Sack v. Canada (Attorney General)

Sack v. Canada (Attorney General) Court Supreme Court Date 2023-04-05 Citation 2023 NSSC 35 Docket Hfx No. 510920 Judge/Registrar/Adjudicator Keith, John A. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Sack v. Canada (Attorney General), 2023 NSSC 35 Date: 20230405 Docket: Hfx No. 510920 Registry: Halifax Between: Chief Michael Sack, on his own behalf and on behalf of the members of Sipekne’katik Plaintiff v. Attorney General of Canada Defendant v. Unified Fisheries Conservation Alliance Intervenor Motion Decision Judge: The Honourable Justice Keith Heard: July 20 and 21, 2022, in Halifax, Nova Scotia Final Written Submissions: August 19, 2022 with further clarifications on March 6, 22, & 29, 2023 Counsel: Jason T. Cooke, Naoimi Metallic, and Ashley Hamp-Gonsalves, for the Applicant Potlotek (action discontinued) Nathan Sutherland and Mary Rolf, for the Plaintiff Sipekne’katik Jonathan Tarlton, Sahand Farahanchi, and Laura Rhodes for the Defendant Attorney General of Canada Sean Foreman, for the Respondent Attorney General of Nova Scotia (action withdrawn) Jeff Galway and Chris Dimatteo, for the Intervenor Unified Fisheries Conservation Alliance The original text of this decision has been corrected according to the erratum dated April 17, 2023 By the Court: Introduction and Issue [1] This matter began as two discrete, but related applications in court: 1. Chief Wilbert Marshall on his own behalf and on behalf of the members of Potlotek First Nation, and Michael Basque (collectively “Potlotek”) v. Attorney General of Nova Scotia representing Her Majesty the Queen in the Right of the Province of Nova Scotia and the Attorney General of Canada bearing Court File No. 505696 (the “Potlotek Matter”); and 2. Chief Michael Sack on his own behalf and on behalf of the members of Sipekne’katik (collectively, “Sipekne’katik”) v. Attorney General of Canada and Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia bearing Court File No. 510920 (the “Sipekne’katik Matter”) [2] By Orders dated November 29, 2021 and January 26, 2022, the Unified Fisheries Conservation Alliance (“UFCA”) was granted intervenor status in both proceedings. [3] By Orders dated April 8, 2022, the parties agreed that the two applications would be converted to actions and, as well, that they would be heard together. The trials of the two actions are scheduled to be heard beginning February 10, 2025. [4] On June 17, 2022, the parties confirmed that the claims against the Province of Nova Scotia were being withdrawn in both the Potlotek Matter and the Sipekne’katik Matter. The claims against the Attorney General of Canada (“Canada”) remained. [5] On December 19, 2022, Potlotek discontinued their action, leaving only the Sipekne’katik Matter outstanding. [6] The parties are in the process of completing disclosure. It is anticipated discovery examinations will begin later this year. [7] The parties have worked collaboratively towards the common goal of an organized and efficient pre-trial process. Among other things, they developed a litigation plan and schedule. They were also able to agree upon most categories of disclosure. [8] Not every category of requested disclosure was agreed upon. Canada and UFCA brought this motion seeking disclosure of a number of discrete subcategories of information contained within the following broad headings[1]: 1. Historical documents regarding the “nature and scope” of the Treaty Right, as that term is defined below[2]; 2. Documents related to the meaning of “moderate livelihood” and, more specifically, “policy level” documents addressing subsidies, transfers or other funding provided to Sipekne’katik and members thereof to support their livelihood by the federal and provincial governments over the past 5 years. For greater certainty, UFCA confirms that this request does not include operational-level documents addressing subsidies, transfers or funding provided to Sipekne’katik or members thereof, such as documents relating to particular individuals. As indicated, this information is requested by UFCA, and not Canada. UFCA contends that this request is relevant to the meaning of a “moderate livelihood”; and 3. Documents relating to the Crown’s alleged justification of infringement and/or accommodation of the Treaty Right. [9] There was also an issue regarding how to identify and process privileged documents related to: 1. A “Framework Agreement” concluded on February 23, 2007 between the 13 Mi’kmaq Saqmaq representing the Mi’kmaq peoples of Nova Scotia, the Province of Nova Scotia and Canada (the “Framework Agreement”); and 2. Discussions which followed the Framework Agreement and described in this proceeding as the “Main Table Discussions”. Further details are provided below. [10] Following the original hearing, the parties withdrew or resolved a number of disclosure requests which were originally disputed due, in part, to Potlotek discontinuing its action. These reasons are obviously focussed on those issues which remain in dispute. However, for clarity, those specific requests are summarized at Appendix “A” to these reasons. [11] I previously released a “bottom line” decision but confirmed my intention to provide written reasons. These are those reasons. Applicable disclosure Principles Basic Disclosure Principles [12] Parties in a civil proceeding in Nova Scotia are compelled to proactively and voluntarily make full disclosure. Rule 14 confirms the presumption that full disclosure is necessary for justice in a civil proceeding (Rule 14.08(1)). [13] Disclosure is defined by relevance and determined from the perspective or vantage point of a trial judge considering the claims and defences. [14] By way of background, briefly, the former test for disclosure was “semblance of relevance”. It gave rise to concerns over perceived excesses largely in the form of unnecessary delay, expense, and related inefficiencies.[3] Nova Scotia’s current Civil Procedure Rules (2009) imposed a more disciplined inquiry into whether the information in question would actually be relevant at trial – as opposed to a more wide ranging exploration of information which merely demonstrated a “semblance of relevance” on the journey toward trial. [15] Canada articulates the disclosure test as “relevant (and / or “likely to lead” to relevant) evidence.” (See, for example, Canada’s initial written submissions at paragraph 23.) In support of this proposition, Canada refers to the following passage from Halifax Dartmouth Bridge Commission v Walter Construction Corp et al, 2009 NSSC 403 (“Halifax Dartmouth Bridge Commission”) at paragraph 16: […] It is important…to be mindful that at the pre-trial stage, the parties are still investigating the claim to determine whether there is a basis to defend. Consequently, at discovery, witnesses can be examined both as to relevant evidence and also for information that is likely to lead to relevant evidence. Similarly, witnesses could be examined on documents that are relevant and also on documents that are likely to lead to relevant evidence. [16] Respectfully, I disagree. The above-quoted comment in Halifax Dartmouth Bridge Commission relates to discovery examinations, and not disclosure.[4] Expanding the test for disclosure to include information which is “likely to lead” to relevant evidence would re-introduce the “semblance of relevance” test that the current Civil Procedure Rules abolished. [17] “Relevant” information is that which, as a matter of logic and human experience, tends to prove or disprove a fact in issue. (See Murphy v Lawton’s Drug Stores Ltd., 2010 NSSC 289 at paragraph 20) I return to this issue below when discussing the scope of disclosure. [18] As indicated, Rule 14 also confirms the perspective or approach that the Court adopts when assessing disclosure disputes. The motions judge hearing a disclosure dispute approaches the issue by stepping into the shoes of a trial judge and asks “whether a judge presiding at the trial or hearing of the proceeding would find the document, electronic information, or other thing relevant or irrelevant.” (Rule 14.01(1)(a) and (b). See also Rule 14.01(2) and Laushway v Messervey, 2014 NSCA 7 (“Laushway”) at paragraph 47.)[5] Defining the Scope of Disclosure [19] Disclosure refers to the factual information contained in relevant documents and relevant electronic information. In turn, and as indicated, relevant factual information is that which is probative of (or tends to prove/disprove) a fact in issue, or a “live” legal issue. Obviously, factual information that has no bearing on a live legal issue is not relevant and need not be disclosed. [20] The process of identifying the live legal issues and then, for the purposes of disclosure, assessing what factual information may be probative of those issues begins with the pleadings. Thus, as a practical matter, the time for fulfilling the duty to deliver or make disclosure begins to run at the close of pleadings (Rules 15.03(1) and 16.07).[6] [21] I note in passing that the pleadings are not the sole determinative factor. The Court may, for example, also take evidence into account Saturley v CIBC World Markets Inc., 2012 NSSC 57 (“Saturley 1”) at paragraph 46. See also Brown v Cape Breton (Regional Municipality), 2011 NSCA 32 (“Brown”) at paragraph 12. However, in this motion, the parties have yet to make disclosure and so there was very limited evidence presented. Thus, while the pleadings are not the only factor to be considered in a motion for disclosure, they are of particular importance here. [22] In any event, the pleadings are intended to identify the live legal issues and, more importantly, the material facts which bear upon those issues. Thus: 1. Material facts must be pleaded, but the evidence to prove a material fact must not be pleaded. (Rule 38.02(3), emphasis added) 2. The pleadings must contain sufficient information so that “the other party will not be surprised when the party signing the pleading seeks to prove a material fact” (Rule 38.02(2)(b), emphasis added); 3. “A party may plead a point of law, if the material facts that make it applicable are also pleaded.” (Rule 38.02(4), emphasis added) [23] The questions become: What is materiality or, better put, what facts or factual information is considered “material”? [24] In R v Candir, 2009 ONCA 915 (leave to appeal to SCC dismissed), the Ontario Court of Appeal wrote: “Evidence is material if what it is offered to prove is in issue [at the proceedings] according to the governing substantive and procedural law and the allegations contained in the indictment [or the civil