Sawridge First Nation v. Canada

Sawridge First Nation v. Canada
Court (s) Database
Federal Court Decisions
Date
2008-02-29
Neutral citation
2008 FC 267
File numbers
T-66-86
Decision Content
Date: 20080229
Docket: T-66-86A
Citation: 2008 FC 267
Ottawa, Ontario, this 29th day of February, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF
CANADA (
ALBERTA
),
NON-STATUS INDIAN ASSOCIATION OF
ALBERTA
and NATIVE WOMEN’S ASSOCIATION OF
CANADA
Interveners
Docket: T-66-86-B
BETWEEN:
TSUU T’INA FIRST NATION
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF
CANADA (
ALBERTA
),
NON-STATUS INDIAN ASSOCIATION OF
ALBERTA
and NATIVE WOMEN’S ASSOCIATION OF
CANADA
Interveners
TABLE OF CONTENTS
THE MOTIONS 5
BACKGROUND 11
The General Problem 11
Pre-Trial Phase 13
The Trial Phase 18
The Mistrial Motion 20
The Mistrial Aftermath 29
The Court’s Attempt at a Solution 33
The Plaintiffs’ Election 40
Best Efforts 46
Summary 49
Why Does It Matter? 55
Stating and Proving their Case 61
The Plaintiffs’ Awareness of the Compliance Problems 69
Conclusions 73
GENERAL ISSUES 85
Enhanced Costs 85
The Plaintiffs’ Background Account 88
Paragraphs 2 and 10: The Request for Guidance 88
Paragraph 4: Counsel responded by suggestions that in the future, this Court should allow the witnesses to testify and to seek the truth, justice and a fair determination on the merits 89
Paragraph 7: The Crown Agreed with the Appellant’s (sic) Summary 90
Paragraphs 9 and 11: The Crown did not submit on May 1, 2007, that the Appellants (sic) had engaged in any abuse of process etc. 90
Paragraph 12: Plaintiffs’ counsel also advised that it was the Plaintiffs’ position that the Plaintiffs have complied with orders of the Court 93
Paragraph 14: Among other things, counsel expressly confirmed that the Plaintiffs had never stated that they could not make or prove their case on the basis of the evidence set out in the will-says 93
Paragraph 26: Compliance with Synoptic Standards 94
Paragraph 27: Neither the Crown nor the Interveners asked this Court to strike the Plaintiffs’ previous lay witnesses 95
Conclusions 100
When Assessed and Payable? 101
Rule 401(2) Issues 106
Alternative Suggestion 111
Rates 114
THE CROWN’S CLAIM 116
The Crown’s Bill of Costs 116
Hourly Rates 117
Second Counsel Fees 117
Preparation Time 118
THE CLAIMS OF THE INTERVENERS 119
One Set of Costs or Separate Claims? 120
Scale of Costs 124
The Adjournment Motion 125
NWAC 129
ORDER 131
REASONS FOR ORDER AND ORDER
THE MOTIONS
[1] This is a cluster of motions for costs brought by the Crown and the Interveners related to extraordinary conduct and revelations that have occurred during the trial of these two actions.
[2] The Crown is seeking an order:
Granting the Crown a fixed lump sum award of costs in accordance with the Crown’s draft Bill of Costs, and related to the Plaintiffs’ Mistrial Motion, the Consequential Reasons for Order and Order, the Oral ruling of September 11, 2007, the subsequent striking of all lay witness testimony and the further Order disallowing the other lay witnesses of the Plaintiffs from testifying, and the Court attendance of October 15, 2007:
a) calculated according to 2.0 times the upper end of Column V of Tariff B of the Federal Courts Rules; and
b) payable by the Plaintiffs forthwith and in any event of the cause;
Granting the Crown costs of this motion:
a) calculated in accordance with Column III of Tariff B of the Federal Courts Rules; and
b) payable by the Plaintiffs forthwith and in any event of the cause; and
Granting the Crown an Order that fees payable under Tariff A, paragraph 2 of the Federal Courts Rules for the entirety of the trial, except for opening statements and the Documents Motion, calculated according to 2.0 times the upper end of Column V of Tariff B of the Federal Court Rules, all in accordance with the Crown’s draft Bill of Costs, be borne by the Plaintiffs, and payable immediately and in any event of the cause.
