Montana Band v. Canada, 2001 FCA 176

Date: 20010531

Docket: A-231-01

Neutral citation: 2001 FCA 176

CORAM:        SHARLOW J.A.

BETWEEN:

                                                                                                                          No. T-617-85

BETWEEN:

MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta

                                                                                                                                 Plaintiffs

                                                                   - and -

                                              HER MAJESTY THE QUEEN,

                                                                                                                               Defendant

                                                                   - and -

SAMSON BAND, Chief Victor Buffalo, and Larron Northwest, Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo, Raymond Lightening, Stan Crane, Lawrence Saddleback, Todd (Chestor) Buffalo, Arnup Louise, Lester B. Nepoose, Jim Omeasoo, and Robert Swampy, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians; and

ERMINESKIN BAND, Chief Eddie Littlechild and Ken Cutarm, Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee, Arthur Littlechild, Richard Littlechild, Emily Minde, Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Members of the Ermineskin Band of Indians

                                                                                                                          Third Parties

BETWEEN:

                                                                                                                                 T-782-97

CHIEF FLORENCE BUFFALO acting on her own behalf and on behalf of the members of the SAMSON CREE NATION and

                               THE SAMSON CREE NATION INDIAN BAND

                                                                                                            Appellants (Plaintiffs)

                                                                   - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Parliament Buildings, Ottawa, Ontario

                                                                                                    Respondents (Defendants)

                                                                                                                        No. T-2804-97

BETWEEN

ERMINESKIN CREE NATION and Chief Gerald Ermineskin, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing on their own behalf and on behalf of the ERMINESKIN CREE NATION

                                                                                                                                 Plaintiffs

                                                                   - and -

                HER MAJESTY THE QUEEN and the Attorney General of Canada

                                                                                                                             Defendants

Dealt with in writing without appearance of parties

ORDER delivered at Ottawa, Ontario, May 31, 2001

REASONS FOR ORDER BY:                                                                       SHARLOW J.A.

Date: 20010531

Docket: A-231-01

Neutral citation: 2001 FCA 176

CORAM:        SHARLOW J.A.

                                                                                                                          No. T-617-85

BETWEEN:

MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta

                                                                                                                                 Plaintiffs

                                                                   - and -

                                              HER MAJESTY THE QUEEN,

                                                                                                                               Defendant

                                                                   - and -

SAMSON BAND, Chief Victor Buffalo, and Larron Northwest, Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo, Raymond Lightening, Stan Crane, Lawrence Saddleback, Todd (Chestor) Buffalo, Arnup Louise, Lester B. Nepoose, Jim Omeasoo, and Robert Swampy, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians; and

ERMINESKIN BAND, Chief Eddie Littlechild and Ken Cutarm, Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee, Arthur Littlechild, Richard Littlechild, Emily Minde, Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Members of the Ermineskin Band of Indians

                                                                                                                          Third Parties

BETWEEN:

                                                                                                                                 T-782-97

CHIEF FLORENCE BUFFALO acting on her own behalf and on behalf of the members of the SAMSON CREE NATION and

                               THE SAMSON CREE NATION INDIAN BAND

                                                                                                            Appellants (Plaintiffs)

                                                                   - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Parliament Buildings, Ottawa, Ontario

                                                                                                    Respondents (Defendants)

                                                                                                                        No. T-2804-97

BETWEEN

ERMINESKIN CREE NATION and Chief Gerald Ermineskin, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing on their own behalf and on behalf of the ERMINESKIN CREE NATION

                                                                                                                                 Plaintiffs

                                                                   - and -

                HER MAJESTY THE QUEEN and the Attorney General of Canada

                                                                                                                             Defendants

                                                  REASONS FOR ORDER

Sharlow J.A.

The Appellants the Samson Cree Nation and Indian Band and their Chief, councillors and members have brought actions in the Trial Division against the Crown based in part on the allegation that certain surrenders of reserve land in 1901 and 1909 did not result in the Crown acquiring title to the lands. Similar actions have been brought by the Montana Band and the Ermineskin Cree Nation and their respective Chiefs and members. The Appellants and the other plaintiffs seek a number of remedies against the Crown, including an accounting of profits. On January 10, 2001, Mr. Justice Hugessen ordered a severance of certain issues so that they can be tried first. It appears that among the issues to be dealt with in the first phase of the trial is the validity and legal effect of the challenged surrenders.

