Cowichan Tribes v. Canada (Attorney General)

2020 BCSC 357 Cowichan Tribes v. Canada (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cowichan Tribes v. Canada (Attorney General), 2020 BCSC 357 Date: 20200313 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 Ruling re Admissibility of Meeting Notes as Business Records under s. 30 of the Canada Evidence Act Counsel for Plaintiffs: M. Boulton and M. Berlin Counsel for Defendant Attorney General of Canada: L. Nevens and J. Minkley Counsel for Defendant Her Majesty the Queen in right of the Province of British Columbia: M. Volk Counsel for the Defendant City of Richmond: T. Bant Counsel for Defendant Musqueam Indian Band: M. Macaulay and A. Wilson Place and Date of Trial/Hearing: Victoria, B.C. February 19, 24 and 27, 2020 Place and Date of Judgment: Victoria, B.C. March 13, 2020

INTRODUCTION AND OVERVIEW [1] In this action the plaintiffs seek declarations of aboriginal title to lands along the south shore of Lulu Island in the City of Richmond and a right to fish the south arm of the Fraser River. The plaintiffs seek to introduce into evidence handwritten meeting notes dated April 29, 2011 recorded by Larry George (the "Meeting Notes"). Mr. George is the Lands and Governance Director for the plaintiff, Cowichan Tribes. [2] The plaintiffs submit that the Meeting Notes are business records as defined by s. 30 of the Canada Evidence Act, R.S.C. 1985, C-5 ("CEA"), or alternatively are admissible under the common law business records exception to the hearsay rule as set forth in Ares v. Venner, [1970] S.C.R. 608 (S.C.C.). [3] The defendant Canada accepts the admissibility of the Meeting Notes for authenticity and to prove that the comments were made at the meeting but not for the truth of their contents. Canada submits that both the CEA and the British Columbia Evidence Act, R.S.B.C. 1996, c. 124 ("BCEA") apply. [4] For the reasons set out below I find that the Meeting Notes are admissible as business records pursuant to the CEA. For that reason I have not considered whether the BCEA applies to the Meeting Notes. THE PARTIES' POSITIONS Plaintiffs' Submissions [5] Counsel for the plaintiffs submit that the Meeting Notes are admissible as business records

under s. 30 of the CEA. Section 30(1) authorizes admission of business records where oral evidence would be admissible in a legal proceeding and where the record was made in the usual and ordinary course of business. [6] The plaintiffs submit that Mr. George made the Meeting Notes in the usual and ordinary course of business in his capacity as the Lands and Governance Director for Cowichan Tribes. The plaintiffs argue that the work of Cowichan Tribes falls within the definition of "business" as that term is defined in s. 30(12) of the CEA. [7] The plaintiffs rely on the decision in Apsassin v. The Queen, [1987] 4 C.N.L.R. 14 (F.C.) in which the court found that Indian band council resolutions were admissible as business records under the CEA. Plaintiffs' counsel also points to Mr. George's testimony that his department is responsible for governance administration, including property and asset management, environment and resources, justice, specific land claims, land management and fisheries. [8] The plaintiffs say that Mr. George had a duty to keep notes of meetings with Fisheries and Oceans Canada ("DFO") because he is required to convey accurate information to the General Manager of Cowichan Tribes, as well as the fishing committee, the Chief and Council. Further, Mr. George testified that he relies on his notes for the preparation of subsequent reports. [9] The plaintiffs

say that any frailties regarding the reliability of the notes are a matter of weight and not admissibility: R. v. Smith, 2011 ABCA 136. Canada's Submissions [10] The defendants do not object to the admission of the Meeting Notes as an authentic record and an account of what Mr. George heard at the meeting. The Meeting Notes have been admitted on that basis and marked as Exhibit 404 in these proceedings. However, the defendant Canada objects to admitting the notes for the truth of their contents under s. 30 of the CEA or under the common law business records exception to the rule against hearsay. [11] The defendant Canada acknowledges that a First Nations' government likely falls within the definition of "business" as defined in s. 30(12) of the CEA. The defendant objects to admission of the Meeting Notes for the truth of their contents for four main reasons. The defendant's objections were initially based on s. 42 of the BCEA. Subsequently, the plaintiffs indicated that they were seeking admission of the Meeting Notes under s. 30 of the CEA and the defendant made further submissions. [12] First, Canada says that Mr. George did not have a duty to record the Meeting Notes. [13] Second, Canada says that the notes were prepared when litigation was reasonably contemplated, and are therefore inadmissible under s. 30(1) of the CEA. [14] Third, Canada submits that some of the

statements in the Meeting Notes are opinion and argument, rather than statements of fact, and are accordingly inadmissible as a business record. [15] Fourth, Canada argues that the Meeting Notes are unreliable as Mr. George was not trained in transcribing occurrences and it is unlikely that he would have captured everything that was discussed at the meeting. Further, counsel argues that there was no mechanism for others at the meeting, including representatives of the DFO, to review Mr. George's notes or ensure their accuracy. Accordingly, defendant's counsel says the notes lack the circumstantial guarantees of reliability typically associated with the creation of business records. Alternatively, the defendant argues that if the notes are admissible under the business records exception, they should be given very little weight given the circumstances surrounding their creation.

