Date: 20040325
Docket: T-1254-92
Citation: 2004 FC 473
CALGARY, Alberta, Thursday, the 25th day of March, 2004.
Present: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nations suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Defendants
REASONS FOR ORDER AND ORDER
[1] By oral motion, the defendant Crown seeks to have the Court direct, pursuant to Rule 289, that additional material be added to the discoveries, which the plaintiff Ermineskin had read into the record as evidence in their case. Those discovery read-ins have been marked as exhibit E-795 in the trial of this action.
[2] Rule 289 provides as follows:
289. Qualifying answers - The Court may order a party who uses part of an examination for discovery as its own evidence to introduce into evidence any other part of the examination for discovery that the Court considers is so related that it ought not to be omitted.
[3] In Canada (Minister of Citizenship and Immigration) v. Odynksy (1999), 173 F.T.R. 294 (T.D.), MacKay J. described the purpose of this rule at paragraph 6:
This Rule is comparable to the Court's former Rule 494 (10) except that the former rule provided for the Court to act 'on the application of an adverse party', a limitation not included in the 1998 Rule. In my view, the current rule serves the same purpose as the former rule, a purpose I described in brief Reasons in Oro Del Norte, SA v. Canada, [1991] F.C.J. No. 986 (F.C.T.D.), as being:
to ensure that evidence from a transcript of examination for discovery which is read in as evidence at trial is placed in proper context so that it is seen and read fairly, without prejudice to another party that might arise if only a portion of the content relevant to a fair understanding of the evidence read in is given.
[4] The following is a list of the additional material put forward by the Crown that will be added to Ermineskin's discovery evidence (reference is by way of tab numbers in the binders that constitute exhibit E-795):
(i) page 1071, line 9 to page 1072, line 6 will be added to Ermineskin's tab 63;
(ii) page 1487, line 5 to page 1488, line 21 will be added to Ermineskin's tab 83;
(iii) page 1803, line 19 to page 1804, line 7; undertaking revised response 209; undertaking supplemental response 97A; and undertaking revised response 153 will be added to Ermineskin's tab 97;
(iv) page 1993, line 26 to page 1994, line 25, page 2021, line 12 to page 2023, line 7; and undertaking response 236 will be added to Ermineskin's tab 110;
(v) page 2039, line 4 to page 2040, line 11 will be added to Ermineskin's tab 111;
(vi) page 2525, line 18 to page 2527, line 22 will be added to Ermineskin's tab 124;
(vii) page 2463, line 2 to page 2464, line 17 will be added to Ermineskin's tab 211;
(viii) page 3688, line 9 to page 3690, line 9; undertaking response 388; and undertaking response 390 will be added to Ermineskin's tabs 214 to 219;
(ix) page 3684, line 4 to page 3686, line 9 will be added to Ermineskin's tab 220; and
(x) correspondence, dated May 7, 1997, and referred to in undertaking response 714 will be included in the tab containing undertaking response 714 in the Ermineskin binder containing undertaking responses and interrogatories, which also form part of E-795.
[5] All other requests for additional material by the Crown are denied.
[6] Ermineskin reserved the right to withdraw any discovery read-ins in the event that the Court agreed with the Crown's request for additional material. Accordingly, Ermineskin will inform the Court within seven days whether it will be exercising that right and, if so, which read-ins it will be withdrawing.
ORDER
THIS COURT ORDERS that: the list of additional material put forward by the Crown that is to be added to Ermineskin's discovery evidence is as found in paragraph 4 of the Reasons for Order.
All other requests for additional material by the Crown are denied.
"Max M. Teitelbaum"
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1254-92
STYLE OF CAUSE: CHIEF JOHN ERMINESKIN ET AL v. HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: DECEMBER 4, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR JUSTICE TEITELBAUM
DATED: MARCH 25, 2004
APPEARANCES:
C. MCKINNON FOR PLAINTIFFS / APPLICANTS
A. MACLEOD, Q.C., FOR DEFENDANTS/
C. HUNTER RESPONDENTS
B. ARMITAGE
SOLICITORS OF RECORD
BLAKE, CASSELS & GRAYDON LLP FOR PLAINTIFFS/
Vancouver, British Columbia APPLICANTS
MACLEOD DIXON LLP FOR DEFENDANTS/
Calgary, Alberta RESPONDENTS
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