Date: 20210401

Docket: T-238-80

Citation: 2021 FC 280

Ottawa, Ontario, April 1, 2021

PRESENT: The Honorable Mr. Justice Zinn

BETWEEN:

JIM SHOT BOTH SIDES AND ROY FOX, CHARLES FOX, STEVEN FOX, THERESA FOX, LESTER TAILFEATHERS, GILBERT EAGLE BEAR, PHILLIP MISTAKEN CHIEF, PETE STANDING ALONE, ROSE YELLOW FEET, RUFUS GOODSTRIKER, AND LESLIE HEALY, COUNCILLORS OF THE BLOOD BAND, FOR THEMSELVES AND ON BEHALF OF THE INDIANS OF BLOOD BAND RESERVE NUMBER 148; AND THE BLOOD RESERVE NUMBER 148

Plaintiffs

and

HER MAJESTY THE QUEEN

Defendant

ORDER AND REASONS

[1] This action by the Plaintiffs [the Blood Tribe] relates to the size of the Blood Reserve [Reserve 148] in Southern Alberta. By Judgment dated June 12, 2019, following the conclusion of the evidence received at Phases I and II of the action, I ruled that Canada breached the treaty land entitlement provisions of Treaty 7, and that the Blood Tribe was entitled to a Reserve of 710 square miles, whereas Reserve 148 is 547.5 square miles. Phase III of this action will address the remedy for the 162.5 square mile shortfall. On July 23, 2019, I ordered that Phase III of the trial would commence on May 3, 2021, for a duration of no more than 40 days.

[2] On February 12, 2021, Canada filed two motions [Canada’s Motions]. The first was a motion to compel the Blood Tribe to answer certain questions posed on the written examination for discovery [the Motion to Compel]. The second was a motion to adjourn Phase III of the trial [the Motion to Adjourn].

[3] In support of Canada’s Motions, Canada filed an affidavit of Lynda Sturney, Team Leader, Specific Claims Branch, Crown-Indigenous Relations and Northern Affairs Canada (CIRNA) [the Sturney Affidavit]. Her affidavit is based on personal knowledge, and information and belief. She describes having worked for CIRNA since 1991 in various capacities “including as a researcher, senior researcher, and project manager.” She attests that she is the “Project Manager for Phase III of the Jim Shot Both Sides Trial.”

[4] The Blood Tribe filed responding materials to Canada’s Motions. In addition, the Blood Tribe brings a Cross-Motion to dismiss Canada’s Motions, or strike the Sturney Affidavit. It seeks:

a) An Order pursuant to Rule 97(d) of the Federal Courts Rules dismissing Her Majesty the Queen’s Motion to Adjourn Phase III of the Trial, as filed February 16, 2021 (the “Motion to Adjourn”).

b) Further, an Order pursuant to Rules 97(c), 81(2), and 99(2) of the Federal Courts Rules:

(a) Striking the Affidavit of Linda Sturney, affirmed February 12, 2021 (the “Sturney Affidavit”), whether in whole or in part, from the Motion Records of the Her Majesty The Queen (“HMTQ”), both filed February 16, 2021;

(b) Specifying that, in relation to those parts of the Sturney Affidavit not struck (if any), the Court will draw an adverse inference as a result of Her Majesty The Queen’s failure to provide evidence of persons having personal knowledge of material facts relevant to the motions being argued; and

(c) Striking the following questions from Canada’s Written Examination, dated October 30, 2020 (the “Written Examination”), and directing that the Plaintiffs are not required to answer the following:

(i) Questions 8-9;

(ii) Questions 14-18;

(iii) Questions 21-23; and

(iv) Questions 28-29

(Collectively, the “Impugned Examination Questions”)

c) The costs of this motion in accordance with Column V of Tariff B of the Rules.

d) Such other and further relief as counsel may advise and this Court may permit.

[5] The parties agreed on the necessary COVID-19 arrangements and precautions that would be observed in order for the Blood Tribe to cross-examine Ms. Sturney on her affidavit. It was agreed that the cross-examination would take place on February 22 and 23, 2021.

[6] On February 18, 2021, the Blood Tribe served Ms. Sturney with a Direction to Attend. It directed her to bring to the examination the following documents and things:

(1) The correspondence or other records from the Defendant’s experts regarding the evidence and assertion in your affidavit that the Defendant’s experts require further materials not available to them to complete their work before the trial scheduled to begin on May 3, 2021.

(2) The correspondence or other records from the Defendant’s experts regarding the statements and assertion in your affidavit that the Defendant’s experts do not have time to complete their work before the trial scheduled to begin on May 3, 2021.

