ABORIGINAL PRACTICE POINTS
Federal Court dispute resolution services:
a practitioner’s perspective
These materials were prepared by Patrick J. Walker for the Continuing Legal Education Society of British Columbia
course, Aboriginal Law: Procedural and Dispute Resolution Issues, October 2006.
© Patrick J. Walker
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FEDERAL COURT DISPUTE RESOLUTION
SERVICES: A PRACTITIONER’S PERSPECTIVE
I.
Introduction .................................................................................................................................1
II.
Comparisons and Statistics......................................................................................................... 2
III.
Case Management Practices....................................................................................................... 3
A. Accessing Case Management in the Federal Court................................................................................. 3
1. Status Reviews ..................................................................................................................................... 3
2. Specially Managed Proceedings ........................................................................................................ 4
B. What are the Powers of a Federal Court Case Management Judge?.................................................... 4
IV.
Provisions for Court Assisted Dispute Resolution at the Federal Court of Canada.................. 4
V.
Recent Federal Court Experience............................................................................................... 5
A. Rule 387(a) Mediation Proceedings........................................................................................................... 5
B. Rule 387(c) Mini Trial Proceedings ........................................................................................................... 5
VI.
Observations and Suggestions Regarding Dispute Resolution Processes................................ 6
VII.
Bibliography................................................................................................................................ 8
VIII. Appendix⎯Federal Court Rules re Case Management Judges ................................................. 9
I.
Introduction
The purpose of this paper is to describe the Federal Court “dispute resolution” processes in which I have
recently participated. These “DR” processes were aimed at attempting to resolve Aboriginal law disputes in
the litigation context. Both case management processes, and dispute resolution processes are addressed in this
paper because the two are closely linked. My comments are focused on large-mega cases involving historical
breach of fiduciary obligation claims, where many complex factual, evidentiary and legal issues are at play.1
Although BC Supreme Court case management and dispute resolution practices are relevant to Aboriginal
law litigation, my comments focus on dispute resolution at the Federal Court of Canada, as my practice
experience has been mainly before that Court. Based on my experience, I conclude that in the context of
complex historic claims for breach of fiduciary obligations there is a positive role for the judiciary to assist
parties who encounter obstacles in the course of negotiations by making low cost interlocutory decisions or
dispute
1
The author has worked in the Aboriginal law area for over 16 years, including representing First Nations. For the
past seven years he has worked as Crown counsel. This paper does not contain the opinion of, nor is it presented
on behalf of, the Department of Justice or the Attorney General of Canada. My statements are confined to the
litigation context, to be distinguished from treaty table negotiations, Specific Claims negotiations, negotiations over
use of lands and resources, or negotiations regarding the recognition and implementation of s. 35 rights.
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resolution decisions available to the parties. This role allows the parties to “loop back” to settlement
negotiations, and therefore provide incentives to negotiate and methods to overcome settlement table
impasses.2 At the end of the paper, I offer observations and suggestions for others to consider when
participating in these processes.
At this point in the development of Aboriginal case law, and also in the context of Crown⎯First Nation
relations, it is obvious to state that negotiation is preferred to litigation. Jutice Lamer’s dicta in Delgamuuk v.
British Columbia, [1997] 3 S.C.R. 1010 best captures this concept:
As was said in Sparrow, at 1105, s. 35(1) ‘provides a solid constitutional base upon which
subsequent negotiations can take place.’ Those negotiations should also include other
aboriginal nations which have a stake in the territory claimed. Moreover, the Crown is
under a moral, if not a legal, duty to enter into and conduct those negotiations in good
faith. Ultimately, it is through negotiated settlements, with good faith and give and take on
all sides, reinforced by the judgments of this Court, that we will achieve what I stated in
Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(1)⎯’the reconciliation of the
pre-existence of aboriginal societies with the sovereignty of the Crown.’ Let us face it, we
are all here to stay. (at para. 186)
However, since 1997 when the preceding paragraph was written, experience has shown that negotiations are
hugely time consuming and difficult. Experience has also shown that litigating Aboriginal law disputes is
perhaps more than the presently structured court systems can bear.
Justice Lamer’s comments were made in the context of claims for Aboriginal rights and title. A challenge for
litigators and the judiciary is how to apply his comments to dispute resolution in the context of litigating large
mega-cases involving historical breach of fiduciary obligation claims.
II.
