Date: 20000329
Docket: A-37-99
ROTHSTEIN, J.A.
MALONE, J.A.
BETWEEN:
HAROLD TURNER,
RON BALLANTYNE, ARNOLD BALLANTYNE and DONALD PACKO
suing on their own behalf
and on behalf of all members of Grand Rapids First Nation,
and GRAND RAPIDS FIRST NATION
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 3rd 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-300-92 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
Date: 20000329
Docket: A-37-99
CORAM: DÉCARY, J.A.
ROTHSTEIN, J.A.
MALONE, J.A.
BETWEEN:
HAROLD TURNER,
RON BALLANTYNE, ARNOLD BALLANTYNE and DONALD PACKO
suing on their own behalf
and on behalf of all members of Grand Rapids First Nation,
and GRAND RAPIDS FIRST NATION
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.
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-300-92 DATED DECEMBER 15, 1998
COURT FILE NO.: T-37-99
| STYLE OF CAUSE: HAROLD TURNER, RON BALLANTYNE, ARNOLD BALLANTYNE and DONALD PACKO suing on their own behalf and on behalf of all members of Grand Rapids First Nation, and GRAND RAPIDS FIRST NATION 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, Manitoba
R3C 0S6
SOLICITORS OF RECORD:
Savino & Company for the Appellants (Plaintiffs)
Winnipeg, Manitoba
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent (Defendant)
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