Samson Indian Band v. Canada
T-2022-89 / T-1386-90 / T-1254-92
MacKay J.
3/10/94
12 pp.
Three actions seeking damages for breach of trust, fiduciary duty-Actions involving claims against Crown in relation to management of resources, royalties therefrom, other monies, on behalf of plaintiff bands-Defendants' list of documents including documents originating from solicitors or from officers of defendants to solicitors, or internal communications of Department of Indian Affairs communicating information for and from solicitors-Now claiming privilege as solicitor-client communications, confidences of Cabinet for some of those documents-Also claiming some documents concerning communications between solicitors and client relating to other Indian Bands not involved herein included by mistake-Defendants to provide amended schedule listing all documents originally claimed as privileged for which no dispute as to disclosure, including (i) those already produced; (ii) those to be certified by production of certificate as subject to privilege as confidence of Queen's Privy Council; and (iii) those claimed to be privileged based on solicitor-client privilege as documents, dominant purpose of which preparation for use in litigation-Principal issues herein concerning documents now claimed to be irrelevant to these actions, or now claimed as subject to general solicitor and client privilege-Determination of relationship between parties, and responsibilities arising in that relationship, key to resolution of actions herein-Circumstances warranting order for production of documents ordinarily protected as privileged communications between solicitor and client under legal professional privilege: (1) relevant documentary evidence generally relating to relations between parties over years virtually exclusively within possession, power, control of Crown; (2) documentary evidence concerning legal advice relating to performance of public duties on ongoing basis in accord with law, and Crown now defending performance of those duties, not quality of legal advice provided about discharge of those duties, and not with reference to whether actions in accord with advice received; (3) documents when produced subject to confidentiality order already issued under which to be used for purposes of these actions only; (4) principle of openness warranting ordering production of documents except those dealt with under Canada Evidence Act, s. 39-Production at pre-trial proceedings having no significance to authenticity, admissibility at trial where legal professional privilege for documents as rule of evidence still applicable-Federal Court Rules, C.R.C., c. 663, RR. 447 (as am. by SOR/90-846, s. 15), 448 (as am. idem)-Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39.