Comparisons and Statistics
It is interesting to look at some comparative statistics of trial length in major Aboriginal law cases:
•
Chief Victor Buffalo [Samson Indian Band Case, [2005] F.C. 1622⎯Nov. 30, 2005 decision⎯370
days of trial (only two of four trial phases complete)3
•
Delgamuukw v. British Columbia (1991), 79 D.L.R. (4th) 185 (B.C.S.C)⎯374 days of trial
•
Roger William (Nemiah Valley Indian Band) v. British Columbia and Canada⎯as of Sept. 19,
2006⎯335 days … still taking evidence [with oral argument still to come; may break the
Delgamuukw record?]
In contrast:
•
Calder (Nisga’s Tribal Counsel) v. British Columbia (1969), 8 D.L.R. (3rd) 59⎯six days of trial
2
This “loop back” language and concept is borrowed from Shin Imai, “Sound Science, Careful Policy Analysis, and
Ongoing Relationships: Integrating Litigation and Negotiation in Aboriginal Land and Resource Disputes” (2003)
Vol. 41, No. 4, Osgoode Hall Law Journal 587.
3
The Samson action went to trial in May of 2000 in Calgary and was scheduled to take 120 trial days. The case was
split into 4 phases⎯historical treaty, Indian moneys, oil and gas, programs and services, and per capita
distributions. After 370 trial days, 100,000 pages of trial exhibits and 61 witnesses, only 2 of the 4 phases were
completed before Justice Teitelbaum had to retire. The case was split and another judge will have to hear the
remaining phases.
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Over the last 37 years Aboriginal law trials has grown in complexity and length. From one perspective,
perhaps these legal issues are now receiving the evidentiary and legal analysis their proportional importance to
Canadian society deserve. From another perspective, courts and lawyers are failing to resolve and reconcile
legal disputes in a timely and cost effective way. As a result, courts are struggling with the increase to their
dockets and trial schedules. In an attempt to relieve growing trial schedule pressures, courts have introduced
active case management processes, and dispute resolution processes.
III. Case Management Practices
It has been eight years since the amendments to the Federal Court Rules (implemented on April 25, 1998)
which introduced status reviews and active case management. As stated in the Federal Court of Canada Annual
Reports,4 the purpose of the amendments was to better coordinate court processes and to move cases in a
more timely manner from commencement to disposition. The Federal Court statistics website indicates that
as of June 20, 2006 there are 247 Aboriginal law cases pending,5 which is a significant reduction since 1998.
It has been my experience that as a result of the 1998 amendments to the Federal Court Rules case
management judges often take the pace of the case out of counsel’s hands and impose timelines that keep the
case moving towards trial. A side effect is that the parties are forced to continually think about settlement, or
face the consequences that parties are no longer left to manage the pace of their own litigation. The rational
appears to be that by taking the case out of hands of counsel, it is expected that cases will be resolved more
expeditiously, and that over time more cases can be processed. Another result of judicial case management is
that opposing counsel are forced to efficiently work together to resolve procedural and/or substantive issues.
A.
Accessing Case Management in the Federal Court
Rule 383 provides for the designation of judges as case management judges by the Associate Chief Justice. A
case management judge is required to deal with all matters arising prior to the trial or hearing of a specially
managed proceeding and is permitted to fix and conduct any dispute resolution conference that he or she
considers necessary (Rule 385(1)).
A case management judge can hear the matter at trial except where he or she has conducted a dispute
resolution conference. That exception can be waived if all the parties consent to the judge presiding (Rule
391).
Case management consists of status reviews and specially managed proceedings.
1.
Status Reviews
Rules 380 to 382 govern status reviews. Status reviews involve proceedings that fall within the regular time
periods provided for in the rules (Rule 380(1)(a)(i)). When a time limit provided for in the rules has lapsed,
the court convenes a hearing⎯a status review. At a status review, a party or parties is required to demonstrate
why the proceeding should continue, or else the proceeding can be dismissed (Rule 382(2)). If the judge
presiding at the review is convinced the proceeding should continue he or she may order that the proceeding
continue as a specially managed proceeding (Rule 382(2)(c)).
4
Reports available at: http://www.fct-cf.gc.ca/about/annual/annual_e.shtml
5
http://www.fct-cf.gc.ca/about/statistics/statistics_e.shtml. Statistics for the BC Supreme Court are unavailable.
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2.
Specially Managed Proceedings
Specially managed proceedings are proceedings that have been taken out of the usual case flow and therefore
proceed according to the directions of a case management judge (and not the rules per se). In addition to a
proceeding being ordered to continue as a specially managed proceeding pursuant to a status review, a party
to a proceeding may bring a motion at any time to have the proceeding managed as a specially managed
proceeding (Rule 384). The court can also elect to bring a case under the specially managed rules on its own
motion.6
B.
