Date: 20260220
Docket: T-2439-97
Citation: 2026 FC 248
Ottawa, Ontario, February 20, 2026
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
THE LOUIS BULL BAND, CHIEF SIMON THREEFINGERS, JONATHAN BULL, JOSEPH DESCHAMPS, CLYDE ROASTING,
RUSSELL THREEFINGERS, HARVEY ROASTING, ELAINE ROASTING, TELLY RAINE and IRVIN BULL, the Chief and
Councillors of the Louis Bull Band
suing in their representative
capacity on behalf of
all the members of the LOUIS BULL BAND
Plaintiffs
and
HIS MAJESTY THE KING IN RIGHT OF CANADA
Defendant
ORDER
UPON the trial of the underlying action starting on September 2, 2025;
AND UPON the Plaintiffs closing their case;
AND UPON the Defendant tentatively closing their case on February 5, 2026, pending the resolution of two motions before the Court, including the present one;
AND UPON the Defendant bringing the present motion dated January 14, 2026, pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106 seeking the following relief:
An Order pursuant to Rule 289 requiring the Plaintiffs to:
Introduce into evidence the Defendant’s proposed qualifications to the read-ins of the examination for discovery of Canada’s representative, Richard Simison (the “Examination”); and
Introduce into evidence the Defendant’s proposed qualifications to the read-ins of the responses to the information requests made at the Examination (the “Information Requests”), including an associated document.
AND UPON review of the Defendant’s written submissions filed on January 14, 2016, and the Plaintiffs’ submissions filed on January 23, 2026;
AND UPON noting that the parties had agreed on certain qualifications to read-ins of the Examination, but this motion addresses those that remain unresolved;
AND UPON noting that both parties agree on the relevant legal principles for a Rule 289 motion, but differ on the result of their application to this matter;
AND UPON noting Rule 289, which states:
The Court may order a party who uses part of an examination for discovery as its own evidence to introduce into evidence any other part of the examination for discovery that the Court considers is so related that it ought not to be omitted.
Lorsqu’une partie présente en preuve des extraits des dépositions recueillies à l’interrogatoire préalable, la Cour peut lui ordonner de produire tout autre extrait de ces dépositions qui, à son avis, est pertinent et ne devrait pas être omis.
AND UPON considering the three circumstances in which an addition to a read-in can be ordered: (1) where the witness misunderstood something in the question put to him; (2) where the passage read-in by a party misrepresents what the witness was saying; or (3) where the passage read-in by a party lacks necessary context or subject matter (Mediatube Corp v Bell Canada, 2016 FC 1066 at para 8);
AND UPON considering further principles related to Rule 289, which were described in Paradis Honey Ltd v Canada (Agriculture and Agri-Food), 2024 FC 1921 at paragraph 106:
[t]he basic principle of Rule 289 is “to ensure that the answers to questions fairly reflect the true response given” (Weatherford Canada Ltd v Corlac Inc, 2009 FC 449 at para 2 [Weatherford]). Therefore, questions and answers must be viewed in context (Weatherford at para 3). This does not mean that other questions and answers on the same subject matter must be added beyond making clear to what the specific answer related (Weatherford at para 4), and the Court must always be concerned about fairness and prejudice to the parties and to the trial process (Weatherford at para 5);
AND UPON considering that “[t]he jurisprudence errs on the side of caution for read-ins, favouring completeness over selectivity, which should be the default position to ensure fairness to the party being examined for discovery” (Canadian Pacific Railway Company v Canada, 2020 FC 1058 at para 14);
AND UPON noting, as pointed out by the Defendant, that Justice Gleeson in Louis Bull First Nation v Canada, 2024 FC 14, previously ruled that, in relation to Information Request 157, Canada “shall look at whether trust fund account records exist for the Pigeon Lake IR shared by Louis Bull with three other First Nations and, if so, provide details on how or where they can be found” (Schedule A);
AND UPON considering the Defendant’s position on its proposed qualifications to the Plaintiffs’ read-ins from the Examination, such position being that its request should be granted because all of the proposed additions provide necessary context or subject matter;
AND UPON determining the following in relation to the proposed additions to read-ins from the Examination:
Examination for Discovery Day
FC & Exhibit Number of Transcript in Dispute
Plaintiffs’ Read-in
Defendant’s Proposed Additions
Court’s Determination
May 30, 2022 (Day 6)
FC02502 – Exhibit 151
Page 708, question 1926, lines 11-15
Page 708, question 1927, lines 16-24
The proposed addition does not add context to the answer given to question 1926.
