Sawridge Band v. Canada

Sawridge Band v. Canada
Court (s) Database
Federal Court Decisions
Date
2005-11-07
Neutral citation
2005 FC 1476
File numbers
T-66-86A, T-66-86B
Decision Content
Date: 20051107
Docket: T-66-86A and T-66-86B
Citation: 2005 FC 1476
Ottawa, Ontario, this 7th day of November, 2005
Present: The Honourable Justice James Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
TABLE OF CONTENTS
Page
THE MOTION.............................................................................................................................. 4
BACKGROUND .......................................................................................................................... 6
ISSUES ........................................................................................................................................ 31
ARGUMENTS ........................................................................................................................... 32
The Crown's General Position ....................................................................................... 32
Failure to Comply With The November 25, 2004 Order............................................... 33
Continuing Deficiencies .................................................................................................. 35
The Plaintiffs' General Position ..................................................................................... 36
Compliance With November 25, 2004 Order................................................................. 36
Continuing Deficiencies ................................................................................................... 38
The Interveners .............................................................................................................. 38
ANALYSIS .................................................................................................................................. 38
Competing Approaches ................................................................................................... 38
Political Motivation ......................................................................................................... 40
Court-Crafted Solutions ......................................................................................... 42
The November 25, 2004 Order....................................................................................... 44
Completeness .................................................................................................................. 52
The Explanation................................................................................................................ 55
Abuse of Process.............................................................................................................. 66
Oral History Problems...................................................................................................... 67
Continuing Deficiencies.................................................................................................... 68
Compliance........................................................................................................................ 70
The "Philosophical Differences"..................................................................................... 76
The Pleadings.................................................................................................................... 96
The Case Law................................................................................................................. 105
Conclusions On The Scope of Pleadings....................................................................... 119
The Will-Says.................................................................................................................. 124
CONCLUSIONS ...................................................................................................................... 131
ORDER ..................................................................................................................................... 138
SCHEDULE "A"......................................................................... . . . . . . . . . . . . . . . . . . . . . . . 141
REASONS FOR ORDER AND ORDER
THE MOTION
[1] This is the first of two motions brought by the Crown and heard in Edmonton during the week of September 19, 2005. The motions deal with important issues of pre-trial disclosure, scope of pleadings, and the admissibility of witnesses and evidence by the Plaintiffs that were first raised with the trial judge at a Trial Management Conference on September 17, 2004.
[2] This first motion is brought by the Crown pursuant to paragraph 3 of Russell J.'s Order of November 25, 2004, which set out a procedure to allow the Plaintiffs to complete and serve their witness list and will-say statements, and for the Crown to raise any concerns about the materials so served.
[3] Having reviewed the witness list and will-say statements served by the Plaintiffs, the Crown says they are deficient and do not meet the required standards for disclosure and admissibility. For this reason the Crown asks the Court to strike certain of the will-says served by the Plaintiffs in their entirety, and to direct that the Plaintiffs shall not call those witnesses at the trial whose will-says have been struck.
[4] Alternatively, the Crown asks the Court to strike out those portions of the Plaintiffs' will-says that are found to be non-compliant or inadmissible, and to direct that the Plaintiffs shall not adduce evidence at the trial in respect of those portions so struck.
[5] In addition, the Crown asks for a period of approximately four (4) months to prepare for trial once the Plaintiffs' final witness list and admissible will-says have been determined.
[6] Behind both motions lie significant disagreements between the parties about what the pleadings encompass, and how best to organize and present the vast body of evidence the Plaintiffs say they need to call at trial in order to ensure the just, most expeditious and least expensive determination of the issues on their merits.
[7] The concerns on both sides are entirely understandable. The Plaintiffs seek to present a wide array of evidence to support a right to determine their own membership that is based upon aboriginal rights, treaty rights and title in their reserve lands, all of which the Plaintiffs seek to place in a broad historical and political context. The Crown, on the other hand, and quite apart from the pre-trial disclosure difficulties, wishes to prevent an expansion of the action into areas that go beyond the pleadings and the governing jurisprudence, and that neglects to put to good use the voluminous record that already exists from the first trial of this matter that took place in 1993 and 1994.
[8] These inevitable tensions have been exacerbated by what the Crown perceives as an expansionist approach to this litigation of late by the Plaintiffs, and the Plaintiffs' repeated refusal to submit to pre-trial disclosure in accordance with normal rules of procedure and specific orders made by this Court.