pleadings.]” (at paragraph 49) In 2420188 Nova Scotia Ltd. v Hiltz, 2011 NSCA 74, the Nova Scotia Court of Appeal wrote that a “material fact” is one which is essential to a cause of action or defence (at paragraph 27). Similarly, in the subsequent decision of Coady v Burton, 2013 NSCA 95, the Court of Appeal wrote that a material fact is an “important factual matter that anchors the cause of action or defence” (at paragraph 42). [25] The importance of “material facts” to the underlying cause of action or defence is more apparent when one considers summary judgment on evidence. Rule 13 enables the Court to summarily allow or dismiss an action where, among other things, there is “no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence.” [26] That said, disclosure does not become circumscribed by whatever facts are deemed material or, worse, whatever facts a party decides are “material” and includes in their pleadings. The Court obviously retains the discretion to identify the essential, material facts. Moreover, the existence of a material fact may be made more or less probable through collateral or secondary facts and would therefore be relevant. Thus, factual information regarding collateral or secondary facts must also be disclosed. However, to be clear, there must be a sufficient connection to the material fact to engage the disclosure obligation. And this connection is determined by applying logic and experience, having regard to the applicable governing law. In short, the factual information may not be directly connected to a material fact expressly identified in the pleadings but it still must be sufficiently material to the legal issues. Otherwise, the disclosure obligation becomes constrained by arbitrary (not principled) considerations and effectively boundless. [27] The Court imposes these limitations and controls to ensure that the scope of disclosure is grounded in the law and also to avoid the sort of unrestrained or unbridled disclosure that historically rendered the litigation process inefficient or unwieldy. Consequently, where the connection between factual information and the underlying material facts becomes so tenuous or suspect, the demand for disclosure is deemed an overreach extending well beyond the acceptable bounds of disclosure. These types of disclosure demands are sometimes described as “fishing expeditions” where parties cast aimlessly for information based on nothing more than the hope of catching something significant. I revisit these sorts of checks on the disclosure process in greater detail below. [28] In sum: 1. Determining what factual information is relevant and subject to the rules around disclosure begins with the pleadings. As indicated, the pleadings are not the sole determinative factor but they gain particular importance in this motion as the additional evidence tendered is limited; 2. The pleadings must identify the “material facts” which are essential to the governing law upon which the claims or defences are grounded; 3. The factual information which must be disclosed is not necessarily limited to the bare material facts required to prove a claim or defence. There may be other, secondary information which bears upon those bare material facts. However, the factual information must be sufficiently material to engage the disclosure obligation.[7] [29] In rare cases, the obligation to disclose information in a civil proceeding may also be driven by an underlying legal proposition, the validity of which is in question. The Court retains the discretion to control disclosure in these situations but will exercise that discretion only in the clearest of cases. I return to this issue below. Caution and Control When Determining Disclosure Disputes [30] Nova Scotia’s Civil Procedure Rules emphasize the importance of full disclosure (Rule 14.08(1)). Thus, for example, any party seeking to modify their disclosure obligations must rebut that presumption by establishing that the modification is necessary to make the cost, burden and delay of disclosure proportionate to the likely probative value of the evidence and the importance of the issues in the proceedings to the parties (Rules 14.08(3) and (4)). It is not necessary to discuss Rule 14.08(3) or (4) in this case as no party is seeking to limit their disclosure on the basis of proportionality. [31] The point is that the Court approaches requests to limit the scope of disclosure with a degree of caution so as to not undermine the presumption of full disclosure. Thus, the Court will not pre-determine legitimate factual or legal issues under the guise of a disclosure dispute. In Saturley 1, Moir, J. recognized (at paragraph 45) that disclosure decisions are made well in advance of trial and that the motion judge’s perspective may be “imperfectly constructed”. In Saturley v CIBC World Markets Inc., 2011 NSSC 4 (“Saturley 2”), Wood, J. (as he then was) also recognized this practical reality, noting at paragraph 7 that “[i]t may not always be possible to know with certainty whether a particular piece of evidence will ultimately be determined to be relevant at trial.” In these circumstances “the Court should take a somewhat more liberal view of the scope of relevance in the context of disclosure than it might at trial. This is subject, of course, to concerns with respect to confidentiality, privilege, cost of production, timing and probative value.” (Saturley 2, at paragraph 9) [32] The facts in Saturley 2 illustrate how this caution is exercised. The central legal issue related to whether the Plaintiff (an investment advisor) engaged in unauthorized discretionary trading sufficient to provide just cause for his dismissal from employment. [33] Within the context of that legal issue, the Defendant disclosed emails relating to trades or client instructions authorizing trades, but did not disclose emails which were administrative or social in nature; or related more broadly to the client relationship (paragraph 21). Wood, J. determined that these additional emails “could be of assistance to the Court in assessing the evidence with respect to whether specific trades were authorized” (at paragraph 22) and he ordered their disclosure. [34] For clarity, the caution expressed in Saturley 2 does not signal a retreat back to the abolished “semblance of relevance” test. It simply reflects the more practical concern that “it is better to err on the side of requiring disclosure of material that, with the benefit of hindsight, is determined to be irrelevant rather than refusing disclosure of material that subsequently appears to have been relevant.” (See Saturley 2 at paragraphs 9 - 10, adopted by the Court of Appeal in Laushway at paragraph 49.) Consequently, the party seeking disclosure should be given benefit of the doubt as to how the trial judge might approach the issue of relevance. Otherwise, there is a risk the trial process will be unnecessarily delayed or, worse, unnecessarily rendered unfair. [35] Similarly, a party cannot resist disclosure by simply challenging a point of law and insisting that the Court settle any disputed legal issues in advance of disclosure being made. I note that there is a discretion to decline answering an issue of law in a motion for summary judgment even if there is no genuine dispute of material fact for trial (see Rule 13.04(6)(a)). The same type of discretion to decline answering an issue of law applies with even greater force where the legal issue is only raised in the context of a disclosure dispute. Here again, the Court will generally exercise caution and decline to scrutinize the validity of a legal proposition under the guise of a disclosure dispute. [36] Exercising reasonable caution when addressing disclosure disputes does not mean the scope of disclosure becomes constrained only by a party’s imagination either when drafting a pleading or developing disclosure requests. Obviously, there are limits to the caution which the Court will exercise when considering disclosure requests. Generally speaking, these limits are often imposed based on concerns regarding the actual strength of the connection between the material facts and the disclosure request and related, more practical issues. For the purposes of this motion, the following principles and factors are germane: 1. As indicated, pleadings are not enchanted documents which validate any type of disclosure request. A party is not entitled to launch unbounded voyages into another party’s private records by pleading factual matters of incidental significance or conjuring factual scenarios based on scant evidence (if evidence is presented). Farrar, J.A. touched upon this issue in Intact Insurance Company v Malloy, 2020 NSCA 18 (“Intact”) when he wrote at paragraph 35: Although the pleadings are a factor to be taken into consideration in determining whether documents are relevant, they are not the only factor. If that were the case, adroit counsel could draft pleadings in such a manner to allow a party to embark on a fishing expedition. This is precisely what the Rules were intended to avoid when they were amended to move from the "semblance of relevance" test to relevancy. The motions judge's decision, in my view, reverts to the "semblance of relevance" test. Allegations, no matter how specifically worded or drafted, which have no basis in the facts or the evidence without more, cannot be the basis for a production application. This is particularly true here, where there was a dearth of evidence before the motions judge. [8] 2. The current Civil Procedure Rules (2009) sought to reduce perceived excesses associated with the process of disclosure, among other things. As a result, disclosure requests should be clear, focussed and not overly broad. In Intact, Farrar, J.A. recognized that “at some point a balance must be struck between document production and practicality.” Farrar, J.A. made this comment in the context of a disclosure request that “even if it could be upheld on the basis of relevance, is too broad.”