Date: 20080212
Docket: T-1763-07
Citation: 2008
FC 178
Ottawa, Ontario, February 12, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ERMINESKIN
INDIAN BAND AND NATION
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1]
This is a
motion to strike the affidavit of Donna Lewis sworn October 18, 2007 as part of
a Reply Supplemental Motion Record.
[2]
No leave
was sought to file the Reply affidavit. The Defendant, Her Majesty, is correct
in objecting that leave had not been obtained.
[3]
The
Plaintiff has, as part of its response to the motion, asked for leave to file
the Reply affidavit on the grounds that it is necessary to deal with matters
which the Plaintiff could not have anticipated. In particular, the Plaintiff
alleges that the Defendant has changed positions as to the nature and treatment
of the “split”, a payment regime.
[4]
The Reply
affidavit attached other affidavits used in related proceedings T-2953-93 and T‑2022-89.
[5]
It is
evident, at this stage, that there may only be aspects of earlier proceedings
which may have a bearing on the current action.
[6]
In my
view, there is at least some reasonable debate as to whether the Defendant has
changed positions – a matter on which this Court cannot yet make a
determination – therefore it is premature to reach a final conclusion on this
issue. It does, however, help explain the Plaintiff’s perspective as to its
inability to anticipate the needed evidence even if it is not a correct perspective.
[7]
More
importantly, I must consider whether the interests of justice would be served
if the evidence is admitted. In my view, it would serve the interests of
justice to permit the Reply affidavit.
[8]
The
evidence, it is suggested, will help the Court understand the history of the
“split” in order to assist it in dealing with the current issue. At this stage
it would seem to do that although one cannot help but be concerned that it
could lead to confusion rather than clarity.
[9]
The
evidence does not catch the Defendant by surprise (it knows that evidence from
earlier proceedings). The evidence arises early in this case and while it may,
as the Defendant argues, be irrelevant and merely clutter the record, the Court
is able to sort the “wheat from the chaff.”
[10]
Therefore,
the motion to strike is dismissed and the Plaintiff has leave to file the
affidavit of Donna Lewis sworn October 18, 2007.
[11]
While the
Defendant has not succeeded in its motion, the Plaintiff failed to file a
motion for leave until rightfully challenged. Each party shall bear its own
costs.
ORDER
THIS COURT ORDERS that the motion to strike is
dismissed and the Plaintiff has leave to file the affidavit of Donna Lewis
sworn October 18, 2007. Each party shall bear its own costs.
“Michael
L. Phelan”
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