Court of Queen’s Bench of Alberta Citation: Goodswimmer v Canada (Attorney General), 2017 ABQB 17 Date: 20170111 Docket: 9703 06332 Registry: Edmonton Between: Chief Melvin Goodswimmer and Jerry Goodswimmer, Walter Goodswimmer, Francis Goodswimmer, Pierre Chowace, Mildred Chowace and Donald Badger, Councillors of the Sturgeon Lake Indian Band and on Behalf of the Sturgeon Lake Indian Band and the Sturgeon Lake Indian Band Plaintiffs - and - The Attorney General of Canada and Her Majesty the Queen in Right of Alberta Defendants - and – The Attorney General of Canada and Her Majesty the Queen in Right of Alberta Third Party Corrected judgment: A corrigendum was issued on February 7, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgmen t of the Honourable Madam Justice D.A.

Sulyma _______________________________________________________ [ 1 ] The parties disagree on the form of the Order arising from my decision Sturgeon Lake Indian Band v. Canada (Attorney General), 2016 ABQB 384 (the Decision). [1] Canada consents to Alberta’s form of Order. Alberta and SLCN propose differing language. In my view, Alberta’s form of Order comes closest, but there are some necessary additional changes and a corrigendum will also be necessary. [ 2 ] On August 3, SLCN wrote expressing some concern about the form of the Order. Alberta’s form of Order addressed most of those concerns.

What remains are the following:

Preamble concerns [ 3 ] The SLCN wants to include in the

preamble: (

a) the applications to set a trial date (filed January 27, 2014), (

b) the application requiring Canada to produce certain records (filed March 17, 2014); (

c) the application to adjourn, strike defences, and alternatively to compel further and better affidavit of records from Canada at the February 6, 2015 hearing; (

d) reference to the Corrigendum; and (

e) Canada’s application to Strike the Notice of Question of Constitutional Law, filed on December 16, 2014. a. Set trial dates [ 4 ] I have no trouble concluding that the application to set the trial date does not fall within the scope of the decision. In the Minutes of the Case Management Meeting held January 27, 2014, I stated I would not “presently strike or otherwise deal with the Plaintiff’s application” (p 7). b.

Production of documents [ 5 ] The question of whether to compel Canada to produce additional records (March 18, 2014 case management meeting) and the application to strike defences relate to the question of whether Canada should be compelled to produce TLEs entered into with other Treaty 8 Bands. This was the topic of my 2005 decision and a subsequent hearing on the terms of the Order arising from that application, and was referenced briefly in the Decision para 165. [ 6 ] At the March 18, 2014 case management meeting, Mr..

Freeman argued that the questions needed to be dealt with because the evidence was material and relevant to the

summary judgment application. Ms. Read argued that SLCN had closed discoveries on the 1990 TLE issue after the 2006 Order (arising from the 2005 decision) and that any further application should be heard after the Striking/Summary judgement/Amendment Application. Further, Ms. Read noted that the 2006 Order provided that Canada and Alberta be provided with questions before Notice was given to the other Bands, and instead SLCN sent questions to the bands causing confusion and raising confidentiality concerns. [ 7 ] I concluded at that case management meeting that I disagreed with Mr. Rath and Mr. Freeman’s

interpretation of the Order and accepted Ms. Read’s submissions. The written interrogatories sent to the other Bands were not compliant with the Order, and I declined to deal with it further. This issue was not before me in these applications, and reference to it should not be included in the Order. c. Application to adjourn, to strike defences, and to compel further and better affidavit of records at the February 6, 2015 hearing [ 8 ] The February 6 hearing started with everyone, but Mr. Rath and Mr.

Freeman, under the impression that the Plaintiff’s application was to seek an adjournment because of a scheduling conflict and, perhaps, to deal with SLCN’s application to extend the time for responding to Alberta’s notice to admit facts. Mr.

Freeman then indicated that he wanted also to deal with the application to strike the defences. [ 9 ] Both Canada and Alberta took the position that the matter of striking the defences should go over and not be dealt with until after the applications to strike/dismiss/amend were dealt with. [ 10 ] I concluded that these applications to strike defences and to compel further affidavits of record were “hijacking” the major motion, and I would not deal with them.

I also dismissed the application to adjourn. [ 11 ] I also agree with Alberta that the February 6, 2015 hearing should be referred to as a case management meeting, not as part of the Decision. d. The Corrigendum [ 12 ] SLCN wants the Order to specifically reference the Corrigendum, but since the Corrigendum has been incorporated into the Reasons, I see no need to do so. I’m not sure what the point would be. Alberta’s position was that it was in favour of simplifying the Recitals, which is always my preference. e.

