[2002] 2 F.C. 346
2001 FCA 338
A-701-98
Bertha L’Hirondelle, suing on her own behalf and on behalf of all other members of the Sawridge Band, Wayne Roan, suing on his own behalf and on behalf of all members of the Ermineskin Band and Bruce Starlight, suing on his own behalf and on behalf of all other members of the Sarcee Band (Plaintiffs/ Appellants)
v.
Her Majesty the Queen (Defendant/Respondent)
and
Native Council of Canada, Native Council of Canada (Alberta) and Non-Status Indian Association of Alberta (Interveners)
A-793-00
Bruce Starlight, suing on his own behalf and on behalf of all other members of the Tsuu T’ina First Nation (Formerly the Sarcee Indian Band) (Plaintiffs/ Appellants)
v.
Her Majesty the Queen (Defendant/Respondent)
and
Native Council of Canada, Native Council of Canada (Alberta), Non-Status Indian Association of Alberta and Native Women’s Association of Canada (Interveners)
A-794-00
Bertha L’Hirondelle, suing on her own behalf and on behalf of all other members of the Sawridge Band (Plaintiffs/Appellants)
v.
Her Majesty the Queen (Defendant/Respondent)
and
Native Council of Canada, Native Council of Canada (Alberta), Non-Status Indian Association of Alberta and Native Women’s Association of Canada (Interveners)
Indexed as: Sawridge Band v. Canada (C.A.)
Court of Appeal, Linden, Rothstein and Malone JJ.A.— Ottawa, November 6 and 7, 2001.
Evidence — Appeals from orders transcript of evidence given at original trial should be used, as far as possible, at new trial — Original judgment quashed on ground of reasonable apprehension of bias — Statement in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) that hearing void where reasonable apprehension of bias, meaning even if ultimate decision correct, cannot stand because of inherent unfairness in conduct of hearing — Void hearing resulting in void order — But evidence taken at trial, under oath, in open court, subject to cross-examination and transcription, subsists, and in appropriate circumstances, transcripts thereof may be used at subsequent trial.
Practice — Case Management — F.C.A. states its position on appeals from orders of case management judges — Case management judges must be given latitude to manage cases, resolve protracted interlocutory proceedings, move cases on to trial — F.C.A. will interfere only in clearest case of misuse of judicial discretion.
A Trial Division decision having been quashed by the Federal Court of Appeal for reasonable apprehension of bias, these were appeals from orders of a case management judge which provided that, as far as possible, transcripts of evidence given at the original trial should be used at the new trial to save time and the expense of calling witnesses to give their evidence yet again. The appellants submitted that it was wrong in law to use, at a second trial, evidence from a trial in respect of which there has been a finding of a reasonable apprehension of bias. They relied upon Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) which held that a hearing in respect of which there is an apprehension of bias is void.
Held, the appeals should be dismissed.
A finding that a hearing is void means that, even if the ultimate decision is correct, it cannot stand because of the inherent unfairness in the conduct of the hearing. A void hearing must result in a void order. But evidence taken at that trial, under oath, in open court, subject to cross-examination and transcription subsists and, in appropriate circumstances, transcripts of such evidence may be used at a subsequent trial, including use for the purpose of cross-examination. It is, however, open to parties or interveners to object to the use of such evidence if they are of the view that it was affected by statements or other actions of the Trial Judge at the original trial or that unfairness will otherwise arise.
As to the argument that the judge conducting the second trial must be able to see and assess the demeanour and oral evidence of the witnesses in order to make valid credibility findings, the second order left it to the Trial Judge to decide whether the use of any specific evidence would be inappropriate.
There is no unfairness if the Trial Judge reads evidence from the first trial in dealing with whether such evidence is relevant or otherwise objectionable. Evidence is often admitted subject to objection. If a Trial Judge considers the evidence irrelevant or otherwise inadmissible, it will not be used in the Trial Judge’s findings of fact.
There was no prejudice to the appellants by requiring them to make submissions on the admissibility of evidence from the first trial because by the time their submissions were made, all pleadings were filed. The appellants knew the positions pleaded by the respondent and interveners, and had the opportunity to make submissions with regard thereto.
This was an opportune occasion for the Court of Appeal to state its position concerning appeals against the orders of case management judges. Case management judges must be given latitude to manage cases. The Court will interfere only in the clearest case of a misuse of judicial discretion. In dealing with complex litigation, case management judges should be afforded “elbow room” to resolve protracted interlocutory proceedings and move the cases on to trial.
CASES JUDICIALLY CONSIDERED
Applied
Korte v. Deloitte, Haskins and Sells (1995), 36 Alta. L.R. (3d) 56 (C.A.).
