Samson Indian Band and Nation v. Canada
A-793-96
Stone J.A.
10/10/97
9 pp.
Confidences of Queen's Privy Council-Appeal from Trial Division decision clarifying intent of previous order as it may apply to any certificate filed in future in actions pursuant to Canada Evidence Act (CEA), s. 39(1)-Previous order to file amended list of documents including, in Schedule IIB, documents listed for which privilege claimed in accord with CEA, s. 39 under certificate filed in compliance therewith-Order also required appellants' counsel to provide information identifying documents earlier listed included in certificate-Order appealed from specified (1) that all relevant documents in possession or control of defendants shall be included in affidavit of documents pursuant to R. 448, including documents subject to any claim pursuant to CEA, s. 39; (2) that documents claimed to contain confidences of Privy Council shall be included in certificate filed pursuant to CEA, s. 39, with sufficient information to identify those documents as listed and described in affidavits of documents filed on behalf of defendants in accord with clause 1 hereof-Appeal allowed-Where s. 39(1) certificate filed, court not to examine documents listed therein if certificate tracking language of s. 39(1)-Present case so complex computer system developed to manage documents containing records of more than 50,000 documents retrieved from files in Ottawa, Calgary and Edmonton-Some actions commenced more than eight years ago and documents produced at various times-Case management judge erred in requiring (1) documents "subject to any claim pursuant to s. 39" be included in affidavit and, (2) in requiring certificate contain "sufficient information to identify those documents as listed and described in affidavits of documents" filed pursuant to par. 1-These phrases at odds with principle in Canada (Attorney General) v. Central Cartage Co, [1990] 2 F.C. 641 (C.A.) requiring tracking of language of s. 39(1), and with effect of s. 39 certificate-Added requirement in par. 2 of order going beyond what permitted by case law-Par. 1 of order would have effect of requiring R. 448 affidavit particularize those documents subject to any claim pursuant to s. 39 even though, in fact, no claim thereunder had yet been made-Under R. 448(2)(ii), appellants obliged to list all documents "relevant to any matter in issue" in manner required by rule-If affidavit of documents preceded or accompanied by s. 39 certificate, then documents listed in certificate need not also be listed in affidavit-If s. 39 certificate thereafter filed in respect of any document listed in affidavit of documents, appellants should provide counsel for respondents and Court with sufficient information as would identify objected to documents as already listed in affidavit-Further period of three months should prove sufficient to disclose all of appellants' documents not already listed in affidavit of documents-Order varied (1) by deleting from par. 1 words "including documents subject to any claim pursuant to CEA, s. 39; (2) by deleting from par. 2 thereof words "with sufficient information to identify those documents as listed and described in affidavits of documents filed on behalf of defendants in accord with clause 1 thereof"; (3) by adding requirement that documents referred to in par. 1 be listed in affidavit of documents to be filed by appellants within 3 months unless extension granted by case management judge, affidavit not being required to list any document in respect of which s. 39 certificate filed by appellant prior to or contemporaneously with such affidavit; (4) by adding that upon filing s. 39 affidavit certificate subsequent to filing of affidavit pursuant to item (3) above, appellants shall provide counsel for plaintiffs and Court with information sufficient to identify documents listed in affidavit-Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39(1)-Federal Court Rules, C.R.C., c. 663, R. 448 (as am. by SOR/90-846, s. 15).