Date: 19980508
Docket: T-2327-97
BETWEEN:
ALEC CHINGEE, SHARON SOLONAS,
TANIA SOLONAS, ELIZABETH SOLONAS,
and PATRICK PRINCE in their capacity as Chief
and Councillors of the McLeod Lake Indian Band,
Plaintiffs,
- and -
HARRY CHINGEE, VICTOR CHINGEE, GILBERT CHINGEE,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS,
and THE ATTORNEY GENERAL OF CANADA,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons deal with Plaintiffs' motion for further and better particulars and for answers to various discovery questions in an action between competing factions for the positions of chief and councillors of the McLeod Lake Indian Band.
FURTHER AND BETTER PARTICULARS
[2] The Plaintiffs, in the present motion, refer to two requests, 29 January and 2 February 1998, for further and better particulars. The identical particulars now requested were among those sought and denied on a motion heard 9 February 1998, following which, at the request of counsel for the Plaintiffs, I gave reasons on 10 March 1998. Further, on appeal, resolved by an Order and brief Reasons of 24 March 1998 , Mr. Justice Noël upheld that decision.
[3] My Reasons of 10 March 1998 were fairly concise. They did leave open the possibility that if the Plaintiffs continued to have problems understanding the issues they might, following completion of examinations for discovery, bring a further demand for particulars as was suggested in Smith, Kline & French Laboratories Ltd. v. Lek Tovarna Farmacevtskih (1985) 4 C.P.R. (3d) 257. There Mr. Justice Rouleau noted that the plaintiff was adequately able to plead without further particulars, would not be taken by surprise and knew what evidence it ought to prepare for trial:
| "There is no doubt that at this stage of the proceedings the plaintiff is adequately able to plead without an answer to this further demand for particulars. It is fully aware of the nature of the case it must meet; it cannot argue that it will be taken by surprise; it knows what evidence it ought to prepare for trial and the issues are sufficiently defined. Particulars are for pleadings, not discovery." (p. 258). |
Mr. Justice Rouleau concluded by dismissing the motion, but left the way open for a further application for particulars:
| "Following discovery, should the plaintiff still be at difficulty to adequately prepare for trial, there is nothing to prevent it from bringing a further demand for particulars if it still feels it necessary." (loc cit.). |
[4] The central issue, as was the case on the earlier motion and appeal, is the electoral custom of the Band. The approach of counsel for the Plaintiffs, unsupported by any further material affidavit evidence, but on the basis of documents including discovery transcript, is that further particulars ought to be provided and the issues be narrowed, by way of a document called a statement of issues, dealing largely with band custom. I appreciate such a statement of issues might serve as a time saving device. However the material requested of the Defendants, in the statement of issues, is the same material sought and denied in the earlier motion for particulars, albeit in a different form and at a different time.
[5] That a party may apply for particulars at a later stage in a proceeding, particulars for trial, does not mean the application will automatically succeed. In the Smith, Kline case (supra) the application for particulars for pleading was denied only because the plaintiff was able to adequately plead on the basis of its knowledge of the case at that point: the applicant had enough particulars for pleading and was not entitled to particulars amounting to examination for discovery, but might be entitled to apply for fuller particulars for trial at a later date. In the present instance, leaving aside that some appropriate particulars had been provided, there were substantive reasons why the Plaintiffs were denied particulars of the electoral custom of the Band. Here, the Defendants' plea of custom, in their defence, is a denial of an allegation by the Plaintiffs, in their statement of claim, that they were elected according to custom, an allegation the Plaintiffs must prove in order to succeed. In my reasons for the initial denial of particulars I referred, as my main reason for denying the motion, to Weinberger v. Inglis [1918] 1 Ch. 133 at 138, for the proposition that the traverse by a defendant, even a traverse in the form of a broad affirmative, does not give rise to a right to particulars, for it is up to the plaintiff to prove its case, not for the defendant to explain a denial.
