Wesley et al. v. Alberta et al., (2013) 574 A.R. 299 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 15, 2013
• Citations: (2013), 574 A.R. 299 (QB);2013 ABQB 344

Wesley v. Alta. (2013), 574 A.R. 299 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.003

Chief Ernest Wesley and Councillors Robert Crawler, Tater House, Clifford Poucette and Rufus Twoyoungmen of the Wesley First Nation, being a part of the Stoney Indian Band, suing on behalf of all the other members of the Wesley First Nation, who are also all members of the Stoney Indian Band and Chief Darcy Dixon and Councillors Donald Thomas Dixon, Rodrick Hunter, Keith Lefthand and Gordon Wildman of the Bearspaw First Nation, being a part of the Stoney Indian Band, suing on behalf of all the other members of the Bearspaw First Nation, who are also all members of the Stoney Indian Band and Chief Aaron Young and Councillors Frank Crawler, Henry Holloway, Homer Holloway, and Gerald Kaquitts of the Chiniki First Nation, being part of the Stoney Indian Band, suing on behalf of all the other members of the Chiniki First Nation, who are also all members of the Stoney Indian Band and Chief Ernest Wesley and Councillors Robert Crawler, Tater House, Clifford Poucette, Rufus Twoyoungmen and Chief Darcy Dixon and Councillors Donald Thomas Dixon, Rodrick Hunter, Keith Lefthand and Gordon Wildman and Chief Aaron Young and Councillors Frank Crawler, Homer Holloway, Henry Holloway, and Gerald Kaquitts suing on their own behalf and on behalf of all other members of the Stoney Indian Band, which comprises the members of the Wesley, Bearspaw and Chiniki First Nations, ("Iyårhe Nakoda") and The Stoney Indian Band (plaintiffs) v. Her Majesty the Queen in Right of the Province of Alberta and the Attorney General of Canada (defendants)

(0301 19586; 2013 ABQB 344)

Indexed As: Wesley et al. v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

November 15, 2013.

Summary:

The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta. The case had been in case management for eight years and the parties had just begun questioning. Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871. The plaintiffs applied to compel answers to questions and undertakings.

The Alberta Court of Queen's Bench determined the issues.

Practice - Topic 4249

Discovery - Examination - Persons who may be examined - Statutory bodies and Crown agents - Representative of - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - At issue in the plaintiffs' application was, inter alia, whether Hughes was a proper representative under rule 5.17 of the Rules of Court - The plaintiffs gave advance notice of its many questions and yet over the course of five days very few were answered by Hughes - Canada argued that questioning had not been productive or cost-effective - The plaintiffs argued that any time wasted was attributable to problems with Hughes' ability to answer questions and to the resistance of the Crown - The Alberta Court of Queen's Bench held that despite the difficulties experienced during this five day period of questioning, Hughes would not be removed - The selection of a representative should not be lightly disturbed if the selection was made honestly and reasonably, and the officer could provide the required information - See paragraphs 108 to 114.

Practice - Topic 4252

Discovery - Examination - Range of - Questions related to or relevant and material to issues between the parties - [See all Practice - Topic 4259 ].

Practice - Topic 4256

Discovery - Examination - Range of - Opinion - [See second Practice - Topic 4259 ].

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 21, 32, 39 and 88, the parties disagreed on which legal principles governed questions that sought answers about historical facts outside living memory (historical matters) - The Alberta Court of Queen's Bench reviewed two divergent lines of authority from British Columbia and the Federal Court - The court held that the more persuasive line of authority was that of the Federal Court, which "requires representatives to respond to questions of historical fact, whether within or outside living memory. ... This formulation is preferable as it best promotes the purposes of the disclosure and exchange of information contained in rules 5.1 and 5.2; it more fully acknowledges the role and responsibilities of a representative of the Crown or any continuing body; and takes into consideration the distinctive context of this type of litigation, including the goal of promoting equity between the parties." - A representative was therefore required to answer questions of historical fact, whether or not they arose outside what had been called living memory - Questions of historical fact did not, in all circumstances, require expert opinion or interpretation - As a matter of legal principle, it was appropriate for Canada and all other parties to this proceeding to be compelled to state their position or understanding in respect to historical fact - See paragraphs 26 to 55.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 21, 32, 39 and 88, the parties were divided on how questions concerning historical matters should be characterized on the continuum between historical facts and matters of opinion - The Alberta Court of Queen's Bench stated that "[s]ometimes historical questions cannot be answered using pure facts, even after careful research, and accordingly require the historical opinion of an expert to answer fully. Some guidance may be provided by inquiring whether the impugned question is the type of inquiry that would provide the foundation for an expert's opinion and therefore qualify as fact or whether it requires a detailed and specific analysis of facts necessary to answer, or calls for an interpretation, analysis or statement that is more likely to become the opinion portion of the expert's evidence. ... The answer to a particular question may involve facts from one document or a series of documents. The fact that multiple sources need to be consulted does not change this from a matter of fact to a matter of opinion. It simply modifies where that fact can be found and what processes are necessary to both discover and communicate it." - See paragraphs 56 to 62.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 21, 32, 39 and 88, the parties disagreed on which legal principles governed questions that sought answers about historical facts outside living memory (historical matters) and were divided on how questions concerning historical matters should be characterized on the continuum between historical facts and matters of opinion - The Alberta Court of Queen's Bench reviewed the sample questions and undertakings request and reasons for objections and determined that items 21, 32, 39 and 88 should be answered as they were generally matters of fact, not opinion - See paragraphs 63 to 71.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 26 and 76, Canada objected on the basis that a deponent with no expertise in analyzing historical documents could not be questioned at discovery with regards to his opinion or interpretation of those documents - The Alberta Court of Queen's Bench held that it was clear that the documents in question might be the basis of much factual information - Accordingly, the questions should be answered to provide Canada's understanding of the facts represented therein - See paragraphs 72 to 77.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 81 and 91, Canada objected on the basis that the questions required the representative to speculate - The Alberta Court of Queen's Bench confirmed that "[l]ay witnesses cannot be asked to speculate or answer questions about hypothetical scenarios where their answer would be based on pure conjecture." - However, the questions were not to be labelled speculative only on account of the use of the word "could" - Canada needed to supply any information it might have as it was merely being called upon to elucidate its knowledge or position on the issues - As well, Canada should provide self-evident answers - See paragraphs 87 to 89.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 79 and 97, Canada objected on the basis that the questions were overly broad and would require Canada to embark on large scale historical research - The Alberta Court of Queen's Bench held that parties could not resist answering questions by a blanket and unsubstantiated claim that to do so would be too onerous - There needed to be an attempt to answer what was relevant and material - In limited instances, a party might be able to establish a specific explanation of how the request was disproportionate to its value - That had not been done in relation to these questions and Canada was to take necessary steps to answer them - See paragraphs 90 to 94.