After the January 10, 2001 order a dispute arose with respect to the Appellants' examination for discovery of an officer of the Crown. On April 5, 2001, Mr. Justice Hugessen dismissed the Appellants' motion for an order compelling an officer of the Crown to attend for oral discovery pursuant to Rule 97. That is the order now under appeal.

The basis of the April 5, 2001 order is that the documents that were the intended subject of the examination for discovery, which Mr. Justice Hugessen refers to as "a series of documents which bear Production Numbers 2446 to 2559", would not be relevant to the first phase of the trial. It appears to be common ground that in this appeal, the Court will be required to interpret the January 10, 2001 severance order.

A controversy has arisen as to the contents of the appeal book that is to be prepared for the appeal of the April 5, 2001 order. There is agreement on the documents listed in Exhibit G to the affidavit of Tina Bodnar sworn May 7, 2001. However, there are a number of documents that the Crown wishes to include in the appeal book over the objection of the appellants.

Also, all parties agree that the steps in this appeal ought to be expedited because the first phase of the trial is scheduled to begin in May of 2002. Before me is a notice of motion by the Appellants for an order:

(1)        determining the contents of the appeal book,

(2)        expediting the hearing of the appeal by establishing deadlines for the serving and filing of the appeal book and the parties' memoranda of fact and law,

(3)        fixing the day, time and place for the hearing of the appeal.

I will deal first with the matter of the appeal book. I note that the Crown has argued that this motion could have been avoided if the Appellants had accepted the suggestion of the Crown to include the disputed documents in the Appeal Book on a provisional basis so that the propriety of their inclusion could be argued at the hearing of the appeal. It seems to me that the Federal Court Rules, 1998 contemplate that a dispute as to the contents of an appeal book may be resolved by filing a motion for directions under Rule 343(3) for directions as to the contents of an appeal book. In my view, it was entirely appropriate for the appellants to proceed as they have done.

The test for the inclusion of documents in an appeal book is found in Rule 343 (2) reads as follows:

This rule must be understood in the context of the more general principle that an appellate court generally will not consider evidence that was not before the court from which the appeal is taken. In this Court, new evidence may be adduced on appeal only pursuant to an order under Rule 351. In this case there is no motion under Rule 351.

The Crown wishes to include in the Appeal Books the "series of documents which bear Production Numbers 2446 to 2559". These are the documents that would have been the subject of the appellants' examination for discovery of the Crown's officer. The material before me does not describe those documents or indicate how voluminous they are. However, it appears that they are all dated after 1975. It was apparently for that reason that Mr. Justice Hugessen concluded that they would not be relevant to the questions of the legal effect, if any, of the 1901 and 1909 surrenders. I note also that the documents are described in the Crown's affidavit of documents, and the parties have agreed to include in the appeal book the portion of the Crown's affidavit that contains that description.

The Appellants object to these documents being included in the Appeal Book because they were not before Mr. Justice Hugessen when he made his order on April 5, 2001 and therefore they should not be before this Court in an appeal from that order.

The Crown suggests that the appellant is at fault for not putting these documents before Mr. Justice Hugessen. I am unable to agree with that suggestion. The documents in question are listed in the Crown's affidavit of documents and the Crown is asserting that they should be in the appeal book. If they are relevant to the determination of any issues relating to the April 5, 2000 order, the Crown ought to have provided Mr. Justice Hugessen with the documents or evidence of their contents.

The Crown argues that even if these documents were not physically before Mr. Justice Hugessen, he took them into account because he asked counsel how they related to the issues in the first part of the trial and presumably received answers to his questions. However, there is no evidence before me as to what the questions and answers were. In my view, the evidence falls far short of establishing that those documents can fairly be considered part of the record that was before Mr. Justice Hugessen when he rendered the decision under appeal. For that reason, I will not direct that they be included in the appeal book.

The Crown also wishes to have included in the appeal books copies of certain written submissions of counsel made in the course of settling the terms of the severance order of January 10, 2001, and submissions of counsel made at the hearing that resulted in the April 5, 2000 order that is the subject of this appeal. The Crown argues that these submissions should be in the appeal book because they would provide the Court with useful background information about the two orders.