ISSUE [16] The contested issue arising on this application is whether the Meeting Notes are admissible under s. 30 of the CEA, or alternatively, under the common law business records exception.

LEGAL ANALYSIS [17] Hearsay is presumptively inadmissible. Hearsay evidence includes written and oral statements made outside of proceedings, adduced to prove the truth of their contents, without the contemporaneous opportunity to cross-examine the declarant: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th Ed. (Toronto, Ont.: LexisNexis Canada, 2018, p. 249, s. 6.4.) As the plaintiffs seek to tender the Meeting Notes for the truth of their contents, the notes are hearsay and must come within a statutory or common law exception to the rule. [18] The plaintiffs rely on s. 30 of the CEA, which in effect creates a statutory exception to the rule against hearsay evidence. Section 30(1) provides: 30 (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record. [19] The Court of Appeal reviewed the rationale underlying s. 30 of the CEA in R. v. Jahanrakhshan, 2013 BCCA 128 ("Jahanrakhshan") at para. 12, citing with approval the comments of the trial judge: The apparent rationale for s. 30 was stated by Callaghan in R. v. Grimba, (1977), 38 C.C.C. (2d) 469. At [471], Justice Callaghan says: Section 30 was placed into the Canada Evidence

Act in 1968. It would appear that the rationale behind that section for admitting a form of hearsay evidence is the inherent circumstantial guarantee of accuracy which one would find in a business context from records which are relied upon in the day to day affairs of individual business, and which are subject to frequent testing and cross-checking. [20] In R. v. Blackmore, 2016 BCSC 2114 ("Blackmore"), Pearlman J. held that s. 30(1) of the CEA establishes two substantive requirements for admission of a business record. First, the proposed evidence must be a record made in the usual and ordinary course of business. Second, the record must contain the same information "where oral evidence in respect of a matter would be admissible in a legal proceeding": Blackmore, para. 133; Martin at para. 35. [21] The inclusion of double hearsay in a business record does not preclude its admission under s. 30(1): Blackmore, para. 134; Martin, paras. 48-50. Instead, the record-keeper's lack of personal knowledge of the events described may affect the weight that the trier of fact ultimately gives to the evidence. Were the Meeting Notes made in the usual and ordinary course of business? [22] To satisfy the requirements of s. 30(1) of the CEA the plaintiffs must demonstrate that the Meeting Notes were made in the usual and ordinary course of business. [23] Section 30 (12) of the CEA defines

business broadly: business means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government; [24] The April 29, 2011 meeting was attended by DFO representatives, including the Area Director for the South Coast Area, the Resource Manager for salmon, herring and shellfish for the South Coast and the Aboriginal Affairs Advisor for the South Coast region. Cowichan Tribes, Penelakut, Stz'uminus, Halalt, and Hwlitsum (the "First Nations Communities") were represented by their chiefs or staff authorized by their nation to discuss the harvesting of fish for the coming year. I find that the work done at this meeting falls within the definition of "business". [25] Mr. George testified that he made the Meeting Notes contemporaneously while meeting with the representatives of the DFO in his capacity as Lands and Governance Director for Cowichan Tribes. Mr. George testified that fisheries and governance are part of his department. He gave evidence that Cowichan Tribes leadership specifically directed him to participate in efforts

to have the south arm of the Fraser River added to Cowichan Tribes' aboriginal fisheries strategy agreements with the DFO. The letters which preceded the meetings (Exhibits 365 and 403) indicate that the April 29, 2011 meeting was set up in furtherance of that initiative. [26] Mr. George testified that it is his practice to take notes during meetings. He gave evidence that, depending on the importance or urgency of a particular issue, he is required to report on his meetings with the DFO to the Chief and Council. Mr. George testified that he directly reports to the General Manager of Cowichan Tribes, and that he also has an obligation to bring relevant information forward to the fishing committee. Mr. George said that the Council, the Chief, the General Manager and the fishing committee rely on him to provide accurate summaries of his meetings with the DFO. Further, Mr. George testified that he relies on his notes to provide accurate summaries of meetings with the DFO in order to prepare follow up reports. [27] The plaintiffs' initial submissions asked the court to admit the Meeting Notes under s. 42 of the BCEA. To meet the requirements of s. 42, the person making the notes must have a duty to record the notes as part of the ordinary course of their business: Cambie Surgeries Corporation v. British Columbia (Attorney General), 2018 BCSC 859 at para.

