T-2652-85
Roy Anthony Roberts, C. Aubrey Roberts and
John Henderson, suing on their own behalf and on
behalf of all other members of the Wewayakum
Indian Band (also known as the Campbell River
Indian Band) (Plaintiffs)
v.
Her Majesty the Queen and Ralph Dick, Daniel
Billy, Elmer Dick, Stephen Assu, and James D.
Wilson sued on their own behalf and on behalf of
all other members of the Wewayakai Indian Band
(also known as the Cape Mudge Indian Band)
(Defendants)
INDEXED AS: WEWAYAKUM INDIAN BAND V. WEWAYAKAI
INDIAN BAND (T.D.)
Trial Division, Addy D.J.—Vancouver, January
22; Ottawa, March 6, 1991.
Native peoples — Lands — Plaintiffs suing on own behalf
and on behalf of past, present and future Band members —
Action turning on which of two bands entitled to possession of
reserve — Motion to strike paragraph in statement of defence
denying representative authority of individual plaintiffs —
Indian bands having special status, apart from Indian Act, to
institute, prosecute and defend action derived from existence
as separate society — Plaintiffs suing in band's name must
establish authority to sue in Band's name through traditions,
customs and government of band.
Practice — Discovery — Examination for discovery —
Action between Indian bands over possession of reserve —
Interrogatories based on Rules prior to 1990 amendment not
more restrictive than oral examinations for discovery — Trend
towards broadening fair and full disclosure — Past events
fully discoverable, if simple facts — Opinion or conclusion
drawn from special knowledge or analysis of facts not subject-
matter of discoveries — Interrogatories must be answered by
party — Improper to hire non-Band member historian to
answer interrogatories — As party may be prevented from
adopting contradictory position in same action, plaintiffs
ordered to provide details on matters beyond living memory
similar to questions they asked of defendants — Time and
expenditure in answering balanced against amount of money
or importance of non-monetary issues, usefulness answer
might have in determining basic issues — As aboriginal title
essential to disposition of case, questions about extent of
occupation of Reserve proper.
Practice — Parties — Standing — As deceased and unborn
persons unable to sue or be sued, cannot be part of class action
— Reference to past or future members of Indian Band in
pleadings and as parties in style of cause improper — Indian
bands having special status, apart from Indian Act, to sue and
be sued — Individual plaintiffs establish authorization — Not
class action.
These were pre-trial motions (1) by the plaintiffs, under Rule
419, to strike out the paragraph of the amended statement of
defence denying the authority of the individual plaintiffs to
represent all other, including past, present and future, members
of the plaintiff Band, and (2) by the defendants to compel the
plaintiff Band to answer several questions in interrogatories.
The plaintiffs were suing on their own behalf and on behalf of
all past, present and future members of the Band for right of
possession and enjoyment of a Reserve.
(1) The plaintiffs argued that the impugned paragraph did
not disclose a valid ground of defence because the Chief and
Council members have a legal right to bring a class action in
the name of the Band members, and as such the question of
authorization was irrelevant as any member of the class who
objects may request to be added as party defendant.
(2) The plaintiffs objected that questions pertaining to the
Band's occupation of the Reserve were irrelevant as the Band
relied upon the McKenna McBride Commission of 1912 report
and on Orders in Council of the province of British Columbia
and of Canada. They submitted that questions of an historical
nature were not the proper subject-matter of discovery, and
could only be answered through expert evidence filed and
subsequently provided at trial. Finally, they argued that only an
expert historian was legally capable of testifying as to facts
which are beyond living memory.
The issues were whether authorization must exist for a chief
and councillors to sue in the band's name, and the propriety of
questions relating to, inter alia, aboriginal title.
Held, plaintiffs' motion should be dismissed; defendants'
motion should be allowed in part.
A deceased or an unborn person cannot sue or be sued
because he does not exist and neither may be part of a class of
plaintiffs. The statement of claim and amended statement of
defence were amended ex proprio motu by deleting any refer-
ence to the institution of the action on behalf of past or future
members of the plaintiff Band. The practice of referring to past
and future members of an Indian Band as parties in the style of
cause is improper and should be terminated.
(1) There was no evidence that the impugned paragraph of
the amended statement of defence was scandalous, frivolous or
vexatious or that it could prejudice or delay a fair trial or
otherwise constituted an abuse of process under Rule
419(1)(c), (d), or (J). As to whether it constituted a valid
defence under Rule 419(1)(a), Indian bands do possess a
special status enabling them to institute, prosecute and defend
a court action. Those claiming to sue in the name of a Band
must be prepared to establish their authority to do so. Such
authorization is not subject to any special rules, laws or proce
dures other than those prescribed by the traditions, customs
and government of the band. This special legal status is not
dependent upon the Indian Act but is derived from their
existence as a separate society and from common fundamental
and special tribal customs, laws, privileges, rights and obliga
tions akin to those incumbent upon the citizens of a state.
