Judgments

[2000] 1 F.C. 267

T-617-85

Montana Band, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta (Plaintiffs)

v.

Her Majesty the Queen (Defendant)

and

Samson Band, Chief Victor Buffalo, and Larron Northwest, Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo, Raymond Lightning, Stan Crane, Lawrence Saddleback, Todd (Chester) Buffalo, Arnup Louis, Lester B. Nepoose, Jim Omeasoo, and Robert Swampy, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians (Third Parties)

and

Ermineskin Band, Chief Eddie Littlechild and Ken Cutarm, Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee, Arthur Littlechild, Richard Littlechild, Emily Minde, Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the members of the Ermineskin Band of Indians (Third Parties)

T-782-97

Chief Florence Buffalo acting on her own behalf and on behalf of all the members of the Samson Cree Nation and Band and the Samson Cree Nation and Indian Band (Plaintiffs)

v.

Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Nothern Development, Parliament Buildings, Ottawa, Ontario (Defendants)

T-2804-97

Ermineskin Cree Nation and Chief Gerald Ermineskin, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing on their own behalf and on behalf of the Ermineskin Cree Nation (Plaintiffs)

v.

Her Majesty the Queen and The Attorney General of Canada (Defendants)

Indexed as: Montana Band v. Canada (T.D.)

Trial Division, Hugessen J.—Calgary, May 26, 27 and June 17; Ottawa, July 7, 1999.

Practice — Discovery — Examination for discovery — Motion to strike out written interrogatories filed by plaintiff bands — Objections raised by Crown based on numerous grounds — Purpose of examination for discovery to render trial process fairer, more efficient — Deponent to historical facts not being asked to interpret documents, give opinion — Examination for discovery designed to deal with matters of fact, not “pure” questions of law — Proper on discovery to ask party as to facts underlying conclusion of law — Deponent speaking not for himself but for party — Interrogatories not asking questions of pure law, not to be struck out — Questions not unreasonable, irrelevant, overly broad, ambiguous — Crown’s objections mostly without foundation.

Practice — Costs — Case concerning validity of surrender of Indian reserve lands — Parties agreeing Band to conduct discoveries of Crown by written interrogatories — Crown failing to facilitate same, moving to strike virtually all interrogatories on numerous grounds found, for most part, invalid and verging on frivolous — Motion, which occupied two days of Court time, ought not to have been brought — Had Crown not enjoyed minor success on motion, would have been ordered to pay costs on solicitor and client basis — Costs against Crown in any event of cause.

Actions were brought by three Indian bands alleging breaches of the Crown’s fiduciary duty towards the plaintiffs and their predecessors. At the discovery stage, it was agreed that the plaintiff bands would proceed by means of written interrogatories. The Crown moved to strike out virtually all of these interrogatories by filing objections based on some nine grounds. These grounds, many of which overlap, could be divided into three catagories depending on the nature of the questions asked. The first set of questions was objected to as dealing with historical questions, questions requiring interpretation of documents and questions requiring an opinion; the second set was complained of as being questions requiring the deponent to state the Crown’s legal position or seeking argument or evidence and the third set was impugned as constituting questions which were unreasonable, irrelevant, ambiguous or which asked for privileged information. The issue was whether these objections had any foundation.

Held, the motion should be allowed in small part but costs awarded against Crown.

The general purpose of examination for discovery is to render the trial process fairer and more efficient by allowing each party to inform itself fully prior to trial of the precise nature of all other parties’ positions so as to define fully the issues between them. The key to the propriety of any question on discovery is relevance. The Court, as a part of its policy of encouraging the use of written interrogatories, should view questions in the best possible light. Evasive, unresponsive or ambiguous answers should not be tolerated. The fact that Indian bands have few or no written records relating to their past and must, apart from tradition and oral history, rely to a large extent upon the records of the government itself casts upon the Crown, in its past and continuing capacity as protector and fiduciary of the bands, a particular duty to be open and frank in its disclosures.

