Date: 20040629
Docket: T-66-86B
Citation: 2004 FC 934
Ottawa, Ontario, this 29th day of June, 2004
Present: The Honourable Justice James Russell
BETWEEN:
TSUU T'INA FIRST NATION
Respondent
and
HER MAJESTY THE QUEEN
Applicant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
BACKGROUND
[1] In his pre-trial order of March 26, 2004, Mr. Justice Hugessen required, inter alia, that any "amendments to the pleadings shall be on leave obtained on motion brought pursuant to Rule 369 on or before May 18, 2004."
[2] In response to this edict, the Crown seeks leave to amend the Statement of Defence ("Crown Motion") and the Tsuu T'ina First Nation ("Band") has brought a motion for leave to amend its Fresh As Amended Statement of Claim ("Band Motion").
Context
[3] Besides the jurisprudence that deals with amendments to pleadings, the particular context in which these motions to amend have been brought has to be kept in mind. Certain amendments are necessary because of decisions by Mr. Justice Hugessen to change the style of cause and sever actions. These are merely housekeeping amendments that, of necessity, are required to reflect a state of affairs that already exists because of Mr. Justice Hugessen's decisions.
[4] But Mr. Justice Hugessen, who has been case managing this action, has also made it clear that, apart from questions arising out of new documentary productionwhich are to be by written interrogatories following leave by Motion pursuant to Rule 369, the time for discoveries is over and this matter is going to trial in January 2005. Hence, any suggested amendments, or failures to amend, that raise new issues and/or positions that will require further discoveries and/or responses that could upset the established timetable are highly undesirable at this stage in the long and arduous life of this action.
[5] These particular considerations need to be kept in mind when addressing each motion.
The Crown Motion
[6] The Crown says that the Crown Motion for leave to serve and file an Amended Statement of Defence is intended to determine the real issues of controversy in the action and to allow for a full and fair trial by:
a) incorporating admissions made by the Crown at examination for discovery;
b) reflecting the positions taken by the Crown through the course of discovery and interlocutory matters; and
c) correcting minor errors in the pleadings.
[7] The Band does not oppose many of the amendments proposed by the Crown but does object where new allegations are raised that have not been subject to discovery, or where the Crown is, in effect, changing its position of no knowledge to that of asserting a factual basis for denial and there has been no opportunity to examine the Crown with respect to the facts underlying the denial, or where the proposed amendment sets out what is, in reality, a legal argument. The Band also responds to the Crown Motion in the Band Motion by seeking leave "to address the suggestion by the crown (sic) that the right has not been plead with sufficient particularity."
[8] The Non-Status Indian Association of Alberta ("NSIAA") has responded to the Crown Motion but makes no submission "except to note the motion is likely moot if amendments to the Statement of Claims are permitted, as this would give the crown (sic) the right to file an Amended Statement of Defence in any event."
[9] The Court understands NSIAA's position on the Crown Motion to be that it does not oppose the proposed amendments but shares the Court's concerns that the Crown Motion and the Band Motion have to be considered and disposed of together so that a workable solution can be found that will not result in further legal skirmishing that will impede the progress towards trial in accordance with the timetable that has been established.
[10] I am considerably heartened by the responses to the Crown Motion by both the Band and the NSIAA because, even if we disagree over application, I can see in those responses (and this is true also of the Crown response to the Band Motion) a clear acknowledgment that any further escalation of this action that will take us outside of the parameters already set by Mr. Justice Hugessen should be avoided if at all possible.
[11] The test in determining whether amendments to pleadings ought to be allowed is now well established. As the Crown points out, it was approved and summarized by Justice Malone in a recent Federal Court of Appeal decision:
Rule 75 of the Federal Court Rules, 1998 provides for applications to amend pleadings, if such amendments are on terms which "will protect the rights of all the parties." The test under Rule 75 is that set out by this Court in Canderel Ltd. v. The Queen ... where it was stated that an amendment should be allowed "at any stage of an action," subject to three provisos: the amendment must be made for the purpose of determining the real questions alive between the parties; amendment would not prejudice to [sic] the opposing party in a manner not compensable with costs; and the amendment must serve the interests of justice. Further, the nearer the end of the proceeding, the more difficult it becomes to prove an amendment does not work an injustice.
Richardson International Ltd. v. Mys Chikhacheva (The) 2002 FCA 97; [2002] F.C.J. 97 at para. 48
[12] It is generally accepted that a proposed amendment should be allowed in the absence of prejudice to the opposing party and that, on a motion to amend a pleading, the Court should assume the facts pleaded in the amendment are true. See Rolls Royce plc v. Fitzwilliam (2000), 10 C.P.R. (4th) 1, 2000 CarswellNat 2973 (F.C.T.D.).
