Court File and Parties

COURT FILE NO: CV-18-00594281-0000 DATE: 2024-08-27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Six Nations of the Grand River Band of Indians, plaintiff AND: The Attorney General of Canada and His Majesty the King in Right of Ontario, defendants AND: Mississaugas of the Credit First Nation, intervener

BEFORE: Chalmers J.

COUNSEL: Robert Janes, K.C., Iris Antonios and Sanjit Rajayer, for the plaintiff Maria Vujnovic, Cameron Fiske, Tanya Mitchell, and Myra Sivaloganathan, for the defendant The Attorney General of Canada David Feliciant and D. Hyun, for the defendant His Majesty the King in Right of Ontario Alexander DeParde, for the intervener Mississaugas of the Credit First Nation

HEARD: August 26, 2024 by videoconference

ENDORSEMENT

Overview

[1] The Attorney General of Canada (Canada) obtained leave to examine three of its expert witnesses before trial. The parties agreed on the procedure for the examinations. The procedure includes the appointment of a hybrid commissioner to preside over the examinations and to decide objections as they arise.

[2] The first witness called by Canada is Professor Read. He was examined in chief by Canada and was cross-examined by His Majesty the King in Right of Ontario (Ontario). During the cross-examination by the plaintiff, Canada and Ontario objected to several questions. I have been asked to rule on 6 objections.

[3] The evidence obtained on an examination out of court is subject to a ruling by the trial judge as to admissibility. I am of the view that the objections raised during the out of court examinations should be decided at this time and not be reserved to the trial judge. It is not in the interest of the parties or the trial judge to deliver the evidence of the Crown’s three expert witnesses, with unresolved procedural and evidentiary issues: Parks v. McAvoy, 2023 ABKB 582, at para. 9.

Position of the Parties

[4] Ontario states that there are two common arguments that underlie their objections. First, the objections arose from the plaintiff’s questions about topics on which Professor Read lacks the necessary expertise. Although Professor Read may be knowledgeable in the broad area of the history of non-Indigenous settlement in pre-confederation Ontario, he has not researched Indigenous settlement and does not have specific knowledge about Crown-Indigenous relations. Second, the objections relate to topics not addressed in Professor Read’s report. Ontario argues that it would be unfair to permit the plaintiff to elicit new opinion evidence without prior disclosure.

[5] Canada supports Ontario’s position. It argues that Professor Read is not an expert on Crown-Indigenous relations, or the nature of the trust relationship between Indigenous peoples. Professor Read is the first of many experts who will give evidence in the case. The Crown states that there are other expert witnesses who are expected to address the issues of Crown-Indigenous relations, and therefore Professor Read’s evidence on these issues is not necessary.

[6] The plaintiff argues that the questions objected to were not outside Professor Read’s expertise. As an expert in pre-confederation Ontario history, he has an understanding about relations with the Indigenous people. The plaintiff also argues that Canada put many of the documents in issue to Professor Read during examination in chief and asked him to opine on them and fairness dictates that the plaintiff should have an opportunity to cross-examine the witness with respect to the documents. As to the objection that the documents speak for themselves, the plaintiff argues that an expert’s knowledge and understanding of the context of historical documents, particularly in Indigenous claims is important and the court should have the benefit of the expert’s evidence in this regard.

Analysis

General Principles

[7] Rule 36 authorizes the taking of evidence before trial. R. 36.02(2) provides that a witness examined under the rule may be examined, cross-examined, and re-examined in the same manner as a witness at trial. Rule 36.04(6) provides that the use of the evidence is subject to any ruling by the trial judge respecting admissibility.

[8] In the case of expert testimony, the court must be satisfied that the expert is properly qualified in that they possess special skill, knowledge or experience that is likely to be outside the knowledge or experience of the fact-finder: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 25. The expert must not only be qualified generally but must also be qualified to express the specific opinion proffered: R. v. Orr, 2015 BCCA 88, at para. 67.

