Date: 20060207
Dockets: A-552-05
A-554-05
Citation: 2006 FCA 52
Present: EVANS J.A.
BETWEEN:
A-552-05
SAWRIDGE BAND
Appellant
and
HER MAJESTY THE QUEEN
Respondent
and
NATIVE COUNCIL OF CANADA, NATIVE COUNCIL OF CANADA (ALBERTA), NON-STATUS INDIAN ASSOCIATION OF ALBERTA, AND NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
A-554-05
TSUU T'INA FIRST NATION
Appellant
and
HER MAJESTY THE QUEEN
Respondent
and
NATIVE COUNCIL OF CANADA, NATIVE COUNCIL OF CANADA (ALBERTA), NON-STATUS INDIAN ASSOCIATION OF ALBERTA, AND NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER
EVANS J.A.
A. INTRODUCTION
[1] I have before me two motions in writing brought by the Sawridge Band and the Tsuu T'ina First Nation ("the appellants") and one by Her Majesty the Queen ("the respondent") requesting various forms of relief. These motions arise from appeals from two orders of Russell J., dated November 7 and 8, 2005, respectively.
[2] The Judge made the orders under appeal in response to preliminary motions by the respondent. The order of November 7, 2005, deals with issues of pre-trial disclosure, the scope of pleadings and the exclusion of witnesses whom the appellants wished to call to give evidence on certain matters at the trial. This is the subject of A-552-05; each side has brought a motion respecting it. The order of November 8, 2005, focuses on the admissibility of certain expert reports. This is the subject of A-554-05; the appellants have brought a motion in connection with it. Russell J. provided extensive reasons for both orders.
[3] The trial underlying all these motions was scheduled to start on January 1, 2005. However, it has been bogged down in motions and appeals, and is yet to get under way. The trial is a re-trial of an action which was commenced in 1986, and was originally tried in 1993 and 1994. The trial Judge's decision, issued in 1995, was set aside by this Court on the ground of reasonable apprehension of bias and a new trial was ordered: Sawridge Band v. Canada(Attorney General), [1997] 3 F.C. 580 (C.A.).
[4] I have prepared a single set of reasons dealing with the various forms of relief requested in the motions brought by the appellants and the respondent in connection with the appeals in A-552-05 and A-554-05. The motions overlap to a large extent. My reasons are brief, in order to enable the parties to move the appeals forward with the minimum delay. A copy will be inserted in each file.
B. RELIEF SOUGHT
(i) consolidation of the appeals
[5] The one point of agreement among the parties is that the appeals should be consolidated since the facts and issues overlap considerably. I agree and this aspect of the respondent's motion will be granted. The appeals will be consolidated and heard together on the basis of a common appeal book and memoranda of fact and law. A-552-05 will be designated as the lead file.
(ii) expediting the appeals
[6] The respondent requests that the appeals be expedited and proposes a schedule, in which the appeals would be perfected no later than April 15, 2006 and heard no later than May 31, 2006. The Native Council of Canada, the Native Council of Canada (Alberta), and the Non-Status Indian Association of Alberta, who are interveners in the appeal, support the respondent's motion to expedite the appeals and the proposed hearing date of May 31, 2006, at the latest.
[7] In support of its request to expedite, the respondent relies on: the twenty-year history of this matter and the importance of having these appeals determined so that the trial may commence without further delay; the appellants' agreement to expedite the hearing date, but not to the date proposed by the respondent for the perfection of the appeal; and the respondent's willingness that the appeals be heard anywhere in Canada, in order to minimise inconvenience and delay. In view of the disruptive effect on the trial of the appellants' motions and appeals, the respondent also requests an order that failure by the appellants to adhere to the schedule fixed by the Court may result in the dismissal of the appeal without notice to the appellants.
[8] The appellants oppose these requests, arguing that the respondent has not discharged the onus on it of justifying a departure from the manner in which an appeal normally proceeds. The appellants say that expediting the appeal will prejudice them by denying counsel sufficient time to prepare, given the complexity of the matters and the fact that the appellants' present counsel did not represent them at an earlier time relevant to these appeals. The appellants are particularly concerned by the respondent's request that the appeals be dismissed without notice for non-compliance with any timelines within which the pre-hearing steps of an expedited appeal must be completed.
[9] In my opinion, the lengthy history of this matter and the further long delay of the start of the re-trial weigh heavily in favour of expediting these appeals. I am not persuaded that the appellants will be prejudiced by an early hearing date. Nor am I persuaded that the appeals should be liable to be dismissed without notice if the appellants do not comply with the timelines. In the event of non-compliance by the appellants, the respondent is at liberty to move for dismissal of the appeal for delay in the usual manner.
[10] I am not in a position to fix a date and place for the hearing of the appeals. However, I note the respondent's willingness that the appeals be heard anywhere in Canada. I am of the opinion that a hearing date in the last week of May or first week in June would be appropriate. A schedule of the pre-hearing steps is included in the order.
(iii) determining the content of the appeal book
[11] Both the appellants and the respondent have sought an order to determine the contents of the appeal book. The documents which the parties agree should be included are listed in Schedules "A" and "D" to the appellants' memorandum of fact and law filed in respect of their motions. The appellants also want to include documents which they did not put in as evidence when Russell J. heard the respondent's motions, but which, they say, were nonetheless "before" the Judge or, if they were not, constituted fresh evidence. These documents are voluminous.
