Date: 20020702
Docket: T-2022-89/T-1254-92
Neutral citation: 2002 FCT 740
T-2022-89
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all of the other members of the Samson Indian Nation and Band
- and -
THE SAMSON INDIAN BAND AND NATION,
PLAINTIFFS
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT and THE MINISTER OF FINANCE
DEFENDANTS
AND
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
INTERVENORS
AND
EMILY STOYKA and SARA SCHUG
INTERVENORS
AND BETWEEN:
T-1254-92
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nations suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Defendants
REASONS FOR ORDER
TEITELBAUM, J.:
On December 11, 2001, counsel for Samson plaintiffs stated their intention to proceed with a motion to apply for severance of the two actions commenced by the Samson plaintiffs and the Ermineskin plaintiffs. The application was subsequently argued on May 6 and 7, 2002.
Samson plaintiffs brought their motion for severance on the basis that if the trials continued to be heard together, Samson plaintiffs would suffer appreciable prejudice because of the interests of the two plaintiffs had diverged on what Samson plaintiffs consider to be a significant and fundamental aspect of Samson's case.
On May 13, 2002, the Court issued a decision whereby the application to sever made by the Samson plaintiffs was dismissed.
The parties were then given an opportunity to file written submissions on the issue of costs. All three parties filed written submissions. Samson plaintiffs filed a written rebuttal to the severance costs submissions of both Ermineskin plaintiffs and the defendant Crown. Ermineskin plaintiffs filed further written submissions to Samson's rebuttal submissions.
Samson plaintiffs' principal submission is that the costs of the application should either be "in the cause" or that each party should bear its own costs "as that has been the practice of the Court dealing with costs of other applications which have been heard to date in these trials".
Samson plaintiffs submit that their severance application was not wasteful, inexpedient, or doomed to failure. Indeed, they contend that the application was useful to the parties and the Court in that it served to clarify the issues in the two actions and the different approaches being taken by Samson and Ermineskin.
With respect, I must disagree. The application for severance was futile and ill-timed; the trial had been underway for some two years by the time Samson plaintiffs brought their motion. Moreover, the application in no way served to clarify the issues. It was more than apparent from early on that Samson and Ermineskin were taking different approaches with respect to certain aspects of their separate actions. Furthermore, Samson plaintiffs were unable to establish any prejudice whatsoever. Beyond this, I need not repeat in further detail the reasons I gave when I dismissed Samson's application.
Under Rule 400 of the Federal Court Rules, 1998, the Court has full discretion over the amount and allocation of costs; various factors that may be considered are set out in Rule 400(3). This is not an appropriate situation for an award of solicitor/client costs against Samson as claimed by Ermineskin, some $60,000.00 and the Crown, some $50,000.00 reduced to $25,000.00. However, in light of the fact that the severance application was futile and ill-timed, the Court exercises its discretion to award costs in the amount of $15,000.00 to Ermineskin plaintiffs to be paid by Samson plaintiffs forthwith and costs in the amount of $15,000.00 to the Crown to be paid by Samson plaintiffs forthwith.
No costs are to be awarded on the issue of addressing the issue of costs.
"Max M. Teitelbaum"
J. F. C. C.
Calgary, Alberta
July 2, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020702
Dockets: T-2022-89/
T-1254-92
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all of the other members of the Samson Indian Nation and Band
- and -
THE SAMSON INDIAN BAND AND NATION,
PLAINTIFFS
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE MINISTER OF FINANCE
DEFENDANTS
AND
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
INTERVENORS
AND
EMILY STOYKA and SARA SCHUG
INTERVENORS
AND BETWEEN:
T-1254-92
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: T-2022-89 and T-1254-92
STYLE OF CAUSE: Chief Victor Buffalo et al. v. Her Majesty the Queen et al.
Chief John Ermineskin et al. v. Her Majesty the
Queen et al.
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: May 6, 7, 2002
REASONS FOR ORDER : TEITELBAUM, J.
DATED: July 2, 2002
APPEARANCES:
Mr. James O'Reilly
Mr. Ed Molstad, Q.C. FOR PLAINTIFF SAMSON
T-2022-89
Mr. Marvin Storrow, Q.C. FOR PLAINTIFF
Ms. Maria Morellato ERMINESKIN
T-1254-92
Mr. Allan Macleod, Q.C.
Mr. Clarke Hunter FOR HER MAJESTY THE
Ms. Brenda Armitage QUEEN
Mr. S. H. (Stan) Rutwind FOR ATTORNEY GENERAL
FOR ALBERTA
- 2 -
SOLICITORS OF RECORD:
O'Reilly & Associés
Montréal, Québec
Parlee McLaws FOR PLAINTIFF SAMSON
Edmonton, Alberta T-2022-89
Blake, Cassels & Graydon FOR PLAINTIFF
Vancouver, British Columbia ERMINESKIN
T-1254-92
Macleod Dixon LLP FOR HER MAJESTY THE
Calgary, Alberta QUEEN
Alberta Justice Constitutional FOR ATTORNEY GENERAL
& Aboriginal Law FOR ALBERTA
Edmonton, Alberta
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