[6] The Defendants say the Plaintiffs cannot succeed for the issue of particulars, canvassed and decided 9 May 1998, is res judicata. Clearly the doctrine of res judicata applies to interlocutory matters. In support of this proposition counsel for the Defendants referred me to Stamper v. Finnigan [1984] 1 C.P.C (2d) 175, the initial issue being whether the rule of estoppel by res judicata applied to decisions on interlocutory applications. A basic argument to the contrary is that a decision on an interlocutory application is not final in the sense that the decision is interlocutory. Mr. Justice Deschenes, Chief Justice of the New Brunswick Court of Queen's Bench, in deciding that the estoppel doctrine applied to interlocutory decisions, referred at page 178 both to a Supreme Court of Canada decision and to a passage in Sopinka and Lederman, on Law of Evidence in Civil Cases as authority that an interlocutory decision may be final in nature:
| "In the Supreme Court of Canada case of Diamond v. Western Reality Co. [1924] S.C.R. 308, [1924] 2 D.L.R. 922 (S.C.C.) however, the comments of Duff J. at pp. 315-316 [S.C.R.] are relevant: |
| 'It is true that in a sense the decision was interlocutory; that is to say, the proceeding in which it was given was an interlocutory proceeding; but it was nevertheless a final decision in the sense that in the absence of appeal it became binding upon all parties to it' (underlining is mine). |
| I would adopt that view and hold that the rule of estoppel by res judicata applies to decisions on interlocutory applications. |
| I have also found some support for my views in the following comments contained in Sopinka and Lederman, Law of Evidence in Civil Cases (1974), at p. 367: |
| 'Although the authorities are in conflict, it would appear that in Canada, a decision in an interlocutory application is binding on the parties at least with respect to other proceedings in the same action.'". |
[7] The requirements of estoppel by res judicata, also referred to as estoppel by record and also as estoppel per rem judicatum, is broken down into two species. There is cause of action estoppel, preventing someone from bringing an action when the same cause of action has been determined in earlier proceedings and second, issue estoppel, involving a point or issue that has already been decided. In Angle v. Minister of National Revenue [1975] 2 S.C.R. 248, the Supreme Court of Canada referred, at page 254, to Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853 at p. 935, for a definition of the requirements of issue estoppel:
| "The requirements of issue estoppel still remain (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.". |
In the present instance clearly the parties are the same. Whether the decision said to create the estoppel was final is a little more involved but has been thoroughly dealt with in Stamper v. Finnigan. Finally, there is the issue of whether the same question has been decided.
[8] In my reasons of 11 March 1998 I characterized the main issue, an issue not being one which I found already answered, or found to be a question of law, as what, in the view of the Defendants, constituted the Band custom as to elections. In the present instance the Plaintiffs motions for particulars, 4 February 1998, and the present motion, are identical. The Plaintiffs' statement of issues is, in a sense, an attempt to have the Defendants volunteer their positions first whether band elections are governed by custom, second, the terms of the governing custom, third whether the October 1997 election was in accordance with custom and finally, if that election deviated from custom, did the deviation result in the election being invalid. The statement of issues, by which the Plaintiffs seek to obtain the position of the Defendants, is similar, in the sense of sameness, to the particulars sought on both motions. In the light of my earlier decision on the point it would improper to require either particulars of custom or answers to the statement of issues now sought, for the Plaintiffs are estopped on the issue by reason of the Order of 9 February 1998 and the Reasons of 11 March 1998, together with the appeal of that Order which resulted, on appeal, in a 24 March 1998 Order and Reasons of Mr. Justice Noël.
[9] To the extent that the Plaintiffs take a slightly different approach in arguing the present motion for particulars and refer to new case law, (case law which in my view is distinguishable) the doctrine of estoppel by matter of record, or res judicata, applies not only to matters actually in dispute, but also to any point which a party might, with due diligence, have brought forward at the time of the previous hearing. This concept is based on the principle that there must be an end to litigation, even in the case of interlocutory wrangling, for motions, as with actions, ought not to be dealt with piecemeal, either motion upon motion or action upon action, for such amounts to an abuse: see for example Borley v. Fraser River Harbour Commission (1995) 92 F.T.R. 275 at 279.
[10] In reaching this decision, as to issue estoppel, I have considered but have not needed to deal with various of the Defendants' additional submissions, including that the Plaintiffs have filed no material to indicate a need for particulars by reason of difficulty in understanding the issues, and that the direct question as to band electoral custom has not been put to put to Harry, Victor or Gilbert Chingee on discovery. The latter submission may technically be so, however I have read substantial relevant portions of the discoveries of Messrs. Harry, Victor and Gilbert Chingee: certainly counsel for the Plaintiffs was able to develop a good deal of testimony as to band electoral custom and the view of those witnesses as to the legality of the October 1997 election, albeit with many inconsistencies. I turn now to Parts B, C, and D of the Plaintiffs' motion, dealing with answers to questions from the discoveries of those three defendants.
ANSWERS TO DISCOVERY QUESTIONS
[11] The Plaintiffs attempted to examine the Defendant Band members on financial matters, including the building of a home for Gilbert Chingee and the transfer of very substantial amounts of Band money and assets, even up to the day before the disputed election. The Plaintiffs also wish to ask discovery questions of Harry Chingee, relating to documents produced on the discovery of Gilbert Chingee, showing various payments including payments to Gilbert Chingee, Harry Chingee, Sheila Chingee and Charles Chingee. The Plaintiffs say these questions are relevant because the Defendants, in their counter-claim, alleged the Plaintiffs called the October 1997 election in order to forestall the completion of an audit into the affairs of the Band and of its related enterprise Duz Cho Logging Ltd. In effect the Defendants say the Plaintiffs called the election for an improper purpose.
[12] The Defendants' position, as to the discovery questions, is first that if curtailment of the audit was the Plaintiffs' motive for holding an election, as set out in the Defendants counter-claim, surely the motive driving the Plaintiff to hold the election was that there might have been disclosure of financial improprieties on the part of the Plaintiffs. Thus the only relevant financial transactions are those related to the Plaintiffs and not to the Defendants. Second, and still dealing with financial questions, Defendants say the results of any audit are irrelevant as the Court earlier denied the Plaintiffs' request for a court-ordered forensic audit as irrelevant to the litigation. Third, as to questioning Harry Chingee on documents produced during the discovery of Gilbert Chingee, the Defendants submit that the discovery of Harry Chingee has been concluded.
