First Nations commenced action against federal government in 1992 for relief for breach of fiduciary duty in making certain treaties in 1923. Federal government commenced third-party claim against provincial government. Parties engaged in negotiations until 2000. First Nations hired expert S to interview First Nations’ members to assist in identifying potential witnesses. Expert S interviewed 174 members of First Nations and began drafting expert report on First Nations’ oral history of treaties based on these interviews. Report was not completed, and First Nations indicated in 2007 that they would not rely on it. Expert passed away in 2012. Trial commenced some weeks later. First Nations’ oral history of events became relevant in 2013 when anomalies were discovered in original treaties. First Nations hired expert M to prepare expert report based on expert S’s work. First Nations brought motion for leave to file expert M’s report and to call him as expert witness. Motion granted on terms. Comprehensive order was made regarding conduct of trial, including how expert M’s evidence was to be addressed. First Nations’ oral narratives recorded by expert S and analysed by expert M constituted both oral history evidence and hearsay evidence on treaties. Expert M was anthropologist who could be expected to provide expert evidence in his field of expertise. Interviews might be hearsay, but expert M’s report was not. Expert M’s report was relevant and necessary. Preliminary findings about admissibility were not findings of fact, which were made only when evidence was complete at end of trial. Since expert S engaged in research using academically accepted approach, and since expert M was available for cross-examination, reliability and trustworthiness of expert S’s work could be assessed through expert M’s expert testimony. Some First Nation interviewees would be available to testify and be cross-examined. In addition, federal and provincial governments identified archival oral history recordings that were also available for comparison. Various mitigative measures would adequately address much prejudice arising from late filing of expert M’s report.
Alderville Indian Band v. R. (Jul. 28, 2015, F.C., Leonard S. Mandamin J., T-195-92) 264 A.C.W.S. (3d) 1.