As to the first set of questions, the objection, that the facts in issue which form the subject of the interrogatories are beyond living memory, was specious. Where matters of Aboriginal rights are concerned, tradition, custom and oral history may be valid sources of historical fact. The deponent on discovery is not merely a witness but represents and speaks for a party. Governments, more than most institutions, are notorious for keeping records of what they do and such records may be constantly referred to and relied upon as a source of current practice and may be the proper object of discovery. The objection that a deponent to historical facts is being asked to interpret documents or to give an opinion was also rejected. The border between fact and opinion, or between fact and law, is easy to assert but hard to draw on the ground. Many of the questions objected to under this rubric were essential for an understanding of the Crown’s position and to tie it down to the facts as pleaded. Discovery is often an essential second step in order to make clear what it is that separates the parties. All objections under this heading were rejected. In dealing with the second set, it was to be noted that examination for discovery is designed to deal with matters of fact, not with “pure” questions of law. However, the line is rarely clear or easy to draw since questions may mix fact and law or fact and argument. So too, questions relating to facts which may have legal consequences or which may themselves be the consequence of the adoption of a certain view of the law are nonetheless questions of fact and may be put on discovery. Questions of this sort are essential for the purposes of properly defining the issues and avoiding surprise. There were, however, a very small number of interrogatories drawn to the Court’s attention at the hearing which did ask questions of pure law and should be struck out. As to the third set, counsel made few submissions and the Crown’s objections were, for the most part, without foundation.

Virtually all of the Crown’s submissions were rejected. This motion, which took up more than two days of Court time, ought not to have been brought. The Crown failed to facilitiate written discovery although this had been agreed to. Many of the Crown’s objections verged on the frivolous. Had the Crown not enjoyed a minor measure of success upon this motion, it would have been ordered to pay costs on a solicitor and client basis. Costs awarded against the Crown in any event of the cause.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Rules, 1998, SOR/98-106, rr. 240, 397(1).

Indian Act, R.S.C., 1985, c. I-5.

Treaty No. 6 (1877).

CASES JUDICIALLY CONSIDERED

APPLIED:

Wewayakum Indian Band v. Wewayakai Indian Band, [1991] 3 F.C. 420 [1992] 2 C.N.L.R. 177; (1991), 42 F.T.R. 40 (T.D.); Dick v. The Queen, [1993] 1 C.N.L.R. 5O (F.C.T.D.); Enoch Band of the Stony Plain Indians v. Canada (1996), 110 F.T.R. 241 (F.C.T.D.); affd (1996), 118 F.T.R. 114 (F.C.T.D.); affd (1998), 222 N.R. 218 (F.C.A.).

NOT FOLLOWED:

Martin v. B.C. (Govt.) (1986), 3 B.C.L.R. (2d) 60; [1986] 3 C.N.L.R. 84 (S.C.); Chingee v. British Columbia (1989), 38 C.P.C. (2d) 301 (B.C.S.C.).

CONSIDERED:

Can-Air Services Ltd. v. British Aviation Insurance Co. (1988), 91 A.R. 258; [1989] 1 W.W.R. 750; 63 Alta. L.R. (2d) 61; 30 C.P.C. (2d) 1 (C.A.); Rubinoff v. Newton, [1967] 1 O.R. 402 (H.C.); Brennan v. J. Posluns & Co. Ltd., [1959] O.R. 22; (1958), 30 C.P.R. 106; 18 Fox Pat.C. 116 (H.C.).

REFERRED TO:

Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General) (1984), 1 C.P.R. (3d) 268; 12 C.R.R. 347 (F.C.T.D.); Samson Indian Nation and Band v. Canada, [1998] 2 F.C. 60 [1998] 2 C.N.L.R. 199; (1997), 221 N.R. 100 (C.A.).

MOTION to strike out most of the written interrogatories filed by plaintiff bands based on numerous grounds of objection. Motion allowed in part.

APPEARANCES:

Alain J. Dubuc, Sylvie M. C. Molgat and Michael J. Bailey for plaintiff Montana Band.

Priscilla E. S. Kennedy for plaintiff Samson Band.

Barbara L. Fisher for plaintiff Ermineskin Cree Nation.

James A. MacDonald and Douglas B. Titosky for defendants.

SOLICITORS OF RECORD:

Dubuc/Osland, Ottawa, for plaintiff Montana Band.

Parlee McLaws, Edmonton, for plaintiff Samson Band.

Blake, Cassels & Graydon, Vancouver, for plaintiff Ermineskin Cree Nation.

Deputy Attorney General of Canada for defendants.

The following are the reasons for order rendered in English by

[1]        Hugessen J.: These actions, which have been joined, deal with matters arising from the adherence of Chief Bobtail and his people to Treaty No. 6 in 1877, the creation of reserves as a result thereof, certain alleged surrenders of those reserves, and certain other alleged activities on the part of the Crown and its agents, the descendants of Chief Bobtail and the three plaintiff bands over a period extending generally through to about 1909, the date of the alleged surrender of the Bobtail reserve. The validity and effects of that surrender are the central issues.