[9] Once the threshold requirements of relevance, necessity, the absence of an exclusionary rule, and that the opinion is being provided by a properly qualified expert, the court then engages in a discretionary analysis to determine if the probative value outweighs its prejudicial effect: White Burgess Langille Inman v. Abbot and Haliburton Co., [2015] SCR 182, at paras. 23-24.

[10] In examination in chief, the expert is restricted to testifying within the four corners of the report. The expert may explain or amplify what is in the report but is not permitted to open up a new field not mentioned in the report: Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 38.

[11] In cross-examination, the expert may be asked questions that go beyond the four corners of the report. The expert may be cross-examined on matters relevant to a material issue in the case, including credibility: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 6th ed. (Lederman, Fuerst, Stewart), Chapter 12. The cross-examining party may seek opinions that are within the expert’s expertise. However, if the evidence adduced by the cross-examining party is with respect to an opinion that is beyond the qualifications already established, the cross-examining party must qualify the witness as an expert on that subject matter: R. v. Vassel, 2018 ONCA 721, at para. 100.

[12] Ontario relies on Ault v. Attorney General of Canada, 2007 CanLII 55358 (ON SC) for the proposition that it would be unfair for the plaintiff to elicit an opinion from Professor Read that is outside his area of expertise and for which the plaintiff did not provide notice. In a civil trial, the party wishing to rely on expert opinion evidence must provide notice. In Ault, he court held that to allow an expert to provide a new opinion in cross-examination without the normal rules of disclosure would be prejudicial. The notice requirement is to ensure that a party is not unfairly taken by surprised by expert evidence on a point that could not have been anticipated from reading the report: Marchand, at para. 38.

[13] An expert witness’s knowledge and understanding of the context of the historical documents, particularly in Indigenous claims may be of assistance to the court. As noted in Cowichan Tribes v. Canada (Attorney General), 2020 BCSC 917:

[47] I agree with the comments made by Justice Vickers in Williams that historical documents do not always speak for themselves, and I find it necessary to receive some explanation of the context in which those historical documents were created.

[48] I agree with the plaintiffs’ submission that Dr. Brealey as a historical geographer can contextualize Crown and Aboriginal relations regarding Indian settlement land as that term was understood during the reserve allotment process in British Columbia between 1859 and 1880. Without interpreting the law, he can provide evidence of the legal framework in which government actors were required to act. There is a fine line and sometimes overlap between historical and legal context.

Scope of Professor Read’s Expertise

[14] Canada tendered Professor Read as an expert witness. The scope of his expertise is as an expert in “pre-confederation Ontario history with a particular expertise in land systems, including sales and settlement, making and enforcement of mortgages and inheritance patterns from 1791 – 1851”. Professor Read’s report covered the history of non-Indigenous settlements in Upper Canada.

[15] This is a broad general tender with respect to pre-confederation Ontario history. Although a historian, Professor Read accepted that there are matters of history in Upper Canada of which he knows nothing. He confirmed that he has no special expertise in the history of Indigenous settlement in Upper Canada, the history of trusts, the obligations of trustees generally, or the creation or maintenance of trust arrangements between the Six Nations and the Crown. In cross-examination, Professor Read stated that he has a good knowledge of British and Indigenous people in the history of Upper Canada.

The Objections

Nos. 1 and 2 – Day 5 pp.72:5 - 77.14, pp. 78:12 – 81:25

[16] Plaintiff’s counsel asked Profession Read to read the exhibit at AGC-59. This document is entitled, “Instructions to Brigadier General Sir John Johnson Superintendent General of Indian Affairs in the Northern District of North America.” The document is dated February 6, 1783. The document provides that the Indigenous people may be assured of the “King’s paternal care and regard as long as they continue to merit them, by acting as good and obedient Children ought to do.” Professor Read was asked if this would be an example of the way in which government officials characterized the relationship between the Crown and Indigenous people at that time.

