Starr v. Canada, 2001 FCT 338

Date: 20010418

Docket: T-67-99

Neutral Citation: 2001 FCT 338

Ottawa, Ontario, this 18th day of April, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

DAVID STARR, MARTIN OKEMOW, MELANIE OKEMOW (TRINDLE),

GEORGE NETAWASTANUM, RITA OAR, HELEN STARR,

JOHNNY MERRIER (OSSEMEMAS), GEORGE NOSKIYE, ANDREW ORR,

LOUIS J. CARDINAL, SARAH SINCLAIR, HARVEY HOULE, and

VICTOR CARDINAL on behalf of the Cree Indians of Peerless Lake,

of Trout Lake, and of God's Lake, the Peerless Lake Indian Band,

and the Trout Lake Indian Band,

Plaintiffs

- and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

as represented by the

Minister of Indian Affairs and Northern Development,

Defendant

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is a motion by the plaintiffs appealing the order of Prothonotary Roger R. Lafrenière dated October 24, 2000 whereby he ordered the plaintiffs to provide certain further particulars to the defendant with respect to the statement of claim. The appeal is made pursuant to Rule 51 of the Federal Court Rules, 1998, SOR/98-106.

Background Facts

[2]                Here is a brief chronology of the relevant background facts. The statement of claim in this action was filed on January 15, 1999.

[3]                On December 20, 1999 Prothonotary John A. Hargrave granted an order with respect to the provision of particulars which included a time table for the parties to supply and request certain particulars.

[4]                On December 31, 1999 the defendant requested further and better particulars of the plaintiffs with respect to the plaintiffs' statement of claim.

[5]                A motion dated October 6, 2000 was made by the defendant in writing before Prothonotary Lafrenière, pursuant to Rule 369 of the Federal Court Rules, 1998 for further and better particulars in relation to their December 31, 1999 demand for particulars.

[6]                The defendant requested the following:

7.                   An order pursuant to Rule 181(2) of the Federal Court Rules, 1998, directing the plaintiffs to serve and file further and better particulars in answer to paragraphs 1(a), (b), (c), (d), (e), (f), (g), 2(a), 5(a), 5(c), 8(b), 9(a), 9(b), 11(a) and 12(a) of the defendant's (applicant's) demand for particulars.

8.                   An order directing that the defendant (applicant) be granted an extension of three months following receipt of full particulars as requested in paragraphs 1(a), (b), (c), (d), (e), (f), (g), 2(a), 5(a), 5(c), 8(b), 9(a), 9(b), 11(a) and 12(a) of the defendant's (applicant's) demand for particulars within which to serve and file a statement of defence as set out in the order of Mr. John A. Hargrave, Prothonotary dated December 20, 1999.

9.                   In the alternative, an order, pursuant to Rules 8(1) and (2) of the Federal Court Rules, 1998, extending the time for service and filing of Canada's statement of defence in the within action for three months following the date of the Court's order in this application.

[7]                On October 24, 2000 Prothonotary Lafrenière ordered:

The plaintiffs shall serve and file further and better particulars in answer to paragraphs 1(a), (b), (c), (d), (f), (g) and 2(a) in order to allow the defendant to properly understand the plaintiff's ancestral claim and to prepare her statement of defence and, in particular, they shall provide a table exhibiting the relation of their ancestors to descendants under the form of a tree with spreading branches.

The plaintiffs shall provide the dates of issue of the scrip certificates as requested in paragraph 9(b) of the defendant's demand for particulars.

The plaintiffs shall provide particulars in answer to paragraphs 1(e), 8(b), 9(a), 11(a), 11(b) and 12(a) of the defendant's demand for particulars.

Particulars with respect to paragraphs 5(a) and 5(c) of the defendant's demand for particulars need not be provided at the pleading stage, without prejudice to the defendant seeking same at a later stage.

[8]                The only affidavit evidence that the plaintiffs produced to Prothonotary Lafrenière was the affidavit of Edward van Dyke sworn October 14, 2000.

[9]                The affidavits of Edward van Dyke sworn October 29, 2000 and of Arlene Klonteig sworn November 13, 2000 were not before Prothonotary Lafrenière when he made his decision.

[10]            The arguments with respect to the Charter of Rights and Freedoms and the Constitution Act, 1982 which were argued before me by the plaintiffs were not submitted to nor argued before Prothonotary Lafrenière.

Issues

[11]            The issues in this matter are:

10.               What is the applicable standard of review of the order of the Prothonotary?

11.               Was Prothonotary Lafrenière's order clearly wrong?

12.               Should the additional affidavits of Edward van Dyke and Arlene Klonteig, which were not before the Prothonotary, be considered by me?

