Wesley First Nation (Stoney Nakoda First Nation) v Alberta, 2013 ABQB 344

Court of Queen ’ s Bench of Alberta Citation: Wesley First Nation (Stoney Nakoda First Nation) v Alberta, 2013 ABQB 344 Date: 20131115 Docket: 0301 19586 Registry: Calgary Between: Chief Ernest Wesley and Councillors Robert Crawler, Tater House, Clifford Poucette and Rufus Twoyoungmen of the Wesley First Nation, being a part of the Stoney Indian Band, suing on behalf of all the other Members of the Wesley First Nation, who are also all Members of the Stoney Indian Band -and- Chief Darcy Dixon and Councillors Donald Thomas Dixon, Rodrick Hunter, Keith Lefthand and Gordon Wildman of the Bearspaw First Nation, being a part of the Stoney Indian Band, suing on behalf of all the other Members of the Bearspaw First Nation, who are also all Members of the Stoney Indian Band -and- Chief Aaron Young and Councillors Frank Crawler, Henry Holloway, Homer Holloway, and Gerald Kaquitts of the Chiniki First Nation, being part of the Stoney Indian Band, suing on behalf of all the other Members of the Chiniki First Nation, who are also all Members of the Stoney Indian Band -and- Chief Ernest Wesley and Councillors Robert Crawler, Tater House, Clifford Poucette, Rufus Twoyoungmen and Chief Darcy Dixon and Councillors Donald Thomas Dixon, Rodrick Hunter, Keith Lefthand and Gordon Wildman and Chief Aaron Young and Councillors Frank Crawler, Homer Holloway, Henry Holloway, and Gerald Kaquitts suing on their own behalf and on behalf of all other Members of the Stoney Indian Band, which comprises the Members of the Wesley, Bearspaw and Chiniki First Nations, (“Iyårhe Nakoda”) -and- The Stoney Indian Band Plaintiffs - and - Her Majesty the Queen in Right of the Province of Alberta and the Attorney General of Canada

Defendants _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice S.L. Martin _________________________________________ ______________ 1. Introduction [ 1 ] In the main action, the Plaintiffs seek a declaration of unextinguished aboriginal title, aboriginal rights and treaty rights to much of the southern half of Alberta. Treaty 7, signed in 1877, and the circumstances of its creation, are also at issue. This claim involves many important issues that will turn on what occurred in both the far and not so distant past.

This complex case has been in case management for 8 years and the parties have just begun questioning. Document production is well under way, even though, with the consent of all parties, formal Affidavits of Records have not been filed. To date, Alberta has produced over 2600 documents, Canada has produced 5789 documents and the production of the Plaintiffs is also in the thousands of pages. [ 2 ] Questioning of Canada’s representative by the Plaintiffs took place over five days in the fall of 2012 and concerned historical matters and events occurring prior to 1871.

I have reviewed those transcripts and they provide the necessary context. In total, Canada recorded approximately one hundred objections over about 500 pages of questioning and eventually refused certain undertakings taken under advisement. This application was taken by the Plaintiffs to compel answers to questions and undertakings. [ 3 ] The parties worked together to narrow the issues and have agreed on a sample of approximately 20 questions to place before the Court for determination. Alberta prepared separate materials but essentially shares the position advocated by Canada.

The parties are divided on what legal principles govern, how those principles apply to the sample questions, and the suitability of Canada’s chosen representative. 2. Procedural History, Nature of the Claim and Objections [ 4 ] The Plaintiffs filed their Statement of Claim on December 10, 2003 and an Amended Statement of Claim on November 8, 2004. Canada filed a defence on July 28, 2011.

Alberta filed on June 3, 2011. [ 5 ] In general terms, much of the Plaintiffs’ claim is rooted in the history of the aboriginal peoples of Canada and their relationship with europeans and the Crowns of Britain, Canada and Alberta. [ 6 ] Canada appointed Mr. Jack Hughes as its representative pursuant to the Alberta Rules of Court, Alta Reg 124/2010 [ Rules of Court ]. He was questioned on October 23 to 25, 2012, and on November 20 and 21, 2012. The questions did not come as a surprise.

He acknowledged in his affidavit that the Plaintiffs gave him 32 pages of questions and 240 documents to review for the October and November questionings, where the planned subject matter was documents produced by Alberta for the period up to 1871. Canada objected to the majority of the questions asked of Mr. Hughes, and objected to and then refused the majority of the requests for undertakings. [ 7 ] The Plaintiffs ask the court to direct Mr. Hughes to answer all questions in respect to which there is a pending objection and to answer the undertakings requested and refused.

Canada objected on the basis that the impugned question was inappropriate for one or more of the following reasons: it required the witness to provide an opinion; interpret a document; or speculate; the question was legal in nature; overbroad, or irrelevant and/or sought to elicit privileged information or communications. [ 8 ] The Plaintiffs argue that the questions are appropriate and should be answered. They also question whether Mr. Hughes is a suitable representative and want Canada to be compelled to appoint a representative capable of answering the impugned questions. 3. Issues

[9] There are two main issues. First, are Canada’s objections and refusals in the questioning of Mr. Hughes valid and proper?This will turn on the applicable law and its application to the categories of sample questions. Second, is Mr. Hughes a properrepresentative under rule 5.17 of the Rules of Court? 4. Questioning in Alberta and the Role of a Representative [10] The Rules of Court set out various forms of questioning and contain many provisions that apply to this application. Underprevious versions of the Rules of Court, the questioning process was referred to as discovery.

The Rules of Court are intended to providea means by which claims can be fairly and justly resolved, in or by a court process, in a timely and cost effective way. Courts are givenbroad powers and extensive discretion to ensure that parties comply with both the letter and spirit of the discovery process. The partieshave supplied extensive authorities and while I have reviewed them, I refer only to those which directly advance the analysis. [11] The purpose of the disclosure of information is outlined in rule 5.1: 5.1(1) Within the context of rule 1.2, the purpose of this

Part is (

a) to obtain evidence that will be relied on in the action, (

b) to narrow and define the issues between parties, (

c) to encourage early disclosure of facts and records, (

d) to facilitate evaluation of the parties’ positions and, if possible, resolution of issues in dispute, and (

e) to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the cost of them. [12] Case law also recognizes that many functions fulfilled by questioning and discovery include obtaining admissions, facilitatingthe proof of the matters at issue between parties, and obtaining full and fair disclosure.

Discovery also assists the examining party infinding out what case the party has to meet, allowing parties to assess the merits of their own and the opponent’s position, defining issuesearly in the proceedings, determining facts relied on in support of that case, limiting the generality of the pleadings and avoiding partiesbeing taken by surprise at trial.

See Reading & Bates Construction Co v Baker Energy Resources Co (1988), 25 FTR 226 at para 7(FCTD) [Reading & Bates]; Taylor v Canada (1992), (FC), 46 FTR 53 at para 17 (FCTD) per Jerome, ACJ, quotingfrom Rule-Bilt Ltd v Shenkman Corporation Ltd (1977), (ON SC), 4 CPC 256 at page 258 (ONSC). [13] In Alberta, parties are entitled to discover other parties adverse in interest only with respect to relevant and material matters:meaning questions need to be answered if they can be expected to “significantly help determine one or more of the issues raised in thepleadings”.

To further the purposes of discovery, this test is applied broadly and parties are often afforded wide latitude in askingquestions during discovery. As stated in Ironside v Wong, 2003 ABQB 161 at para 21: The purpose of examinations for discoveries is to allow the opposing party the opportunity to learn the case to be met, to narrow theissues to be dealt with at trial, to prevent surprise at trial, and to allow a party to assess the strengths and weaknesses of the case of theopposing party in anticipating that this may foster settlement.

For these reasons, the scope of examinations for discovery is quite broad. [14] Rule 5.2 speaks to relevance and materiality: 5.2(1) For the purposes of this Part, a question, record or information is relevant and material only if the answer to the question, or therecord or information, could reasonably be expected (

a) to significantly help determine one or more of the issues raised in the pleadings, or (

b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in thepleadings.

