Goodswimmer et al. v. Canada et al., 2015 ABCA 253

• Judge: Rowbotham, O'Ferrall and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 30, 2015
• Citations: 2015 ABCA 253;(2015), 606 A.R. 291

Goodswimmer v. Can. (2015), 606 A.R. 291; 652 W.A.C. 291 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.140

Chief Melvin Goodswimmer and Jerry Goodswimmer, Walter Goodswimmer, Francis Goodswimmer, Pierre Chowace, Mildred Chowace and Donald Badger, Councillors of the Sturgeon Lake Indian Band and on behalf of the Sturgeon Lake Indian Band and the Sturgeon Lake Indian Band (appellants/plaintiffs) v. Her Majesty the Queen in Right of Alberta (respondent/defendant) and The Attorney General of Canada (respondent by Order)

(third party defendant)

(1503-0003-AC; 2015 ABCA 253)

Indexed As: Goodswimmer et al. v. Canada et al.

Alberta Court of Appeal

Rowbotham, O'Ferrall and Wakeling, JJ.A.

July 27, 2015.

Summary:

The plaintiffs, an Indian band and councillors of the band, commenced an action against the Federal Crown (Canada) and Her Majesty the Queen in Right of Alberta (Alberta), seeking declarations respecting their rights to certain lands. Canada and Alberta claimed that a 1990 Treaty Land Entitlement (TLE) Agreement constituted a full defence. The Indian Band pled that it did not provide informed consent in entering the TLE Agreement, notwithstanding that it had independent legal advice throughout. During discovery, the Band refused to answer questions relating to the legal advice it obtained on the basis of solicitor client privilege. Canada and Alberta sought to have the undertakings answered.

The Alberta Court of Queen's Bench, in a decision reported 591 A.R. 373, ordered the Band to answer the questions. The Band appealed.

The Alberta Court of Appeal, O'Ferrall, J.A., dissenting, dismissed the appeal.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications - An Indian Band sued Canada and Alberta, seeking declarations respecting rights to certain lands which were subject to a 1990 Treaty Land Entitlement (TLE) Agreement - The Indian Band pled that it did not provide informed consent in entering the TLE Agreement, notwithstanding that it had independent legal advice throughout - During discovery, the Band refused to answer questions relating to the legal advice it obtained on the basis of solicitor client or settlement privilege - Canada and Alberta sought to have the undertakings answered - The case management judge held that privilege was waived by the pleadings and that fairness dictated that the undertakings be answered - The Band appealed - The Alberta Court of Appeal dismissed the appeal - The case management judge's conclusions were reasonable - She made no reviewable error.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - At issue on this appeal was whether a case management judge erred in determining that the statement of claim raised issues that expressly or impliedly waived the solicitor-client privilege - The Alberta Court of Appeal, in discussing the standard of review, stated that "Case management judges are owed deference. Absent an error in law, this court will not interfere with a chambers judge's exercise of discretion unless the result was unreasonable. This is particularly so when many competing factors must be balanced ... Whether solicitor-client privilege applies is a discretionary determination and should only be interfered with on appeal if it is based on an error in principle, a misapprehension of the facts or is unreasonable ..." - See paragraphs 7 and 8.

Cases Noticed:

Rogers v. Bank of Montreal, [1985] 4 W.W.R. 508; 62 B.C.L.R. 387 (B.C.C.A.), refd to. [para. 6].

Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co., [1992] 5 W.W.R. 531; 3 Alta. L.R.(3d) 210 (Q.B.), refd to. [paras. 6, 40].

O'Scolai et al. v. Antrajenda (2008), 447 A.R. 357; 2008 ABQB 77, refd to. [para. 6].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al. (2011), 423 N.R. 3; 313 B.C.A.C. 3; 533 W.A.C. 3; 2011 SCC 56, refd to. [para. 6].

Mikisew Cree First Nation v. Canada et al. (2004), 354 A.R. 279; 329 W.A.C. 365; 33 Alta. L.R.(4th) 231; 2004 ABCA 279, refd to. [para. 8].

Dow Chemical Canada ULC et al. v. Nova Chemicals Corp. (2014), 577 A.R. 335; 613 W.A.C. 335; 2014 ABCA 244, refd to. [para. 8].

Adderley et al. v. 1400467 Alberta Ltd. et al. (2014), 580 A.R. 319; 620 W.A.C. 319; 2014 ABCA 291, refd to. [para. 8].

Federation of Law Societies of Canada v. Canada (Attorney General) (2015), 365 B.C.A.C. 3; 627 W.A.C. 3; 2015 SCC 7, refd to. [para. 9].

Leggat et al. v. Jennings et al., 2015 ONSC 237, affd. [2014] O.A.C. Uned. 673; 2014 ONCA 754, refd to. [para. 13].

Conlon v. Conlons Ltd., [1952] 2 All E.R. 462; [1952] 2 T.L.R. 343 (C.A.), refd to. [para. 14].

Nowak v. Sanyshyn (1979), 23 O.R.(2d) 797; 9 C.P.C. 303 (H.C.), refd to. [para. 14].

Wesley et al. v. Alberta et al. (2015), 599 A.R. 188; 643 W.A.C. 188; 2015 ABCA 76, refd to. [para. 28].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 29].

Davies v. American Home Assurance Co. (2002), 162 O.A.C. 92; 60 O.R.(3d) 512 (Div. Ct.), refd to. [para. 30].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 30].

Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. et al. (1995), 27 O.R.(3d) 291 (Gen. Div.), refd to. [para. 42].

Husky Oil Operations Ltd. et al. v. MacKimmie Matthews et al. (1999), 241 A.R. 115; 1999 ABQB 54, refd to. [para. 43].

Metcalfe et al. v. Metcalfe (2001), 153 Man.R.(2d) 207; 238 W.A.C. 207; 2001 MBCA 35, refd to. [para. 44].

Counsel:

J.R.W. Rath, M.C. Freeman and D. Khan, for the appellants;

K.D. Epton, for the respondent, Her Majesty the Queen in Right of Alberta;

L.A. Maj, for the respondent, The Attorney General of Canada.

This appeal was heard on March 30, 2015, in Edmonton, Alberta, before Rowbotham, O'Ferrall and Wakeling, JJ.A., of the Alberta Court of Appeal. The memorandum of the court was filed on July 27, 2015, including the following opinions:

Rowbotham and Wakeling, JJ.A. - see paragraphs 1 to 19;

O'Ferrall, J.A., dissenting - see paragraphs 20 to 47.