[13] It is also well settled that amendments based on discovery which refocus and particularize points in controversy are usually considered to facilitate the trial of an action and to help determine the real points in controversy. See, for example, Hoechst Marion Roussel Deutchland Gmbtt v. Adir et Cie (2000), 190 F.T.R. 233, 2000 CarswellNat 967 (T.D.).
[14] It has also been recognized (and this is particularly important in the context of this action) that factors relevant to determining whether an amendment would cause prejudice not compensible in costs include the state of the proceedings, the extent to which the amendment could delay an expeditious trial, and the extent to which the position of the opposite party in its pleadings and arguments would be undermined by the amendment. See, for example, Yeager v. Canada (Correctional Services) (2000), 189 F.T.R. 196, 2000 CarswellNat 711 (T.D.).
[15] I have carefully reviewed the amendments to the Statement of Defence proposed by the Crown in the Crown Motion. Applying the jurisprudence, and bearing in mind the objections raised by the Band and the particular context of this action, I am of the view that the amendments proposed by the Crown are acceptable except for the following:
- the amendments to paragraph 4 should not be allowed except for the change from plural to singular in the last line;
- the amendments to paragraph 6 should not be allowed except for the changes from plural to singular;
- the amendments to paragraph 11 should not be allowed except for the change from plural to singular;
- in paragraph 16, the deletion of "no knowledge" should not be allowed;
- in paragraph 17, the deletion of "says that he has no knowledge as to whether, and" in the second and third lines should not be allowed;
- the amendments to paragraph 18 should not be allowed except that the Crown may add that it also repeats and relies upon paragraph 13 and may make the required change from plural to singular;
- the amendments to paragraph 19 should not be allowed;
- the amendments to paragraphs 20(a), 20(b) and 20(d) should not be allowed;
- the amendments to paragraph 24 should not be allowed except for the changes from plural to singular;
- the amendments to paragraph 26 should not be allowed except for the changes from plural to singular;
- the amendments to paragraph 28 (previous paragraph 29) should not be allowed except for the clarification of the Crown's position on the interpretation of the constitutional provisions in question and the position on gender equality rights, which is permissible;
- the amendments to paragraph 32(b) should not be allowed except for the change from plural to singular;
- the amendments to paragraph 33 should not be allowed except for the change from singular to plural.
[16] In not allowing these amendments, I place little store in the Band's assertion that the Crown is changing its position of no knowledge to that of asserting a factual basis to deny. Most of the paragraphs already say, in any event, that the Crown does not admit the allegations of the Band and paragraph 1 of the Statement of Defence contains a general denial. I just do not think that any further clarification of the Crown's position is needed at this stage.
[17] As regards objections to amendments made by the Band that I do not agree with, my reasons are as follows:
- in relation to paragraph 8, it seems to me that the proposed amendment does not introduce new allegations that would require further discovery but is, rather, a genuine clarification and response of the Crown's position as already provided to the Band in answer to Undertakings Nos. 18 and 21 and that clarifies the issues in dispute.
- in relation to the proposed new paragraph 30, I am of the view that this does not introduce new allegations or a change of position but is, once again, a genuine response to Undertakings Nos. 88 and 109 that clarifies the issues in dispute.
- as regards paragraph 32(a), it seems to me that the proposed changes are helpful in that they clarify the Crown's position, but there is a change from denial to justification that justifies a further explanation. Hence, I am disposed to permit the amendment but allow the Band to pose further written interrogatories on the changes to 32(a) should the Band feel this is necessary;
- as regards paragraph 20(c), I do not see any change from no knowledge to denial. The Crown is now relying on irrelevancy;
- as regards the addition of paragraph 35, my review of the file leads me to the conclusion that such a summary grows out of the discovery process and previous motions that have been brought by the Crown on the issues now encapsulated in the proposed wording. As such, it is a genuine response to the position taken by the Band and a clarification for the Court concerning real issues of controversy between the parties that have emerged during the progress of this action. The history of the file shows that the Band is well aware of the Crown's position, has had ample opportunity to address the allegations made and, in my view, is not prejudiced by a clear statement of the Crown's case at this stage.
The Band Motion
[18] The Band offers several reasons for its proposed amendments:
a) grammatical and syntactical amendments are necessary to the pleadings to deal with the fact that Mr. Justice Hugessen amended the title to the proceedings and severed the actions so that T-66-86A and T-66-86B are now separate actions that will be heard concurrently;
b) other amendments are required to deal with allegations made in the Crown Motion and the Crown's suggestions that the Band's pleadings lack specificity in some respects.
[19] The Crown's response to the Band Motion takes no issue with the housekeeping amendments proposed by the Band but objects to other amendments because they seek to broaden and/or enlarge the Band's claim at a late stage in the proceedings and will inevitably result in future delays that will jeopardize the established timetable.