[9] In view of the long trial that lies ahead the Court has been asked to address these concerns now to see if anything can, or should, be done that will ensure a more just, expeditious and efficient trial.
BACKGROUND
[10] In more ways than one, history has laid a heavy hand on these proceedings. The pleadings raise matters of great historical significance between the Plaintiffs and the Crown. But the proceedings themselves, of which the present motion is a part, have a long and tortuous history that goes back to 1986. And even the specific issues of pre-trial disclosure and admissibility of evidence raised by the Crown in this motion have a considerable aetiology that has been complicated by previous motions and orders that the Court has been compelled to make to move this matter towards trial. All of these perspectives come into play on this motion, but time and space permit only a brief and skeletal account of what has led to the present impasse.
[11] I have already given a synopsis of much of the relevant background in my Reasons for Order of May 3, 2005 that dealt with an apprehended bias motion. For the sake of convenience, I think it would help if I merely reproduced here what was said on that occasion with some modifications required to bring the present motion into focus.
[12] The first trial took place in 1993 and 1994 before Muldoon J. who reached a judgment and issued reasons in 1995.
[13] The Plaintiffs appealed that decision and the Federal Court of Appeal ordered a new trial on the basis that the reasons of Muldoon J. gave rise to a reasonable apprehension of bias.
[14] Following the Federal Court of Appeal decision in 1997, Hugessen J. was appointed as case management judge on June 12, 1997.
[15] On June 13, 1997, Hugessen J. sent a memorandum to all counsel involved in the proceedings and invited them to apply jointly for a new trial date. No one responded.
[16] The lack of response eventually prompted the equivalent of a notice of status review on May 20, 1998 that required the parties to show cause why the action should not be dismissed for delay.
[17] This elicited a response from the Plaintiffs who advised Hugessen J. that they intended to seek an amendment to the pleadings so that they could take advantage of recent Supreme Court of Canada jurisprudence, including the decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
[18] A show cause hearing was held on June 26, 1998.
[19] On September 23, 1998, the Plaintiffs brought a motion to amend their Statement of Claim. In their written submissions they made the following important arguments about the nature of their claim:
This is an action in which the plaintiffs seek a declaration of certain provisions added to the Indian Act in 1985 ("Bill C-31") granting membership rights in the plaintiffs Bands, are inconsistent with the provisions of section 35 of the Constitution Act, 1982, in that they interfere with the aboriginal and treaty rights of those Bands to determine their own memberships. ...
The proposed formulation of the rights to be asserted by the plaintiffs, and the application of the current law to those rights to be alleged by the plaintiffs, remain sufficiently closely connected to the plaintiffs' existing pleading that an additional second action is not necessary. Multiplicity of proceedings ought to be avoided.
The right to determine membership is a core right and even an essential element of any self-government claim. In fact, the defendant Crown accepts that there is an inherent right of self-government which includes at least some form of the right to determine membership.
[20] It is also significant that at the 1998 Amendment Motion hearing, Plaintiffs' counsel made the following statement:
... In fact, we are alleging, in my submissions the narrowest possible formulation of a jurisdictional right. We are saying, as a government, we have the right to determine who our citizens are.
Short of writing out the rules we apply, you can't be more specific than that. And that is exactly what Chief Justice Lamer says I have to be. I do have to define it as rationally and as centrally as possible. I can't be broad.
So when I put forward the new claim, we are not saying we have a right to self-government at large. That is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government.
...
In fact, the original action and the new action are not inconsistent. The new pleading is simply an explication based on the old one. [emphasis added]
[21] These statements are important because there is now disagreement between the Plaintiffs and the Crown as to what the amendments allowed by Hugessen J. in 1998 were intended to encompass, particularly as regards the concept of self-government.
[22] Hugessen J.'s Order of September 23, 1998, granted amendments to the Statement of Claim on condition that the Plaintiffs, the Crown and the Interveners would provide a detailed list of those parts of the transcript from the first trial that they objected to being used as evidence in any new trial on the pleadings.
[23] On March 10, 1999, the Plaintiffs filed Fresh as Amended Statements of Claim.