[9] 3. Where the dispute involves the validity of a discrete point of law upon which a disclosure request is based, the Court retains an inherent jurisdiction to control its own process. In appropriate circumstances, the Court may exercise its discretion to examine the validity of the legal proposition in question. A party cannot demand disclosure on the basis of any legal assertion, regardless of whether it is far-fetched or mistaken. Exceptional circumstances may arise where the Court will exercise its discretion to scrutinize whether the legal proposition made in support of disclosure is plainly wrong. However, as indicated, this discretion will only be exercised in the clearest of cases and, in my view, the test is onerous. The impugned point of law raised in support of the disclosure request must be obviously wrong and clearly contrary to established, binding authority. Additional considerations include: a. Whether the pleadings are aligned with or, conversely, inconsistent with the impugned legal proposition made in support of the disclosure request; b. Whether the impugned legal proposition can be precisely identified, easily severed and separately addressed as a discrete issue without compromising either the remaining claims and defences or the presumption of full disclosure under Rule 14.08(1); c. The extent to which addressing the legal issue in question will advance the goals of Rule 1.01 (i.e. “the just, speedy, and inexpensive determination of every proceeding”) and the Supreme Court of Canada’s call in Hyrniak v Mauldin, 2014 SCC 2 “to create an environment promoting timely and affordable access to the civil justice system” (at paragraph 2); d. Whether another procedural mechanism is more appropriate in the circumstances. Those other procedural mechanisms include summary judgment on the pleadings or on evidence under Rule 13; or a determination of a question of law under Rule 12; or relief under Rule 88 (Abuse of Process). There may be other potential procedural avenues better suited to address the legal issue in question. Privilege [37] Sipekne’katik states that the requested disclosure may include information which is confidential and privileged. This concern around privilege arises out of the Framework Agreement and related Main Table Discussions between certain Mi’kmaq communities, Canada, and the Province of Nova Scotia. [38] A party is not obliged to disclose information which is privileged, even if it is relevant (Rule 14.05). [10] The following procedures are in place to address claims of privilege: 1. Parties are required to: a. Separate documents and electronic information which is relevant and non-privileged from documents or electronic information which is relevant and privileged (see the definition of “sort” in Rule 14.02(1)); and b. Either disclose relevant documents or electronic information or claim that it is privileged (see Rules 15.02(1)(b) and 16.03(1)(b)). 2. The obligation to expressly advance a claim for privilege is further reinforced under the following Rules 15.02(2)(b) and 16.03(2)(c) which state that any party claiming privilege over a document or electronic information must also disclose information “to the extent it is possible to inform another party without infringing the privilege” (Rules 15.02(2)(b) and 16.03(2)(c)). Furthermore, parties to an action must swear: a. an affidavit disclosing documents which, among other things, attaches a Schedule B providing “information on all claims that a document … is privileged in favour of the party or another person.” (Rule 15.03(3)(f)); b. an affidavit disclosing electronic information which, among other things, attaches a Schedule B providing “information on all claims that a document … is privileged in favour of the party or another person.” (Rule 16.09(3)(f)) 3. Where one party claims privilege and another party disputes that claim, a judge determines that dispute in accordance with the Rules (see Rule 14.05)(4)). In determining a claim of privilege, a judge may take various steps to ensure the integrity of any such privilege claim is preserved until the claim of privilege is determined (Rule 85.06(4)). (See also Halifax (Regional Municipality) Pension Committee v State Street Bank & Trust Co., 2011 NSSC 355 at paragraph 343 – 344.) 4. Where privileged information is disclosed by mistake, Rule 14.06 provides additional procedures to mitigate the problem and protect the privilege. [39] The Court retains a discretion to supplement these Rules to better protect privileged information, if necessary in the unique circumstances of a case (Rules 15.07 and 16.14). Analysis Category 1: Historical Documents regarding the “Nature and Scope” of the Treaty Right [40] This category can be divided into the following three requests[11]: Request 1: Documents regarding the variety of marine species to which the Treaty Rights apply; Request 2: Documents regarding the scope of the marine species traded by Sipekne’katik in or around 1760-1761 (i.e. the years when the parties were entering into the Peace and Friendship Treaties upon which the claims of Sipekne’katik are grounded); and Request 3: Documents regarding the negotiation, execution, implementation and interpretation of the Treaty or the Treaty Rights, and in particular, the “trade clause” of such Treaty. Sipekne’katik observes that this documentary request is made by UFCA, and not Canada. Requests 1 and 2 Regarding the Nature and Scope of the Treaty Right [41] Dealing with Request 1 and Request 2 and the nature and scope of the Treaty Right generally, Canada pleads and refers to those portions of the R. v. Marshall, [1999] 3 S.C.R. 456 (“Marshall #1”) and R. v. Marshall, [1999] 3 S.C.R. 533 (“Marshall #2”) decisions which consider: 1. that which was within the “reasonable contemplation” of the parties when entering into the Peace and Friendship Treaties signed in 1760 – 1761; 2. the related issues of what was “traditionally” gathered or harvested at that time; and 3. a “thread of continuity” between those historical or traditional activities and current practises. (See, for example, Canada’s Statement of Defence at paragraph 19 and written submissions at paragraphs 13 – 20.) [42] UFCA similarly states that the Court in Marshall #1, Marshall #2 and subsequent jurisprudence was careful to confine itself to the narrow issues before it. UFCA further contends that Marshall #1 and Marshall #2 do not hold that the Treaty Right includes a right to fish any species, in any geographic area, for trade in support of a moderate livelihood. That remains for the Plaintiffs to prove in these cases (UFCA’s Statement of Defence at paragraphs 8 – 10 and written submissions at paragraph 22). [43] Overall, UFCA and Canada acknowledge the Treaty Right to fish but they suggest that the phrase “to fish” remains unclear and requires further clarity to fully understand the extent and scope of the right. Thus, for example, if the phrase “to fish” is interpreted as (and refers to) “fish” as a noun, a legitimate question arises as to what types of “fish” or specific marine species are included within that right. If, by contrast (and as Sipekne’katik contends), the phrase “to fish” is interpreted as a verb, it would refer more broadly to the act of fishing; and the Treaty Right is not restricted to any particular species but, rather, would include any form of life that is marine and harvested for a commercial purpose. Under this interpretation, the nature of the species is irrelevant and the Treaty Right only becomes potentially circumscribed by other things such as, for example, the historic territories where “fishing” (in the broad sense of the word) occurred. [44] Sipekne’katik argues that Canada and UFCA are attempting to re-open questions that have already been clearly decided by the Supreme Court of Canada in Marshall #1 and Marshall #2. They accuse Canada and UFCA of advancing positions that are “based on an artificially narrow, and incorrect, reading of the Supreme Court of Canada jurisprudence regarding the Plaintiffs’ Treaty Rights.” (See paragraph 38 of Sipekne’katik’s written submissions.) [45] Sipekne’katik states that the controversy which gave rise to Marshall #2 was specifically focussed on the lobster fishery. In Marshall #2, the West Nova Fishermen's Coalition applied for a rehearing to address the federal Crown’s regulatory authority over the east coast lobster fisheries generally and, as well, sought a new trial to allow the Crown to justify for conservation or other purposes the licensing and closed season restriction. Paragraph 15 of Marshall #2 specifically confirms that the Coalition’s concerns “largely relate to the lobster fishery”. Sipekne’katik points to other paragraphs in Marshall #2 that refer to the lobster fishery in the context of the Treaty Right (see, for example, paragraphs 21, 30, 38 and 42 of Marshall #2). [46] Sipekne’katik ultimately argues that the notion that the Courts to date have only recognized a Treaty Right for eel (not the Treaty Right to fish for any other marine species) is contrary to binding precedent and constitutes an improper attempt to somehow manufacture a controversy that does not actually exist in law. Sipekne’katik invokes the decision of Farrar, J.A. in Intact for the proposition that a party cannot just make any assertion in a pleading and then demand disclosure. It concludes that: “The law is clear: the Treaty Right is not a species-specific right. Pleading that it is does not make it so.” (See paragraph 50 of Sipekne’katik’s written submissions.) [47] In my view, the Court should exercise caution and decline the discretion to decide upon the validity of the legal arguments being advanced by Canada and UFCA around the scope and nature of the Treaty Right and these particular disclosure requests. My reasons include: 1. The issues align, and are consistent with, the parties’ pleadings and the underlying point of law is valid (i.e. the nature and scope of the Treaty Right is relevant to this proceeding); 2. The parties agree that a number of contentious issues remain regarding the nature and scope of the Treaty Right. For example, the “territorial extent of the Treaty Rights”; and “documents regarding the location of Sipekne’katik’s traditional fishing grounds” are live; and Sipekne’katik does not resist disclosure of these documents (paragraph 22 of Sipekne’katik’s initial written submissions). In my view, it would be unwise and potentially problematic to parse and definitively resolve the issue of whether the Treaty Right is (or is not) marine-specific at this time. I am not satisfied that this factual issue can be so easily severed and separated without, for example, unnecessarily compromising the obligation of full disclosure; 3. The circumstances surrounding Marshall #1 and, more specifically, Marshall #2 were unusual. As indicated, Marshall #1 determined that a Mi’kmaq person could not be criminally convicted for catching and selling $787.10 worth of eel. Marshall #1 did not directly consider the lobster fishery. The word “lobster” does not appear in the decision. In the wake of Marshall #1, the West Nova Fishermen's Coalition immediately filed a motion with the Supreme Court of Canada for a re-hearing. The motion for a re-hearing was heard and dismissed within 2 months (Marshall #2).