Sawridge Band v. Canada

Sawridge Band v. Canada
Court (s) Database
Federal Court Decisions
Date
2006-05-30
Neutral citation
2006 FC 656
File numbers
T-66-86A, T-66-86B
Decision Content
Date: 20060530
Docket: T-66-86A & B
Citation: 2006 FC 656
Ottawa, Ontario, May 30, 2006
PRESENT: The Honourable Mr. Justice 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
MOTIONS FOR COSTS 3
BACKGROUND 5
CONDUCT ISSUES 28
General 28
Officers of the Court 30
Conduct and Costs 36
AVAILABILITY OF COSTS TO THE INTERVENERS 40
THE FUNCTION AND PURPOSE OF COSTS 44
General 44
Indemnity and Beyond 46
Conclusions on General Principles 54
THE COST CLAIMS IN THIS CASE: COMMON ISSUES 55
Indemnity or Objective Assessment 55
Other Factors 62
(i) Duplication 63
(ii) Intervener and Crown Positions 68
(iii) Five Sets of Costs 70
(iv) Interlocutory Issue 72
(v) Collecting Costs For the Crown 74
(vi) NCC 74
(vii) Cross-Examination on Affidavits 76
(viii) The Court Reporter 78
(ix) Lawyers in Attendance at the Hearing 79
(x) The Offers to Settle 81
THE SEPARATE CLAIMS 82
NSIAA 82
NCC(A) 85
NWAC 90
NCC 91
REASONS FOR ORDER AND ORDER
MOTIONS FOR COSTS
[1] Each of the Interveners has brought a motion that asks the Court to fix costs for the reasonable apprehension of bias motion brought by the Plaintiffs and heard by the Court on March 29 to April 1, 2005 (Bias Motion).
[2] In Reasons for Order and Order dated May 3, 2005, I dismissed the Bias Motion as "groundless and unwarranted" and left the door open for the participants to address the Court on the issue of costs.
[3] The Plaintiffs and the Crown have reached an agreement on costs for the Bias Motion, but the Plaintiffs and the Interveners have not been able to do so; hence the need for the present motions.
[4] The Interveners' approach to costs is not uniform, but they each raise complex issues of process and conduct on the part of the Plaintiffs and their legal counsel during the Bias Motion that were referred to in my decision of May 3, 2005. This has made it appropriate to hear the motions at the same time and to deal with them together in a comprehensive set of reasons.
[5] NSIAA has asked the Court to fix costs for the Bias Motion on a solicitor and client basis, payable forthwith and in any event of the cause. In the alternative, NSIAA says it should at least receive a lump sum amount representing 1.5 times Column V of Tariff B, as well as disbursements, payable forthwith and in any event of the cause. NSIAA has also asked the Court to fix a lump sum amount of $1,500.00 for costs arising out of a separate motion brought by the Plaintiffs dealing with the will-say statements of the Crown and the Interveners and disposed of by the Court on November 18, 2005.
[6] NCC(A) has asked the Court to fix costs for the Bias Motion calculated at 1.5 times the upper end of Column V of Tariff B, payable forthwith and in any event of the cause.
[7] In a similar vein to NCC(A), NWAC has asked the Court to fix a lump sum award for its costs on the Bias Motion calculated at 1.5 times the high end of Column V of Tariff B (or, alternatively, calculated at Column V of Tariff B), payable forthwith and in any event of the cause.
[8] NCC, which participated to a lesser degree than the other Interveners in the Bias Motion, is asking for party and party costs assessed on the basis of Column III of Tariff B, and directing first counsel's travel and accommodation costs, all payable forthwith and in any event of the cause.
[9] The Plaintiffs agree that NSIAA, NCC(A) and NWAC are entitled to costs for the Bias Motion, but they dispute the amount and the basis for calculation. The Plaintiffs believe that NCC should receive no costs on the Bias Motion because NCC did not file a brief or make an oral presentation at the hearing of the Bias Motion. In the alternative, the Plaintiffs say that NCC should only be entitled to taxable costs "at the mid-range of Column I with no multiplier to be applied."