[24] The Plaintiffs, however, did not like the condition regarding the use of the transcript from the first trial and objected to it. They took the position that evidence from the first trial should not be used in a re-trial because it had been tainted by the comments of Muldoon J.. The Crown and the Interveners took the position that all of the evidence from the first trial could be used at a re-trial except for the trial judge's comments and interventions.
[25] Hugessen J. rejected the Plaintiffs' position. He was concerned that allowing counsel to call witnesses who had already given their evidence would represent a huge expenditure of time and money, both private and public, and would not be cost efficient. As a result, on December 7, 2000, following a motion for directions arising out of his Order of September 23, 1998, Hugessen J. ordered that the transcript of any evidence from the first trial could be used in a re-trial, and that witnesses who had given evidence at the first trial could not give the same evidence in the second trial, although they could give other evidence.
[26] In making his Order of December 7, 2000, Hugessen J. said in his December 13, 2000 reasons that the "issues of the second trial are fundamentally the same as they were at the first," and he also observed that the "factual matrix" remained essentially the same:
The issues at the second trial are fundamentally the same as they were at the first. The changes in the law upon which the Plaintiffs rely, as those changes have been found by the Supreme Court of Canada in recent cases, do not have the effect of changing the factual matrix upon which the case must be decided.
[27] The Plaintiffs appealed Hugessen J.'s Order of December 7, 2000, but did not challenge his characterization of the issues or his assessment of the factual matrix.
[28] The Plaintiffs' appeal against the December 7, 2000 Order of Hugessen J. was dismissed. The Plaintiffs also appealed Hugessen J.'s Order of September 23, 1998. That appeal was also dismissed.
[29] Hugessen J. continued to encounter difficulties in moving the proceedings towards trial. It seems that orders he made simply were not followed. This necessitated his having to take tighter control of the case management process.
[30] For instance, on September 28, 2001, Hugessen J. decided that he had to set limits on the discovery rights of the parties:
...
I will, however [in lieu of setting a trial date as sought by an intervener], make a number of provisions which are intended to see to it that the parties move the matter forward. Obviously, the orders that I have made to date, which have largely not been complied with, have not been adequate to bring the matter on. Therefore I propose to do a number of things.
First, I am going to place a limit on examinations for discovery. All examinations are to be completed by May 1, 2002 ...
[31] The record shows that Hugessen J. found himself having to deal with "a pattern of uncooperative and obstructive behaviour on the part of the Plaintiffs' counsel" which he felt was "worthy of serious reprimand." As a consequence he found he had to reduce the Plaintiffs' discovery time.
[32] On November 30, 2001, Hugessen J. reduced the Plaintiffs' time for discovery of the Crown's representative by five days in the Sawridge action and ten days in the Tsuu T'ina action.
[33] But the difficulties did not end here. The Plaintiffs sought leave to put written interrogatories to each of the Interveners in this case. In reasons dated June 19, 2002, Hugessen J. found that some of the questions were "extraordinarily burdensome and would require a vast amount of work" that would serve no ultimate purpose. At this stage, Hugessen J. also said in the same Order:
Finally, and this too plays a large part in my exercise of discretion. This case has not had an easy path to date, and I do not see it having an easy path in the next months and years as we strive, all of us, to bring it on to trial. I do not impute motives to anybody because I accept that all parties and the Interveners have a genuine interest in having the case tried. I accept that unreservedly but if these interrogatories were allowed to stand, they would inevitably and beyond any shadow of a doubt add enormously to the time, already far too long, which would be required between now and the date when finally the Plaintiffs will stand and open their case before the Trial Judge.
[34] As Hugessen J. predicted, the path did not get any easier. In 2003, the Plaintiffs served 14,000 written interrogatories on the Crown which Hugessen J. struck as an abuse of the Court and ordered costs of $20,000.00 against the Plaintiffs.
[35] Discovery continued to be difficult. The Crown brought six (6) motions in each action regarding problems encountered during discovery; the problems included unfounded refusals and failures to provide timely answers to undertakings.
[36] Eventually, a pre-trial conference was held on February 27, 2004, and an Order issued dated March 26, 2004, that provided a comprehensive road map to take the matter to trial on January 10, 2005.