The appellants object to the inclusion of written submissions in the appeal book because, being merely legal argument, they cannot possibly be relevant to the issues to be determined on the appeal: Flamborough (Township) v. Canada (National Energy Board), [1984] F.C.J. No. 526 (C.A.). The Appellants say that the January 5, 2001 order which is the subject of this appeal speaks for itself, as does the January 20, 2001 order, the interpretation of which is in issue.

The Crown relies on two cases. One is Sierra Club of Canada v. Canada (Minister of Finance), [2000] F.C.J. No. 117 (C.A.). In that case, Mr. Justice Isaac held that in an appeal from an interlocutory order made by a case management judge, the appeal book should include affidavits in the court file that were not formally part of the motion records filed in respect of the order. In that case it was established that the case management judge was aware of the contents of the affidavits and they formed part of the basis of his reasoning. As I read Sierra Club, it simply recognizes that in certain circumstances, there may be evidence that was in fact before the court, even though they are not in the records presented by the parties. Such circumstances may easily arise in case management, where it is common for successive motions to refer to affidavits filed in respect of previous motions. However, this case gives no assistance on the issue of whether and in what circumstances written submissions should be included in the appeal book.

The Crown also cites Deigan v. Canada (Treasury Board), [2000] F.C.J. No. 134 (C.A.), in which Mr. Justice Strayer decided that the appeal book should include the memorandum of fact and law submitted by the appellant in the court below. I note that the appellant in that case was a self-represented litigant, and from the context it appears that there was some confusion as to the appellant's material. I see no analogy between the circumstances of that case and the circumstances of this case.

Finally, the Crown argues that the submissions relating to the motion that resulted in the April 5, 2001 order should be in the appeal book because the Appellant is raising an argument in this appeal that was not raised before Mr. Justice Hugessen. Counsel for the Appellant says he is not raising a new argument, he is merely presenting arguments in support of the position that the April 5, 2001 order is wrong in law. I do not need to determine at this stage whether there is a new argument or not. Generally, a new legal argument may be made on appeal if it can be supported on basis of the record in the court below.

Having reviewed the motion material, I am unable to conclude that this is an appropriate case for including in the appeal book copies of written submissions relating to the April 5, 2001 order or the January 10, 2001 severance order. I will not order them to be included in the appeal book.

The Crown also argues in its motion record that because of what the Crown characterizes as the new argument raised by the appellants in this appeal, the Court should be aware of a notice of intention to amend the pleadings filed by the Crown in November of 2000, and a number of questions and answers given in the course of a written examination for discovery of an officer of the Crown relating to the Crown's position on the validity or legal effect of the surrenders. Apart from the fact that these documents were not before Mr. Justice Hugessen when he made the April 5, 2001 order, I am unable to see how they can possibly be of assistance to the Court in dealing with this appeal. For that reason, I will not direct that the appeal book include that material.

It remains only to deal with the motion for an expedited appeal, and for a timetable for the various steps. Having considered the submissions of the parties, I have concluded that an expedited appeal should be ordered, and that the following timetable should be imposed:

(A)       On or before June 5, 2001, the Appellants will serve and file the appeal book.

(B)       Within 3 days of the filing of the appeal book, the Appellants will serve and file a memorandum of fact and law and book of authorities.

(C)       Within 3 days of service of the Appellants' memorandum of fact and law,

(1)        each party or intervener who supports the position of the Appellants in this appeal will serve and file a memoranda of fact and law and book of authorities (which should not contain anything that is already included in the Appellants' book of authorities), and

(2)        each party or intervener who does not support the position of the Appellants will so advise counsel for the Crown.

(D)       Within 7 days of the completion of the steps in item (C) or the expiry of the time for the completion of those steps, whichever is earlier, the Crown will serve and file its memorandum of fact and law and book of authorities (which should not contain anything that is already included in a book of authorities already filed).

(E)       Within 3 days of service of the Crown's memorandum of fact and law, each party or intervener who supports the position of the Crown in this appeal will serve and file a memorandum of fact and law and book of authorities (which should not contain anything that is already included in a book of authorities already filed).

(F)       This appeal will be set down for hearing at the earliest possible date after June 20, 2001, at a time and place to be determined by the Judicial Administrator in consultation with counsel for the parties.

Karen R. Sharlow

J.A.