Pas Indian Band v. Canada, docket A-38-99

     Date: 20000329

            

     Docket: A-38-99

CORAM:      DÉCARY, J.A.

         ROTHSTEIN, J.A.

         MALONE, J.A.

BETWEEN:

FRANCIS FLETT, NATHAN A. MCGILLIVARY, FRANK J. WHITEHEAD, NORMAN GLEN ROSS, WILLIAM G. LATHLIN, JERRY HENDERSON, MOSES BIGNELL, JAMES PATRICK SMITH, WILFRED GEORGE YOUNG, GEORGE FLETT, PHILIP DORION, LAURENCE HORACE WHITEHEAD, and EDNA CONSTANT suing on their own behalf and on behalf of all members of The Pas Indian Band,

and THE PAS INDIAN BAND,

     Appellants (Plaintiffs)

                         -and-

     HER MAJESTY THE QUEEN

Respondent (Defendant)

    

     REASONS FOR JUDGMENT

     (Delivered from the Bench at Winnipeg, Manitoba on March 29, 2000)

MALONE, J.A.

[1]      This appeal concerns a discretionary order made by the learned Trial Judge ordering that the within action be dismissed for delay in accordance with Rule 382(2)(a).

[2]      A brief recital of the facts is necessary to deal with the issue raised. The statement of claim was filed on February 5, 1992 and involves treaty and aboriginal rights. The appellants made no effort to proceed expeditiously. The respondent did not object.

[3]      New Federal Court Rules came into effect on April 25, 1998 creating a scheme of

case management and dispute resolution which involved court intervention in the interests of the better administration of justice.

[4]      On July 16, 1998 a show Cause Notice of Status Review issued and the appellants responded in writing on August 17, 1998. That response indicated that a claim may be brought before the Indian Claims Commission. It also indicated that both parties consented to the continuation of this action that would proceed forthwith.

[5]      Almost four months later the Trial Judge issued Directions asking the obvious question as to whether a stay was being sought or whether the action would proceed. Those Directions dated December 3, 1998 required a response from counsel by December 11, 1998 but there was no indication in the Directions that the action might be dismissed for delay in the absence of a reply. The Directions were faxed to appellants" counsel on December 3^rd while the original Directions were sent by ordinary mail and arrived on December 7, 1998. No response was filed by the appellants and an order issued on December 15, 1998 dismissing the action for delay.

[6]      The affidavit of Vic Savino filed in support of this appeal reveals personal difficulty in responding to the Directions in the time provided.

[7]      In these unusual circumstances, the appeal will be allowed and the December 15, 1998 order dismissing the within action will be set aside. Federal Court Action No. T-299-92 will be reinstated and the appellants will file a written response to the December 3, 1998 Directions not later than April 13, 2000. In the event a written response is not filed by the appellants by April 13, 2000, this action will again be dismissed without further order of the Court.

[8]      In accordance with Rule 400(1) costs will be awarded to the respondent in the amount of $500 inclusive of disbursements and paid personally by the appellants" solicitors of record Savino and Company not later than May 1, 2000.

     "B. Malone"

     J.A.

Winnipeg, Manitoba

March 29, 2000

     FEDERAL COURT OF CANADA

     APPEAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

THIS IS AN APPEAL OF THE TRIAL DIVISION DECISION IN COURT NO. T-299-92 DATED DECEMBER 15, 1998

COURT FILE NO.:              A-38-99

            

STYLE OF CAUSE:      FRANCIS FLETT, NATHAN A. MCGILLIVARY, FRANK J. WHITEHEAD, NORMAN GLEN ROSS, WILLIAM G. LATHLIN, JERRY HENDERSON, MOSES BIGNELL, JAMES PATRICK SMITH, WILFRED GEORGE YOUNG, GEORGE FLETT, PHILIP DORION, LAURENCE HORACE WHITEHEAD, and EDNA CONSTANT suing on their own behalf and on behalf of all members of The Pas Indian Band, and THE PAS INDIAN BAND,

                 v. HER MAJESTY THE QUEEN

PLACE OF HEARING:              Winnipeg, Manitoba

                                        

DATE OF HEARING:              March 29, 2000

                        

     REASONS FOR JUDGMENT OF

     THE HONOURABLE MR. JUSTICE MALONE

     DATED MARCH 29, 2000

APPEARANCES:

Michael Jerch      for the Appellants (Plaintiffs)

Craig. J. Henderson      for the Respondent (Defendant)

Department of Justice

301 - 310 Broadway

Winnipeg, MB R3C 0S6

SOLICITORS OF RECORD:

Savino & Company

Winnipeg, Manitoba      for the Appellants (Plaintiffs)

Morris Rosenberg     

Deputy Attorney General of Canada      for the Respondent (Defendant)

Date: 20000329

Docket: A-38-99

CORAM:      DÉCARY, J.A.

         ROTHSTEIN, J.A.

         MALONE, J.A.

BETWEEN:

FRANCIS FLETT, NATHAN A. MCGILLIVARY, FRANK J. WHITEHEAD, NORMAN GLEN ROSS, WILLIAM G. LATHLIN, JERRY HENDERSON, MOSES BIGNELL, JAMES PATRICK SMITH, WILFRED GEORGE YOUNG, GEORGE FLETT, PHILIP DORION, LAURENCE HORACE WHITEHEAD, and EDNA CONSTANT suing on their own behalf and on behalf of all members of The Pas Indian Band,

and THE PAS INDIAN BAND,

     Appellants (Plaintiffs)

                         -and-

     HER MAJESTY THE QUEEN

Respondent (Defendant)

Heard at Winnipeg, Manitoba on March 29, 2000

JUDGMENT delivered from the Bench at Winnipeg, Manitoba on March 29, 2000

REASONS FOR JUDGMENT BY:      MALONE, J.A.