BACKGROUND
[10] Although they differ in their approach to the calculation of costs for the Bias Motion, the Interveners all raise important findings and directions of the Court that are set out in my May 3, 2005 decision as a justification for a higher award of costs than would normally be the case if indemnity, or partial indemnity, was the primary consideration.
[11] The Court's findings in the Bias Motion, the appeal from which was abandoned by the Plaintiffs, are of such importance for the grounds advanced in the present motions that some of the relevant paragraphs from my May 3, 2005 decision should be set out here to give the discussion a context:
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THE PRESENT IMPASSE
106. As the foregoing outline reveals, the present motion has been brought at a time when there is a significant disagreement between the Plaintiffs and the Crown over the scope of the pleadings and the relevance of an extensive body of evidence that the Plaintiffs propose to call at trial. This disagreement is inextricably connected with the will-say issue and the whole conduct of the trial.
107. This motion has been brought before the Court has had an opportunity to hear and adjudicate upon the issues raised in the Crown's pending motion concerning scope and relevance, and the will-says produced by the Plaintiffs.
108. There is no doubt that the Plaintiffs are aware of this because the record shows that Mr. Healey, counsel for the Plaintiffs, at the January 7, 2005 conference meeting confirmed with the Court his understanding that the Crown's motion would address the scope and relevance concerns of the Crown.
109. Notwithstanding the fact that the Court has not yet had the opportunity to examine and deal with these matters, the Plaintiffs have alleged apprehended bias, and have incorporated actual bias allegations into their materials for this motion.
110. The record shows that the Plaintiffs have consistently attempted to discourage the Court from hearing the Crown motion. As their proposal for a "workable solution" to their breach of the March 26, 2004 Pre-Trial Order shows, the Plaintiffs did not object to the will-say standards imposed by Russell J.. They said they could meet those standards and exceed them. What they objected to, and attempted to prevent, was a full consideration of the Crown's scope and relevancy concerns and a determination by the Court as to what the pleadings encompass in terms of self-government. Hence, it is worth considering at this stage whether the Crown's points about the scope of the pleadings and the self-government issue have any real substance, or whether the pending Crown motion is merely obstructive or frivolous.
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116. As the Court indicated in the reasons of Russell J. of November 25, 2004, the Court has no intention of deciding the issues raised in the Crown motion until it has heard full argument from counsel. However, as the above passages show, the dispute over scope and relevancy is not something the Court can merely ignore at this time on the grounds that the Crown has no real reason to raise such matters with the Court. The Crown's objections do not appear to be frivolous or obstructive.
117. In fact, the consequences of ignoring the dispute, and proceeding with the trial in the way the Plaintiffs would like to proceed, are enormous in terms of time and resources for all parties involved, as well as the Court.
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121. Also, in terms of context, and to place this motion in perspective, it is worth considering what the consequences would be if the Court were to grant the relief requested by the Plaintiffs.
122. At its narrowest, if Russell J. were to recuse himself, it would take the proceedings back to, at least, the Pre-Trial Order of Hugessen J. of March 26, 2004. That would mean that the parties would still have to face the scope and relevancy issues raised by the Crown, and the Plaintiffs would be free to argue anew such matters as amendments to pleadings, will-say statements and the role of Interveners at trial.
123. At its broadest, (the Plaintiffs allege a reasonable apprehension of bias on the part of Hugessen J. and the Federal Court) the relief could mean that these proceedings would revert to the status they had following the decision of the Federal Court of Appeal in 1997. In other words, everything would be wide open and the parties would have to begin again the tortuous path of confronting pleadings, evidence, discoveries, and, indeed, everything that has transpired since 1997.
124. These consequences should not matter if a reasonable apprehension of bias exists, but they do suggest that extreme caution should be used by the Court before committing all parties involved in this dispute to such a devastating result.
THE PLAINTIFFS' MATERIALS
125. The Court has serious concerns about the core materials compiled by Ms. Twinn and Mr. Healey, Plaintiffs' counsel, for this motion. The Court raised those concerns with Mr. Shibley, who argued the motion for the Plaintiffs at the hearing in Edmonton. The basic problem is that the Plaintiffs provide no objective, reliable evidence in their materials that the Court can use to assess the very serious accusations made in this motion. Their evidence, for the most, is little more than subjective opinion, often based upon false assumptions and inaccurate information about the state of the proceedings to date. It is self-referential. At bottom, it is nothing more than legal counsel arguing with the Court, and supplying opinion-based affidavits to back up that argument.