16. Section 30 of the CEA does not include a requirement that the person making the record be under a duty to make it. [28] While the plaintiffs are not required to show that Mr. George had a duty to make the Meeting Notes in order for them to be admitted as a business record under s. 30 (1) of the CEA, in my view Mr. George did have a duty to record what he observed at that meeting and did so in the ordinary course of business. Were the Meeting Notes made in contemplation of litigation? [29] The defendant's primary objection to admission of the Meeting Notes under s. 30 of the CEA is that the notes were made in contemplation of litigation. Section 30(10)(a)(ii) of the CEA provides that s. 30 does not permit admission into evidence of any part of a record made in contemplation of a legal proceeding: (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding, [30] Counsel for the defendant points out that the subject matter of the April 29, 2011 meeting was the plaintiffs' asserted right to fish the south arm of the Fraser River, which is a core issue in this trial. Counsel notes that the plaintiffs' lawyer in these proceedings, Mr. David Robbins, was in attendance and was putting the plaintiffs'

position regarding their asserted fishing right forward at the meeting. [31] In R. v. Farhan, 2013 ONSC 7094 ("Farhan") the court held that the exception for records made in contemplation of legal proceeding is in place because records created in those circumstances lack inherent reliability: para. 12. [32] The court in Farhan found a purposive approach to interpreting s. 30(10)(a)(ii) is warranted, and requires an analysis of whether the circumstances in which the record was created are potentially unreliable. The court found that the record in that case (a mugshot) made while an investigation was ongoing and legal proceedings were contemplated was not excluded in part because the record itself was not made in contemplation of the legal proceedings. [33] In this case the meeting was set up between representatives of the First Nations Communities and the DFO to discuss the 2011 fishing season. In the meeting the First Nations Communities sought to substantiate the aboriginal right to fish including for Fraser River salmon. In a letter to DFO representatives dated January 14, 2011 (Exhibit 365) the First Nations Communities invited representatives of the DFO to meet. The letter included the following enclosures: A. A copy of the expert report, including maps, of Dr. Kenneth Brealey, historical geographer and cartographer, entitled "Historical Geography of Cowichan Land Use and

Occupancy on the Lower Fraser River, Map Series and Report", dated May 31, 2010. B. a DVD copy of the affidavit of Dr. Barbara Lane, anthropologist, dated December 2, 2009 which provided an abbreviated chronology of historical documents substantiating her stated opinion regarding the historic Cowichan people's long term use and occupation on the Fraser River delta. [34] Exhibit 365 invites the DFO to constructively engage in a process of accommodation and reconciliation of the First Nations Communities' aboriginal fishing related interests on the Fraser River. [35] Legal counsel for Cowichan Tribes, Mr. Robbins, was present at the meeting. It is also noteworthy that there are some redacted portions of the Meeting Notes. My understanding is that the redaction relates to treaty negotiation privilege. [36] The evidence supports a conclusion that Mr. George had a practice of taking notes of meetings for the purpose of reporting to the General Manager, the Council and the Chief of Cowichan Tribes, as well as for the purpose of preparing follow-up reports. There is no evidence that the notes Mr. George prepared on April 29, 2011 were made for any other purpose, or made in connection with, or in contemplation of these legal proceedings or any other. [37] The inclusion of the reports of Dr. Brealey and Dr. Lane does not change my view. Those reports were prepared for a strength of

claim submission the First Nations Communities made to the DFO for the purpose of negotiating a permanent change to their fishing rights. [38] I conclude that the Meeting Notes are not excluded under s. 30(10)(a)(ii) of the CEA. [39] The Meeting Notes record the following unattributed statements of opinion that are central to the plaintiffs' contested claims: -start of mainland interests by V.I. FN, as described by Jan letter and Brealey Report. historic Cowichan Nations that occupied Fraser 1820-80. HBC entered Fraser and encountered the Cow. Nations. 1824 - 1892 CT denied access to Fraser b/c did not have land base there regain access to Fraser [40] The statements appear to recount the views of a historical geographer and anthropologist that the plaintiffs relied on for their strength of claim submission. The person who made the statements is not identified. I find that these notes should be redacted as they contain inadmissible opinion evidence. Unlike the statements in the remainder of the notes, these statements do not satisfy the requirement that the record contain information that would be admissible by way of oral evidence. Section 30(1) of the CEA is not a mechanism for tendering expert opinion without complying with the rules governing admission of expert evidence. For the same reasons, the statements are not admissible for the truth of their contents under the common

