Stick to the schedule, Nunavut judge tells federal lawyers
Court insists 20-week NTI lawsuit trial must start in March 2015
Justice Earl Johnson, in a judgment issued Jan. 16, warned federal government lawyers that he wants Nunavut Tunngavik’s massive lawsuit to go to trial on schedule in 2015, despite the huge pile of documents that Ottawa must cough up for use as evidence.
NTI launched its lawsuit in December 2006. In it, they allege Ottawa committed numerous breaches of the Nunavut Land Claims Agreement, and they seek about $1 billion in compensation.
Under an agreement among lawyers reached this past October, that case is scheduled to go to trial on March 15, 2015.
The trial would take 20 weeks of court time, with two-week breaks after each four-week segment.
Johnson said that likely means the trial would finish by Sept. 25, 2015.
But federal government lawyers are now balking at a schedule of proposed court activities between now and then.
At a hearing this past December, federal lawyers told Johnson they cannot meet an NTI demand for a March 31, 2014 deadline to produce a certified list of documents that are covered by cabinet confidentiality rules.
Instead, they want Johnson to set a deadline of Dec. 31, 2014. They say the Clerk of the Privy Council — the head of Canada’s public service — needs more time to examine each of the many thousands of required documents to ensure they’re not covered by cabinet privilege and may be made public.
So far, lawyers for Canada have identified 3,200 documents that must be examined for cabinet privilege and they say the total number of such documents could run as high as 6,000.
But lawyers for NTI say a December 2014 deadline does not give them enough to time to challenge Ottawa’s claims of cabinet privilege prior to the start of the trial in March 2015.
The flow of documents began in January 2009, when lawyers for each side began a pre-trial process called “examination for discovery.”
Lawyers in civil suits use these discovery hearings to learn about the other side’s case and to help identify areas where agreement can be reached without resorting to a trial.
While witnesses began giving oral evidence at the 2009 discovery hearings, federal government lawyers began collecting thousands of documents.
But the privy council office, the civil service that sits atop the federal public service, has not reviewed most of these documents and is bogged down dealing with many massive document requests from the auditor general and others.
In his judgment, Johnson did not rule on NTI’s March 31, 2014 deadline proposal for the production of the privy council office’s certified list — and adjourned the issue until June 9.
But he rejected any change in the process that would throw off the agreed trial schedule and he said the federal government should speed up its document production.
“Now that the cast has been set with agreement of all counsel, there cannot be any delay in commencement of the trial,” Johnson said.
He said the Nunavut court has set aside more time for the NTI land claims trial than for any other trial held in Nunavut since 1999.
“In addition to committing the time of a judge there will be significant demands on the civil court staff and the Government of Nunavut in providing a courtroom to handle the trial. There will also be a requirement for electronic technical support to handle the documents necessary for the trial,” Johnson said.
And he said the federal government should devote more resources to the process and step up its review of documents.