[16] Ontario argues that that the question is outside Professor Read’s temporal expertise. He was tendered as an expert with particular expertise in land systems in Ontario between 1791 and 1861. Professor Read stated that he has less knowledge of the period before 1791. Ontario also argues that it has not been established that Professor Read has done in-depth study into the Indigenous/Crown relationship and it has not been established that he is an expert in this field. Ontario argues that the question as to how the Crown and Indigenous communities described each other is outside the scope of Professor Read’s expertise.

[17] Canada also objects and takes the position that having Professor Read opine on how the government officials characterized the relationship between the Crown and Indigenous people is outside the scope of his expertise. Canada also argues that the reference to “children” creates an implication of fiduciary duty that is also outside Professor Read’s expertise.

[18] The temporal scope of Professor Read’s expertise is broad. He is an expert in “pre-confederation Ontario history”. In his report, Professor Read refers to matters that took place before 1791, including the settlement policy between 1639-1843, the seven -year war between 1755-1760 and that in 1763 the government banned settlement west of the Ottawa River. The document that was prepared in 1783 falls within the broad period of “pre-confederation”. I am satisfied that the cross-examination of the document falls within his temporal expertise.

[19] Professor Read was asked to consider and comment on a historical document. As noted above, historical documents do not always speak for themselves, and the trial judge may find it necessary to receive some explanation of the context in which those historical documents were created. I am satisfied that asking Professor Read to provide historical context to the instructions to John Johnson in 1783 is proper.

[20] Professor Read’s scope of expertise is with respect to land systems in pre-confederation Ontario. He testified that the arrival of Indigenous people and relations with the Indigenous people was a significant part of land policy in Upper Canada. It is my view that the manner in which government officials interacted with Indigenous people with respect to land policy is a question that falls within the scope of Professor Reads expertise. I allow the question of the relationship between government officials and Indigenous people, but only with respect to land policy in pre-confederation Ontario. I am satisfied that this question could have been reasonably anticipated from reading the report and there is no prejudice to Ontario and Canada.

No. 3 – Day 5 pp. 82:11 – 94:10

[21] Plaintiff’s counsel asked Professor Read about a section in the May 14, 1830 Executive Council Minutes (AGC–19) that refers to the fact that the public were made aware that lands could not be alienated by Indigenous people.

[22] Ontario objects on the basis that the document speaks for itself. Ontario also argues that it has not been established that Professor Read knew the proclamations were published or had read the publications. Canada objects on the basis that Professor Read is not an expert in Crown/Indigenous relations.

[23] The plaintiff argues that the questions posed were about the purpose of the proclamations and to whom the proclamations were directed. Canada examined on this issue during Professor Read’s examination in chief and entered the document as an exhibit. Ontario did not object to the questions posed by Canada about this document.

[24] The Executive Council Minutes are dated May 14, 1830. The Minutes were prepared within the broad timeframe of Professor Read’s expertise of pre-confederation history and the specific time frame between 1791 and 1861. Professor Read was asked about the document in his examination in chief. Canada tendered the document as an exhibit during Professor Read’s examination in chief. Canada must have been satisfied that the document was relevant and was sufficiently within Professor Read’s expertise to justify entering it as an exhibit during his evidence.

[25] I conclude that Professor Read may be asked about the document in cross-examination and may provide historical context of the document. He may be asked if he has knowledge of the publications and had read them. The questions relate to the issue of whether lands could be alienated by Indigenous people. In my view the alienation of land falls within Professor Read’s expertise of land settlements in pre-confederation Ontario. I conclude that Professor Read may be asked if he has an opinion as to whether the publications advised the public of the “fact that the lands could not be alienated by the Indians”. I am satisfied there is no prejudice to Ontario and Canada.

No. 4. – Day 5, pp. 95:6 – 101:2

[26] The plaintiff asked Professor Read about the May 14, 1830 Executive Council Minutes and in particular whether Colonel Claus was acting as a public official when he was acting as a trustee. In cross-examination, Professor Read agreed that the Executive Council would sometimes comment on the office a government official may hold.

