Court Update Day 2; Wednesday, September 3, 1997
Dismissal Denied; Trial Begins
The morning was taken up by yesterday's motion to dismiss the trial based on conflict of interest that was introduced by Lubicon counsel, Mr Owen Young. Mr. Justice MacPherson quickly summarized the motion and arguments; however, he had decided not to allow the motion for reasons of standing and timing.
Mr. Justice MacPherson stated that the Lubicon Nation were not party to the action before the court and the Lubicon Nation would not be affected legally by the decisions in FoL's trial.
Counsel for the Friends of the Lubicon, Karen Wristen, then introduced a motion to exclude a report introduced by Daishowa on August 29 (one business day before the trial began) which purports to give evidence about the Lubicon's land claims. Ms. Wristen stated that after a cursory review of the Report she had noted some discrepancies that indicated a full comprehensive review was needed. Ms. Wristen said that she may have to introduce extensive evidence about the Lubicon. Ms. Wristen indicated that she would need a couple of weeks in order to refute claims contained in the Report and then another couple of weeks to respond as well as prepare for cross examination.
Mr. Justice MacPherson said these arguments were irrelevant until Mr. Jervis, counsel for Daishowa, introduced the Report during the trial. Mr. Justice MacPherson refused to hear the motion that the Report not be allowed until such a time.
Ms. Wristen then requested that the trial be adjourned to allow time to analyze the report. Daishowa's lawyer, Mr. Peter Jervis spoke at length about previous adjournments and was cautioned by Mr. Justice MacPherson about how long he was taking, as the judge is only available until October 2nd for the trial. Mr. Justice McPherson refused the motion for adjournment.
After a break, Mr. Jervis began the trial against FoL. He stated that this was a case about boycotts and the Plaintiffs were not seeking to restrict communication of truthful statements. Mr. Jervis said that FoL had intimidated Daishowa's customers in the boycott campaign.
Mr. Jervis next discussed the corporate structure of Daishowa in great detail. He described Daishowa Inc. as being vulnerable because of the generic nature of its products: plain brown paper bags, amongst other items. Mr. Jervis indicated that Daishowa's customers had plenty of options if they decided to no longer use Daishowa.
Ms. Wristen took only half a hour to describe FoL's case. She discussed the evidence that will be presented, including evidence that the Daishowa group of companies had always been described and considered as one group until the commencement of the lawsuit. She described the varying positions Daishowa had taken over the years over the size of the Lubicon traditional lands and on whether or not they had agreed to stay out of Lubicon lands. She also said evidence will be presented by several witnesses about the use of the word genocide. Ms. Wristen described the nature of the picketing conducted in the boycott campaign as peaceful and intended merely to provide information to the public about Daishowa's practices. She mentioned FoL members had a strong moral duty to oppose clearcutting on unceded Lubicon land and the only way to affect change was to provide information to the public.
The Daishowa v. Friends of the Lubicon trial will continue Thursday, September 4 at 10 am at Courtroom 4-2, 361 University Ave., Toronto. For more information call (416) 763-7500 or e-mail Friends of the Lubicon at fol@tao.ca
Joining Friends of the Lubicon in court Thursday will be the Sisters of St. Joseph, who will be bringing their people out to witness the trial. Each day of court has been sponsored by various organizations who are bringing their members to court to support the Friends during the trial.
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The Lubicon Nation became aware that their land rights were being attacked in the Daishowa v. FOL case only last week. Prior to that they believed, as did the Friends of the Lubicon, that the trial was instead an attack on the rights to freedom of expression of their supporters and would not be addressing the merit of their land rights struggle. Daishowa filed Davis & Co.'s approximately 200-page report August 29th, the last business day before the trial.
The judge refused to allow the Lubicon Nation standing at trial to present the motion.
Daishowa Marubeni International has two Davis & Co. lawyers present at trial to represent their interests (although officially they are not party to the lawsuit).
What follows are the reasons of Justice McPherson.
Reasons of Ontario Court (General Division) Justice J.C. MacPherson for dismissing the motion by the Lubicons challenging the involvement of Vancouver law form of Davis & Company and its Ontario counterpart in the Friends of the Lubicon civil litigation on the basis of a conflict of interest.
2 September 1997
This is a motion brought by a non-party to this action, the Lubicon Nation acting through its Chief and Council. The relief sought is an order barring the law firm of Davis & Co. (a Vancouver firm) from advising or in any way representing the plaintiff in or with respect to this action and an order removing the law firm of Lerner & Associates as solicitors of record for the plaintiff in this action. The basis for the motion is an allegation that Davis & Co. represented the Lubicon Nation in the mid-1980s and is now involved in this litigation which has the potential to affect in a negative way the interests of the Lubicon Nation. This earlier solicitor-client relationship placed Davis & Co. in a conflict of interest position, says the Lubicon Nation. It also places Lerner & Associates in the same position because Lerner has received and proposes to use at trial information and material it has received from Davis & Co.