(2) The disclosure or production of a record under this Division is not, by reason of that fact alone, to be considered as an agreement oracknowledgement that the record is admissible or relevant and material. [15] The scope of relevance is based on the parties’ pleadings: Hunka v Degner, 2011 ABQB 195. Discovery is limited touncovering evidence of primary and secondary relevance: Mustard v Brache, 2006 ABCA 265. [16] Objections by counsel to questions posed by examining counsel are dealt with in rule 5.25: 5.25

(1) During questioning, a person is required to answer only: (

a) relevant and material questions, and (

b) questions in respect of which an objection is not upheld under subrule (2).

(2) A party or a witness being questioned may object to an oral or written question during questioning but only for one or more of thefollowing reasons: (

a) privilege; (

b) the question is not relevant and material;

(

c) the question is unreasonable or unnecessary; (

d) any other ground recognized at law.

(3) A corporate representative may object to an oral or written question during questioning on the basis that it would be unduly onerousfor the corporate representative to inform himself or herself in the circumstances.

(4) If an objection to a question cannot be resolved the Court must decide its validity. [17] Among the “other grounds recognized by law” supporting an objection under rule 5.25 (2)(d), courts have identified certaincategories of impermissible questions. Valid objections may relate to:

i) questions of expert opinion. See Quality Investments Ltd v Curtis Engineering and Testing Ltd (1985), 1985 ABCA 236 , 65AR 57 at para 5 (ABCA) [Quality Investments]; ii) questions of law or mixed fact and law, or the legal

interpretation of documents. See Can-Air Services Ltd v British AviationInsurance Co Ltd (1988), 1988 ABCA 341 , 91 AR 258 at paras 6-7 [Can-Air Services]; iii) questions that ask witnesses to interpret a document they did not author; iv) questions that require the witness to hypothesize, speculate or reach conclusions;

v) questions that offend the rules of privilege. [18] The purpose of these limits is to avoid abusive, excessive and unnecessarily expensive discovery. These limits are not to cutoff legitimate lines of inquiry. See Weatherill Estate v Weatherill, 2003 ABQB 69 at paras 16-17 [Weatherill]. [19] Rule 5.30 relates to undertakings during questioning: 5.30(1) If, during questioning, a person answering questions (

a) does not know the answer to a question but would have known the answer if the person had reasonably prepared for questioning, or ifas a corporate representative the person had reasonably informed himself or herself, or (

b) has under the person’s control a relevant and material record that is not privileged, the person must undertake to inform himself or herself and provide an answer, or produce the record, within a reasonable time.

(2) After the undertaking has been discharged, the person who gave the undertaking may be questioned on the answer given or recordprovided. [20] Mr. Hughes was selected as Canada’s representative and his answers will bind the Crown. Generally, the Rules of Courtapply to the Crown: See

section 27 of the Crown Liability and Proceedings Act, RSC 1985, c C-50. Under those rules and for thepurpose of questioning, the Crown’s representative is treated like an officer or servant of a corporation. See

section 7 of the CrownLiability and Proceedings (Provincial Court) Regulations, SOR/91-604 and Samsports.Com Inc v Canada Revenue Agency, 2007ABCA 151 at paras 16-28. Accordingly, under rule 5.4(2), Mr. Hughes is obliged to: (

a) inform himself of relevant and material recordsand relevant and material information before being questioned; (

b) bring any records likely to be required in respect of which there is noclaim of privilege; and (

c) give appropriate evidence of the relevant and material records and information. 5. Questions in Dispute [21] Certain general principles have guided my determination and should guide remaining questioning by the parties. The right ofdiscovery is to be meaningful. The starting point is to determine if the question is relevant and material, taking into account the pleadingsand the overall context and nature of the claim.

The pleadings frame the issue for trial and govern relevance and materiality at thediscovery stage. [22] In their pleadings the Plaintiffs allege multiple breaches of wide and evolving rights over an extensive area, spanninghundreds of years. The legal rights at issue are said to be sui generis, and involve wide factual inquiries. In Delgamuukw v BritishColumbia, (SCC), [1997] 3 SCR 1010 [Delgamuukw] the Supreme Court revisited the test for aboriginal titleestablished in R v Van der Peet, (SCC), [1996] 2 SCR 507. The Court said the primary purpose of section 35(1) of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, was a reconciliation of the rights of aboriginalpeoples as the prior occupants of lands in North America with crown sovereignty. The Court recognized the sui generis nature ofaboriginal and treaty rights, and articulated the three part test that aboriginal groups asserting title must satisfy to advance an aboriginaltitle claim at para 143 of Delgamuukw: (

a) the land must have been occupied prior to sovereignty, (

b) if present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between present and pre-sovereignty occupation, and (

c) at sovereignty, that occupation must have been exclusive. [23] The Supreme Court has subsequently supplied greater detail as to how those principles would be applied in R v Marshall,

2005 SCC 43, [2005] 2 SCR 220 and R v Sappier, 2006 SCC 54, [2006] 2 SCR 686. These cases illustrate part of what the Plaintiffs willbe required to prove at trial. A. Historical Questions Beyond the Memory of Any Living Person [24] The following questions are said to give rise to similar legal issues.

The sample objections and undertaking refusals to be ruledon under this sub-heading are: Item #21 - Undertaking Request - To confirm that among the purposes of the Palliser expedition one was to get as much geographicaland physical information about part of the Northwest Territories at least to the Rocky Mountains, and another was in relation to theeventual construction of a possible railway.

Item #32 - Objection - With respect to p. 2 of the typed version of JH-16 (first full paragraph beginning “And as it is judged” and ending“certain Posts and Places”), to confirm whether the policy being recommended at the time was that the Indian nations would berequested or directed to trade at particular posts. Item #39 - Undertaking Report - To advise whether, as of 1763, the Indian nations or tribes presently inhabiting Alberta were consideredby the British Crown to be connected to, or living under the protection of, the British Crown as of 1763, 1764.

Item #88 - Undertaking Request - To advise if Canada has any information as to whether the “Assiniboines of Canoes” (noted in JH-26)relate to what has been described as the Stoney Indians or Stoney Mountain Indians, or the mountain Stoneys. [25] The parties disagree on two points in relation to these questions. First, they dispute which legal principles govern questionsthat seek answers about historical facts outside living memory. Second, once the legal standard has been resolved, they are divided onhow these questions should be characterized on the continuum between historical facts and matters of opinion. i.

Governing Legal Principles and the Role of Living Memory [26] On the first question of the applicable legal principles, there is very little case law on the scope of questioning concerninghistorical matters from Alberta, whether in the context of aboriginal litigation or otherwise. There are however, two divergent lines ofauthority elsewhere in Canada: one from British Columbia and the other from the Federal Court. [27] The first line of authority, advanced by Canada and Alberta, began in the 1980's in British Columbia.

In a series of casesdealing with aboriginal rights, trial courts in that province held that only an expert historian could answer questions relating to historicalfacts beyond the memory of living persons. This restriction applied to the questioning of the representatives of the Crown and FirstNations claimants.

See: Martin v British Columbia (Government) (1986), (BC SC), 3 BCLR (2d) 60 (BCSC)[Martin]; Uukw v British Columbia (Government) (1986), (BC SC), 7 BCLR (2d) 325 (BCSC) [Uukw]; and Chingeev British Columbia (1989), 38 CPC (2d) 301 (BCSC) [Chingee]. [28] In Martin, the plaintiffs brought an action to establish aboriginal (and other) rights to Meares Island in British Columbia.

Thatclaim involved “far-reaching allegations requiring the investigation of many historical facts some of which are alleged to have occurredover 200 years ago of which there is little or no conventional record”. [29] McEachern CJ held that it was not appropriate to ask representatives about historical facts which neither they, nor any livingpersons to whom they had access, have any memory and which can only be ascertained by reliance on documentary records. He was ofthe view that interrogatories must be directed to questions of fact which the deponent can verify from personal knowledge or onreasonable inquiry.