[27] Ontario objects on the basis that the document speaks for itself. Ontario also argues that the question may stray into the area of the capacity of trustees for the Six Nations which was an area Professor Read had not researched. Plaintiff’s counsel clarified his question on the record and stated that he did not ask any questions about Colonel Claus’ actual position. Instead, Professor Read was asked to confirm what the council was saying on this occasion. Counsel for Ontario stated that he has no objection to what Claus’ position was in the government of Upper Canada. However, he was maintaining his objection over whether Professor Read can confirm that Claus was acting as a government official when he was acting as trustee for the Six Nations.

[28] Canada argues that Professor Read has not studied the trust document and the issue of whether Claus was acting as a government official is outside the scope of his expertise. Canada does not object to Professor Read being asked to confirm what was written in the document.

[29] The plaintiff states that Canada examined on the issue during Professor Read’s examination in chief and entered the Executive Council’s Minutes as an exhibit (AGC-19). In chief, Professor Read gave direct evidence about the responsibility of trustees, the revocation of John Claus’ position and the appointment of trustees. Canada adduced Professor Read’s opinion that, “it was up to the Six Nations’ trustees of the mortgage to take action to get that money paid back or to get the land back”. There was no objection by Ontario that this line of questioning fell outside Professor Read's expertise.

[30] I conclude that Professor Read may be cross-examined with respect to Executive Council’s Minutes. This document was raised in examination in chief and Canada made the document an exhibit. Professor Read may provide the historical context of the documents.

[31] The scope of Professor Read’s expertise is with respect to “pre-confederation Ontario history with a particular expertise in land systems, including sales and settlement, making and enforcement of mortgages and inheritance patterns from 1791 – 1851”. I am not satisfied that his expertise extends to whether Claus was acting as a government official when he was acting as trustee for the Six Nations. There is no evidence that Professor Read conducted any specific research into Claus, his position in the government or his relationship with the Six Nations. He did not study the trust agreement. I find that the question of whether Claus was acting as a government official when he was acting as trustee is outside the scope of his expertise.

No. 5 – pp. 112:4 – 116:8

[32] Plaintiff’s counsel suggested to Professor Read that the Indigenous people were looking at Claus in the context of the Crown’s protective role.

[33] Ontario objects to the question on the basis that Professor Read is not an expert on the Indigenous perspective. He had not studied the oral histories of the community and there is no evidence that he has any special expertise on the Indigenous perspective. Canada supports Ontario’s objection. Canada did not object to Professor Read being asked to confirm what is written in the document.

[34] The plaintiff argues that Canada examined Professor Read on this issue in the examination in chief and Canada tendered the document at AGC–12 as an exhibit. It is entitled, “Resolutions of the Six Nations made at a Council held at the Onodaga Village 1 March 1809 Respecting their Lands on the Grand River”. The fourth paragraph references the Deputy Superintendent General. This was Colonel Claus.

[35] The document is dated March 1, 1809, and falls within the Professor Read’s temporal expertise. In my view the questions with respect to this document were touched upon in the examination in chief. Canada tendered the document as an exhibit, and Professor Read was asked about the document during his examination in chief. I am of the view that the plaintiff may cross-examine Professor Read with respect to the document, and Professor Read may be asked to provide historical context.

[36] The scope of Professor Read’s expertise is with respect to “pre-confederation Ontario history with a particular expertise in land systems, including sales and settlement, making and enforcement of mortgages and inheritance patterns from 1791 – 1851”. I am not satisfied that the scope of Professor Read’s expertise includes specialized knowledge with respect to the Indigenous perspective and whether the Indigenous people were looking at Claus in the context of the Crown’s protective role. As noted above, there is no evidence that Professor Read conducted any specialized research into Claus or his relationship with the Indigenous people. I find that the question that seeks an opinion on whether the Indigenous people were looking at Claus in the context of the Crown’s protective role is outside the scope of his expertise.

