Chatham-Kent (Municipality) v. Canada

Chatham-Kent (Municipality) v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2002-05-02 Neutral citation 2002 FCA 170 File numbers A-549-01 Decision Content Date: 20020502 Docket: A-549-01 Neutral citation: 2002 FCA 170 CORAM: DÉCARY J.A. ROTHSTEIN J.A. NADON J.A. BETWEEN: CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT Appellant - and - HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT and THE DEPARTMENT OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT Respondents Heard at Toronto, Ontario on Thursday, May 2, 2002 Judgment delivered from the Bench at Toronto, Ontario on Thursday, May 2, 2002. REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A. Date: 20020502 Docket: A-549-01 Neutral citation: 2002 FCA 170 CORAM: DÉCARY J.A. ROTHSTEIN J.A. NADON J.A. BETWEEN: CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT Appellant - and - HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT and THE DEPARTMENT OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario on Thursday, May 2, 2002) ROTHSTEIN J.A. [1] In this appeal from a decision of Lemieux J. of September 13, 2001, the sole issue is whether the learned Trial Judge erred in finding that the Crown did not waive solicitor-client privilege over certain legal opinions pertaining to land claims involving the Caldwell First Nation. [2] Lemieux J.'s decision was an appeal from a decision of Prothonotary Lafrenière which also found there had been no waiver. Lemieux J.'s reasons indicate that he considered the applicable law in relation to appeals from discretionary decisions of prothonotaries. His reasons also indicate that he had regard to the relevant law pertaining to implied waiver of solicitor-client privilege by partial disclosure of a legal opinion. He considered the legal opinions and the information that had been disclosed and concluded that there had been no implied waiver. [3] Although he did not expressly state the specific factors to be taken into account in a case of alleged implied waiver, his reference in his reasons to the decision of Dubé J. in Begetikong Anishnabe v. Canada (Minister of Indian Affairs and Northern Development) (1997), 138 F.T.R. 109, affirmed by this Court at (1998) 234 N.R. 24, indicate that he had these considerations in mind in arriving at his conclusion. [4] We have not been persuaded that Lemieux J. erred in law, fact or in the exercise of discretion. We will dismiss the appeal with costs, as requested, of $2,500 inclusive of disbursements to Her Majesty the Queen and payable forthwith. "Marshall Rothstein" J.A. FEDERAL COURT OF CANADA Names of Counsel and Solicitors of Record DOCKET: A-549-01 STYLE OF CAUSE: CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT Appellant - and - HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT and THE DEPARTMENT OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT Respondents DATE OF HEARING: THURSDAY, MAY 2, 2002 PLACE OF HEARING: TORONTO, ONTARIO REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A. DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON THURSDAY, MAY 2, 2002. DATED: THURSDAY, MAY 2, 2002 APPEARANCES BY: Mr. Alan Pope For the Appellant Mr. Jonathan Batty, and Ms. Stephanie Paul For the Respondents Page: 2 SOLICITORS OF RECORD: Alan W. Pope Barrister & Solicitor 202-101 Cedar Street South Timmins, Ontario P4N 2G7 For the Appellant Morris Rosenberg Deputy Attorney General of Canada For the Respondents FEDERAL COURT OF APPEAL Date: 20020502 Docket: A-549-01 BETWEEN: CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT Appellant - and - HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT and THE DEPARTMENT OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT Respondents REASONS FOR JUDGMENT OF THE COURT