Cowichan Tribes v. Canada (Attorney General)

2020 BCSC 1175 Cowichan Tribes v. Canada (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cowichan Tribes v. Canada (Attorney General), 2020 BCSC 1175 Date: 20200715 Docket: 14-1027 Registry: Victoria Between: Cowichan Tribes, Squtxulenuhw, also known as William C. Seymour Sr., Stz'uminus First Nation, Thỏlmen, also known as John Elliott, Penelakut Tribe, Suliisuluq, also known as Earl Jack, Halalt First Nation, and Sulsimutstun, also known as James Thomas, on their own behalf and on behalf of all other descendants of the Cowichan Nation Plaintiffs And: The Attorney General of Canada, Her Majesty the Queen in Right of the Province of British Columbia, the City of Richmond, the Vancouver Fraser Port Authority, the Musqueam Indian Band and the Tsawwassen First Nation Defendants Before: The Honourable Madam Justice Young Oral Ruling on Plaintiffs' Document Objection Counsel for Plaintiffs: A. G. Murphy Counsel for Defendant Attorney General of Canada: M. P. Seebaran Counsel for the Defendant Her Majesty the Queen in right of the Province of British Columbia: G. R. Thompson Counsel for the Defendant Musqueam Indian Band: K. Shupe Counsel for Defendant Tsawwassen First Nation: S. Gyawali Place and Date of Trial/Hearing: Victoria, B.C. July 15, 2020 Place and Date of Judgment: Victoria, B.C. July 15, 2020 [1] THE COURT: This is a ruling on the plaintiffs' document objection. Dr. Brealey was deposed in April and May 2019

in preparation for this trial. The time frame preparing for the deposition was dramatically compressed because of Dr. Brealey's failing health. [2] The defendant British Columbia raised four documents in cross-examination which had not previously disclosed to the plaintiffs and which were unknown to Dr. Brealey. The failure to disclose the documents denied the plaintiffs the opportunity to review these documents with Dr. Brealey prior to the deposition. [3] Some of those documents became available to the defendant British Columbia sometime in February 2019 when their expert cartographer, Mr. Smith, made reference to them in his report. [4] Since there was no adjudicator to rule on the objection during a pre-trial deposition, British Columbia was allowed to ask the impugned questions subject to objection. I am ruling on the objection prior to hearing that portion of the cross‑examination. In the event that I deny leave to rely on these documents, that portion of the cross-examination will be expunged.

THE DOCUMENTS [5] The first impugned document, SC12584, entitled "Trutch Correspondence," was marked Exhibit A to the deposition. It is a handwritten letter to Colonel Moody from Joseph Trutch dated June 20, 1859, with attachments. This group of letters has not been marked in these proceedings to date -- or until yesterday, and was marked yesterday for identification during the trial as Exhibit A-255. It attaches a contract dated June 20, 1859, and a memorandum of agreement between Trutch and Moody. [6] The second impugned document, SC12503, is a memorandum of agreement between Moody and Trutch dated July 25, 1859. This document has since been produced in this trial and was marked as a lettered Exhibit, A-172, for identification. Dr. Kennedy was cross-examined by British Columbia on this document on January 7, 2020. This was of course three quarters of a year after the Brealey deposition. [7] The third impugned document, SC12504, is a certification of completion of Trutch survey from Colonel Moody dated August 20, September 6, September 20 and October 6, 1859. This document has since been marked for identification during the cross-examination of Dr. Kennedy as Exhibit A-165. [8] The fourth impugned document is SC13777. It is a manual for instruction to the Surveyor-General of Lands and Works of the United States. It has not been previously marked and has now become Exhibit A-256 in this trial. [9] Prior to the deposition of Dr. Brealey he had not seen these documents.