(3) The correspondence from Legal Director providing you the information at paragraph 13 of your affidavit.

(4) The requisite documentation submitted in September 2020 referenced at paragraph 14 of your affidavit.

(5) Both the contracts referenced at paragraph 15 of your affidavit.

(6) Both the initial contract and subsequent contract referenced at paragraph 16 of your affidavit.

(7) All of the contracts referenced at paragraph 17 of your affidavit.

(8) The contract amendment referenced at paragraph 18 of your affidavit.

(9) The contract amendment referenced at paragraph 44 of your affidavit.

(10) All contracts in relation to Phase III of this action between the Defendant and Altus Group Limited and any of its affiliates.

(11) All contracts in relation to Phase III of this action between the Defendant and John Farmer.

(12) All contracts in relation to Phase III of this action between the Defendant and other expert witness intended to be called by the Defendant in Phase III of the trial.

[7] Canada objected to producing all of the requested documents, taking the position that “each and every document listed in the Direction to Attend is either privileged pursuant to Rule 94(1) or is irrelevant pursuant to Rule 94(2).” The Blood Tribe responded, submitting that privilege had been waived due to the contents of Ms. Sturney’s affidavit.

[8] At the cross-examination, Canada objected to more than 50% of the questions asked and refused to give any undertaking.

[9] The Blood Tribe submits that the effect of Canada’s “objections and refusals was to defeat the purposes of the cross-examination” and the Plaintiffs seek “relief pursuant to Rule 97 of the Federal Courts Rules in relation to the misconduct carried out by the Crown regarding cross-examination on the Affidavit of Lynda Sturney.”

[10] Rule 97 provides as follows:

97 Where a person fails to attend an oral examination or refuses to take an oath, answer a proper question, produce a document or other material required to be produced or comply with an order made under Rule 96, the Court may

(a) order the person to attend or re-attend, as the case may be, at his or her own expense;

(b) order the person to answer a question that was improperly objected to and any proper question arising from the answer;

(c) strike all or part of the person’s evidence, including an affidavit made by the person;

(d) dismiss the proceeding or give judgment by default, as the case may be; or

(e) order the person or the party on whose behalf the person is being examined to pay the costs of the examination.

[11] The Blood Tribe submits that Canada and its affiant have failed to “answer a proper question [and] produce a document or other material required to be produced” and accordingly asks the Court to dismiss the Motion to Adjourn and strike the Affidavit of Lynda Sturney from the records in Canada’s Motions.

[12] The Blood Tribe further submits that Canada failed to render a suitable affiant in support of its motions who has personal knowledge of the facts attested to by Ms. Sturney. It submits that for those reasons, paragraphs 21, 28, 36-39, 42-43, 46, 53-56, and Exhibit R of her affidavit ought to be struck.

[13] It also asks that the Court strike Canada’s written questions that are at the heart of the Motion to Compel, in part because of Canada’s conduct on this examination, as well as for the reasons its sets out in response to that motion. In my view, this particular matter is more appropriately dealt with when considering the Motion to Compel.

[14] As with Canada’s Motions, the shortness of time does not permit me the luxury of responding in full detail to the hundreds of pages filed on this motion. I assure the parties that I have read all of their materials and submissions.

[15] There is no doubt that an affiant is required to answer questions on matters that have been set out in the affidavit, as well as any collateral questions arising from those answers. An examiner need not blindly accept the answers given and statements made, but is entitled to test them. As was noted by Prothonotary Tabib in Autodata Ltd v Autodata Solutions Co, 2004 FC 1361, at paragraph 19: “a cross-examination on affidavit is not a discovery.” She goes on to say:

If a party is not required to "accept" a witness' bald assertion in cross-examination, it is however, limited in its endeavours to test that assertion to the questions it may put to the witness and the witness' answers in the course of the cross-examination. To the extent documents exist that can buttress or contradict the witness' assertion, production may only be enforced if they have been listed, or sufficiently identified, in a direction to attend duly served pursuant to Rule 91(2)(c) (see Bruno v. Canada (Attorney General), [2003] F.C.J. 1604). I reiterate: a cross-examination on an affidavit is the direct testimonial evidence of the witness, not a discovery of the party.

[16] However, simply listing a document in a Direction to Attend does not automatically entitle the party opposite to disclosure of it, nor to cross-examine concerning it. It must be relevant for the purposes of the cross-examination and it must not be subject to privilege.