What are the Powers of a Federal Court Case Management Judge?
See the attached Appendix to this paper for the complete rules and related provisions.
Federal Court Rule 385 addresses the powers of a case management judge. Generally a case management
judge can:
•
give any directions that are necessary for the just most expeditious and least expensive
determination of the proceeding on its merits (echoing the general principle found in Federal
Court Rule 3);
•
fix the period for completion of steps in the litigation;
•
fix and conduct any dispute resolution conference;
•
fix and conduct any pretrial conference;
•
hear and determine all motions;
•
order a status review;
IV. Provisions for Court Assisted
Dispute Resolution at the Federal Court of Canada
There are a number of mechanisms in place for dispute resolution at the Federal Court of Canada. Rule 386
provides for a dispute resolution conference and contemplates the parties using one of three possible
processes:
(i)
Mediation (Rule 387(a))
•
(ii)
Neutral Evaluation (Rule 387(b))
•
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The judge or prothonotary will assist the parties by encouraging and facilitating discussion
between them in order for the parties to “reach a mutually acceptable resolution to their
dispute.”
The judge or prothonotary will provide a non-binding opinion in which the strength and
weaknesses of a party’s case can be assessed shortly after a legal action has been
Compare the Federal Court Process to the BC Court Process where pursuant to the November 20, 1998 BC
Supreme Court Practice Directive, a case management judge will be assigned for trials over the length of 20 days. A
judge will be assigned when a “Notice of Trial” and a “Request for Assignment of Trial Judge” are filed. For trials
of one to 19 days requesting a case management judge, there are two ways of requesting a case management judge:
1) An application by either party in the form of a letter directed to the Trial Division is to be submitted to the Trial
Coordinator setting out reasons why a case management judge should be appointed; or 2) A recommendation by a
Judge or Master or by the Trial Division.
A motion is not required. A letter to the trial coordinator setting out reasons for such an appointment will suffice.
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commenced. The parties present the judge or prothonotary with a concise version of written
statements outlining their perception of the key factual and legal issues in the case. The
decision maker evaluates the strengths and weaknesses of the parties’ positions and offers a
non-binding opinion with respect to the likely outcome of a trial or hearing.
(iii)
Mini Trial (Rule 387(c))
•
Counsel present their best case for a trial or a hearing and a judge or prothonotary offers a
non-binding opinion concerning the likely outcome of the trial or hearing.
V.
Recent Federal Court Experience
At the Federal Court in complex historical breach of fiduciary obligation litigation, most recently I have
participated in two Rule 387 processes:
A.
Rule 387(a) Mediation Proceedings
The plaintiffs filed a Statement of Claim 21 years ago. Several years of pre-trial steps occurred before the
claim went into abeyance and the plaintiff chose to proceed through the Specific Claims process. After
dissatisfaction with delay in that process, in 2004 the plaintiffs reactivated the litigation. After a status review
the case management judge set down “exploratory settlement discussions” so that the parties could discuss
whether substantive settlement negotiations could be a real possibility. The case management judge actively
moved the parties towards pre-trial steps that would allow them to gather more evidence to resolve complex
factual questions, and to allow the parties to more deeply analyze complex legal issues. The Court imposed
timelines for the completion of the steps and then set down a further settlement conference to receive a
report as to progress, and to determine if the parties can “loop back” to substantive settlement discussions.
B.
Rule 387(c) Mini Trial Proceedings
In 1997 the plaintiffs filed a complex breach of fiduciary obligation claim. The pleadings closed in 1997 and
no further pre trial steps were taken. In 1998 the court instituted a status review and placed the case under
active case management imposing dates for service of Affidavit of Documents, and completion of
Discoveries. In August 2005 the action went into abeyance, with the parties agreeing to participate in
alternative dispute resolution (that is, non-judicially assisted settlement discussions). The negotiated
“Abeyance Agreement” specifically set out that if the parties reached an impasse at the settlement table they
would seek recourse to the Federal Court dispute resolution services. After one year of negotiations, with at
least one or two settlement tables per month, the parties decided to place two seemingly unresolveable issues
before the case management judge, using the “mini-trial” Rule 387(c) option. Extensive briefs were prepared,
with relevant documents and “will say” statements attached. The hearings lasted two days, with the case
management judge giving a non-binding oral opinion at the end of the sessions. The non-binding decision
included a percentage assessment of risk of loss or success for each party. This process allowed the parties to
“loop back” to negotiations and break through what previously appeared to be an intractable problem.