Indian bands can be sued and become the subject of legal
pronouncement. The rights of Indian bands, tribes or nations to
enter into treaties and contracts and to acquire certain rights
and renounce others have been recognized since the Indians'
first contact with Europeans. Indians themselves have recog
nized these powers as existing in Chiefs and Councils. If bands
were allowed to sue by ordinary class actions, without the
requirement of proper authorization of the band, claims which
might be denied could be subject to revival and chaos would
result. Common sense dictates that Indian bands should possess
the same rights to sue as corporations and be subject to
resulting obligations.
(2) The plaintiff Band cannot object to interrogatories con
cerning the extent of its occupation of the disputed Reserve.
The Federal Court of Appeal has held that the issue of
aboriginal title was essential to the disposition of this case.
Upon appeal, the Supreme Court of Canada did not disagree,
but indicated that the Indian Act was also relevant. Aboriginal
title is a legal right derived from the Indians' historic occupa
tion and possession of their lands, which can be continued
either through the original nation or tribe or through a succes
sor to the group which first occupied the lands and established
aboriginal title. The statement of claim alleges that the Indians
at Campbell River were the ancestors of the present Band
members and that plaintiff band has, before and since 1888,
occupied and enjoyed the use and benefit of Reserve No. 11,
but since 1888, has been wrongfully denied occupation, use and
benefit of Reserve No. 12.
Interrogatories are not more restrictive than oral examina
tions for discovery, based on Federal Court Rules 466.1(1) and
465(15) prior to their amendment in 1990. There is neither
practical nor logical reason why an interrogatory should be
more restrictive. The questioner is already handicapped because
he does not know what the answer to the previous questions will
be before inserting subsequent questions in the interrogatory,
and the person answering has ample time to consider the
question and consult, if necessary, before answering. Although
there are differences between jurisdictions as to the subject-
matter of discovery before trial, there has been a general
extension of the rules of practice so that the prevailing trend
favours broadening fair and full disclosure to enable the party
to advance his own case or to damage the case of his adversary.
Past events, in so far as they constitute simple or basic facts,
are fully discoverable. To exclude documents or statements
containing reference to facts beyond living memory from dis
covery would be unfair to Indians who relied on oral traditions
long after other cultures began recording in writing their
history. The expression of a simple self-evident conclusion
which would be reached as a matter of course by any ordinary
person may form the subject-matter of a question on discovery
but an opinion resulting from an analysis of certain specified
facts, which requires special expertise or knowledge would not.
Interrogatories are required to be answered by a party to the
action. The hiring of an historian who was neither a member of
the plaintiff Band, nor exercising authority within it, to answer
the interrogatories was improper. It contravened the Federal
Court Rules on the discovery process and the generally accept
ed practice adopted by common law courts for the examination
of parties. If only experts were allowed to answer questions
referring to historical facts, pre-trial discovery would be pre
cluded and a claim based on aboriginal title or matters beyond
living memory would be limited to production of documents.
In deciding which questions should be answered, the fact that
many of the questions to which the plaintiffs have objected
were almost identical to ones which they had asked the defend
ants and which they were seeking to compel the defendants to
answer, had to be taken into account. A party may be prevent
ed from adopting a completely contradictory position in the
same action. Hence, some questions which would otherwise
have been disallowed were allowed because the same details
beyond living memory were requested by the plaintiffs. The
probable amount of time, effort, research, work and expendi
ture involved in answering was weighed against the amount of
money or the importance of non-monetary issues involved,
degree of relevance, and probable importance, value or useful
ness which the answer might have in determining the basic
issues of the litigation. Where a question is relevant and not
otherwise objectionable, the party refusing to answer must
furnish some evidence to explain the difficulties and to establish
what reasonable, though unsuccessful, efforts were made to
obtain an answer. Questions involving conclusions of law as
well as opinion evidence are not properly the subject-matter of
the party and party discovery process.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 419, 466.1(1),
(5),(8), 465(15), 466.2 (as enacted by SOR/90-846, s.
16).
Indian Act, R.S.C., 1985, c. I-5.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Kennedy v. Dodson, [1895] 1 Ch. 334 (C.A.).
CONSIDERED:
Roberts v. Canada, [1989] 1 S.C.R. 322; [1989] 3
W.W.R. 117; (1989), 35 B.C.L.R. (2d) 1; 25 F.T.R. 161;
92 N.R. 241; affg Roberts v. Canada, [1987] 2 F.C. 535;
(1987), 36 D.L.R. (4th) 552; [1987] 2 C.N.L.R. 145; 73
N.R. 234; Martin v. B.C. (Govt.) (1986), 3 B.C.L.R. (2d)
60; [1986] 3 C.N.L.R. 84 (S.C.); Calder et al. v. Attor-
ney-General of British Columbia, [1973] S.C.R. 313;
(1973), 34 D.L.R. (3d) 145; [1973] 4 W.W.R. 1; Read
ing & Bates Construction Co. v. Baker Energy Resources
Co., Baker Marine Co. and Gaz Inter- Cité Quebec Inc.