[17] Here, Canada has invoked litigation privilege over the documents requested in the Direction to Attend, and as regards some of the questions to which it objected in the cross-examination. Litigation privilege is established on a document-by-document basis. The party claiming that privilege must establish: (1) that litigation was ongoing or was reasonably contemplated at the time the document was created, and (2) that the dominant purpose of creating the document was to prepare for that litigation: see PMG Technologies Inc v Canada (Transport), 2018 FC 344 at paragraph 18.

[18] Litigation privilege can only be abrogated by “a clear, explicit and unequivocal provision to that effect”: Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52 at paragraph 5. Litigation privilege may also be waived, expressly or impliedly, by the holder of the privilege. Here, the Blood Tribe submits that Canada has impliedly waived its litigation privilege over the documents it seeks.

[19] Justice McLachlin, as she then was, in S&K Processors Ltd v Campbell Ave Herring Producers Ltd (1983), 1983 CanLII 407 (BC SC), 45 BCLR 218 (BCSC) at paragraph 6 stated that “waiver may also occur in the absence of an intention to waive, where fairness and consistency so require.”

[20] Implied waiver of privilege has been found where a party makes a privileged document the basis of an affidavit. This exception permits the party opposite to cross-examine on the affidavit regarding questions of credibility, grounds, and sources of the document. Waiver will be implied in this situation because it is unfair to allow a party to rely on a document to support his motion and yet not allow the adverse party to cross-examine on it.

[21] In Ermineskin First Nation v Canada, 2011 FC 1091 [Ermineskin], Canada filed an affidavit in support of its motion seeking a late amendment of its pleading. In that affidavit, Ms. Sturney attested at paragraph 12: “I am advised by my counsel that the Crown believed that its existing pleadings were adequate ….” The Plaintiff was successful in its motion to compel disclosure of that advice on the ground that privilege had been waived by reference to it in the affidavit. At paragraph 47, the Court references the five established principles regarding implied waiver, set out in Mahjoub (Re), 2011 FC 887, [2011] FCJ No 1125 at paragraph 10:

(a) waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. S. & K. Processors Ltd. v Campbell Ave. Herring Producers Ltd (1983), 1983 CanLII 407 (BC SC), 35 CPC 146, 45 BCLR 218 (SC) (S & K);

(b) where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost. (S & K);

(c) in cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent. The law then says that in fairness and consistency, it must be entirely waived. (S & K);

(d) the privilege will deemed to have been waived where the interests of fairness and consistency so dictate or when a communication between a solicitor and client is legitimately brought into issue in an action. Bank Leu Ag v Gaming Lottery Corp., [1999] OJ No 3949 (Lexis); (1999), 43 C.P.C. (4^th) 73 (Ont. S.C.) at paragraph 5;

(e) the onus of establishing the waiver rests on the party asserting waiver of the privilege. (S & K at paragraph 10).

[22] In Ermineskin, the Court found that paragraph 12 of the affidavit, “is about injecting in the process the Crown’s legal advice as an element to explain its delay in seeking amendments to its statement of defence.” Having expressly put that advice at issue in the affidavit to support its motion, the Court found that privilege had been waived.

[23] Applying these principles to Canada’s Motions, I find that the issues for which Ms. Sturney’s affidavit are directed are two-fold: (1) The reasons why Canada is unable to be properly prepared to commence the trial on May 3, 2021, and (2) the basis on which Canada’s written questions to which the Blood Tribe objects are relevant and proper.

[24] Turning first to the documents the Blood Tribe requested in its Direction to Attend.

[25] I agree with Canada as regards items 1 and 2, that the affidavit does not reference correspondence or other records from Canada’s potential experts, nor does it state that Canada’s potential experts require further material to complete their work and litigation privilege is not waived when an affidavit does not directly refer to the material sought to be disclosed. These documents are not producible.

[26] As to item 3, the correspondence (if the advice was in written form) from the Legal Director providing Ms. Sturney the information at paragraph 13 of her affidavit is directly referenced by Ms. Sturney and any litigation privilege is impliedly waived. Any written communication is producible.

[27] Item 4, the “requisite documentation submitted in September 2020 referenced at paragraph 14 of your affidavit” is too broad a request. The affidavit contains a mere mention of such documentation. It is not put directly at issue by Canada and is not producible.

[28] Items 5 to 12 all relate to contracts. They are not producible as they are privileged. I agree with Canada that “mere references to researcher contracts in the affidavit do not, by themselves, result in waiver of litigation privilege” See James et al v Maloney, 1972 CanLII 518 (ON SC), and Solex Energy Ltd v Emerging Alberta Resource Corp, 1993 CarswellAlta 233, 146 AR 228.