He explained his approach at page 67: [...] I am satisfied interrogatories must be directed to questions of fact which the deponent can verify from personal knowledge or onreasonable inquiry. There is direct authority that an interrogatory may not include a question which can only be answered by consultingan expert and by repeating the expert’s opinion: Rofe v. Kevorkian, [1936] 2 All E.R. 1334 (C.A.).

To the foregoing I would add thatwhile history is not a proper subject for interrogatories, the living memories of both the deponent and the persons he represents may, ifrelevant, be proper subjects for interrogatories. [...] [30] In his view, interrogatories must be capable of being answered on oath, or after inquiry and cannot be matters of history andopinion. Following this logic, since the answers will of necessity be based on a reading of the documents, he reasoned that suchquestions should only be answered by expert historians as a matter of opinion.

He stated at page 67: [...] I regard the history of Meares Island to be a question for historians, not deponents without personal knowledge, but the actualknowledge of any representatives of the province must be disclosed and all relevant records in the possession of the province must beproduced, but not by answers to interrogatories. [31] In the subsequent case of Chingee, Esson J held that similar interrogatories did need not be answered for multiple reasons.Martin was applied and was said to stand for the following two propositions at page 304.

First, that “[h]istory is not a proper subject forinterrogatories, although the living memories of the deponent and the persons he represents, may, if relevant, be proper subjects forinterrogatories.” Second, “[a] deponent may not on interrogatories be asked what he knows about what is contained in documents not inthe possession or power of the deponent.” Representatives could be questioned on matters within a representative’s memory. There wasalso some recognition in Martin that there can be an institutional memory outside living memory. [32] These principles were subsequently applied in British Columbia.

The above passage from Martin was cited with approval inUukw at pages 327-29, where it was held that interrogatories must be limited to questions of fact that are verifiable from the deponent’spersonal knowledge or on reasonable inquiry.

[33] In Chingee, the British Columbia Crown applied to strike out the plaintiffs’ interrogatories related to their claims based onTreaty No. 8, entered into in 1898. Applying Martin, the Court struck down all of the interrogatories objected to because they were withrespect to matters of historical

interpretation, were outside living memory and in some cases referenced documents not in the possessionor control of the Crown. [34] In McLeod Lake Indian Band v British Columbia, 1997 CarswellBC 1894 (BCSC), the Court considered an application byBritish Columbia to compel the plaintiffs’ representative to answer several interrogatories involving what were seen as opinion onhistorical questions, and the scope of Treaty No. 8.

British Columbia argued that the interrogatory answers were essential to assist inpreparing to cross-examine the plaintiffs’ expert anthropologist as to his opinion with respect to the traditional territory of the McLeodLake Sekani First Nation. The Court refused to permit interrogatories which were exclusively the subject of “history”. [35] Finally, in McLeod Lake Indian Band v British Columbia, (BCSC), British Columbia applied for afurther order requiring the plaintiffs to respond to various additional interrogatories.

The plaintiffs also objected to a series ofinterrogatories related to their ancestors’ dealings with Treaty 8 commissioners and the knowledge of their ancestors concerning Treaty 8on the basis that these questions involved matters of historical

interpretation. The Court struck out the interrogatories as they dealt withmatters of history beyond the living memory of the Chief and other band members and involved matters of research and opinion. [36] What emerges from these cases is that, whether asked by the Crown or First Nations, the British Columbia courts have limitedthe scope of permissible questioning based on an amalgam of the following strands of reasoning: a representative may only be askedabout facts within living memory.

Anything outside living memory is the realm of historians and can only be spoken to by an expert.Questions that ask about historical matters outside living memory not only infringe upon this rule, they bring in and breach general rulesthat limit opinion evidence to experts.

Because the questions often relate to what is contained in historical documents, this also engagesthe rule that prevents witnesses from commenting on documents they did not author. [37] Based on this line of authority, Canada and Alberta argue that the above questions ask Canada’s representative to speak abouthistory beyond living memory and to provide what they say is an opinion on historical matters. In their view, such questions may only beasked of an expert, who has reviewed the historical documents and is qualified to opine on such matters.

Canada and Alberta stateanswers to the impugned questions may be forthcoming from their experts at trial, but it is not appropriate to ask them of theirrepresentative. [38] The Plaintiffs rely on a different line of cases from the Federal Court which has held that a lay representative can be examinedon historical facts. The Federal Court first distinguished but ultimately rejected the British Columbia approach. In 1999, in MontanaIndian Band v Canada (2000), 172 FTR 46 (FCTD) [Montana] that Court explicitly stated that Martin and Chingee had not beenfollowed in the Federal Court.

Instead, the Court followed the prior Federal Court decision of Wewayakum Indian Band v Canada(1991), (FC), 42 FTR 40 [Wewayakum]. In both Montana and Wewayakum, the Federal Court held that questionsrelated to historical facts should be allowed in discovery and need not be answered by expert historians. [39] In Wewayakum, the defendant members of the Cape Mudge Indian Band applied to the court for an order requiring theplaintiff Indian Band to provide answers to several written interrogatories.

The Court noted that different provinces had variousapproaches to discovery and the one in British Columbia, was seen at para 33 as “a much more restrictive attitude regarding the use ofdiscovery”. This restrictive attitude played a role in British Columbia’s narrow definition of “history”. More specifically Addy J stated atpara 36: [Martin states] [...] that history is not the proper subject for interrogatories or oral discoveries. I can agree with that statement only if theword “history” is taken as meaning opinion or historical conclusions drawn from detailed study or examination of past events.

The pastevents themselves, however, in so far as they may constitute simple or basic facts, are fully discoverable as such. Any type of record ordocument or writing purporting to state a fact, as distinguished from the expression of broad conclusions or opinions, is not subject toexclusion from pretrial discovery merely because the fact is historical in the sense that it originates beyond living memory.

The same testapplies to oral statements of fact originating beyond living memory and subsequently related to others. [...] [40] As further explained by Addy J at para 38: The essence of what is being advanced by the plaintiff is that only an expert historian is legally capable of testifying as to facts which arebeyond living memory. The historian is therefore to be considered as the sole fact finder as well as the person whose opinion is beingsought. Presumably the opinion can also be based on other facts providing they are also found by another historian.

This is a strangetheory indeed which can be explained only by a narrow and restrictive

interpretation of certain pronouncements of some BritishColumbia jurists.

This also leads to the unacceptable conclusion that where a party’s claim is based on aboriginal title or is based onmatters which are beyond living memory, that party would only be subject to production of documents and would not be subject to andcould not be examined for discovery on the very facts which are truly relevant to the claim, since the party will obviously not be anexpert historian and answers to discovery are required to be given by a party and not by a complete stranger to the action. [41] This approach was adopted and applied subsequently in the Federal Court in Montana, where it was stated at para 15: [In Wewayakum, Addy J.] [...] drew a line between simple historical facts and conclusions or inferences which could be drawn fromthose facts; the latter were the proper field of detailed study or examination by an expert but the former were every bit as much withinthe competence of an ordinary witness as any other facts and could properly be the subject of questions on discovery.

He described asunacceptable the conclusion that where a claim is based on matters which are beyond living memory, only expert historians could beadmitted to testify as to the facts. [42] There is little Alberta authority on point. While Montana has been cited and applied in Alberta, it is mostly in relation to thepart of the decision that spoke about balancing the time and expense of answering questions against other factors such as relevance, valueand probable importance.

See Alberta Lime Co Ltd v Alberta (Minister of Resource Development), 2005 ABQB 818; Waquan vCanada, 2003 ABQB 316 [Waquan]; Taylor v Alberta Teachers’ Association, 2002 ABQB 554 [Taylor].

[ 43 ] In the absence of binding authority, the matter was argued as one first principle. In my view the more persuasive line of authority is that of the Federal Court of Canada which requires representatives to respond to questions of historical fact, whether within or outside living memory. The point is well explained and correctly stated in Montana at para 18: [...] The objection that the facts in issue which form the subject of the interrogatories are beyond living memory seems, with respect, to be specious.

