Date: 20090811
Docket: T-195-92
Citation: 2009 FC
760
OTTAWA, Ontario, August 11, 2009
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
ALDERVILLE INDIAN BAND now
known as Mississaugas of Alderville First Nation, and Gimaa Jim Bob Marsden,
suing on his own behalf and on behalf of the members of the Mississaugas of
Alderville First Nation
BEAUSOLEIL INDIAN BAND now known as
Beausoleil First Nation, and Gimaaniniikwe Valerie Monague, suing on her own
behalf and on behalf of the members of the Beausoleil First Nation
CHIPPEWAS OF GEORGINA ISLAND INDIAN BAND
now known as Chippewas of Georgina Island First Nation, and Gimaa William
McCue, suing on his own behalf and on behalf of the members of the Chippewas of
Georgina Island First Nation
CHIPPEWAS OF RAMA INDIAN BAND now known
as Mnjikaning First Nation, and Gimaaniniikwe Sharon Stinson-Henry, suing on
her own behalf and on behalf of the members of the Mnjikaning First Nation
CURVE LAKE INDIAN BAND now known as Curve
Lake First Nation, and Gimaa Keith Knott, suing on his own behalf and on behalf
of the members of the Curve
Lake
First Nation
HIAWATHA INDIAN BAND now known as
Hiawatha First Nation, and Gimaa Greg Cowie, suing on his own behalf and on
behalf of the members of the Hiawatha First Nation
MISSISSAUGAS OF SCUGOG INDIAN BAND now
known as Mississaugas of Scugog Island First Nation, and Gimaaniniikwe Tracy
Gauthier, suing on her own behalf and on behalf of the members of the
Mississaugas of Scugog Island First Nation
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
and
HER MAJESTY THE QUEEN IN RIGHT
OF ONTATIO
Third Party
AMENDED REASONS FOR ORDER AND ORDER
[1]
This is a
motion pursuant to Rule 51 of the Federal Courts Rules wherein the Third
Party, Her Majesty the Queen in Right of Ontario (Ontario) is appealing a decision of Prothonotary
Milczynski dated May 6, 2009.
[2]
As stated
by Ontario in its Motion Record, the
motion is for:
·
An Order
setting aside, in part, the Order of Prothonotary Milczynski made May 6, 2009
on a motion by the third party.
·
An Order
requiring the plaintiffs to answer by way of written interrogatory questions 33,
34, 38, 39, 40, 49 and 54 in Ontario’s Written Discovery Questions for the
Plaintiffs dated March 13, 2009, which questions are particularized in the
attached Appendix “A”, and to answer any
proper further questions reasonably arising from the answers so given.
·
An Order for the
costs of this motion.
·
Such further and
other relief as this Honourable Court may deem reasonable and just.
[3]
The
grounds for the motion as stated in the Motion Record, are:
·
The
prothonotary erred in failing to overrule the plaintiff’s objections to these
discovery questions and direct the plaintiffs to answer the questions by way of
written interrogatory.
·
The decision
of the prothonotary was based upon wrong principles or a misapplication of the
principles governing the scope of permissible discovery.
·
Questions
33, 34, 49 and 54, as particularized in Appendix “A”, are relevant on the fact
of the pleadings in the main action and the prothonotary erred in upholding the
objections to them on the basis that they were not relevant.
·
Questions
38, 39 and 40, as particularized in Appendix “A”, are questions of mixed fact
and law in which the third party is seeking the plaintiffs’ factual
understanding and accordingly, the prothonotary erred in upholding the
plaintiffs’ objections to them on the basis that they are a legal question.
·
In ruling
that these questions were not relevant or a legal question the prothonotary
erred in principle and impaired the right and ability of the third party to
inform itself fully, through the discovery process, of the precise nature of
the plaintiffs’ positions so as to define fully the issues between.
[4]
The motion
relates to the following questions and rulings:
|
Q
N
|
QUESTION
|
OBJECTION
|
RULING
MAY 6
|
|
33
|
In
the years since 1923, have any of the plaintiffs either attempted to or
actually pruchased lands to add to their reserves with funds from their trust
accounts or otherwise? If ys, identify the facts concerning such purchases.