Canada’s Application to Strike the Notice of Question of Constitutional Law, filed on December 16, 2014 [ 13 ] This should be added to the

preamble.

Body of the Order concerns [ 14 ] Generally: Alberta argues that the full Alberta Rules of Court should be included. I agree. For example: in Paragraph 1, “… are struck pursuant to Rule 3.68(2)(d), not just Rule 3.68.

Paragraph 1 of Alberta’s proposed Order Claim paras 40-42 [ 15 ] There is a slip within the Decision in regards to some Statement of Claim paragraph numbers. [ 16 ] Decision para 260(2), strikes paras 35-39 of the Statement of Claim (Claim), but Decision paragraph 489, summarizing the striking application, stated that Claim paras 35-42 were struck, and Decision para 260(3) says that Claim paragraph 43 is struck “to the extent it includes paras …35-42”.

Decision paragraph 262 makes it clear that Decision paragraphs 489 and 260(3) are slips, because it says: The following paragraphs do not duplicate the 1987 Action and will be dealt with in the

summary judgment application: 1. … 40-42… These paragraphs assert that Canada breached fiduciary obligations in negotiating Treaty 8 or when selecting lands by concealing the value of the lands or how Band membership and population would be determined.

The 1987 Action raised breach of fiduciary and trust obligations, but not in connection with the negotiation of Treaty 8 or the selection of lands. [ 17 ] The last sentence of Decision para 489 says: Alternatively I would also summarily dismiss these same paragraphs on the basis of the terms of the release or because they were filed outside of the limitation period. [ 18 ] Thus, the Order should not include paragraphs 40-42 as being struck, but only as having been summarily dismissed based on the release and the limitation period.

Claim paras 43 and 58 [ 19 ] SLCN argues that it is not necessary to indicate that paragraphs 43 and 58 were struck. However, Alberta argues, correctly I think, that the Order should reflect the judgment language that struck those paragraphs, to the extent that they included other struck paragraphs. For example Claim para 43 reads: Canada’s Treaty Commissioners failed to disclose information to the Plaintiffs in order to obtain their acquiescence to Treaty No. 8, thereby breaching Canada’s fiduciary duty to the Plaintiffs.

The Plaintiffs rely upon the particulars of such breach as set out in paragraphs 13 through 42 above. [ 20 ] Decision paras 260(3) and 489 read: Paragraph 43 to the extent it includes paras 14-17, 20-22 and 35-42 . (as noted above, that should read “35-39”). [ 21 ] SLCN’s form of Order does not include paragraph 58. Decision para 260 reads: Thus, I strike the following paragraphs… 6.

Paragraphs 58 … seeks land and compensation for new members as a result of Bill C-31, which was raised as part of the negotiations leading to the 1990 TLE Agreement… [ 22 ] Decision para 489 reads: I therefore grant Canada’s application to strike paragraphs paras … 58 …, to the extent they seek land for new members as a result of Bill C-31… [ 23 ] Alberta is correct when it includes: “…58 to the extent it seeks more land ...”. Paragraph 2 of the Order: [ 24 ] Alberta wants to add to paragraph 2 the words “in the alternative”. The basis for

summary dismissal of these paragraphs was expressly stated to be “in the alternative” at Decision para 489: Alternatively, I would also summarily dismiss these same paragraphs on the basis of the terms of the release or because they were filed outside of the limitation period.” Paragraph 3: [ 25 ] This paragraph repeats the mistake referenced above in regards to paragraphs 40-42 which were summarily dismissed, not struck and these paragraphs should be included here:

Further the following paragraphs of the Fourth Amended Statement of Claim and associated relief are summarily dismissed pursuant to Rule 7.3 of the Alberta Rules of Court: 26-34, 40-42 , 45-47, and 60-76. Paragraph 4: [ 26 ] Alberta correctly asserts that paragraph 4 should reference Rule 3.68(2)(

b) and that SLCN has not included Claim paragraphs 52-54 and 71-76 in its form of Order. SLCN’s form of Order reads: With respect to the Application by Alberta, the following paragraphs of the 4th Amended Statement of Claim and associated relief are also struck pursuant to Rule 3.68 of the Alberta Rules of Court: 48-51, 58, 60, 63, 69 and 70. [ 27 ] Decision paragraph 514 reads: The relevant paragraphs to be struck are: para 48-54, 58, 60-63 and 69-76. [ 28 ] SLCN takes the position that these paragraphs were already struck in paragraph 1.