Especially where matters of Aboriginal rights are concerned, traditional, custom and oral history may be valid sources of historical fact. The deponent on discovery is not a simple witness but is the representative of and speaks for a party qua party. Furthermore, institutions may also have memories and the Crown is quintessentially one such institution. To say that the Crown can have no factual information about anything which goes beyond living memory (as a practical matter, some time after the first world war) seems to me to be absurd.

Governments, more than most institutions, are notorious for keeping records of what they do and such records may be constantly referred to and relied upon as a source of current practice even today. While most such records will be in documentary form it is by no means inconceivable that institutional memory may manifest itself in other forms such as practices and traditions.

If these are the source of factual allegations by or against the Crown, they may surely be made the proper object of discovery. [ 44 ] This formulation is preferable as it best promotes the purposes of the disclosure and exchange of information contained in rules 5.1 and 5.2; it more fully acknowledges the role and responsibilities of a representative of the Crown or any continuing body; and takes into consideration the distinctive context of this type of litigation, including the goal of promoting equity between the parties.

The Federal Court authorities addressed written interrogatories, but nothing prevents that reasoning from applying to oral questioning. In those cases, the Federal Court was careful to state that the rules for written interrogatories should not be any different in principle from those arising from oral discovery. If any comparison is to be made, the case law is clear that the ambit of oral questioning is wider than that of written interrogatories. [ 45 ] The Alberta Rules of Court are of general application and are to be applied in a variety of contexts and cases.

As noted, questioning has numerous defined and important purposes: to obtain evidence that will be relied on in the action, to narrow and define the issues between parties, to encourage early disclosure of facts and records, to facilitate an evaluation of the parties’ positions and, if possible, resolve issues in dispute, and to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the cost of them. These purposes can only be achieved if the process is meaningful.

To be meaningful in the distinctive context of this type of historically based litigation, questioning should not bounded by restrictions based on living memory. Adopting a pragmatic approach, when the representative is from a body with historical memory and the subject of inquiry of the questioning concerns matters before 1871, the British Columbia approach appears to limit the role of the representative to one resembling a clerk for documents. Mere production of underlying documents was not sufficient in Dick v The Queen , [1993] 1 CNLR 50 (FCTD) .

See also: Cardinal v Canada (1996), 110 FTR 241 (FCTD) , aff’d 118 FTR 114 (FCTD) , rev’d (1998) 222 NR 218 (FCA) . Nor should it be in the present case. [ 46 ] The approach of the Federal Court was tied to a desire to reflect the movement towards a “general extension of the rules of practice regarding pre-trial discoveries”, rather than what was seen as a restrictive approach taken in British Columbia.

On this point, Justice Addy at para 31 of Wewayakum cited the following from Reading & Bates : The purpose of discovery, whether oral or by production of documents, is to obtain admissions to facilitate proof of the matters in issue between the parties. The prevailing trend today favours broadening the avenues of fair and full disclosure to enable the party to advance his own case or to damage the case of his adversary.

Discovery can serve to bring the issues more clearly into focus, thus avoiding unnecessary proof and additional costs at trial. [...] [ 47 ] In relation to rules 5.1 and 5.2, all parties are obliged to put forward known facts early in the process so that issues can be narrowed. The point was made by Slatter J (as he then was) in Weatherill ; in interpreting the Rules of Court (at that time), a court should avoid creating an artificial situation where a litigant is not entitled to obtain information on discovery, which the litigant could quite clearly introduce at the trial.

The Rules of Court are to be applied pragmatically to particular facts situations. Paragraph 16 of Weatherill is helpful and should be quoted in full: In determining whether a document is relevant and material, the starting point is the pleadings. The pleadings define the issues, and relevance must be determined with respect to the issues. The pleadings are also relevant with respect to the issue of materiality. However, with respect to materiality one must also have regard to the issue in question. Where does the burden of proof lie?

Is the issue something that is capable of direct proof, or is it something like a person’s state of mind, which can only be proven indirectly. Does one party essentially have to try and prove a negative? How are cases of this type usually proven at trial? The less amenable a fact is to direct proof, the wider will be the circle of materiality. There are some facts that can only be proven by essentially eliminating all the competing scenarios, thereby leaving the fact in issue as the sole logical inference.

When a state of mind is an issue, it can generally only be proven by demonstrating a pattern of conduct of the person whose state of mind it is. In deciding whether a particular document is material, one must take a very pragmatic view, viewing the situation from the perspective of the party who must prove the fact in question. At an interlocutory stage of proceedings, the court should not measure counsels’ proposed line of argument too finely; if counsel can disclose a rational strategy in which the disputed document plays a material part, that should be sufficient.

Again it must be remembered that the purpose of the Rule was to avoid abusive, excessive, an unnecessary expense of discovery, not to cut off legitimate lines of inquiry. [ 48 ] In the case at bar, the Plaintiffs face a situation similar to that described in the above quote. The burden is on the Plaintiffs to establish their claims in circumstances where direct proof may be difficult and which also involves, among other issues, demonstrating which groups engaged in what activities at what time and at what place.

Accordingly, the pragmatic view endorsed for such an interlocutory proceeding is to view the matter from the perspective of the person called upon to prove the fact at issue. [ 49 ] Further, the role of a representative is an important one and under the new Rules of Court the representative is obliged to inform him or herself to answer questions. Any possible rationale behind the living memory restriction on historical facts loses force when all parties are enduring entities who must designate a representative and what is in dispute happened many years ago.

In Montana and Wewayakum , the Court noted that institutions, such as the Crown, have institutional memories that exist beyond living memory. Even though the British Columbia authorities provide somewhat contradictory comments on this point, it remains unclear why the Crown’s memory is limited by that of its representative or those the representative is obliged to consult, or why the representative’s duty

to inform herself or himself should be limited to talking to people, rather than including facts contained in documents as well. [50] The Plaintiffs argue that the Court must consider and take into account the nature of aboriginal litigation and the unique andinherent evidentiary difficulties posed by aboriginal litigation, the honour of the Crown, the trust or fiduciary relationship between theApplicants and the Crown (Federal and Provincial), and the critical historical components of the issues in these proceedings. [51] A balance needs to be achieved between taking sufficient account of the distinctive nature of aboriginal litigation, while alsorespecting the fact that there are not special rules for it.

In Canada v Stoney Band, 2005 FCA 15, the Federal Court of Appeal stated thatthe concept of the honour of the Crown does not apply in ordinary litigation matters and that any fiduciary duty Canada might owe, didnot preclude Canada from making use of the rules of civil procedure. Thus Canada can argue and benefit from the general rules ofprocedure and evidence, without engaging or running afoul of its fiduciary obligations. [52] Nevertheless, the general rules will be applied to the particular context in which they are to be raised.

That includes therecognition that factually, Canada and Alberta have been the custodians of historical records, in a manner befitting their role. The Crownin right of Canada, and by extension the Crown in right of Alberta possess special constitutional powers and responsibilities and they arethe successors in title to the British Crown. The case law has recognized that it is especially important that the Crown representativeanswer historical questions where the plaintiff is an aboriginal group.

It was noted in Montana at para 12: [...] It is common knowledge that Indian Bands have few or no written records relating to the past and must, apart from tradition and oralhistory, rely to a large extent upon the records of the government itself. This casts upon the Crown, in its past and continuing capacity asprotector and fiduciary of the Bands, a particular duty to be open and frank in its disclosures. Even with the adversarial relationshipcreated by litigation between them, the Crown continues to owe an historic duty to deal fairly and openly with first nations.

This is not tosay that there are special rules for aboriginal claims, but simply that the nature of any claim is part of the context in which any objectionto interrogatories is to be decided and that where a claim is in respect of historical injustice by the Crown, that context may bedetermining. [53] What evidence may be admissible at trial should have a bearing on the scope of permissible discovery. The Supreme Courthas consistently recognized that oral histories play an integral part of First Nations knowledge and call for an expansive concept ofevidence.