[12] Thus, Marshall #2 occurred in an expedited manner. In all the unique circumstances and at this early disclosure stage, it is appropriate to adopt a cautious approach to the nature and scope of the Treaty Right in the context of the lobster fishery and the associated factual information which is probative of that issue; 4. Given the unique circumstances in which Marshall #2 arose, the Supreme Court of Canada identified certain unresolved issues related to the lobster fishery. For example, the Court stated at paragraph 14: The issue of justification was not before the Court and no judgment was made about whether or not such restrictions could have been justified in relation to the eel fishery had the Crown led evidence and argument to support their applicability. Similarly, at paragraph 15, the Court wrote: The issues of concern to the Coalition largely relate to the lobster fishery, not the eel fishery, and, if necessary, can be raised and decided in future cases that involve the specifics of the lobster fishery. It is up to the Crown to initiate enforcement action in the lobster and other fisheries if and when it chooses to do so. I recognize that these statements were made in the context of justification, as opposed to the nature and scope of the Treaty Right. Nevertheless, in my view, they speak to the need for a more cautious approach which better avoids premature determinations and/or causes unintended or unforeseen consequences; and 5. I am also of the view that a motion for disclosure is not the appropriate procedural mechanism to properly consider and resolve these legal and factual issues which bear upon this particular request – particularly at this early stage of the proceeding and based on the limited record before me. [48] To be clear, this decision does not determine, and should not be interpreted as determining, any of these issues or any other issue regarding the scope and nature of the Treaty Right and, in particular, whether the Treaty Right is not marine specific. I make no conclusions beyond declining the discretion to determine the legal and factual questions which underpin this disclosure request. Request 3 Regarding the Nature and Scope of the Treaty Right [49] Request 3 seeks documents regarding the negotiation, execution, implementation and interpretation of the Treaty or the Treaty Rights, and in particular, the “trade clause” of such Treaty. This documentary request is made by UFCA, and not Canada. [50] UFCA’s written submissions are almost entirely dedicated to the issue surrounding whether the recognized Treaty Right is limited by fish (or marine) species and geography. UFCA’s written submissions regarding Request 3 are linked to these first two issues but condensed into a single sentence at paragraph 33: “Likewise, documents regarding the negotiation, execution, implementation and interpretation of the Treaty Rights, and in particular the ‘trade clause’ on which the Plaintiffs rely, are again directly relevant in assessing the nature and scope of the Treaty Rights.” [51] In my view, Request 3 is unclear and overly broad. And the brief submission offered in support of the request is more conclusory than explanatory. Disclosure requests should be focussed and not excessively far-reaching. The concerns which Farrar, J.A. expressed at paragraph 35 of Intact (reproduced at paragraph 36 above) are applicable here. [52] I appreciate the disclosure request focusses on the “trade clause” but it does not appear to be confined only to the trade clause. The request has the hallmarks of a “basket clause” provision without being sufficiently tethered to the issues and material facts. The connection between this request for factual information and defining the nature and scope of the Treaty Right is unclear. For example, I am not certain how execution of the Treaty is probative of any material fact. In addition, I am concerned that factual information regarding the “implementation and interpretation” of the Treaty Right creates the risk of an apparently unlimited exploration into how the parties acted in response to the Treaty Right over the centuries after it originally came into existence. [53] At this early stage and absent a more focussed request and clear argument as to relevance, I am not prepared to order disclosure of the information referenced in Request 3. Additional information and evidence may become available which offers greater clarity and focus. Category 2: Documents Related to the Meaning of “Moderate Livelihood” (Government Transfers and Subsidies to Sipekne’katik) [54] This request seeks disclosure of “policy level” documents addressing subsidies, transfers or other funding provided to Sipekne’katik and members thereof to support their livelihood by the federal and provincial governments over the past five years. For greater certainty, UFCA confirms that this request does not include operational-level documents addressing subsidies, transfers or funding provided to Sipekne’katik or members thereof, such as documents relating to particular individuals. As indicated, this information is requested by UFCA, and not Canada. UFCA contends that this request is relevant to the meaning of a “moderate livelihood”. [55] All parties agree that the meaning of a “moderate livelihood” is a live issue in this litigation. Thus, documents and electronic information which are relevant to the meaning of a “moderate livelihood” would obviously be subject to disclosure. The outward simplicity of this statement, however, becomes gnarled by contentious questions that have legal, financial, political and social dimensions. For example, the parties use slightly different words to describe the Treaty Right and how it interacts with the concept of a “moderate livelihood”. [56] Both Canada and UFCA state that the Treaty Right is the right to fish in pursuit of a moderate livelihood (emphasis added). By contrast, Sipekne’katik claims a treaty right to fish and to sell that fish for (or to support) a moderate livelihood (emphasis added). These differences may seem minor but looks can be deceiving. The parties obviously took care in expressing the nature of the Treaty Right. The differences are, in my view, intentional and important. [57] The right to fish in pursuit of a moderate livelihood might suggest that the predominant goal of the Treaty Right is economic in nature in the sense of being solely dedicated to ensuring such access to the commercial fishery as necessary to earn a “moderate livelihood”. If this financial outcome is ultimately acquired (i.e. a “moderate livelihood” is achieved through whatever means), an issue arises as to whether the right to pursue a moderate livelihood might be correspondingly curtailed. In other words, the relationship between a “moderate livelihood” and Sipekne’katik’s access to the commercial fishery is inversely proportional. The closer Sipekne’katik comes to achieving a “moderate livelihood”, the less it may require access to the commercial fishery. Equally, the further Sipekne’katik is from achieving a “moderate livelihood”, the more it may require access to the commercial fishery. [58] By contrast, the right to fish for a moderate livelihood places the emphasis on access to the commercial fishery and suggests that such access is the predominant goal of the Treaty Right. Thus, access to the commercial fishery is not affected by (or subject to adjustment based on) government subsidies depending upon how close Sipekne’katik may be to achieving a “moderate livelihood”, however that term might be defined. [59] I make no comment or determination (and my decision should not be interpreted as having made a comment or determination) regarding either possible interpretation. I simply observe reasonable differences in how the Treaty Right is expressed and possibly interpreted. [60] Sipekne’katik contends that this particular request pushes the disclosure process beyond the realm of relevancy because it is predicated upon the false premise that the Treaty Right can be curtailed by government funding, transfers or subsidies already received by Sipekne’katik. Taken to its logical conclusion, Sipekne’katik is concerned that its access to the Treaty Right might be surrendered or waived (in whole or in part) if government assistance is sufficient to create a “moderate livelihood” - even if any such assistance is unrelated to the fishery. At paragraph 61 in it’s written submissions, Sipekne’katik concludes that: “The Treaty Right exists separate and apart from subsidies and transfers provided by the federal or provincial governments.” [61] UFCA takes a different view. It notes that the definition of “moderate livelihood” remains unclear other than it is somewhere between bare subsistence and “accumulated wealth” (referencing paragraph 75 of Ahousaht). At paragraph 39 in its written submissions, UFCA concludes that: If First Nations’ members currently maintain or exceed a moderate livelihood standard of living based in part on government programs, it is an open question as to what right remains under the treaties to fish for trade in pursuit of a moderate livelihood. Equally, the analysis of justification may be different if the evidence demonstrates that there are significant government programs benefitting the Plaintiffs and their members. [62] A number of live legal issues remain, including: 1. How a “moderate livelihood” might be measured and potentially achieved in the context of the Treaty Right; and 2. What factors and inputs are properly considered when evaluating and measuring the concept of a “moderate livelihood”? [63] In my view, the disclosure request is relevant (and seeks factual information which is material) to the determination of these questions. The concept of a “moderate livelihood” lies at the heart of the Treaty Right. How a “moderate livelihood” should be defined and measured is obviously an extremely important and sensitive issue in this case. [64] I am not prepared to deny this disclosure request or otherwise make determinations as to what sources of information might be excluded on this issue of a “moderate livelihood” at this early stage in the proceeding. Among other things, I have no evidence (including opinion evidence) as to: 1. what subsidies, transfers or other funding is provided to Sipekne’katik and members; 2. the purpose of any such subsidies, transfers or other funding; and 3. how a “moderate livelihood” should be defined and applied in the circumstances – let alone whether/how these inputs might or might not affect that analysis. [65] I also note that UFCA is