(1988), 25 F.T.R. 226 (F.C.T.D.); Boxer v. Reesor
(1983), 43 B.C.L.R. 352; 35 C.P.C. 68 (S.C.); Everest &
Jennings Canadian Ltd. v. Invacare Corporation, [1984]
1 F.C. 856; (1984), 79 C.P.R. (2d) 138; 55 N.R. 73
(C.A.).
REFERRED TO:
Delgamuukw et al. v. The Queen, Smithers Registry, No.
0843, B.C.S.C., judgment dated 5 / 8 /87, not reported;
Oregon Jack Creek Indian Band v. Canadian National
Railway Co., sub nom. Pasco et al. v. Canadian National
Railway Co. et al. (1989), 56 D.L.R. (4th) 404; 34
B.C.L.R. (2d) 344 (B.C.C.A.); Uukw v. B.C. (Govt.)
(1986), 7 B.C.L.R. (2d) 325 (S.C.); Enquist v. Hass
(1979), 15 B.C.L.R. 139; 10 R.P.R. 23 (S.C.); British
Columbia Lightweight Aggregates Ltd. v. Canada
Cement LaFarge Ltd. et al. (1977), 80 D.L.R. (3d) 365;
4 B.C.L.R. 259 (B.C.C.A.).
COUNSEL:
Lewis F. Harvey and Maria A. Morellato for
plaintiffs.
John D. McAlpine, Q.C. and C. Allan Dono-
van for defendants Ralph Dick, Daniel Billy,
Elmer Dick, Stephen Assu, and James D.
Wilson sued on their own behalf and on
behalf of all other members of the Wewaya-
kai Indian Band (also known as the Cape
Mudge Indian Band).
SOLICITORS:
Davis and Company, Vancouver and Blake,
Cassels & Graydon, Vancouver, for plaintiffs.
McAlpine & Hordo, Vancouver, for defend
ants Ralph Dick, Daniel Billy, Elmer Dick,
Stephen Assu, and James D. Wilson sued on
their own behalf and on behalf of all other
members of the Wewayakai Indian Band
(also known as the Cape Mudge Indian
Band).
The following are the reasons for order ren
dered in English by
ADDY D.J.: Two pre-trial procedural motions
have been brought before me. The-action turns on
which of the two Indian Bands mentioned in the
style of cause is entitled to possession and enjoy
ment of a reserve known as Reserve No. 12 situat
ed on the right bank of the Quinsam River.
The defendant members of the Cape Mudge
Indian Band have applied to the Court pursuant to
Rule 466.1(1) and (8) [Federal Court Rules,
C.R.C., c. 663] for an order requiring the plaintiff
Indian Band to provide answers to several ques
tions in interrogatories addressed to them and
which they have refused to answer and also for an
order requiring more responsive answers to other
questions. The plaintiff members of the Campbell
River Band, on the other hand, by another motion,
pursuant to Rule 419(1)(a),(c),(d), and (f) have
applied for an order that paragraph 2 of the
amended statement of defence be struck out on the
grounds that it discloses no reasonable defence and
that it is scandalous, frivolous and vexatious and
may prejudice, embarrass or delay the fair trial of
the action and, finally, that it otherwise constitutes
an abuse of process.
Both motions were heard together. The defend
ant Crown was not a party to either one nor was it
represented at the hearing.
It would be more convenient to deal with the
last-mentioned motion (i.e. that of the plaintiffs)
as some of the findings will have a bearing on the
other motion brought by the defendant Indian
Band. Rule 419(1)(a),(c),(d) and (f) reads as
follows:
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out, with
or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as
the case may be,
(c) it is scandalous, frivolous or vexatious,
(d) it may prejudice, embarrass or delay the fair trial of the
action,
(/) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment
to be entered accordingly.
Paragraph 2 of the statement of defence which
the plaintiffs are requesting to be struck out reads
as follows:
2. These Defendants deny the authority of the Plaintiffs Roy
Anthony Roberts, C. Aubrey Roberts and John Henderson to
represent all or any other members of the Wewaikum Indian
Band, also known as the Campbell River Band (the "Wewai-
kum Band"), including past, present and future members of
that Band.
This pleading is in answer to paragraph 3 of the
statement of claim which reads as follows:
3. The named Plaintiffs are suing on their own behalf and on
behalf of all other members of the Plaintiff Band, including all
past, present and future members.
Before dealing with the merits of the plaintiffs'
motion, however, it is of some importance to note
in paragraph 3 of their amended statement of
claim that they purport to be suing not only on
their own behalf but also on behalf of all past and
future members of the Band.
It is trite law that neither a deceased nor an
unborn person can as such sue or be sued. They do
not exist. It is true that the Band as it is presently
constituted depends both for its existence and for
the rights to which it is presently entitled, upon the
fact that members now deceased did at one time
constitute the Band and by their actions and their
very existence, did ensure its continuity and the
preservation of the rights and privileges presently
enjoyed by its members. But this state of affairs
now exists and cannot be changed by any action
for or against the deceased members. It is equally
true that future members will benefit from what
ever rights and privileges presently exist or are
acquired by the Band, but this will result solely
from the future membership in the Band and not
from the fact that any action is now being institut
ed on behalf of them as individuals.