126. The Court has no real independent evidence it can rely upon, except what the Court can find for itself in the Court record.
127. The Court's unease was deepened when Ms. Eberts, counsel for the Native Women's Association of Canada, took the Court through the structural convolutions of the Plaintiffs' materials in considerable detail and pointed out the conflation of evidence and argument and the resulting confusion. The cross-referencing between affidavits, and between affidavits and the Memorandum of Argument and other materials, is such that it is difficult to tell who is opining to what and where evidence ends and argument begins.
128. These concerns are not merely of a technical nature. The core of the Plaintiffs' case is contained in the affidavits filed and in their written argument. Those materials were compiled by Ms. Twinn and Mr. Healey and those who they supervise.
129. Ms. Twinn is a member of one of the Plaintiff bands. She is the solicitor of record for these proceedings. She is a witness in this motion. And, she is one of the lawyers responsible for the written argument.
130. Mr. Healey is the lead counsel for the proceedings. He is the principal witness and architect of this motion. He, together with Ms. Twinn, has compiled the written argument that is before the Court. And Mr. Healey's conduct and the Court's response to that conduct constitutes a considerable aspect of what this whole motion is about.
131. When considering the consequences of granting the relief requested, these are matters that the Court cannot ignore as merely technical. There are reasons why lawyers should not both give evidence and provide argument based on that evidence, and the inevitable problems are more than apparent in the materials filed by the Plaintiffs in this motion: evidence and argument are merged; necessary context is left out; interpretations are skewed and highly subjective. Often, the evidence presented in this motion is little more than the subjective states of mind of Ms. Twinn and Mr. Healey. This is not a satisfactory basis for the Court to use when considering a motion for apprehended bias.
132. Nor are these concerns remedied by having Mr. Shibley conduct the oral argument at the hearing. Mr. Shibley graciously conceded that Ms. Twinn and Mr. Healey had compiled the written argument, that he does not have a knowledge of the full record, and that he was highly dependent upon Mr. Healey and Ms. Twinn for what he presented to the Court. Mr. Shibley adapted and endorsed their written argument (with several important exceptions which I will come to later), even though his oral argument was a masterful attempt to avoid its excesses and distortions. In effect, Ms. Twinn and Mr. Healey are the ones who have composed the argument and Mr. Shibley has tried to organize it better and to assist the Court in understanding its difficulties. Mr. Shibley has not reviewed the record afresh or presented his own objective appraisal to the Court. He has merely tried to make the argument of Mr. Healey and Ms. Twinn, which is backed by their own affidavits, more presentable.
133. When the Court put these concerns to Mr. Shibley, he advised that the important thing is the Court record, and that I should concentrate on that. While I agree with him that the Court must examine the Court's decisions and transcripts carefully, I do not think the problem ends there.
134. The onus is on the Plaintiffs to prove a reasonable apprehension of bias before the Court. A significant part of the Plaintiffs' argument/evidence is a highly subjective, selective interpretation on the part of Ms. Twinn and Mr. Healey, who are wearing far too many hats in this motion for the Court's comfort. What is more, even the lay witnesses brought forward by the Plaintiffs are totally dependent upon Ms. Twinn and Mr. Healey for their interpretations of the effects of Court orders and Court actions, and have signed affidavits that were prepared for them by Mr. Healey and/or Ms. Twinn and/or someone working under their direction.
135. Mr. Shibley has cautioned the Court against relying upon "technical" matters, rather than addressing the real issues in dispute in this motion. In my view, however, reliable evidence and objective argument are not merely technical matters. They are the very life blood of the Court, and the only basis upon which it can make decisions.