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 69 and 103, Canada objected on the basis that the questions related to an irrelevant matter - The Alberta Court of Queen's Bench ordered Canada's representative to answer the questions - The first question was relevant to the proceedings because it was a fact and circumstance surrounding the making of Treaty 7, that was important to the plaintiffs' perspective and what might have been informed their participation in the treaty making process - The second question had an obvious relevance because the plaintiffs were entitled to know what other aboriginal groups might have been present in the territory which they claimed in the present proceedings - Such matters were raised from the pleadings as the plaintiffs claimed aboriginal title and rights in the lands defined as "Traditional Lands" - See paragraphs 103 to 107.

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 15 and 16, Canada objected on the basis that the questions sought to elicit privileged information of communications where they related to the manner in which Canada researched documents and prepared its document production - Canada further argued that the questions were premature - The Alberta Court of Queen's Bench rejected the assertion and ordered Canada's representative to answer the questions - Canada argued that the plaintiffs' questions were tantamount to the disclosure of Canada's research plan - This was too broadly stated as there were many other reasons why a search might or might not have been made that had nothing to do with privilege - The questions posed were generally good ones and it was only when the particular answer related specifically to privilege could such be claimed for that particular inquiry, at the appropriate time and in the appropriate manner - A claim of privilege did not operate generally, without more, across a whole category of questioning to prevent any form of inquiry - It did not seem reasonable to postpone an answer if it currently existed - See paragraphs 95 to 102.

Practice - Topic 4262

Discovery - Examination - Range of - Questions about legal issues - The plaintiffs brought an action, asserting various types of aboriginal rights over lands and resources covering much of the southern portion of the province of Alberta - The case had been in case management for eight years and the parties had just begun questioning - Questioning of Canada's representative (Hughes) by the plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871 - The plaintiffs applied to compel answers to questions and undertakings - With respect to items 1, 25, 58 and 64, Canada argued that these were questions of law - The Alberta Court of Queen's Bench confirmed that questions of law were not permissible on discovery, either generally or in relation to aboriginal rights litigation - A witness could not be required to state the "material representations" alleged in its pleading, or to explain the facts supporting an allegation of failure to fulfill promises, duties and obligations - The court determined whether the items should be answered - See paragraphs 78 to 86.

Cases Noticed:

Reading & Bates Construction Co. v. Baker Energy Resources Co., Baker Marine Co. and Gaz Inter-Cité Quebec Inc. (1988), 25 F.T.R. 226 (T.D.), refd to. [para. 12].

Taylor et al. v. Canada (1992), 46 F.T.R. 53 (T.D.), refd to. [para. 12].

Rule-Bilt Ltd. v. Shenkman Corp. Ltd. et al. (1977), 4 C.P.C. 256 (Ont. S.C. Master), refd to. [para. 12].

Ironside v. Wong (2003), 334 A.R. 192; 2003 ABQB 161, refd to. [para. 13].

Hunka et al. v. Degner et al., [2011] A.R. Uned. 72; 2011 ABQB 195, refd to. [para. 15].

Mustard v. Brache (2006), 397 A.R. 361; 384 W.A.C. 361; 2006 ABCA 265, refd to. [para. 15].

Quality Investments Ltd. v. Curtis Engineering and Testing Ltd. et al. (1986), 65 A.R. 57 (C.A.), refd to. [para. 17].

