[1995] 3 F.C. 544
T-1254-92
Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Lee, Lester Fraynn, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada, the Honourable Thomas R. Siddon, Minister of Indian Affairs and Northern Development, and the Honourable Donald Mazankowski, Minister of Finance (Defendants)
Indexed as: Ermineskin Indian Band v. Canada (T.D.)
Trial Division, MacKay J.—Calgary, September 18; Ottawa, September 21, 1995.
Practice — Discovery — Examination for discovery — Application for order under new R. 456(4) directing defendants to produce former Crown employee as deponent on behalf of Crown to be examined for discovery — Employee said to be more experienced, better informed about oil, gas issues than other former employee — Neither qualified as “officer, servant or employee” of Crown as both having left public service — R. 456 changing implicitly Court’s role in naming deponent to represent Crown at examination for discovery — Providing for two-step process — Court to intervene only where deponent nominated by Crown proves to be uninformed, incapable of being informed of facts essential to issues related to discovery — Crown must have reasonable confidence in deponent as representative with implicit authority to bind it — Argument one representative less knowledgeable than another not ground for Court intervention.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 456(1) (as am. by SOR/90-846, s. 15), (2) (as am. idem), (3) (as am. idem), (4) (as am. idem), 465.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
R. v. CAE Industries Ltd. et al., [1977] 2 S.C.R. 566; (1977), 72 D.L.R. (3d) 159; 31 C.P.R. (2d) 236; 13 N.R. 624; Chhabra v. Canada, [1986] F.C.J. No. 338 (T.D.) (QL); Can. Indemnity Co. et al. v. A.G.B.C., [1974] 4 W.W.R. 752; (1974), 49 D.L.R. (3d) 610 (B.C.S.C.); de Jong v. Milwaukee Insur. Co. (1965), 52 W.W.R. 371; 53 D.L.R. (2d) 155 (B.C.S.C.); Richter Gedeon Vegyészeti Gyar RT v. Merck & Co. et al. (1994), 87 F.T.R. 230 (F.C.T.D.); revd [1995] 3 F.C. 330(C.A.).
REFERRED TO:
Irish Shipping Ltd. v. The Queen, [1974] 1 F.C. 445(T.D.); Kodak Canada Ltd. v. Polaroid Corp. (1976), 29 C.P.R. (2d) 181 (F.C.T.D.); Smith (S M) v. The Queen, [1981] CTC 476; (1981), 81 DTC 5351 (F.C.T.D.).
APPLICATION for an order under subsection 456(4) of the Federal Court Rules requiring the production of a former Crown employee as deponent on behalf of the Crown at examination for discovery. Application dismissed.
COUNSEL:
James A. O’Reilly, Edward H. Molstad, Q.C., Marco S. Poretti, L. Douglas Rae, and Judy D. MacLachlan for plaintiff Samson Band.
L. Leighton Decore for plaintiff Enoch Band.
Marvin R. V. Storrow, Q.C. and Malcom O. MacLean for plaintiff Ermineskin Band.
Alan D. Macleod, Q.C., W. Clarke Hunter, Thomas E. Valentine and Mary E. Comeau for defendants.
SOLICITORS:
O’Reilly & Associates, Montréal, Parlee McLaws, Edmonton, and Rae & Company, Calgary, for plaintiff Samson Band.
Blake, Cassels & Graydon, Vancouver, for plaintiff Ermineskin Band.
Biamonte, Cairo & Shortreed, Edmonton, for plaintiff Enoch Band.
Macleod, Dixon, Calgary, for defendants.
The following are the reasons for order rendered in English by
MacKay J.: The plaintiffs (the Ermineskin plaintiffs) apply for an order, pursuant to subsection 456(4) of the Federal Court Rules [C.R.C., c. 663 (as am. by SOR/90-846, s. 15)], that the defendants (the Crown) produce Mr. Edward E. Moore as the deponent on behalf of the Crown for purposes of examination for discovery by the plaintiffs. The order sought would direct that Mr. Moore be the deponent, in anticipation that another person will be the nominee of the Crown as its deponent, at a stage when discovery by the plaintiffs has not yet began.
