Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., (1995) 184 N.R. 139 (FCA)

• Judge: Pratte, MacGuigan and Décary, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 14, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 184 N.R. 139 (FCA)

Buffalo v. Can. (1995), 184 N.R. 139 (FCA)

MLB headnote and full text

Chief Victor Buffalo acting on his own behalf and on behalf of the other members of the Samson Indian Nation and Band and The Samson Indian Band and Nation (plaintiffs/respondents) v. Her Majesty The Queen in Right of Canada, Parliament Buildings, Ottawa, Ontario, and The Honourable Pierre Cadieux, Minister of Indian Affairs and Northern Development, Parliament Buildings, Ottawa, Ontario and The Honourable Michael Wilson, Minister of Finance, Parliament Buildings, Ottawa, Ontario, and Donald Goodwin, Assistant Deputy-Minister, Department of Indian Affairs and Northern Development, 10 Wellington Street North, Hull, Quebec (defendants/appellant)

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 (plaintiffs/respondents) v. Her Majesty The Queen in the Right of Canada (defendants/appellant)

Chief John 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 Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation (plaintiffs/respondents) v. Her Majesty The Queen in Right of Canada and The Honourable Thomas R. Siddon, Minister of Indian Affairs and Northern Development and The Honourable Donald Mazankowski, Minister of Finance (defendants/appellant)

(A-472-94)

Indexed As: Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Federal Court of Appeal

Pratte, MacGuigan and Décary, JJ.A.

May 12, 1995.

Summary:

Three Indian Bands commenced actions against the Crown for breach of trust and fiduciary duty arising from the Crown's obligations respecting oil and gas resources from Indian reserves, and the associated royalties, and other monies of the Bands. The Bands sought production of approxi­mately 1,000 documents over which the Crown had claimed privilege.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 86 F.T.R. 1, considered each of the categories of docu­ments for which the Crown had claimed privilege and ordered accordingly respecting production. The Crown appealed the order with respect to two groups of documents, those claimed to be privileged on the basis of solicitor-client privilege and those which the Crown claimed were subject to a general solicitor-client privilege (the legal advice privilege).

The Federal Court of Appeal allowed the appeal and replaced the parts of the order respecting those two groups of documents.

Evidence - Topic 4237

Witnesses - Privilege - Lawyer-client communications - Documents - General - [See Practice - Topic 4578 ].

Evidence - Topic 4245.2

Witnesses - Privilege - Lawyer-client communications - Privilege - Wills and trusts - The Federal Court of Appeal stated that "where there is a trust relation­ship, no privilege attaches to communi­cations between a solicitor and the trustee as against the beneficiaries who have a joint interest with the trustee in the subject matter of the communications" - See paragraph 14 - The court further stated "[i]n order for the trust principle to apply at the discovery stage of an action for breach of duty in the administration of a trust, two conditions ... must be fulfilled: the alleged trust relationship must be es­tablished on a prima facie basis, and the documents allegedly belonging to the beneficiaries must be documents obtained or prepared by the trustee in the adminis­tration of the trust and in the course of the trustee carrying out his duties as trustee" - See paragraph 17.

Evidence - Topic 4245.2

Witnesses - Privilege - Lawyer-client communications - Privilege - Wills and trusts - Three Indian Bands sued the Crown for breach of trust and fiduciary duty - The Bands argued that the alleged trust relationship between the Crown and the Bands superseded the Crown's claim of privilege over certain documents on the basis of legal advice privilege - The Fed­eral Court of Appeal accepted that the relationship between the Crown and the Indians prima facie qualified as a trust relationship - However, the court held that it was not possible at this stage to assume that all documents at issue were obtained or prepared in the course of the Crown's duties as "trustee" for the Bands - If there was dispute, the court would examine the documents and rule in each case, in light of the unique relationship between the Crown and the Indians, whether it was privileged - See paragraphs 14 to 26.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - [See second Evidence - Topic 4245.2 ].

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attor­ney-client communications - [See second Evidence - Topic 4245.2 ].

