ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-04-0193
DATE: 2013-08-12
B E T W E E N:
Bearskin Lake First Nation and Chief Rodney McKay a Member of Bearskin First Nation on His Own Behalf, and on Behalf of the Members of Bearskin Lake First Nation,
Peter T. Hollinger, for the Plaintiffs
Plaintiffs
- and -
Paul’s Hauling Ltd., Estate of Roy McKee, Wasaya Petroleum Limited Partnership and L.T.L. Contracting Ltd.,
Alex W. Demeo, for the Defendants
Defendants
HEARD: July 3, 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[1] The defendants, Paul’s Hauling Ltd. and the Estate of Roy McKee, bring a motion for an order that the plaintiffs provide a sworn and certified further and better Supplementary Affidavit of Documents, listing all relevant documents, and for an order to produce for cross-examination on the Supplementary Affidavit of Documents, Robert Kamenawatamin, who is named as the deponent on one sworn and four unsworn Affidavits of Documents that have been served by the plaintiffs.
[2] The statement of claim in this action was issued on March 18, 2004. The plaintiffs claim damages for an alleged fuel spill in March 2002 at the bulk fuel depot located on Bearskin Lake First Nation.
[3] The plaintiffs have provided the following Affidavits of Documents:
(a) sworn Affidavit of Documents of Roy Brown, dated November 22, 2005;
(b) sworn Updated Affidavit of Documents of Rodney McKay, dated August 8, 2007;
(c) sworn Updated Affidavit of Documents of Robert Kamenawatamin, dated November 28, 2008;
(d) unsworn Updated Affidavit of Documents of Robert Kamenawatamin, served March 7, 2013;
(e) draft unsworn Supplementary Affidavit of Documents of Robert Kamenawatamin served April 8, 2013;
(f) draft unsworn Supplementary Affidavit of Documents of Robert Kamenawatamin served June 20, 2013;
(g) draft unsworn Supplementary Affidavit of Documents of Robert Kamenawatamin served June 25, 2013.
[4] An order was made at a case management conference on February 20, 2013, that the parties were to deliver their respective Supplementary Affidavits of Documents by March 15, 2013.
[5] Each of the unsworn Affidavits of Documents served after the order of February 20, 2013, added documents in response to requests from counsel for Paul’s Hauling for documents referred to in reports concerning contamination on Bearskin Lake First Nation and for documents that although produced in part appeared to have missing pages.
[6] The plaintiffs depose that in response to requests from counsel for Paul’s Hauling, some 5,260 pages of documents have now been produced. The plaintiffs submit that they have produced all relevant and “marginally relevant” documents and listed them in their most recent Affidavit of Documents, other than certain documents from Claw Environmental Service Inc. The plaintiffs depose that they are under an obligation not to disclose these latter documents without the written permission of Claw Environmental Services Inc. The plaintiffs requested permission to disclose these documents, by way of letters to Claw on April 11, 12, May 1 and June 28, 2013, but have not received a response.
[7] Counsel for the plaintiffs states that he does not want his client to swear a “false” Affidavit of Documents, in the sense that although the Claw documents are “possibly relevant”, they cannot be included in the Affidavit of Documents without Claw’s permission, which has not been forthcoming.
[8] Counsel for the plaintiffs states that if Claw gives permission, he can have a complete, sworn Affidavit of Documents served quickly. As an alternative, counsel for the plaintiffs suggests that the Affidavit of Documents can be sworn, without listing the Claw documents in Schedule A, and Paul’s Hauling can bring a motion if it wishes to require Claw, as a non-party, to produce the documents pursuant to rule 30.10.
[9] It appears that he plaintiffs have now produced the documents requested by Paul’s Hauling, albeit it took multiple requests and the documents were not produced until well after the March 15, 2013 deadline set out in the order of February 20, 2013. Further, it does not appear that Paul’s Hauling disputes the plaintiffs’ assertion that Claw has imposed a condition that its documents are not to be released without its permission.
[10] I am satisfied that although the Claw documents are in the possession of the plaintiffs in the narrowest sense of the word, the plaintiffs were given those documents for a particular purpose subject to an express restriction that they not be used for any other purpose without Claw’s permission. The plaintiffs do not have control over the documents except to the extent that they can be compelled by the court to request permission of Claw to produce the documents in this litigation. However, given that the plaintiffs have requested permission from Claw on four occasions, with no response, an order compelling the plaintiffs to make a further request is not necessary. The plaintiffs have taken reasonable steps. If Paul’s Hauling wishes to have production of those documents, they can bring a motion requesting an order that Claw produce the documents as a non-party.