Although the preparations for the mini-trial resembled preparing for summary proceedings or an 18A
application, the process itself was relaxed with the parties sitting at a conference table. Submissions were
informal, with many interruptions and questions from the case management judge. During the two day
conference, several private caucus sessions were held with the judge and the individual parties, where the
judge privately analyzed or critiqued the parties’ positions.
It is my experience that in complex historic breach of fiduciary obligation claims there is a constructive role
for the judiciary to impose case management steps, or to issue dispute resolution
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decisions that support a “loop back” to negotiations. These processes provide incentives to negotiate and are
methods to overcome settlement table impasses.
VI. Observations and Suggestions
Regarding Dispute Resolution Processes
•
Settlement via an appropriate means is the best alternative for most parties in most Aboriginal cases.
Generally parties in Aboriginal litigation⎯be they First Nations, the Crown, or industry⎯have an
ongoing relationship between them that is worth preserving and fostering. Settlement achieves that,
litigation and trial, generally do not.
•
Discussions of which party will pay for a mediator can often be difficult and divisive; judicially assisted
mediation or dispute resolution is “free” or at least “low cost” for the parties
•
Avoid discussions where the appropriate expert advice has not been taken into consideration. Courts
should ensure the appropriate expertise is considered, and not just lawyers’ advice as “lay experts.”
•
Negotiations are difficult, complex and time consuming. Have a realistic sense of perspective regarding
the time it will take to negotiate final resolution of a historic claim in the litigation context. (I could not
locate statistics for the length of time for resolving an historic claim in the litigation context; however,
the Specific Claims website advises that it takes on average 4.8 years of negotiation to resolve a claim,
once that claim has been accepted for negotiation.7)
•
Consider having a case management judge assigned to assist with case organization, at the earliest of
stages.
•
Although counsel should be able to do this without judicial assistance, court assistance can be valuable
to break down a complex problem into a series of manageable pieces.
•
Always consider court dispute resolution services to resolve a difficult factual or legal issue, and then
“loop back” into settlement table discussions, not assisted by a judge.
•
Always consider summary proceedings as a method to resolve difficult factual or legal issues, and then
“loop back” into settlement table discussions. (For example, in the BC Supreme Court, Rule 33 –
Special Case; Rule 34, Proceedings On a Point of Law or in Federal Court – Rule 220 - Preliminary
determination of question of law or admissibility.)
•
Put the barracuda adversarial style of litigation at the door during negotiation. Settlement conferences
are not about scoring clever legal debating points.
•
In settlement negotiations Crown lawyers need to reconsider overly narrow approaches to determining
the nature and scope of the Crown’s fiduciary and constitutional obligations to First Nations.
•
In settlement negotiations Crown lawyers need to do a better job of explaining the Crown’s decision
making process in relation to completing risk assessments, receiving mandates and interactions with
“central agencies” like Treasury Board and the Department of Finance.
•
In settlement negotiations First Nation’s legal counsel need to reconsider expansive and grandiose
claims as to the nature and scope for their client’s rights and entitlements.
•
Where feasible, some settlement conferences and processes should take place near the location where
the dispute arose (often on reserve or in the closest town to the reserve). This shows respect for the
plaintiffs and make the process easier for them.
7
http://www.ainc-inac.gc.ca/ps/clm/scb_e.html
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•
Also, where feasible, and where the First Nation want this, settlement processes should reflect and
incorporate Aboriginal traditions and ceremonies.
•
Always think about measuring sticks for fairness and how to articulate those measuring sticks.
Determining what constitutes legitimate criteria to assess compensation is a formidable challenge for all
parties, especially where the parties disagree over facts, and the application of legal principles.
•
Be realistic when agreeing to use an “Agreed Statement of Facts.” At the early stages of negotiation do
not get bogged down into excessive factual detail. Start with a skeleton chronology, breaking the
timeline down into key transactions, and if necessary sub-transactions. Detail can come later.
•
Pleadings filed by Aboriginal litigators are not always a model of clarity and precision. Crown lawyers
need to be willing to attempt to clarify ambiguities without first resorting to a costly trip to chambers.
But, if you are pleading breach of fiduciary obligation, plead the particulars of the breach. [Case law
requires such particulars⎯see Proconic Electronics Ltd. v. Wong (1985), 67 B.C.L.R. 237. When serious
allegations of misconduct based on fiduciary relationship are made, particulars must be given or some
evidence adduced. The alternative is to amend the Statement of Claim or strike out the allegations.]
