Date: 20020306
Docket: T-66-86A
Neutral citation: 2002 FCT 254
BETWEEN:
BERTHA L'HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
Action No. T-66-86B
BETWEEN:
BRUCE STARLIGHT, suing on his own behalf
and on behalf of all other members of the Sarcee Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
(Delivered from the Bench at Toronto, Ontario
on March 4, 2002)
[1] I have before me motions that were made in each of these files and that seek a variance in the case management Orders made herein on September 28, 2001.
[2] Those Orders were in turn made following motions by one of the interveners, which were served and filed in May and were heard at a hearing at the end of August, 2001. The Orders limit the time for examination for discovery by each of the parties and also prescribed that such discoveries will be completed by May 1, 2002.
[3] The present motions seek to extend that deadline and to make further modifications in a number of other time lines that were consequential on that May 1st date. The grounds primarily relied upon are allegation that the volume of documents and the complexity of the litigation, coupled with the fact that the Crown has only recently taken on additional lawyers and researchers to deal with the case, now show that it is impossible to prepare for and conduct examinations for discovery within the time allotted.
[4] The plaintiffs have filed a cross-motion which also seeks an extension of the September 28, 2001 timetable but suggests different time lines for the completion of various steps leading up to the pre-trial conference. The plaintiffs' cross-motion was filed on March 1st; that is to say, last Friday for a hearing today, Monday, March 4th. In addition to asking to vary the timetable, the plaintiffs' cross-motion also asks for certain Orders regarding the discovery of and by the interveners and for the substitution of the representative plaintiff, Mr. Starlight, by another member of that Band, Mr. Crowchild. In so far as concerns these latter conclusions in the cross-motion, they must be dismissed.
[5] First, the motions were late filed, without even an attempt to seek leave of the Court or the consent of the affected parties. Second, and more important, the motions are supported by the affidavit of one of the plaintiffs' counsel. That affidavit goes to matters of substance; namely, whether or not some of the persons said to be represented by the interveners are suffering prejudice because of the great delay in bringing this action to trial, and whether or not Mr. Starlight is an appropriate representative of the plaintiffs. The affidavit is improper. I refuse to accept it as evidence of the facts asserted and without such evidence, the cross-motion fails. I have, however, accepted the written submissions by the plaintiffs on other scheduling matters as being their submissions in response to the Crown's motion.
[6] This brings me finally to the question of whether or not I should exercise my discretion so that the time limits for discovery should be extended. I have decided that they should not. This case has a very sorry history of delay. It cannot be counted as one of the successes of case management. Ever since the Court of Appeal ordered a new trial, I have been constantly encouraging and exhorting the parties to move the matter forward and to get on with it and I have set a number of deadlines, which in large part have not been followed.
[7] In the more recent past, it should have been clear, both to the plaintiffs and to the Crown, that the Court's patience has been at an end since at least as early as the hearing that we held in August of last year. Certainly in my reasons delivered orally September 28th, I made no secret of what I thought of their conduct; that is to say the parties, the plaintiffs and the defendant Crown. I will not repeat myself here. It is enough to say that I am satisfied that the plaintiffs have shown no real interest in pushing this case on to trial since they are already acting as though the legislation that they impugn has been found to be invalid. Equally, the Crown, for reasons which remain a mystery to me, has shown itself unwilling or unable, at least until very recently, to devote the necessary resources to the case and to force the plaintiffs to comply with various scheduling Orders that have been made. I am driven to the regretful conclusion that the parties are simply incapable or cannot be trusted to conduct this litigation themselves, even when case managed.
[8] I sympathize with the position of the interveners. They want this case to go forward. They make a strong case that at least some of the persons that they represent are suffering serious prejudice by the fact that it has been delayed. They do not however want the Crown, whose position they generally support, to fight this case without having done adequate preparation or discovery. That is why they too asked that I make adjustments to the schedule. The difficulty I have in acceding to that request is that experience demonstrates that I can have no confidence whatsoever that any scheduling Order that I make will be followed or that the parties themselves will do what is necessary to enforce such an Order.
[9] This regrettably means that the Court itself is going to have to supervise and monitor the discovery process far more closely than it would or should normally do and is going to have to restrict the parties rights of discovery in a way that is, to say the least, unfortunate but which they have brought upon themselves.
[10] The parties have now put themselves in a position where they cannot complete the discovery process by the scheduled date of May 1, 2002. If they had shown anything approaching proper diligence from and after the time of the September 28, 2001 Order, they would have been able to comply with that Order. It would accordingly be very wrong for the Court now to change the schedule. Both of the parties have misconducted themselves and they cannot by that misconduct obtain a variation of an Order that was made by the Court after it heard them and at which they made virtually no submissions of the sort that I have heard today and which could and should have been made in August.
[11] There are approximately eight weeks remaining prior to May 1st and the parties should do what they can to complete oral discovery by that time, which will not be extended. If there is any dispute as to who gets to use which of the remaining eight weeks (and there very likely will be), the parties should use them alternately with the plaintiffs taking the week of March 11, defendant the week of March 18, and so on. Following May 1, 2002, there will be no further oral discovery by anybody.
[12] Within the three weeks following May 1, 2002, each party is to prepare and submit proposed written interrogatories to the Court and to the other parties. I will, myself, personally supervise those interrogatories and will give leave for and order to be answered only such of them as I think are proper. We will hold a case management conference at a date in early June (to be discussed) when we will review the proposed interrogatories, settle the list of those that are approved and must be answered, and, consistent with the existing schedule, the time limit within which they are to be answered.
[13] The question of interrogatories by and of the interveners will also be discussed at that time and may be made the subject of a motion. But the interveners, who must take this case in the sorry state in which the plaintiffs and the defendant have put it, will not have the right to conduct oral discoveries.
[14] I will hear the parties on the question of costs.
Judge
Ottawa, Ontario
March 6, 2002