Sam v. British Columbia, 2017 BCSC 387

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sam v.

British Columbia, 2017 BCSC 387 Date: 20170308 Docket: 09-5146 Registry: Victoria Between: Chief Robert Sam and Councillors Gary Albany, Edward Norman George, Nick Albany, Frank George and Ronald Sam, acting on their own behalf and on behalf of all other members of the Songhees Nation and the said Songhees Nation Plaintiffs And: Her Majesty The Queen in Right of the Province of British Columbia and the Attorney General of Canada as representing Her Majesty the Queen in Right of Canada Defendants - and - Docket: 12-1561 Registry: Victoria Between: Seenupin (Chief Andrew Thomas) and Councillor Barbara Lecoy, acting on their own behalf and on behalf of all other members of the Esquimalt Nation and the said Esquimalt Nation Plaintiffs And: Her Majesty The Queen in Right of the Province of British Columbia, as represented by the Attorney General of British Columbia, Her Majesty The Queen in Right of Canada as represented by the Attorney General of Canada Defendants Before: The Honourable Mr.

Justice Bracken Reasons for Judgment Counsel for the Plaintiffs: R. Morahan, M. Frey, and C. Villeneuve Counsel for the Attorney General of Canada as representing Her Majesty The Queen in Right of Canada: C. Cameron, M. French and A. Singh Counsel for Her Majesty The Queen in Right of the Province of British Columbia: H. Gwillim and C. Robb Place and Date of Hearing: Victoria, B.C. February 22 and 25, 2016 Place and Date of Judgment: Victoria, B.C.

March 8, 2017 Introduction [ 1 ] This application by the Songhees Nation arises in the context of actions brought by two aboriginal groups that are to be heard at the same time. The plaintiffs in each action are representatives of the Songhees Nation and the Esquimalt Nation. As a matter of convenience, I will refer to the plaintiffs as Songhees and Esquimalt respectively and the defendants as Canada and British Columbia.

[ 2 ] Historian Dr. John Lutz has already provided expert opinion reports for Songhees in this matter. In this application Songhees seeks leave to introduce certain additional documents and opinion as part of Dr. Lutz’s expert reports. [ 3 ] The new Lutz documents consist of a letter dated October 30, 2015, amending his Historic Occupation of the Lekwungen Cadboro Bay Village Site ; and Vancouver Island Indian Reserve Policy and Practice Under James Douglas 1849 - 1864, amended October 31, 2015. [ 4 ] British Columbia is not opposed to the application, but seeks orders regarding any response reports. Canada takes no position. Esquimalt took no

part in the application. [ 5 ] This application by Songhees was heard some time ago, but counsel indicated that the decision should be delayed pending the outcome of an application by the plaintiffs in the related Esquimalt action to amend their pleadings. [ 6 ] The outcome of that Esquimalt application could have significant impact on the parties to this application by Songhees. The Esquimalt application was heard and dismissed but the decision is under appeal and has not as yet been heard.

Songhees’ counsel have requested that this decision now be issued. [ 7 ] Songhees says that the letter amendment dated October 30, 2015 adds only three paragraphs to a primary report that is approximately 120 pages long. The amendment relates to the colonial government’s failure to set aside lands in the Nanaimo area that were allegedly designated as reserve lands by colonial surveyors, as shown on a map drawn in 1863. If true, Songhees says that this failure suggests a pattern of behaviour by the colonial government. [ 8 ] The second extra document by Dr.

Lutz is an 85-page report which Songhees says has four components. [ 9 ] The first component repeats the text and references contained in Dr. Lutz’s May 23, 2014, version of the same report. It consists of about 51 pages. [ 10 ] The second component repeats a number of passages and references from Dr. Lutz’s reply report of April 22, 2015, which has been previously served on the defendants. It consists of about 17 pages. [ 11 ] The third component consists of new text and references that have not been part of any prior report. These come from Dr. Lutz’s finding eight new documents and maps.

It consists of about 12 pages. [ 12 ] The fourth component is a list of documentary sources consisting of five pages. [ 13 ] Songhees says that the defendants have already had notice of the material it seeks to add to the reports of Dr. Lutz. The new documents and maps were found in the course of Dr. Lutz’s work as a professor of history at the University of Victoria and not as a result of further instructions from plaintiff’s counsel. [ 14 ] British Columbia is concerned that the introduction of the new material violates previous trial management orders respecting timelines for exchanging expert reports.

Nevertheless, British Columbia agrees the new material can be served. [ 15 ] The parties are unable to agree on the scope and time for service of any response reports. Background [ 16 ] Soon after the action was commenced, the plaintiffs made an application for the early delivery of all expert reports by the parties to this litigation. On August 27, 2012, the court ordered that all original expert reports be served no later than January 7, 2013, and all responding reports to be served no later than March 4, 2013. At that time, the trial was set to begin in May 2013. [ 17 ] The trial did not proceed in May 2013.

It was rescheduled to November 2013 and then again to May 2014, then to September 2014, then to April 2015, and finally to May 2016. The trial was adjourned several times partly due to issues arising from applications to amend pleadings, but also because new expert material was being presented. That resulted in the need for time to assess the import of the new material, to contact the responding experts and to obtain appropriate responses to the new reports. [ 18 ] Deadlines for service of expert reports were extended on several occasions.

