Samson Indian Band and Nation v. Canada
T-2022-89
MacKay J.
10/9/96
19 pp.
Application for directions in relation to order dated March 20, 1996 pertaining to documents claimed as privileged in preparations for trial-Plaintiffs seeking directions on certain documents agreed upon by counsel as appropriate samples for illustration of terms of order-General principle enunciated by Court of Appeal solicitor-client privilege not to be interfered with except to extent absolutely necessary and any conflicts be resolved in favour of protecting confidentiality-Conflicting principle legal advice obtained by trustee for administration of trust belongs to beneficiaries as well as trustees-Nature of relationship between Crown and First Nation plaintiffs prima facie that of trustee and beneficiary in relation to 1946 surrender of oil and gas mineral rights on reserve lands-Plaintiffs claiming many documents general in nature by necessary implication, relate to special trust-like relationship between Crown and plaintiffs-Full nature of relationship between parties awaits determination at trial of actions-Defendants argue documents not referring specifically to plaintiffs or trust assets are not to be produced-Legal advice to Crown for purposes of assisting and in formulating policy or legislation or regulation not to be produced-Legal advice not referable to any particular band or advice referable to other bands even if also applicable to plaintiffs not producible-Advice given on interpretation of common law or legislation not producible-Advice given to assist in resolving conflict between general responsibilities and role as trustee not producible-Fact interests of plaintiff bands may be affected by actions of Crown taken on basis of legal advice given in general way without specific reference to bands' trust property not leading to conclusion advice should be produced-However, simply because advice received or requested serves more than Crown's interest as trustee, not automatically excluding it from production-If advice responds to request by plaintiff bands about administration of beneficial interests in resources or moneys derived from those, documents should be disclosed, even if advice serves variety of interests of Crown including policy formation, legislation and conflict of interest-Decisions concerned with production of documents in process of discovery and not intended to resolve issue of admissibility at trial-Specific directions given as to which documents to be produced.