Date: 20020911
Docket: A-337-02
(Action Nos. T-617-85, T-782-97, T-2804-97)
Neutral citation: 2002 FCA 318
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
Action 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 Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
RESPONDENTS (PLAINTIFFS)
- and -
HER MAJESTY THE QUEEN
RESPONDENT (DEFENDANT)
- and -
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians
RESPONDENTS (THIRD PARTY)
- and -
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, and Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Ermineskin Band of Indians
APPELLANTS (THIRD PARTY)
- AND -
Action No. T-782-97
BETWEEN:
CHIEF FLORENCE BUFFALO, acting on her own behalf and on behalf of all of the other
members of the SAMSON CREE NATION AND BAND
- and -
THE SAMSON CREE NATION AND INDIAN BAND
RESPONDENTS (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)
- AND -
Action 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
APPELLANTS (PLAINTIFFS)
- and -
HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA
RESPONDENTS (DEFENDANTS)
Heard at Ottawa, Ontario, on September 11, 2002.
Order delivered from the Bench at Ottawa, Ontario, on September 11, 2002.
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
Date: 20020911
Docket: A-337-02
Neutral citation: 2002 FCA 318
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
Action 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 Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
RESPONDENTS (PLAINTIFFS)
- and -
HER MAJESTY THE QUEEN
RESPONDENT (DEFENDANT)
- and -
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians
RESPONDENTS (THIRD PARTY)
- and -
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, and Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Ermineskin Band of Indians
APPELLANTS (THIRD PARTY)
- AND -
Action No. T-782-97
BETWEEN:
CHIEF FLORENCE BUFFALO, acting on her own behalf and on behalf of all of the other
members of the SAMSON CREE NATION AND BAND
- and -
THE SAMSON CREE NATION AND INDIAN BAND
RESPONDENTS (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)
- AND -
Action 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
APPELLANTS (PLAINTIFFS)
- and -
HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA
RESPONDENTS (DEFENDANTS)
REASONS FOR ORDER
LÉTOURNEAU J.A.
[1] We are satisfied that this motion fails to meet the criteria governing the admissibility of new evidence and that there are no special circumstances warranting our exercise of discretion to admit it: Amchem Products Inc. v. British Columbia (Worker's Compensation Board (B.C.)) 192 N.R. 390 (S.C.C.); Smith and Nephew Inc. et al. v. Glen Oak Inc. et al. 192 N.R. 271 (F.C.A.). In addition, we believe that the affidavit in support of the motion is vague and insufficient to sustain the conclusions sought in the motion, especially in view of the fact that counsel for the appellant at the hearing withdrew paragraphs 3, 4 (save the last sentence), 5, 6 (save the last sentence), 7, 8 (save the last sentence) and 10 as they related to disputed facts. This leaves only the first paragraph which states that the deponent is a lawyer associated with the law firm representing the appellant, the second paragraph which enunciates that copies of two rebuttal expert reports from the Crown were received, paragraph 9 alleging that the information in these reports was not available to the appellants prior to June 28, 2002 and paragraph 11, the concluding paragraph, which states that the affidavit is given in support of the motion.
[2] For these reasons, the motion will be dismissed with costs.
"Gilles Létourneau"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-337-02 (Action Nos. T-617-85, T-782-97, T-2804-97)
STYLE OF CAUSE: ERMINESKIN BAND ET AL. v. HER MAJESTY THE QUEEN ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: September 11, 2002
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
REASONS FOR ORDER
DELIVERED FROM
THE BENCH BY: LÉTOURNEAU J.A.
DATED: September 11, 2002
APPEARANCES:
MS. BARBARA FISHER FOR THE APPELLANTS
ERMINESKIN BAND ET AL.
MS. SHEILA M. READ and FOR THE RESPONDENTS
MR. PAUL HENDERSON HER MAJESTY THE QUEEN ET AL.
MS. SYLVIE MOLGAT FOR THE RESPONDENTS
MONTANA BAND ET AL.
SOLICITORS OF RECORD:
BLAKE CASSELS & GRAYDON FOR THE APPELLANTS
VANCOUVER, B.C. ERMINESKIN BAND ET AL.
DEPUTY ATTORNEY GENERAL FOR THE RESPONDENTS
OF CANADA HER MAJESTY THE QUEEN ET AL.
OTTAWA, ONTARIO
DUBUS OSLAND FOR THE RESPONDENTS
OTTAWA, ONTARIO MONTANA BAND ET AL.
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