136. The fact is that, in accordance with Rule 82, of the Federal Court Rules, 1998 a solicitor cannot, except with leave of the Court, both depose to an affidavit and present argument to the Court based on that affidavit. It is true that Mr. Shibley appeared to argue the case at the hearing, but in so doing he told the Court he was merely presenting the arguments of Ms. Twinn and Mr. Healey modified by his own style of presentation. He also adopted the Memorandum of Argument that was prepared by Ms. Twinn and Mr. Healey. In essence then, Ms. Twinn and Mr. Healey have provided argument for this motion based upon their own affidavits or upon affidavits of others that they prepared and that are almost totally about what Ms. Twinn and Mr. Healey have advised the affiants. In the present case, the Court's consent has never even been sought, let alone granted for what has been filed. I have in the past made it very clear to counsel for the Plaintiffs - indeed to all parties to these proceedings - that practises and procedures that do not accord with the Federal Court Rules, 1998 are not acceptable. In the Plaintiffs' motion to amend pleadings that came before me in June, 2004, Plaintiffs' counsel submitted an affidavit sworn by counsel, despite Hugessen J. having criticized such practice in the past. In my reasons of June 29, 2004, dealing with the proposed amendments, I gave the following direction at paragraphs 22 and 23:
The Band has sought leave of the Court to file its solicitor's affidavit. However, as the responses of both the Crown and NSIAA make abundantly clear, some of the Band's proposed amendments are highly contentious and, looked at objectively, I think Band counsel should have appreciated this.
In view of the history of this file, and the long road that lies ahead, I think it is best to make it clear to all parties that practices and procedures that do not accord with the Federal Court Rules, 1998 are not acceptable. Consequently, the affidavit of Counsel for the Band, in so far as it strays beyond mere housekeeping and non-contentious issues, is not acceptable and cannot be relied upon in the Band Motion.
137. Consequently, I do not think the Plaintiffs can be too surprised by the Court's remaining consistent with this warning and refusing to accept the affidavits of Ms. Twinn and Mr. Healey and those portions of the written argument adopted as evidence and incorporated into their affidavits. The matters before the Court in the present motion are highly contentious and the affidavits of Ms. Twinn and Mr. Healey contain a great deal that is merely their own feelings and states of mind on conduct and procedural issues that involve them in a highly personal way. In my view, this is not an acceptable evidentiary base for a motion that seeks to show bias (apprehended or otherwise) on the part of specific judges and, possibly, the Federal Court. At the very least, the Court would have to say that this evidence must be treated as highly suspect and afforded little weight, even when the oral argument is made by Mr. Shibley.
138. There is an irony in this problem that places the Court in a very difficult situation. This is a motion in which one of the allegations against the trial judge is that Russell J. has applied double standards in relation to materials produced by the Plaintiffs and materials produced by the Crown and the Interveners. The allegation is that Russell J. has favoured the Crown and the Interveners in this regard. However, in a motion where the effect of granting the full relief requested would be simply devastating on the rights of other parties, and upon the difficult work accomplished by all parties to date, the Court is somehow supposed to overlook the evidentiary and procedural problems inherent in the Plaintiffs' materials and decide the issue by some other means.
139. Of course, the Court cannot do that. The Court is impartial. It cannot just step in and rectify shortcomings in the Plaintiffs' presentation and conduct of this motion. It is the Plaintiffs' responsibility to prove a reasonable apprehension of bias, and it is the Plaintiffs' responsibility to provide the Court with the materials it needs to assess the extremely serious allegation they make in this motion.
140. If the Court had ever suspended rules of evidence and procedure in favour of the Crown and the Interveners in a matter as important as the present motion, I have no doubt it would have been cited by the Plaintiffs as a clear instance of apprehended bias on the part of the Court.
141. In my view then, the Court must regard the affidavits of Ms. Twinn and Mr. Healey and the evidence they incorporate from their Memorandum of Argument as inadmissible. In addition, to the extent that the lay witnesses merely recount opinions and facts provided to them by Ms. Twinn and Mr. Healey, their evidence is hearsay and opinion and inadmissible for that reason.
142. However, even though the Court is obliged to point out these problems and to reach such a conclusion, no one (and I feel confident including the Crown and the Interveners in what I say) wants this motion to be dismissed upon the basis of evidentiary and procedural issues alone. If the Court did this, the proceedings would continue to stagnate and the likelihood of progressing towards trial any time soon would significantly diminish. I believe that all parties are of the view that some kind of clearing of the air is required at this time.
