Date: 20080527
Docket: T-305-99
Citation: 2008
FC 679
BETWEEN:
THE
DENÉ THA’ FIRST NATION and
CHIEF JAMES AHNSASSAY
and CHARLIE CHAMBAUD, VICTOR CHONKOLAY,
FABIAN CHONKOLAY,
JOHN DEEDZA, GABRIEL DIDZENA, and FRED
DIDZENA,
BAND COUNCILLORS acting on their own
behalf and on behalf of
ALL OTHER MEMBERS OF THE DENÉ THA’ FIRST
NATION
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
as represented by THE ATTORNEY GENERAL OF
CANADA
and THE MINISTER OF INDIAN AND NORTHERN
AFFAIRS
Defendant
REASONS FOR
ORDER AND ORDER
LAFRENIÈRE P.
[1]
The
Plaintiffs seek leave to amend the Statement of Claim to include a claim of
damages for failure by the Defendant (Crown) to provide agricultural assistance
in accordance with Treaty No. 8 (Treaty 8). The motion is opposed by the Crown
on both procedural and substantive grounds. For the reasons that follow, I
conclude that the motion to amend should be granted.
Background
[2]
On
February 26, 1999, the Plaintiffs filed a Statement of Claim alleging that the
Crown failed to ensure that the Plaintiffs received all the benefits they were
entitled to under Treaty 8. The Plaintiffs alleged, in particular, that the
Crown breached its fiduciary, contractual and treaty obligations by failing to
distribute ammunition and twine to the Plaintiffs and their ancestors from 1900
to 1951. They also alleged that the Crown failed in 1950 to set aside
sufficient Reserve lands for the Plaintiffs based on the terms of Treaty 8. In
their prayer for relief, the Plaintiffs requested, among other things, a
declaration that the Crown did not respect its promises to provide ammunition
and twine, land entitlements “and various other promises and covenants”, as
well as general and punitive damages in excess of 5 billion dollars.
[3]
The
proceeding was ordered specially managed in September 1999 following a motion
by the Crown. After pleadings were closed in January 2000, the case management
judge, Madam Justice Eleanor Dawson, fixed a schedule for completion of the
next steps in the proceeding. The parties were directed to exchange affidavits
of documents by October 31, 2000, and to embark on examinations for discoveries
commencing in November 2000.
[4]
During
the course of the examination for discovery of the Crown’s representative held
in March 2001, then counsel for the Plaintiffs asked the Crown to provide other
provisions of Treaty 8 dealing with the Plaintiffs’ entitlement to “two hoes, a
spade and what have you”. He also asked for a breakdown as to what was
specifically provided under the said provisions to the Dené Tha’ First Nation
(Request #175). Crown counsel questioned the relevance of the requests to the
issues set out in the Statement of Claim, and took the matter under advisement.
The Crown agreed to identify the treaty provisions (see Exhibit A to the
affidavit of Colleen Doty sworn April 2, 2008), however, by letter from counsel
dated April 30, 2002, refused to answer Request #175.
[5]
On
October 10, 2002, the Plaintiffs appointed new solicitors of record. Counsel
for the parties advised Justice Dawson in a joint letter dated November 1, 2002
that there were only two unanswered undertakings arising from the examinations
for discovery, namely Requests #90 and #91. On May 30, 2003, the parties
provided a joint status report to the Court and confirmed that there were no
outstanding undertakings in the action.
[6]
The
Plaintiffs once again appointed new solicitors of record in February 2004. The
Plaintiffs’ motion material is silent, however, as to what steps were taken
subsequently to move the proceeding forward. A review of the entries in the
proceedings management system reveals that Justice Dawson actively intervened
on several occasions over the next two years by issuing case management
directions and orders. In particular, at a case management conference conducted
on October 27, 2006, she fixed the following schedule based on the agreement of
the parties:
(a) April
30, 2007: Both parties will have their document production complete.
(b) September
30, 2007: The Plaintiffs will complete their discoveries of the Crown.
(c) October
1, 2007: The Crown will begin examinations for discovery of the Plaintiffs and
be completed by the end of March 2008.
(d) March
30, 2008 to March 30, 2009: Both parties retain and instruct experts and
exchange expert reports. Both parties will address any interlocutory matters.
(e)
March 30, 2009: Both parties will file pre-trial material and trial
dates will be obtained.