requesting “policy level” documents. UFCA does not precisely define this term (“policy level”) except to say that it does not include “operational level” documents. My understanding is “policy level” documents generally include information sufficient to identify the aggregate amount and/or sources of government subsidies, transfers or other funding (if available); their underlying purpose; and the policy choices which prompted this financial assistance. It does not include more detailed information regarding how any such assistance is administered. The parties are at liberty to seek further clarity on this issue, if required. Category 3 - Documents relating to the Crown’s alleged justification of infringement and/or accommodation of the Treaty Right [66] The more specific subcategories of requested disclosure are: 1. Request 1: Documents or analyses regarding the historical reliance upon or participation in the Atlantic inshore lobster fishery by Indigenous and non-Indigenous groups; 2. Request 2: Documents, such as internal analyses, minutes of meetings, or correspondence between the parties, regarding Canada’s efforts to accommodate the Treaty Rights, including the: a. Marshall Response Initiative; b. Atlantic Integrated Commercial Fisheries Initiative; and c. Contribution Agreements 3. Request 3: Documents or correspondence regarding efforts by Canada to increase opportunities for Sipekne’katik to participate in the fisheries management process, including the involvement of the Kwilmu’kw Maw-klusuaqn Negotiation Office, integrated advisory committees or Area Aboriginal Coordinators. Request 1 Regarding Justification or Accommodation [67] In Request 1, Canada seeks information related to “historical reliance upon or participation in the Atlantic inshore lobster fishery by Indigenous and non-Indigenous groups”. [68] I pause briefly to note that UFCA’s written submissions limit their request to documents regarding historical reliance upon, and participation in, the fishery to non-Indigenous groups, consistent with the Supreme Court of Canada’s language originally in Gladstone and then repeated in Marshall #2. UFCA states: UFCA has pleaded that the integrated federal and provincial fisheries regulatory regime seeks to balance a host of considerations, including the pursuit of regional fairness and the recognition of non-Indigenous groups’ participation in the fishery. Documents relevant to these issues should be produced. [at paragraph 13 of UFCA’s initial written submissions, emphasis added] UFCA does not expressly extend its request to include Indigenous groups. [69] In any event, all parties agree that this disclosure request is relevant to the issue of justification in so far as non-Indigenous groups (e.g. UFCA) are concerned. The controversy relates to whether the same request is relevant to the issue of justification in respect of Indigenous groups (e.g. Sipekne’katik, in this case). That is a legal issue. [70] The notion that “historical reliance upon or participation in” the lobster fishery is relevant to justification and can be traced directly back to the following passage at paragraph 41 of Marshall #2 which, in turn, is a quote from the earlier decision of R. v. Gladstone, [1996] 2 S.C.R. 723 (“Gladstone”): […] Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment. [emphasis in original] [71] Similarly, on the issue of justification, in Delgamuukw v British Columbia, [1997] 3 S.C.R. 1010 (“Delgamuukw”), the Supreme Court of Canada said: The conservation of fisheries, which was accepted as a compelling and substantial objective in Sparrow, furthers both of these purposes, because it simultaneously recognizes that fishing is integral to many aboriginal cultures, and also seeks to reconcile aboriginal societies with the broader community by ensuring that there are fish enough for all. But legitimate government objectives also include "the pursuit of economic and regional fairness" and "the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups" (para. 75). By contrast, measures enacted for relatively unimportant reasons, such as sports fishing without a significant economic component (Adams, supra) would fail this aspect of the test of justification. [at paragraph 161, emphasis added] [72] These statements make it abundantly clear (and, again, the parties agree) that, in the right circumstance, historical reliance upon, and participation in, the fishery by non-aboriginal groups is a live legal issue in the context of accommodating the Treaty Right or justifying an infringement of that right. [73] Under the heading “Justification – Key Required Documents”, Canada’s initial written submissions quote paragraph 41 from Marshall #2 (reproduced at paragraph 70 above). Canada then offers the following more expansive conclusion at paragraph 25: Therefore, Canada believes it is clear that documents or analyses regarding the historical reliance upon or participation in the Atlantic inshore lobster fishery by non-Indigenous groups are relevant to and / or likely to lead to relevant evidence in its defence and should be produced. [74] Canada explains its proposed legal basis for suggesting that historical reliance upon, and participation in, the fishery includes both non-Indigenous groups (as Marshall #2 clearly states) and Indigenous groups in a footnote. Footnote 24 states, inter alia: …as related to the “thread of continuity” discussed above, Canada also believes that documents or analyses regarding the historical reliance upon or participation in the Atlantic inshore lobster fishery by Indigenous groups would be relevant to and / or likely to lead to relevant evidence in its defence and should be produced. [75] Canada’s reference to the “thread of continuity” concept invokes the following introductory statements from Marshall #1: On an August morning six years ago the appellant and a companion, both Mi'kmaq Indians, slipped their small outboard motorboat into the coastal waters of Pomquet Harbour, Antigonish County, Nova Scotia to fish for eels. They landed 463 pounds, which they sold for $787.10, and for which the appellant was arrested and prosecuted. On an earlier August morning, some 235 years previously, the Reverend John Seycombe of Chester, Nova Scotia, a missionary and sometime dining companion of the Governor, noted with satisfaction in his diary, "Two Indian squaws brought seal skins and eels to sell". That transaction was apparently completed without arrest or other incident. The thread of continuity between these events, it seems, is that the Mi'kmaq people have sustained themselves in part by harvesting and trading fish (including eels) since Europeans first visited the coasts of what is now Nova Scotia in the 16th century. The appellant says that they are entitled to continue to do so now by virtue of a treaty right agreed to by the British Crown in 1760. As noted by my colleague, Justice McLachlin, the appellant is guilty as charged unless his activities were protected by an existing aboriginal or treaty right. No reliance was placed on any aboriginal right; the appellant chooses to rest his case entirely on the Mi'kmaq treaties of 1760-61. [paragraphs 1 - 2, emphasis added] [76] In summary, Canada advances the legal proposition that the doctrine of justification is sufficiently expansive that historical reliance upon or participation in the Atlantic inshore lobster fishery of Indigenous groups may, in the right circumstances, justifiably infringe the Treaty Right. Or, better put, that factual information related to that legal proposition is relevant and sufficiently material to justify disclosure. Yet, the Supreme Court of Canada has only acknowledged the historical reliance and participation in the fishery by non-Indigenous groups as being relevant in this context (i.e. justification). [77] In my view, this request for factual information is not relevant to the issue of justification. To the extent it is necessary, this is also a rare and exceptional circumstance where the Court should exercise its discretion to determine the legal proposition being raised in support of this disclosure request. Respectfully, the legal proposition that the doctrine of justification expands to include historical reliance upon or participation in the Atlantic inshore lobster fishery by Indigenous groups is obviously wrong and clearly contrary to established authority binding upon this Court. Overall, disclosure demands for factual information to prove/disprove this proposition regarding Sipekne’katik’s historical reliance or participation in the lobster fishery is neither relevant nor sufficiently material to the issue of justification. [78] I begin with a somewhat minor point. Canada argues that “historical reliance upon or participation in the Atlantic inshore lobster fishery by Indigenous groups would be relevant to and / or likely to lead to relevant evidence in its defence and should be produced.” (See footnote 24 to Canada’s initial written submissions, emphasis added.) As indicated in paragraphs 13 - 15 above, the test at disclosure is relevance and not “likely to lead to relevant evidence.” [79] More substantively, Canada’s Statement of Defence neither identifies the information in this disclosure request as a material fact nor connects it to a material fact. Canada’s Statement of Defence also does not align with the position being taken in this motion. At paragraph 21, Canada pleads: The management of fisheries is complex. In making fisheries management decisions, DFO takes into account and balances not only the rights and views of First Nations, but other relevant substantial and compelling public purposes, including (but not limited to): the conservation of fish and sustainable use of fisheries resources; regional and economic fairness; and the historical reliance and participation in the fishery by non-Indigenous groups.