Date: 20210401
Docket: T-238-80
Citation: 2021 FC 282
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] The Defendant [Canada] moves pursuant to Rules 3, 36, and 369 for an Order adjourning Phase III of this action to the first two month availability the Court has after November 30, 2021, or to a date to be fixed by this Court.
[2] 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.
[3] 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.
[4] On March 31, 2020, I ordered that on or before April 30, 2020, the Blood Tribe was to provide particulars regarding its claims relevant to Phase III of the trial. The Blood Tribe responded as follows:
- A Reserve, within the meaning of the Indian Act, was set aside by the Defendant (“Canada”) for the Plaintiffs (the “Blood Tribe”) prior to July 2, 1883.
- In accordance with the treaty land entitlement formula in the Blackfoot Treaty (Treaty 7) Canada was obligated, but failed, to set aside a reserve for the Blood Tribe in area of not less than 710 square miles. Canada set aside a reserve of 547.5 square miles leaving a land area deficiency of 162.5 square miles (the “Land Deficiency”).
- Canada breached the Blackfoot Treaty (Treaty 7) by failing to set aside a reserve of 710 square miles and as a result the Blood Tribe was deprived of the use and benefit of the Land Deficiency from at least July 1, 1883 to the present.
- The Land Deficiency consists of a parcel of land adjacent to the west boundary of the Blood Reserve bounded by the Kootenai (Waterton) and Belly Rivers from their confluence at the north end of the parcel and extending southwards beyond the present south boundary of the Blood Reserve to an east west rectilinear line between the Kootenai (Waterton) and St. Mary Rivers making up in area 162.5 square miles. The above described parcel showing the Land Deficiency is illustrated as to its estimated boundaries on the attached Schedule “A”.
- The breach of treaty resulted in the Blood Tribe suffering the following losses and deprivation:
i) loss of the present value of the Land Deficiency;
ii) loss of economic benefit of the agricultural production from the Land Deficiency during the period from July 1, 1883 to the present;
iii) loss of the economic benefit of the mines and minerals production, and particularly oil and gas, from the Land Deficiency during the period from July 1, 1883 to the present; and
iv) loss of the present value of the economic benefit of the mines and minerals, and particularly oil and gas, from the Land Deficiency.
- The losses will continue and accrue to the Blood Tribe up to the date of the judgment at the conclusion of Phase III.
- Compensation for the breach of treaty as at the date of judgment in Phase III can only be achieved by
i) equivalent moneys worth in current Canadian dollars for the losses described;
ii) in the alternative, equivalent replacement land contiguous with or adjacent to the Reserve and equivalent moneys worth for the losses not compensated by equivalent replacement land;
iii) compound interest;
iv) costs.
[5] Canada served a Demand for Further and Better Particulars and the Blood Tribe responded on June 12, 2020. Canada filed its own Statement of Particulars on August 14, 2020.
[6] The Blood Tribe has served Canada with several expert reports; namely (1) the report of Thompson Agricultural Consulting, (2) the report of Stan Lore, (3) the report of Keith Braaten, and (4) the report of Dr. Lazar. Dr. Lazar calculated the total compensation owed to the Blood Tribe as of December 31, 2020, arising from the breach of treaty. He used estimates of the agricultural loss of use from 1883-2020, and the petroleum loss of use from 1956-2020. His maximum figure for the loss to the Blood Tribe is in excess of $3 billion.
[7] On October 30, 2020, Canada served the Blood Tribe with questions for its written examination for discovery. Answers were provided on December 28, 2020, and an affidavit affirming them was provided in February 2021. Canada has moved to compel the Blood Tribe to answer 12 of the questions to which it objected. The Court ruled on that motion before this one, as one of the grounds advanced by Canada for an adjournment was the lack of documentation from the Blood Tribe in response to the objections. The Court ordered that the questions were to be answered by the Blood Tribe prior to April 30, 2021, or such later date as the parties agreed to or this Court ordered.