[37] Hugessen J.'s Pre-Trial Order of March 26, 2004, is central to what follows and is reproduced here in full:
1. The trial of these matters will take place at Edmonton, Alberta, starting January 10, 2005.
2. Completion of discoveries:
(a) Plaintiffs' answers to Crown's interrogatories to be served and filed by April 30, 2004;
(b) New Crown affidavit of documents to be served by April 30, 2004;
(c) Documents for which claims of privilege expire by lapse of time to be made available as expiry dates come due;
(d) Other "gap" documents (ie., omitted by error from previous production) to be produced by June 30, 2004.
3. Any discovery questions arising out of new documentary production are to be written interrogatories following leave obtained on motion pursuant to Rule 369.
4. Subject to any further directions from the Trial Judge the trials are to be held concurrently.
5. All expert reports for use at trial are to be served by July 15, 2004.
6. Rebuttal expert reports (which shall be limited to answering or contradicting any expert reports produced by others) are to be served by October 29, 2004.
7. Any other expert reports may only be produced by leave of the Court obtained on prior motion.
8. Any person desiring to lead oral history evidence shall serve a detailed summary thereof no later than June 30, 2004.
9. All persons intending to lead evidence at trial (including oral history evidence) shall serve witness lists and "will say" statements (including language if other than English and name of interpreter if known) on or before September 15, 2004.
10. Use of transcripts from the first trial is governed by the Order of December 8, 2000; persons intending to use such transcripts shall inform all other of which transcripts are intended to be so used on or before June 30, 2004.
11. Transcripts from discoveries intended to be read in by any person are to be served no later than November 15, 2004.
12. Any amendments to the pleadings shall be on leave obtained on motion brought pursuant to Rule 369 on or before May 18, 2004.
13. It is hoped to convene an early trial management conference to be presided by the Trial Judge to deal inter alia with:
(a) the formation of a document database for the trial;
(b) any problems relating to the interpretation of the evidence given in a language other than English.
14. The participation of interveners at the trial is the subject of Orders previously given by McNair J. on September 14, 1989 and Hugessen J. on May 26, 2000.
15. Interveners shall respect the various dates set out in the foregoing Order.
[38] Russell J. was appointed trial judge in late March, 2004 and, at this point, Hugessen J. ceased to have any further involvement with the proceedings.
[39] After being appointed trial judge, Russell J.'s first order of business was to deal with applications from both the Crown and the Plaintiffs to amend the pleadings. The Crown sought leave to amend its Statement of Defence and the Plaintiffs sought leave to further amend their Fresh as Amended Statements of Claim.
[40] Russell J. allowed some amendments but disallowed others for both the Crown and the Plaintiffs. The important matter to note, however, is that the Plaintiffs' proposed amendments would have included within their pleadings a general claim to self-determination at large.
[41] The Crown opposed the self-determination at large amendments on the grounds that they were not proper and went far beyond the pleaded position of the Plaintiffs' rights to control their own membership.
[42] The Plaintiffs disagreed with the Crown's position and said that their proposed amendments "do not affect the prayer for relief and do not create a new course of action."
[43] For reasons expressed in his Order of June 29, 2004, Russell J. disallowed those amendments proposed by the Plaintiffs that dealt with a new claim for self-determination or self-government at large, or that raised allegations about First Nations other than the Plaintiffs.
[44] This is what Russell J. said in his June 29, 2004 Order on this issue:
...
26. The contentious aspects of the Band's proposed amendments are objectionable for several reasons:
a) some of the proposed amendments to paragraph 8 conflict with previous rulings made by this Court that the Plaintiff in the action is the Band itself in its own right; and
b) some of the amendments would have the effect of enlarging the nature of the action and would bring in a new claim of self-determination; and
c) some of the amendments would further broaden the claims by raising allegations about first nations other than the Band.
27. In my view, the objectionable amendments I will later refer to do not clarify and focus issues for the Court. They raise new and contentious issues that will require further discovery and will further delay the trial. The late stage at which these amendments are proposed, their number and importance, the degree to which previously held positions are changed, and the inevitable prejudice that will result to the Crown (see Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2004] F.C.J. No. 670, 2004 FC 528 at para. 10) convinces me that these amendments should not be allowed. In addition, some of them are just not relevant to the issues in dispute. As NSIAA points out, the effect of some of the amendments proposed by the Band would be "to put the Crown on trial for all of its conduct with respect to all First Nations in Canada. A trial that is now anticipated to take months could end up taking years to resolve." In addition, other amendments would "substantially expand the scope of this action and raise issues where there has been no discovery" in a context where "the amendments add nothing substantive to the Plaintiff's claim that it has an aboriginal right to determine its own membership ... ." In fact, it seems to me that the words "First Nation" now mean the plaintiff Band and only the plaintiff Band. No purpose is really served by having two different terms ("plaintiff" and "First Nation") to refer to the Band even though I have no real objection to this if the Band wishes to use both terms.