[29] I turn next to Canada’s “refusal” to give undertakings as a basis to say that the cross-examination was adversely impacted. I agree with Justice Hugessen’s astute observation in Ward v Samson Cree Nation, 2001 FCT 990 at paragraph 3 that there is no such requirement on a cross-examination:

It is quite clear from an examination of the transcript that no undertakings were in fact given. That is entirely normal since on a cross-examination on an affidavit there is no obligation on the part of the witness to be informed and thus no requirement that she further inform herself. If the witness cannot elucidate upon any of the facts deposed to that may go to her credibility but that is all. Even credibility is unlikely to be much affected where the question relates to the contents of ancient documents to which the witness was not a party and which most probably predate her lifetime by many years. Cross-examination on an affidavit is not a substitute for examination for discovery either oral or documentary and is not the proper method of obtaining relevant documents in the possession of the opposite party. Finally, it is clear that, the witness not being the legal representative of the party who has produced her, she cannot be made to state that party's position on any fact in issue. My views on the differences between examination for discovery and cross-examination on affidavits were fully stated as follows in Merck Frosst Canada Inc. v. Canada (Minister of Health),(1997) 1997 CanLII 26719 (FCTTD), 146 F.T.R. 249 or (1997) 80 C.P.R (3d) 550.

[30] Lastly, there are the questions asked to which Canada objected to being answered. These are numerous and, for the sake of efficiency, I shall categorize them as Canada did in its Schedule A to its memorandum.

A. Choice of Affiant.

[31] I agree with Canada that its choice of affiant for Canada’s Motions are a matter of solicitor-client privilege and litigation privilege, and it has not been waived. As Canada notes, the Blood Tribe is free to ask the Court to draw an adverse inference, as it has done.

B. Affiant’s Sources of Information.

[32] These questions relate to her attestation that Canada has a copy of a particular Blood Band Council Resolution, Exhibit R, and that she is informed by IOGC that the Blood Tribe must approve all royalty agreements and that it receives copies of them. It is not relevant who informed her of either fact. They are either facts or they are not. That is all that is relevant to Canada’s Motions and the Blood Tribe has not provided any evidence to suggest that they are not facts.

C. Canada’s Sources of Documents.

[33] These questions relate to Canada’s possession of a Band Council Resolution and an amending Agreement dated 1992-1994. Similar to group B, the Blood Tribe has not disputed that they are what they purport to be and the source is irrelevant to Canada’s Motions.

D. Affiant’s Personal Credential.

[34] My review of the transcript of the cross-examination shows that the Blood Tribe asked several questions about Ms. Sturney’s credentials and they were answered. Canada rightly objected to questions regarding Ms. Sturney’s “interpersonal skills” and land valuation experience. They are irrelevant.

E. Litigation Decisions.

[35] These questions relate to decisions made as to which documents to attach as exhibits to Ms. Sturney’s affidavit. I agree with Canada that such choices are matters of litigation strategy and are privileged. Regardless, as in the discussion above, the Blood Tribe has not challenged the authenticity of any attached documents. It is the content of the document that is relevant; not who made the decision to put it into evidence.

F. Litigation Timing and Deadlines.

[36] The affiant was asked whether she received any information on changes to the timing of litigation concerning the production of documents. Canada objects based on solicitor-client privilege. In my view, the question is irrelevant to any issue raised on Canada’s Motions and need not be answered.

G. Identities of Researchers.

[37] A series of questions were asked of Ms. Sturney seeking the names of those conducting Canada’s research for Phase III. I agree with Canada that this information is subject to litigation privilege and that while the affidavit refers generally to researchers, references of this nature do not, by themselves, waive litigation privilege over the researchers’ identities. Moreover, the cities in which they live, and the monetary caps they are under is irrelevant to any issue in Canada’s Motions.

H. Status and Timing of Researchers’ Work.

[38] Questions relating to why research was not done by Canada prior to 2019 are irrelevant. Prior to this Court’s Judgment in 2019 that Canada was in breach of Treaty 7 and remedy was to be addressed, there was no need or obligation on Canada to conduct any such research.

I. Identity of Experts.

[39] The identity of Canada’s potential experts is subject to litigation privilege. It has not been impliedly waived.

J. Status and Timing of Experts’ Work.

[40] Canada submits that the status and timing of the work of its potential experts is privileged. I agree.

K. Expert Contracts.

[41] Canada submits that its contracts with its potential experts are privileged and that it has not waived that privilege. I agree.

L. Expert Communications.

[42] I agree with Canada that its communications with its experts are subject to litigation privilege and that it has not been waived.