Can-Air Services Ltd. v. British Aviation Insurance Co. et al. (1988), 91 A.R. 258 (C.A.), refd to. [para. 17].

Weatherill Estate v. Weatherill et al. (2003), 337 A.R. 180; 2003 ABQB 69, refd to. [para. 18].

Corbett et al. v. Samsports.Com Inc. (2007), 417 A.R. 15; 410 W.A.C. 15; 2007 ABCA 151, refd to. [para. 20].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 22].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 22].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 23].

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 23].

Martin v. British Columbia (1986), 3 B.C.L.R.(2d) 60 (S.C.), consd. [para. 27].

Uukw (Tait) v. British Columbia (1986), 7 B.C.L.R.(2d) 325 (S.C.), consd. [para. 27].

Chingee v. British Columbia (1989), 38 C.P.C.(2d) 301 (S.C.), consd. [para. 27].

McLeod Lake Indian Band v. British Columbia et al., [1997] B.C.T.C. Uned. C94; 1997 CarswellBC 1894 (S.C.), refd to. [para. 34].

McLeod Lake Indian Band v. British Columbia et al., 1998 CanLII 3843 (B.C.S.C.), refd to. [para. 35].

Montana Indian Band v. Canada et al. (2000),172 F.T.R. 46 (T.D.), consd. [para. 38].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1991), 42 F.T.R. 40 (T.D.), consd. [para. 38].

Alberta Lime Co. v. Alberta (Minister of Resource Development) et al., [2005] A.R. Uned. 895; 2005 ABQB 818, refd to. [para. 42].

Mikisew Cree First Nation v. Canada et al. (2003), 341 A.R. 365; 2003 ABQB 316, refd to. [para. 42].

Taylor et al. v. Alberta Teachers' Association, [2002] A.R. Uned. 481; 2002 ABQB 554, refd to. [para. 42].

Dick v. R., [1993] 1 C.N.L.R. 50 (F.C.T.D.), refd to. [para. 45].

Cardinal et al. v. Canada (1996), 110 F.T.R. 241 (T.D. Protho.), affd. (1996), 118 F.T.R. 114 (T.D.), affd. (1998), 222 N.R. 218 (F.C.A.), refd to. [para. 45].

Stoney Indian Band v. Canada (2005), 329 N.R. 201; 2005 FCA 15, refd to. [para. 51].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 53].

Weldwood of Canada Ltd. v. Alta-Stran Inc., [1997] A.J. No. 169 (Q.B.), refd to. [para. 58].

Polansky Electronics Ltd. v. AGT Ltd. et al. (1997), 205 A.R. 43 (Q.B.), refd to. [para. 58].

Borys v. C.P.R. and Imperial Oil, [1950] 1 W.W.R. 1093 (C.A.), refd to. [para. 58].

Syncrude Canada Ltd. et al. v. Canadian Bechtel Ltd. et al. (1990), 112 A.R. 131; 76 Alta. L.R.(2d) 327 (Q.B. Master), refd to. [para. 58].

Common Wealth Credit Union Ltd. v. Waylan Mechanical Ltd. et al., [2008] A.R. Uned. 274; 2008 ABQB 96, refd to. [para. 72].

United Nurses of Alberta v. Alberta Association of Registered Nurses and Kerr (1986), 70 A.R. 241 (Q.B.), refd to. [para. 72].

Alberta (Provincial Treasurer) v. National Bank of Canada et al. (1995), 172 A.R. 282 (Q.B. Master), refd to. [para. 73].

Hongkong Bank of Canada v. Sheckter, 1989 CarswellAlta 880, refd to. [para. 87].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347; 2008 ABCA 220, refd to. [para. 87].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 45 O.R.(3d) 321 (C.A.), refd to. [para. 97].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 97].

Hickman v. Taylor (1947), 329 U.S. 495, refd to. [para. 97].

Rozak Estate v. Demas et al. (2011), 509 A.R. 337; 2011 ABQB 239, refd to. [para. 97].

Canadian Natural Resources Ltd. v. ShawCor Ltd. et al. (2013), 559 A.R. 66; 2013 ABQB 230, refd to. [para. 98].

Shell Canada Ltd. et al. v. Superior Plus Inc. et al., [2007] A.R. Uned. 782; 2007 ABQB 739, refd to. [para. 98].

Catalyst Partners Inc. v. Meridian Packaging Ltd. et al. (2007), 417 A.R. 7; 410 W.A.C. 7; 2007 ABCA 201, refd to. [para. 98].

Ermineskin Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2002] F.T.R. Uned. 581; 2002 FCT 890, refd to. [para. 113].

Ermineskin Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 3 F.C. 544; 99 F.T.R. 226 (T.D.), refd to. [para. 113].

Counsel:

James O'Reilly and W. Tibor Osvath, for the plaintiffs;

Everett L. Bunnell, Q.C., and B. Younggren, for the defendant, Her Majesty the Queen in Right of Alberta;

Damon Park and Bruce Piller, for the defendant, the Attorney General of Canada.

This application was heard on May 30 and 31, 2013, by Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on November 15, 2013.