[7]
The
Plaintiffs now move, almost eight years after this action was instituted, for
leave to amend their Statement of Claim by adding three new paragraphs: 1(a),
26 and 27. The first paragraph is an additional claim for damages for the
alleged breach of various legal obligations relating to the failure by the
Crown to provide agricultural assistance. The second paragraph repeats that
various obligations were breached by not providing agricultural assistance from
1900 to 1999. The third paragraph alleges that the Plaintiffs tried to farm
reserve lands but that no assistance was provided such that, by 1954, only 190
acres of reserve lands were under cultivation.
Analysis
[8]
The
test in determining whether amendments to pleadings ought to be allowed is now
well established. In Canderel Ltd. v. Canada, [1994] 1 F.C. 3, the
Federal Court of Appeal stated that an amendment should be allowed "at any
stage of an action," subject to three provisos: (a) the amendment must be
made for the purpose of determining the real questions alive between the
parties; (b) the amendment would not prejudice the opposing party in a manner
not compensable with costs; and (c) the amendment must serve the interests of
justice. In short, an amendment to a pleading should be allowed absent serious
prejudice to the opposing party.
[9]
It
is also well settled that amendments based on discovery which refocus and
particularize points in controversy are usually considered to facilitate the
trial of an action and to help determine the real points in controversy: see Hoechst
Marion Roussel Deutchland Gmbtt v. Adir et Cie (2000), 190 F.T.R. 233, 2000
CarswellNat 967 (T.D.). Moreover, the existence of a possible time bar,
including a statutory time bar, is not a reason to curtail an amendment.
[10]
The
Crown submits that the Plaintiffs have failed to adduce any facts in support of
the Plaintiffs’ claim for agricultural assistance. However, on a motion for
leave to amend, a party need not prove its case. Rather, the Court must assume
that the facts pleaded are true, and deny an amendment only in a plain and
obvious case where the situation is beyond doubt.
[11]
The
Crown further submits that the claim for agricultural assistance raises new and
broad causes of action that do not arise out of the same facts as already
pleaded. The Plaintiffs were certainly less than precise in drafting their
original pleading, focusing almost exclusively on the ammunition and twine
provisions of Treaty 8. However, paragraph 1(a) of the Statement of Claim is
broadly worded and encompasses other promises and covenants in Treaty 8. The
Plaintiffs’ proposed amendments must accordingly be read in their entire
context, as part of the Statement of Claim.
[12]
The
proposed amendments are not vague or unclear. At paragraph 6 of her affidavit,
Ms. Colleen Doty, a Litigation Project Manager employed by the Department of
Indian Affairs and Northern Development, states that further research will be
required if the amendments are allowed. She indicates the government records
have been identified for review for relevance and materiality. In the
circumstances, I am satisfied that the Crown is familiar with the additional
claim being advanced by the Plaintiffs, and knows the case it has to meet.
[13]
The
Crown also submits that the Plaintiffs have failed to provide any explanation
for the substantial delay in seeking leave to amend and that allowing the
amendments at this late stage of the proceeding would delay an expeditious
trial, to the Crown’s prejudice. Generally, any proposed amendments that raise
new issues, require further discoveries and upset the established timetable
should be discouraged.
[14]
The
Rules bearing on amendment ought to be interpreted and applied in light of Rule
3, so as to secure a just, expeditious and inexpensive determination of a
proceeding on its merits. Further, case management was designed to identify and
define issues in dispute and to reduce delays, costs and unnecessary pre-trial
activities. As long as there is a cause of action which would not plainly and
obviously be struck out as futile, the amendment ought to be allowed, if it can
be made without prejudice to the other side.
[15]
In
the particular circumstance of this case, the proposed amendments do not cause
any serious prejudice to the Crown that could not be compensated by an order of
costs. I note that the proceedings are still at the early stage of discovery
despite the fact that the action was commenced in 1999. The delay occasioned by
additional documentary and oral discovery is relatively minor in light of the
protracted history of the proceeding.
[16]
Ultimately,
this motion boils down to a consideration of simple fairness, common sense and
the interests of justice. The proposed amendments involve the same parties, the
same treaty and the same allegations of breach of fiduciary, contractual and
treaty obligations. It would serve no useful purpose to require the Plaintiffs
to bring a separate action to advance their claim.
[17]
Finally,
although there are some irregularities in the Plaintiffs’ motion material, the
Crown does not appear to have been misled or otherwise prejudiced as a result.
In the circumstances, the deficiencies have been overlooked in disposing of
this motion.
[18]
Consequently,
in light of the above reasons, the motion will be granted, with costs to the
Defendant in any event of the cause, and without prejudice to the Crown’s right
to bring a motion for costs thrown away, if any.
ORDER
THIS
COURT ORDERS that the motion is granted, with costs to the
Defendant in any event of the cause.
“Roger R. Lafrenière”
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