The background
The circumstances are somewhat unusual. The action by plaintiffs in which this application is made is one ordered to be tried with two others: Chief Victor Buffalo et al. v. Her Majesty the Queen et al. (T-2022-89) (involving the Samson plaintiffs), and Chief Jerome Morin et al. v. Her Majesty the Queen (T-1386-90) (involving the Enoch plaintiffs). The three actions involve similar claims and issues and are to be tried on similar evidence concerning alleged breach of trust or other fiduciary obligations by the Crown in the management of oil and gas resources in reserve lands, in the management of moneys received as royalties from sale of those resources, and in the provision of programs and services for the three Indian bands involved.
Samson plaintiffs in one of the other actions (T-2022-89) have already proceeded with examination for discovery, in relation to oil and gas issues, of a deponent named by the Crown, Mr. James Eickmeier. It is in anticipation that Mr. Eickmeier will also be named by the Crown as its deponent for examination in any discovery by the Ermineskin plaintiffs in regard to oil and gas issues, that those plaintiffs now move for an order that Mr. Moore be named by order of the Court to represent the Crown. Their anticipation about the likelihood of the nomination of Mr. Eickmeier by the Crown was not disputed in argument. I note that in argument on this application, the plaintiffs were supported by the Samson plaintiffs and by the Enoch plaintiffs engaged in the parallel actions.
The basis of the plaintiffs’ application arises from the comparative lengths of service with the Crown’s management of oil and gas reserves of Messrs. Moore and Eickmeier, from a general similarity in terms of the ongoing relationships of both men to the Crown’s operations, and from the pattern said by plaintiffs to have evolved in the discovery of Mr. Eickmeier as conducted by Samson plaintiffs. While they are plaintiffs in the concurrent action, T-2022-89, the examination for discovery of Mr. Eickmeier is to serve all three bands, though both Ermineskin plaintiffs and Enoch plaintiffs expect to ask questions in discovery on oil and gas issues particular to their respective claims in their concurrent actions.
Mr. Moore was a regular employee of the Crown, with senior responsibilities in the department concerned with Indian minerals in Western Canada, particularly in Alberta, from 1965 until 1981 when he retired or resigned from the public service. Since 1981 he has continued to work for the Crown from time to time on a contract basis. Now 73 years of age and apparently in good health, he is currently under contract by the Crown, engaged in preparations for trial in this matter. He is reported by Mr. Eickmeier to be working from an office in the litigation support element of the Crown’s operations.
Mr. Eickmeier was an employee of the Crown who worked with senior responsibilities in the Indian oil and gas unit from 1987 to 1991. Like Mr. Moore, he is now retired from the public service, but he also continues to work from time to time under contracts with the Crown. Since January 1994 he has been engaged on contract in relation to this litigation, primarily in the preparation for, attendance at, and follow-up in fulfilling undertakings arising from his examination for discovery by Samson plaintiffs as the deponent of the Crown in relation to oil and gas issues. In some early sessions of that examination Mr. Moore reportedly attended with Mr. Eickmeier and the latter sought advice from Mr. Moore before responding to some questions but that practice did not long continue.
The plaintiffs herein note that the Crown’s list of documents disclosed to date includes approximately 3,600 documents to or from Mr. Moore over the years from 1965 until mid-February 1990. There are only approximately 375 documents to or from Mr. Eickmeier on that list, from 1987 on. In the discovery of Mr. Eickmeier by Samson plaintiffs to date there have been in excess of 2,500 undertakings by him to inform himself. Many responses to these undertakings completed thus far are expressly based on information from Mr. Moore, and Mr. Eickmeier has acknowledged that Mr. Moore, with whom he has spent substantial time, is the person who has been of most assistance in obtaining information, and answering undertakings, in regard to the period 1965-1981. In my view, the more extensive involvement of Mr. Moore which gives rise to consultation with him is not surprising given the comparative lengths of service of the two men who at different times had responsibilities in regard to management of Indian oil and gas resources, including those of the plaintiff bands.
Based in part on that background and in part on the process that has evolved in the examination for discovery of Mr. Eickmeier, the plaintiffs urge that designation of Mr. Moore as deponent for the Crown would be more expeditious, facilitating the process of discovery. The number of undertakings by Mr. Eickmeier, the fact that he frequently consults with or relies upon Mr. Moore to complete responses to undertakings, and the fact that those responses frequently lead to other questions by plaintiffs which then become the subject of further undertakings and ultimately further responses, delays obtaining information to which the plaintiffs are entitled.