Counsel for the plaintiffs maintains that the
Court must characterize the proceeding as a class
action. Since an action can neither be instituted
nor defended by any person who is not living, no
such person can be made part of a class of plain
tiffs. Paragraph 3 of the amended statement of
claim must therefore be further amended by delet
ing any reference to the fact that the action is
instituted on behalf of past or future members of
the plaintiff Band. The order will be made ex
proprio motu by the Court, because the pleading
as presently worded is fundamentally bad at law
and should not be allowed to stand. The same
remarks and the same order will apply to para
graph 2 of the statement of defence whereby the
defendants in effect purport to require the plain
tiffs to establish that they are authorized to act on
behalf of past and future members.
Several cases have referred to past and future
members of an Indian band as parties in the style
of cause. This practice for the same reason is quite
improper. It apparently originated some time ago
where a band claimed the right to so style its
action as a plaintiff and the Crown as defendant
having agreed, the Court, because of the consent,
allowed the designation to stand. It is time that
this erroneous practice be terminated.
Regarding the merits of the plaintiffs' motion,
there is no evidence whatsoever to substantiate the
allegations that the paragraph is either scandalous,
frivolous or vexatious or that it may prejudice or
delay a fair trial or otherwise constitutes an abuse
of process. The application in so far as it relates to
paragraphs (c),(d) and (f) of Rule 419(1) must
therefore fail.
In considering whether paragraph 2 of the state
ment of defence constitutes a valid defence at law,
it is obvious that no evidence is required and
indeed no matter other than the text of the plead
ing itself is to be considered when applying Rule
419(1)(a).
The plaintiffs argue that the Chief and Council
members have, at law, the right to bring a class or
representative action in the name of the members
of the Band, that the question whether they have
obtained authorization to do so and to prosecute
the action is totally immaterial and irrelevant as it
is an ordinary class action and as any member of
the class who objects may request to be added as a
party defendant. They therefore claim that para
graph 2 of the statement of defence discloses no
valid ground of defence and should be struck out.
It has indeed been consistently held by our
courts that the Chief with members of Council
may institute an action in the name of a Band, but
the question regarding whether authorization to do
so must exist has never been directly raised in any
of the reported cases of which I am aware. On the
other hand, the question whether a Band Chief
and Council had proper authority to renounce any
rights on behalf of the Band or to enter into an
obligation binding upon it has often been put in
issue and been regarded as very relevant.
In Martin v. B.C. (Govt.) (1986), 3 B.C.L.R.
(2d) 60 (S.C.), McEachern C.J.S.C., as he then
was, stated that the question was still open wheth
er Indian bands were judicial persons capable of
suing or being sued and therefore recommended in
that case that the plaintiff members of Council
and their Chief bring their action in a representa
tive capacity.
It appears to me that the members of an Indian
band as such and quite apart from any provisions
of the. Indian Act [R.S.C., 1985, c. I-5], must
necessarily enjoy a special legal status derived
from their existence as a separate society and from
common fundamental and special tribal customs,
laws, privileges, rights and obligations, akin, to
some extent at least, to the rights and privileges
enjoyed by and to the obligations and duties
incumbent upon the citizens of a state. Its mem
bers are not merely individuals living in a close
vicinity to each other, who might happen to enjoy
a particular common interest in the favourable
outcome of a court decision. Indian bands as such
can themselves be sued and become the subject of
a legal pronouncement. The case at bar well illus
trates such a situation as the Campbell River
Band, as plaintiff, is suing the Cape Mudge Band
as well as Her Majesty the Queen. The plaintiff
Band is claiming a right of occupancy and use of
the Reserve not only as individual members but as
a right to be enjoyed by the Band itself at present
and in the future, to the exclusion of the defendant
Band.
One need not possess any special knowledge or
expertise nor be guided by any particular evidence
to be fully aware of the fact that from the time of
the first contacts between Indians and Europeans,
the latter have recognized the rights of Indian
social or racial organizations, be they bands, tribes
or nations, to enter into treaties, contracts and
obligations, acquire certain rights and renounce
and abandon other previously enjoyed ones. Ele
mentary Canadian history, as taught in third
grade grammar school, mentions these facts. The
Indians among themselves from time immemorial
have also recognized these powers as existing in
Band Chiefs and Councils and have acted
accordingly.
Having regard to the very great probability of
serious and fundamental constitutional upheavals
and resulting changes occurring in Canada in the
very near future and of conflicting claims between
the federal authorities, the various provinces and
the several bands, tribes and nations of aboriginal
peoples, many of whom will be advancing land
claims and claims regarding some form of sover
eignty or of limited or partial sovereignty or
autonomy, it now becomes more important than
ever for our courts to determine whether, altogeth
er apart from any provisions of the Indian Act,
traditional and well-established tribal organiza
tions possess as such, the legal capacity to sue or
be sued. To allow them only to claim by means of
ordinary class actions, without the requirement of
proper authorization of the band concerned, would
create utter chaos and render claims which might
be denied, subject to being revived and reasserted
at a later date.
