Date: 20050715
Docket: A-217-05
Neutral citation: 2005 FCA 259
Present: EVANS J.A.
BETWEEN:
SAWRIDGE BAND
Appellants
and
HER MAJESTY THE QUEEN
Respondent
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN'S ASSOCIATION OF CANADA
Respondents
AND BETWEEN:
TSUU T'INA FIRST NATION
Appellants
and
HER MAJESTY THE QUEEN
Respondent
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN'S ASSOCIATION OF CANADA
Respondents
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on July 15, 2005.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20050715
Docket: A-217-05
Neutral citation: 2005 FCA 259
Present: EVANS J.A.
BETWEEN:
SAWRIDGE BAND
Appellants
and
HER MAJESTY THE QUEEN
Respondent
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN'S ASSOCIATION OF CANADA
Respondents
AND BETWEEN:
TSUU T'INA FIRST NATION
Appellants
and
HER MAJESTY THE QUEEN
Respondent
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN'S ASSOCIATION OF CANADA
Respondents
REASONS FOR ORDER
EVANS J.A.
A. INTRODUCTION
[1] I have before me a motion in writing pursuant to rule 369 of the Federal Courts Rules, in which the appellants, the Sawridge Band and the Tsuu T'ina First Nation, bring a motion for an order to determine the contents of the appeal book pursuant to rule 343(3). The motion is opposed by the Crown and one of the interveners, the Non-Status Indian Association of Alberta ("NSIAA").
[2] The motion arises from an appeal to this Court from an order of Russell J. of the Federal Court, dated May 3, 2005, dismissing the appellants' motion that he recuse himself on the ground of bias from trying an action in which the appellants are the plaintiffs and the Crown is the defendant. The appellants allege that a reasonable apprehension of bias arose principally from Russell J.'s apparent predisposition towards an issue, namely, the effect of amendments to the appellants' statement of claim which assert new causes of action relating to self-government and Aboriginal title.
[3] The parties have already reached an agreement on 170 items for inclusion in the appeal book. In the course of the exchange of memoranda of fact and law filed in connection with this motion, they have also agreed that the appeal book should include the written responding representations made by the NSIAA on the appellants' motion to file revised will-say statements, and the notice of appeal in a related appeal, Court File No. A-651-04.
B. THE LAW
[4] Rule 343(2) provides that the contents of an appeal book shall include only such items as "are required to dispose of the issues on appeal." The appeal record should not be unnecessarily expanded so as to obscure the issues, and to burden the court and other parties. It is agreed that the material referred to in rule 343(2) comprises the material before the judge in the matter under appeal and, by virtue of rule 351, new evidence that was not before the judge, provided that it was not reasonably discoverable before the hearing from which the appeal arises and is practically conclusive of the appeal.
[5] However, new evidence may only be adduced under rule 351 by way of a motion: Montana Band v. R. 2001 FCA 176. The appellants have not brought a motion. Nonetheless, since the new evidence issue has been fully dealt with in the memoranda of fact and law filed in connection with this motion, I am prepared to decide the new evidence issue on its merits in order to avoid further potential delay and expense.
[6] The tests for the admission of new evidence are relatively strict because the focus of an appeal is to determine if the judge erred on the basis of the material before her or him. However, it can be difficult for a judge to decide the relevance of an item at the stage of determining the contents of the appeal book. Accordingly, the cautionary principle suggests that, even though the party seeking to have material included in the appeal book has the burden of establishing that it is admissible, a judge, if doubtful of its relevance, should not exclude it on a motion to determine the contents of the appeal book:Canada (Information Commissioner) v. Canada (Minister of the Environment) (2001), 14 C.P.R. (4th) 574 (F.C.A.) at 576. The panel hearing the appeal will be better placed to determine the relevance and weight of the disputed items.
C. ANALYSIS
(i) were the disputed items before Russell J. when he determined the recusal motion?
[7] The appellants are entitled to include in the appeal book any items that were put before the Judge for the purpose of this motion. They argue that evidence is admissible on this ground, even though it was not introduced as evidence, provided that it was before the judge "in one form or another".
[8] The appellants say that the entire record of the action was put before Russell J. by the parties "in one form or another" and therefore documents which form part of that record should be included in the appeal book. In particular, the appellants argue that written interrogatories served by the Crown on the issue of self-government were referred to by their counsel in the course of his oral submissions and, hence, were before the Judge.
[9] I do not agree. The appellants did not include the written interrogatories in their motion record and have provided no basis to suggest that Russell J. was aware of their content.
[10] The appellants also argue that written representations made with respect to motions other than the recusal motion should be included in the appeal book because they were before Russell J.. Again, with the exception of the responding written representations made on behalf of the NSIAA on the motion to file revised will-say statements, which it was agreed were put before Russell J., the other written representations were not included in the appellants' motion record in support of the recusal motion or otherwise entered as evidence. The references to the motions by counsel for the appellants in oral argument are not sufficient for them to have been before the Judge. Nor am I persuaded that general references in the reasons of Russell J. to "the record", or "the entire record", included material that had not been put before him by the parties for the purpose of the motion.