In Mitchell v MNR, 2001 SCC 33, [2001] 1 SCR 911, the Court made the point that aboriginal rights claims give rise toinherent evidentiary difficulties. To ensure that the constitutional protections of section 35(1) are not illusory, the rules of evidence are tobe applied flexibly, in a manner commensurate with the inherent difficulty posed by aboriginal claims. Claimants must demonstratefeatures of pre-contact society and in the absence of written records, oral histories may offer otherwise unavailable evidence of ancestralpractices and aboriginal perspectives.

It is interesting to note that the line of cases from British Columbia concerning the living memorylimitation predated the Supreme Court’s decision Delgamuukw. [54] A lack of symmetry and equity would arise if the living memory of the First Nations deponent could be questioned upon butthat of the Crown’s deponent could not. In Wewayakum, the judge did not think it appropriate that the party objecting had already askedvery similar questions. That approach is endorsed in this judgment.

It should and will apply to all parties. [55] A representative is therefore required to answer questions of historical fact, whether or not they arise outside what has beencalled living memory. I therefore accept that questions of historical fact do not, in all circumstances, require expert opinion orinterpretation. As a matter of legal principle, it is appropriate for Canada and all other parties to this proceeding to be compelled to statetheir position or understanding in respect to historical fact. ii.

The Fact-Opinion Distinction [56] The question then arises as to which historically based questions are ones of fact that can be answered by a lay representativeand which questions call for matters of opinion that require experts. I accept Canada’s basic premise that both the approaches of theBritish Columbia and Federal Courts are similar to the extent that they state that only facts, not opinions, are relevant during thediscovery process.

At one level what principally divided those courts was how to treat the discovery of facts outside living memory.However, it is also true that given the historical memory limitation in British Columbia, many of the rejected interrogatories involvedmore than one problematic aspect. For example, when the British Columbia courts said the matter required an expert opinion, it couldhave been because the matter was outside living memory and/or because it was the type of question which crossed from fact into theinterpretation of fact and therefore opinion.

While the British Columbia courts directed themselves to this demarcation between questionsof fact and questions of opinion requiring an expert, the finding that questions outside the living memory of the deponent were notpermissible meant that the demarcation was not at the forefront of the analysis or as significant as most issues were resolved on or raisedthe living memory restriction. Further, the court often answered in a fashion that made it difficult to determine the basis on which theobjection to the question was accepted.

Therefore the questions were not necessarily rejected in those cases simply because theyappeared to call for an opinion. [57] If lay representatives can be asked questions about historical facts outside living memory, it becomes more important to definethe demarcation between historical fact and historical opinion. The fact-opinion distinction is a difficult one at the best of times. Itbecomes even more problematic in the context of ascertaining what happened years ago. To insist on an expert for facts outside ofhistorical memory seems to suggest that portions of history are always a matter of opinion.

Philosophers could have a healthy debateabout the boundaries, if any between fact and opinion, fact and

interpretation. The role of the court, however, is to use existing legalprinciples to help fashion a pragmatic and workable approach that takes into consideration the purposes of discovery and the overallcontext of the claim. [58] Many cases outside the historical context were cited in support of the proposition that a witness need not answer questions ondiscovery which can only be answered by deferring to an expert. See Quality Investments; Weldwood of Canada Ltd v Alta-Stran Inc,[1997] AJ No 169 (QL) (ABQB) at para 57 [Weldwood].

Applying the above, a party cannot be asked questions with respect to how aproduct infringes a patent (Polansky Electronics Ltd v AGT Ltd (1997), (AB KB), 205 AR 43 at paras 10-14), orwhat is scientifically considered to be “petroleum” (Borys v Canadian Pacific Railway Company, (AB CA), [1950] 1

WWR 1093 (ABSC (AD)). Questions with respect to the representative nature of soil, gravel and groundwater samples and the adequatetesting of ground conditions are also improper (Quality Investments). Neither does a party need to advise as to what factors should betaken into account when comparing the efficiency of a boiler’s combined cycle over its simple cycle (Syncrude Canada Ltd v CanadianBechtel Limited, (AB KB), 76 Alta LR (2d) 327 at page 331 (ABQB)). [59] Some guidance can be drawn from the approach of Veit J in Weldwood.

She was considering whether a question posed to alay witness about conduct that would have amounted to “due diligence” was a question of fact or opinion. She stated at para 57: The meaning of the term “due diligence” is not a fact; it is not analogous to asking the defendant what is an aspen or what is an oak. Indistinguishing between fact and opinion, it is perhaps useful to start from the dictionary definition of the terms; I use the Shorter Oxford.That resource reminds us that the word “fact” comes from the Latin “facere”, to make.

Therefore, the primary dictionary definition offact is, “A thing done or performed.” The authors of the dictionary go on to state that a fact is “something that has really occurred asdistinguished from conclusions”. Finally, they note that - in the judicial field - facts are “the circumstances and incidents of a case asdistinguished from their legal bearing”. “Opinion”, on the other hand, is defined as “what one thinks about a particular subject”.

Here thequestion “what you understand to be the meaning of due diligence in the forest industry” is the exemplar of a question asking for opinionrather than a fact. [60] The Federal Court’s ruling in Wewayakum defined “historical opinion” and discussed the distinction between fact and opinionin the following manner per Addy J at para 37: Although often referred to as an opinion, the mere expression of a simple self-evident conclusion, which in the light of certain factswould necessarily be reached as a matter of course by any ordinary person, is clearly to be distinguished from an opinion resulting froman analysis of certain specified facts, which require special expertise or knowledge, on the part of the person expressing it and is also tobe distinguished from an involved or remote conclusion requiring special or detailed consideration or analysis of certain facts and withwhich every ordinary person would not necessarily agree.

The first of the above three examples might well in certain cases properly formthe subject-matter of a question on discovery or in an interrogatory while the other two would not. Conclusions from facts, which are notsimple incontestable everyday conclusions, are properly the subjectmatter of argument and not of evidence and very special rules governexpert evidence. However, the basic facts on which any of these are founded are indeed fully subject to pretrial discovery.

No opinionevidence, no matter how learned the expert might be, is of any probative value unless, insofar as the issue to be decided is concerned, itis supported by basic facts which are ultimately accepted as such by the Court. [61] Sometimes historical questions cannot be answered using pure facts, even after careful research, and accordingly require thehistorical opinion of an expert to answer fully.

Some guidance may be provided by inquiring whether the impugned question is the typeof inquiry that would provide the foundation for an expert’s opinion and therefore qualify as fact or whether it requires a detailed andspecific analysis of facts necessary to answer, or calls for an

interpretation, analysis or statement that is more likely to become theopinion portion of the expert’s evidence. I share the approach of Justice Hugessen in Montana at para 20: It is nothing new to say that the border between fact and opinion, like that between fact and law, is easy to assert but hard to draw on theground.

It is better to have the deponent answer any marginal questions and if the answer turned out to be simply the expression of apersonal point of view the trial judge can deal with the matter appropriately if necessary. [62] The answer to a particular question may involve facts from one document or a series of documents. The fact that multiplesources need to be consulted does not change this from a matter of fact to a matter of opinion. It simply modifies where that fact can befound and what processes are necessary to both discover and communicate it. iii.

Sample Questions and Undertaking Requests and the Reasons for Objection [63] Canada argues that the following questions are improper because they require the deponent to opine on matters beyond hisability to reasonably inform himself of relevant and material facts and are comprised of a mixture of fact and opinion. The Plaintiffsargue that as the representative for the Crown, an institution with a vast institutional memory, Mr.

Hughes, regardless of whether he is ahistorical expert or not, must answer questions of fact central to the issues between the parties. [64] The Plaintiffs argue that the questions in this category all involve yes or no answers. With respect, whether the question canbe answered with a yes or no does not make it a matter of fact. The substance of the question must be examined. What follows is areview of sample questions and undertakings.

