Goodswimmer et al. v. Canada et al., (2014) 591 A.R. 373 (QB)

• Judge: Sulyma, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 22, 2014
• Citations: (2014), 591 A.R. 373 (QB);2014 ABQB 726

Goodswimmer v. Can. (2014), 591 A.R. 373 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. DE.052

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 (plaintiffs) v. The Attorney General of Canada and Her Majesty the Queen in Right of Alberta (defendant) and The Attorney General of Canada and Her Majesty the Queen in Right of Alberta (third party)

(9703 06332; 2014 ABQB 726)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sulyma, J.

December 4, 2014.

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 ordered the Band to answer the questions.

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 - 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 or settlement privilege - Canada and Alberta sought to have the undertakings answered - The Alberta Court of Queen's Bench held that the Band, by its pleadings, had voluntarily asserted a claim which made its knowledge of the law relevant - It would be unfair to permit a party who had set up a claim based on privileged communications to preclude his opponent from discovering against that claim by relying upon the privilege - Fairness dictated disclosure here - Therefore, the Band was ordered to answer questions previously refused that related to legal advice.

Cases Noticed:

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co., 1992 CanLII 6132 (Q.B.), refd to. [para. 6].

Alberta Wheat Pool v. Dawson Resources Ltd. et al. (1986), 75 A.R. 348 (Q.B.), refd to. [para. 6].

Alberta Wheat Pool v. Estrin - see Alberta Wheat Pool v. Dawson Resources Ltd. et al.

Ermineskin First Nation et al. v. Canada, [2011] F.T.R. Uned. 699; 2011 FC 1091, refd to. [para. 6].

Nowak v. Sanyshyn (1979), 23 O.R.(2d) 797 (H.C.), refd to. [para. 7].

Reklitis v. Whitehall Estates Ltd. (1993), 17 C.P.C.(3d) 193 (Ont. Gen. Div.), refd to. [para. 7].

Burlingham Associates Inc. v. Osadchuk (1993), 114 Sask.R. 113 (Q.B.), refd to. [para. 7].

Rogers v. Bank of Montreal, [1985] 4 W.W.R. 508 (B.C.S.C.), refd to. [para. 7].

Doman Forest Products Ltd. et al. v. GMAC Commercial Credit Corp. - Canada (2004), 204 B.C.A.C. 208; 333 W.A.C. 208; 2004 BCCA 512, refd to. [para. 7].

Iozzo v. Weir et al. (2004), 356 A.R. 115; 2004 ABQB 259, refd to. [para. 7].

Goodswimmer et al. v. Canada et al. (2005), 385 A.R. 131; 2005 ABQB 479, refd to. [para. 15].

O'Scolai et al. v. Antrajenda (2008), 447 A.R. 357; 2008 ABQB 77, refd to. [para. 18].

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. 18].

Petro Can Oil & Gas Corp. et al. v. Resource Service Group Ltd. (1988), 90 A.R. 220; 32 C.P.C.(2d) 50 (Q.B.), refd to. [para. 29].

Counsel:

Jeffrey Rath and Mark Freeman (Rath & Company), for the plaintiffs;

Linda Maj and Sheila M. Read (Department of Justice Canada), for the defendant, the Attorney General of Canada;

Lisa Semenchuk and Doug Titosky (Alberta Justice, Aboriginal Law), for the defendant, Her Majesty the Queen in Right of Alberta.

This matter was heard on April 22, 2014, before Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 4, 2014.