The answer to question 1926 establishes that the deponent did not think that Louis Bull band had a reserve of their own prior to an unspecified point in time.
The proposed addition establishes that the deponent thinks it is a legal question whether Louis Bull band had a joint reserve with Ermineskin.
June 1, 2022 (Day 8)
FC02503 – Exhibit 153
Pages 1090-1091, questions 2975-2979, lines 9-25, 1-25
Page 1092, question 2980, lines 1-16
The proposed addition does not add context to the answers given to questions 2975-2979.
The answers to questions 2975-2979 relate to special inducements in the context of the Louis Bull land surrender only.
The proposed additions describe general practices regarding special inducements and are not specific to Louis Bull band.
December 14, 2022 (Day 13)
FC02504 – Exhibit 165
Pages 1801-1802, questions 4896-4897, lines 19-25, 1-4
Page 1801, questions 4894-4895, lines 5-18
The proposed addition adds context to the answers given to questions 4896-4897.
The answers to questions 4896-4897 establish that Louis Bull and Muddy Bull did not have legal counsel at an unspecified time. What is missing is the context.
The proposed addition provides context for the period that Louis Bull did not have legal counsel.
December 15, 2022 (Day 14)
FC02505 – Exhibit 166
Pages 1904-1905, questions 5208-5211, lines 19-25, 1-8
Page 1905, questions 5211-5212, lines 8-20
The proposed addition adds context to the answer given to question 5211.
The current read-in cuts the answer to question 5211 off. The portion of the answer that is cut-off is relevant to understanding the full answer, namely, what the deponent believes is the correct motivation for the Crown securing surrenders.
December 16, 2022 (Day 15)
FC02508 – Exhibit 167
Page 2078, question 5709-5710, lines 7-17
Pages 2080-2081, questions 5711-5712, lines 18-25, 1-14
The proposed addition does not add context to the answers given to questions 5709-5710.
The answers to questions 5709-5710 establish that the deponent agrees that certain documents placed before them show that Ermineskin band had a population of 34 families in 1909, but that its population in 1885 was 60 families.
The proposed addition seeks to provide the deponent’s apparent explanation for why there is a difference between the two numbers.
December 16, 2022 (Day 15)
FC02508 – Exhibit 167
Page 2097, question 5755, lines 7-14
Pages 2097-2098, question 5755, lines 5-6, 15-25, 1-5
The proposed addition adds context the answer given to question 5755.
The current read-in cuts off question 5755 and only includes a quote within the question. It does not include the full question or the answer given to the question.
December 16, 2022 (Day 15)
FC02508 – Exhibit 167
Page 2101, question 5766, lines 12-20
Pages 2100-2101, question 5765, lines 4-25, 1-2
The proposed addition does not add context to the answer given to question 5766.
The answer to question 5766 establishes that the Crown did not communicate to Louis Bull via letter or other correspondence that it does not own section 26 lands.
The proposed addition establishes that the deponent thinks that McClean discussed section 26 lands verbally with Louis Bull based on a notation in McClean’s report.
AND UPON determining the following in relation to the proposed additions to read-ins from Information Request 157, also noting that the Defendant wants HMQ.00549, the Markle Report, to be entered into evidence as an exhibit along with the proposed addition:
Information Request Read-In by Plaintiffs
Defendant’s Proposed Addition to Information Request
Court’s Determination
IR 157 = Advise about the balance of the Louis Bull accounts prior to the surrender, if there were funds available in the land management fund, and whether there was a policy on how the land management funds could be spent.
Canada’s Response dated 19Jan2024
Pigeon Lake Trust Account Statements started in 1918 and are listed as account #261.
Balances in the Pigeon Lake Trust Account #261 from 1918 forward are available in the tabular statements of the Department of Indian Affairs Annual Reports, publicly available online:
Canada’s Response dated 14Dec2023
The Indian Act provisions in effect at the time as identified above in response to Request 043 in Tab 3 outline which funds could be spent for fencing.
The documentary record indicates that the Louis Bull accounts did not contain sufficient funds to fence the whole of the Louis Bull IR 138 prior to the surrender. The Louis Bull trust account number 146 held the following amounts from 1900-1911:
- Opening balance July 1, 1900: $35.80 (See document titled “Louis Bull Trust Account 1900-1902”).
