ATTORNEY GENERAL for ONTARIO (Respondent) v. BEAR ...

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General asserted a claim to an unencumbered title to the Land Claim Area. The appellants claimthat the title to the Land Claim Area is burdened by aboriginal rights possessed by the TemagamiIndian Band. The learned trial judge denied the appellants' claim and rested his judgment on anumber of alternative grounds. The appellants take issue with all of his conclusions and ask thatthe judgment be reversed.It should be made plain what is in issue in this appeal. The subject matter of the dispute is the titleto land. The province takes the position that its ownership of the land in question is unencumberedby any aboriginal rights of the appellants. The appellants, of course, argue the contrary. What isnot at stake in this appeal is the right of the appellants to claim compensation or to claim any otherbenefit that may accrue to them as an unfulfilled obligation under the Robinson-Huron Treaty.II.THE ISSUESA. Problems at TrialCounsel for the appellants filed a volume of factum and written argument entitled "Problems atTrial." The first paragraph sets forth the substance of the complaint.The following is a compilation of miscellaneous incidents during trial, evidentiary rulings,remarks by Steele J. both during the trial and in his reasons for Judgment, which in thesubmission of the Appellants reflect a hostility of mind on the part of the trier of fact towardthe Defendants at trial sufficient to call into question whether Steele J. impartially andjudicially weighted the evidence before him in reaching his findings of facts and credibility.The allegation is astonishing in light of the comments that follow in the factum about counsel at trial(not either of the counsel who appeared on the appeal). It states that he was inexperienced,presented the evidence in excessive detail, cross-examined his own witnesses, engaged in lengthylines of questioning which were of dubious relevance, and attempted to argue the case whileintroducing evidence. At the close of evidence, he filed a written argument which dealt not at allwith the evidence before the trial judge but was a treatise on aboriginal rights prepared prior to thetrial. Counsel on appeal stated that trial counsel's personal involvement in his clients' case causedhim to make certain inappropriate and disrespectful remarks about the court and the judicialsystem.Notwithstanding this, it is submitted in this court that friction developed between counsel and thetrial judge and thatThe understandable irritation shown by Steele J. towards counsel for the defendants isevidence of possible bias, and raises a reasonable apprehension that Steele J. may nothave considered the merits of the defendants' case as impartially as he might otherwisehave done.The trial was of exceptional length and complexity. There were 120 sitting days and more than3,000 exhibits were filed. On the appeal, which lasted 14 hearing days, appellants' counsel arguedfor 8 days, including reply. The respondent, the Attorney-General for Ontario, argued for the bestpart of 4 days. The rest of the time was taken up by the interveners.The case on appeal was argued largely on the facts by appellants' counsel. The appellants filedwith the court 7 volumes of factum and written argument, the respondent filed 5 volumes and thethree interveners filed 1 volume each. The court was referred to other material which was filed inaddition and to substantial passages from the evidence and exhibits. In particular, with referenceto the criticism of the trial judge, we were referred separately to all his so-called interjections, all hisrulings on evidence and to all his findings in the judgment to which exception was taken on thegrounds of possible bias.We have made a careful review of all this material and are of the opinion that the trial judgeshowed exceptional courtesy to and patience with a very inexperienced counsel who insisted onpresenting masses of evidence, much of which was of marginal relevance. The trial judge bentover backwards to assist counsel and was well aware of the evidentiary problems facing theTemagami Band in attempting to reconstruct an ancestral history that it alleged went back prior to1763. We can only say that having conducted this review, we have no hesitation in holding that thecomplaints as to the trial judge's conduct are frivolous and not worthy of further comment.B. Findings of Fact