The new material and consequent necessary delays caused considerable frustration to the defendants. In reasons for judgment of April 4, 2014, it was ordered that all expert opinion reports of the plaintiffs be delivered by May 23, 2014, and all response reports from the defendants be delivered by July 28, 2014. It is my understanding that those deadlines were met. [ 19 ] In January 2015, Songhees sought leave to introduce two additional expert opinion reports of Dr. Lutz. Leave was denied.

At that time, the trial of this action was set to commence on its first phase in April 2015 and the application was strongly opposed by the defendants as being too close to the trial date to obtain response reports. Songhees filed an application seeking leave to serve a reply report of Dr. Lutz to the response report of British Columbia’s expert, Dr. Binnema. That application was also denied because it was too close to the trial date of April 2015. A second reason was that it was information that could have been included in an earlier report.

Finally, the court was not satisfied that the content of the report was sufficiently relevant. [ 20 ] British Columbia alleges that the material Songhees now seeks to introduce is substantially the same as the material for which leave was already denied following Songhees’ January 2015 application. Dr. Binnema advised counsel for British Columbia that if the new material was admitted, he would have to make substantial revisions to his report, perhaps to the extent of rewriting the report.

Plaintiffs’ Position [ 21 ] Songhees submits that the purpose of the time limits in Rule 11-6 of the Supreme Court Civil Rules is to set a regime of proper notice for all expert opinion evidence and prevent any litigant from being taken by surprise at trial: Gibson v. Rickett, [1995] B.C.J. No.

2426 (S.C.) at para. 11 . [ 22 ] Songhees also submits that expert evidence should only be excluded when there is “substantial and irremediable” prejudice that justifies the exclusion: C.A. v. Critchley [1996], B.C.J. No. 3055 (S.C.) at para. 12 ; Dhaliwal v. Bassi, 2007 BCSC 547 at paras. 12 and 16 . [ 23 ] In these circumstances, Songhees says that the proposed additional material cannot take the defendants by surprise given that they will have ample notice prior to trial.

There is currently no trial date set and new trial dates will not likely be discussed until after the Court of Appeal has released its decision on the amendment application brought by Esquimalt. If successful on appeal, the Esquimalt pleading amendments will make a substantial change to the nature of the action and will likely require further expert opinion.

The defendants no doubt will have time to consider and respond to the additional material the plaintiffs seek to deliver. [ 24 ] The respondents on this application seem to accept that the proposed amendments will not take the defendants by surprise and that there is no reason to disallow the new opinion on that basis. I also agree with Songhees that there will not be any significant prejudice to the defendants that cannot be compensated in an order for costs. [ 25 ] Songhees emphasizes that in cases involving aboriginal rights expert evidence is important: Ahousaht Indian Band v.

Canada (Attorney General) , 2009 BCSC 1494 at para. 55 . As noted above, the new material is said to suggest that there was a pattern of failing to survey village sites and other areas that were to be set aside as reserve lands for aboriginal people. Songhees says that the expert retained by British Columbia, Dr. Binnema, disagrees with that allegation. [ 26 ] Songhees argues that the evidence it seeks to introduce is important evidence and is necessary for a full and fair trial on the issues between the plaintiffs and defendants.

Position of British Columbia [ 27 ] British Columbia is prepared to consent to the new material being served as additional expert reports provided that it has a full opportunity to respond to the final and complete reports of Dr. Lutz. [ 28 ] British Columbia submits that it will be necessary to obtain responsive reports to the new material of Dr. Lutz and will require substantial time to do so because of Dr. Binnema’s schedule. [ 29 ] One of the frustrations in this litigation is that court dates were set early in the proceeding and deadlines for expert evidence were designed to fit within the trial schedule.

None of the dates reserved for trial have been utilized. The dates have changed several times to accommodate new expert reports and applications to amend pleadings by both Songhees and Esquimalt. [ 30 ] British Columbia notes that there are in excess of 50 expert reports filed in these actions, and that there are now twelve different versions of the three primary reports authored by Dr. Lutz. British Columbia says that the reports of Dr.

Lutz have expanded both the areas under consideration and the timeframes that the court will have to consider. [ 31 ] If Songhees receives leave to serve the new Lutz materials, British Columbia seeks an order that it be granted the right to serve responsive reports not less than 45 days prior to the commencement of the defence case. Discussion [ 32 ] There will not likely be any prejudice from serving the extra Lutz materials that cannot be compensated in costs. The defendants will have ample time to prepare and deliver any responsive reports to the new material.

Therefore, Songhees is granted leave to file the additional expert material. The defendants are granted leave to file responsive reports including reports that contain opinion respecting the expanded land area related to the alleged treaty breach and in response to the suggested pattern of behaviour by the colonial government. British Columbia and Canada are therefore granted leave to serve full responsive reports to the reports of Dr.

Lutz. [ 33 ] As the material has already been made available to the defendants, the plaintiffs will serve the additional material upon the defendants and upon Esquimalt no later than April 30, 2017. The response reports cannot be delayed until 45 days in advance of the opening of the defence case. The defendants will have until 45 days before the commencement of the trial to serve any response reports. [ 34 ] Those dates will allow sufficient time for the defendants to further instruct their experts and obtain any necessary response reports. [ 35 ] Costs will be in the cause. “J. K.

Bracken, J.” The Honourable Mr. Justice Bracken