[2]        The actions are at the discovery stage and there has been an agreement by counsel that the plaintiff bands will conduct their discoveries of the Crown by means of written interrogatories.

[3]        The Crown now moves to strike out virtually all of the interrogatories filed by the plaintiffs Samson and Ermineskin and a very substantial proportion of those filed by the plaintiff Montana. Objection is taken on nine separate grounds, many of which overlap so that a large number of interrogatories are the object of several grounds of objection.

[4]        I start my consideration of the matter with some reflections upon the nature and scope of examinations for discovery and interrogatories in modern civil procedure, and in particular under the Federal Court Rules, 1998 [SOR/98-106].

[5]        The general purpose of examination for discovery is to render the trial process fairer and more efficient by allowing each party to inform itself fully prior to trial of the precise nature of all other parties’ positions so as to define fully the issues between them. It is in the interest of justice that each party should be as well informed as possible about the positions of the other parties and should not be put at a disadvantage by being taken by surprise at trial. It is sound policy for the Court to adopt a liberal approach to the scope of questioning on discovery since any error on the side of allowing questions may always be corrected by the trial judge who retains the ultimate mastery over all matters relating to admissibility of evidence; on the other hand any error which unduly restricts the scope of discovery may lead to serious problems or even injustice at trial.

[6]        Of course, there is another side to the coin: in this time of justifiable concern about delays in the litigation process, discoveries must not be permitted to go on endlessly and the Court will be vigilant in the exercise of its discretionary powers to prevent abuses of its process by either party, discoveror or discoveree.

[7]        Subject to certain special exceptions such as claims to privilege, the key to the propriety of any question on discovery is relevance; that, in its turn, is determined by the pleadings (rule 240).

[8]        While the usual practice is for examinations on discovery to be conducted orally, the Rules make provision for examination by means of written interrogatories and it seems to me that the Court should, as a matter of policy, encourage the use of such interrogatories in appropriate cases. They are likely to be far less time consuming and should do away entirely with any necessity for adjourning the discovery to allow the witness to inform him or herself of the appropriate facts.

[9]        The Court has to be aware, however, that interrogatories can pose something of a problem for the party drafting the questions: there is no opportunity to clarify a question which is deliberately or even honestly misunderstood; it may be difficult to foresee an unclear or evasive answer; it may sometimes be necessary to put a large number of questions of a “follow-up” nature based upon supposition or hypothesis as to what the answer to an earlier question will be.

[10]      Where these sorts of difficulties arise it is my view that the Court, as a part of its policy of encouraging the use of written interrogatories, should attempt to view questions in the best possible light. Thus, for example, where a question is susceptible of two interpretations, one of which is clearly improper (for instance asking the witness to give a conclusion of law), the Court should prefer the interpretation which would make the question legitimate and admissible. Deponents, for their part, have a duty to make an honest and open attempt to answer. Thus where a deponent demonstrates an obtuseness in understanding a question or produces an answer which has little or no bearing on the facts in issue, the Court will require him or her to answer the question properly in the light of the pleadings and may well attach heavy costs penalties to the party being discovered.

[11]      Since it is clear that the answers to interrogatories will almost always be prepared by or with the very active assistance of counsel, evasive, unresponsive or ambiguous answers are not to be tolerated. By the same token, questions whose answers may require some element of law over and above their primarily factual basis may be allowed a somewhat greater latitude.

[12]      There is one final comment of a general nature which is related to the particular circumstances of this action. It is, as I have said, an action by three Indian bands against the Crown. It alleges breaches of the Crown’s fiduciary duty towards the plaintiffs and their predecessors over a period of time approximately 100 years ago. It is common knowledge that Indian bands have few or no written records relating to their past and must, apart from tradition and oral history, rely to a large extent upon the records of the government itself. This casts upon the Crown, in its past and continuing capacity as protector and fiduciary of the bands, a particular duty to be open and frank in its disclosures. Even within the adversarial relationship created by litigation between them, the Crown continues to owe an historic fiduciary duty to deal fairly and openly with First Nations. This is not to say that there are special rules for Aboriginal claims, but simply that the nature of any claim is part of the context in which any objection to interrogatories is to be decided and that where a claim is in respect of alleged historical injustice by the Crown, that context may be determining.