Item #21 - Undertaking Request - To confirm that among the purposes of the Palliser expedition one was to get as much geographicaland physical information about part of the Northwest Territories at least to the Rocky Mountains, and another was in relation to theeventual construction of a possible railway. [65] The Plaintiffs argue the purpose of this expedition is a historical fact and does not require historical expertise and that as asuccessor of the British Crown, Canada ought to have this information in its possession.

While not raised directly by the parties, thisquestion seems to raise the larger and recurring issue of how to characterize whether the purpose motivating an action is more fact ormore opinion. The Plaintiffs argue that the goal or policy behind certain actions is a question of historical fact and even if beyond livingmemory, is the proper subject of an inquiry at questioning. In general that is a sound proposition. Much will depend upon whether thereare statements of purpose or policy, or whether such needs to be discerned or inferred from actions.

Governments often present directevidence of their goals, policies and intentions in other forms of constitutional cases: for example, when arguing about the pith andsubstance of legislation or whether there was a pressing and substantial purpose when attempting to justify restrictions on Charter rights,even when the matter is historical.

In my view, such statements are factual when they set out what the body was stating as their intention.That the fact may be disputed or be seen as partial does not make it any less a fact or transform it into an opinion. [66] The representative of the Crown may therefore be called upon to testify as to what the intended purpose was behind certainactions. It is difficult to see how an expert would be in a better position than the successor in title to articulate purpose. Even if there is an

element of inference, the documents available seems to suggest it more properly falls within the category of self-evident conclusionsreferred to by Addy J and should be answered. [67] It is to be remembered that the party asking the question will not always know if the party examined considered the responseto be a matter of fact or opinion. Sometimes it has elements of both. Answers at the earliest possible stage in the litigation and to theextent allowed by the Rules of Court are to be encouraged.

Thus, if a question can be interpreted as asking for both fact and opinion, itshould be read as staying within the bounds of the permissible. And such a question may call for a partial or qualified response. [68] The Crown must answer this question if in possession of information that sets out the purposes of the expedition. Thepurposes of the expedition may be many but when there are statements about why an action was taken it becomes a matter of fact, notopinion. It is not sufficient that some evaluation of the document may be necessary.

The issue is whether it is self-evident fact arisingfrom or contained in that document. Item #32 - Objection - With respect to p. 2 of the typed version of JH-16 (first full paragraph beginning “And as it is judged” and ending“certain Posts and Places”), to confirm whether the policy being recommended at the time was that the Indian nations would berequested or directed to trade at particular posts. [69] This question needs to be answered for the same reasons as stated above.

Item #39 - Undertaking Report - To advise whether, as of 1763, the Indian nations or tribes presently inhabiting Alberta were consideredby the British Crown to be connected to, or living under the protection of, the British Crown as of 1763, 1764. [70] This is a question that combines facts and opinion about what it meant to be connected to or living under the protection of theBritish Crown. The question should be answered as it relates to the factual aspects of this question or if such words have been in use suchthat any conclusion becomes self evident.

Item #88 - Undertaking Request - To advise if Canada has any information as to whether the “Assiniboines of Canoes” (noted in JH-26)relate to what has been described as the Stoney Indians or Stoney Mountain Indians, or the mountain Stoneys. [71] No particular expertise is required to answer this question and the Plaintiffs are entitled to know if Canada has otherinformation about the meaning of this term. B.

The Question Requires the Witness to Interpret a Document [72] Canada argued that a deponent with no expertise in analyzing historical documents clearly cannot be questioned at discoverywith regards to his opinion or

interpretation of those documents. Canada relies on the Court of Appeal in Quality Investments that heldthat a corporation cannot have an opinion in any event given that a corporation does not have a mind. However, this case does notprevent questions about historical fact from the Crown. It is common to hear stated that is not proper to ask witnesses for theirinterpretation of a document that they did not author as the document speaks for itself.

See Common Wealth Credit Union Limited vWaylan Mechanical Ltd, 2008 ABQB 96 at para 101 [Common Wealth Credit]; United Nurses of Alberta v Alberta Association ofRegistered Nurses (1986), (AB KB), 70 AR 241 (ABQB). [73] This principle more clearly applies when witnesses are asked to explain the meaning of a legal term or document: like beingasked to explain their understanding of a defined term in a statute, contract or collective agreement. In such cases the party is providingan opinion about the effect of a legal provision: the traditional domain of legal argument and judicial

interpretation and determination.As stated by Master Funduk, when dealing with questions asking the witness for an

interpretation of a provision of a contract in Alberta(Provincial Treasurer) v National Bank of Canada (1995), (AB KB), 172 AR 282 at paras 27-28 (ABQB): If Mr. Wolinsky is merely asking the officer to literally read back what

article 5.01 says he is wasting everybody’s time. The officer isnot taking a reading skill test. If the officer is being asked what the

article means that is a matter of

interpretation and the

interpretation of a document is a matter oflaw [...] The officer’s view of what

article 5.01 means is irrelevant. [...] [74] This limitation would more clearly apply to questions, for example, about how Canada interpreted the provisions of Treaty 7.It does not apply the same way to all documents produced in the litigation. The point was made by Justice Hugessen in Montana at para19: I also find unconvincing the objection that a deponent to historical facts is being asked to interpret documents or to give an opinion.

Therule against requiring a deponent to interpret documents is most properly applied where the document in question is a contract and thewitness is asked what he or she thinks it means. Documents, however, can and do serve as the basis of a great deal of factual informationand a deponent who is asked to give such information is not being asked to interpret the document or to give an opinion but rather to stateon behalf of the party he or she represents, that party’s understanding of the facts represented therein.

Even in a wholly modern context,records are often expressed in some form of code, overt or covert; a corporate party or even an individual, may surely be asked to givethe true meaning of such records. [75] The sample objections and undertaking refusals to be ruled on under this sub-heading are as follows: Item #26 - Objection - Whether the first full paragraph on p. 128 of JH-12, beginning “And whereas great Frauds and Abuses” andending “where We have thought proper to allow Settlement”, is not a direction that only the Crown could deal with purchases fromIndians of lands reserved to the Indians within the colonies.

Item #76 - Objection - Does Canada have any other information regarding the reference to the “extinguishment of Indian Title” in the

third item or recommendation of Mr. Butler on p 17 of JH-23? What is that expression a reference to? [76] Canada’s position is that Canada’s representative has no obligation to interpret these historical documents. However, it isclear these documents may be the basis of much factual information. The matter is aptly captured by the comments in Montana at para21: [...] The statement of defence in these actions contains many detailed assertions of fact as to the activities both of the Crown and itsagents and of the plaintiffs and their predecessors.

If the Crown has no knowledge of those fact, the plaintiffs are entitled to know that. Ifon the other hand the Crown’s knowledge of certain historical facts is based upon and limited to statements contained in certaindocuments the plaintiffs are entitled to know that as well. Neither the plaintiffs nor the Crown should be obliged to go to trial notknowing exactly what it is that the other side knows and relies upon as a provable fact, and what is mere hopeful guesswork. [77] These two questions should be answered to provide Canada’s understanding of the facts represented therein. C.

Questions of Law [78] It is common ground that questions of law are not permissible on discovery, either generally or in relation to aboriginal rightslitigation. As noted by the court in Wewayakum at para 48: Questions involving conclusions of law as well as opinion evidence are not properly the subject-matter of the party and party discoveryprocess.

Thus enquiries requiring the definition or substance of property rights and disputes and the legal issues pertaining to them arenot to be answered where they involve in any way a question of law. [79] According to Common Wealth Credit at paras 49-51, 101, and 103, a witness cannot be required to state the “materialrepresentations” alleged in its pleading, or to explain the facts supporting an allegation of failure to fulfill promises, duties andobligations.

In such cases, the deponent is also being asked to interpret the meaning of legal terms, define those terms and to an extentanalyze what they perceive to be the facts and make a judgment. [80] In Can-Air Services, the Alberta Court of Appeal held that a party examined for discovery cannot be asked to provide the factsrelied on in support of allegations in a pleading.