[11] On the other hand, although not technically before Russell J., the transcripts of the hearing of the recusal motion should be included. Since they are simply a record of what transpired at the hearing, their admission should not be subject to the strict tests for the admission of new evidence. Given the basis of the appellants' allegations of bias, the transcripts may enable the panel hearing the appeal to obtain a more compete picture, and may be relevant to the disposition of the appeal. Even if transcripts should be considered under the category of new evidence, I would have thought them sufficiently relevant to be included in the appeal book.
[12] Written representations made in the proceeding from which an appeal arises may not normally be included in an appeal book because they are not evidence and are not relevant to the disposition of the issues on appeal. Nonetheless, in this case, the parties have agreed that written submissions made on behalf of the appellants should be included in the appeal book because they feature prominently in the reasons of Russell J.. In these circumstances, the written representations made in opposition to the appellants' recusal motion, which obviously were before Russell J., should also be included in the appeal book.
(ii) "new evidence"
[13] Neither the written interrogatories nor the written representations on various motions are admissible as new evidence since they were in existence before the end of the hearing of the recusal motion, and their existence was known to counsel for the appellants. The appellants do not explain why they could not have included them in their motion record, nor why they are of importance to the disposition of the appeal. In view of the mass of material in the voluminous record of the action which was not before Russell J., and which the appellants have not sought not to introduce at this stage, the argument that the interrogatories and written representations are necessary in order to give the Court the entire record of the action is not persuasive. Accordingly, the written interrogatories and written representations (except those filed by the respondents in the recusal motion) may not be included in the appeal book.
[14] Orders made and directions given by Russell J. after issuing his order on the recusal motion are not relevant and should not be included in the appeal book. The appellants' remedy was to appeal any orders that they thought were vitiated by a reasonable apprehension of bias. They have not done so and cannot now attack them collaterally in their appeal from Russell J.'s order in the recusal motion.
D. CONCLUSIONS
[15] The appellants' motion is granted in part and, in addition to the items listed at Tab HH in volume I of the appellants' motion record, to which the parties have already agreed, the following items shall be included in the appeal book:
a) NSIAA's responding written representations on the appellants' motion for leave to file will-say statements;
b) notice of appeal in Court File No. A-651-04;
c) transcript of the hearing of the recusal motion; and
d) written submissions made on behalf of the respondents in opposition to the appellants' recusal motion.
[16] In all other respects, the appellants' motion will be dismissed. Since success on the motion is divided, there will be no award of costs. The time for filing the appeal book will be extended until 5 days after the date of this order.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-217-05
STYLE OF CAUSE:
Sawridge Band Appellants
and Her Majesty The Queen Respondent
and Native Council of Canada, Native Council of Canada (Alberta), Non-Status Indian Association of Alberta and Native Women's Association of Canada Respondents
And between:
Tsuu T'ina First Nation Appellants
and Her Majesty The Queen Respondent
and Native Council of Canada, Native Council of Canada (Alberta), Non-Status Indian Association of Alberta and Native Women's Association of Canada Respondents
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: The Honourable Mr. Justice Evans
DATED: July 15, 2005
WRITTEN REPRESENTATIONS BY:
Richard E. Shibley FOR THE APPELLANT (Sawridge Band and Tssu T'ina First Nation)
Catherine M. Twinn/Kristina Midbo FOR THE APPELLANT (Sawridge Band and Tssu T'ina First Nation)
Janell Kock FOR THE RESPONDENT (Her Majesty The Queen)
Michael J. Donaldson FOR THE RESPONDENT (Non-Status Indian Association of Alberta)
P. Jon Faulds/Derek Cranna FOR THE RESPONDENT (Native Council of Canada (Alberta)
SOLICITORS OF RECORD:
Shibley Righton LLP FOR THE APPELLANT
Barristers and Solicitors (Sawridge Band and Tssu T'ina First Nation)
Toronto, Ontario
Twinn, Barrister and Solicitor FOR THE APPELLANT
#810 Caribour Trail N.E. (Sawridge Band and Tssu T'ina First Nation)
Sawridge Indian Reserve 150G
Slave Lake, Alberta
Lang Mitchener LLP FOR THE RESPONDENT
Barristers and Solicitors (Native Council of Canada)
Ottawa, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT (Her Majesty The Queen)
Deputy Attorney General of Canada
Burnet Duckworth & Palmer90 FOR THE RESPONDENT
Barristers & Solicitors (Non-Status Indian Association of Alberta)
1400-350 7 Ave. SW
Calgary, Alberta
Eberts Symes Street Pinto & Jull FOR THE RESPONDENT
133 Lowther Avenue (Native Women's Association of Canada)
Toronto, Ontario
Field Atkinson Perraton FOR THE RESPONDENT
Barristers & Solicitors (Native Council of Canada (Alberta))
2000, 10235 - 101 Street
Edmonton, Alberta
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