[8] The Blood Tribe brought a cross-motion to strike Canada’s questions and to strike this motion on the basis that Canada had abused the cross-examination of its affiant on those motions. That too was ruled on prior to this motion, and was largely dismissed.
[9] Canada says that it has encountered unexpected difficulties and delays in its trial preparation such that it will not be ready to commence the Phase III trial as currently scheduled. Specifically, it states that these difficulties include the following:
a. The Plaintiffs not providing a complete documentary production and objecting to producing documents relevant to the quantification of damages;
b. COVID-19-related delays in contracting with expert witnesses and accessing repositories needed for document production; and
c. The inability of Canada’s experts to advance or complete their work due to incomplete records and information from both parties.
[10] The motion to adjourn is vigorously opposed by the Blood Tribe.
[11] Rule 36(1) of the Federal Courts Rules, SOR/98-106 provides that this Court has the discretion to adjourn hearings on such terms as it considers just. The Court’s Notice to the Profession dated May 8, 2013, provides direction on how such requests are to be made, and describes the consequences to the Court:
The Federal Court operates on a guaranteed, fix-date system. When the Court has fixed a date for trial or for a hearing parties are expected to proceed on that date. Adjournments cause inconvenience and expense. Court resources are not used efficiently as there often is not sufficient time to schedule another matter to take the place of the adjourned hearing.
Nevertheless, the Court recognizes that there may be exceptional and unforeseen circumstances, including those that are outside the control of a party or its counsel, in which it may be reasonable to request an adjournment.
[12] It is fair to say that in this Court an adjournment of scheduled trials will only be done in exceptional circumstances: Mason v Canada (Attorney General), 2015 FC 926.
[13] Before proceeding to my analysis, I wish to address the assertion of counsel for the Blood Tribe that Canada has “engaged in obstructionist conduct” and that this motion “is a ruse and tactic aimed at delaying the proceedings.” There is no evidence to support these assertions.
[14] I have previously commended counsel of both parties on the cooperative manner in which this litigation is proceeding. Regrettably, given the three motions before the Court, that co-operation appears to be ending. This is complex litigation involving more than a century of records, and the financial claim of the Blood Tribe is significant. As Canada notes, when Phase III was set down to commence on May 3, 2021, being conscious of its complexities I indicated to the parties that if I was satisfied that a party had established that it was “behind the eight ball” and could not be ready for trial, and my schedule could be adjusted, then a later trial date was possible. Canada submits that it finds itself in that very situation.
[15] Counsel for Canada, on the cross-examination of its affiant on this motion, summed up the basis of its motion to adjourn in this way:
We’re asking for an adjournment because we don’t have all the requisite documents either from the Crown’s collection or from the plaintiff’s collection. That’s the basis of our motion.
[16] The documents in the Crown’s collection are documents held by Indian Oil and Gas Canada [IOGC], relating to oil and gas leases and royalties. Some IOGC documents are in electronic format and are viewable online; IOGC holds others in physical files that are not viewable online. Canada’s evidence is that IOGC holds the majority of files dated before 1990, including those relevant to this action, in physical files.
[17] Canada’s evidence is that it contracted with researchers in October 2019, but renewal of their contracts was delayed due to the government’s focus on COVID-19 contracts. This resulted in delays in obtaining documents in mid-2020. Moreover, it notes that its researchers are having difficulties accessing IOGC physical files in order to conduct research and work on document production.
[18] In pre-pandemic times, Canada’s researchers would make an online request for physical files housed in offsite IOGC storage. Because these files must remain in government repositories and offices, they would normally be delivered within 2-3 business days to the Litigation Management & Oversight Directorate [LMOD] office, located in Calgary, where researchers could review them. Due to the COVID-19 pandemic, the LMOD office closed on March 15, 2020, and remains closed. Since the LMOD office closure, Canada’s researchers have not had a secure location to review IOGC physical documents.
[19] The IOGC offices also closed on March 15, 2020, due to the COVID-19 pandemic, to all but essential staff, which did not include the researchers contracted in this matter. They have had extremely limited access to the IOGC facility to review physical documents.