M. Draft Expert Reports.

[43] Draft expert reports are subject to litigation privilege: see Eli Lilly Canada Inc v Novopharm Limited, 2007 FC 1195 at paragraph 48.

N. Direction to Attend.

[44] Ms. Sturney was asked whether she was aware that the Blood Tribe had served a Direction to Attend and whether she was aware that Canada refused to produce the documents listed therein. Canada submits that the Direction to Attend did not comply with the Rules as it was not personally served on Ms. Sturney as required by Rule 91(1), and thus questions regarding it were not relevant. Canada is correct.

O. Other Proceedings.

[45] Canada objected to a series of questions asked of Ms. Sturney about her involvement in other litigation, specifically in Ermineskin. I agree with Canada that while the Court’s decisions in that matter may be relevant for the purposes of legal argument, it is not proper to question the affiant as to her role in that litigation, nor is it relevant to this litigation.

P. Phase II Documents.

[46] I agree with Canada that the timing of Crown discovery in past instances is irrelevant to any matter before the Court here.

Q. Legal Questions and Conclusions.

[47] Canada properly objects on the basis that “questions regarding the scope of relevance, the materiality of Canada’s research, the law of waiver and Canada’s ‘negligence’ are not only irrelevant, but improperly inquire about the law and ask for legal conclusions.”

R. Asked and Answered.

[48] Canada notes that both parties agreed prior to Ms. Sturney’s cross-examination that Canada could object to overlap questions as two counsel were posing questions on behalf of the Blood Tribe. Accordingly, it was proper for it to object to answering a question that had already been asked and answered.

S. Misstating Affidavit or Prior Evidence.

[49] Objections are properly made if the questioner misstates the evidence contained in the affiant’s affidavit or from her examination.

T. Timing of Pandemic Restrictions Generally.

[50] The affiant was asked to agree with counsel that no restrictions of the sort referenced in her affidavit were put in place with respect to COVID-19 until after March 12, 2020. Canada objects that this was generally well known and the exact date is irrelevant. In my view, despite it being well known, it was a proper question.

[51] In conclusion, I find that Canada’s objections were proper with the following exceptions:

1. The affiant is to produce any written communication from the Legal Director that provides her with the information she sets out at paragraph 13 of her affidavit; and

2. The affiant is to answer the question of whether any of the restrictions she mentions in her affidavit were put in place with respect to COVID-19 until after March 12, 2020.

[52] For the reasons given, I reject the submission of the Blood Tribe that the effect of Canada’s “objections and refusals was to defeat the purposes of the cross-examination.” Accordingly, the Blood Tribe is not entitled to any of the relief it seeks except to have the responses to the two items indicated immediately above.

[53] I further refuse on this cross-motion to strike, any parts of the affidavit of Ms. Sturney on the basis that Canada failed to render a suitable affiant with personal knowledge to support the facts set out in Canada’s supporting affidavit. She attests that her affidavit is based on her personal knowledge, and on her information and belief. She sets out her source of information and her belief in its accuracy. If there was a more knowledgeable affiant that could have been produced, that goes to the weight to be given to her affidavit.

[54] For these reasons, the cross-motion of the Blood Tribe will be largely dismissed, with costs.

ORDER IN T-238-80

THIS COURT ORDERS that:

1. Canada’s affiant, Lynda Sturney, is to produce to the Plaintiffs any written communication from the Legal Director that provides her with the information set out at paragraph 13 of her affidavit;

2. Canada’s affiant, Lynda Sturney, is to answer the question of whether any of the restrictions she mentions in her affidavit were put in place with respect to COVID-19 until after March 12, 2020;

3. The Plaintiff’s cross-motion is otherwise dismissed; and

4. Canada is awarded its costs on this cross-motion fixed at $4,500.00.

"Russel W. Zinn"

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

T-238-80

STYLE OF CAUSE:

JIM SHOT BOTH SIDES ET AL v HER MAJESTY THE QUEEN

MOTION DEALT WITH IN WRITING AT OTTAWA, ONTARIO, WITHOUT APPEARANCE OF THE PARTIES

order and REASONS:

ZINN J.

DATED:

APRIL 1, 2021

WRITTEN REPRESETATIONS BY:

Gary A. Befus / Paul Reid

Brendan Miller

For The PlaintiffS

Paul Shenher

Wayne M. Schafer, Q.C.

For The Defendant

SOLICITORS OF RECORD:

Walsh LLP

Calgary, Alberta

Foster LLP

Calgary, Alberta

For The PlaintiffS

Attorney General of Canada

Department of Justice Canada

Prairie Region

Edmonton, Alberta

For The Defendant