The Supreme Court of British Columbia issued three judgments in the Songhees Nation case during the week of April 7. The orders were made by the case management judge, Mr. Justice Bracken, in the context of actions brought by the Songhees Nation and the Esquimalt Nation set for a lengthy trial beginning in September 2014.

The plaintiffs Songhees Nation and Esquimalt Nation seek damages in lieu of a declaration that they have treaty rights to use certain lands (approximately 200 acres) near Cadboro Bay in Victoria, and damages for breaches of their rights under one of the Douglas Treaties and for breaches of fiduciary duties. An earlier decision relating to the exchange of expert reports in this proceeding (2012 BCSC 1269) was summarized in our e-newsletter of 4 September 2012.

The first decision from April 2014 (2014 BCSC 591) related to a demand for particulars made by the Songhees Nation to the defendant British Columbia. The application had been heard in June 2013 but a ruling was deferred to allow the parties to resolve the matter. In February 2014, the plaintiffs requested that the court make a ruling. British Columbia opposed many of the demands on the grounds that they request evidence, or that they request legal argument. British Columbia also submitted that proposed amendments to the pleadings would render some of the demands moot.

Bracken J. referred to the leading case of Cansulex Ltd. v. Perry (1982) on the function of particulars. He then reviewed the specific demands made by the plaintiffs. The Court’s findings included:

  • BC was required to provide particulars of its allegation that “aboriginal people” moved to Songhees Point, such as which aboriginal peoples moved there.
  • BC was not required to identify what other places the Chekonein people resided in 1844.
  • BC was required to remove a “without prejudice” proviso to one of its responses.
  • BC was not required to provide particulars of the terms “context” and “historical context”.
  • BC was not required to provide particulars of the “lands traditionally occupied and claimed by the Lekwungun” since the action only concerns certain lands.
  • BC was not required to provide particulars of “village sites and enclosed fields”, since the plaintiffs themselves were not able to precisely define them.
  • BC was required to provide particulars of its allegations relating to waiver and estoppel.

The Court considered the plaintiffs’ demand for particulars of the plea by British Columbia that the plaintiffs’ claims ceased upon disposition of the lands to third parties. Bracken J. referred to the BC Court of Appeal decision in Jones (Litigation guardian of) v. Donaghey, 2011 BCCA 6 on the concept of “issues” and “material facts” in pleadings. He found that the plaintiffs were seeking to obtain legal argument, not material facts. Similarly, BC was not required to respond to demands about the effect of the Terms of Union and federal-provincial agreements. Bracken J. commented:

The material facts alleged are that the federal-provincial agreements result in no liability for British Columbia. British Columbia will make its argument in due course or lead evidence in support of the argument. The plaintiffs have enough information to respond to the pleadings. The demand is an effort to get disclosure of the legal argument that British Columbia intends to advance. Particulars are intended to provide sufficient material facts to allow a party to respond to a pleading, not to challenge legal argument or to extract information with respect to evidence. British Columbia need not answer either Demand 14(b) or 14(d).

The second ruling (2014 BCSC 609) concerned settlement of a trial phasing order pronounced on May 21, 2013. The order was made by consent, upon the agreement of the parties that the issue of liability should be tried first. In this ruling, the Court confirmed that the issues of the size of the “enclosed fields” and “village sites” are to be dealt with in phase 1 of the trial. The order was settled in the terms proposed by Canada.

The final ruling (2014 BCSC 632) concerned the delivery of expert reports by the plaintiffs. The current version of the case plan order set a deadline of January 2013. The plaintiffs served the report of Dr. Littlefield in October 2013, the addendum report of Dr. Boxberger in December 2013, and the supplementary report of Dr. Lutz in January 2014. The plaintiff Songhees Nation also sought to deliver a report of Dr. Goltz relating to a spectrographic analysis of a map dating from the 1850s.

Bracken J. recognized that the expert evidence in this action will be unique, and there may be the need for revisions or supplements. However, there must be some finality to the process so that the defendants can properly respond. It was also noted that a judicial settlement conference was set for May 2014.

The Court held that the Boxberger report was admissible as a “material change” report under Rule 11-6(6) of the Civil Rules. In regards to the other reports, Bracken J. proceeded on the principle that relevant evidence should not be excluded unless there is substantial prejudice that would justify exclusion. The Court could not find any such prejudice here, and varied the Case Plan Order to allow for the delivery of the reports. A firm date of May 23, 2014 was set for delivery of all of the plaintiffs’ expert reports. The deadline for filing reply or response reports was set at June 30, 2014, except for a July 28 deadline for responding to the Goltz report.


Scott Kerwin


Aboriginal Law