The Court also provided some more general commentary with respect to the improprietyof posing questions of law to a witness during questioning at paras 6-7: Another fundamental rule is that an examination for discovery may seek only facts, not law: Turta v. C.P.R., (1951) (AB KB), 2 W.W.R. (N.S.) 628, 631-632 (Alta.); cf. Curlett v. Can. Fire Ins. Co., (AB KB), [1938] 3 W.W.R. 357(Alta.). These questions try to evade that rule by forcing the witness to think of the law applicable or relied upon, then use it to performsome operation (selecting facts), and then announce the result.

The result looks on the surface like a mere collection of facts, but it reallyis not: Seven Seas v. Kraemer (3 June),[1982] Alta. Unrep. Dec. 1831, at 1835 (M.). The witness cannot know what facts will help himin court until he knows the law. So what facts he relies on must be based upon his view of the law. Therefore, an examination for discovery may seek facts only, not argument [...] [81] In considering the above principles, I will now address the undertaking requests and objections submitted by the parties.

Item #1 - Undertaking Request - To advise what is the primary position of Canada in relation to aboriginal title of the Stoneys.Specifically, whether the primary position of Canada is that there was aboriginal title of plaintiffs (Stoneys) to the traditional lands upuntil Treaty 7 in 1877 but that Treaty 7 extinguished that title.

Or, whether the primary position of Canada is that Canada denies thatthere was any kind of aboriginal title at any time of the Stoneys and that therefor it is only an alternative argument that if such aboriginaltitle existed at Treaty 7 in 1877, it was extinguished by Treaty 7 in 1877. [82] This question seeks a statement of Canada’s legal position and is not properly directed to Mr. Hughes. Comments at thehearing of this motion suggested that the Plaintiffs have received a response from counsel.

While the answer to such a question wouldhelp narrow the scope of discovery, it is not a question that needs to be answered by Mr. Hughes. Item #25 - Undertaking Request - To advise as to Canada’s position in regard to the application of the provisions on p. 127 of JH-12 (theRoyal Proclamation) to what is described as the territory granted to the Hudson’s Bay Company. In light of the provisions of the RoyalProclamation, to clarify the position of Canada in relation to Rupert’s Land. [83] This broad question seeks a legal opinion and need not be answered as currently formulated.

However, it can be restated inrespect of underlying facts. [84] The following two questions ask about the relevance of certain documents included in Alberta’s production. Item #58 - Objection - What is the significance of this letter (JH-19) for your document production? Item #64 - Objection - Why has Canada’s document CAN000353 (JH-23: Report of Lieutenant Butler) been included in Canada’sproduction? [85] Canada argues that questions seeking the reasoning behind the production of a document are plainly questions of law and neednot be answered.

I find this argument unconvincing, especially in light of rule 5.2(2) which states that mere production does not operateas an agreement or acknowledgement that the record is admissible, relevant or material. [86] With the greatest respect, in a case of this kind, where document production process is complex and involves many differentpeople, has taken years of research and effort, and the documents produced by Canada number in the thousands, the true answer to thisquestion may simply be that Canada does not know.

D. The Question Required the Witness to Speculate [ 87 ] Lay witnesses cannot be asked to speculate or answer questions about hypothetical scenarios where their answer would be based on pure conjecture. See Hongkong Bank of Canada v Sheckter , 1989 CarswellAlta 880 at paras 32-35 ; Boardwalk Reit LLP v Edmonton (City) , 2008 ABCA 220 at para 201 , leave to appeal to SCC refused.

Canada argues that its representative should not be obliged to answer these questions because requiring a witness to speculate is in essence a request for opinions. [ 88 ] The sample objections and undertaking refusals to be ruled on under this sub-heading are as follows: Item #81 - Objection - Do you have any information about the use of the phrase “wanting part of the country”? What that could potentially mean as of 1871?

Item #91 - Objection - So there could be a connection between that designation (in JH-27) of George III as “His Most Sacred Majesty” and his position as head of the Anglican Church? [ 89 ] These are not to be labelled speculative only on account of the use of the word “could”. Canada needs to supply any information it may have as it is merely being called upon to elucidate its knowledge or position on these issues. As well, Canada should provide self-evident answers. E.

The Question is Overly Broad [ 90 ] The sample objections and undertaking refusals to be ruled on under this sub-heading are as follows: Item #79 - Objection - What information does Canada have, as of 1871, about the Queen wanting that part of the country for white people, other than from the letter of JH-24? Item #97 - Undertaking Request - To make inquiries to determine what other information Canada possesses as 1793 (other than para. X of JH-27) in relation to Stone Indians inhabiting the West woody country? The “West woody country” being understood to be the west of Forts George and Augustus.

What information does Canada have in the late 1790s (between 1789 and 1793) about the existence of Stone Indians or Stone Indians inhabiting the country to the west of Fort Augustus? That Canada undertake to make the effort to identify and indicate documents which relate to the existence, in the area to the west of Fort Augustus, of Stone Indians. [ 91 ] Canada submits that to provide responses to the question in item #79 and the undertaking request in item #97 would require Canada to embark on large scale historical research.

A party’s obligation is to produce relevant documents and answer straightforward factual questions, and not to conduct research projects on behalf of opposing parties. [ 92 ] In Montana at para 32, the Court confirms that questions which are overly broad are impermissible.

However, the Court also stated at para 33 that: [...] The Crown’s plea that it would be unduly burdensome to answer some of the questions seems to me to miss the mark; this is a large complicated case and the fact that the marshaling of facts and documents may require a great deal of work is something with which the parties simply have to live. [ 93 ] This theme was further elaborated on by the court in Wewayakum at para 47 : [...] where a question is relevant and not otherwise objectionable, it is not sufficient for the party refusing to answer to merely state in argument that obtaining an answer would involve unwarranted, unjustifiable or exceptionally onerous difficulties.

Some evidence must be furnished or referred to in order to explain the difficulties and, where applicable, to establish what is reasonable though eventually unsuccessful efforts were made to obtain an answer. [ 94 ] Parties cannot resist answering questions by a blanket and unsubstantiated claim that to do so would be too onerous. There needs to be an attempt to answer what is relevant and material. In limited instances, a party may be able to establish a specific explanation of how the request is disproportionate to its value.

That has not been done in relation to these questions and Canada is to take necessary steps to answer them. F. The Question Seeks to Elicit Privileged Information or Communications [ 95 ] Items #15 and #16 and several other similar questions and undertaking requests relate to the manner in which Canada researched documents and prepared its document production. Item #15 - Undertaking Request - To advise as to what process was used to determine which secondary source materials should be put in the document production of Canada.

Item #16 - Undertaking Request - To advise as to which types of documents relating to other aboriginal groups, nations, or people Canada considered to be relevant or material to these proceedings. [ 96 ] Canada objects on the basis that this line of questioning is premature and subject to both a litigation privilege and a solicitor’s brief privilege because it seeks to elicit information about the processes and decision made by Canada in determining what sources it would search for documents or how it deemed documents relevant and producible. [ 97 ] All parties agreed that litigation and solicitor’s brief privilege protects important interests.

Grounded in the adversarial process, they exist to provide a protected area to facilitate investigation and preparation of a case for trial by adversarial advocates:

General Accident Assurance Co v Chrusz (1999), (ON CA), 45 OR (3d) 321 at page 331 (ONCA). See also: Blank vCanada, 2006 SCC 39, [2006] 2 SCR 319. The privilege extends to interviews, statements, memoranda, correspondence, briefs, mentalimpressions, personal beliefs ... aptly though roughly termed ... as the work product of the lawyer: Hickman v Taylor, 329 US 495 at 511(1947). See also Rozak Estate, 2011 ABQB 239. [98] Document production in this matter is not yet completed. All parties have indicated that they will be producing furtherdocuments. Affidavits of Record have yet to be sworn.