These paragraphs were struck twice purposely because paragraph 1 relates to Canada’s application while paragraph 4 refers to Alberta’s application. The basis for striking is different and an appellate decision might grant an appeal on one ground and not another. Plus, these paragraphs “blend” allegations against both Canada and Alberta and this ensure that the claims were struck as regards both Canada and Alberta. Paragraph 5: [ 29 ] No complaints were raised in regards to paragraph 5.

Paragraph 6: [ 30 ] SLCN’s proposes the following for para 6: The Applications of Canada and Alberta are dismissed in respect of paragraph 6-8, 43 , 59 , and 64 of the 4th Amended Statement of Claim. [ 31 ] Alberta asserts that only Claim paragraphs 6-8 should be included. Claim paragraph 43 was struck to the extent it dealt with other struck paragraphs, and therefore was not dismissed. This isn’t even a question of partial success since Canada’s application was to strike claims in relation to land and therefore did not seek to strike the entire paragraph.

Alberta did not seek to strike Claim paragraph 43 (see Decision para 491). [ 32 ] Alberta says neither it nor Canada sought to strike para 59. However, Decision paragraph 491 states Alberta sought to strike paragraphs 58-63. This was based on the portion of the hearing transcript Alberta identified as indicating the paragraphs it was seeking to strike. While the Claim paragraph 59 was referenced in the transcript, counsel did not read it into the record, as he did with the other Claim paragraphs. [ 33 ] Claim paragraph 59 does not relate to land or the TLEs.

There is nothing in the decision directly dealing with Claim para 59. I think it’s fair to say that Alberta may have inadvertently referred to para 59 in the transcript dealing with what paragraphs were at issue, but no argument was expressly advanced or dealt with the claim in para 59. I conclude that it is unnecessary to include this paragraph in the Order, since there was no argument advanced by Alberta to strike it. [ 34 ] Claim paragraph 64 was dismissed at Decision para 490: As well, the claims in paragraphs 60-76 related to the 1990 TLE Agreement are summarily dismissed.

SLCN Paragraph 7: [ 35 ] SLCN adds a paragraph that does not appear in Alberta’s form of Order: Canada’s application under Rule 3.68(2)(

b) is dismissed. [ 36 ] Decision paragraphs 270 and 272 held that Rule 3.68(2)(

b) could not be relied on to strike the claims. However, this was an alternative argument by Canada and the paragraphs were struck under Rule 3.69(2)(d). It would be more accurate to add the following to paragraph 1: Canada’s alternative application under Rule 3.68(2)(

b) is dismissed. Alberta’s paragraph 7/SLCN Paragraph 8: [ 37 ] SLCN leaves out references to the Application to Amend Claim paras 64-66 and paragraph 70. SLCN makes no suggestions in that regard, although it may be because those paragraphs contained claims that were dismissed.

[ 38 ] Decision paragraph 567 specifically references Claim paras 64-66 and 70. Decision paragraph 583 says: Claims related to misrepresentation, fraud, and failure to disclose material facts (adding Alberta): I dismissed the claims against Canada in paragraphs 64-66; there is no basis for a similar claim against Alberta. Leave to make these amendments is refused. [ 39 ] The proposed amendment to Claim para 70 was to add the allegation that there was “no meeting of the minds” in regards to the 1990 TLE Agreement.

The “meeting of the minds” argument was dealt with in Decision paras 379-382 and 391-392 and Claim para 70 was summarily dismissed. Decision paragraph 581, dealing with the proposed amendments, notes: To the extent that these amendments fall within the already pleaded causes of action, those causes of action have been either struck or dismissed. Where I struck and/or dismissed the following claims, I refuse to allow the proposed amendments [ 40 ] Including dismissal of the amendment of Claim para 70 in the Order is necessary to clarify that the application was not successful.

Decision paras 16-21 explain that the SLCN materials contemplated the amendment application proceeding first and being successful; as a result I dealt with the “meeting of the minds” argument within the

summary dismissal application.

The Order should state that the amendment was refused. [ 41 ] SLCN’s form of Order simply states that the balances of its application to amend is adjourned, while Alberta’s form of the Order says: The Plaintiff’s application to Amend paragraphs 59.1-59.4, 80.1-80.2 and 81.1-81.2 were not properly before the Court and is adjourned. [ 42 ] Alberta’s wording is consistent with the decision at paras 568 and 569: Canada submits that the paragraphs dealing with annuities at paragraphs 80.1, 80.2, 81.1 and 81.2 do not deal with lands and are therefore not properly before the Court at this time. I agree.