[13]      I turn now to the specific objections raised by the Crown to the interrogatories in these cases. They are, as I have said, nine in number as follows:

1. historical questions beyond the memory of any living person;

2. questions relating to the interpretation of documents;

3. questions requiring the expression of an opinion;

4. questions requiring the deponent to state the Crown’s legal position or apply principles of law;

5. questions which ask for arguments or evidence;

6. questions which are unreasonable or unnecessary;

7. questions which are irrelevant or overly broad;

8. questions which are vague and ambiguous;

9. questions which ask for privileged information.

As indicated earlier, many of these grounds of objection overlap in the sense that more than one of them may be invoked in support of an objection to any particular question. Many others, notably numbers 6 to 9 above, do not raise any issue of principle but simply require the application of well known rules “of law to particular questions. However, numbers 1-3 (which are virtually always invoked simultaneously) and 4 and 5 (which are frequently pleaded as additional grounds) raise some important issues which go to the very heart of the nature of discovery in actions of this sort and require more detailed analysis. I turn to them first.

1-3 Historical questions, questions requiring interpretation of documents, questions requiring an opinion

[14]      The Crown’s objection on these grounds is based primarily upon two British Columbia cases.[1] In those cases it was held that it is not appropriate at discovery to ask deponents historical facts of which neither they nor any living persons to whom they have access have any memory and which can only be ascertained by reliance upon documentary records. Since the answers will of necessity be based on a reading of the documents, such questions should only be answered by expert historians as a matter of opinion.

[15]      This case law has not been followed in this Court. The late and much respected Addy J. in Wewayakum Indian Band v. Wewayakai Indian Band[2] led the way. He distinguished the British Columbia jurisprudence and to the extent that he could not do so he disagreed with it. He drew a line between simple historical facts and conclusions or inferences which could be drawn from those facts; the latter were the proper field of detailed study or examination by an expert but the former were every bit as much within the competence of an ordinary witness as any other facts and could properly be the subject of questions on discovery. He described as unacceptable the conclusion that where a claim is based on matters which are beyond living memory, only expert historians could be admitted to testify as to the facts.

[16]      In Dick v. The Queen,[3] Jerome A.C.J. cited and followed Addy J.’s decision. He held that questions relating to the circumstances in which a reserve had been allotted to a band were properly the subject-matter of discovery and should be answered. Mere production of the underlying documents was not enough and the Crown was obliged to answer questions of fact central to the issues between the parties.

[17]      Finally in Enoch Band of the Stony Plain Indians v. Canada,[4] Prothonotary Hargrave, following the earlier jurisprudence, held that questions regarding the circumstances surrounding a surrender poll and the execution of surrender documents could properly be put and should be answered. This aspect of his decision was left undisturbed both on appeal to this Division and on further appeal to the Court of Appeal.

[18]      In my view this jurisprudence is sound. The objection that the facts in issue which form the subject of the interrogatories are beyond living memory seems, with respect, to be specious. Especially where matters of Aboriginal rights are concerned, tradition custom and oral history may be valid sources of historical fact. The deponent on discovery is not a simple witness but is the representative of and speaks for a party qua party. Furthermore, institutions may also have memories and the Crown is quintessentially one such institution. To say that the Crown can have no factual information about anything which goes beyond living memory (as a practical matter, some time after the First World War) seems to me to be absurd. Governments, more than most institutions, are notorious for keeping records of what they do and such records may be constantly referred to and relied upon as a source of current practice even today. While most such records will be in documentary form it is by no means inconceivable that institutional memory may manifest itself in other forms such as practices and traditions. If these are the source of factual allegations by or against the Crown, they may surely be made the proper object of discovery.

[19]      I also find unconvincing the objection that a deponent to historical facts is being asked to interpret documents or to give an opinion. The rule against requiring a deponent to interpret documents is most properly applied where the document in question is a contract and the witness is asked what he or she thinks it means. Documents, however, can and do serve as the basis of a great deal of factual information and a deponent who is asked to give such information is not being asked to interpret the document or to give an opinion but rather to state on behalf of the party he or she represents, that party’s understanding of the facts represented therein. Even in a wholly modern context, records are often expressed in some form of code, overt or covert; a corporate party, or even an individual, may surely be asked to give the true meaning of such records.

[20]      It is nothing new to say that the border between fact and opinion, like that between fact and law, is easy to assert but hard to draw on the ground. It is better to have the deponent answer any marginal questions and if the answer turn out to be simply the expression of a personal point of view the Trial Judge can deal with the matter appropriately if necessary.