[3] NWAC is seeking an order:
Granting NWAC a lump sum award of costs in the amount shown on the draft Bill of Costs, Exhibit A to the Affidavit of Christine Soukup, sworn on November 16, 2007 for the Plaintiffs’ Motion for Adjournment, heard September 28, 2006:
a) payable by the Plaintiffs forthwith and in any event of the cause; and
b) calculated according to the high end of Column V of Tariff B of the Federal Courts Rules, with a multiplier of 2;
Granting NWAC a lump sum award of costs in the amount shown on the draft Bill of Costs, Exhibit B to the Affidavit of Christine Soukup, sworn November 16, 2007, for the Plaintiffs’ Mistrial Motion and proceedings to determine the Plaintiffs’ compliance with the Court’s July 5, 2007 Direction and August 9, 2007 Order, down to and including the proceedings of September 11; and of the Plaintiffs’ motion to settle the terms of the Order of October 11, 2007, and of costs thrown away with respect to the hearing of the Plaintiffs’ lay witnesses in this matter in accordance with the ruling of September 11, 2007:
payable by the Plaintiffs forthwith and in any event of the cause; and
calculated according to two times the high end of Column V of Tariff B of the Federal Courts Rules;
Granting NWAC the costs of this motion:
payable by the Plaintiffs forthwith and in any event of the cause; and
calculated according to two times the high end of Column V of Tariff B;
Granting leave for late service of the Bill of Costs for the costs of this motion, and leave to file such Bill of Costs after the determination of this motion, as the time and disbursements are not all presently known; and
Granting such further and other relief as this Honourable Court deems appropriate.
[4] NSIAA is seeking an order:
Awarding NSIAA solicitor-client costs of the trial of these actions from January 30, 2007 to September 11, 2007, including the solicitor-client costs of the Plaintiffs’ April-May 2007 Motion for Mistrial, and subsequent proceedings to determine the Plaintiffs’ compliance with the Court’s July 5, 2007 Direction and August 9, 2007 Consequential Order, and NSIAA’s costs thrown away in relation to the hearing of the Plaintiffs’ lay witnesses now struck;
Fixing NSIAA’s solicitor-client costs of the trial of these actions from January 30, 2007 to September 11, 2007 at $198,012.21, or such other amount as the Court deems appropriate, and ordering costs payable forthwith;
In the alternative, awarding costs to NSIAA of the trial of these actions from January 30, 2007 to September 11, 2007 in the lump sum amount of $216,106.58, based on 1.5 times the high end of Column V of Tariff B, plus disbursements, and payable forthwith;
Awarding NSIAA costs of the Plaintiffs’ unsuccessful motion for an adjournment of the trial of these actions (the Adjournment Motion), brought before this Court on September 28, 2006, in the lump sum amount of $8,204.63, based on 1.5 times the high end of Column V of Tariff B plus disbursements, payable forthwith;
Awarding costs to NSIAA in the lump sum amount of $7,500.00 for this motion; and
Granting such further and other relief as this Honourable Court deems appropriate.
[5] CAP is seeking an order:
Awarding costs to CAP in relation to the motion filed by the Plaintiffs seeking an adjournment of the trial in this matter, and dealt with in this Court’s October 12, 2006 Order (the Adjournment Motion);
Awarding costs to CAP in relation to the Plaintiffs’ Mistrial Motion and the matters addressed in this Court’s orders dated June 19, 2007, August 9, 2007, September 11, 2007 and October 15, 2007, including thrown-away costs for the trial time between January 30, 2007 and October 15, 2007;
Directing payment of a lump sum for costs of the above matters, based on the application of the high end of Column V of Tariff B on the Adjournment Motion and the high end of Column V of Tariff B, with a multiplier of two applied, on the thrown-away costs of trial and costs of the Mistrial Motion and related proceedings;
Directing that these costs awards be paid to CAP by the Plaintiffs forthwith and in any event of the cause; and
Granting such further and other relief as counsel may request and this Honourable Court permits.
