Date: 20040325
Docket: T-2022-89
Citation: 2004 FC 472
CALGARY, Alberta, Thursday, the 25th day of March, 2004.
Present: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf
of the other members of the Samson Indian Nation and Band and THE SAMSON 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
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
Intervenors
- and -
EMILY STOYKA and SARA SCHUG
Intervenors
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 Samson had read into the record as evidence in their case. Those discovery read-ins have been marked as exhibit S-645 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 Samson's discovery evidence (reference is by way of tab numbers in the binders that constitute exhibit S-645):
(i) paragraph 23 of the Request to Admit, dated August 16, 2002 and paragraph 23 of the Response to the Request to Admit, dated September 3, 2002, will be added to Samson's tab 22C;
(ii) page 2523, line 3 to page 2525, line 9; page 2525, line 9; and page 2525, line 18 to page 2527, line 22 will be added to Samson's tab 43;
(iii) page 698, lines 8 to 13; page 698, line 22 to page 700, line 4; and page 700, lines 5 to 20 will be added to Samson's tab 126;
(iv) page 2021, line 12 to page 2023, line 7; page 1993, line 26 to page 1994, line 25; and undertaking response 236 will be added to Samson's tab 160;
(v) page 3090 line 21 to page 3091, line 27 will be added to Samson's tab 225;
(vi) page 2021, line 12 to page 2023, line 7; page 1993, line 26 to page 1994, line 25; and undertaking response 236 will be added to Samson's tab 228;
(vii) page 805, lines 1 to 8 will be added to Samson's tab 264;
(viii) undertaking response 388; page 3688, line 9 to page 3690, line 9; and undertaking response 390 will be added to Samson's tab 297 and referenced in Samson's tabs 303 and 305;
(ix) page 3, lines 11 to 19; page 21, line 24 to page 27, line 12; page 34, line 24 to page 37, line 12; undertaking response 5; and undertaking response 7 ll be added to Samson's section 14; and
(x) page 825 lines 14 to 27; page 826, lines 1 to 8; and page 826, lines 9 to 27 will be added to Samson's tab 392.
[5] All other requests for additional material by the Crown are denied.
[6] Samson 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, Samson 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 Samson'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.
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