[13] [emphasis added] [80] Canada’s pleading specifically limits the relevance of historical reliance and participation in the fishery on the issue of justification to non-Indigenous groups, in accordance with the Supreme Court of Canada’s decision in Gladstone, Marshall #2 and Delgamuukw referenced above. [81] Canada’s pleading does not extend the relevance of historical reliance and participation in the fishery on the issue of justification to Indigenous groups, again in accordance with the Supreme Court of Canada’s decision in Gladstone, Marshall #2 and Delgamuukw referenced above. [82] Gladstone, Marshall #2 and Delgamuukw are binding upon this Court and, in my view, they are clear. All of them confirm that historical reliance upon or participation in the fisheries by non-Indigenous groups is relevant to the issue of justification. And it is notable that the Supreme Court of Canada repeatedly made this point by referring to non-Indigenous groups. In other words, groups that are not Indigenous - as opposed to groups that are Indigenous. The Supreme Court of Canada clearly intended that this aspect of the justification analysis did not include historical reliance upon or participation in the fisheries by Indigenous groups. [83] If the Supreme Court of Canada wished to extend the historical reliance upon, or participation in, the fisheries by Indigenous groups as being relevant to that issue, it had at least three opportunities to do so (Gladstone, Marshall #2 and Delgamuukw). It never did. In the circumstances, I am unable to conclude that this request is relevant. [84] The reason consideration of this particular factor (i.e. historical reliance upon, and participation in, the fisheries) is limited to non-Indigenous groups is self-evident. Non-Indigenous groups share a finite lobster fishery resource with Indigenous groups. The Supreme Court of Canada recognized that reality and agreed that historical reliance upon, and participation in, the fisheries by non-Indigenous groups is a “substantial and compelling public purpose” or “objective” (see Marshall #2 at paragraph 41) [14] that: 1. help guide how this finite resource might be fairly shared; 2. in the right circumstances, justify infringing an existing treaty right. [85] The Supreme Court of Canada also confirmed that any such infringement based on such “substantial and compelling public purposes” must occur in a way that honours recognized treaty rights and advances the goal of reconciling indigenous rights and communities with the rest of Canadian society. In fact, as indicated above, the Court in Marshall #2 (paragraph 41) underlined and emphasized that “In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.” [86] I was not provided (and could find no authority) to support the propositions that: 1. Historical reliance upon, and participation in, the fishery by Indigenous (as opposed to non-Indigenous) groups is a “substantial and pressing public purpose” capable of actually infringing (as opposed to implementing) the Treaty Right.[15] 2. Subject to defining the scope and nature of the Treaty Right (including the definition of a “moderate livelihood”), Sipekne’katik faces the prospect of having a recognized treaty right infringed because it did not historically demonstrate sufficient reliance upon, or participation in, the fishery – as opposed to infringement based on a competing and important public objective such as conservation or sharing the resource with non-Indigenous groups, for example. In other words, to avoid having its treaty right justifiably infringed, Sipekne’katik might be compelled to compete with itself and its own historical reliance on the fishery. I can find no basis in the law for that proposition. [87] Respectfully, in my view, these propositions are not sufficiently material to the relevant considerations and are wrong at law having regard to the Supreme Court of Canada’s judgments discussed above including the statement that the doctrine of justification seeks to serve the broader goal of reconciliation. [88] Canada cites the “thread of continuity” concept as the legal basis upon which historic reliance upon, and participation in, the fishery by Indigenous groups becomes relevant to the issue of justification. Respectfully, this “thread of continuity” concept is engaged as part of the analysis into the nature and scope of treaty rights – not justification. Indeed, Canada written submissions reference this concept in that specific context (see paragraphs 16, 18 and 21 of Canada’s initial written submissions) I have not been provided and cannot find any legal support for the proposition that Indigenous historical reliance upon and participation in the fishery is also exported into the issue of justification as a relevant consideration. I note that the more recent Supreme Court of Canada decision in R v Desautel, 2021 SCC 17 refers to this notion of “thread of continuity” but, again, in the context of determining the nature and scope of aboriginal rights (at paragraph 34). [89] I wish to make clear that I am mindful of the care and caution the Court must exercise so as to not compromise the presumption of full disclosure. On this, I repeat that I have approach the issues regarding both the nature and scope of the Treaty Right and the definition of a “moderate livelihood” with such care and caution. At this early stage in the proceedings, I am not prepared to limit the scope of disclosure on those issues. However, in my view and for the reasons discussed above, the same level of caution is not appropriate on this specific issue (i.e. the historical reliance upon, and participation in, the fishery by the Indigenous group as a basis for justifiably infringing that groups own treaty right in the fishery). [90] I make two more practical observations regarding this disclosure request. These observations are not determinative but they are relevant to the issue: 1. The legal proposition advanced by Canada in support of this disclosure request (i.e. historical reliance and participation in the fishery by Indigenous groups) is a discrete topic that can be specifically and easily separated without undermining the goal of full disclosure. Unlike the issues discussed above regarding the nature and scope of the Treaty Right, this issue does not become intertwined or entangled with other issues. For example, the remaining issues surrounding the question of justification can still be fully debated and disclosure of relevant information regarding historical reliance and participation in the fishery by non-Indigenous groups can still be achieved in accordance with Gladstone, Marshall #2 and Delgamuukw; 2. Disallowing this disclosure request will achieve significant efficiencies. The parties will be required to make full disclosure but not in response to this discrete request. [91] In sum, I am not prepared to allow this specific disclosure request. In my view, respectfully, it is one of those clear cases where the disclosure request is based upon a narrow legal proposition that is obviously wrong and contrary to the law that is binding upon this Court. It also does not align with the parties’ pleadings and there are no other considerations which would tend towards declining the discretion to consider the underlying legal issue. In these unique and exceptional circumstances, requiring the parties to bring a further proceeding or, alternatively, be compelled to make the requested disclosure is unnecessary and would not further the promise of Rule 1.01 for a just, speedy and inexpensive determination of this proceeding. [92] Finally and to hopefully avoid any confusion, my determinations are obviously limited to this particular disclosure request in the context of the justification analysis. Clearly, and as will be apparent from my decision above regarding the scope and nature of the Treaty Right, historical evidence regarding Indigenous groups and their involvement with the fisheries may be relevant in another context. Requests 2 and 3 Regarding Justification or Accommodation [93] These disclosure requests generally relate to the issue of accommodation and, more specifically, government initiatives alleged developed to promote Indigenous access to the fishery (Request 2) or increase opportunities for Sipekne’katik to participate in the fisheries management process (Request 3). [94] As to Request 2, both Canada and UFCA tether this request directly to the pleadings (see, for example, paragraphs 56, 63 and 68 of Canada’s Statement of Defence) and describe these programs as an effort to accommodate and implement the Treaty Right. UFCA’s initial written submissions, paragraphs 45 – 51 and Canada’s initial written submissions, paragraphs 28 – 31. [95] Sipekne’katik responds that the Treaty Right must be distinguished from Indigenous engagement in both: 1. the commercial fishery because this involves the accumulation of wealth which, Sipekne’katik states goes beyond the bounds of the Treaty Right; and 2. facilitating fishing for food, social, and ceremonial purposes [96] Sipekne’katik argues that it “is artificial for Canada and UFCA to argue that other forms of participation in the fishery are relevant when the Treaty Right must co-exist alongside, but remain distinct from, both the commercial fishery and fishing for food, social, and ceremonial purposes.” (Sipekne’katik’s initial written submissions at paragraph 81) [97] At this stage of the proceeding, I am not prepared to compare or make binding determinations as to the various forms of participation in the lobster fishery and how they might overlap (or be distinguished from) the Treaty Right. In my view, these are issue not appropriately addressed as a disclosure issue but should be reserved for a future hearing based on a more complete record. [98] This category of documents shall be disclosed. [99] As to Request 3, the category of documents relates to Sipekne’katik’s involvement in fisheries management. The parties agree that the requests documents are relevant to the issue of accommodation or consultation. (See paragraphs 82 of Sipekne’katik’s initial written submissions; paragraph 33 of Canada’s initial written submissions and paragraph 55 of UFCA’s initial written submissions.) [100] The controversy is whether they are also relevant to the issue of justification. Canada and UFCA say that these requested documents are also relevant to the issue of justification. [101] Sipekne’katik’s argument against disclosure as relevant to the issue of justification are effectively limited to the broad statement that: Participation in fisheries management is not relevant to the Plaintiffs’ exercise of the Treaty Right or Canada’s defence of justification of an infringement of that Right. While Canada and the UFCA are correct that documents related to Canada’s efforts to consult the Plaintiffs are relevant, the Plaintiffs dispute that these documents are relevant to that issue. Fisheries management is distinct from the consultation regarding the Treaty Right. [paragraph 83 of Sipekne’katik’s initial written submissions] [102] Respectfully, I am not prepared to resolve Sipekne’katik’s question as to whether the same category of requested documents which are relevant to the issue of accommodation might also relevant to the issue of justification. I am also uncertain as to whether there would be any practical reason to engage in that