...
[45] The Plaintiffs did not appeal Russell J.'s June 29, 2004 Order dealing with the amendments.
[46] Russell J.'s first meeting with counsel for all parties occurred on September 17, 2004, in Edmonton. The general purpose of the meeting was to ascertain if there were any issues that still needed resolution following Hugessen J.'s Pre-Trial Order of March 26, 2004, and to discuss practical matters related to the administration of the trial that was due to commence on January 10, 2005.
[47] Russell J. discovered that all was not well between the parties. There were still important differences that needed to be resolved before the trial could begin. In fact, the points of contention were much more pressing than any of the practical and administrative topics that were raised.
[48] For purposes of the present motion before the Court, it is important to note that, on September 17, 2004, the Crown immediately raised with the trial judge fundamental concerns about "philosophical differences" between the Crown and the Plaintiffs over what the pleadings encompassed, and the nature of the witness list and will-say statements that the Plaintiffs had served on September 15, 2004, which was the deadline set by the Pre-Trial Order of Hugessen J. for the filing of those materials.
[49] The transcript of the September 17, 2004 Trial Management Conference indicates that the Crown felt there was a:
... basic difference in philosophy for some of the issues raised. It is the Crown's position that this case should be run in accordance with the pleadings, as amended, and therefore we have our view of relevance. What we see the potential for is expanding the scope of this trial beyond what is in the pleadings...
[50] As regards the will-says of the Plaintiffs, the Crown's position was that they were inadequate and did not comply with Hugessen J.'s Pre-Trial Order.
[51] The Court felt these were problems of such a magnitude that they needed to be dealt with quickly and before the trial began.
[52] The Plaintiffs were represented on September 17, 2004, by Mr. Henderson, Mr. Healey, and Ms. Twinn. The transcript shows that Mr. Henderson agreed with the Court that the differences in philosophy over the pleadings and important matters of relevance should be dealt with before the trial began. This is significant because Mr. Henderson ceased to be involved with the proceedings soon after the September 17, 2004 meeting, and Mr. Healey subsequently began to resist the Crown's attempts to raise scope and relevancy issues with the Court.
[53] The other important factor to note is that, on September 17, 2004, the Crown clearly connected its will-say concerns with the pleadings. The Crown's position from the beginning was that the issue of self-government required an interpretation of the pleadings, as amended, to discover what was determinative for the relevance of any evidence to be called at trial. The Crown has made it very clear, as part of the present motion and on previous occasions, that it does not take the position that there is no aspect of self-government in the pleadings. What the Crown disputes is the notion that the pleadings encompass a broad, generalized claim to self-government at large. Hence, the Crown objects to the Plaintiffs calling new evidence on that issue.
[54] The Court took the position that these were matters of such importance that they required full argument and should not be decided as part of a trial management conference. In fact, the Court directed, inter alia, that the will-say concerns of any party should be raised by way of motion, and the motions would be heard together.
[55] Following the September 17, 2004 Trial Management Conference, the Crown brought two motions related to the Pre-Trial Order of Hugessen J. dated March 26, 2004.
[56] On the second motion, the Crown applied to the Court to strike the Plaintiffs' witness list and will-say statements that had been served on September 15, 2004, for failure to comply with the Pre-Trial Order of Hugessen J. The Crown also asked the Court to direct that the Plaintiffs should not be allowed to call any of the witnesses on the list at the trial. The Plaintiffs did not bring a motion at this time concerning any perceived deficiencies in the will-says of the Crown or the Interveners.
[57] The Crown's motion required an interpretation of Hugessen J.'s Pre-Trial Order as it related to will-say matters, and Russell J.'s decision sets out how he went about doing that and the conclusions he reached.
[58] He decided that the witness list and the will-says presented by the Plaintiffs were deficient and were not adequate for preparation and effective trial procedure for a variety of reasons:
a) They were not individualized and were merely a large pool of potential witnesses and a list of topics;
b) The language to be used by each witness was not identified as required by paragraph 9 of Hugessen J.'s Pre-Trial Order;
c) The Plaintiffs had merely provided a list of topics rather than a synopsis of what each individual witness would say;
d) The statements pertaining to oral histories did not identify the actual past practices, customs and traditions of the community in question.
