Outfit 260 or 1929/30, and Outfit 262 or 1930/31). Table A-1 provides
the full data set from 1925/26 to 1933/34 for muskrat returns for HBC posts in
the Lac Seul Region. Figure A-1 is an updated version of Dr. Reimer's
aide-mémoire Slide 25 with the "missing"
data years and Ms. Larcombe's adjustments.
[51]
Canada submits that Ms. Larcombe is seeking to
introduce new documents, opine on them, and to revise her previously given
evidence. It submits that this is case-splitting as Ms. Larcombe could have
provided this data and relevant analysis and opinion from the outset.
(2)
Discussion and Analysis
[52]
It is not disputed that the data provided in
Appendix A of the Larcombe Supplemental Reply Report is new evidence that has
not been referred to previously by either Ms. Larcombe or Dr. Reimer. It is
not reply to Dr. Reimer's testimony or evidence as Dr. Reimer did not refer to
these documents. At best it might be viewed as a reply to Dr. Reimer's "shared effect" analysis. In Appendix A's
commentary, Ms. Larcombe responds to Dr. Reimer's testimony that HBC Cowan's
two-year average estimate (1932/33 and 1933/34) was extremely high compared to
previous years. Ms. Larcombe states that "the
missing year data indicate that the 1932/33 and 1933/34 trapping seasons were
not in fact anomalous." Dr. Reimer did speak to Ms. Larcombe's use
of Cowan's two-year average in the Reimer Report at page 112, and Ms. Larcombe
did not uncover the data in Appendix A in a timely manner when writing any of
her reports. The commentary Ms. Larcombe proposes to give responds to the
analysis in the Reimer Report; however, that report was delivered years ago and
Ms. Larcombe has previously responded to it. I agree with Canada's submission
that permitting Appendix A to be entered through the recall of Ms. Larcombe
would constitute unwarranted case-splitting.
Conclusion
[53]
Having reviewed the areas the Plaintiffs wish
Ms. Larcombe to testify about, if she is recalled, I find that recalling Ms.
Larcombe would amount to case-splitting, would address matters not currently in
evidence, would address matters Ms. Larcombe had every opportunity to address
in her reports or oral evidence, or elicit irrelevant or inconsequential
testimony.
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