exercise for the purpose of disclosure. In other words, the requested disclosure may be the same regardless of whether it is characterized as being relevant to the issue of accommodation. Or, worse, Sipekne’katik’s concerns cannot be discretely addressed without potentially compromising the disclosure process. [103] The issues of accommodation and justification are clearly relevant and based on valid points of law. Canada and UFCA have appropriately joined these issues in their pleadings. Respectfully, making a determination as to whether the documents should be disclosed because they are relevant to accommodation alone (and note justification) would be premature, impractical, and prejudicial. [104] The requested documents shall be disclosed. PRIVILEGE ISSUE [105] I turn now to the specific claim for privilege made by Sipekne’katik regarding the Framework Agreement and Main Table discussions, introduced at paragraph 9 above. [106] In the preamble to the Framework Agreement, the Provincial Crown, the Federal Crown and the 13 Mi'kmaq communities (including Sipekne’katik) acknowledged that they “may have differing views with respect to the legal status and effect of specific Mi'kmaq Treaties and the existence, scope, extent and beneficiaries of Mi'kmaq rights and title” but expressed the wish to: 1. “work together to resolve these issues and settle outstanding claims through negotiation rather than litigation.”; 2. “enter into these negotiations in a manner and spirit that respects and upholds the significance of the Mi'kmaq Treaties and the continuing treaty relationship of the Parties; and 3. “agree upon provisions that will set out their rights and responsibilities and will reconcile the constitutionally protected rights and interests of the Mi'kmaq people with the rights and interests of the people of Nova Scotia” [107] The subject matter of the negotiations included: “land and water”, “natural resources, both renewable and non-renewable”; “Resolution of claims for past infringement of Mi'kmaq rights and title”; “Capital transfer (money)”; “Other financial arrangements including transfers of capital assets and funding arrangements for implementation and governance” (Article 11) [108] The parties further, expressly confirmed their intention “to promote efficient, effective, orderly and timely negotiations towards a resolution of issues respecting Mi'kmaq rights and title.” (Article 11) To that end, the Framework Agreement further established “process parameters such as interim, or incremental, measures or agreements, approvals, the negotiation process, funding, termination and amendment” (Article 11) with priority being given to Mi'kmaq access to and management responsibilities regarding land and natural resources (Article 14) [109] Articles 33 and 34 of the Framework Agreement are particularly significant for the purposes of this disclosure motion. They state: 33. Whether or not disclosed to Mi'kmaq communities, stakeholders or the public: this Framework Agreement; all negotiations pursuant to it; all records, information or communications that disclose the content of negotiations, proposals or positions of the Parties; and the fact that any records were used in the negotiations; shall be: without prejudice to Mi'kmaq Aboriginal rights, including Aboriginal title, and treaty rights and the legal rights of, and positions taken by, any of the Parties in any legal proceeding, and shall not be construed as admissions of fact or liability; deemed not to recognize, deny, create, define, alter or affect Mi'kmaq Aboriginal rights, including Aboriginal title, and treaty rights and the legal rights or positions of any of the Parties; and construed not to be, and deemed not to be, consultation for the purpose of justification by Canada or Nova Scotia for the infringement of any Mi'kmaq Aboriginal right, including Aboriginal title, or treaty right. 34. Except for the purpose of enforcing Articles 31-34, 37-39, 50 and 59-62 of this Framework Agreement, the Parties undertake not to seek admission of, or voluntarily tender, evidence respecting any of the matters listed in Article 33 in a court of law or in any administrative, adjudicative or regulatory tribunal or board, and such matters shall be deemed to be privileged. [emphasis added] [110] To the extent any of the parties have any documentation or electronic information protected by the privilege asserted in this Framework Agreement, Sipekne’katik argues that the Court should exercise its inherent jurisdiction and also its authority under Rules 15.07 and 16.14 to depart from the procedural requirements of Rule 15.03(3)(f) and provide additional direction which will better preserve the underlying privilege. [111] Canada and Sipekne’katik agreed to maintain privilege over certain documents related to the Framework Agreement. However, they disagree as to how that privilege is best protected. [112] Canada and UFCA state that the existing procedural requirements and protections set out in Rule 14.06 surrounding disclosure are sufficient. Canada agrees that the Court retains a discretion to provide any necessary directions or make such procedural modifications around disclosure as may be needed in the circumstances, but that it is not necessary to exercise that discretion here. [113] In my view, additional directions beyond Rule 14.06 are necessary in the circumstances. My reasons include: 1. Preserving and protecting privileged information is obviously important; 2. Here, and unlike many civil actions: a. Sipekne’katik has proactively raised the privilege issue at an early stage and before disclosure is made; b. The claim for privilege relates to a specific and identifiable category of information; and c. The parties to whom the privilege belongs agree that the privilege exists and should be protected; 3. The privilege issue may be complicated by the facts that: a. Several persons may claim privilege over the documents, some of whom are parties and some of whom are not parties. For example, Nova Scotia is no longer a party to this litigation but it was a party to the Framework Agreement. As such, it may also seek to assert privilege over these documents; b. The parties in this action who may claim privilege are in an adversarial position to one another; and c. In this case, the risk that other parties to this action who cannot claim privilege (i.e. UFCA) may receive privileged information before any disputes or issues can be resolved has been reasonable identified in advance of disclosure. Additional instructions will help mitigate that risk. [114] In sum, the unique circumstances of this case make it clearly preferable to impose pre-emptive measures to the protect the claimed privilege then try and reactively mitigate the prejudice caused by the release of privileged information. [115] I direct that: 1. Canada and Sipekne’katik will undertake a process to review records in their possession that relate to the Framework Agreement, in conjunction with other parties to the Framework Agreement, and identify documents that all signatories agree were created pursuant to the Framework Agreement process. 2. Canada and Sipekne’katik will be required to individually list in Schedule B to their Affidavits Disclosing Documents the records that all parties to the Framework Agreement have agreed are subject to the Framework Agreement. 3. If Canada and/or Sipekne’katik identify documents in the course of the review process that the parties to the Framework Agreement do not agree are subject to the Framework Agreement, Canada and/or Sipekne’katik, as appropriate, will identify those documents in Schedule B to their Affidavit(s) Disclosing Documents. To ensure the Affidavit truthfully describes any claims for privilege, Schedule B should separately list: a. those documents where the parties who may claim privilege in the instance (e.g. Canada, Sipekne'katik or Nova Scotia) agree on privilege, subject to review and perhaps challenge by UFCA; and b. those documents where the parties who may claim privilege in the instance (e.g. Canada, Sipekne'katik or Nova Scotia) do not agree as to whether privilege applies but, consistent with my directions, shall act to preserve any asserted privilege pending any requested review by the Court. 4. Any party may bring a motion to compel production of documents listed in any other party’s Affidavit Disclosing Documents at Schedule B, in the usual course. Keith, J. Appendix “A” Disclosure Requests That Were Resolved or Withdrawn [1] AG (Canada) and UFCA requested: 1. Documents regarding the “territorial extent of the Treaty Rights”; and 2. [D]ocuments regarding the location of Sipekne’katik’s traditional fishing grounds. [2] Sipekne’katik no longer objects to their production but, for clarity, does not necessarily agree that they are relevant at trial. Here, it bears noting that Rule 14.01(2) confirms that a determination of relevancy or irrelevancy for the purposes of disclosure is not binding at the trial of an action. [3] I understand the following two additional disclosure requests have been withdrawn and are not in dispute: 1. [14] Documents regarding Canada or Nova Scotia's efforts to consult regarding, accommodate, or reconcile, the Plaintiffs' exercise of their Treaty Rights, such as: … (b) Documents, such as internal analyses, minutes of meetings, or correspondence between the parties, regarding Canada or Nova Scotia's efforts to accommodate the Treaty Rights, including the: … ii. Use of Aboriginal Communal Commercial Fishing Licences 2. [14] Documents regarding Canada or Nova Scotia's efforts to consult regarding, accommodate, or reconcile, the Plaintiffs' exercise of their Treaty Rights, such as: … (d) Documents regarding … Sipekne'katik, or their members (individually or collectively or via First Nation controlled corporations), seeking, being offered, or receiving fish buyers or fish processors licences from Nova Scotia, and on what basis, including any documents regarding total sales/production activity conducted pursuant to such licences. SUPREME COURT OF Nova Scotia Citation: Sack v. Canada (Attorney General), 2023 NSSC 35 Date: 20230405 Docket: Hfx No. 510920 Registry: Halifax Between: Chief Michael Sack, on his own behalf and on behalf of the members of Sipekne’katik Plaintiff v. Attorney General of Canada Defendant v. Unified Fisheries Conservation Alliance Intervenor ERRATUM Judge: The Honourable Justice John Keith Heard: Written Release: July 20 and 21, 2022, in Halifax, Nova Scotia April 5, 2023 Erratum Date: April 17, 2023 Para. 115(2) – line 1 – the word “not” has been removed Para. 115(3)(b) – lines 2 and 3 – the