L'Hirondelle v. Canada, 2003 FCT 135

Date: 20030207

Docket: T-66-86A

                                                          Neutral Citation : 2003 FCT 135

BETWEEN:

          BERTHA L'HIRONDELLE suing on her own behalf

       and on behalf of all other members of the Sawridge Band

                                                                                                    Plaintiffs

                                                    - and -

                              HER MAJESTY THE QUEEN

                                                                                                  Defendant

                                                    - and -

                         NATIVE COUNCIL OF CANADA,

             NATIVE COUNCIL OF CANADA (ALBERTA)

   and NON-STATUS INDIAN ASSOCIATION OF ALBERTA

          NATIVE WOMEN'S ASSOCIATION OF CANADA

                                                                                                Interveners

                                  REASONS FOR ORDER

                   (Delivered from the bench in Toronto

            on Thursday, February 5, 2003)

HUGESSEN J.

[1]    I have before me this morning two motions or, more accurately, a motion and a cross-motion which are themselves both interlocutory or incidental to another interlocutory motion which was brought by the Crown. That motion, the Crown's motion, was made on November 1^st, 2002 and has yet to be presented. Its conclusions are in the nature of interlocutory, declaratory and injunctive reliefs and I here set out the first 2 paragraphs of the prayer for relief:

THE MOTION IS FOR:

a.              An interlocutory declaration that, pending a final determination of the Plaintiff's action, in accordance with the provisions of the Indian Act, R.S.C. 1985 c. I-5, as amended, (the "Indian Act, 1985") the individuals who acquired the right to be members of the Sawridge Band before it took control of its own Band List, shall be deemed to be registered on the Band List as members of the Sawridge Band, with the full rights and privileges enjoyed by all band members;

b.              In the alternative, an interlocutory mandatory injunction, pending a final resolution of the Plaintiffs' action, requiring the Plaintiffs to enter or register on the Sawridge Band List the names of the individuals who acquired the right to be members of the Sawridge Band before it took control of its Band list, with the full rights and privileges enjoyed by all band members;

[2]                 At a case management conference held in Edmonton following the hearing of some other unrelated motions in this case in December 2002, the question of the scheduling of the Crown's motion was spoken to and in consultation with counsel for plaintiffs and the Crown, I set a schedule for the filing of responding materials and motion records and the like with today and tomorrow being set as the return dates for the Crown's motion.

[3]                 Some of the interveners were present or represented at that case management conference but they did not participate in that scheduling discussion and the consequence was that when the interveners sought to file evidentiary materials in support of their position which, be it said, is supportive of the Crown's motion, the plaintiffs objected. We held a quickly convened case management conference by telephone on January 17, 2003 at which I listened to the plaintiffs objection and I also pointed out that, in my view, the interveners, whatever their status in the action itself might be, were not "parties" to the Crown's motion as that term is defined in Rule 2 of the Federal Court Rules, 1998. That rule makes it absolutely plain that a person who is not named as a respondent to a motion is not a party to that motion.

[4]                 Out of that case management teleconference held last month come the two motions which I have before me today and regrettably also came an adjournment of the Crown's motion which was to have been heard today.

[5]                 The first motion is by the interveners seeking leave to do what they tried to do last month in the teeth of the plaintiffs' objection, and the second is a cross-motion brought by the Crown seeking leave to amend its interlocutory motion, that is the November 1^st motion, to add the interveners as parties respondent.

[6]                 I am going to allow both the motions, but I want to say as little as possible about my grounds for doing so. The principal objection raised by the plaintiffs to having the interveners file the evidence that they are proposing to file goes to the relevancy, and cogency, and perhaps also to the credibility of that evidence. I have, on a previous occasion, in this very case, commented on the undesirability of having interlocutories within interlocutories and these present motions, although I think they are an exception to that rule in the sense that they are necessary, point up how undesirable the situation could be. I will not comment on what the plaintiffs have said about the interveners' proposed evidence because I think I must reserve to the plaintiffs the right to make those comments on the return of the Crown's motion and I think it would be wrong for me to foreclose them for doing so at this stage. The most I can say is that the proposed evidence is not obviously and patently irrelevant and may have a bearing, and may be of some help to me when I come to decide the Crown's motion on the well-known issues of balance of inconvenience and irreparable harm. I really cannot carry the matter any further than that.

[7]                 An Order will issue accordingly.

    

                                                                                                                                                                                        

                                                                                                           Judge                       

Ottawa, Ontario

February 7, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

  

COURT FILE NO.:                   T-66-86A

  

STYLE OF CAUSE:                  Bertha L'Hirondelle et al v. Her Majesty the Queen et al

  

DATE OF HEARING: February 6, 2003

PLACE OF HEARING:            Toronto, Ontario

  

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN

  

DATED:                                      February 7, 2003                                   

  

APPEARANCES:

Philip Healey, Catherine Twinn

and Lori Mattis                                        FOR PLAINTIFFS

Kathleen Kohlman                                                FOR DEFENDANT, CROWN

Kenneth Purchase                                                FOR INTERVENER, NATIVE COUNCIL OF CANADA

Jon Faulds                                                             FOR INTERVENER, NATIVE COUNCIL OF CANADA (ALBERTA)

Michael Donaldson                                               FOR INTERVENER, NON-STATUS INDIAN ASSOCIATION OF ALBERTA

Mary Eberts                                                          FOR INTERVENER, NATIVE WOMEN'S ASSOCIATION OF CANADA

SOLICITORS ON THE RECORD:

Aird & Berlis

Toronto, Ontario                                                  FOR PLAINTIFFS

Morris Rosenberg

Deputy Attorney General of Canada                   FOR DEFENDANT, CROWN

Lang Michener

Ottawa, Ontario                                                   FOR INTERVENER, NATIVE COUNCIL OF CANADA

Field Atkinson Perraton

Edmonton, Alberta                                               FOR INTERVENER, NATIVE COUNCIL OF CANADA (ALBERTA)

Burnet Duckworth Palmer

Calgary, Alberta                                                   FOR INTERVENER, NON-STATUS INDIAN ASSOCIATION OF ALBERTA

Eberts Syms Street & Corbett

Toronto, Ontario                                                  FOR INTERVENER, NATIVE WOMEN'S ASSOCIATION OF CANADA