If there were no such transactions, what are the reasons for which such
transactions were not undertaken?
|
Objection
on the basis of relevance
|
Objection
upheld
|
|
34
|
Please
list all the claims since 1923 that have been asserted against either the
Federal or Provincial Crown, or both in relation to each plaintiff’s
traditional territory, its treaties, or any surrender of reserve lands. When
answering this question, kindly describe what was sought by each asserted
claim, when it was advanced, and what remedies were being sought if the claim
remains outstanding. If any claims have been settled when were they settled
and what were the key settlement terms?
|
Objection
on the basis of relevance
|
Objection
upheld
|
|
38
|
In
1923, what did each plaintiff believe or understand clause 1 of the Williams
Treaties to mean? Does each plaintiff have the same belief or understanding
today? If not, what is the basis for the change in belief or understanding?
|
Objection
– Lgal question
|
Objection
upheld
|
|
39
|
In
1923, what did each plaintiff believe or understand clause 2 of the Williams
Treaties to mean? Does each plaintiff have the same belief or understanding
today? If not, what is the basis for the change in belief or understanding?
|
Objection
– Legal question
|
|
|
40
|
In
1923, what did each plaintiff believe or understand clause 3 of the Williams
Treaties to mean? Does each plaintiff have the same belief or understanding
today? If not, what is the basis for the change in belief or understanding?
Claude
3 reads as follows:
AND
ALSO all the right, title, interest, claim, demand and privileges whatsoever
of the said Indians, in, to, upon or in respect of all other lands situate in
the Province of Ontario to which they ever had, now have, or now claim to
have any right, title, interest, claim, demand or privileges, except such
reserves as have therefore been set apart for them by His Majesty the King.
|
Objection
– Legal question
|
Objection
upheld
|
|
49
|
In
the ten years leading up to the ing of the Williams Treaties, did any members
of the plaintiff seek licences under the relevant provincial game and fishing
legislation?
|
Objection
on the basis of relevance
|
Objection
upheld
|
|
54
|
For
each plaintiff, did its members apply for licences under the provincial game
and fish legislation after 1923?
|
Objection
on the basis of relevance
|
Objection
upheld
|
[5]
As I have
said in the decision between the Plaintiffs v. Canada, these reasons will be very brief due to
the urgency in issuing this decision, that is, the case is scheduled for
hearing on the merits in September 2009 for a period of eight months.
[6]
After
considering the pleadings and the oral submissions of the parties, and taking
into account the case of Merck & Co. Inc. v. Apotex Inc., 2003 FCA
488, wherein it was clearly stated that discretionary orders of prothonotaries
ought not to be disturbed on appeal to a judge unless:
a)
The
questions raised in the motion are vital to the final issue of the case, or
b)
The orders
are clearly wrong, in the sense that the exercise of discretion by the
prothonotary was based upon a wrong principle or upon a misapprehension of the
facts.
[7]
This
standard was recently confirmed and adopted by the Federal Court of Appeal in Novopharm
Ltd. v. Eli Lilly Canada Inc., 2008 FCA 287 at paragraph 52.
[8]
For the
reasons given in her decision of May 6, 2009, the Prothonotary’s decision
relating to questions 33, 34, 49 and 54 are maintained.
[9]
Questions
38, 39 and 40 are set aside, it being clearly understood that the answer is not
to be a “legal question” but simply what is it that the plaintiffs believed or
understood the Treaties meant.
[10]
It will be
for the judge hearing the case on the merits to decide what was understood by
the plaintiffs.
ORDER
THIS COURT ORDERS that the plaintiffs shall have a
delay of 15 days from the date of this Order to answer the questions. Costs in
the cause.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-195-92
STYLE OF CAUSE: Alderville
Indian Band et al v. Her Majesty the Queen and Her Majesty the Queen in Right
of Ontario
PLACE OF
HEARING: Ottawa, Ontario
DATE OF
HEARING: July
6, 2009
REASONS FOR ORDER: TEITELBAUM D.J.
DATED: August
11, 2009
APPEARANCES:
|
Mr. Peter
Hutchins
Ms. Julie
Corrie
|
FOR THE PLAINTIFFS
|
|
Mr. Owen Young
Mr. Ronald
Carr
|
FOR THE DEFENDANT
FOR THE THIRD PARTY
|
SOLICITORS
OF RECORD:
|
Hutchins,
Caron & Associates
|
FOR THE PLAINTIFFS
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
Ministry of
the Attorney General Crown Law Office - Civil
|
FOR THE DEFENDANT
FOR THE THIRD PARTY
|
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