[6] NCC(A) is seeking an order:
Granting NCC(A) a lump sum award of costs for NCC(A)’s participation in the trial of this matter from January 30, 2007 to October 15, 2007:
payable by the Plaintiffs forthwith and in any event of the cause;
in an amount equal to two times the upper end of Column V of Tariff B of the Federal Courts Rules;
in accordance with the draft Bill of Costs submitted by NCC(A);
Granting NCC(A) a lump sum award for costs of the Plaintiffs’ motion to adjourn the trial, heard September 28, 2006, payable by the Plaintiffs forthwith and in any event of the cause, in an amount equal to the upper end of Column V of Tariff B of the Federal Courts Rules in accordance with the draft Bill of Costs submitted by NCC(A); and
Granting NCC(A) the costs of this motion, payable by the Plaintiffs forthwith and in any event of the cause.
[7] Although the motions differ somewhat in emphasis and detail they are all related to matters that have significantly impeded the progress of the trial and which have given rise to much controversy. They overlap to such an extent that it is possible to review the core issues collectively before dealing with the discrete details of each motion.
[8] All of the participants are of the view that the motions can be dealt with in writing pursuant to Rule 369. After reviewing all of the materials submitted, the Court is convinced that, although complex and extensive, the relevant parts of the record are sufficiently well-known to all participants, as well as the Court, to allow me to address each motion without the need for a hearing in open Court. A disproportionate amount of time in Court has already been taken up with the underlying conflicts and the procedural stalemate that has prompted the Crown and the Interveners to seek enhanced costs payable immediately and irrespective of the cause. Any further expenditure is best avoided.
BACKGROUND
The General Problem
[9] These claims for enhanced costs are based upon abusive and wasteful conduct by the Plaintiffs that has its origins in the pre-trial phase of these proceedings. The sums claimed are hefty by any standards and great care is needed to ensure that they are appropriate, principled and understood.
[10] Much of the relevant record has already been recited and referred to in various orders, reasons, decisions and rulings made by me since I was appointed trial judge in 2004. That record is well-known to all participants and does not need to be repeated here again in detail. Some portions of the background were addressed in the Mistrial Motion that finally brought a long history of procedural conflict to a head. Also, in my conclusions and reasons of September 11, 2007, I made it clear that the overall impact of the Plaintiffs’ conduct was to take the Court and the other participants back to the Fall of 2004 when I was compelled to strike the Plaintiffs’ lay witnesses because of the Plaintiffs’ breach of Justice Hugessen’s Pre-Trial Order of March 26, 2004 and the Plaintiffs’ failure at that time to cooperate in providing a “workable solution” to the problems they had caused regarding non-compliance with will-say requirements.
[11] As I pointed out in my reasons of August 9, 2007, there is a continuum to the problems that have given rise to these costs motions, and any award of costs cannot be fully understood or justified without some reference to that continuum. Practically speaking, however, every relevant detail cannot be recited here and I can only provide an outline of some of the highlights and make a few connecting links. This is not meant to supplant or modify my previous decisions, reasons and rulings, but is an attempt to provide an overview so that these considerable cost claims can be better understood and evaluated. In addition, new light has now been thrown on previous conduct as a result of the latest revelations, and this also has some relevance for the motions presently before me.
[12] The general underlying problem is that, after having their lay witnesses struck in 2004 because of their refusal to comply with will-say disclosure requirements, the Plaintiffs were ordered by the Court to produce and serve standard-compliant will-says for each lay witness they intended to call. The Plaintiffs assured the Court and the other participants that they had done this and that they wanted to proceed in accordance with the rules that the Court had set for the presentation of their case. At trial, however, after calling eight lay witnesses, the Plaintiffs attempted to terminate the trial through a mistrial motion in the course of which they revealed that they had not produced and served standard-compliant will-says and that they repudiated any connection between will-say disclosure and evidence to be called at trial. The Court examined the Plaintiffs’ mistrial allegations but declined to terminate the trial. Instead, the Court found that the Plaintiffs were attempting to avoid responsibility for problems that were of their own making and which they had been given ample time and opportunity to avoid, and which they had assured the Court and the other participants they had resolved. So the Court put the Plaintiffs to an election: they could either retain the witnesses they had called and call further lay witnesses in accordance with the rules that had been established for will-says or have their witnesses struck again for non-compliance as they had been struck in 2004. Rather than submit to the will-say rules, the Plaintiffs elected not to provide the reassurances of compliance requested by the Court. This election has given rise to enormous costs consequences that are referred to in the present motions.