law business records exception. Is the record inadmissible because of lack of personal knowledge? [41] The defendants object to admission of the Meeting Notes on the basis that Mr. George did not have personal knowledge of all of the matters discussed and the Meeting Notes contain double hearsay. There is no evidence that the Meeting Notes were circulated to the other attendees at the meeting with a view to confirming their accuracy. [42] On March 6, 2020, Mr. George was cross-examined on the Meeting Notes. Another set of notes was put to him which were recorded by an unidentified person. He did not recognize the handwriting. These records were in the plaintiffs' possession. They were more thorough than the Meeting Notes but followed the same outline. Those notes indicate in a different coloured pen that Mr. George left the meeting early. He could not confirm nor deny that as he has no recollection of leaving the 2011 meeting early. It would appear after reviewing the agenda also produced by Canada during Mr. George's cross-examination that he did miss the last agenda item at the meeting. There is no suggestion that his notes were inaccurate, but they were incomplete. [43] Counsel for the defendant referred to R. v. Haevischer, 2014 BCSC 311 ("Haevischer") where Wedge J. did not admit minutes of briefings of an investigative police team taken by an untrained scribe. Justice Wedge found that the briefings were "fluid, dynamic and often chaotic": para.

5. Officers were talking at once over one another and it was often not possible to capture the context of a particular statement or the discussion that led to it. The scribe did not understand the context of the matters discussed and could not determine the meaning of statements. [44] I find that Haevischer is distinguishable from the present case. In the present case, although Mr. George did not have personal knowledge of all of the matters that he recorded, he had an understanding of the context. Mr. George attends hundreds of meetings a year and takes notes at meetings to enable him to recall the details of the meetings. Accuracy is important to him because he relies on his notes to report back to his Chief and Council. I find that the notes are sufficiently accurate for the purpose intended. The notes were not intended to be a transcript of every word spoken but to reflect the main topic areas discussed. [45] In R. v Oler, 2019 BCSC 722 at para 55, Devlin J. followed the decision of Pearlman J. in Blackmore and concluded that double hearsay does not preclude admission of business records under s. 30(1). As Pearlman J. stated, while the record-keeper's lack of personal knowledge of the events does not affect the admissibility of the record under s. 30 of the CEA it may affect the weight ultimately given to the evidence by the trier of fact: para. 134. [46] The fact that the

Meeting Notes were not circulated between attendees and checked for accuracy and contain double hearsay and the fact that the other set of notes were more detailed and complete goes to the weight to be given to the Meeting Notes. Procedural requirements under s. 30(3) and (7) of the CEA [47] Parties' seeking to admit business records under the CEA must provide the other parties with seven days' notice in accordance with s. 30(7): (7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party. [48] In this case, the Meeting Notes in question were part of a common book of documents which was disclosed prior to the trial commencing. Counsel for Canada acknowledges that little turns on the seven-day notice required in s. 30(7) of the CEA given the length of this trial. In any event the court has discretion to dispense with the notice requirement and in the circumstances I find that it is appropriate to do so. [49] Section 30(1) of the CEA allows for introduction of copies of business records made in the usual and

ordinary course of business if the record is accompanied by the documents described in s. 30(3): (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy's authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is (a) an affidavit of each of those persons sworn before a commissioner or other person authorized to take affidavits; or (b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. [50] This action has proceeded through the admission of electronic documents as was approved in the Case Plan Order of February 8, 2018. Like all other exhibits in this trial, Exhibit 404 is an electronic copy of the Meeting Notes, rather than the original. The plaintiffs did not provide affidavits under s. 30(3), nor

did the plaintiffs give oral evidence as to why it was impractical to produce the original. [51] Unlike the notice requirement in s. 30(7), s. 30(3) does not expressly provide the court discretion to dispense with this procedural requirement. [52] In R v. Bath, 2010 BCSC 1390 ("Bath"), Holmes J. (as she then was) held that affidavits under s. 30(3) were unnecessary because witnesses had testified that the copy was authentic and necessary. Holmes J. held that it was significant that another witness had testified about personally producing the copies from Canada Revenue Agency's electronic database. Holmes J. wrote: [6] In allowing the necessity and authenticity of a copy of a record to be proven by affidavit, s. 30(3) aims, in my view, to reduce the procedural obstacles to admission, and not to increase them. The subsection provides for the more expedient method of proof of the necessity and authenticity of a copy, but does not expressly or by implication prevent viva voce evidence covering the same ground to similar effect. To conclude otherwise would require the preparation and swearing of an affidavit when a witness in oral testimony -- called to address supplementary or additional matters -- has provided the very evidence that the affidavit would also contain; that consequence cannot have been intended. [53] The court concluded that the requirement in s. 30(3) was met although the record was not accompanied by affidavits. [54] The court in Jahanrakhshan held that, for the purpose of complying with s. 30(3), one affidavit explaining why the original was not produced and attesting to the copy's authenticity is sufficient: para.