words “agree on privilege” have been removed [1] I have adjusted the request wording bearing in mind that Potlotek and Nova Scotia are no longer parties to these actions. [2] I note that there were originally an additional two subcategories of documents: (i) documents regarding the “territorial extent of the Treaty Rights”; and (ii) “documents regarding the location of Sipekne’katik’s traditional fishing grounds”. Sipekne’katik no longer objects to their production but, for clarity, does not necessarily agree that they are relevant at trial. [3] There were at least two related problems: 1. First, the “semblance of relevance” test was sufficiently elastic as to justify potentially endless demands for greater production without regard to time or expense; 2. Second, the “semblance of relevance” test was sufficiently broad as to enable dumping mountains of insignificant information; leaving the receiving party to sift through the detritus, hoping to find something material. Thus, historic concerns over “trial by ambush” were replaced with a different type of risk sometimes called “trial by avalanche”. The resulting prejudice in the form of unnecessary delay and expense is particularly acute in the digital age where massive amounts of data can be produced instantaneously. See also Brown v Cape Breton (Regional Municipality), 2011 NSCA 32 at paragraph 9 where Bryson, J.A. confirmed the underlying rationale, quoting from Moir, J. in Saturley v CIBC World Markets Inc., 2012 NSSC 57 who, in turn, quotes from Jones, J.A. in Central Mortgage & Housing Corporation v Foundation Company of Canada Limited (1982), 54 N.S.R. (2d) 43, 112 A.P.R. 43, at paragraph 49: “Whereas the former Rules prevented pre-trial disclosure of evidence, I think one can now say the opposite is true. The object is to avoid surprise, simplify the issues and, hopefully, discourage the need for continued litigation ...” (emphasis added). [4] The scope of discovery governed by Rule 18.13(1) confirms that a witness at a discovery must answer questions that ask for relevant evidence and “information that is likely to lead to relevant evidence” [emphasis added]. The phrase “likely to lead to relevant evidence” is repeated in Rule 18.13 regarding the scope of discovery, but it does not appear in the Rules regarding disclosure. [5] Note that while disclosure disputes will be approached from the perspective of the judge at trial, and any findings regarding relevancy are not binding upon the trial judge. (Rule 14.02) [6] Two additional brief comments in the interest of clarity: 1. There duty of disclosure goes beyond simply delivering relevant information to opposing parties after the close of pleadings. Parties are under a legal obligation to become knowledgeable about, and preserve, relevant information pre-dates the close of pleadings. See, for example, Rules 15.02 and 16.02. Indeed, the intentional destruction of relevant evidence when litigation is existing or pending may give rise to claims of spoliation. (See McDougall v Black and Decker Canada Inc., 2008 ABCA 353 recently cited in Zwicker v Canada (Attorney General), 2023 NSSC 44 at paragraphs 99 – 100.) I mention these issues only to provide a more complete description of the disclosure obligation. No party in this case has alleged or suggested any sort of failure to preserve relevant information. 2. There are exceptional circumstances in which disclosure may be obtained before the close of pleadings or even before an action is commenced. Consider, for example, the equitable remedy of pre-action discovery often described as a “Norwich Order” (See GEA Group AG v Ventra Group, 2009 ONCA 619) Again, I mention this issue for clarity and completeness only. In this case, there is no issue around premature disclosure. [7] Similarly, in Wilson Fuel Co. v Power Plus Technology Inc., 2015 NSSC 304, LeBlanc, J. wrote at paragraph 17: “A determination of relevance must therefore be made with reference to the facts in issue as identified in the pleadings. However, even if alleged in the pleadings, a fact will not truly be in issue unless it is a necessary and material allegation. To meet the test for relevance, then, (1) the document or electronic information must prove or render probable the past, present or future existence or non-existence of a fact; (2) the fact must relate to an allegation set out in the pleadings; and (3) the allegation must not be unnecessary or immaterial to the claim or defence: see generally The Law of Evidence in Canada at §§2.43-2.49.” [8] To fully understand the import of Justice Farrar’s statement, it must be placed into its proper context within the entirety of the Intact decision. The Plaintiff sustained injuries in a motor vehicle accident. The Defendant injurer reimbursed the Plaintiff for some of her medical expenses but denied coverage for a surgical procedure. The Plaintiff sued and, among other things, alleged bad faith. The Plaintiff subsequently sought disclosure of the Defendant insurer’s policies, procedures, guidelines, internal documents and other documentation outlining how accident benefit claims are handled and resolved. Notably, discovery examinations had occurred but this production request did not form the basis of either an undertaking or refusal. Having not requested the information during discovery, the Plaintiff was obliged to bring a motion for disclosure under Rule 15 well after the disclosure process was completed – and not under the arguably more expansive Rule 18.13 regarding the scope of discovery. Farrar, J.A. expresses a concern around this at paragraph 20 of his decision. In any event, the Plaintiff pleaded bad faith broadly but did not allege that the Defendant insurer failed to comply with its internal policies. Adding to the lack of material facts in the pleading, the Plaintiff was also “unable to point to anything in the record that substantiates non-compliance or shows that such policies even exist” and similarly provided “absolutely no evidence of any lack of good faith on the part of [the insurer]” (at paragraph 19). I note that the lack of evidence was particularly troubling given that the normal process of completing disclosure before discovery examination had been reversed such that the disclosure demand was coming after discovery examinations. In the absence of any concrete pleading or evidence that might reasonably connect the request to an actual, live issue, the disclosure demand was simply grasping for hypothetical evidence that, if it existed, might potentially be relevant to the claims. This type of disclosure is often condemned as a “fishing expedition”. Farrar, J.A. concluded (at paragraphs 45-46) that the production request was overly broad and ambiguous having regard to the Plaintiff’s narrow claim and, taken literally, resulted in excessive disclosure regardless of any recognizable connection to the actual claims being advanced. [9] A party resisting disclosure on the basis of an overly broad disclosure request is different from the concept of modifying the presumption of full disclosure on the basis of proportionality in Rules 14.08(3) and (4). I note that in Intact, Farrar, J.A. did not modify the presumption of full disclosure on the basis of cost, burden or delay. Rather, he simply confirmed the more practical point that overly broad disclosure demands extend beyond the bounds of full disclosure - as opposed to modifying (or limiting) the boundaries of full disclosure. [10] Relevant information that is private or confidential but not otherwise privileged must be disclosed, subject to certain exceptions such as those found in sections 37 – 39 of the Canada Evidence Act which claims are to be determined through the process established under that statute. (see Rule 14.05)(4)). No such exceptions are raised or relied upon in this motion. [11] As indicated, Sipekne’katik withdrew an original objection to disclosure of two other categories of documents related to the territorial extent and location of the Treaty Right. See footnote 2 above. [12] The decision in Marshall #1 was released on September 17, 1999. The decision in Marshall #2 dismissing the request for a rehearing was released on November 17, 1999. [13] I note that paragraph 21 begins by describing the “rights and views of First Nations” as a “substantial and compelling public purpose” to be taken into account and balanced against “other substantial and compelling public purposes, including (but not limited to): …the historical reliance and participation in the fishery by non-Indigenous groups.” I return to the question of whether the “rights and views of First Nations” can be characterized as a “substantial and compelling public purpose” for the purposes of justification (i.e. whether a treaty right is justifiably infringed) at footnote 16 below. [14] Other substantial and compelling public purposes or objectives included the conservation of fish and sustainable use of fisheries resources, and regional and economic fairness. [15] On this and as mentioned, paragraph 21 of Canada’s defence refers to the “rights and views of First Nations” and it suggests that the Treaty Right itself may represent a “substantial and compelling public purpose” in the justification analysis. In other words, the Treaty Right is one of several valid objectives that should be weighed and balanced when assessing whether an alleged infringement is justified. For analytical clarity, the recognized Treaty Right is not a public objective in terms of how that term (“public objective”) is used when seeking to justify an infringement of the Treaty Right. The Treaty Right is a recognized right, protected under section 35(1) of the Canadian Charter of Rights and Freedoms. Indeed, Canada’s defence expressly accepts that it seeks to operate “in light of existing treaty rights” (at paragraph 10) This is not to say that the Treaty Right cannot be infringed. On the contrary, this right may be justifiably infringed, in the right circumstances, on account of certain competing interests deemed to have a substantial and compelling public purpose. The concern is to avoid misstating (and potentially diminishing) the Treaty Right as simply one of many potential “objectives” that are examined collectively when assessing whether an infringement is justified. If one imagines the ancient weighing apparatus called a “balance”, the Treaty Right is on one side of the “balance” and the valid public objectives which may justify an infringement of the Treaty Right are on the other side. Obviously, I make no comment as to how this analysis might unfold in this case. That issue if for another day.