I note that the plaintiffs do not say that Mr. Eickmeier is not a competent deponent. They do urge that he is not as well informed as Mr. Moore and that examination for discovery would be greatly facilitated if Mr. Moore were named as the deponent for the Crown. Unless that is done, it is urged that discoveries will be less effective and efficient than they could be. Moreover, it is said the plaintiffs are hindered in obtaining admissions or information which will advance their case and simplify its presentation to the Court, for Mr. Moore, by his association with these issues over more than 25 years has an appreciation of fundamental issues and the continuity of events that are significant in this case, whereas Mr. Eickmeier has no similar extensive experience that would provide a comparable understanding. Finally, the plaintiffs submit they will be prejudiced if Mr. Moore is not examined with respect to events with which he has been involved over more than 25 years, while there would appear to be no prejudice to the Crown if he were directed to be its deponent.
Though the Crown did not submit evidence by affidavit in response to the Ermineskin plaintiffs’ application, it is submitted in argument that Mr. Moore, at his age, is not willing to act as the Crown’s deponent. Because of the scope of matters in issue between the parties, and with numerous government departments involved over the 50 years or more that are embraced in the plaintiffs’ claims, whoever is the deponent for the Crown must undertake to inform himself as well as he can and to give undertakings for written responses to proper questions asked but not answered in discovery. That involvement Mr. Moore is said to be unwilling to undertake. Mr. Eickmeier, in the Crown’s judgment, is competent to be its deponent and he is willing to make the commitment required, as he has done since January 1994. Moreover, in so far as Mr. Moore’s direct involvement with management of Indian oil and gas resources was more extended than Mr. Eickmeier, the Crown urges that discovery is to determine facts, not the perceptions or understandings of the deponent, and thus even for Mr. Moore his involvement in assisting with responses to undertakings requires that he review past records and refresh his memory about factual matters. Finally, while his direct experience does span a more substantial portion of the time in issue than does that of Mr. Eickmeier, even Mr. Moore’s experience, with direct responsibilities, spans only 15 of some 50 years.
The Rules
The Court’s Rules relating to examination for discovery, particularly of the Crown, were most recently revised by Amending Order No. 13, SOR/90-846, section 15, effective December 7, 1990. The relevant provisions of Rule 456 which became effective in 1990 are here set out, with their antecedents in Rule 465 as it applied previously. The former provision is of interest in considering jurisprudence referred to by counsel in argument.
Rule 456. (1) A party may, without leave of the Court, examine for discovery any adverse party only once.
(2) Where a corporation or an unincorporated group or body of persons is to be examined for discovery, it shall select an informed officer, director, member or employee to be examined on its behalf.
(3) Where the Crown is to be examined for discovery, the Attorney General of Canada or the Deputy Attorney General of Canada shall select an informed officer, servant or employee to be examined on behalf of the Crown.
(4) The Court may, on the application of a party entitled to examine the person selected under paragraph (2) or (3), order that some other person be examined.
…
Rule 465. (1) For the purposes of this Rule, a party may be examined for discovery, as hereinafter in this Rule provided,
…
(b) if the party is a corporation or any body or group of persons empowered by law to sue or to be sued, either in its own name or in the name of any officer or other person, by questioning any member or officer of such corporation, body or group,
(c) if the party is the Crown, by questioning any departmental or other officer of the Crown nominated by the Attorney General of Canada or Deputy Attorney General of Canada or by order of the Court, and
(d) in any case, by questioning a person who has been agreed upon by the examining party and the party to be examined with the consent of such person,
Analysis
In reliance on R. v. CAE Industries Ltd. et al., [1977] 2 S.C.R. 566 and Chhabra v. Canada, [1986] F.C.J. No. 338 (T.D.) (QL) the defendants submit that as Mr. Moore has not been an officer, servant or employee of the Crown since 1981, he cannot be nominated by the Court to be examined for discovery as a representative of the defendants. Both cases concerned the application of former paragraph 465(1)(c) of the Rules which provided for examination for discovery of the Crown, as a party, “by questioning any departmental or other officer of the Crown nominated by the Attorney General of Canada … or by order of the Court”. In CAE Industries the Supreme Court held that Rule did not permit the Court to name a former Minister of the Crown, who had left office, even though when he was in office he might be considered to be the best informed “officer of the Crown”, since he was not at the time of discovery “a departmental or other officer of the Crown”. In Chhabra Mr. Justice Collier simply dismissed a motion by the plaintiff who sought an order directed to persons who were not “officers of the Crown”, and had no employment or other relationship to the Crown, to be examined for discovery on behalf of the Crown.