143. Hence, it is my intention to try and address Mr. Shibley's oral arguments, and the written arguments of Ms. Twinn and Mr. Healey as contained in the Plaintiffs' Memorandum of Argument, by direct reference to the Court record, bearing in mind, however, that those arguments are highly tainted by the problems I have referred to above. But what the Court is really doing here, in effect, is proceeding with its own examination of the record in the light of the Plaintiffs' professed concerns. The Court cannot say that the Plaintiffs have discharged the onus upon them that the law demands in a motion of this nature, and proceeding further with these reasons should not be taken as any indication that the Court accepts the written materials filed, or has chosen to overlook the evidentiary difficulties referred to above.
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THE LAW
156. But I would also like to emphasize and expand upon two points that Ms. Eberts identifies in her written brief. First of all, I believe our legal system depends upon the assumption that judges must be presumed to be impartial. This does not mean that counsel should be intimidated or chary of challenging decisions or judicial conduct where the circumstances warrant it. Our system presumes judges to be impartial, but it also depends upon forthright and intrepid counsel to raise the alarm when they think an apprehension of unfairness has entered the process. Much depends upon the sound judgment and good faith of counsel. There are checks and balances that should ensure applications are only brought in appropriate circumstances. However, if the Court feels the allegations are not appropriate, it must be equally forthright in identifying what it sees as any abuse, bad faith, or irresponsibility on the part of counsel. The respective duties of judge and counsel demand plain speaking on what can be somewhat delicate issues. But, in my view, the fairness and integrity of our judicial system demands that appearance of bias applications not be handled with coyness. They strike at the heart of the administration of justice and undermine public confidence in the impartiality and integrity of the judiciary. Allegations are easy to make and difficult to repel. They must be dealt with openly and firmly.
157. Secondly, I do not believe it can be emphasized too much that the inquiry to which a reasonable apprehension of bias allegation gives rise must be highly fact-specific. The complete context of each situation, and the particular circumstances are of the utmost importance. This is why, in my view, the Court must be wary of taking a result in one case and assuming, because it might seem to address a particular point, that it can be useful in dealing with an entire application: facts are infinitely variable; the mix needs to be reviewed carefully; and the record must be considered in its entirely to determine the cumulative effect of any alleged transgression or impropriety.
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THE PLAINTIFFS= ORAL ARGUMENT
160. The Plaintiffs= oral argument was very different in tone and emphasis from the Plaintiffs= written argument. Mr. Shibley was most helpful to the Court because he brought a fresh appraisal to the present impasse and he made a strenuous effort to distill the essence of the Plaintiffs= concerns and to extrapolate them from the convoluted excesses of their written materials.
161. However, notwithstanding these attempts at clarification, there were several ways in which the oral argument mimicked the approach apparent in the Plaintiffs= written brief: it did not review the whole context or the complete record, and it made highly selective and partial use of some items in the record, while neglecting to mention other material facts entirely. This was because, in the end, the oral argument was completely dependant upon the written argument for its authority and points of reference.
162. In an application where context is everything, such an approach is of limited use to the Court. As I mentioned earlier, Mr. Shibley was exemplary in his forthright disclosure that he did not know the whole record and was dependent upon Ms. Twinn and Mr. Healey to guide him.
163. The onus is on the Plaintiffs to prove a reasonable apprehension of bias. If they choose not to deal with the whole context, then they will have a very difficult time convincing the Court that they have satisfied the jurisprudence and met the reasonable person test.
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THE REPRIMAND
471. I have agreed with Mr. Shibley that this motion is not the place to address the complaints of opposing counsel directed at Mr. Healey and, for this reason, I wish to make what I have to say as neutral as possible. However, the conduct of Plaintiffs= counsel has been put in issue by the Plaintiffs and the Court must address it to the extent that it relates to the reasonable apprehension of bias motion that has been placed before the Court and to the extent that it impacts upon the integrity of these proceedings.