•
If the claim is for historic breach of fiduciary obligation, if possible, attempt to remove allegations of
s. 35 rights and title, and save them for another day or another forum. Inclusion of such claims will
complicate the procedural steps in the litigation or settlement process.
•
If a Specific Claim exists on the same or overlapping subject matter, consider whether the Band will
waive settlement privilege or solicitor/client privilege over relevant documents. This may speed up the
process.
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VII. Bibliography
Federal Court Annual Report (2004 – 2005).
Haslip, Susan. “Making a Federal Case Out of Mediation” (2000), 22 Advocates Quarterly 231.
Imai, Shin. “Sound Science, Careful Policy Analysis, and Ongoing Relationships: Integrating Litigation and
Negotiation in Aboriginal Land and Resource Disputes” 41 No. 4 (2003) Osgoode Hall Law Journal 587.
Slavik, Jerome. “Discussion Paper re: Crown/First Nation Negotiations” (March 2006, Paper presented to
the CBA National Aboriginal Law Section and the Continuing Legal Education Committee).
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VIII. Appendix⎯Federal Court Rules re Case Management Judges
Federal Court Rules (2005)
DISPUTE RESOLUTION SERVICES
Powers of case management judge
385(1) A case management judge or a prothonotary assigned under paragraph 383(c) shall
deal with all matters that arise prior to the trial or hearing of a specially managed proceeding
and may
(a) give any directions that are necessary for the just, most expeditious and least
expensive determination of the proceeding on its merits;
(b) notwithstanding any period provided for in these Rules, fix the period for
completion of subsequent steps in the proceeding;
(c) fix and conduct any dispute resolution or pre-trial conferences that he or she
considers necessary; and
(d) subject to subsection 50(1), hear and determine all motions arising prior to the
assignment of a hearing date.
Order for status review
(2) A case management judge or a prothonotary assigned under paragraph 383(c) may, at
any time, order that a status review be held in accordance with rule 382.
Order to cease special management
(3) A case management judge or a prothonotary assigned under paragraph 383(c) may order
that a proceeding, other than a class action, cease to be conducted as a specially managed
proceeding, in which case the periods set out in these Rules for taking any subsequent steps
will apply.
Order for dispute resolution conference
386(1) The Court may order that a proceeding, or any issue in a proceeding, be referred to a
dispute resolution conference, to be conducted in accordance with rules 387 to 389 and any
directions set out in the order.
Time limit for dispute resolution conference
(2) Unless the Court orders otherwise, a dispute resolution conference shall be completed
within 30 days.
Interpretation
387. A dispute resolution conference shall be conducted by a case management judge or
prothonotary assigned under paragraph 383(c), who may
(a) conduct a mediation, to assist the parties by meeting with them together or
separately to encourage and facilitate discussion between them in an attempt to
reach a mutually acceptable resolution of the dispute;
(b) conduct an early neutral evaluation of a proceeding, to evaluate the relative
strengths and weaknesses of the positions advanced by the parties and render a
non-binding opinion as to the probable outcome of the proceeding; or
(c) conduct a mini-trial, presiding over presentation by counsel for the parties of
their best case and rendering a non-binding opinion as to the probable
outcome of the proceeding.
Confidentiality
388. Discussions in a dispute resolution conference and documents prepared for the
purposes of such a conference are confidential and shall not be disclosed.
Notice of settlement
389(1) Where a settlement of all or part of a proceeding is reached at a dispute resolution
conference,
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(a)
(b)
it shall be reduced to writing and signed by the parties or their solicitors; and
a notice of settlement in Form 389 shall be filed within 10 days after the
settlement is reached.
Report of partial settlement
(2) Where a settlement of only part of a proceeding is reached at a dispute resolution
conference, the case management judge shall make an order setting out the issues that have
not been resolved and giving such directions as he or she considers necessary for their
adjudication.
Notice of failure to settle
(3) Where no settlement can be reached at a dispute resolution conference, the case
management judge shall record that fact on the Court file.
Stay of proceedings
390. On motion, a case management judge or a prothonotary assigned under paragraph
383(c) may, by order, stay a proceeding, including a proceeding that has previously been
stayed, for a period of not more than six months, on the ground that the parties have
undertaken to refer the subject-matter of the proceeding to an alternative means of dispute
resolution, other than a dispute resolution conference referred to in rule 386.
Case management judge not to preside at hearing
391. A case management judge who conducts a dispute resolution conference in an action,
application or appeal shall not preside at the hearing thereof unless all parties consent.