2019 NLCA 60, 2019 NLCA 60

Federation of Newfoundland Indians Inc. (applicant/appellant) v. Shawn Benoit, Matthew Anderson, Marie Tapp Melanson, Bobbie Tapp Goosney, Paul Bennett, and Jennifer Sue Le Roux (first respondents) and Her Majesty the Queen (Canada) (second respondent) (19/55) Indexed As: Federation of Newfoundland Indians Inc. v. Benoit 2019 NLCA 60 5 C.A.N.L.R. 65 Court of Appeal of Newfoundland and Labrador Hoegg J.A. September 19, 2019

Summary: Federation of Newfoundland Indians Inc. appealed the finding from the lower court that two documents filed in Benoit’s List of Documents had been privileged, but that Federation had waived its privilege over them. Federation subsequently filed an application to amend its Notice of Appeal to raise an additional issue regarding joint interest privilege. Held: Application denied. Hoegg J.A.: Federation was asking this Court to sit as a court of first instance and decide the issue on the basis of the transcript of evidence adduced in the lower court.

Absent unusual circumstances, it is not the role of an appellate court to decide factual issues without the benefit of the lower court’s decision based on the evidence (paragraphs 6-7). The requested amendment would have significantly delayed the matter, and resolution of the appeal may render the issue moot (paragraphs 8-9). Cases cited: Benoit v. Federation of Newfoundland Indians Inc. , 2019 NLSC 116 Federation of Newfoundland Indians v. Benoit , 2019 NLCA 52 Counsel: Philip J. Buckingham, for the applicant/appellant; Keith Morgan, for the first respondents; Kelly A. Peck, for the second respondent.

The application was heard and decision rendered orally on September 10, 2019 before Hoegg J.A. The following memorandum of disposition was filed on September 19, 2019 by Hoegg J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION

MEMORANDUM OF DISPOSITION Hoegg J.A.: [ 1 ] Federation applied to the Court to amend its Notice of Appeal to allow it to raise and argue the additional issue of joint interest privilege in its appeal of an Applications Judge’s decision in 2019 NLSC 116 . The Applications Judge had ruled that two documents, obtained by Benoit from the Internet and filed by Benoit in its List of Documents, had been privileged, but that Federation had waived its privilege over them.

Federation appealed the Applications Judge’s decision respecting waiver, and subsequently applied to this Court to stay it pending determination of the appeal. [ 2 ] At the hearing of Federation’s application for a stay, Benoit argued that Federation should not be granted a stay because Federation had not exhausted all of its remedies.

In this regard Benoit advised that it had argued the issue of joint interest privilege before the Applications Judge, but that she did not find the issue necessary to decide given her decision on waiver. [ 3 ] On July 3, 2019, I granted Federation’s application for a stay of the Judge’s decision respecting waiver ( 2019 NLCA 52 ).

Delay of the litigation being of concern, I also set the appeal to be heard on November 13 and 14, 2019, with factum filing dates of September 13, 2019 for Federation and October 15, 2019 for Benoit , with the parties’ consent. [ 4 ] On August 19, 2019, I filed my reasons for granting the stay, and referenced Benoit’s arguments therein. On August 27th, 2019, Federation applied to the Court to amend its Notice of Appeal so as to be able to argue the issue of joint interest privilege on appeal.

On September 10, 2019, I heard Federation’s application and dismissed it. [ 5 ] Benoit had opposed Federation’s application to amend its Notice of Appeal and argue the issue on appeal. Both Federation and Benoit submitted authorities respecting circumstances when a party may introduce a new issue on appeal.

However, none of the authorities was on the point raised by Federation’s application. [ 6 ] What Federation was asking was for this Court to sit as a court of first instance and decide the issue of joint issue privilege on the basis of the transcript of evidence adduced at the hearing before the Applications Judge. Of note, the affiants in the court below had been cross-examined on their affidavits. As already noted, the Applications Judge did not decide the issue.

If this Court were to decide the issue on the appeal, it would be making factual findings on the basis of a sterile transcript, without the benefit of hearing and observing the witnesses, and without the benefit of the Applications Judge’s analysis and reasons for decision drawn from her consideration of the whole of the evidence before her. [ 7 ] Absent unusual circumstances, it is not the role of an appellate court to decide factual issues without the benefit of a lower court’s reasoned decisions drawn from consideration of the evidence and argument respecting the applicable law. [ 8 ] The parties are scheduled to proceed with Federation’s appeal relating to waiver in November, 2019.

This

schedule would have been delayed by several months if I had granted Federation’s application to amend. [ 9 ] I add that resolution of Federation’s appeal may render the issue moot. If it does not, it may nevertheless touch on the joint interest privilege issue in the sense that it may shed light on whether Benoit would need or desire to proceed with an application to have the issue of joint interest privilege determined. In any case, whether Benoit applies for judicial determination of the joint privilege issue is up to Benoit. [ 10 ] In all of the circumstances, I exercised my discretion to deny the application. Application denied.