472. Mr. Shibley makes two important points that the Court should address. One of them is what he terms the Aone-sided problem.@ Once again, he is neglecting the full record. The Court=s general directions upon conduct have been directed at all counsel. Even in the Court=s December 6, 2004 reasons, at paragraph 68, the Court=s comments are directed at Aall counsel.@
473. But this does not mean that all counsel have engaged in unacceptable conduct. The record shows where individual counsel have transgressed and, in any future context where conduct may become an issue, it should be the full record that is looked at, and not anything that was said as part of the hearing for this motion where all involved behaved impeccably.
474. In the December 6, 2004 reasons, Mr. Healey is singled out for observation because the Court felt that, on that occasion, his conduct was not acceptable. The Court had no problem with the conduct of opposing counsel because, although they took strong issue with what Mr. Healey said, they remained professional and did not allow their feelings to disrupt the process or to deteriorate into a personal attack upon Mr. Healey before the Court.
475. The second important issue is Mr. Shibley=s assertion that the Aevidentiary base ... does not appear to have been fully addressed.@
476. Paragraph 35 of the reasons of December 6, 2004 makes it clear that the reason why the Court felt it necessary to reprimand Mr. Healey was because the Aprogress of the dispute was impeded, and valuable Court time was wasted, in addressing matters that, on examination, are clearly res judicata.@
477. The Court felt it had been misled on one of the principle issues in the motion: res judicata. By alleging that the Interveners were misleading the Court on this issue, the Court allowed argument from Plaintiffs= counsel that should not have been allowed because the issues had Aalready been argued ad nauseam before the Court,@ and were matters upon which the Court Aand the Federal Court of Appeal@ had already ruled.
478. So this aspect of the reprimand was that the Court did not appreciate having to listen to arguments on matters that were res judicata. The evidentiary base for this conclusion is set out in the reasons and the materials submitted by counsel who participated in that motion.
479. The second aspect of the reprimand was disapproval of Mr. Healey=s ad hominem attacks upon opposing counsel. In other words, he made it too personal.
480. Throughout the hearing on November 18 and 19, 2004, and not just in relation to one contentious matter, Mr. Healey made extensive use of words such as Amisrepresentation,@ Amischief,@ Athey will say anything,@ Amislead,@ Acomplete misstatement,@ Atrickery,@ Amost ridiculous position,@ Afalse,@ and Athat=s just made up.@ Russell J. did not in the reasons address every instance where such words were used. But the evidentiary base for the reprimand was everything heard by the Court, and that appears in the transcript. The overall impression conveyed by Mr. Healey was that the Interveners were dishonest and that they were out to trick the Court on issues concerning their role and standing in these proceedings. And, after I had heard argument, I agreed with the Interveners that the issue of their role had been dealt with to a considerable extent in previous Court orders and did not need to be argued all over again.
481. Russell J. did not detect or record a similar animus on the part of the Interveners when they were dealing with Mr. Healey=s arguments, even though he was re-arguing matters that were res judicata.
482. It has to be kept in mind that, in paragraphs 34 and 35 of the reasons, the Court is focused upon the issue of res judicata. As the reasons also make clear, Mr. Healey argued that the Federal Court of Appeal had directed certain things which Russell J. found that Court had not directed. The Plaintiffs cited the Federal Court of Appeal out of context, and then claimed that the Federal Court was being misled by the Interveners and that they were creating mischief.
483. So the evidentiary base for the Court=s remarks can be found in previous decisions of the Federal Court and the Federal Court of Appeal as referred to in the reasons. The Court indicates in paragraph 34, that it examined the allegations that Mr. Healey made (including those against Mr. Donaldson and Mr. Faulds) and the Court did not find that the Interveners were creating mischief or deliberately misleading the Court. If Mr. Healey has a problem with that finding he can take it up with the Federal Court of Appeal. Differences of interpretation do not require an all-out attack on the honesty of opposing counsel. That is what warranted the reprimand. Counsel can be wrong (and I=m not saying they were in this case) without being dishonest, and I have noticed in Mr. Healey=s cross-examination for this motion, when Mr. Kindrake took him through a number of inaccurate statements he has made to the Court, he was very forgiving of himself. Those inaccuracies were merely Amistakes.@
484. I believe the reasonable person would see the reprimand as an attempt to maintain courtroom decorum in a situation where disagreement between counsel resulted in one counsel resorting to ad hominem attacks in order to distract the Court from the basic issue of whether the role of the Interveners was or was not a matter of res judicata. As the reasons make clear, the full evidentiary base was examined. The response was measured and appropriate and I do not believe that the reasonable person, fully informed, would reasonably apprehend bias against Mr. Healey or the Plaintiffs.