We note that in attacking the findings of fact of the trial judge, appellants' counsel in the factum andwritten argument, and in oral submissions, stated on a number of occasions that "the judgment isperverse to the evidence." Whatever was intended by the use of this language, it is clear that theburden on the appellants was to persuade this court that the trial judge's findings were based onpalpable and overriding error. The test is set out by Ritchie J. in Stein v. The Ship "Kathy K",[1976] 2 S.C.R. 802 at 806, 808.I think that under such circumstances the accepted approach of a court of appeal is to testthe findings made at trial on the basis of whether or not they were clearly wrong rather thanwhether they accorded with that court's view of the balance of probability.…These authorities are not to be taken as meaning that the findings of fact made at trial areimmutable, but rather that they are not to be reversed unless it can be established that thelearned trial judge made some palpable and overriding error which affected his assessmentof the facts.The rule applies not only where findings are based on credibility but also where findings are madeon the basis of conflicting expert testimony. See N.V. Bocimar S.A. v. Century Insurance Co. ofCanada (1987), 76 N.R. 212 at 213 (S.C.C.) per Le Dain J.:The Court of Appeal took the position that because of the nature of the evidence in thiscase, which consisted of expert testimony and documentary evidence, the court, to use itsown words, was "almost in the position of conducting the trial de novo and making our ownassessment of the evidence." I cannot agree. The limits to the scope of appellate review ofthe findings of the fact by a trial court, which were affirmed by this court in Stein v. The Ship"Kathy K," [1976] 2 S.C.R. 802, and other decisions, also apply in my opinion to the reviewof the findings of a trial court based on expert testimony. . . .See also, Lewis v. Todd, [1980] 2 S.C.R. 694; Joseph Brant Memorial Hospital v. Koziol, [1978] 1S.C.R. 491; Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78; Joyce v. Yeomans,[1981] 2 All E.R. 21 (C.A.); and Beaudoin-Daigneault v. Richard, [1984] 1 S.C.R. 2.The trial judge's reasons are exhaustive, comprising 284 pages exclusive of schedules. He hasprovided a useful table of contents and his reasons reflect a meticulous and well-organizedapproach to the problems before him. There are no palpable or overriding errors in any of hisfindings of fact.In addition to the findings that were essential to the issues before him, the trial judge paid counselfor the Temagami Band the courtesy of dealing extensively with matters of some historical andcultural interest but of little relevance to the case. As to the history of the band, the trial judgeexpressed disappointment that so little of the evidence was given by band members. Chief Pottswas the principal Indian witness to give oral history and his testimony was not oral history in thetraditional sense. His own family did not arrive in the Land Claim Area until 1901, and his principalsource of information was not his parents and grandparents. Instead, he gave evidence that wasthe result of his research and that which he had learned from other members of the band who werenot called as witnesses. His evidence was not, in any sense, the best evidence available and therewere available, older band members who could recount oral tradition. Chief Potts' testimony wasnot similar in quality to the type presented in other cases where oral history has been admitted: seefor example, Re Paulette's Application to File a Caveat (1973), 42 D.L.R. (3d) 8 (N.W.T.S.C.).We feel that having regard to the quality of the evidence, the fact that there are substantial gaps inthe history of the Temagami Band, that its relationship with sovereign governments of the day isnot well documented during some periods of time, and after acknowledging the need to draw broadinferences, weigh conflicting theories and to some extent speculate, we are of the opinion that thetrial judge made a remarkable analysis of the evidence. Not only do his findings of fact not amountto nor constitute palpable and overriding error, they are almost without exception fully supportableon the evidence.C. Nature of Aboriginal RightsA threshold issue in this case is whether or not the Temagami Band had any aboriginal rights in theLand Claim Area. In his reasons for judgment, Steele J. said in his summary of findings at pp.372-73 [pp.20-21 C.N.L.R.]:
Page 1: ATTORNEY GENERAL for ONTARIO (Respo
Page 5 and 6: event that band appears to have bee
Page 7 and 8: White Fish Lake had marked the limi
Page 9 and 10: Temagami Band had not been a party
Page 11 and 12: Wetherby, 95 U.S. 517, 525.Mr. Just

ATTORNEY GENERAL for ONTARIO (Respondent) v. BEAR ...

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