There seems to me to be no logical reason why
Indian bands as such should not possess the same
rights to sue as corporations for instance, and,
similarly, to be subject to various resulting obliga
tions. Although no general statutory enactment so
provides, common sense seems to dictate it. I
therefore find that they do possess a special status
enabling them to institute, prosecute and defend a
court action. It follows that those claiming to sue
in the name of a band must be prepared to estab
lish their authority to do so when and if that
authority is challenged. Any such authorization of
course need not be subject to any special rules,
laws or procedures other than those prescribed by
the traditions, customs and government of the
particular band.
For the above reasons, paragraph 2 of the state
ment of defence will stand and the motion will be
dismissed.
Dealing now with the motion brought by the
defendants to order certain questions put in an
interrogatory to be answered and others to be
more fully answered, counsel for the plaintiff Band
argued that any questions pertaining to the occu
pation by the plaintiff Band either before or after
1888 are irrelevant as the Band is now relying
entirely on a report known as the McKenna
McBride Commission of 1912 and on Orders in
Council of the province of British Columbia and of
Canada to found their action.
A question was originally raised in the present
case regarding the Federal Court's jurisdiction to
try the matter. On appeal of that issue before the
Federal Court of Appeal (see [1987] 2 F.C. 535],
Hugessen J. with whom Urie J. concurred, held
that the question as to whether aboriginal titles
resided in either the plaintiff or the defendant was
essential to the disposition of the case. When the
appeal reached the Supreme Court of Canada
(refer [1989] 1 S.C.R. 322) Wilson J., in deliver
ing judgment on behalf of that Court, affirmed the
decision of the Court of Appeal to the effect that
the Federal Court Trial Division did have jurisdic
tion but, more importantly, regarding the present
issue, specifically stated that she did not disagree
with Hugessen J.'s conclusions regarding aborigi
nal rights but felt that the Indian Act, as well as
aboriginal title, was relevant. Before the Supreme
Court of Canada, counsel for the plaintiff Band
also is reported as having conceded that aboriginal
title would be relevant to the determination of the
right of occupancy of the Reserve.
In Calder et al. v. Attorney-General of British
Columbia, [1973] S.C.R. 313, the Supreme Court
of Canada recognized aboriginal title as a legal
right derived from the Indians' historic occupation
and possession of their lands. Although aboriginal
title pre-dated colonization by the British, the title
can be continued either through the original nation
or tribe or through a successor to the group which
first occupied the lands and established aboriginal
title.
Following the decision in the present case
regarding jurisdiction, an amended statement of
claim was filed. We find the following allegations
of fact at paragraphs 9 and 12 of that document:
9. In 1888 and for many years before then the Indians at
Campbell River were the ancestors of the present members of
the Plaintiff Band.
12. Both before 1888, and continuing since then to the present
time, the Plaintiff Band has occupied and enjoyed the use and
benefit of Reserve No. 11 but, since 1888, the Defendant, Her
Majesty the Queen, has wrongfully denied to them the occupa
tion, use and benefit of Reserve No. 12 ....
In these circumstances, the plaintiff Band
cannot be heard to object to interrogatories con
cerning the extent of its occupation of the disputed
Reserve both before and after 1888.
Counsel for the plaintiff Band also argued most
forcibly that interrogatories are much more re
strictive than oral examinations for discovery in
the sense that certain areas of enquiry which
might be open to a party questioning on an oral
discovery are not subject to enquiry by that same
party in a written interrogatory. In addition to the
jurisprudence to which I shall refer, he relied in
support of his argument, on Federal Court Rule
466.1(1) for interrogatories and on Rule 465(15)
for oral discovery. It should be noted here that
both these rules and other related rules concerning
discovery and pre-trial procedures regarding the
disclosure of evidence, have recently been substan
tially amended by Amending Order No. 13. The
term "interrogatories" has now been removed and
replaced by the term "written examinations for
discovery". However, new Rule 466.2 [as enacted
by SOR/90-846, s. 16] referring to the transitional
period provides that "[a]11 examinations for dis
covery that are not yet concluded by December 7,
1990, shall be conducted in accordance with Rules
455 to 465.5 and Rule 466.1 as they read before
that date". This transitional Rule clearly applies to
the present case and my decision must therefore
rest on Rules 466.1(1) and 465(15) as if the
Amending Order had not been enacted. Wherever
reference is hereinafter made in these reasons to
those Rules the old Rule shall apply and any
comments regarding interrogatories and oral dis-
coveries shall be considered in conformity with
that situation. Rule 466.1(1)(a) read as follows:
Rule 466.1 (I) A party to any proceeding in the Court may
apply to the Court for an order
(a) giving him leave to serve on any other party interrogator
ries relating to any matter of fact in question between those
two parties.....
Rule 465(15) provided that:
Rule 465... .