[11] An order shall go that by August 30, 2013, the plaintiffs shall serve a complete, sworn Supplementary Affidavit of Documents. If the plaintiffs have received permission from Claw Environmental Services Inc. to disclose the Claw documents, the sworn Supplementary Affidavit of Documents shall list those documents in Schedule A. If the plaintiffs have not received permission to release those documents, the sworn Supplementary Affidavit of Documents shall list those documents in Schedule B, (although the documents do not, strictly speaking, fall under a recognized category of privilege), and the reason for not producing them.
[12] If the plaintiffs are in the same position with respect to other documents, for example documents from Aboriginal Affairs and Northern Development Canada, those documents shall be dealt with in the same manner in the sworn Supplementary Affidavit of Documents.
[13] I am not satisfied that an order should go requiring that Robert Kamenawatamin be cross-examined on the Affidavit of Documents of which he is the proposed deponent.
[14] Mr. Kamenawatamin is a councilor of Bearskin Lake First Nation. Bearskin Lake First Nation is a remote northern reserve. The bulk of the documents that have been requested by Paul’s Hauling are technical environmental documents about which Mr. Kamenawatamin would have little useful information. The documents requested by the defendants have been produced, apart from the Claw documents, and apart from any documents missing from the documents listed in the latest draft Supplementary Affidavit of Documents. Although the plaintiffs did not initially make disclosure of all the documents, I am not satisfied that there is currently an issue of withholding documents that a cross-examination might assist in resolving. In this regard, this case is distinguishable from the decisions of Leduc v. Roman, 2009 6838 (ON SC), [2009] O.J. No. 681 (S.C.J.) and Nelma Information Inc. v. Hold, [1985] O.J. No. 2758 (Master, S.C.J.), referred to by counsel for Paul’s Hauling, where cross-examination on an affidavit of documents was ordered.
[15] I also find the plaintiffs’ submission as to proportionality to be persuasive. Rule 1.1 provides:
“In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”
[16] This action was brought in 2004. It is scheduled to be tried, ten years later, in 2014. The trial is estimated to last four weeks. Although the amounts claimed, namely, $2,000,000 in general damages and $250,000 in special damages, are significant, the legal costs to date, given the multitude of interlocutory proceedings, and the costs of going through a four week trial, are also significant, especially for a remote, northern First Nation community. I am unable to discern any meaningful benefit to Paul’s Hauling that would warrant the cost of requiring Mr. Kamenawatamin to come from Bearskin Lake to be cross-examined on his Affidavit of Documents, which lists several thousand pages of technical documents. This aspect of the motion by Paul’s Hauling is dismissed.
[17] With respect to costs, the plaintiffs failed to comply with the order of February 20, 2013, which required them to serve their Supplementary Affidavit of Documents by March 15, 2013. The large number of new documents produced by the plaintiffs over the past several months came only after Paul’s Hauling brought this motion. The motion has to be seen as successful in that light. The motion did not succeed on the issue of cross-examination of Mr. Kamenawatamin. The largest part of the motion dealt with production of documents. In my view, Paul’s Hauling should have its costs of the motion, tempered by the success of the plaintiffs on the smaller issue of cross-examination under rule 30.06.
[18] Paul’s Hauling asks for costs on a substantial indemnity basis because of what it alleges is reprehensible conduct by the plaintiffs in failing to comply with the order of February 20, 2013.
[19] Although the failure of the plaintiffs to comply with the February 20, 2013, order is a factor to be taken into account under rule 57.01(1) in exercising the court’s discretion to set costs, I am not satisfied in the circumstances of this particular case that the failure amounted to reprehensible, scandalous or outrageous conduct, or contempt, so as to move costs into the exceptional situation of substantial indemnity costs. Costs will therefore be determined on a partial indemnity basis.
[20] If the parties are unable to agree on the amount of costs payable by the plaintiffs, Paul’s Hauling shall file written submissions, not exceeding five pages, exclusive of its Bill of Costs, within 20 days. The plaintiffs shall file their response, not exceeding five pages, and any Bill of Costs they may wish to provide for comparison purposes, within 10 days of receipt of the defendants’ submissions.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: August 12, 2013
COURT FILE NO.: CV-04-0193
DATE: 2013-08-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bearskin Lake First Nation and Chief Rodney McKay a Member of Bearskin First Nation on His Own Behalf, and on Behalf of the Members of Bearskin Lake First Nation
Plaintiffs
- and –
Paul’s Hauling Ltd., Estate of Roy McKee, Wasaya Petroleum Limited Partnership and L.T.L. Contracting Ltd.,
Respondents
DECISION ON MOTION
Shaw J.
Released: August 12, 2013
/mls