The change to the Rules in 1990 now provides, by subsection 456(3) of the Rules, where the Crown is to be examined for discovery, the Attorney General of Canada or his Deputy “shall select an informed officer, servant or employee to be examined on behalf of the Crown”. While the status or terms of employment of the person selected are not defined, the terms used, in my opinion, may be interpreted as intending to include all persons connected with the Crown (or the corporation) best informed of matters that may define and narrow the issues between the parties at trial. See Can. Indemnity Co. et al. v. A.G.B.C., [1974] 4 W.W.R. 752 (B.C.S.C.) and de Jong v. Milwaukee Insur. Co. (1965), 52 W.W.R. 371 (B.C.S.C.) dealing with the scope of the term “officer or servant” of a corporation in the provision for examination for discovery under then B.C. Rules, which declined to interpret the term in a restricted sense. Rather the courts in those cases held that whether the proposed deponent was sufficiently connected with the corporate party to be considered an officer or servant for purposes of the Rule was a matter to be assessed in the circumstances of each case.
It is of passing interest in this case that neither Mr. Moore, nor Mr. Eickmeier qualify as an “officer, servant or employee” of the Crown in a strict or narrow sense, both having left full-time employment in the public service some years ago. Yet each continues to serve the Crown on a contract basis, and each has a measure of experience from his former service which would qualify him as a deponent. The one difference in current contract arrangements would appear to be that while both are retained for assistance in preparation for the trial in this litigation, only Mr. Eickmeier appears to have a contract under which he is to serve as the Crown’s deponent in examination for discovery. That role, it is said in argument, Mr. Moore is unwilling to assume.
The plaintiffs urge on the authority of Irish Shipping Ltd. v. The Queen, [1974] 1 F.C. 445(T.D.) and Kodak Canada Ltd. v. Polaroid Corp. (1976), 29 C.P.R. (2d) 181 (F.C.T.D.) that there is no presumption the person nominated by the Crown to be examined for discovery on behalf of the Crown is necessarily the person who ought to be examined. Indeed it is presumed that counsel for the examining party knows best who should be examined. On this very basis, where the Court was satisfied that someone more suitable than the person nominated by the Crown is in a position of sufficient responsibility to provide answers binding upon the Crown, the Associate Chief Justice ordered that a designated person, as nominated by the examining plaintiff, be named as deponent for the Crown in examination for discovery: Smith (S M) v. The Queen, [1981] CTC 476 (F.C.T.D.).
In my opinion, those cases must be read in light of paragraph 465(1)(c) of the Rules as it then applied, which provided for “questioning any departmental or other officer of the Crown nominated by the Attorney General … or by order of the Court”. Subsection 456(3) of the Rules now provides for naming of the deponent by the Crown, and under subsection 456(4) of the Rules for the Court “on the application of a party entitled to examine the person selected under paragraph … (3) [to] order that some other person be examined”. It seems clear to me that this means a two-step process, a determination about who shall be nominated as deponent for the Crown to be made by the Attorney General or his deputy, and only thereafter possible intervention by the Court. It is unlikely that intervention would be exercised unless it were to be demonstrated that the nominee of the Crown is not informed, or capable of being informed, of the facts essential to the issues upon which discovery is pursued.
In the only analogous case to which I have found reference, dealing with the comparable provisions of current Rule 456 concerning naming of deponents for corporations under subsection (2) and the possible intervention of the Court under subsection (4), Mr. Justice Muldoon construed the process as a two-step process: Richter Gedeon Vegyészeti Gyar RT v. Merck& Co. et al. (1994), 87 F.T.R. 230 (F.C.T.D.). He dismissed an application by defendants for an order naming certain persons to be deponents of the plaintiff corporation essentially on the ground the motion was premature, where plaintiffs offered to name two representatives as deponents and there was no evidence that those nominees would be ineffective or unsuitable. In his view [at pages 232-233], the defendants in that case
… must be content with the plaintiff’s first selection, or in this case the generous two selections, unless they can persuade the plaintiff, without compulsion, to reconsider. The plaintiff is not obliged to do so. If the persons whom the plaintiff initially selected turn out to be uninformed or only poorly informed, then the defendants would be entitled to invoke rule 456(4). The defendants’ motion here is premature. It will accordingly, be dismissed. Another time, the defendants will require cogent evidence that some person, other than one selected by the plaintiff is really needed.