Pre-Trial Phase
[13] The record is clear that the Plaintiffs breached Justice Hugessen’s Pre-Trial Order of March 26, 2004 and failed to produce will-say statements for their new lay witnesses by the deadline set in that order.
[14] The Court struck the witness list that had been produced by the Plaintiffs but gave them the opportunity to come up with a “workable solution” to the problems they had caused as a result of their breach. They failed to do this so that the Court stepped in and, on November 25, 2004, ordered the Plaintiffs to produce will-says that complied with the disclosure standards set by the Court for each of the new lay witnesses they intended to call. The Plaintiffs said they needed until December 14, 2004 to do this, and the Court granted them the time requested.
[15] These concessions were granted in the face of opposition from the Crown who felt that the Plaintiffs should not be given an opportunity to redeem themselves from an unjustifiable breach of a court order to produce will-says and/or from their failure to cooperate in providing a “workable solution” to the problems caused by that breach.
[16] Having been ordered by the Court to produce will-says that met the synoptic standards set by the Court for new lay witnesses, the Plaintiffs assured the Court and the other participants that the will-says they had served either met or exceeded the disclosure standards. That assurance was necessary because failure to comply would have meant a breach of my Order of November 25, 2004.
[17] The Plaintiffs then went on to demonstrate their understanding of, and concurrence with, the will-say rules in various ways. For example, they brought their own motion and asked the Court to order the Crown and the Interveners to produce will-says that met the synoptic disclosure standards for any lay witnesses they intended to call. The Court supported the Plaintiffs’ position in this regard and granted the relief requested.
[18] The Plaintiffs also demonstrated their support for the will-say disclosure system at the de bene esse hearing for Ms. Florence Peshee. In essence, the Plaintiffs asked the Court to protect them from ambush at trial by excluding evidence that had not been adequately disclosed in Ms. Peshee’s will-say statement. Once again, the Court supported the Plaintiffs in the position they took on the relationship between will-says and evidence at trial and made rulings excluding some of Ms. Peshee’s evidence. The Plaintiffs said it was “all about giving notice” and giving notice was “guided by the standards in the will-say.”
[19] Having both urged and observed the use of will-says at the Peshee hearing to exclude relevant evidence at trial, the Plaintiffs then went on to confirm their support for the will-say system and its connection to the case they proposed to make when they affirmed to the Court and the other participants on January 7, 2005 that they had “presented their case through the service of will-say statements … in accordance with the way in which the Court [had] permitted [them] to present their case,” and that they wanted to proceed on this basis and have the Crown and the Interveners comply in the same way. This statement was made following the Peshee hearing at which the Plaintiffs had assured the Court and the other participants they would examine the issues raised at Peshee, consult with other participants, and bring forward any concerns in a timely way.
[20] In November 2005, the Court was called upon by the Crown to strike certain of the Plaintiffs’ will-says for various reasons. The Court’s decision of November 7, 2005, which deals extensively with the basic principles that underlie the will-say requirements, once again makes it clear that will-says that meet the synoptic standards set by the Court are a pre-requisite for calling witnesses, and that is an inevitable consequence of my earlier orders of October 18, 2004 and November 25, 2004. The principles upon which that order was based are as follows:
324. In view of the preceding discussion, and in order to balance the competing interests in a way that will result in the most just, expeditious and efficient determination of these proceedings on the merits, the Court believes that the following principles and procedures should govern its decision in this motion:
a.
The Plaintiffs should be entirely free to lead all relevant and otherwise admissible evidence they have disclosed that they propose to lead in their will-says served within the time-frame which the Plaintiffs requested and the Court allowed, i.e. December 14/15, 2004;
b. In order to lead evidence in accordance with paragraph one (a) above, a summary of that evidence must have been disclosed in a way that meets the standards for disclosure already set by the Court in previous decisions and orders, which standards have been accepted by the Plaintiffs as being applicable to them and other parties to the proceedings;
…
j.
