The Alberta Court of Queen’s Bench provided directions to the parties in a large Aboriginal rights and title case in regards to the scope of questioning at examinations for discovery. In particular, the Court held that the representative of Canada was required to answer questions regarding historical facts, even if they relate to matters beyond the memory of any living person. The Crown has an institutional memory and, applying a pragmatic approach, the Crown’s representative is required to answer questions about historical facts. In this regard, the Alberta Court rejected the approach taken by courts in British Columbia, and adopted the line of authority from the Federal Court about “living memory”. Martin J. concluded that the BC approach, which held that questions about historical facts can only be answered by an expert historian, would limit the role of the representative at discovery to one “resembling a clerk for documents”. The Court provided guidance to the parties to conduct the questioning in a meaningful and efficient way. The plaintiffs’ application to remove Canada’s choice of representative was not allowed.

In the underlying action, the plaintiffs seek a declaration of unextinguished aboriginal title, aboriginal rights, and treaty rights to much of the southern half of Alberta covered by Treaty 7. The action has been case managed for eight years. There has been extensive document discovery, and the parties have just begun the phase of examinations for discovery (questioning).

In the fall of 2012, a representative of Canada was examined over five days. There were over 100 objections made by Canada, and requests for undertakings were ultimately refused. The plaintiffs brought this application for an order compelling answers to the questions and undertakings. They also challenged the suitability of Canada’s representative.

Canada objected to the questions for many reasons including:

  • they required the witness to provide an opinion;
  • they required the witness to interpret a document;
  • they asked for conclusions of law; and,
  • they were speculative, irrelevant, overbroad, or involved privileged communications.

Martin J. reviewed the principles and objectives underlying the Rules of Court, and the function of examinations for discovery. The right of discovery is to be meaningful. A party is entitled to discover adverse parties with respect to relevant and material matters. The scope of relevance is defined by the pleadings. Any limits placed on the parties are meant to avoid abusive, excessive and unnecessarily expensive discovery.

In this action, the plaintiffs allege multiple breaches of wide and evolving rights over an extensive area, spanning hundreds of years. Martin J. referred to the applicable test for proving aboriginal title as set out in cases like Delgamuukw and Marshall/Bernard.

A central dispute in this application concerned the plaintiffs’ questions relating to matters beyond the memory of any living person. Martin J. noted that there is little caselaw in Alberta on the issue, but there are conflicting lines of authority from British Columbia and the Federal Court. The caselaw in British Columbia, mostly from the 1980s and 1990s, stood for the proposition that only an expert historian could answer questions related to historical facts beyond the memory of living persons. In Martin v. British Columbia (1986), 3 BCLR (2d) 60 (S.C.), Chief Justice McEachern held that interrogatories may not include questions that could only be answered by consulting an expert and repeating the expert’s opinion. Interrogatories must be capable of being answered on oath, and cannot be matters of history and opinion. Esson J. (as he then was) applied such principles in Chingee v. British Columbia (1989), 38 CPC (2d) 301 (B.C.S.C.). Martin J. summarized the BC approach as follows:

What emerges from these cases is that, whether asked by the Crown or First Nations, the British Columbia courts have limited the scope of permissible questioning based on an amalgam of the following strands of reasoning: a representative may only be asked about facts within living memory. Anything outside living memory is the realm of historians and can only be spoken to by an expert. Questions that ask about historical matters outside living memory not only infringe upon this rule, they bring in and breach general rules that limit opinion evidence to experts. Because the questions often relate to what is contained in historical documents, this also engages the rule that prevents witnesses from commenting on documents they did not author.

The plaintiffs argued that the Court should follow authority from the Federal Court which has allowed questioning on historical facts. The Federal Court had rejected the BC approach in cases like Wewayakum Indian Band v. Canada (1991), 42 FTR 40 (F.C.T.D.) and Montana Indian Band v. Canada (2000), 172 FTR 46 (F.C.T.D.). In Wewayakum, Addy J. rejected the “narrow and restrictive” approach applied in BC, and the restrictive definition of “history” that resulted. A line had to be drawn between simple historical facts on one hand, and conclusions or inferences which could be drawn from such facts.

Martin J. held that the Federal Court line of authority was more persuasive than the BC approach. She relied upon the Montana decision for the point that a deponent is not a simple witness, but “speaks for a party qua party”. The Crown has an institutional memory, and the deponent is a representative of the Crown. This approach better promotes the purposes of the disclosure and exchange of information underlying the discovery rule. Martin J. further stated:

To be meaningful in the distinctive context of this type of historically based litigation, questioning should not bounded by restrictions based on living memory. Adopting a pragmatic approach, when the representative is from a body with historical memory and the subject of inquiry of the questioning concerns matters before 1871, the British Columbia approach appears to limit the role of the representative to one resembling a clerk for documents. Mere production of underlying documents was not sufficient in Dick v The Queen, [1993] 1 CNLR 50 (FCTD). … Nor should it be in the present case.

The Federal Court approach reflects the general extension of the rules of practice relating to pre-trial discovery. All parties are obliged to put forward known facts early in the process so that the issues can be narrowed. Martin J. held that any possible rationale for a restrictive “living memory” approach loses force when all parties are “enduring entities who must designate a representative and what is in dispute happened many years ago”. It is unclear why the Crown’s memory should be limited to that of its representative.