On appeal, in dealing with this issue, Chief Justice Isaac, speaking for the Court of Appeal ([1995] 3 F.C. 330 said (at page 335):
The Motions Judge pointed out, correctly in my respectful view, that by virtue of subsection 456(2) [as am. idem] of the Rules, the right to designate the person or persons to be examined for discovery on behalf of the respondent corporation is given to the respondent in the first instance and not to the appellants or to the Court. Until the respondent’s designates had demonstrated during the examination for discovery that they were not informed persons within the meaning of subsection 456(2) of the Rules, the appellants could not invoke to their benefit the provisions of subsection 456(4) of the Rules.
The provisions of Rule 456 relating to naming a deponent of the Crown for purposes of discovery parallel those for naming a deponent for a corporate party to be examined in discovery, i.e., subsections (3) and (2) respectively. The authority of the Court to intervene and name a deponent under subsection (4) would appear to be similar in both cases.
It seems to me that the change in the Rules in 1990 does change implicitly the role of the Court in naming a deponent to represent the Crown in examination for discovery. That change puts the Court in a secondary role, to be invoked when a deponent nominated by the Crown proves to be uninformed and incapable of being informed. This implies a greater recognition, than may have been the case under the former Rule, of the role of the deponent in an examination for discovery of the Crown, or a corporation, in binding the Crown or the corporation, as the party the deponent represents, by his or her admissions of fact. That aspect of the deponent’s role necessarily implies that he or she be a person in whom the Crown has reasonable confidence as its representative with implicit authority to bind the Crown.
Conclusion
I am persuaded in the circumstances of this case that Mr. Moore, from his direct experience from 1965 to 1981 may be expected to be the better informed, of the two persons here considered as possible deponents, about oil and gas issues arising in those years. Undoubtedly even he must have to review documents to refresh his memory of facts and events as long as 30 years ago. I would urge that the Crown here give serious consideration to seeking arrangements with Mr. Moore for him to be deponent of the Crown in relation to those issues in the years 1965 to 1981. They are not the only issues or the only years of significance in these actions and another deponent or deponents would obviously be required. If this could facilitate the process of examination for discovery to any significant degree, that would assist all parties in this case.
Nevertheless, I am not prepared to grant the order sought by the Ermineskin plaintiffs. It is said that Mr. Moore is not willing to be the Crown’s deponent and that, as he is no longer employed by the Crown except on a contract basis, the Crown cannot require him to be its deponent. This Court would have to be persuaded there were exceptional circumstances that warranted making an order that would direct Mr. Moore to undertake the role of deponent unless it had some assurance that he was willing to do so, and further that the Crown had reasonable confidence in him as its representative with authority to bind the Crown by his admission of facts. At this stage there is no assurance of either.
While I dismiss the application of the Ermineskin plaintiffs at this stage, I do not do so on the ground that it is premature. That issue was not argued before me and in argument it was assumed the Crown will name Mr. Eickmeier as its deponent to be examined in any discovery carried on by Ermineskin plaintiffs. Mr. Eickmeier’s role in a similar capacity in the examination for discovery as the deponent of the Crown for questions asked by Samson plaintiffs in a related action has already provided a basis for Ermineskin plaintiffs to judge whether he is an informed person, a requirement of any nominee of the Crown under subsection (3) of Rule 456. The essence of the plaintiffs’ case in this motion is that Mr. Eickmeier is not as well informed as Mr. Moore. I do not believe that provides a ground for this Court’s intervention under subsection 465(4) of the Rules. If at a later stage the plaintiffs’ experience with Mr. Eickmeier leads to a more negative assessment and that he is indeed uninformed, the plaintiffs would not be barred from advancing another motion inviting the Court to order that someone other than the person nominated by the Crown, who is prepared to serve and whose experience or responsibility qualify service to be the deponent of the Crown in examination for discovery.
For the reasons set out, an order goes dismissing this application of the plaintiffs.