The purpose of any order made by the Court on this motion is solely to complete the process began on September 17, 2004, as more specifically defined in the Orders of October 18, 2004 and November 25, 2004. That process was intended to ensure compliance with Mr. Justice Hugessen’s Pre-Trial Order of March 26, 2004, to effect full pre-trial disclosure by ordering compliant will-says, to try and resolve the difficulties occasioned by the “philosophical difference” over the scope of the pleadings, and to indicate which witnesses and/or evidence the Plaintiffs should not call, either because of their continuing failure to make disclosure in accordance with the standards articulated by the Court, or because the proposed witnesses and/or evidence clearly went beyond the scope of the pleadings.
[emphasis added]
The decision of November 7, 2005 was upheld on appeal by the Federal Court of Appeal.
[21] The commencement of the trial was thwarted in 2005 by a motion brought by the Plaintiffs, ostensibly based upon apprehended bias, but also containing some allegations of bias (“Bias Motion”), that the Court found to be totally groundless and unwarranted. Following that motion the Plaintiffs eventually decided to appoint new lead counsel but retained former counsel as part of their litigation team.
[22] The Plaintiffs appointed new lead counsel in July, ­­­­­­­­­­­­­­­2005 and, in order to accommodate them and give them an opportunity to sort out problems they had caused, the Plaintiffs were given significant amounts of additional time to set their house in order and prepare for trial. The trial commencement date was pushed forward to January 2007 to accommodate the Plaintiffs in this regard.
[23] In order to ensure that actual progress towards trial was being made, the Court imposed an obligation upon the Plaintiffs to produce monthly progress reports and to alert the Court to any problems that might prevent the commencement of the trial in January, 2007. In their monthly written progress reports to the Court and the other participants, new counsel for the Plaintiffs indicated that they might bring a motion about will-says. But as time went on no such motion was forthcoming.
[24] The Court eventually issued an August 24, 2006 direction in which the Plaintiffs were told that five days would be set aside for a hearing of any possible motions described on pages 21 and 22 of their December 2005 Progress Report. This included any motions regarding the “role and use of will-says at trial.” That deadline passed without the Plaintiffs bringing any motion regarding the role and use of will-says at trial. Nor was the Court advised of any mutually satisfactory alternative agreement on the will-say issue in accordance with paragraph 28 of the Court’s August 24, 2006 direction. In their September 2006 Report, the Plaintiffs indicated that they would not be bringing a motion on the role and use of will-says at trial and that will-say issues (they did not specify what they might be) would be dealt with at trial.
[25] On December 7, 2006, I allowed the Plaintiffs, following a motion, to rehabilitate one of the witnesses excluded by my November 7, 2005 order, but I disallowed the rehabilitation of four other witnesses proposed by the Plaintiffs and made it clear that the time had long past for the renovation of will-say statements. This decision was not appealed.
The Trial Phase
[26] The trial proper began in January 2007, and, following opening statements, the Plaintiffs began to call their lay witnesses. The Court was called upon to make various rulings regarding ambush at trial raised by the Crown. Gradually, the Plaintiffs began to assert a position regarding the use of will-says at trial that was at odd’s with the will-say rules established by Court decisions and affirmed in rulings, as well as the Plaintiffs’ own previous representations and assurances made to the Court and the other participants.
[27] The Plaintiffs’ new position, as they finally articulated it at the Mistrial Motion in 2007, was that “the acceptance of a standard of will-says in pre-trial disclosure … is … unrelated to the admissibility of evidence at trial” and that they “do not understand nor do they accept the use of will-says at trial to exclude relevant admissible evidence called by either party.” As demonstrated at the Peshee hearing in 2004 – as urged on the Court by the Plaintiffs and as an inevitable consequence of Court decisions dealing with will-says – the connection between will-says and otherwise relevant evidence called at trial arises in the context of an objection to evidence based upon ambush. The Plaintiffs had asked the Court at the Peshee hearing to protect them from ambush by referring to the pre-trial disclosure in Ms. Peshee’s will-say. But now, at trial in 2007, they were saying that, as far as their witnesses were concerned, there was no connection between will-say disclosure standards and the evidence called at trial. In various rulings, the Court had explained why the approach now urged upon the Court by the Plaintiffs was unacceptable, why the will-say rules had to remain intact, and how they related to ambush at trial. Nevertheless, at the Mistrial Motion, the Plaintiffs said that “unequivocally,” they would not accept any such connection.