Considered:
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 89 D.L.R. (4th) 289; 4 Admin. L.R. (2d) 121; 134 N.R. 241; R. v. S. (R.D.), [1997] 3 S.C.R. 484; (1997), 161 N.S.R. (2d) 241; 151 D.L.R. (4th) 193; 1 Admin. L.R. (3d) 74; 118 C.C.C. (3d) 353; 10 C.R. (5th) 1; 218 N.R. 1.
Referred to:
Sawridge Band v. Canada (1998), 157 F.T.R. 236 (F.C.T.D.); revd Sawridge Band v. Canada, [1997] 3 F.C. 580 (1997), 3 Admin. L.R. (3d) 69; 215 N.R. 133 (C.A.).
APPEALS from orders providing that transcripts of evidence given at the original trial, which was set aside on the grounds of reasonable apprehension of bias, should be used as much as possible at the new trial (Sawridge Band v. Canada (1998), 157 F.T.R. 236 (F.C.T.D.)). Appeals dismissed.
APPEARANCES:
Philip P. Healey, Martin J. Henderson, and Catherine M. Twinn for appellant.
Kathleen Kohlman for respondent.
Kenneth S. Purchase and Edward A. Pundyk for intervener Native Council of Canada.
Jonathan P. Faulds for intervener Native Council of Canada (Alberta).
Michael J. Donaldson for intervener Non-Status Indian Association of Alberta.
Mary Eberts for intervener Native Women’s Association of Canada.
SOLICITORS OF RECORD:
Aird & Berlis, Toronto, and Catherine M. Twinn, Slave Lake, Alberta for appellant.
Deputy Attorney General of Canada for respondent.
Lang Michener, Ottawa for intervener Native Council of Canada.
Field Atkinson Perraton, Edmonton, for intervener Native Council of Canada (Alberta).
Burnet, Duckworth & Palmer LLP, Calgary, for intervener Non-Status Indian Association of Alberta.
Eberts Symes Street & Corbett, Toronto, for intervener Native Women’s Association of Canada.
The following are the reasons for judgment delivered orally in English by
[1] Rothstein J.A.: These are appeals from orders of Hugessen J. in his capacity as case management Judge in complex litigation. An original judgment of the Trial Division in Sawridge Band v. Canada, [1996] 1 F.C. 3 (T.D.) was quashed by this Court [1997] 3 F.C. 580 on the grounds of reasonable apprehension of bias in the Trial Judge. A new trial was ordered. Hugessen J.’s dutie s as case management Judge have been to bring the new trial on as quickly as possible and in the most efficient and cost-saving manner.
[2] What gives rise to these appeals are orders of Hugessen J. which indicate that, as far as possible, transcripts of evidence given at the original trial should be used at the new trial in order to avoid the time and expense of calling the same witnesses to give the same evidence all over again.
[3] The first order under appeal was made by Hugessen J. on September 23, 1998. It reads, in relevant part [Sawridge Band v. Canada (1998), 157 F.T.R. 236 (F.C.T.D.), at paragraph 7]:
(1) Counsel for plaintiffs shall submit in writing to counsel for defendant and each intervener by 15 November 1998, a detailed list of all those parts of the transcript of evidence at the first trial, including any interventions by the trial judge, to which objection is taken to their use as evidence at the new trial, together with the reasons therefor. Counsel for defendant and the interveners shall respond thereto in writing by 30 December, 1998, following which any party or intervener may apply to have any dispute over inadmissibility resolved by the case management Judge.
Subsequent to this order being made, the appellants made submissions to Hugessen J.:
1. generally objecting to any evidence from the original trial being used in the second trial; and
2. specifically objecting to evidence of the interveners and to expert evidence from the original trial being used in the second trial.
There followed submissions from the respondent and interveners, the completion of amended pleadings by all parties and interveners, and a subsequent hearing before Hugessen J. On December 8, 2000, he made the second order under appeal which provides in relevant part:
Save as the Court may otherwise order:
1. The transcript of any evidence (excluding argument and any comments or interventions by the trial judge) given at the first trial may, subject to any ruling by the trial judge on the issues of relevance and, where applicable, the right of a person to give opinion evidence, may be introduced in evidence at the new trial. No witness whose testimony is thus given in evidence shall, without leave of the trial judge be examined or cross-examined at the new trial.
2. No person who testified at the first trial shall be called to give evidence at the new trial unless the party wishing to call such person satisfies the trial judge that such a person is likely to give evidence that was not given by that person at the first trial.