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Docu­ments prepared in contemplation of liti­gation - Three Indian Bands sued the Crown - The Crown claimed privilege over numerous documents - A motions judge made an order respecting production of those documents - The Crown referred to that part of the order respecting docu­ments for which privilege was claimed on the basis of solicitor-client privilege, and contended that privilege was unduly restricted by the motions judge's use of the words "documents ... initiated for the dominant purpose of advising in the con­duct of this litigation" - The Federal Court of Appeal accepted the contention and amended the order to read "documents ... initiated for the dominant purpose of the conduct of the litigation" - Privilege in relation to litigation was not limited to advice and also extended to communi­cations respecting any litigation - See paragraphs 11 and 12.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - In an action for breach of trust and fiduciary duty, it was argued that where a fiduciary put its state of mind at issue by pleading that it had acted honestly and reasonably, all documents relating to the alleged breach of its legal obligations must be disclosed - The Federal Court of Appeal stated "[t]hat may be so where the pleadings expressly allege reliance on legal advice, but certainly is not so in the absence of any such express pleading. Counsel has cited no authority, and we know of none, to the effect that by simply alleging good faith a party waives the privilege which attaches to its communi­cations with its solicitor" - See paragraph 27.

Cases Noticed:

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, consd. [para. 9].

Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; 44 N.R. 462, consd. [para. 9].

R. v. Littlechild (1979), 19 A.R. 395; 108 D.L.R.(3d) 340 (C.A.), refd to. [para. 9].

Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, refd to. [para. 9].

Weiler v. Canada (Minister of Justice) et al. (1991), 46 F.T.R. 163 (T.D.), refd to. [para. 9].

Balabel v. Air India, [1988] 2 All E.R. 246 (C.A.), refd to. [para. 9].

Shell Canada Ltd., Re (1975), 7 N.R. 157; 55 D.L.R.(3d) 713 (F.C.A.), refd to. [para. 9].

Director of Investigation and Research v. Shell Ltd. - see Shell Canada Ltd., Re.

Crompton (Alfred) Amusement Machines v. Customs and Excise Commissioners (No. 2), [1973] 2 All E.R. 1169 (H.L.), refd to. [para. 9].

Xerox of Canada Ltd. and Xerox Corp. v. IBM Canada Ltd. - IBM Canada Ltée, [1978] 1 F.C. 513; 15 N.R. 11 (F.C.A.), refd to. [para. 9].

Canada (Minister of Industry, Trade and Commerce) v. Central Cartage Co. et al. (1987), 10 F.T.R. 225 (T.D.), refd to. [para. 9].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 10, footnote 1].

Ballard Estate, Re (1994), 20 O.R.(3d) 350 (Gen. Div.), consd. [para. 14].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 18].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 18].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 39 [para. 4].

Federal Court Rules, rule 448(1), rule 448(2) [para. 3]; rule 450 [para. 4].

Counsel:

Barbara Ritzen, for the appellant;

Edward Molstad, Q.C., and Owen Young, for the respondent, Chief Victor Buffalo and the Samson Indian Band and Nation;

Leighton Decore, for the respondent, Chief Jerome Morin and the Members of Enoch's Band of Indians and the Resi­dents thereof on and of Stony Plain Reserve No. 135;

Marvin Storrow, Q.C., and Maria Morellato, for the respondent, Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Lee, Lester Fraynn.

Solicitors of Record:

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Molstad Gilbert, Edmonton, Alberta, for the respondent, Chief Victor Buffalo and the Samson Indian Band and Nation;

Biamonte Cairo Shortreed, Edmonton, Alberta, for the respondent, Chief Jerome Morin and the Members of Enoch's Band of Indians and the Residents thereof on and Stony Plain Reserve No. 135;

Blake Cassels Graydon, Vancouver, British Columbia, for the respondent, Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Lee, Lester Fraynn.

This appeal was heard on April 14, 1995, at Vancouver, British Columbia, before Pratte, MacGuigan and Décary, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by MacGuigan and Décary, JJ.A., on May 12, 1995.