Date: 20090727
Docket: T-195-92
Citation: 2009
FC 761
OTTAWA, Ontario, July 27, 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
REASONS FOR ORDER AND ORDER
[1]
This is a
motion pursuant to Rule 51 of the Federal Courts Rules for:
·
An Order
setting aside, in part, the Order of Prothonotary Milczynski made June 1 and
June 18, 2009 on a motion by the defendant.
·
An Order
requiring the plaintiffs to answer the following seven written discovery
questions posed by Canada on January 15, 2009:
Q12(b), Q12(c), Q13(b),
Q13(c), Q14, Q19, Q39,
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 revising or
amending the orders made June 1 and June 18 to accord in other respects with a
written consent and draft order submitted by the parties to the prothonotary on
June 17, 2009 on a supplementary motion brought before her under Rules 397 and
394.
·
An Order for the
costs of this motion.
·
Such further and
other relief as this Honourable Court may deem reasonable and just.
[2]
The
grounds for the present motion, as stated by the defendant Canada, are:
·
The
prothonotary erred in failing to direct the plaintiffs to answer these
discovery questions posed by way of written interrogatory.
·
The decision
of the prothonotary was based upon incorrect or wrong principles or a
misapplication of the principles governing the scope of permissible discovery.
·
The
questions listed in Appendix “A” are relevant on the facts of the pleadings and
the prothonotary erred in upholding objections to answering them on the basis
that they are not relevant.
·
The
prothonotary failed to apply to the discovery questions of the defendant the
purposive approach and liberal interpretation appropriate to discoveries
conducted in writing.
·
In ruling
that these discovery questions were not relevant, the prothonotary erred in
principle and effectively impaired the right and ability of the defendant to
develop, through the discovery process, the theory of its case.
·
Such
further grounds as counsel may advise and this Honourable Court may permit.
[3]
At the
commencement of the hearing, counsel for Canada informed the Court that he is
no longer requesting the Court for an Order revising or amending the orders
made June 1 and June 18 to accord in other respects with a written consent and
draft order submitted by the parties to the prothonotary on June 17, 2009 on a
supplementary motion brought before her under Rules 297 and 394.
[4]
The
questions and rulings on Canada’s motion are:
|
Q
N
|
DISCOVERY
QUESTION
|
PLAINTIFFS’
OBJECTION
|
PROTHONOTARY’S
RULING
|
|
12
|
Please
answer each of these questions separately with respect to each of the
plaintiff First Nations.
At
the time of contact, which Canada fixes at about 1640, -
|
|
|
|
12(b)
|
Where
was the plaintiff’s village?
|
Objection
on the basis of relevance
|
Objection
upheld
|
|
12(c)
|
If
the plaintiff was not yet in existence, who and where was the plaintiff’s
predecessor First Nation?
|
Objection
on the basis of relevance
|
Objection
upheld
|
|
13
|
Please
answer each of these questions separately with respect to each of the
plaintiff First Nations.
At
the time of sovereignty, which Canada
fixes at 1763, -
|
|
|
|
13(b)
|
Where
was the plaintiff’s village?
|
Objection
on the basis of relevance
|
Objection
upheld
|
|
13(c)
|
If
the plaintiff was not yet in existence, who and where was the plaintiff’s
predecessor First Nation?
|
Objection
on the basis of relevance
|
Objection
upheld
|
|
14
|
What
village sites has the plaintiff band occupied from the time of first contact,
to 1923 and intervals between?
|
Objection
on the basis of relevance
|
Objection
upheld
|
|
19
|
What
access and use of lands other than lands covered by the Williams Treaties did
each of the plaintiff bands enjoy at the time of first contact, time of
sovereignty, in 1923, and intervals between?
|
Objection
on basis of relevance as well as being a legal question
|
Objection
upheld on the basis that not relevant
|
|
39
|
What
is the position of each of the plaintiffs of the nature and effect of “the
baske clause” (3rd clause) of the williams Treaty, and what is the
position of each of the plaintiffs with respect to the meaning and intent of
the clause and its impact on the First Nations?
|
Objection,
legal question
|
Objection
upheld
|
[5]
Let me
start by saying that these reasons will be very brief because of the urgency of
issuing these reasons.
[6]
The
urgency is that this case is scheduled for hearing in September 2009 and is to
be heard over a priod of eight months.
[7]
After
considering the pleading of the parties and after considering the oral
submissions and the case of Merck & Co. Inc. v. Apotex Inc., 2003
FCA 488 at paragraph 19, in which Justice Décary concluded, relying on the
standaard enunciated by the Federal Court of Appeal in Canada v. Aqua-Gem
Investments Ltd., [1993] 2 F.C. 425 (FCA) that the discretionnary orders of
prothonotaries ought not 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.
[8]
For the
reasons given by the Prothonotary, her decision relating to questions 12, 12(b)
and (c), 13, 13(b) and (c), 14 and 39 is maintained.
[9]
With
regard to question 19, I am satisfied that the answer would, at this time, be
relevant to the hearing judge who can determine in his final decision the
weight to be given to this evidence.
ORDER
THIS COURT ORDERS that the plaintiffs answer
question 19. 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: July
27, 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
|
Email this Content