T-1627-82
Chief Roy Whitney, Jr., Bradford Littlelight, Tom
Runner, Bruce Starlight, Alex Crowchild, Peter
Manywounds, Jr., Gilbert Crowchild, Sidney Star
light and Gordon Crowchild on behalf of them
selves and the members of the Sarcee Band of
Indians and the said Sarcee Band of Indians
(Plaintiffs)
v.
Her Majesty the Queen in Right of Canada
(Defendant)
INDEXED AS: SARCEE BAND OF INDIANS V. CANADA (T.D.)
Trial Division, Addy J.—Vancouver, January 15;
Ottawa, February 9, 1990.
Practice — Evidence — Commission evidence — Protective
order — Defendant obtaining commission evidence from three
elderly witnesses to ensure evidence available for trial in event
dying beforehand — Evidence relating to oral negotiations 40
years ago — Each party seeking order stipulating whether and
to what extent video tape and transcript of testimony to be
divulged and used by plaintiffs — As parties entitled to be
present at all proceedings before and during trial, general
practice to disclose commission evidence prior to trial to all
parties — Necessity for commission evidence caused by plain
tiffs' delay — Plaintiffs entitled to copy of transcript and to
examine and copy video tapes — As (1 ) defence witnesses'
testimony not normally available to plaintiffs until case put in
at trial (2) defence may refrain from calling witnesses at trial
and (3) credibility at issue, commission evidence to be sealed
before filing — Plaintiffs' solicitors not to discuss content of
commission evidence with clients.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 477(2).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Smith et al v. Greey et al (1885), 11 P.R. 238; Wessels v.
Wessels (1941), 56 B.C.R. 239; [1941] 3 D.L.R. 528;
[1941] 2 W.W.R. 629 (S.C.).
COUNSEL:
G. B. Gomery for plaintiffs.
Dogan D. Akman for defendant.
SOLICITORS:
Nathanson, Schachter & Thompson, Vancou-
ver, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
ADDY J.: Commission evidence was obtained
from three witnesses in this matter. The defendant
considered that the evidence would be important
for the defence and was interested in obtaining the
commission in order to ensure that the evidence of
these witnesses would be available for trial in the
event of any one of them dying before the case
could be heard, since they were witnesses to events
which occurred approximately forty years previ
ously and were all of an advanced age.
There were two motions before me, one on
behalf of the plaintiffs and one on behalf of the
defendant, both in effect requesting an order stipu
lating whether and to what extent the video tape
and transcript of the testimony might be divulged
and used by the plaintiffs pending trial. Counsel
for the defendant is requesting in effect that none
of the evidence be divulged to any of the plaintiffs
or their witnesses. Counsel for the plaintiffs is
requesting the right to full disclosure and discus
sion of the evidence with his clients and witnesses
previous to trial. On consent, both motions, since
they dealt substantially with the same subject,
were heard together.
I am fully cognizant of the decision in the
English case of Smith et al v. Greey et al (1885),
11 P.R. 238, which ordered a full disclosure and
which was followed and adopted in British
Columbia in the decision of Wessels v. Wessels
(1941), 56 B.C.R. 239; [1941] 3 D.L.R. 528;
[1941] 2 W.W.R. 629 (S.C.), which have been
referred to me. It is of some importance to note
that in the Wessels case the commission evidence
was taken in the absence of the plaintiff or of any
legal representative appearing on her behalf
because she could not afford a legal representative.
Therefore, neither the plaintiff nor her solicitor
had any idea of what the commission contained. In
neither the Wessels case (supra) nor in the Smith
v. Greey case (supra) was there any suggestion
that credibility or the possible recollection of wit
nesses would be in issue.
In the present case there is not only an allega
tion but what would appear to be a strong possibil
ity that credibility and the accuracy of recollection
of various witnesses will be a most important issue
to be determined by the Trial Judge since his
decision will necessarily be based on what was
allegedly said and orally negotiated some forty
years ago. This is also a class action in which every
member of the Sarcee Band of Indians is a party
and the several of whom will probably testify as to
their recollection regarding what took place during
the negotiations.
The general practice in England and in Canada
is that evidence taken on commission should be
disclosed previous to trial to all of the parties for
use by them as they deem fit and proper. The
obligation to divulge commission evidence follows
from the rule that parties are entitled to be present
at all proceedings both before and during trial: it is
a salutary rule and should generally be followed.
However, as in the case of most procedural rules
established by jurisprudence, there can be excep
tional circumstances where the proper administra
tion of justice requires that exceptions be made.
As previously stated forty years have elapsed
since the right of action arose and the necessity for
obtaining commission evidence was created by the
delay of the plaintiffs. The delay consisted not only
in the institution of the action but in its actual
prosecution: the statement of claim was issued in
1982 and the case is far from being ready for trial.
Counsel for the plaintiffs was present during the
taking of commission evidence and is of course
fully entitled to a copy of the transcript and to
examine and to copy the video tapes if he so
desires.
He can also use his knowledge of the evidence to
guide him in the examinations for discovery. Rule
477(2) [Federal Court Rules, C.R.C., c. 663]
dealing with pre-trial or pre-action orders for evi
dence to be used at trial reads as follows:
Rule 477. .. .
(2) The Court may, by the same or any subsequent order, give
all such directions touching the time, place and manner of the
examination, the attendance of the witnesses and the produc
tion of papers thereat, and all matters connected therewith, as
appears reasonable.
The witnesses who testified on commission were
called on behalf of the defendant. Their testimony
would not normally be available to the plaintiffs
until their case had been put in at trial. Further
more, the defendant might very well decide at trial
to refrain from calling them.
For the above reasons and mainly because credi
bility would be involved in most of the important
questions to be decided by the Court, and that an
order excluding witnesses would most probably be
given, I intend to issue a protective order govern
ing the commission evidence. It will require that
after copies of the original transcript and of the
video tape have been supplied counsel, if request
ed, the commission evidence be sealed before
filing, with a notation that it is not to be opened
without further order of this Court. The solicitors
and counsel for the plaintiffs are directed to
refrain from directly or indirectly discussing with
or disclosing to their clients or with any other
person, other than any experts which they might
wish to consult and perhaps eventually call as
witnesses, the substance or content of the evidence
given on commission. Should any experts be con
sulted they must also be advised that they are
enjoined by the Court to refrain from com
municating any part of the evidence to any other
person without further order of this Court.
Since there is no proprietary interest in any
witness, or prospective witness, it goes without
saying that this order is not to be interpreted as
prohibiting legal representatives of any of the par
ties from consulting any of the three witnesses who
testified on commission and from communicating
to any other person the contents of any such
consultation.
Since success is divided in both motions before
me, costs shall be in the cause.
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.