Date: 19990708
Docket: T-1057-96
BETWEEN:
AMBROSE MAURICE, MERVIN MAURICE,
and THE METIS SOCIETY OF SASKATCHEWAN
SAPWAGAMIK LOCAL 176 INC.
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,
THE MINISTER OF NATIONAL DEFENCE, and
THE ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
REED, J.:
[1] The defendants bring a motion for an order pursuant to Rules 8(1) and (2) and Rule 385(1)(b) of the Federal Court Rules, 1998, seeking to extend the time for service and filing of their Statement of Defence indefinitely (sine die) or, in the alternative, to a date to be determined by the Court.
[2] The indefinite postponement of the filing of the Statement of Defence is sought on the ground that the volume of material that the defendants must locate and review in order to respond to the plaintiffs' claim is vast and its location diverse. The paralegal who filed an affidavit in support of the motion states that she has been informed that it will take until January 2000 to complete the first stage of that review and to December 2000 to complete the second stage.
[3] The individual plaintiffs, Ambrose Maurice and Mervin Maurice, state that they are metis who reside at or near the community of Sapwagamik and that they were denied compensation comparable to that given to registered Indians when both were displaced in 1954 from land in northern Saskatchewan (land used on a seasonal basis), which land became the Primrose Lake Air Weapons Range. The corporate plaintiff states that it represents other metis residing at or near the community of Sapwagamik. The claim raises issues under section 15 of the Canadian Charter of Rights and Freedoms, and section 35 of the Constitution Act, 1982, as well as the issue of whether a fiduciary duty was owed at the relevant time by the defendants to the plaintiffs.
[4] Counsel for the plaintiffs opposes the motion for an indefinite extension of the time for the filing of a Statement of Defence, on the ground that there has already been excessive delay. I set out below the chronology of events identified by the plaintiffs in response to the defendants' motion:
| - 7 May 1996 - Statement of Claim filed. |
| - 10 May 1996 - Crown confirms that the plaintiffs agreed that the Crown need not file its defence within the time required by the Federal Court Rules. |
| - 11 June 1996 - Plaintiffs ask whether the Crown is yet in a position to respond to the Statement of Claim. |
| - 17 June 1996 - Crown responds saying: "we are in the process of obtaining the facts and background information which would enable us to prepare a Statement of Defence," and "We would hope to be in a position to file our Statement of Defence sometime in the early fall." |
| - 8 July, 1996 - Plaintiffs write: "We have instructions to require the Statement of Defence in this matter by September 15, 1996." |
| - 13 August 1996 - Plaintiffs reject a request by Crown to extend the filing time to December 31, 1996, but grant an extension to November 1, 1996, and provide the Crown with copies of 25 documents in the plaintiffs' possession and other information. |
| - 31 October, 1996 - Crown serves the plaintiffs with a Demand for Particulars. |
| - 7 November, 1996 - Plaintiffs write to the Crown expressing surprise that given the history of the proceeding to that date, a Demand for Particulars was served only one day before the Crown's Statement of Defence was due, and stating that a response to the Demand for Particulars could not be addressed until the end of November. |
| - 13 November, 1996 - Crown replies and proposes a meeting in December. |
| - 10 December, 1996 - Plaintiffs send Crown a copy of the Reply to Demand for Particulars and express willingness to meet. |
| - 16 december, 1996 - Crown proposes meeting after January 15. |
| - 17 december, 1996 - Plaintiffs indicate availability to meet January 15 or prior to January 15. |
| - 20 December, 1996 - Filed Reply to Demand for Particulars is served on Crown. |
| - 7 January, 1996 - Crown says meeting tentatively scheduled for January 15 must be postponed to January 20. |
| - 20 January, 1997 to - Discussions between parties and case management |
| 5 February, 1999 conferences ensue. |
| - 17 May, 1999 - Amended Statement of Claim filed. |
| - 28 June 1999 - Crown moves to postpone filing of Statement of Defence sine die. |
[5] Counsel for the plaintiffs notes that Rule 204 requires statements of defence to be filed within 30 days of the statement of claim, that many of the matters that the defendants' affidavit identifies as requiring research are matters the plaintiff must prove, or are matters that are not in issue.
[6] Counsel for the plaintiffs notes that it is now 3 years and 53 days (as of June 29, 1999) since the Statement of Claim was filed and 2 years, 10 months and 16 days since the plaintiffs were informed by the defendants that "we are in the process of obtaining facts and background information which would enable us to prepare a Statement of Defence". He also notes that those who have direct knowledge of the events of 1954 are not getting any younger.
[7] The Amended Statement of Claim does add a significant new issue, a claim based on section 35 of the Constitution Act, 1982. At the same time, however, many of the factual underpinnings are not different from those that the defendants could expect to have to answer in order to respond to the claim as it existed prior to the amendment. Also, counsel for the plaintiffs notes that to the extent new grounds were added by the amendment, the defendants were aware of them since at least February 5, 1999, a period of close to five months.
[8] I am not prepared to grant the indefinite adjournment that is sought. I am not persuaded that the research that is required is as broad and unmanageable as the defendants suggest. I am not persuaded that the defendants do not have sufficient information to file a reasonable Statement of Defence now. I cannot forbear from commenting that when it is in the defendants' interest to see matters proceed through the courts expeditiously, they are able to marshall the resources to do so. They should be expected to move as expeditiously when they are defendants. The defendants shall file their Statement of Defence on or before August 31, 1999. Counsel for the parties shall file either jointly or severally a proposed schedule for the completion of all pre-trial steps for this litigation.
Judge
OTTAWA, ONTARIO
July 8, 1999