[12] The appellants seek to include some documents on the ground that they were "before" Russell J. because they provide context and background to issues that are in dispute, even though they were not expressly referred to in the Judge's reasons. These are listed in Schedule "C" to the appellants' memorandum of fact and law in support of their motions.
[13] In some circumstances, it may be appropriate to include in an appeal book material that was not put into evidence in the court below. However, such cases will be relatively rare. The inclusion in an appeal book of material which was not put into evidence below is apt to divert the Court's attention from its essential function, namely deciding whether the Judge erred on the basis of the material adduced by the parties. Having read the submissions of the parties, I am not persuaded that any of the contextual or background material which the appellants now seek to include in the appeal book warrants inclusion.
[14] The appellants also seek to include documents which, they say, were "before" Russell J., because he referred to them in his reasons for decision. These are the documents listed in Schedule "B" to the appellant's memorandum of fact and law in support of their motions. All the references on which the appellants rely occur between paragraphs 10-90 of the reasons of Russell J., setting out the background to the motions before him, and drawing heavily from the reasons for orders that he and Hugessen J., the previous case management judge, had made on other motions arising from the trial. The disputed materials in this category comprise, for the most part, transcripts of earlier motions and conferences, and memoranda of fact and law and written submissions filed in connection with them.
[15] Some of the references appear in passages in the reasons of Russell J. taken from the reasons given for the disposition of previous motions. Only one reference is to the very document which the appellants say should be included in the appeal book. The other documents that the appellants wish to include in the appeal book were not themselves mentioned by Russell J., but, say the appellants, are sufficiently closely connected with documents that the Judge did mention that they should also be included in the appeal book to provide the Court with necessary context.
[16] In my view, none of these documents should be included in the appeal book. None has any but peripheral relevance to the basis of the Judge's decision. The inclusion of an entire transcript of another proceeding on the ground that one party put a few pages of it into evidence is not warranted. Courts are alert to the fact that it can be dangerous to base a decision on small extracts from a large transcript that is not before it. The appellants complain that the Judge's reasons indicate that he misunderstood aspects of the history of this matter. Rehashing the prolonged and complex litigation history of this matter would be unlikely, in my view, to materially assist this Court in disposing of the issues raised by the present appeals.
[17] Nor am I willing to order that these materials be included in books of "disputed documents" which could be admitted into the record by the panel hearing the appeal. The time allocated for hearing the appeals of motions is generally limited, and that time should not be consumed by argument about the admissibility of evidence which, in my view, is of little, if any, relevance to the issues to be decided on the appeal.
[18] In the alternative, the appellants say that all the disputed documents should be admitted as "fresh evidence". I do not agree. The material in question in the present appeal satisfies neither the criteria of "practically conclusive" nor "not discoverable by reasonable diligence", even on the relaxed view of the normal criteria applicable in appeals of interlocutory motions. Its admission would not serve the interests of justice.
(iv) number of pages in factum
[19] The appellants ask for leave to increase the number of pages of their memorandum of fact and law to 60, from the 30 prescribed by the Federal Courts Rules, rule 70(4). In addition, the appellants seek leave to attach to their memorandum a 20 page appendix addressing each of the will-say statements served by the appellants, which are the subject of the appeal in A-554-05.
[20] Conciseness is a virtue which is always in demand but, in my experience, often conspicuous by its absence from memoranda of fact and law filed in this Court. I do not recall an occasion when I thought that the expansion of a memorandum by another 10 pages would have improved things. Quite the contrary, in fact.
[21] Nonetheless, the rules contemplate that 30 pages sometimes will not suffice to enable counsel to present the facts and argument in a manner that is of most assistance to the Court. In the circumstances of this appeal, I give leave to the appellants and the respondent to file memoranda of fact and law that do not exceed 45 pages, bearing in mind that there is an overlap in the subject-matter of the two appeals, which are now consolidated.
[22] I deny the appellants' request to include an appendix of an additional 20 pages to address each of the individual will-say statements described in an appendix to Russell J.'s reasons.
(v) role of the interveners
[23] I do not accept the restrictions that the appellants seek to impose of the interveners' role in this appeal. There is a long history of attempts by the appellants to minimise the role of the interveners in this litigation, which have been rebuffed consistently by Russell J. and by Hugessen J., the previous case management Judge in this matter.
[24] The interveners participated before Russell J. and I see no reason for imposing the restrictions proposed by the appellants on their role in the appeal, especially since the appellants allege that the matters in dispute are critically important to the outcome of the trial.
C. CONCLUSIONS
[25] For all of these reasons, the motions of the appellants will be dismissed, except to the extent that leave will be given to the appellants and the respondent to file memoranda of fact and law of 45 pages each. The motion of the respondent will be granted, except to the extent that a hearing date for the appeal is not set and the appeal is not liable to be dismissed without notice if the appellants do not comply with the prescribed timelines.
[26] Costs are in the cause, except to the extent that the appellants shall pay forthwith the costs and disbursements of the interveners incurred in responding to the appellants' attempt to impose restrictions on the role of the interveners in the appeal. Costs are to be assessed at the top of Column IV of the table to Tariff B.
"John M. Evans"
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