[13] As to discovery of the Defendant Band members, the issue of the audit, as curtailed by reason of the election, is raised not only in the counter-claim, but also in the Plaintiffs' defence to counter-claim. In the former it is an allegation that the Plaintiffs wished to forestall an independent audit undertaken by the Defendants in order to examine the affairs of the Band and of Duz Cho Logging Ltd. In the latter, the Plaintiffs say the audit was not one done by a qualified and competent chartered accountant, that the auditor's report was flawed and that it resulted in the unnecessary appointment of a receiver-manager, a cost which the Plaintiffs, as Chief and Councillor of the Band wish to recover from the Defendants as former Chief and Councillors.
[14] A better view is that paragraph 6 of the counter-claim and paragraphs 2 and 3 of the defence to counter-claim put in issue the question of what might an audit have discovered. An audit might have disclosed financial impropriety by either the Plaintiffs or the Defendants or by both and thus lend support, to one degree or another, to the case of either the Plaintiffs or the Defendants. Questions on examination for discovery as to financial matters, would thus be relevant to the facts pleaded in either the counter-claim or the defence to counter-claim. The questions as the Plaintiff now wishes to ask of Gilbert Chingee and Victor Chingee about financial matters may fairly lead to a train of inquiry that may directly or indirectly either advance the Plaintiffs' case or damage the Defendants' case and as such are relevant and must be answered. Here I would also note that the standard of propriety of questions on discovery is lower than that for admissibility of evidence at trial: the standard is the relevance of information sought as related to the pleadings, with doubt, if such exists, to be resolved in favour of answering questions: see for example Sydney Steal Corporation v. The Omisalj [1992] 2 F.C. 193 at 197 - 199. It may well be that a trial judge, determining band electoral custom, will not be interested in allegations of financial mismanagement, however the issue is clearly raised by the pleadings.
[15] As to the Defendants' submission that the Court, having declined to order a forensic audit, the whole issue of financial wrongdoing or mismanagement should be out of bounds, a forensic audit is a very different thing from questions relevant on the basis of the pleadings, seeking evidence as to the actions and motives of parties in transferring assets.
[16] The questions about the financial dealings must be answered by Gilbert Chingee and Victor Chingee, of course subject to the parties, through their counsel, abandoning portions of their pleadings in order to drop allegations of financial mismanagement and get back to the narrow central issue raised in the statement of claim, that of band custom and the propriety of the October 1997 election.
[17] Finally, dealing with further examination of Harry Chingee, on a number of documents dealing with financial transactions, which were Exhibits 5, 6, 7, to the discovery of Gilbert Chingee, it is apparent, from the transcript that the discovery of Harry Chingee was concluded, notwithstanding the Court reporter's notation of adjournment. Moreover, my understanding is that the Plaintiffs brought the present motion not prematurely, in the midst of their discovery of the Defendants, but on the basis that they had conclude discovery, subject to additional documents being produced and to outstanding questions, and were still not, in their view, satisfied as to particulars.
[18] To require Harry Chingee, whose discovery has been concluded, to answer further questions, the Plaintiffs must establish a special reason to do so. Here I have in mind Rule 235 which provides that "Except with the leave of the Court, a party may examine for discovery any adverse party only once.". This rule is a watering down of what was, until about 1990, Rule 465(19) which required special reason in an exceptional case in order to obtain further discovery. The present form of the rule, however, ought not to be interpreted so as to easily allow further discovery, once an examination has been concluded, for discovery must, at some point, come to an end. In the present instance I would deny further discovery because the material on which counsel wishes to examine was available at the time of the discovery of Harry Chingee and, with diligence, might have been to him at that time.
SUMMARY
[19] That portion of the motion dealing with further particulars is dismissed. The Defendants, Gilbert Chingee and Victor Chingee, shall answer those questions dealing with financial matters which are set out in the motion. The Defendant Harry Chingee need not be produced for further discovery pertaining to Exhibits 5, 6 and 7 of the examination for discovery of Gilbert Chingee.
[20] This motion was well argued. The briefs of argument, documents and cases were particularly helpful. I thank counsel for being well organized.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
8 May 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2327-97
STYLE OF CAUSE: Alec Chingee, and others,
Plaintiffs,
- and -
Harry Chingee, and others,
Defendants.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF JOHN A. HARGRAVE, PROTHONOTARY
dated May 8, 1998
APPEARANCES:
Mr. Christopher Harvey for Plaintiff
| Mr. Stan Ashcroft for Defendant |
SOLICITORS OF RECORD:
Mr. Christopher Harvey
| Russell & DuMoulin for Plaintiff |
| Mr. Stan Ashcroft |
| Ganapathi, Ashcroft for Defendant |
George Thomson for DIAND and AGC
Deputy Attorney General
of Canada