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THE PLAINTIFFS= WRITTEN ARGUMENT
496. Following his oral presentation, Mr. Shibley adopted and endorsed the Plaintiffs= written argument with the exception of two important allegations which I will come to shortly.
497. The Plaintiffs= written argument was not prepared by Mr. Shibley and it is the Court=s understanding that he had very little input, if any, in putting it together. The written argument is signed by Ms. Twinn and Mr. Healey, and Mr. Healey has indicated in cross-examination that he and Ms. Twinn (together with those they supervise) are responsible for it. Mr. Healey is primarily responsible.
498. The two allegations that were withdrawn are important. The first one is contained in paragraph (a) (xv) of the Notice of Motion and 5(j) of the Plaintiffs= Memorandum of Argument to the effect that Russell J. engaged in private conversations with the Crown to thwart the Plaintiffs= plans to call their evidence on self-government.
499. There are clear indications here of a deep-seated hostility towards the Court and its processes. Until the day of the hearing, Plaintiffs= counsel continued to allege that Russell J. Aengaged in private conversations with the Crown to schedule a summary motion filed by the Crown designed to defeat the central allegation raised by the Plaintiffs in this proceeding, namely the Plaintiffs= right of self-government ... . It was only through the inadvertence of the Crown that the Plaintiffs became aware of these conversations ... . Russell J. did not inform the Plaintiffs at the time or shortly after these discussions occurred that there were such discussions or what was discussed... . Russell J. only responded when the Plaintiffs raised it with him one week later.@
500. This sounds, and is meant to sound, absolutely appalling. It conjures up images of Russell J. picking up the phone and plotting with Mr. Kimmis to thwart the Plaintiffs= alleged claim to self-government.
501. What really happened was that a filing date for Crown materials fell on a Saturday and the Crown contacted the Court registry to find out what it should do. The registry applied the usual rule in these situations of allowing filing on the next business day. The registry checked with Russell J. to ensure that there was no problem in following the normal procedure in this instance. And thus, says Plaintiffs= counsel, Russell J. Aengaged in private conversations with the Crown ... .@
502. The Plaintiffs had to know immediately that they received materials on Monday and not Saturday, and as soon as Russell J. became aware that Plaintiffs= counsel was concerned, a full written explanation was provided forthwith. Yet the allegation was still made. What is more, it was sworn to under oath by counsel for the Plaintiffs.
503. What we see happening here is Mr. Healey and Ms. Twinn abandoning all proportion and objectivity to mount a personal attack on the integrity of the trial judge, although I am not clear from the evidence of the extent to which Ms. Twinn is a participant in this approach.
504. Fortunately, a wiser head prevailed and Mr. Shibley withdrew the allegation at the hearing. But the fact that it was made at all under the circumstances would not be lost on the reasonable person.
505. The fact that it appeared in the Notice of Motion and the Memorandum of Argument, after full explanation was promptly provided, highlights the significant difficulties the Plaintiffs= written materials present for the Court and why argument (written or otherwise) should not be made by someone who, in the case of Ms. Twinn, is a band member, solicitor of record and witness, and, in the case of Mr. Healey, is leading counsel, witness and personally involved with many of the issues raised.
506. The second important item that was withdrawn is even more problematic for the Court. At the end of his presentation, and after he had endorsed and adopted the Plaintiffs= written argument, the Court drew Mr. Shibley=s attention to paragraph 3 and the following sentence:
They (i.e. the Plaintiffs) do not seek a determination of actual bias. There is however some evidence to support such a finding.
507. The Court is never told what this evidence of actual bias is, although there are allegations throughout of actual bias rather than apprehended bias. But Mr. Shibley assured the Court that this motion was based upon apprehended bias.