[28] As the Court has pointed out, if there is no connection between pre-trial disclosure and evidence at trial, as the Plaintiffs assert, then will-says become a tool for creating ambush at trial rather than avoiding it. The Court has ruled that will-says are not an automatic exclusionary rule and that the Plaintiffs are at liberty, if an objection based upon ambush is made, to demonstrate to the Court that, notwithstanding what may or may not have been disclosed in a relevant will-say, no real ambush can, reasonably speaking, have occurred. But the Plaintiffs have provided no acceptable explanation or justification as to why, when real ambush is assessed on an objection by objection basis, will-says, which are a significant part of pre-trial disclosure, should not be used as part of the determination of whether real ambush has occurred. They have attempted to avoid the consequences of their own actions and the illogicality of their position by accusing the Court of using the will-says as an exclusionary rule in its rulings regarding ambush and then, when the contradictory nature of that accusation was pointed out to them, accusing the Court of using a comprehensive and detailed standard of pre-trial disclosure for will-says to exclude the Plaintiffs’ evidence. Neither accusation can be substantiated and the Plaintiffs are simply left with a “position” that pre-trial disclosure in will-says somehow has no connection to evidence at trial when ambush becomes an issue, even though they do not appear to argue that ambush itself is not a justifiable ground of exclusion.
[29] Notwithstanding the detailed guidance on this issue in the Court’s rulings, and notwithstanding the obvious fact that any problems or constraints they might be experiencing at trial were entirely of their own making, the Plaintiffs have persisted in re-arguing the basic points time and again. But the Court has remained consistent with its own prior decisions, reasons and rulings, as well as the representations and assurances given earlier by the Plaintiffs concerning the state of their will-says and the way they had presented their case through their will-says in accordance with the standards, and their earlier “position” that they wanted “to proceed on that basis and have my friends comply in the same way.”
The Mistrial Motion
[30] The Mistrial Motion was an attempt by the Plaintiffs to avoid problems they had caused through their breach of Court decisions and rulings and their own representations and reassurances regarding will-say compliance. Instead of acknowledging the real source of the problem, they attempted to terminate the trial. The whole matter finally came to a head when the Plaintiffs, after calling eight new lay witnesses at the trial, rose in Court on April 25, 2007 and, although ostensibly asking the Court for guidance, eventually revealed that what they wanted the Court to do was declare a mistrial on the basis that the Court had foreclosed on the ability of the Plaintiffs to adequately state their case because the Court “has created a situation where the will-says are, in fact, and have been established as a legal ground for the exclusion of relevant, admissibility evidence.” This assertion remained unsubstantiated and was a contradiction of what the Court had explained it was doing in its rulings regarding ambush. The Court was not told what evidence had been, or might be, excluded, or why the Plaintiffs could not adequately state their case. Nor was it clear what the Plaintiffs meant by “adequate”. When later pressed, they said that they can “prove” their case, but they have – apparently, though this is not clear – been prevented from calling some evidence they would like to call that would allow them to adequately “state” their case. However, it has not been made clear to the Court what this evidence was, or why its exclusion would warrant a mistrial, or how it related to the Plaintiffs’ ability to prove their case.