Because of the importance of the issues raised in the Notice of Motion, I am of the view that leave to bring the motion on short notice should be granted and that the Lubicon Nation should be granted standing to be heard on the motion. The hearing of the motion this morning proceeded on that preliminary basis.
The factual basis for the motion is contained in the affidavit of Fred Lennarson, an advisor to the Lubicon Nation since 1980. Mr. Lennarson states that the Lubicon Nation has concerns about this Ontario action. The concerns centre on whether the outcome of the action might have an effect on the Lubicon Nation, its aboriginal and other rights. In spite of these concerns, until last week, the Lubicon Chief and Council had concluded that the issues were not raised in such a way that their active involvement in the legal proceedings was warranted" (paragraph 6).
That view changed last week when the Lubicon Nation became aware of and considered the Thiessen Report which the Plaintiff served on the defendants and may seek to introduce as reply evidence later in this action. This report was of concern to the Lubicon Nation in two ways. First, its concerns "purported to address matters of Lubicon title and a number of other issues that are relevant to the Lubicon land rights claims and settlement negotiations" (paragraph 7). Second, the Lubicon Nation is concerned that "the report had been prepared by Thiessen at the direction of Davis & Company and that Davis & Company was passing information and instructions to Lerner & Associates for purposes of this litigation" (paragraph 8). The reason that this is a concern, says the Lubicon Nation, is that Davis & Co. represented the Lubicon Nation, extensively in 1986, and in a very minor fashion in 1987 and 1988 (see statements of account). The Lubicon Nation is worried that some of the information it provided to Davis & Co. on a solicitor-client basis in 1986 has perhaps found its way into the Thiessen Report or will be used by the plaintiff in this trial.
There is no doubt that the solicitor-client privilege is of profound importance. It lies at the heart of the integrity of the justice system and must be assiduously protected - see MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235. However, on the record before me, I do not believe that the Lubicon Nation should be able to bring this motion on the opening day of a long-scheduled trial. I reach this conclusion for reasons of standing and of timeliness.
First, the Lubicon Nation is not, and has never been, a party to this action. It is well aware of the litigation. Indeed, one of the defendants, Kevin Thomas, has spoken to Chief Ominayak and the affiant Mr. Lennarson every couple of weeks since the boycott began in 1991. Moreover, the nature of the issues in the action is also well-known to the Lubicon Nation. Those issues "touch on" or "involve" "the nature of Lubicon land rights," "the nature of Lubicon society" and "the character of Lubicon land rights". (Lennarson affidavit, paragraph 5). In spite of this knowledge, the Lubicon Nation has not sought to participate in any way as either a party or an intervenor - until today, the opening day of the trial. And even today, all the Lubicon Nation seeks to do is remove Davis & Co. and Lerner & Associates from the action; it does not go further and seek to play an active role in an action which affects, it says, such far-reaching rights as those set out above.
Second, the plaintiff's action is against the Friends of the Lubicon. The relief it seeks is against the Friends - and in Ontario. If the plaintiff is successful, the legal position of the Lubicon Nation will be unaffected. In short, this trial is not an Alberta land claims trial. It is an Ontario boycott/contract/speech case.
Third, Daishowa Canada Co. (the western company, the plaintiff in this action) has been represented by Davis & Co. for many years. This representation has been open and visible and has been in litigation where the interests of the Lubicon Nation have been greatly affected: see, for example, Reese v. Alberta (1992), 85 Alta. L.R. (2d) 154 (Q.B.). The Lubicon Nation has never challenged this representation before today.
Fourth, Davis & Co. do not represent the plaintiff corporation. They represent a different, albeit related, corporation. In a great deal of pre-trial skirmishing which has led to decisions by other judges of this court and the Divisional Court, the plaintiff has tried to narrow the focus of the litigation to its own conduct; the defendants have resisted and have tried to keep the focus on a broader plane that would include some of the related companies. Broadly speaking, the defendants have been successful in these skirmishes. The defendants are the Friends of the Lubicon who openly state that they consult regularly with the senior representatives of the Lubicon Nation. For the Lubicon Nation to appear today and in effect use the success of their "friends" to try to remove the plaintiff's counsel is inappropriate.
For these reasons, although I permitted the Lubicon Nation to argue its motion today, my conclusion is that the motion should be dismissed on both standing and timeliness grounds. Accordingly, I will not hear argument on the merits of the motion.
Costs may be spoken to at the conclusion of this action, if so advised.
J.C. MacPherson