15. It dismissed the argument that two affidavits were required as an empty technicality: The language chosen by Parliament may have assumed that the person who explains why producing the original is not practicable would delegate the task of making the copy to another person, in which case the person who makes the copy must attest to its authenticity; thus, two affidavits are produced: see R. v. Parker (1985), 16 C.C.C. (3d) 478, 7 O.A.C.

150. But where one person performs both tasks, the purpose of the Canada Evidence Act, which is to provide accurate information to the court, is fulfilled. The point taken by the appellant is an empty technicality. [55] Although I have not determined that the requirement of s. 30(3) can be waived, I agree that the court may assess whether the requirement has been fulfilled through other means, such as through oral testimony (Bath) or a single affidavit (Jahanrakhshan). Mr. George's testimony that the notes are his, and the parties' agreement as to the authenticity of the notes, provides a sufficient basis for concluding the authenticity requirement is met. [56] Section 30(3) also requires an explanation of why it is not possible or reasonably practicable to produce the record. [57] Given the volume of records and the fact that through a document agreement all documents relied on in this case are electronic copies of documents, I find that it is not reasonably practicable for the plaintiffs to produce the original Meeting Notes. The principle set out in Bath that s. 30(3) aims to reduce procedural obstacles to admission, not increase them, applies equally in the circumstances of this case. [58] Accordingly, I find that the requirements of s. 30(3) are substantively fulfilled through other means. [59] Finally, the plaintiff argues that the Meeting Notes are not copies as defined

in the CEA but scanned originals uploaded to a computer. [60] In R. v Hall, 1998 Canlii 3955 (B.C.S.C.) ("Hall") the court found that a screen printout was an original record and not a copy for the purpose of the CEA. At para. 52, Owen-Flood J. said that for the court to hold that printouts were not admissible would be to ignore the realities of the computer age, where technological change has rendered the former distinctions between originals and copies a moot distraction in many areas. Those comments remain germane today. [61] In Hall and in R. v. MacMullin, 2013 ABQB 741 the court was dealing with documents that originated in digital form which distinguishes those decisions. The Meeting Notes originate from a hard copy document and the original is likely in the possession of the plaintiffs. I note however that counsel has not always had access to the original documents added to the common book. With some of the archived historical documents counsel only ever had access to digital copies. [62] In the context of this electronic trial whereas of today 14,622 documents have been loaded into a document management platform and the court has ordered that documents are to be provided electronically and not in hard copy, I find it is impractical and unnecessary for the plaintiffs to produce an original, nor is it necessary given my finding that the plaintiffs have complied with s.

30(3) of the CEA. [63] Given my conclusion that the Meeting Notes are admissible under s. 30 of the CEA, it is not necessary to consider the plaintiffs' submission that the notes are admissible under the common law business records exception, except in respect of those statements that I declined to admit. [64] The common law business records test is recounted in Blackmore, as follows: (1) an original entry; (2) made contemporaneously; (3) in the routine; (4) of business; (5) by a recorder with personal knowledge of the thing recorded, or functioning in the usual and ordinary course of a system in effect for the preparation of business records; (6) who had a duty to make the record; and (7) who had no motive to misrepresent. [65] The statements that I declined to admit under s. 30(1) of the CEA were in the nature of opinion evidence. It is not clear who made those statements and the statements are outside the personal knowledge of the person who recorded them. As I previously noted, the statements appear to recount the views of a historical geographer and an anthropologist who were not present at the meeting. To the extent the parties seek to rely on expert evidence they must comply with the rules relating to the admission of expert evidence. I find that the statements are inadmissible for the truth of their contents under the common law business records exception.

CONCLUSION [66] I conclude that the Meeting Notes are admissible under s. 30 of the CEA as business records, subject to the redaction of the introductory paragraph. That passage is not admissible under s. 30 of the CEA or the common law business records exception and is admissible for authenticity only. "B. M. Young, J." The Honourable Madam Justice Young