- Year ended June 30, 1901: $39.69 (See document titled “Louis Bull Trust Account 1900-1902”).
- Year ended June 30, 1902: $24.38 (See document titled “Louis Bull Trust Account 1900-1902”).
- Year ended June 30, 1903: $71.61 (See document titled “Louis Bull Trust Account 1902-1903”).
- Year ended June 30, 1904: $2.15 (See document titled “Louis Bull Trust Account 1903-1904”).
- Year ended June 30, 1905: $2.22 (See document titled “Louis Bull Trust Account 1904-1905”).
- Year ended June 30, 1906: $2.29 (See document titled “Louis Bull Trust Account 1905-1906”).
- Year ended March 31, 1907: $0.00 (See document titled “Louis Bull Trust Account 1906-1907”).
- Year ended March 31, 1908: Louis Bull No. 146 Ledger page is blank.
- Year ended March 31, 1909: Louis Bull No. 146 Ledger page does not exist.
- Year ended March 31, 1910: Balance $824.11 (See document titled “Louis Bull Trust Account 1909-1910”).
- Year ended March 31, 1911: $879.83 in Capital and $904.56 in Interest (See document titled “Louis Bull Trust Account 1910-1911”).
The above-referenced documents are provided with this Undertaking Response Chart and will be formally produced on a subsequent Further Supplementary Affidavit of Documents.
Canada’s Response dated 10Jul2023
The balance of the Louis Bull accounts prior to the surrender are described in the answer to UT 156. Canada maintains its objection to inquiry into the policy on spending land management funds in the early 1900s on the grounds that the resources required to answer the question are disproportionate to the question’s relevance.
Canada’s Response dated 31Mar2023
Canada objects on the ground of relevance, overbreadth and on the principle of proportionality.
IR 43 = Advise as to whether or not there were funds available to fence the whole of the Louis Bull IR138B pre-surrender of the Louis Bull IR138B
Canada’s Response dated 19Jan2024
The trust account records and balances of the Louis Bull Band for the period between 1900 and 1911 were provided in response to UT-157 in Canada’s December 14, 2023 Responses to Undertakings. No further records were located.
The Indian Act provisions in force at the time were the only legislative provisions, policies or guidelines related to fencing onreserves.
The Indian Land Management Fund (ILMF) was established on April 1, 1858 and dissolved on January 31, 1914. The ILMF was a fund used for the management of Indian Affairs. It was not an extra source of funding for on-reserve expenditures like fencing. There are no instances where ILMF paid any monies to any bands for fencing.
For further information on the purpose of the ILMF see David Shanahan’s “The Indian Land Management Fund – Financing the Indian Department 1830-1914.” This document is provided with this Undertaking Response Chart and will be formally produced on a subsequent Further Supplementary Affidavit of Documents.
- No records were located for the period 1880 and 1936 where the Crown paid out of any Crown accounts for fencing of any reserve lands to protect those lands.
Canada’s Response dated 14Dec2023
The Indian Act provides that funding for fencing of reserve lands is the responsibility of the Indian band. The Department of Indian Affairs did not provide funds for fencing of reserves. Please find below links to the relevant sections of the Indian Act from 1876-1909:
Indian Act, SC 1876, c. 18
- s. 24
- o Amended by 43 V., c. 28, s. 35 (SC 1880, c. 28)
- s. 59
- o Amended by 43 V., c. 28, s. 70 (SC 1880, c. 28)
- s. 63
- o Amended by 43 V., c. 28, s. 74 (SC 1880, c. 28)
- o Amended by 47 V., c. 27, s. 10 (SC 1884, c. 27)
Indian Act, RSC 1886, c. 43
s. 34
s. 70
- o Amended by 58-59 V., c. 35, s.2 (SC 1895, c. 35)
s. 76(f)
Chapter 43, Indians – no mention of repealing s. 34 or s. 76(f), however s. 70 repealed by 58-59 V., c. 35, s.2
Indian Act, RSC 1906, c. 81
s. 45
- o No amendments since RSC 1886, c. 43, s. 34
s. 98
- o No amendments since RSC 1886, c. 43, s. 76
s. 194(h)
- o See Indian Advancement Act, RSC 1886, c. 44, s. 10
- ▪ 47 V., c. 28, s.10 (SC 1884, c. 28)
- o Amended by 53 V., c. 30, s. 2 (SC 1890, c. 30)
- o See Indian Advancement Act, RSC 1886, c. 44, s. 10
No amendments listed up to 1909
Canada’s Response dated 31Oct2022
At this point, Canada can advise as follows:
In the pre-surrender period of 1900 to 1908, there were no payments out of trust funds for Hobbema Bands specifically for fencing.