Canada’s representative has testified that he played no role in the documentcollection process. Canada argues that if the Plaintiffs have concerns about the document production following the delivery of Canada’sAffidavit of Records, the Plaintiffs can cross-examine the deponent of that affidavit. If, following such a cross-examination, the Plaintiffsremain unsatisfied with the production, they can then apply to this Court for an order compelling Canada to provide a further and betterAffidavit of Records.

See Canadian Natural Resources Limited v ShawCor Ltd, 2013 ABQB 230 at para 19; Shell Canada Limited vSuperior Plus Inc, 2007 ABQB 739 at para 21; Catalyst Partners Inc v Meridian Packaging Ltd, 2007 ABCA 201 at para 5. [99] Canada argues that it is open to the Plaintiffs to cross-examine on Canada’s Affidavit of Records if they feel that Canada hasnot produced all relevant and material documents in its control.

Canada submits it is quite another matter to ask Canada to disclose the“processes” it used in gathering its documents, or to describe the methods it used in determining whether a document was relevant ormaterial. Decisions relating to the “processes” used in investigating sources of documents, of the type asked about during Canada’srepresentative’s questioning, are claimed to be decisions made by counsel in consultation with its clients based on an evaluation of thecase which it feels it has to meet.

This type of information is argued to be privileged. [100] In a matter of this breadth and complexity the research plans undertaken by all parties would ideally be the subject of freeexchange so that parties would know what sources had been consulted so that they could tailor and conserve their research effortsaccordingly. From the perspective of legal requirements, such requests will be the appropriate subject of questioning addressed to theperson who eventually swears the Affidavit of Records.

Normally that person would be available before questioning as the Affidavit ofRecords is designed to be a preliminary step. However, the parties have all agreed that, contrary to the normal progression, parties couldbegin questioning before formal Affidavits of Record were filed. In such a case the questions may be premature, but they are only sobecause of the parties’ chosen approach. [101] Canada argues that the Plaintiffs’ questions are tantamount to the disclosure of Canada’s research plan.

In my view this is toobroadly stated as there are many other reasons why a search may or may not have been made that have nothing to do with privilege:someone forgot, the search yielded no relevant information, or it was thought to be too expensive, etc. The questions posed are generallygood ones and it is only when the particular answer relates specifically to privilege can such be claimed for that particular inquiry, at theappropriate time and in the appropriate manner.

A claim of privilege does not operate generally, without more, across a whole categoryof questioning to prevent any form of inquiry. [102] In my view, it is best to answer questions as early in the processes as they can be answered. It is true that certain of thesequestions may be premature. However, the parties have chosen not to formalize their Affidavits of Record until a point later in time andhave conducted questioning on this basis. It does not seem reasonable to postpone an answer if it currently exists. G.

The Question Relates to an Irrelevant Matter [103] The sample objections and undertaking refusals to be ruled on under this sub-heading are as follows: Item #69 - Undertaking Request - To determine whether during the reported treaty deliberations there was discussion of the diminutionor disappearance of the buffalo. To determine what is the information of Canada respecting the disappearance or the diminution of thebuffalo in that period of time, between 1870 and 1977, with particular reference to the treaty negotiations and representations andaccounts written by journalists in the context of Treaties 1 to 7.

Item #103 - Undertaking Request - To research Canada’s documents and inform as to whether there are Iroquois settled out west. [104] Canada submits that the information requested is not sufficiently relevant to the claim, and would neither significantly helpdetermine an issue raised in the pleadings nor ascertain evidence that could reasonably be expected to significantly help determine anissue raised in the pleadings. [105] Alberta argues that the first question is relevant to the proceedings because it is a fact and circumstance surrounding the makingof Treaty 7, that is important to the Plaintiffs’ perspective and what may have been formed their participation in the treaty makingprocess. [106] The second question has an obvious relevance because the Plaintiffs are entitled to know what other aboriginal groups mayhave been present in the territory which they claim in the present proceedings.

Such matters are raised from the pleadings as thePlaintiffs claim aboriginal title and rights in the lands defined as “Traditional Lands”. [107] These questions will be answered. 6. Canada’s Representative is a Proper Deponent [108] The Plaintiffs gave advance notice of its many questions and yet over the course of five days very few were answered byCanada’s chosen representative, Mr. Jack Hughes. Canada argues that questioning has not been productive or cost-effective.

ThePlaintiffs argue that any time wasted is attributable to problems with the ability of the representative to answer questions and to theresistance of the Crown. [109] There does not appear to be an issue with the basic qualifications possessed by Mr. Hughes. As summarized in his Affidavit

sworn May 8, 2013, Mr. Hughes is a retired Federal civil servant who was employed by the Department of Indian Affairs and NorthernDevelopment (now Aboriginal Affairs and Northern Development Canada) between 1986 and 1997. He professes a familiarity withaboriginal affairs generally in Canada, with specific knowledge in relation to aboriginal bands in the prairie provinces. Mr. Hughes doesnot hold a degree, diploma or certification in the study of history. He has been Canada’s chosen deponent in 10 civil cases involvingaboriginal rights claims against Canada since 2001. [110] In respect of this litigation, Mr.

Hughes averred that he spent 98.5 days reviewing written materials in preparation for his role asCanada’s representative at questioning. He claimed that he “read documents which were provided to me in order to prepare myself to bequestioned pursuant to the Alberta Rule of Court.” He noted that he had no role or input regarding the identification and selection ofdocuments he read. [111] Rule 5.4 of the Rules of Court governs the appointment and duties of corporate representatives: 5.4(1) Unless the Court otherwise orders, every corporation that is a party must appoint a corporate representative.

(2) Corporate representatives must (

a) inform themselves of relevant and material records and relevant and material information before being questioned under this Division, (

b) if questioned under this Division, bring to the questioning any records likely to be required in respect of which there is no claim ofprivilege, and (

c) give appropriate evidence of the relevant and material records and relevant and material information.

(3) The corporate representative’s evidence is evidence given by the corporation.

(4) On application, the Court may order corporate representatives to inform themselves of relevant and material records or relevant andmaterial information, or both.

(5) The Court may appoint a corporate representative for a party that is a corporation if the party has not done so.

(6) The Court may appoint an additional or a substitute corporate representative for a party that is a corporation if (

a) an appointed corporate representative is not suitable, or (

b) an appointed corporate representative failed to inform himself or herself of relevant and material records and relevant and materialinformation before being questioned. [112] Parties are required to make available for questioning a person who is prepared to answer questions about relevant and materialrecords and information under rule 5.17. [113] Despite the difficulties experienced during this five day period of questioning, Mr. Hughes will not be removed at this point intime.

The selection of a representative should not be lightly disturbed if the selection is made honestly, reasonably and the officer canprovide the required information. In the normal case, the party is permitted to determine who will bind it and speak for it.

In the contextof litigation based in aboriginal rights and different rules of court, the Federal Court ruled in Ermineskin v Canada, 2002 FCT 890 andErmineskin Indian Band v Canada (1995), (FC), 99 FTR 226 that a deponent cannot be deposed unless the applicantproves that it cannot reasonably get necessary information from the chosen deponent, and that another more suitable party can be found. [114] Nevertheless, despite the amount of time spent reviewing written materials, Mr. Hughes either could not or was prevented fromanswering most questions on the record, even though previously provided to him.

In such a case, the portion of rule 5.17 that is at risk isnot only whether the preparation was adequate but also subsection (c): that the representative is required to give appropriate evidence ofthe relevant and material records and relevant and material information. A few questions did not require an answer. However, if thequestions asked are appropriate and are answered in the proportion experienced over this five day period, today’s decision may not be theend of this issue. 7. Conclusion [115] Despite the breadth and complexity of this claim, the parties are engaged in a process of oral questioning.

Rule 5.22 and therules it refers to provide other options about how questioning may be conducted, with a presumption in favour of oral discovery. Theseparties have not agreed to conduct discovery by way of written interrogatories. It is important to respect the governing process and toensure that the form of questioning in use is meaningful and fulfills its function. Repeated and multiple requests to take matters underadvisement may effectively transform oral discovery into something resembling written interrogatories. For example, on the firstmorning of questioning, C

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