(15) Upon examination for discovery otherwise than under
paragraph (5), the individual being questioned shall answer any
question as to any fact within the knowledge or means of
knowledge of the party being examined for discovery that may
prove or tend to prove or disprove or tend to disprove any
unadmitted allegation of fact in any pleading filed by the party
being examined for discovery or the examining party.
The expression "to any matter of fact in ques
tion between those two parties" is substantially as
broad in my view as a reference to a fact "that
may prove or tend to prove or disprove or tend to
disprove any unadmitted allegation of fact in any
pleading filed by the party being examined for
discovery or the examining party". They are, in
any event, sufficiently equivalent to convince me to
reject the argument that, on the basis of the
wording of the Rules as they existed before
Amending Order No. 13, interrogatories had to be
considered as more restrictive in scope than oral
discoveries.
With regard to the general jurisprudence on
that subject I have considered the several cases
referred to by counsel. These include, among
others, the old English case of Kennedy v. Dodson,
[1895] 1 Ch. 334 (C.A.); British Columbia Light
weight Aggregates Ltd. v. Canada Cement
LaFarge Ltd. et al. (1977), 80 D.L.R. (3d) 365
(B.C.C.A.); Delgamuukw et al. v. The Queen, (not
reported) Smithers Registry, No. 0843, August 5,
1987 (B.C.S.C); Oregon Jack Creek Indian Band
v. Canadian National Railway Co. sub nom.
Pasco et al. v. Canadian National Railway Co. et
al. (1989), 56 D.L.R. (4th) 404 (B.C.C.A.); Uukw
v. B.C. (Govt.) (1986), 7 B.C.L.R. (2d) 325 (S.C.).
With regard to actions in the Federal Court I
cannot adopt the very narrow scope of interrogato-
ries laid down in the Kennedy case which was
decided about one hundred years ago when discov
eries were considerably much more limited and
restricted, even though this case was referred to
with approval in B.C. Lightweight Aggregates v.
Canada Cement LaFarge, (supra) and other cases.
I cannot adopt either the principle that although a
question may be put to a witness on an oral
examination for discovery the same question may
not be permitted in a written interrogatory. I can
find no practical nor logical reason why an inter
rogatory should be more restrictive. The question
er is already considerably handicapped and
restricted for the simple reason that he does not
enjoy the benefit of knowing what the answer will
be to the previous questions before inserting subse
quent questions in the interrogatory. By the same
token a person answering an interrogatory has
ample time and opportunity to carefully consider
the question and to consult if necessary before
answering. Furthermore, in oral discoveries, where
the person being examined is not aware of or is not
sure of the answer at the time, a general practice
has developed for counsel to normally agree that
the answer be reserved, to be subsequently
answered in writing by the solicitor of the party
after due enquiries have been made and the infor
mation obtained.
It is obvious, on examining the reported deci
sions of Canadian provincial courts that substan
tial differences do exist between certain provinces
regarding what should or should not be the
subject-matter of discovery before trial, regarding
the limits to be applied thereto and the methods in
which discoveries are to be conducted. Some juris-
dictions for instance permit cross-examination
while others absolutely forbid it. As distinguished
from general principles of substantive law the
accepted rules in each jurisdiction regarding pre-
trial procedures such as oral or written discoveries
depend not only on the wording of the applicable
rules but on practice locally developed and the
courts' interpretation of that practice. This is an
understandable result of the application of the
principle that from a practical standpoint the
courts are generally regarded to a large extent as
masters of their own procedure as opposed to any
substantive rule of law which they must apply. In
any event in recent years there has been a general
extension of the rules of practice regarding pre-tri
al discoveries. In Reading & Bates Construction
Co. v. Baker Energy Resources Co., Baker Marine
Co. and Gaz Inter -Cité Quebec Inc. (1988), 25
F.T.R. 226 (F.C.T.D.), McNair J. of this Court
stated at page 229:
The purpose of discovery, whether oral or by production of
documents, is to obtain admissions to facilitate proof of the
matters in issue between the parties. The prevailing trend today
favours broadening the avenues of fair and full disclosure to
enable the party to advance his own case or to damage the case
of his adversary. Discovery can serve to bring the issues more
clearly into focus, thus avoiding unnecessary proof and addi
tional costs at trial. Discovery can also provide a very useful
tool for purposes of cross-examination.
This statement has been favourably quoted by
other members of this Court.
Although it seems that in British Columbia
several cases appear to opt for a much more
restrictive attitude regarding the use of discovery,
McEachern C.J.S.C. in Boxer v. Reesor (1983),
43 B.C.L.R. 352 (S.C.) did nevertheless state at
page 359:
It seems to me that the clear right of the plaintiffs to have
access to documents which may fairly lead them to a train of
inquiry which may directly or indirectly advance their case or
damage the defendant's case particularly on the crucial ques
tion of one party's version of the agreement being more prob
ably correct than the other, entitles the plaintiffs to succeed on
some parts of this application.
This test of relevancy for the purpose of discov
ery was specifically approved and applied by the
Federal Court of Appeal in the Everest & Jen-
nings Canadian Ltd. v. Invacare Corporation,
[ 1984] 1 F.C. 856 (C.A.).