The entire focus of the evidence and the multiple applications was about the claims related to land. I therefore adjourn the application on these paragraphs to a future application. Similarly amendments adding paragraphs 59.1-59.4 deal with Bill C-3 and C-31 individuals seeking compensation and damages for lost economic benefits and annuity payments. These are not claims in relation to land, and I adjourn the application to make these amendments in a future application. The Order [ 43 ] I attach as Appendix A the form of the Order I direct be filed. Dated at Edmonton, Alberta this 11 th day of January, 2017. D.A.

Sulyma J.C.Q.B.A. Appearances: Jeffrey Rath and Mark Freeman of Rath & Company for the Plaintiffs Sheila M. Read of Department of Justice

for the Defendant, The Attorney General of Canada Doug Titosky and Krista Epton of Alberta Justice, Aboriginal Law for the Defendant, Her Majesty the Queen in Right of Alberta _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice D.A. Sulyma _______________________________________________________ On the Citation line, the year has been changed to read 2017 .

Appendix A COURT FILE NUMBER 9703-06332 COURT COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE EDMONTON PLAINTIFFS (RESPONDENTS) CHIEF MELVIN GOODSWIMMER and JERRY GOODSWIMMER, WALTER GOODSWIMMER, FRANCIS GOODSWIMMER, PIERRE CHOWACE, MILDRED CHOWACE AND DONALD BADGER, COUNCILLORS OF THE STURGEON LAKE INDIAN BAND and on behalf of the STURGEON LAKE INDIAN BAND and THE STURGEON LAKE INDIAN BAND DEFENDANTS (APPLICANTS) THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA THIRD PARTIES THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA DOCUMENT ORDER – APPLICATIONS TO STRIKE, SUMMARILY DISMISS AND AMEND CLAIM ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT ALBERTA JUSTICE, ABORIGINAL LAW 10 th Floor 10025 – 102A Avenue Edmonton, Alberta T5J 2Z2 Lawyer: Doug Titosky / Krista Epton Phone: 780-643-0858 / 780-643-0854 Fax: 780-643-0852 DATE ON WHICH ORDER WAS PRONOUNCED J u l y 8, 2016 LOCATION ORDER WAS PRONOUNCED Edmonton, Alberta

NAME OF JUSTICE WHO MADE THIS ORDER Madam Justice D.A.

Sulyma ORDER ON THE APPLICATION of the Plaintiffs filed September 5, 2014 to amend their Fourth Amended Statement of Claim; AND THE APPLICATION of Canada filed October 4, 2012 to strike or summarily dismiss all allegations respecting land in this Action; AND THE APPLICATION of Alberta filed November 4, 2014 to strike certain claims in this action; AND ON REVIEW of the following additional filed Applications and Notices: • Plaintiffs’ December 12, 2014 Application to strike the July 10, 2013 Tatjana Sopiwnyk Affidavit; • Plaintiffs’ December 12, 2014 Application to strike the March 17, 2014 Sean Kennedy Affidavit; • Plaintiffs’ December 12, 2014 Application to strike the October 15, 2014 Lynda Sturney Affidavit; • Plaintiffs’ December 12, 2014 Application to strike the November 10, 2014 Steven Andres Affidavit; • Plaintiffs’ Notices of Constitutional Question filed and served October 17, 2014 and December 16, 2014; • Canada’s November 10, 2014 Application to strike part of the August 29, 2014 Karl Moses Affidavit; • Alberta’s January 5, 2015 Application to strike all or part of the December 19, 2014 Karl Moses Affidavit; • Alberta’s December 22, 2014 Application to strike the Plaintiffs’ December 16, 2014 Notice of Question of Constitutional Law; • Canada’s December 16, 2014 Application to strike the Plaintiff’s December 16, 2014 Notice of Question of Constitutional Law.