[59] Notwithstanding these deficiencies, the Court did not do what the Crown wanted it to do, which was to exclude immediately the individual witnesses identified from giving evidence.
[60] The Court was cognizant of the dispute between the Crown and the Plaintiffs concerning scope and relevance. So the Court struck the witness list and the will-says served by the Plaintiffs on October 18, 2004, for non-compliance and gave the Plaintiffs leave to apply to the Court with proposals for a "workable solution" to the problems caused by their non-compliance:
Bearing in mind the amount of time that remains before the trial begins on January 10, 2005, the Plaintiffs have leave to apply to the Court with proposals for a workable solution to the problems caused by their non-compliance with the Pre-Trial Order and their production of deficient witness lists and will-says.
[61] This approach needs to be placed in the context of what the Plaintiffs had argued before the Court in responding to the Crown's motion on the witness list and will-says. These matters are set out in Russell J.'s Order of October 18, 2004.
[62] First of all, the Plaintiffs took a very hard line and refused to acknowledge that there was anything wrong with the witness list and will-says they had produced on September 15, 2004, even though they were obviously not individualized and merely said that certain persons would "provide their testimony in their indigenous language." So the Plaintiffs did not ask for any additional time to complete their will-says or suggest ways in which the deficient materials they had produced could be improved.
[63] Also very telling was the fact that the list of potential witnesses identified between 140 -150 new names. Such a large body of witnesses had not been brought to Hugessen J.'s attention before he made his Pre-Trial Order of March 26, 2004. So it was not clear why the Plaintiffs needed so many new witnesses for a re-trial that, notwithstanding that Hugessen J. acknowledged it would require some new evidence and discoveries, dealt with issues that were "fundamentally the same as they were in the first" and in which the "factual matrix" remained essentially the same.
[64] So there were new factors for Russell J. to consider that had not been disclosed to Hugessen J. when he made his Pre-Trial Order of March 26, 2004.
[65] As for the contentious issue of relevance to the pleadings, the Plaintiffs merely asserted that they had an absolute right to call whoever they wanted, and the Court could not interfere. This insistence was not modified in any way by an acknowledgement of the relevance issue which the Crown had identified at the Trial Management Conference on September 17, 2004, and which the Plaintiffs and the Court knew the Crown intended to raise in a future motion.
[66] It was clear to the Court that the position of the Plaintiffs at the hearing of the motion was that their materials complied with the Pre-Trial Order and that they had an absolute right to call any witness they chose to call. The Court summed up the problems as follows:
...
47. The Plaintiffs have been given every opportunity to present their case in the way they consider appropriate. They have chosen, however, not to produce a true witness list or meaningful will says in accordance with a Court order that required them to do so by September 15, 2004. Instead, the Plaintiffs propose to take the Court and the other parties down a path that has no clear end in sight and that will lead to chaos at the trial. The Plaintiffs could have suggested ways to remedy the situation but they have chosen not to, and now raise "practical difficulties" that should have been raised and addressed long ago. They have, in effect, decided to put the whole conduct of the trial on the line. Under these circumstances, the rights of the other parties and the integrity of the litigation process require the Court to act in a decisive manner before the whole process subsides into chaos.
...
[67] Also of note, and clear from the transcript of the motion hearing, is that when Russell J. attempted to find out if there were, perhaps, undisclosed problems that had prevented compliance, the Plaintiffs began to hint at "practical difficulties" they had experienced. For reasons given, the Court did not find their explanations acceptable.
[68] So the Court was faced with a situation where the Plaintiffs argued strenuously for substantial compliance of their will-says with the Pre-Trial Order of Hugessen J. and then suggested that they had been experiencing practical difficulties.
[69] It is also of note that the Order made by the Court striking the materials produced by the Plaintiffs on September 15, 2004, and asking for a proposal for a "workable solution," was not appealed by the Plaintiffs.
[70] In November, 2004, the Plaintiffs came back to the Court with a motion dealing with the "workable solution" that the Court had asked for.
[71] The gist of the Plaintiffs' proposal was that they would produce up to some 150 will-says by December 14, 2004, the trial would go ahead on January 10, 2005, and the Crown would have some 26 days (much of it the difficult Christmas season) to review the materials produced and raise any problems with the Court.