[31] In fact, the Plaintiffs have declined to explain in any satisfactory way how the will-say rules ordered by Justice Hugessen and deployed in these actions have, either conceptually or practically, prevented them from adequately stating their case. The closest they have come to any kind of explanation was in response to an assertion by the Crown that they could not “prove” their case. In their response, the Plaintiffs drew the Court’s attention to a conceptual distinction between not being able to adequately state their case and not being able to prove their case. But they did not explain how that conceptual distinction applied to the facts in this case, and they did not attempt to demonstrate what evidence may have been excluded, or might be excluded, that would prevent them from being able to state their case adequately (whatever that term might mean in this context). The Court has repeatedly made it clear in its rulings that the will-say rules, as conceived and deployed in these proceedings, are not an exclusionary rule of evidence but are a tool to facilitate trial preparation and avoid ambush at trial. Apart from “positions” and bald assertions the Plaintiffs have made no real attempt to demonstrate how they have been prevented from presenting to the Court what their lay witnesses have to say, or from adequately stating their case, because of the way in which the will-say rules have been applied. In fact, they have reassured the Court and the other participants on previous occasions that quite the contrary is true. They were given the time they requested to complete will-says and, after doing so, they reported to the Court and the other participants that they had presented their case through their will-says and wanted to proceed on this basis; and they said this after they had themselves established at the Peshee hearing the ways in which will-says should come into play when ambush becomes an issue at trial.
[32] The Plaintiffs have also refused to explain why (if they could not adequately state their case because their witnesses were only being allowed to say what their will-says said they would say) they had previously confirmed to the Court and the other participants that the will-says they had produced and served met (or exceeded) the standards of disclosure, and that they had been able to present their case through those will-says in accordance with the standards and wanted to proceed on that basis.
[33] Conceptually and otherwise, the Plaintiffs have not satisfactorily explained how, after being given the opportunity to call new lay witnesses, and having been given the time they asked for to prepare will-says for those witnesses, and after having confirmed to the Court that they had done just that, the will-say rules can have prevented them from calling any witness they have wanted to call who can provide relevant evidence. The will-say rules merely require that what a witness will say be disclosed in synoptic form in advance of trial so that adequate preparation for cross-examination is possible and ambush will not become a problem at trial. A summary form of pre-trial disclosure is not a limit on relevant evidence, and the Court has previously ruled to this effect in a decision that the Plaintiffs did not appeal. The Court has also ruled at trial that the Plaintiffs are not prevented from asking any question of a witness they please. They must simply be prepared to answer an objection based upon ambush that the Crown might raise; and in answering that objection, will-say disclosure will, inevitably, come into play. However, if disclosure has occurred in accordance with the synoptic standards set by the Court then ambush cannot be an issue at trial.
[34] For purposes of these costs motions, the significance of the Plaintiffs asking for a mistrial in the way they did, without any real attempt to satisfy the legal requirements for such a drastic remedy or to explore with the Court other possible ways of addressing their concerns, has to be looked at in conjunction with the Plaintiffs earlier attempts in the Bias Motion to avoid the consequences of previous decisions of this Court and the Federal Court of Appeal by returning the proceedings to the case management phase on grounds that were not only unsubstantiated but were completely at odds with the record.
[35] In the course of their second major attempt to avoid responsibility for their own conduct and to abort these proceedings at the Mistrial Motion (another motion that would have avoided the adverse consequences of decisions and rulings made to date) the Plaintiffs revealed procedural problems concerning their own conduct and the basis upon which they have called lay witnesses at the trial. The Plaintiffs revealed, for example, non-compliance of their will-says with the Court-ordered disclosure standards in several basic ways. First of all, the whole basis of their Mistrial Motion was an allegation that the Court had used will-says to simply exclude evidence not disclosed in a will-say. As explained in my rulings and reasons, this is not the case, but such an allegation was tantamount to an assertion that, if the Plaintiffs were confined to the disclosure in their will-says, they could not adequately state their case. And the problem with such an assertion was that it contradicts the clear representations and assurances that the Plaintiffs earlier made to the Court and the other participants that their will-says met (indeed some exceeded) the disclosure standards and that the Plaintiffs had presented their case through their will-says in accordance with those standards, and that they wanted to proceed on that basis and have all other participants do the same. So the Plaintiffs were, in effect, saying that it was unfair because they were only being allowed to present the case they had reassured the other participants and the Court that they wanted to present.
[36] Another major difficulty was that, when the Court attempted to seek an explanation from the Plaintiffs at the Mistrial Motion as to how the constraints they were facing had arisen, and how big was the problem they faced, and why they could not adequately state their case if their will-says met the synoptic disclosure standards, the Plaintiffs confirmed on the record that, in fact, at least some of their will-says were certainly deficient in terms of disclosing, in accordance with the synoptic standards, what witnesses were called to say; although they would not reveal which ones were deficient, how extensive the problem was, or how it had occurred. Their approach was simply to blame the Court for difficulties that were obviously of their own making and to seek a mistrial without providing any real basis or justification for such a drastic remedy.