[20] I accept that these circumstances have had a significant impact on Canada’s ability to obtain documents in its possession in order to prepare for Phase III of this trial.
[21] The Blood Tribe submits that Canada is “seeking to adjourn to search their own archives for records they could have looked for over the past 41 years.”
They submit that Canada “is guilty of laches and neglect in omitting to endeavour to procure these documents from their own archives since January 1980.”
I agree with Canada that it is unrealistic and unreasonable to expect that it would gather up these documents prior to my Judgment in June 2019. Before that date, there was no established breach of the treaty land entitlement set out in Treaty 7; nor was the magnitude of that breach known.
[22] The Blood Tribe objects to Canada’s reliance on the Federal Court of Appeal scheduling Canada’s appeal of the Judgment following Phase II, which will be heard the week of April 12-15, 2021. It submits that the matter is res judicata as the Federal Court of Appeal has previously refused to order a stay of Phase III pending its decision on the appeal.
[23] I agree that the matter of the appeal and its timing is not a relevant consideration here. Each court sets its own calendar. While it is true that Phase III will be unnecessary if Canada is successful before the Federal Court of Appeal, and no further appeal reverses that decision, that has not and will not bear on this Court’s decision.
[24] In addition to Canada’s difficulties in obtaining documents from its depositories, it has also faced objection from the Blood Tribe in its document production. As mentioned, there was a companion motion to this wherein Canada sought to compel responses to written questions largely directed to document production from the Blood Tribe. That Order has been granted. The Court has no knowledge of the time required to fulfill that Order; however, the Blood Tribe asserted in its objection that the task it faced was daunting and time consuming. It appears reasonable to think that it is unlikely to be done prior to May 3, 2021. Even if it can be done by then, Canada requires sufficient time to consider those documents and responses. As the commencement of Phase III is now some 5 weeks away, that does not appear likely or reasonable.
[25] I observed in McFadyen v Canada (Attorney General), 2009 FC 78 at paragraph 23, that the “relevant factors when considering whether to grant an adjournment include the prejudice that would be caused to one or more of the parties, the prejudice to the Court in losing a hearing date, and the public interest in a timely conclusion to litigation.”
[26] The Blood Tribe has not advanced any prejudice that it will suffer if the adjournment is granted. I am well aware that there are members of the Blood Tribe who are aging and wish to see this action to its end. That human consideration cannot play an over-arching role in the decision to be made. I do note that since the action was revived in 2010, and given the complexity of this litigation, it is fair to say that it has been moving forward at a reasonable pace.
[27] I am satisfied that Canada will suffer prejudice if the adjournment is not granted. It will not have the benefit of all the documents it may require to address the issues related to the quantification of damages in the areas put forward by the Blood Tribe as the likely areas that would have and should have been included in its reserve. Absent those documents, Canada will be prejudiced in obtaining expert evidence to counter that provided by the experts that were put forward by the Blood Tribe. In addition, its ability to cross-examine the experts put forward by the Blood Tribe will be impacted.
[28] While the Court will lose these hearing dates, having checked with the Judicial Administrator, I am satisfied that other matters can and will be scheduled to fill that period as completely as possible.
[29] Lastly, the public interest in concluding litigation in a timely manner is not served if it is done in a manner that is unfair to one party. To force Canada on to trial in these extremely unusual circumstances is unfair. The public demands fairness in the Court’s processes and an adjournment in these circumstances is warranted.
[30] Accordingly, I will grant Canada’s motion to adjourn Phase III of this action to a period after November 30, 2021. The rescheduled Phase III will be fixed by the Court to a period not exceeding 40 days, after consultation with the parties.
[31] In the exercise of my discretion, each party shall bear its own costs of this motion.
ORDER IN T-238-80
THIS COURT ORDERS that:
Phase III of this action, scheduled to commence May 3, 2021, is hereby adjourned to dates to be set by the Court after November 30, 2021, and after consultation with the parties; and
Each party shall bear its own costs of this motion.
"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