[4] The appellants say that it is wrong in law to use, at a second trial, evidence from a trial in respect of which there has been a finding of a reasonable apprehension of bias. The appellants rely primarily on the Supreme Court of Canada decision in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, in which Cory J. stated at page 645:
The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void.
The appellants say that the words “the hearing … is void” means that the transcript of evidence is void and cannot be used in any way at the subsequent trial. The appellants also rely on R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paragraph 100, to make the same point.
[5] Contrary to the appellants’ submissions, we are of the view that Newfoundland Telephone does not stand for the proposition that evidence taken at a trial tainted by reasonable apprehension of bias can never be used in a subsequent trial. We think that a finding that a hearing is void means that, even if the ultimate decision is correct, it cannot stand because of the inherent unfairness in the conduct of the hearing. A void hearing must result in a void order.
[6] But evidence taken at that trial, under oath, in open court, subject to cross-examination and transcription, is not read out of existence. The evidence subsists and, in appropriate circumstances, we see no reason why transcripts of such evidence may not be used at a subsequent trial, including use for the purposes of cross-examination. Of course, it is open to the parties or interveners to object to the use of the evidence if they are of the view that the evidence was affected by statements or other actions of the Trial Judge at the original trial or that unfairness will otherwise arise. That will be determined by the Trial Judge.
[7] The appellants cite a number of other reasons why they say the evidence at the original trial cannot be used in the second trial. Their main point is that findings of credibility will have to be made and the judge conducting the second trial must be able to see and assess the demeanour and oral evidence of the witnesses in order to make valid credibility findings.
[8] It is quite clear from the December 8, 2000 order, that Hugessen J. was attempting, as far as possible, to strongly encourage the use of evidence from the first trial to save time and expense. But the order leaves it to the Trial Judge to decide whether the use of any specific evidence would be inappropriate. The opening words of the order “Save as the Court may otherwise order” indicate that full discretion has been left to the Trial Judge as to what evidence from the original trial should be admitted and in what circumstances the parties or interveners may adduce evidence through oral testimony rather than by the introduction of transcripts from the original trial. This effectively deals with the appellant’s main objection to the use of that evidence. The orders of Hugessen J. do not purport to fetter the discretion of the Trial Judge and leave open the opportunity of the parties or interveners, when the circumstances warrant, to persuade the Trial Judge that fairness requires oral evidence rather than the use of specific transcripts from the original trial.
[9] The appellants also express the concern that the Trial Judge, in dealing with whether evidence from the first trial is relevant or is otherwise objectionable will read that evidence. We are not persuaded of any unfairness if the Trial Judge reads such evidence. Evidence is often admitted subject to objection. If, upon consideration, a Trial Judge considers the evidence irrelevant or otherwise inadmissible, it is understood that it will not be used in the Trial Judge’s findings of fact.
[10] The appellants say they were required to make submissions to Hugessen J. on the admissibility of evidence from the first trial before pleadings were filed by the respondent and interveners and they have been prejudiced thereby. However, by the time the submissions leading to the December 8, 2000 order were made, all pleadings were filed. The appellants knew the positions pleaded by the respondent and interveners and had the opportunity, if they considered it necessary, to make submissions having regard to those pleadings. There has been no prejudice to the appellants in this regard.
[11] We would take this opportunity to state the position of this Court on appeals from orders of case management judges. Case management judges must be given latitude to manage cases. This Court will interfere only in the clearest case of a misuse of judicial discretion. This approach was well stated by the Alberta Court of Appeal in Korte v. Deloitte, Haskins and Sells (1995), 36 Alta. L.R. (3d) 56, paragraph 3, and is applicable in these appeals. We adopt these words as our own.
This is a very complicated lawsuit. It is subject to case management and has been since 1993. The orders made here are discretionary. We have said before, and we repeat, that case management judges in these complex matters must be given some “elbow room” to resolve endless interlocutory matters and move these cases on to trial. In some cases, the case management judge will have to be innovative to avoid having the case bog down in a morass of technical matters. Only in the clearest cases of mis-use of judicial discretion will we interfere. In this case, the carefully crafted orders made by the case management judge display a sound knowledge of the rules and the related case law. In particular, the order contains a provision that the parties are free to return to the case management judge for relief from the imposition of any intolerable burden imposed by the order. No clear error has been shown and we decline to interfere. While there may be some inconvenience to some of the parties, this does not translate into reversible error. We are not here to fine tune orders made in interlocutory proceedings, particularly in a case such as this one.
[12] The appeal will be dismissed with one set of costs for Court files A-701-98, A-793-00 and A-794-00 to each of the respondent and interveners in any event of the cause and payable forthwith.