13.               Should the plaintiffs be allowed to present their Charter arguments on appeal when these arguments were not advanced before the Prothonotary?

Relevant Rules of the Court

[12]            The relevant Federal Court Rules, 1998 are as follows:

[13]            Issue 1

What is the applicable standard of review of the order of the Prothonotary?

McGuigan J.A. in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.) at pages 462 and 463 clearly set out the law followed by this Court when reviewing or deciding appeals from a discretionary decision of a prothonotary:

I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:

(1)                they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

(2)                they raise questions vital to the final issue of the case.

Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.

Aqua-Gem, supra clearly defines the standard of review for discretionary decisions of the prothonotary. In the present case, the decision of the Prothonotary dealt with the provision of further particulars. This is not a situation where his order raised a question vital to the final issue of the case. It must now be determined whether the order of the prothonotary was clearly wrong in the sense as outlined in the Aqua-Gem, supra case, as that would be the only remaining situation in which I could exercise my discretion de novo.

[13]             Issue 2

Was Prothonotary Lafrenière's order clearly wrong?

The motion before the prothonotary dealt with a request for further particulars in relation to certain paragraphs of the statement of claim. The defendant claimed that these particulars are necessary in order to file a statement of defence. The claims of the plaintiffs are based in part on their claim in paragraph 2 of the statement of claim that "Further the ancestors of the plaintiffs and the plaintiffs and their descendants are ‘aboriginal peoples of Canada' pursuant to the Constitution Act, 1982, Section 35. The plaintiffs have aboriginal rights which are and were existing on April 15, 1982". The plaintiffs' claims are based on use and occupation of the lands in question by the plaintiffs and their ancestors. The further particulars, requested by the respondent in its motion, that were granted by Prothonotary Lafrenière deal with details about the plaintiffs, their ancestors, their places of residences and their dealings with others i.e. surveyors and issuers of scrip certificates. Rule 181(2) allows the Prothonotary to order a party to file further and better particulars of any allegation in its pleading. The reason for particulars before the filing of a statement of defence is to allow the defendant to better understand the position of the plaintiffs, see the basis of the case against it and appreciate the facts on which it is founded, so that the defendant may prepare an adequate and intelligent defence (see Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) 285 (F.C.T.D.) at page 287). After a review of the statement of claim, I am of the view that Prothonotary Lafrenière's order was not clearly wrong in the sense as contemplated in Aqua-Gem, supra. He did not apply the wrong principle of law or misapprehend the facts. In fact, I believe his decision to be correct.

[14]             As I have found that the order of the prothonotary did not raise questions vital to

the final issue of the case and that the order was not clearly wrong, I am not prepared to disturb the order on appeal by exercising my discretion de novo.

[15]             Issue 3

Should the additional affidavits of Edward van Dyke and Arlene Klonteig, which were not before the Prothonotary, be considered by me?

The additional affidavit of Edward van Dyke sworn to October 29, 2000 and the affidavit of Arlene Klonteig sworn to November 13, 2000 were not before the Prothonotary when he made his order. In Symbol Yachts Ltd. v. Pearson [1996] 2 F.C. 391 (F.C.T.D.) Nadon J. of this Court stated at pages 399 - 400:

In the present instance, there is no doubt in my mind that the Prothonotary's order raises a question vital to the final issue of the case since the effect of the Prothonotary's order is to terminate the plaintiffs' action. However, I can only examine the Prothonotary's order in the light of the evidence which was before him when he made his order. Consequently, I cannot, and so advised the parties at the hearing, consider the affidavits which the plaintiffs seek to introduce into the record. I do not know why these affidavits were not filed by the plaintiffs in support of their September 22, 1995 application but, in my view, that evidence, if available, should have been placed before the Prothonotary.

This is an appeal of the Prothonotary's decision and it is now too late to present evidence which should have been made earlier. In my view, the purpose of these new affidavits is to correct the shortcomings of the evidence submitted to the Prothonotary. The facts sworn to, for example in the Beesley affidavit, are facts which could have been put before the Prothonotary but were not. The affidavit covers the time period from the initiation of the litigation in 1988 to October 30, 1995.

It was for these reasons that I informed the parties during the hearing that I would not allow the plaintiffs to introduce into the record supplementary affidavits.

Based on the above reasoning, I am not prepared to allow the plaintiffs to introduce the additional affidavit of Edward van Dyke or the affidavit of Arlene Klonteig on this appeal.

[16]             Issue 4

Should the plaintiffs be allowed to present their Charter arguments on appeal when these arguments were not advanced before the Prothonotary?