[21]      Finally, it seems to me that many of the questions objected to under this rubric are essential for the purpose of understanding the Crown’s position and tying it down to the facts as pleaded. That is an essential part of the defining of the issues and while such definition is, in the first instance, done by the pleadings, discovery is often an essential second step in order to make clear what exactly it is that separates the parties. The statement of defence in these actions contains many detailed assertions of fact as to the activities both of the Crown and its agents and of the plaintiffs and their predecessors. If the Crown has no knowledge of those facts, the plaintiffs are entitled to know that. If on the other hand the Crown’s knowledge of certain historical facts is based upon and limited to statements contained in certain documents the plaintiffs are entitled to know that as well. Neither the plaintiffs nor the Crown should be obliged to go to trial not knowing exactly what it is that the other side knows and relies upon as a provable fact, and what is mere hopeful guesswork.

[22]      For the foregoing reasons I reject each of these objections.

4-5 Questions requiring the deponent to state the Crown’s legal position or seeking argument or evidence

[23]      There is of course no question that examination on discovery is designed to deal with matters of fact. “Pure” questions of law are obviously an improper matter to put to a deponent. It is likewise with argumentative questions and questions which ask a party to state what evidence it proposes to lead at trial. But the line is rarely clear or easy to draw. Questions may mix fact and law or fact and argument; they may require the deponent to name a witness; they may still be proper. So too, questions relating to facts which may have legal consequences or which may themselves be the consequence of the adoption of a certain view of the law are nonetheless questions of fact and may be put on discovery.

[24]      The jurisprudence is divided as to “compendious” or “reliance” questions; in Can-Air Services Ltd. v. British Aviation Insurance Co.,[5] it was said to be improper to ask a witness what evidence he had in support of an allegation or how it was to be proved at trial. Such reliance questions do not ask for facts that the witness knows or can learn but rather require the witness to play the part of a lawyer and to select which facts can be relied on to prove a given allegation.

[25]      On the other hand, many experienced trial judges take a broader view. Thus in Rubinoff v. Newton[6] Haines J. said:

The line of demarcation between disclosure of facts on which a party relies and the evidence in support of the fact may at times be very fine, and when it occurs, the resolution must be fact disclosure. And I can think of no more simple and direct question than, “On what facts do you rely?” …. The opposite party is entitled to know the facts on which the acts of negligence or recovery are alleged but not the evidence to support it. To deny such facts would be to refuse the very purpose of discovery which is to learn the facts, or often equally more important, the absence of facts, pertaining to each and every allegation in the pleadings.

[26]      Likewise in Brennan v. J. Posluns & Co. Ltd.,[7] McRuer C.J. ordered a witness to state the facts relied on in support of an allegation. In his view a question of this sort asks not so much for a conclusion of law by a witness as for the facts behind such conclusion. Where the witness is a party who is asserting that conclusion it is reasonable to ask for the facts supporting it.

[27]      In my view, the proper approach is to be flexible. Clearly the kinds of questions which were aptly criticized in Can-Air, supra, note 5, can easily become abusive. On the other hand, a too rigid adherence to the rules therein laid down is likely to frustrate the very purpose of examination on discovery. While it is not proper to ask a witness what evidence he or she has to support an allegation, it seems to me to be quite a different thing to ask what facts are known to the party being discovered which underlie a particular allegation in the pleadings. While the answer may have a certain element of law in it, it remains in essence a question of fact. Questions of this sort may be essential to a discovery for the purposes of properly defining the issues and avoiding surprise; if the pleadings do not state the facts upon which an allegation is based then the party in whose name that pleading is filed may be required to do so.

[28]      Likewise, while the jurisprudence is divided on the point, it is my view that it is proper on discovery (although it may not be so at trial) to ask a party as to the facts underlying a particular conclusion of law; questions of this sort on discovery are essential for the purposes of properly defining the issues and avoiding surprise. Again, it is central to remember that the deponent speaks not for him or herself but for the party.

[29]      Accordingly, I find almost all of the objections taken by the Crown under these two headings to be without foundation. Thus, questions asking by what authority something was done should, in accordance with the principle earlier outlined, be read as seeking the factual basis (e.g. a letter, superior instructions, etc.) for the actions rather than a strictly legal answer. Likewise questions as to eligibility to vote in surrender polls should be taken as going to the factual basis upon which persons were in fact allowed to vote, such as the presence of their names on the band list, residence, or otherwise. The same is true of questions relating to membership transfers which relate to the fact of such transfers and not to whether or not they were properly made. Finally questions which ask what facts the Crown relies upon in support of certain of its particular allegations (most of which have in any event been tailored so as to comply with the decision in Can-Air, supra, note 5) should properly be answered.