In response to the plaintiffs’ arguments about the special nature of Aboriginal litigation, and the unique and inherent evidentiary difficulties, Martin J. stated:

A balance needs to be achieved between taking sufficient account of the distinctive nature of aboriginal litigation, while also respecting the fact that there are not special rules for it. In Canada v Stoney Band, 2005 FCA 15, the Federal Court of Appeal stated that the concept of the honour of the Crown does not apply in ordinary litigation matters and that any fiduciary duty Canada might owe, did not preclude Canada from making use of the rules of civil procedure. Thus Canada can argue and benefit from the general rules of procedure and evidence, without engaging or running afoul of its fiduciary obligations.

Nevertheless, the general rules will be applied to the particular context in which they are to be raised. That includes the recognition that factually, Canada and Alberta have been the custodians of historical records, in a manner befitting their role. The Crown in right of Canada, and by extension the Crown in right of Alberta possess special constitutional powers and responsibilities and they are the successors in title to the British Crown. The case law has recognized that it is especially important that the Crown representative answer historical questions where the plaintiff is an aboriginal group. It was noted in Montana at para 12:

[...] It is common knowledge that Indian Bands have few or no written records relating to the past and must, apart from tradition and oral history, rely to a large extent upon the records of the government itself. This casts upon the Crown, in its past and continuing capacity as protector and fiduciary of the Bands, a particular duty to be open and frank in its disclosures. Even with the adversarial relationship created by litigation between them, the Crown continues to owe an historic duty to deal fairly and openly with first nations. This is not to say that there are special rules for aboriginal claims, but simply that the nature of any claim is part of the context in which any objection to interrogatories is to be decided and that where a claim is in respect of historical injustice by the Crown, that context may be determining.

Martin J. also referred to the role of oral histories at trial, and the expansive concept of evidence. She noted that the BC line of authority about living memory was developed before the Supreme Court of Canada’s decision in Delgamuukw. She held:

A lack of symmetry and equity would arise if the living memory of the First Nations deponent could be questioned upon but that of the Crown’s deponent could not. In Wewayakum, the judge did not think it appropriate that the party objecting had already asked very similar questions. That approach is endorsed in this judgment. It should and will apply to all parties.

A representative is therefore required to answer questions of historical fact, whether or not they arise outside what has been called living memory. I therefore accept that questions of historical fact do not, in all circumstances, require expert opinion or interpretation. As a matter of legal principle, it is appropriate for Canada and all other parties to this proceeding to be compelled to state their position or understanding in respect to historical fact.

The Court acknowledged that the boundaries between historical fact and matters of opinion can be difficult to discern. The role of the Court is to use existing legal principles to help fashion a pragmatic and workable approach. Some historical questions cannot be answered using “pure facts”, but will require an expert historical opinion to answer. Martin J. suggested that if the impugned question is the type of inquiry that provides the foundation for an expert report, it would qualify as a “fact”; if the question requires a detailed and specific analysis of facts, or calls for interpretation or analysis, it would likely qualify as “opinion”. Martin J. adopted the comments of the Federal Court in Montana that marginal questions should be answered at discovery, and the trial judge could later deal with it as necessary.

Martin J. reviewed sample questions that were in dispute. For example, a question about the purpose of the Palliser expedition was factual in nature, and should be answered. It is difficult to see how an expert would be in a better position to answer it. Questions about the interpretation of documents and treaties should be answered as it relates to the party’s understanding of those documents.

Canada objected to questions that asked for conclusions of law, or sought Canada’s legal position. For instance, Canada objected to questions about whether it took the position that the Stoneys had aboriginal title to its traditional lands before Treaty 7, or whether it was Canada’s position that the Royal Proclamation of 1763 applied to Rupert’s Land. The Court held that such questions did not need to be answered.

The Court reviewed specific questions that were alleged to be matters of speculation, were overly broad, related to an irrelevant matter, or sought to elicit privileged information. For instance, the plaintiff asked questions about Canada’s process to determine what secondary sources should be disclosed in the litigation, and what it considered to be relevant. Martin J. held that such a question was not appropriate, as these were decisions made by counsel as to what to disclose. She noted that it would be helpful in cases like this if the parties share their research plans to tailor and conserve their research efforts.

The Court held that it was not appropriate to remove Canada’s choice as representative at this time. The general rule is that a party is entitled to choose its representative, and a deponent can only be replaced if the applicant proves that it cannot reasonably get information from the representative.

Martin J. concluded the judgement by commenting that the discovery process should be meaningful, and that repeated and multiple requests to take matters under advisement “may effectively transform oral discovery into something resembling written interrogatories”. All parties need to act to maximize the efficacy and efficiency of the questioning process. Following the Montana case, she held that the parties should take a liberal approach and view each question in the best possible light. The deponents have a duty to make an honest and open attempt to answer, and avoid obtuseness. Martin J. stated:

Parties must concentrate on identifying the real issues in disputes as framed by the pleadings. The purpose of the Rules of Court is to guide litigation and move it forward in a just and efficient manner. While, the process of discovery does have limits, the Rules of Court are not intended to unduly impede the exchange of information. In the case at bar, the questions in dispute are largely resolved by approaching the issues with the guiding principles of rule 1.2 and 5.1 in mind. For example, in regards to historical questions, the Crown generally has an institutional memory that endures beyond a living memory. Therefore a Crown deponent is required to answer questions concerning historical facts. The fact-opinion distinction is one that is dependent on context, this analysis is driven by the principles in rule 1.2 and 5.1 of the Rules of Court. What is required are questions directed at facts and representatives prepared to provide them.

It is to be hoped that this decision provides sufficient guidance to resume meaningful questioning.


Scott Kerwin


Aboriginal Law