LEGAL PRINCIPLES [10] Technically I agree that the -- that British Columbia should have applied for leave to cross-examine on these documents that had not been properly disclosed. Supreme Court rule 7-1(21) says: Unless the court otherwise orders, if a party fails to make discovery of or produce for inspection or copying a document as required by this rule, the party may not put the document in evidence in the proceeding or use it for the purpose of examination or cross-examination. The words "unless the court otherwise orders" indicates that the court has residual discretion to allow the questioning for the document. [11] That discretion should only be exercised if the court is satisfied that certain criteria are met. The criteria were succinctly set out in a decision of Justice Harris in Tran v. Kim Le Holdings cited at 2011 BCSC 1463 at p. 19, which I paraphrase here. [12] The court's discretion to allow a party to introduce into evidence a trial document for which notice has not been given in accordance with the rules should be exercised considering the following factors: a) will there be a prejudice to the opposing parties due to the lack of notice of the documents or a witness; b) is there a reasonable explanation for the delay in disclosure of the documents or witness; c) will precluding the admission of the late-producing evidence prevent determination of the case on

the merits; and/or d) in the circumstances of the case, do the interests of justice weigh in favour of allowing the evidence to be admitted. I will now analyze each of these factors. Prejudice to the opposing parties due to lack of notice [13] I find there has been prejudice to the plaintiffs in cross-examining their expert on documents which had not been previously disclosed. The lack of disclosure prevented the plaintiffs from discussing documents with their expert but also denied him the opportunity to analyze the documents to determine whether the documents changed any portion of his analysis. It is simply not an answer to this prejudice to say I gave him an extra hour at lunch to read over the documents given that there were in excess of 100 pages of material to read. [14] It is true that counsel for British Columbia narrowed the scope and said with respect to the longer document, he would only question the witness on 10 pages. But I agree with Ms. Murphy that a prudent expert would still wish to review the entire document. Is there a reasonable explanation for the party's failure to disclose the document? [15] The defendant British Columbia became aware of the document when their own expert cartographer, Mr. Smith, made reference to them in his report. Mr. Smith's final expert report was produced in February 2019, so I must assume that British Columbia had seen previous

drafts or at least received a copy of the final report in advance of their producing it. Their expert listed these documents in his sources, and so they were readily available to the defendant British Columbia. [16] I do not suggest British Columbia intentionally withheld disclosure. I find they inadvertently failed to disclose these documents. This is a case of great documentary magnitude, and I appreciate having only two months to prepare for a deposition of an expert on two reports is a rushed time frame. [17] I do not find any wrongdoing on behalf of British Columbia, nor do I find that there is a reasonable explanation for failure to disclose. BC had two months' notice that these documents existed and due to inadvertence did not disclose them. The explanation for failure to disclose is a neutral factor in my decision. Whether excluding the documents would prevent the determination of the issue on the merits [18] The documents refer to Joseph Trutch's contract with Colonel Moody, Commissioner of Lands and Works, to survey Lulu Island. Apparently the documents reveal that Trutch was being directed to use an American system of surveying. Some of the documents set out what that American system entails. [19] Presumably the submissions will be something to the effect that the American surveying system is inconsistent or not reliable. Dr. Brealey was not in a position to comment

on the documents. It is not clear to me that this evidence is critical to the defence. It is also apparent that this evidence may be put to other witnesses. Dr. Kennedy has already been questioned on some of these documents. [20] The defendant British Columbia is calling Mr. Smith, who is a cartographer, and who included these documents in his report. The plaintiffs are calling Mr. Layland, who is also a cartographer, and who apparently made reference to these documents as well. The evidence can therefore be led through these witnesses and does not have to be led through Dr. Brealey. Denying this line of questioning will not prevent a determination of the issue on its merits. Do the interests of justice weigh in favour of allowing the evidence to be admitted? [21] In the end I conclude that the interests of justice favour disallowing this line of questioning. I am mindful of the strained circumstances under which this deposition took place. Dr. Brealey was critically ill, and it seems unfair to the plaintiffs that he would be presented with undisclosed documents in the middle of his deposition. Although unintentional, this type of ambush is what the rules disallow.

CONCLUSION [22] The documents themselves will remain as lettered exhibits potentially to be marked as numbered exhibits through other witnesses. Cross-examination on these documents of Dr. Brealey will be expunged. "B. M. Young, J." The Honourable Madam Justice Young