Counsel for the plaintiffs further argued that, as
many of the questions were of an historical nature,
they need not be answered on discovery and
answers must only be furnished by an expert
through expert evidence filed and subsequently
provided at trial in the usual manner in accordance
with the rules.
His argument was again based on the Martin
case, supra, and several other decisions which
followed it. They state that history is not the
proper subject for interrogatories or oral discover
ies. I can agree with that statement only if the
word "history" is taken as meaning opinion or
historical conclusions drawn from detailed study or
examination of past events. The past events them
selves, however, in so far as they may constitute
simple or basic facts, are fully discoverable as
such. Any type of record or document or writing
purporting to state a fact, as distinguished from
the expression of broad conclusions or opinions, is
not subject to exclusion from pre-trial discovery
merely because the fact is historical in the sense
that it originates beyond living memory. The same
test applies to oral statements of fact originating
beyond living memory and subsequently related to
others. In the latter case of course, the vagaries of
memory and a natural tendency to recall matters
in a favourable light may normally greatly reduce
the probative value of any such statement. Due to
the tenuous circumstances surrounding it, the oral
transmission might be such that the alleged state
ment would not only be considered as of little
weight but because of remoteness, be held to be
inadmissible. This does not however mean that it
would automatically be excluded from being the
subject of an interrogatory on the sole grounds
that it is an oral statement made beyond living
memory. Besides offending against the general
principle which I have mentioned, to do so would
be particularly unfair to the Indian peoples. It is
well known that for centuries after the European,
Asiatic and Mid-Eastern peoples had been record
ing in writing various events and occurrences, now
forming part of their history, North American
Indians and other aboriginal peoples were relying
entirely on oral traditions and the custom of pass
ing information from father to son and from gen
eration to generation and of frequently incorporat
ing the recording of important occurrences in
various tribal customs and ceremonies. There may
of course also be cases where what purports to be
an oral statement of fact, was subsequently
reduced to writing. The same rules should apply.
Many answers, of course, although admissible on
discovery may not be held to be admissible at trial.
Although often referred to as an opinion, the
mere expression of a simple self-evident conclu
sion, which in the light of certain facts would
necessarily be reached as a matter of course by
any ordinary person, is clearly to be distinguished
from an opinion resulting from an analysis of
certain specified facts, which require special exper
tise or knowledge, on the part of the person
expressing it and is also to be distinguished from
an involved or remote conclusion requiring special
or detailed consideration or analysis of certain
facts and with which every ordinary person would
not necessarily agree. The first of the above three
examples might well in certain cases properly form
the subject-matter of a question on discovery or in
an interrogatory while the other two would not.
Conclusions from facts, which are not simple
uncontestable every-day conclusions, are properly
the subject-matter of argument and not of evi
dence and very special rules govern expert evi
dence. However, the basic facts on which any of
these are founded are indeed fully subject to pre-
trial discovery. No opinion evidence, no matter
how learned the expert might be, is of any proba-
tive value unless, in so far as the issue to be
decided is concerned, it is supported by basic facts
which are ultimately accepted as such by the
Court.
The essence of what is being advanced by the
plaintiff is that only an expert historian is legally
capable of testifying as to facts which are beyond
living memory. The historian is therefore to be
considered as the sole fact finder as well as the
person whose opinion is being sought. Presumably
the opinion can also be based on other facts pro
viding they are also found by another historian.
This is a strange theory indeed which can be
explained only by a narrow and restrictive inter
pretation of certain pronouncements of some Brit-
ish Columbia jurists. This also leads to the unac
ceptable conclusion that where a party's claim is
based on aboriginal title or is based on matters
which are beyond living memory, that party would
only be subject to production of documents and
would not be subject to and could not be examined
for discovery on the very facts which are truly
relevant to the claim, since the party will obviously
not be an expert historian and answers to discovery
are required to be given by a party and not by a
complete stranger to the action.
For the above reasons, I cannot accept the bald
assertion of counsel for the plaintiffs to the effect
that where questions refer to historical facts, in the
sense that they are beyond living memory, they
can only be answered by experts and therefore
cannot form the subject-matter of pre-trial discov
ery questions whether put viva voce or by means of
interrogatories.
As distinguished from an order granting the
right of pre-trial examination of a witness, inter
rogatories, as in the case of questions put in an
oral discovery, are required to be answered by a
party to the action and not by a stranger. Rule
466.1(1)(b) states:
Rule 466.1 (1) A party to any proceeding in the Court may
apply to the Court for an order
(b) requiring that other party to answer the interrogatories
on affidavit within such period as may be specified in the
order. [Emphasis added.]
Similarly, Rule 466.1(5) states:
Rule 466.1 ... .
(5) An affidavit answering interrogatories as required under
this Rule may, subject to paragraph (6), be made by an
appropriate responsible officer of a corporation or the Crown or
by a responsible person who has the management of the
appropriate part of the party's affairs. [Emphasis added.]