No. 6, pp. 120:5 – 122:4

[37] Plaintiff’s counsel asked Professor Read about the document dated June 30, 1830. The document was made an exhibit (AGC – 33) during his examination in chief. The document states that the chiefs are unanimous in the appointment of trustees. In cross-examination, Professor Read was asked whether the document indicates that there “is just somebody speaking on behalf of those nations, not everyone?”

[38] Ontario states that if the question is what is on the page, there is no objection. However, Ontario takes the position that if the question is whether the person was in fact only speaking for “a certain segment, Six Nations, then there is an objection.” Canada made the same objection as Ontario.

[39] The plaintiff argues that Canada examined on this issue in chief and entered the document as an exhibit. Professor Read read into the record a portion of the document including the line “the chiefs are unanimous” relating to the selection of the trustee. Ontario did not object to the questions or the exhibit.

[40] The document is dated June 30, 1830, and falls within Professor Read’s temporal expertise. The questions with respect to the document were touched upon in the examination in chief. Canada tendered the document as an exhibit, and Professor Read read from the document during his examination in chief. I am of the view that the plaintiff may cross-examine Professor Read with respect to this document and Professor Read may provide the historical context of the document.

Conclusions

[41] I make the following general observations with respect to the scope of Professor Read’s cross-examination:

a. The scope of Professor Read’s expertise is “pre-confederation Ontario history with a particular expertise in land systems, including sales and settlement, making and enforcement of mortgages and inheritance patterns from 1791 – 1851”. Questions that relate to the pre-confederation Ontario history are within the temporal scope of his expertise;

b. The historical documents do not necessarily speak for themselves. Professor Read may be asked questions to provide context of the documents;

c. If a document was tendered as an exhibit during Professor Read’s examination in chief and he was asked questions about the document in chief, Professor Read may be asked questions about the document in cross-examination;

d. Professor Read may be asked questions in cross-examination that call for an opinion that falls within the general scope of his experience. However, if the cross-examining party is seeking an opinion on a matter beyond the qualifications already established, Professor Read will not be required to provide the opinion.

Disposition

[42] For the reasons set out above, I make the following ruling:

a. With respect to objections 1 and 2, Professor Read may be asked to provide historical context with respect to the document entitled “Instructions to John Johnson”. I allow the plaintiff to ask Professor Read about the relationship between government officials and Indigenous people but only with respect to land policy in pre-confederation Ontario.

b. With respect to objection 3, Professor Read may be cross-examined with respect to the Executive Council Minutes dated May 14, 1830, and he may be asked to provide the historical context of the document. Professor Read may be asked if he has an opinion as to whether the publications advised the public of the “fact that the lands could not be alienated by the Indians”.

c. With respect to objection 4, I conclude that Professor Read may be cross-examined with respect to Executive Council’s Minutes and he may be asked to provide the historical context of the document. I am not satisfied that Professor Read has the necessary expertise to provide opinion evidence as to whether Claus was acting as a government official when he was acting as trustee for the Six Nations. The objection to this question is sustained.

d. With respect to objection 5, Professor Read may be cross-examined on the document, entitled “Resolutions of the Six Nations made at a Council held at the Onodaga Village 1 March 1809 Respecting their Lands on the Grand River”. He may be asked to provide a historical context to the document. I find that the question that seeks an opinion on whether the Indigenous people were looking at Claus in the context of the Crown’s protective role is outside the scope of his expertise. The objection to this question is sustained.

e. With respect to objection 6, Professor Read may be cross-examined on the document dated June 30, 1830 and he may be asked to provide historical context of the document.

[43] The use of the evidence from Professor Read is subject to any ruling by the trial judge respecting admissibility: Rule 36.04(6).

Chalmers J.

DATE: August 27, 2024