The plaintiffs raised arguments based on sections 7, 15 and 27 of the Charter of Rights and Freedoms and on section 35 of the Constitution Act, 1982 before me on this appeal. These arguments were not raised or made before the prothonotary. It must be remembered that I am sitting in appeal of the Prothonotary's discretionary decision. These arguments and the facts to support the arguments could have been made to the Prothonotary. The law regarding new issues on appeal was outlined by Carruthers C.J. in Wood v. Bonnnell (1993), 105 Nfld & P.E.I.R. 243 (P.E.I. C.A.) at pages 246 to 248:

The Ontario Court of Appeal dealt with the question of hearing new issues on appeal in National Trust Co. v. Bouckhuyt et al (1987), 21 C.P.C. (2d) 226. Mr. Justice Cory states at p. 233:

A preliminary matter must be resolved before the main issues are considered. The appellant contested the validity of the regulations of the Tobacco Board, and in particular s. 12. The trial Judge in his reasons observed that there had been no attack or challenge made as to the validity of the regulations and the application before him proceeded on that basis.

It would be unfair to permit the appellant to now attack the validity of the regulations. Additional material and further submissions might well have been made both on behalf of the respondent and the intervenant had that issue been raised upon the application. In Canadian Towers Ltd. v. Fawcett (1978), 21 O.R. (2s) 545, 90 D.L.R. (3d) 758 (C.A.) [leave to appeal to the Supreme Court of Canada refused 26 N.R. 241 (S.C.C.)], Morden J.A. at p. 547 quoted with approval the reasoning of Lord Herschell in ‘The Tasmania' (1890), 15 App. Cas 223 at 225, 63 L.T. 1 cited in an earlier appeal Court decision:

It appears to me that under these circumstances a court of appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box.

That principle is applicable to this appeal. It would, I think, be even more unfair to the respondent and the intervenant to permit the appellants to raise the issue at this stage, given that the appellants had specifically conceded on the application that they were not challenging the validity of the regulations. These reasons will, therefore, proceed on the basis that the regulations of the Tobacco Board are valid.

Chief Justice Nemetz of the British Columbia Court of Appeal also dealt with the same question in Black Bros. Realty Ltd. v. Boese and Gonzo (1988), 24 B.C.L.R. (2d) 178. He states on p. 179:

The basic principles are well established. No cases of our court were cited to us but there is a judgment in the Ontario Court of Appeal of the late Associate Chief Justice MacKinnon, who cites with approval the principle enunciated in The Tordenskjold v. The Euphemia (1908), 41 S.C.R. 154 at 163-64, 6 E.L.R. 90. Mr. Justice Duff (as he then was) said this:

The principle upon which a Court of Appeal ought to act when a view of the facts of a case is presented before it which has not been suggested before, is stated by Lord Herschell in the ‘Tasmania' [15 App. Cas. 223], at p. 225, thus:

My Lords, I think that a point such as this, not taken at the trial, and presented for the first time in the Court of Appeal, ought to be most jealously scrutinized. The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them.

It appears to me that under these circumstances a court of appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box.

We have adhered to these tenets for many years here. I think this case is completely within the ambit of these words. We are not satisfied that we have all the facts bearing upon the new contention submitted here for the first time. I do not wish to be understood to say that we cannot, if we wish, in special circumstances, hear counsel with a new point, but in these circumstances it is my view that we should not and I would dismiss that portion of the appeal.

These two authorities clearly establish that certain conditions must exist before a Court of Appeal will normally deal with issues that have not been raised at the trial level. I am not satisfied that all the facts bearing upon the bias issue are before the court and I, therefore, am of the opinion that we should not entertain this submission. There may well be, however, appropriate circumstances where the Court of Appeal will entertain submissions on a new issue but it is my view that we should not do so under the circumstances that exist on this appeal.

In the present case, the above remarks apply equally. The role of this Court when sitting in appeal of the Prothonotary's order is to decide whether the issues before the Prothonotary were properly disposed of by him. The role of the Court is not to decide some other issues that might have been raised before the Prothonotary and that might have resulted in a different outcome if the necessary factual basis was established. That is not to say that a new issue can never be raised on an appeal. In this case, I am not prepared to entertain these new arguments on appeal as they could have easily been raised before the Prothonotary by reference to facts that might have established these arguments.

[17]             The appeal of the plaintiffs is therefore dismissed with costs to the defendant.

ORDER

[18]             IT IS ORDERED that the appeal of the plaintiffs is dismissed with costs to the

defendant.

                                                                               "John A. O'Keefe"            

                                                                                               J.F.C.C.                     

Ottawa, Ontario

April 18, 2001