On October 5, 1904, Inspector JA Markle recommended the surrender of about 2500 acres of unused land on the Montana / Bobtail Reserve with some of the proceeds to be used for fencing and the purchase of brood mares [AAC.000549].
A November 25, 1908 letter to Senator Talbot from AW Perry reported on his discussions with Ermineskin to surrender 1050 acres of land for fencing and outlined the value of the land at $10 per acre and the cost of fencing the reserve at $5000 [LBT000144, p 1].
The proposed addition does not add context to the answer given to Information Request 157.
The answer to Information Request 157 provides information on what funds were available in Louis Bull band accounts at various points in time. It addresses Justice Gleeson’s Order of January 4, 2024 concerning Pigeon Lake. It also established that prior to the surrender, the accounts did not have enough money for Louis Bull band to fence its entire reserve.
The answer to Information Request 43 provides citations to numerous pieces of legislation regulating Indians, provides information regarding other bands and the Crown’s desire to have them surrender lands so they would have money to fence their reserves. It also establishes there was an Indian Land Management Fund between April 1, 1858 and January 31, 1914, and its moneys were only for Indian Affairs management, not for funding fencing. Finally, it also shows that the Crown did not expend, presumably anywhere in Canada, any money to build on-reserve fences between 1880 and 1936.
AND UPON determining the following in relation to the proposed additions to read-ins from Information Request 62:
Information Request Read-In by Plaintiffs
Defendant’s Proposed Addition to Information Request
Court’s Determination
IR 62 = Advise as to whether or not as part of its reserve Louis Bull had been provided with a school after the division agreement of June 22nd, 1909.
Canada’s Response dated 30Nov2022
See the response to undertaking 93 for information on the historical presence of a Methodist Day school on the Louis Bull Reserve. The school was not operating by at least June 30, 1906 [LB-37766] to approximately September 1922 [LB-37761].
On June 30, 1924, the Indian Agent reported Louis Bull’s Day school was closed on June 27, 1924 and he had taken charge of the school material and government equipment [see attached OTT-00004.pdf]
IR 93 = To determine and advise as to whether there is any information known to the Crown that Reverend John McDougall was connected at all with the Ermineskin residential school that operated at the same time he was employed by the Department of the Interior and the Department of Indian Affairs to negotiate surrenders with the Hobbema Indians; if so, produce relevant documentation.
Canada’s Response dated 31Oct2022
Canada has not located any information regarding a connection between Reverend John McDougall and the Ermineskin Indian Residential School (IRS) during the period he was employed by the Department of the Interior and the Department of Indian Affairs to negotiate surrenders with the Hobbema Indians (1905 to 1909).
Ermineskin’s residential school was a Roman Catholic school operated by the Sisters of the Assumption and Missionary Oblates of Mary Immaculate [LB-37766].
Reverend John McDougall was a Methodist Minister and was viewed by [Secretary] JK McLean as familiar with the Muddy Bull and Louis Bull Band due to the presence of a Methodist Mission at Pigeon Lake [LBT000164].
Canada has not located any information to indicate Reverend John McDougall was involved in any school during the period in which he was appointed to negotiate surrenders with the Hobbema Bands.
The new document noted above will be sent by Titan file transfer by end of day November 1, 2022.
The proposed addition does not add context to the answer given to Information Request 62.
The answer to Information Request 62 establishes a timeline of when a school was operating on Louis Bull reserve after June 22, 1909.
The answer to Information Request 93 provides information about who was operating the school on Ermineskin reserve and information regarding Reverend John McDougall and his non-existent relationship with schools.
THIS COURT ORDERS that:
The Plaintiffs shall read-in the following three portions of the examination for discovery of Canada’s representative, Richard Simison, as part of its case:
December 14, 2022 (Day 13): page 1801, questions 4894-4895, lines 5-18;
December 15, 2022 (Day 14): page 1905, questions 5211-5212, lines 8-20; and
December 16, 2022 (Day 15): pages 2097-2098, question 5755, lines 5-6, 15-25, 1-5; and
There is no order as to costs.
blank
"Paul Favel"
blank
Judge