508. An allegation of actual bias without evidence is nothing more than a slur. And an allegation of actual bias in a motion that claims to be about apprehended bias is irrelevant and, therefore, a gratuitous slur.
509. To his credit, Mr. Shibley withdrew the allegation in paragraph 3 as soon as the Court brought it to his attention and I do not for one moment entertain the thought that, in endorsing the Plaintiffs= written argument, he meant to endorse that allegation.
510. I also agree with Mr. Shibley that complaints by the Crown and/or the Interveners related to the conduct of Plaintiffs= counsel should not be dealt with as part of this motion except, of course, where Plaintiffs= counsel=s conduct is specifically raised by the Plaintiffs and the Court is, therefore, obliged to deal with it, and where the materials themselves bring up conduct issues that the Court cannot ignore.
511. However, notwithstanding its withdrawal at the hearing, the inclusion of an allegation of actual bias raises the same general concern that the Court has already expressed about the materials having been prepared by counsel for the Plaintiffs who have abandoned objectivity and any sense of proportion in what they are prepared to say. And the allegations of actual bias are so ingrained and interwoven throughout the Memorandum of Argument and the evidence of Mr. Healey that removing a sentence from paragraph 3 does not solve the problem.
512. The Plaintiffs= Memorandum of Argument presents a litany of allegations that goes on for almost 100 pages. It is not easy to decipher and no assistance was offered to the Court at the hearing by the Plaintiffs that would help in the process. The Court is merely left to make what it can of decontextualized quotations and accusations, highly subjective and skewed interpretations, attempts to re-argue untenable positions, and a great deal of what can only be called innuendo.
513. The net effect of this approach is to force upon the Court and the other parties the job of providing the full context needed to place the Plaintiffs= arguments in a perspective that will enable the reasonable person to assess them. The Court has to keep in mind that the onus is on the Plaintiffs to prove a reasonable apprehension bias, and it is not the role of the Court and/or the other parties to try and make clear what is obscured by the Plaintiffs= materials. But allegations of bias (actual or apprehended) are very easy to make and very difficult to dispel. They strike at the heart of our justice system and they undermine public confidence in the integrity of the judiciary. This is why they should not be made in an irresponsible way and before an objective appraisal is made of the record, the materials and the position of counsel who is making them. If undertaken irresponsibly they create alienation and estrangement from the whole justice system.
514. The Plaintiffs were given a significant amount of time to prepare this motion and their materials. Extensions were granted when requested. All other pending matters were suspended so that they could concentrate on the task in hand. And Mr. Donaldson, who represents NSIAA, one of the Interveners, even went so far as to assist the Plaintiffs and the Court in preparing and organizing two volumes of Transcripts, Pre-Trial Orders and Directions that are essential for an understanding of the full context of this motion. Notwithstanding all of this accommodation, the end result is confused and, at times, just plain baffling.
515. The first problem for the Court is to determine what the Plaintiffs= Memorandum of Argument actually is and how it can be used. In their affidavits, Ms. Twinn and Mr. Healey adopt the document, or at least parts of it, as evidence. Mr. Shibley could not really help the Court much with this problem:
In any event, it=s not a factum, in my view, in the normal sense of that term; its written argument, which I found to be helpful, and I hope you do too. It=s comprehensive beyond what is normal. There is no question about that.(Transcript, vol. 2, page 28: 8 - 13)
516. So the Court is left to make of this Awritten argument@ what it can. However, the Court was very unnerved by the following information from Mr. Shibley:
Well, I=ve read it more than once; I=ve read it a number of times. And I say with respect, I, submit to you, My Lord, that it=s very worthy of reading. It is elaborate. And sometimes the reproduction of transcript is elaborate. I found it useful because I didn=t have to read the transcript, get the volumes out. [Emphasis added](Transcript, vol. 2, page 32: 3 - 10)
517. The Court can only say that it gains little comfort from the knowledge that Mr. Shibley did not have to read the transcript because, had he done so, he might have alerted himself to the fact that the allegations and assertions contained in the Memorandum of Argument are difficult to reconcile with the actual record.
518. In his summary, Mr. Shibley advised the Court that Athe record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties.@ Having now spent weeks doing just that, I am left wishing heartily that the Plaintiffs had f