[30]      Notwithstanding the foregoing, however, there are a very small number of interrogatories which were drawn to my attention by counsel at the hearing which do ask questions of pure law and which should therefore be struck out. The following are the examples that were given by counsel:

(a) Montana question 21(d): this question clearly asks what legal authority the government had to establish a pay list for Little Bear’s Band.

(b) Samson question 125: here again the question asks for the legal authority under the Indian Act [R.S.C., 1985, c. I-5] for making certain per capita payments.

(c) Ermineskin question 17: while the introductory part of this question is limited to facts and is unexceptionable, the follow-up questions contained in paragraphs (a) and following all seek admissions of law from the Crown and are improper.

[31]      I conclude this section by reiterating that it is only in a very limited number of cases that I view the Crown’s objections as being of any substance whatsoever. Questions relating to how, why and when bands and or reserves were established, band memberships determined, as well as to the loss of interests in reserves are essentially factual matters and should be answered.

6-8 Questions which are unreasonable, irrelevant overly broad or ambiguous

[32]      As earlier stated, there is no dispute that the law requires that questions that fall into these categories should not be answered. However counsel have made very few submissions under these categories and in most of them I find the objection to be without foundation. Thus, questions relating to government policy with respect to the establishment and surrender of reserve lands are clearly relevant in so far as they relate to the reserve lands here in question; to the extent that a question may appear over-broad the answer may be limited to the matters actually in issue.

[33]      Most of all the questions asked are tied directly to allegations in either the statement of claim or the statement of defence and thus meet the primary test of relevance. The Crown’s plea that it would be unduly burdensome to answer some of the questions seems to me to miss the mark; this is a large complicated case and the fact that the marshalling of facts and documents may require a great deal of work is something with which the parties simply have to live. Thus, while Samson questions 146 and 148 (particularly the latter) will apparently call for the production of a large number of documents, they are documents dealing with transfers made by the Crown and its agents of rights in the surrendered lands and are thus relevant. In any event, there is no evidence to support the plea of burdensomeness.[8]

[34]      That said, however, one question has been drawn to my attention which I find unduly vague and ambiguous; Samson question 2 asks for the production of “all versions” of Bobtail’s adhesion to Treaty No. 6; since I cannot understand the question, I think it not unreasonable that the Crown should take the same position.

9 Questions which ask for privileged information

[35]      Counsel made no submissions of substance on this category. No questions were drawn to my attention which would require the Crown to reveal information which would be privileged as against the bands towards whom the Crown has a fiduciary relationship.[9] The submission that one band may not know what payments have been made to another lacks substance, especially in view of the fact that the cases will be tried on common evidence. The objection is dismissed.

Conclusion

[36]      I conclude that for the most part the Crown’s objections are without foundation. A very few questions have been brought to my attention which appear to me to be improper and I have identified them above. There may well be a few others falling into the same category which I have not been able to identify simply because of the huge number of questions involved. Accordingly it is my intention to issue an order in which, apart from allowing the objections to the specified questions, I shall dismiss the motion and extend the time under subsection 397(1) of the Rules, for the Crown to move to review the terms of my order for any matter overlooked; such motion, if any, shall be served by 15 August 1999 and made presentable at the next case-management conference on 25 August 1999 in Edmonton.

Costs

[37]      The Crown has been unsuccessful on virtually all of its submissions. On those very few questions where the Crown has had success on this motion, the matter has been one which in my view could have been settled by a simple discussion between counsel or, at worst, on a short motion heard by telephone conference. As it is the hearing of this motion has taken more than 2 days of Court time in both Ottawa and Calgary together with a number of telephone conferences; all parties have also produced voluminous written submissions and supporting materials. It is my view that this motion ought not to have been brought or, if brought, ought to have been of very much less duration and complexity. No attempt has been made by the Crown to facilitate written discovery even though it was agreed upon. Many of the objections verge on the frivolous; it was for example argued, apparently seriously, that a question as to how many members had “left” a reserve by a certain date required the Crown to indicate which members had gone on hunting trips off the reserve during the period. Such submissions are scarcely evidence of an honest effort to understand the interrogatories and to answer them in good faith. Indeed, if the Crown had not enjoyed some very minor measure of success on the motion, I would not have hesitated to impose costs on a solicitor and client basis. As it is, the Crown will pay the costs of each plaintiff band forthwith and in any event of the cause, such costs being fixed in the amount of $5,000 for each band.

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