Ross River Dena Council v. Canada (Attorney General),

• Jurisdiction: Yukon
• Judge: Gower, J.A.
• Neutral Citation: 2009 YKCA 2
• Citation: (2009), 270 B.C.A.C. 22 (YukCA),2009 YKCA 2,270 BCAC 22,(2009), 270 BCAC 22 (YukCA),270 B.C.A.C. 22
• Subject Matter: PRACTICE
• Date: 27 March 2009
• Court: Court of Appeal (Yukon Territory)

Ross River Dena Council v. Can. (A.G.) (2009), 270 B.C.A.C. 22 (YukCA);

    454 W.A.C. 22

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JN.030

Ross River Dena Council (respondent/plaintiff) v. The Attorney General of Canada (appellant/defendant)

Ross River Dena Council (respondent/plaintiff) v. The Attorney General of Canada on behalf of and as a representative for Her Majesty the Queen in Right of Canada (appellant/defendant)

(08-YU627; 2009 YKCA 2)

Indexed As: Ross River Dena Council v. Canada (Attorney General)

Yukon Court of Appeal

Gower, J.A.

March 27, 2009.

Summary:

A plaintiff applied for the production of a Report, dated June 17, 1982. The Report was a historical and anthropological review of the submission of the Kaska Dena Council for recognition of their comprehensive land claim in northern British Columbia. It was prepared by a researcher on contract to the Department of Indian Affairs and Northern Development.

The Yukon Supreme Court, in a decision reported at 2009 YKSC 4, ordered the production of the Report. The defendant appealed and applied for a stay of execution of the order pending appeal.

The Yukon Court of Appeal, per Gower, J.A., allowed the application.

Practice - Topic 5948

Judgments and orders - Enforcement of orders - Stay of - A plaintiff applied for the production of a Report, dated June 17, 1982 - The Report was a historical and anthropological review of the submission of the Kaska Dena Council for recognition of their comprehensive land claim in northern British Columbia - It was prepared by a researcher on contract to the Department of Indian Affairs and Northern Development - The defendant objected to producing the Report on the grounds that it was irrelevant; its production was premature, since discovery had not yet taken place; and that it was subject to either solicitor-client or settlement privilege - The application judge ordered the production of the Report - The defendant appealed and applied for a stay of execution of the order pending appeal - The Yukon Court of Appeal, per Gower, J.A., allowed the application - There were serious issues to be tried - Although it remained unclear why the defendant was adamant that the Report not be released, that was not a question to be resolved at this stage - The defendant obviously had its reasons for wanting to protect the Report and the court had to assume that there might be certain facts contained therein which, although not in the nature of normal lawyer-client communications, were either sensitive, or important for other reasons to remain confidential - Further, notwithstanding the creative conditions suggested by the plaintiff's counsel to minimize the risk of such irreparable harm, the court remained unpersuaded that they would eliminate that risk altogether - Finally, the balance of convenience favoured the defendant.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See Practice - Topic 5948 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Practice - Topic 5948 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 4].

Gonder v. Gonder, 2001 YKCA 4, refd to. [para. 4].

Miller v. Lougheed Ventures Ltd. (1990), 70 D.L.R.(4th) 160 (B.C.C.A.), refd to. [para. 5].

Coburn v. Nagra (2001), 159 B.C.A.C. 299; 259 W.A.C. 299; 96 B.C.L.R.(3d) 327; 2001 BCCA 607, refd to. [para. 5].

Kiewit (Peter) & Sons Co. v. Perry et al. (2006), 226 B.C.A.C. 280; 373 W.A.C. 280; 2006 BCCA 259, refd to. [para. 5].

Sidhu Estate et al. v. Darbar et al., [2003] B.C.A.C. Uned. 5; 2003 BCCA 3, refd to. [para. 5].

Gill v. Darbar - see Sidhu Estate et al. v. Darbar et al.

Taylor, Re (1986), 4 B.C.L.R.(2d) 15 (C.A.), refd to. [para. 5].

Whitehorse (City) v. Darragh (2008), 264 B.C.A.C. 139; 445 W.A.C. 139; 2008 YKCA 19, refd to. [para. 7].

White v. E.B.F. Manufacturing Ltd. (2005), 229 N.S.R.(2d) 375; 725 A.P.R. 375; 2005 NSCA 17, refd to. [para. 10].

O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat) (2001), 193 N.S.R.(2d) 8; 602 A.P.R. 8; 2001 NSCA 47, refd to. [para. 11].

Stewart McKelvey Stirling Scales v. Nova Scotia Barristers' Society et al. (2005), 238 N.S.R.(2d) 293; 757 A.P.R. 293; 2005 NSCA 149, refd to. [para. 12].

Ericsson Inc. v. Novatel Inc. et al. (2001), 281 A.R. 345; 248 W.A.C. 345; 2001 ABCA 170, refd to. [para. 16].

Counsel:

Suzanne M. Duncan, for the appellant;

Stephen L. Walsh, for the respondent.

This application was heard by Gower, J.A., of the Yukon Court of Appeal, who delivered the following reasons for judgment on March 27, 2009.