[37] In assessing the Plaintiffs’ mistrial claims, the Court pointed out the inconsistencies and procedural problems that the Plaintiffs had placed on the record. As regards the basic disclosure issue (How could the Plaintiffs be prevented from calling relevant evidence if their will-says disclosed their case in accordance with the standards?), the Plaintiffs’ response brought out even more problems and ambiguities. They could not, or would not, explain the inconsistency inherent in their Mistrial Motion, so they shifted ground. In shifting ground, they simply increased the difficulties confronting the Court. First of all, shifting ground was a tacit acknowledgment of the basic inconsistency inherent in their Mistrial Motion. Secondly, they revealed that they are quite prepared to go on levelling unsubstantiated accusations against the Court in order to avoid explaining the real basis of their problems and allegations. They attempted to explain the inconsistency by alleging (but avoiding any attempt at substantiation) that the Court had itself invented a whole new standard for will-say disclosure (a comprehensive and detailed standard, rather than a synoptic standard) and was using that standard to exclude evidence that the Plaintiffs wished to call. Their new tack was to continue to allege that their will-says were compliant with the synoptic standards of disclosure (a position contradicted by their own confirmation in open Court that at least some of their will-says were certainly deficient in terms of disclosing what their witnesses were called to say), and to allege that the Court had made rulings to exclude relevant evidence that was not described in a will-say “in a comprehensive and detailed form.” The Court has gone to great lengths to explain in its rulings the principles it has applied when ambush is alleged. At no time has the Court said it has excluded evidence because that evidence was not described “in a comprehensive and detailed form in a will-say.” Nor has the Court acted on such a basis. So this was another unsubstantiated accusation that the Court was not doing what it said it was doing. The implication was clearly that the Court was doing something surreptitious and undeclared that was not disclosed in its rulings. This is a serious allegation, and particularly so given that the Plaintiffs have made groundless and unsubstantiated allegations in the past (most notably in the Bias Motion) and the Court has awarded enhanced costs against them for this practice and has told them to desist. The unsubstantiated allegation that the Court was using a comprehensive and detailed standard in its rulings and that the Plaintiffs’ will-says were compliant with the synoptic standard was also contradicted by the Plaintiffs’ own counsel. Mr. Molstad has advised the Court that he has reviewed the Plaintiffs’ will-says against the synoptic standard and he has confirmed that they are certainly deficient against that standard. He has not advised the Court that the will-says are deficient against a comprehensive and detailed standard.
[38] Another major problem was that the Plaintiffs revealed at the Mistrial Motion that when they said their “position” was that their will-says met the synoptic disclosure standards set by the Court, this position did not necessarily correspond with what the Court has said compliance with those standards entails. When the Court asked Plaintiffs’ legal counsel if he had examined the will-says himself against the synoptic standards, he was perfectly candid in disclosing that he had done so, and he confirmed that at least some of them were deficient in disclosing what a witness was called to say. So this meant that the Court could place no reliance upon the Plaintiffs’ “position” as regards compliance with the disclosure standards and needed to get to the bottom of the problem in order to determine the implications for the conduct of the trial as a whole.
[39] As a consequence of their mistrial initiative, the Plaintiffs had revealed that at least some of their will-says did not meet the synoptic disclosure standards set by the Court, even if they were unwilling to disclose the full extent of the problem. And this factor placed the Plaintiffs at odds with previous Court decisions and rulings dealing with will-says, as well as the Plaintiffs earlier assurances that they had produced will-says that met the disclosure standards and that they had presented their case through their will-says in accordance with those standards.
[40] Even more fundamental, however, was the fact that, while ostensibly seeking guidance from the Court, the Plaintiffs delivered and placed on the record at the Mistrial Motion a very carefully-worded repudiation of the will-say rules as the basis upon which they were leading lay evidence. They were quite unequivocal that they did not “understand … nor accept the use of will-says at trial t