The plaintiffs engaged the services of an histori
an who obviously is not a member of the plaintiff
Band nor a person exercising authority within it, to
answer the interrogatories. The defendant Band
has apparently not objected to that witness
answering the interrogatories on behalf of the
plaintiffs. This whole method of proceeding is
quite improper: it is certainly in contravention of
the Federal Court Rules regarding discovery pro
cess and, to the best of my knowledge, contravenes
the generally accepted practice adopted by
common law courts for the examination of parties.
The situation undoubtedly arose out of certain
pronouncements of British Columbia courts
regarding the principle that only an historian can
testify as to what took place or what existed
beyond living memory. I have already indicated
my disagreement with that principle.
In the order rendered by Mr. Justice Cullen of
this Court on September 24, 1990, authorizing
both parties to proceed by way of written inter
rogatories, there is no mention whatsoever that the
general rule regarding the parties themselves to
answer interrogatories was to be waived. On the
contrary, the order states in part as follows: "The
plaintiffs are required to respond to these inter
rogatories ..." and further on that "the defendant
Cape Mudge Indian Band is required to respond to
these interrogatories ... ".
I do not intend to make any order regarding this
matter as it was never mentioned at the hearing. I
leave it to the parties by way of special application
or otherwise to rectify this situation should they
deem it advisable.
The plaintiffs are objecting to answering some
forty-three questions contained in interrogatories
produced by the defendants. Of this number,
thirty-eight are either identical to those put by the
plaintiffs in their own interrogatories or are slight
ly different as to form but really equivalent as to
substance.
In addition, the plaintiffs on September 19,
1990, following a similar application by the
defendant Cape Mudge Indian Band on Septem-
ber 7, 1990, applied for a court order requiring the
defendant Band to answer these questions. This
constitutes a very strange state of affairs and it is
difficult to now accept arguments on behalf of the
plaintiffs to the effect that the defendant Band's
interrogatories are improper. A party should not,
as counsel for the defendant Band has put it, be
permitted "to blow hot and then cold". There
exists jurisprudence to the effect that a party may
be prevented from adopting a completely contra
dictory position in the same action. See for
instance Enquist v. Hass (1979), 15 B.C.L.R. 139
(S.C.). It is not my intention to fully apply this
principle, although in a few instances, some of the
questions in the interrogatories which would nor
mally have been disallowed on the ground that
they seek too much detail on matters beyond living
memory, may nevertheless be asked because the
same or very similar details were requested by the
plaintiffs to be furnished by the defendant Band. I
fully anticipate that understandably, in several
cases, the plaintiffs will really not be able to
furnish the details requested because of a lack of
knowledge of same. In those instances, the defend
ant Band will be entitled to be so informed.
In deciding whether a question can properly
form part of the discovery process, the Court must
at times consider such matters as the probable
amount of time, effort, research, work and expen
diture involved in attempting to arrive at an
answer and weighing them against such matters as
the amount of money or the importance of non-
monetary issues involved in a litigation, the degree
of relevancy, the probable importance, value or
usefulness which the answer might have in deter
mining the basic issues of the litigation. However,
where a question is relevant and not otherwise
objectionable, it is not sufficient for the party
refusing to answer to merely state in argument
that obtaining an answer would involve unwarrant
ed, unjustifiable or exceptionally onerous difficul
ties. Some evidence must be furnished or referred
to in order to explain the difficulties and, where
applicable, to establish what reasonable though
eventually unsuccessful efforts were made to
obtain an answer.
Questions involving conclusions of law as well as
opinion evidence are not properly the subject-
matter of the party and party discovery process.
Thus enquiries requiring the definition or sub
stance of property rights and disputes and the legal
issues pertaining to them are not to be answered
where they involve in any way a question of law.
The issue of whether any particular question
should be answered by the plaintiffs will be decid
ed in the light of the above-mentioned principles,
findings and comments. Many of the answers may
well require, as is usually the case, the examina
tion of documents. The plaintiffs, however, in such
cases, will only be required to refer to documents
or to other articles or objects containing inscrip
tions or other information, which are within their
possession or control.
Among the interrogatory questions to which
objection was taken by the plaintiffs, they shall be
obliged to answer the following; Q-1 to Q-3;
Q-4(a) and (b) (to be answered in so far as
Campbell River Band members are concerned);
Q-5 (except for (d)); Q-6 to Q-8; Q-9 (a) and (b);
Q-22 to Q-24; Q-28; Q-29 except for (d); Q-31;
Q-32; Q-34 (except that plaintiffs not obliged to
disclose evidence which they will be leading);
Q-35; Q-36 (except for (e)); Q-46 to Q-49; Q-61
(except last sentence); Q-63 (a), (b), (c) and (e);
Q-79 (first part only); Q-80 (except for (f)).
Plaintiffs will be required to give a more respon
sive answer to question 38(b),(c),(d), and (e).
Although they do not admit these actions by the
defendant Band, the question asked is whether any
of the plaintiff members ever protested against
them. This should be answered. The requests to
answer further questions are denied.
Costs will be in the cause as between the two
Indian Bands.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.