The Alberta Court of Queen’s Bench ordered the Aboriginal plaintiffs to answer questions from the examination for discovery (questioning) that had been previously refused on the basis that they are protected by legal advice privilege. The Court held that the plaintiffs had waived the privilege.

The underlying action was commenced in 1997. The plaintiffs, on behalf of the Sturgeon Lake Indian Band, seek declarations with respect to their rights to certain lands, an order requiring Alberta to transfer the lands to Canada in trust for them, as well as compensation and damages. The defendants Canada and Alberta pleaded that a Treaty Land Entitlement agreement in 1990 constituted a full answer to the claims. In that 1990 TLE agreement, the Sturgeon Lake Indian Band released and forever discharged Canada from all Treaty 8 obligations and waived future causes of action. One clause of the agreement stated that the Band had received independent legal advice.

In their pleadings, the plaintiffs alleged that they did not have “informed consent” on the extinguishment of land entitlement, and that the Band members did not understand the nature or legal effect of the TLE agreement. Further, they alleged that Canada obtained the consent of the Band members through means such as deceit and negligent misrepresentation.

In this application, the Court agreed with the Crown defendants that the plaintiffs had waived any legal advice privilege through the nature of the claim they are asserting. The plaintiffs had put their knowledge of the law into issue, and it would be unfair to permit them to rely upon privilege to preclude the defendants from exploring the validity of the claim. Sulyma J. stated:

I am of the view, as submitted by Alberta and Canada, that here, the Plaintiffs by their pleadings have voluntarily asserted a claim which makes the Plaintiffs’ knowledge of the law relevant. As stated by Mason J. in Petro Can Oil & Gas Corp. v. Resource Service Group Ltd. (1988), 32 CPC (2d) 50 and adopted by Berger J. in Ed Miller, it would be unfair to permit a party who has set up a claim based on privileged communications to preclude his opponent from discovering against that claim by relying upon the privilege. Further, that indeed fairness would dictate disclosure here.

The Court rejected the argument of the plaintiffs that privilege was not waived because the pleadings only refer to “informed consent”, rather than “legal advice” No such distinction can be made. The Court also rejected the plaintiffs’ argument that this application amounts to Alberta trying to blame the lawyers. The plaintiffs had pleaded lack of informed consent, reliance on the adverse representations of Canada, and had also disclosed documents involving their counsel at the time of the 1990 TLE agreement. Sulyma J. held:

In my view, the pleadings in their entirety do put the Plaintiffs’ knowledge of legal issues and the circumstances of their entering into the 1990 TLE and associated releases as being executed with informed consent or not, into issue. Thus, the Plaintiffs have not met the onus upon them of making out the privilege or that it applies here.

The plaintiffs were therefore ordered to answer the questions that had been previously refused on the grounds that they relate to legal advice. The parties were entitled to come back to the Court, within the context of case management, in relation to other questions.


Scott Kerwin


Aboriginal Law