AND ON REVIEW of the Affidavits filed by the Plaintiffs from the following affiants: Karl Moses filed August 29, 2014 (Moses #1), August 29, 2014 (Moses #2), October 31, 2014 (Moses #3) and December 19, 2014 (Moses #4); Paul Emerson Reid filed November 20, 2014 (Reid #1) and March 2, 2014 (Reid #2); Robert Metcs filed December 17, 2014; Alex Van Kralingen filed January 8, 2015; Tara Smock filed January 12, 2015; Lawrence Courtoreille filed January 16, 2015; Archie Waquan filed January 23, 2015; Carlene Scott filed January 28, 2015 (Scott #1), February 5, 2015 (Scott #2) and March 5, 2015 (Scott #3); Ron Sunshine filed February 13,

2015, Arlene Sunshine filed February 20, 2015; Ron Soto filed February 20, 2015; Lawrence Soto filed February 20, 2015; Margaret Kappo filed February 20, 2015 and Kim Dean filed March 4, 2015; AND ON REVI EW of the following evidence filed by Canada: Tatjana Sopiwnyk Affidavits filed January 14, 2005 and July 10, 2013; Sean Kennedy Affidavit filed March 17, 2014; Lynda Sturney Affidavit filed October 15, 2014 (Exhibit D filed separately on November 3, 2014) and certain additional documents and records filed as Volume 2 to Submissions filed November 7, 2014, December 23, 2014 and January 15, 2015; AND ON REVIEW of the Affidavits filed by Alberta from the following affiants: Steven Andres filed November 10, 2014 and Sarah Lander filed November 20, 2014; AND ON REVIEW of the transcripts of Questioning on Affidavits of the following affiants: Karl Moses (January 23, 2015); Ron Sunshine (April 10, 2015); Paul Emerson Reid (June 9, 2015); Kim Dean (May 27, 2015), Carlene Scott (June 9, 2015); Tatjana Sopiwnyk (January 9, 2015); Sean Kennedy (July 17, 2014); Lynda Sturney (January 9 2015); Steven Andres (November 26, 2014); AND ON REVIEW of the Plaintiffs Written Submissions filed December 16, 2014, January 15, 2015 and April 13, 2015; AND Canada’s Written Submissions filed November 7, 2014, December 23, 2014 and January 15, 2015; AND Alberta’s Written Submissions filed December 22, 2014 and January 15, 2015; AND ON HEARING the oral submissions of the parties over 15 days (January 19-23, February 23-26, March 2-5 and April 15-16, 2015) with a Case Management Conference on February 6, 2015; AND ON this Court issuing Reasons for Judgment on July 8, 2015; IT IS ORDERED THAT: 1.

The following paragraphs of the Fourth Amended Statement of Claim are struck pursuant to Rule 3.68(2)(

d) of the Alberta Rules of Court : paragraphs 14-17, 20-21, 22(

d) and (e), 35-39, 43 (to the extent that it includes paragraphs 14-17, 20-22 and 35-42), 44, 47 as it relates to Sturgeon Lake, 52-54, 58 to the extent it seeks more land, 71-76, and all associated relief. Canada’s alternative application under Rule 3.68(2)(

b) is dismissed. 2. With respect to the Application by Canada, the above paragraphs of the Fourth Amended Statement of Claim and associated relief are, in the alternative, summarily dismissed pursuant to Rule 7.3 of the Alberta Rules of Court . 3. Further, the following paragraphs of the Fourth Amended Statement of Claim and associated relief are summarily dismissed pursuant to Rule 7.3 of the Alberta Rules of Court : paragraphs 26-34, 40-42, 45-47 and 60-76. 4. With respect to the Application by Alberta, the following paragraphs of the Fourth Amended Statement of Claim and associated relief are struck pursuant to Rule 3.68 (2)(

b) of the Alberta Rules of Court : paragraphs 48-54, 58, 60-63 and 69-76. 5. In the alternative, the above paragraphs in the Fourth Amended Statement of Claim are struck on the basis of collateral attack upon the Consent Order granted by Associate Chief Justice Tevie Miller on January 25, 1990 in Alberta Court of Queen’s Bench Action No. 8703- 14909, or in the further alternative, struck on the basis of issue estoppel and cause of action estoppel.

6. Alberta’s Application to Strike paragraphs 6-8 of the Fourth Amended Statement of Claim is dismissed. 7. The Plaintiffs’ Application to Amend paragraphs 59.5, 59.6, 64-66, 68.1-68.21, 69, 69.1, 70, 70.1-70.2, 72.1, 75.1-75.11, 76.1- 76.7 and related relief in the Fourth Amended Statement of Claim is dismissed. The Plaintiff’s Application to Amend paragraphs 59.1- 59.4, 80.1-80.2 and 81.1-81.2 was not properly before the Court and is adjourned. 8. The parties are granted leave to make written submissions on costs by August 30, 2016. Honourable Justice D.A. Sulyma of the Court of Queen’s Bench of Alberta