[72] The Court felt this was not a workable solution that took into account the reasonable interests of the other parties to the action. It was merely a proposal by the Plaintiffs to do by December 14, 2004, what they should have done by September 15, 2004, combined with a suggestion that the scope and relevancy issues raised by the Crown could be dealt with by the Court in some vague kind of way (but only after consulting with the Plaintiffs). There was no mention of the motion the Crown intended to bring before January 10, 2005, or how it could be accommodated in the time-frame proposed by the Plaintiffs.
[73] This looked to the Court like an attempt by the Plaintiffs to profit from their own breach of Hugessen J.'s Pre-Trial Order, and the Court said so in no uncertain terms.
[74] The Crown took the position with the Court that, because the Plaintiffs had clearly not come up with a "workable solution," the Court should deny the motion and move forward to trial on the basis of the relevant portions of the record of the first trial and other materials filed to date.
[75] Once again, however, the Court rejected such a draconian approach and decided to impose a scheme that would allow the Plaintiffs to produce their will-says by December 14, 2004, (the date they had asked for) and then to put in place an orderly schedule to allow the Court to hear the Crown's concerns about scope and relevance.
[76] The Court's decision of November 25, 2004, is such a key document in this motion that it will be helpful to reproduce the reasons and the order in full:
I do not believe this motion is the appropriate place to examine the criticisms made concerning the content of the will say statements produced to date by the Plaintiffs, except that the Court must acknowledge the clear indication that challenges are likely to be made and that they may well be made before trial. The parties hold widely divergent views as to what this trial should deal with and, in light of the large number of witnesses the Plaintiffs have indicated they intend to call, the Crown and the Interveners have justifiable concerns about the barrage of further evidence and what it means for the conduct and duration of the trial. Normally, of course, I would leave these matters to be dealt with at trial, but the history of this action has shown time and again that it would be naive to assume that normal procedures will suffice. I have taken careful note of Mr. Justice Hugessen's words in his order of March 6, 2002 that he was "driven to the regretful conclusion that the parties are simply incapable or cannot be trusted to conduct this litigation themselves even when case managed." This motion and the reasons for it are ample proof that nothing has changed in this respect. Because the Plaintiffs have not yet produced a new witness list, and because at the time of the motion hearing they have only put forward 18 will say statements out of a possible 140 - 150 (some of them obviously highly controversial), the Court is in no position to assess what the situation will look like once the Plaintiffs have delivered the full quota. I am simply not willing to go forward in the hope that all will be well when so little is known about the Plaintiffs' witnesses, their number, or why they are even necessary, and the history of the action indicates that repeated Court intervention has been necessary to avoid procedural quagmires and tactical stand-offs.
My concern at this stage remains fairness to all parties to the extent of their respective interests. My review of the Plaintiffs proposal suggests to me that its essence is that witness lists and will says that should have been served on or before September 15, 2004 will now be served on or before December 14, 2004. The trial should still commence on January 10, 2005, so that the Crown and the Interveners will have a fairly short time period (and one that includes the Christmas season) to review the material, prepare for trial and complete any challenges they may wish to make. The Plaintiffs will thus secure a three-month extension with no real compensatory concessions to the other side to deal with the consequences of the Plaintiffs' default. If Mr. Justice Hugessen ordered the serving of witness lists and will says four months before the trial, I am sure that, with his knowledge of this action and his obvious concerns about the conduct of the parties, he had good reason for doing so. And when he made his order of March 26, 2004, it must also be kept in mind that he did not know that the Plaintiffs intended to call approximately 140 to 150 witnesses to supplement the voluminous record that already exists on the issues in this dispute. It would be sheer folly for the Court to now jettison Mr. Justice Hugessen's wisdom, as embodied in his order, and to go forward on the basis of the Plaintiffs' proposal.
Viewed against the framework of Mr. Justice Hugessen's Pre-Trial Order, the Plaintiffs' proposal looks to me like an exercise in rank opportunism that is dismissive of the rights of other parties and the procedures that Mr. Justice Hugessen forged to deal with the exigencies of this action.
To accept the Plaintiffs' proposal would be to accept and condone their taking an additional three months to produce a witness list and will say statements without much in the way of an explanation, other than repeated complaints that they are very busy. The Co