The B.C. Supreme Court dismissed an application by the Aboriginal plaintiffs to bifurcate a trial into separate phases dealing with liability and quantum of damages.

In the underlying action, the plaintiffs Tzeachten First Nation, Skowkale First Nation and Yakweakwioose First Nation seek possession of two parcels of land totalling about 120 acres which formed part of the former Canadian Forces Base Chilliwack. They assert Aboriginal title over the lands, and also alleged that the lands formed part of a colonial reserve created in 1864. They allege that they were wrongfully deprived of their reserve interest when the Colony of British Columbia reduced the reserve in 1868. They seek possession of the lands, compensation for those portions of the land that cannot be restored to them, and damages for loss of use of the subject lands.

A 16-week trial is scheduled to begin in February 2015. The plaintiffs applied for an order pursuant to Rule 12-5(67) of the Supreme Court Civil Rules for an order that the trial be severed into two phases. The first phase would address the questions of the plaintiffs’ interest in the lands, and the liability of the defendants. The second phase would deal with the quantum of damages. In the alternative, the plaintiffs sought an order to amend the Case Plan Order so that they could file an expert report on damages four months after the deadline set by the CPO.

Canada and British Columbia opposed the bifurcation order. The defendants Canada Lands Company and Canada Lands Company CLC Limited (CLC) proposed their own severance order. CLC proposed that the first phase of the trial deal solely with determining the plaintiffs’ interest in the lands. The issues of liability and quantum of damages could be reserved for the second phase. CLC argued that it would not have to be involved in the first phase, since only the Crown would be proper parties.

Pearlman J. applied the criteria for a severance order as set out in cases like Nguyen v. Bains, 2001 BCSC 1130. Severance of an issue is the exception rather than the rule. There must be compelling reasons to justify the making of such an order. Pearlman J. also held that such rules apply to Aboriginal litigation.

The Court was not satisfied that a severance order would lead to a significant saving of time and expense. The plaintiffs argued that approximately 10 days of trial time could be saved, as there would be no cross-examination of the damages expert. Pearlman J. concluded that such time would be deferred, not saved. He was also not persuaded that deferral of the expert reports on quantum would result in any significant reduction in the complexity of the experts’ task or the expense of the experts’ reports. The plaintiffs had argued that the role and work of the expert may change depending on whether they can establish title or a reserve interest to all or only a portion of the lands. Pearlman J. held that there was no explanation for why there is a potential for a finding that only portions of this relatively small area would be subject to Aboriginal title, while other portions would not. In any event, the expert could be given different factual assumptions when providing an opinion on quantum. Pearlman J. also noted that there is no evidence to explain the plaintiffs’ position that the valuation of their loss of use of Aboriginal title land would differ from loss of use of Reserve land.

The Court also held that the potential for a second phase not being necessary, in the event that liability is not found, is not a sufficient basis for a bifurcation order. If that were all that was required, an argument could be made for severance in every case.

Pearlman J. referred to the long history of extensive but unsuccessful negotiations over the CFB Chilliwack lands. He concluded that until the plaintiffs deliver their expert’s report on quantum, and the defendants know the amount of the claim and how it is calculated, there is no basis for any informed negotiation on damages. He stated:

Delivery of the plaintiffs’ expert report on damages before there has been any determination of liability might well be as efficacious in assisting the parties to reach a compromise as the provision a report on damages sometime after a separate trial and determination of liability. … 

In my view, there is little prospect of productive negotiations on damages until such time as the plaintiffs have quantified their claim and have delivered their expert’s report. The plaintiffs have not made out a compelling case that a severed trial would put an end to the action by facilitating negotiations on damages.

The issues of liability and damages in this action are largely discrete, rather than intertwined, but there will likely be some overlap. Evidence that would be relevant both to the Aboriginal title claim may be material to the valuation of the plaintiffs’ claim for loss of use. This is not a significant factor since the same judge will hear both phases of the trial.

Pearlman J. stated:

While each Aboriginal rights case will raise unique considerations, courts have applied the same test for severance in Aboriginal rights cases as in other civil litigation. … Here, the plaintiffs have not shown that their proposal for severance is likely to produce significant savings of time or expense, or that a severed trial would put an end to the action. Deferral of delivery of the plaintiffs’ expert report on quantum until after a separate trial on liability is unlikely to enhance the prospects for any further settlement negotiations.

There is also the potential for significant delay between the first and second phases of severed trial, particularly if there is an appeal on issues of entitlement or liability.

Taking into account all of these factors, I conclude that there is no compelling reason for severance of quantum of damages from the issues of entitlement and liability in this case.

The Court did not adopt the alternative proposal for severance put forward by CLC. Although this proposal would save time and expense for CLC, it was not appropriate to sever the issues of entitlement from liability and remedies. Aboriginal rights, including Aboriginal title, can be justifiably infringed by the Crown. The Court of Appeal held in Cheslatta Carrier Nation (2000) that Aboriginal rights cannot be properly defined separately from the limitation of those rights, and that the definition of the circumstances in which infringement is justified is an important part of the process of defining the right itself. Pearlman J. held:

Because definition of the plaintiffs’ rights requires consideration of any limitation of those rights, the determination of the plaintiffs’ interest, if any, in the subject lands requires consideration of any infringement of Aboriginal title and whether such infringement is justified. In Kwakiutl Nation at paras. 18-19, the court declined to accept a proposal for severance that would have separated the definition of the plaintiffs’ Aboriginal treaty rights from any consideration of infringement or justification. Here, in my view, the separation of any determination of Aboriginal title to the subject lands from the issues of infringement and justification is equally inappropriate.

Although the plaintiffs’ application for severance was dismissed, the Court allowed the alternative relief sought and extended the deadline for filing the expert report on damages to September 30. The deadline for any responsive reports by the defendants would be January 12, 2015. The parties were ordered to bear their own costs of the application.


Scott Kerwin


Aboriginal Law