CITATION: Chippewas v. Attorney General (Canada), 2016 ONSC 672
COURT FILE NOs.: 94-CQ-50872CM and 03-CV-261134CM1
MOTIONS HEARD: October 7, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
Re: 94-CQ-50872CM
Chippewas of Saugeen First Nation and Chippewas of Nawash
First Nation
Plaintiffs
v.
The Attorney General of Canada; Her Majesty the Queen in Right of Ontario; The Corporation of the County of Grey; The Corporation of the County of Bruce; The Corporation of the Municipality of Northern Bruce Peninsula; The Corporation of the Town of South Bruce Peninsula; The Corporation of the Town of Saugeen Shores and The Corporation of the Township of Georgian Bluffs
Defendants
and
03-CV-261134CM
Chippewas of Nawash Unceded First Nation and Saugeen
First Nation
Plaintiffs
v.
The Attorney General of Canada, and Her Majesty the
Queen in Right of Ontario
Defendants
BEFORE: Master Thomas Hawkins
APPEARANCES: Senwung Luk for moving plaintiffs
F (416) 981-9350
Michael Beggs for responding defendant
Attorney General of Canada
F (416) 973-2319
No one for the other parties
REASONS FOR DECISION
Nature of Motion
[1] The plaintiffs in these two actions move for the following relief against the Attorney General of Canada (the “Attorney General”) under rule 30.06:
(a) an order that the Attorney General disclose the PhD thesis of Douglas Leighton entitled “The Development of Federal Indian Policy in Canada 1840-1890” (the “Leighton thesis”) as part of the Attorney General’s documentary disclosure under subrule 30.02(1) and as part of a further and better list of documents;
(b) an order that the Attorney General disclose all relevant documents that are or have been under the Attorney General’s possession, control or power with no exception for “secondary sources”, for documents containing “opinion”, documents which the Attorney General considers to be “not evidence”, or for documents that are “publicly available”,
(c) or, in the alternative, to disclose at least such documents that are or have been consulted by those working for the Attorney General on this litigation; and
(d) for leave under rule 30.06(a) to cross-examine the Attorney General on the Attorney General’s lists of documents in each of these two actions.
[2] This summary of the relief sought is drawn from the plaintiffs’ factum on this motion.
[3] During argument, plaintiffs’ counsel clarified what the plaintiffs were seeking in the relief sought in clause (c) above. The plaintiffs intend the words “documents consulted” to mean documents which the researchers and lawyers working for the Attorney General on this litigation looked at and felt were relevant to any matter in issue in this litigation.
[4] During argument both sides clarified what is meant by the words “secondary sources” as used by counsel for the Attorney General. Such counsel distinguish between what they have called “primary sources” and what they have called “secondary sources”. A primary source is a document written by someone who was a witness to the events described in the document. By contrast, a secondary source is a document written by someone who was not a witness to the events described in the document.
[5] The Attorney General is a defendant in each of these two actions as the statutory representative of Her Majesty the Queen in right of Canada.
Legal Basis for Motion
[6] Rule 30.06 provides as follows.
Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,
(a) order cross-examination on the affidavit of documents;
(b) order service of a further and better affidavit of documents;
(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and
(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
[7] Subrule 30.02(1) provides as follows.
Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the documents.
Order Respecting the Leighton Thesis
[8] First, I shall deal with issues surrounding the Leighton thesis. Counsel for the Attorney General submitted that the Leighton thesis is not relevant to any matter in issue in this litigation. He did not explain just why the Leighton thesis is not so relevant. The plaintiffs take the position that the Leighton thesis is so relevant.
[9] The Leighton thesis is not in evidence before me. The submission that the Leighton thesis is or is not relevant to any matter in issue in this litigation is a submission of mixed fact and law. Insofar as these submissions are submissions of fact, I am unable to resolve the conflict between the parties.
[10] The Attorney General did not deliver any affidavit in response to this motion. The plaintiffs delivered an affidavit of Daniel Shaule in support of this motion. Mr. Shaule is a document manager employed by the plaintiffs’ law firm. He is not a lawyer. Mr. Shaule was cross-examined on his affidavit. Mr. Shaule refers to the Leighton thesis in his affidavit but he does not state that the Leighton thesis is relevant to any matter in issue in this litigation. The same is true of his cross-examination. He did not then state that the Leighton thesis is relevant to any matter in issue in this litigation.
[11] Counsel for the Attorney General concedes that the Leighton thesis is not in schedule A to any list of documents which the Attorney General has served in this action.
[12] In this litigation, examinations for discovery proceeded by way of written questions pursuant to Rule 35. The Leighton thesis is referred to in a “List of Secondary Sources” which forms part of the answer to one written question put to the Attorney General.
[13] Plaintiffs’ counsel submitted, correctly, that the Rules of Civil Procedure do not refer to anything called a list of secondary sources. If the Leighton thesis is relevant to any matter in issue in this litigation, it should be in schedule A to a list of documents served by the Attorney General. If it is not so relevant, it need not be in such a list of documents.
[14] As I have said, I am unable to resolve the conflict between the parties as to whether the Leighton thesis is or is not relevant to any matter in issue in this litigation. That being so, I decline to order the Attorney General to serve a list of documents with the Leighton thesis in schedule A.
Other Orders Sought
[15] I now turn to the order for relief which the plaintiffs seek in clauses (b), (c) and (d) above.
[16] Rule 30.06, quoted in paragraph [5] above, is relevant to this part of the plaintiffs’ motion. The plaintiffs have not presented any evidence on this motion that there is any particular relevant document in the possession, control or power of the Attorney General which has been omitted from the lists of documents which the Attorney General has served in this action. On that state of the evidence before me, there is no basis for me to make an order under rule 30.06 in terms of the orders sought in paragraph [1] clauses (b), (c) and (d) above.
[17] Further, the order sought in clause (c) is not an order which rule 30.06 authorizes me to make. Such an order (clarified as set out in paragraph [3] above) would, in my view, infringe the privilege of the Attorney General against disclosure of the work product of the lawyers working for the Attorney General on this litigation. I decline to make such an order.
[18] The Attorney General has been successful on this motion and is entitled to the costs of it. I fix those costs at $7,500.00 and order the plaintiffs to pay such costs to the Attorney General within 30 days.
_(original signed) __
Date: January 27, 2016 Master Thomas Hawkins