[20] NSIAA's response to the Band's proposed amendments once again takes no issue with the merely technical amendments that grow out of Mr. Justice Hugessen's decisions to change the style of cause and sever actions. However, NSIAA takes strenuous objection to other amendments on several grounds and points out that they will inevitably delay a trial that has taken years to organize.
[21] Before considering the Band's proposed amendments against Rule 75 and the governing jurisprudence, the Court has to take note of the fact that, in support of the Band Motion, the Band offers the affidavit of its own counsel, despite previous comments of Mr. Justice Hugessen criticizing this practice.
[22] The Band has sought leave of the Court to file its solicitor's affidavit. However, as the responses of both the Crown and NSIAA make abundantly clear, some of the Band's proposed amendments are highly contentious and, looked at objectively, I think Band counsel should have appreciated this.
[23] In view of the history of this file, and the long road that lies ahead, I think it is best to make it clear to all parties that practices and procedures that do not accord with the Federal Court Rules, 1998 are not acceptable. Consequently, the affidavit of Counsel for the Band, in so far as it strays beyond mere housekeeping and non-contentious issues, is not acceptable and cannot be relied upon in the Band Motion.
[24] Fortunately, this does not really work to the disadvantage of the Band because the history of the file and the record are such that any amendments to the pleadings that flow from the decision of Mr. Justice Hugessen are self-evident and the Crown and NSIAA take no issue with them. And on the contentions issues, even if I were to accept the affidavit, I would find the proposed amendments unacceptable for the reasons given below. In any event, the Court must assume that any facts pleaded in the amendments are true.
[25] The allegations made by the Crown in the Crown Motion concerning lack of specificity in some of the Band's assertions grow out of the discovery process and various motions that have been undertaken as part of the progress of this dispute. The Band is well aware that there are issues that have arisen as this action has moved along. It is perfectly obvious that the Band does not agree with the Crown's position as stated in the proposed paragraph 35 and a simple amendment to the Band's pleadings to this effect was all that was required in the circumstances. The Band has already had its opportunity in past motions and correspondence to address the Crown's complaints about lack of specificity in full in the sense of producing particulars that will allow the Court to ascertain the real issues between the parties and the particulars of its position. The Band has failed to avail itself of these opportunities and cannot now claim that amendments to its pleadings are required to answer what the Band now alleges is nothing more than "a demand for particulars" by the Crown.
[26] The contentious aspects of the Band's proposed amendments are objectionable for several reasons:
a) some of the proposed amendments to paragraph 8 conflict with previous rulings made by this Court that the Plaintiff in the action is the Band itself in its own right; and
b) some of the amendments would have the effect of enlarging the nature of the action and would bring in a new claim of self-determination; and
c) some of the amendments would further broaden the claims by raising allegations about first nations other than the Band.
[27] In my view, the objectionable amendments I will later refer to do not clarify and focus issues for the Court. They raise new and contentious issues that will require further discovery and will further delay the trial. The late stage at which these amendments are proposed, their number and importance, the degree to which previously held positions are changed, and the inevitable prejudice that will result to the Crown (see Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2004] F.C.J. No. 670, 2004 FC 528 at para. 10) convinces me that these amendments should not be allowed. In addition, some of them are just not relevant to the issues in dispute. As NSIAA points out, the effect of some of the amendments proposed by the Band would be "to put the Crown on trial for all of its conduct with respect to all First Nations in Canada. A trial that is now anticipated to take months could end up taking years to resolve." In addition, other amendments would "substantially expand the scope of this action and raise issues where there has been no discovery" in a context where "the amendments add nothing substantive to the Plaintiff's claim that it has an aboriginal right to determine its own membership ... ." In fact, it seems to me that the words "First Nation" now mean the plaintiff Band and only the plaintiff Band. No purpose is really served by having two different terms ("plaintiff" and "First Nation") to refer to the Band even though I have no real objection to this if the Band wishes to use both terms.
[28] The Court also shares the concerns raised by NSIAA in relation to some of the non-housekeeping amendments proposed by the Band that are improper because they are an attempt to plead irrelevant similar fact evidence without pleading any special nexus between those facts and the central allegation in this case which is that the Crown has infringed the Band's right to determine its own membership. As NSIAA says, the "delay that will inevitably result from these expansive amendments creates prejudice that is not compensable."
[29] In his Order of May 26, 2003, Mr. Justice Hugessen provided that each action would "continue in the name of the plaintiff First Nation and the style of cause is amended to read as in the present order."
[30] That order requires the text of the pleadings to be read as though the Band is now proceeding separately and this, by necessity, requires some housekeeping amendments to be made to the pleadings to reflect this fact.
[31] Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, provides that "any amendments to the pleadings shall be on leave obtained on motion brought pursuant to rule 369 on or before May 18, 2004" and certainly does not prohibit amendments other than those dealing with housekeeping matters, but it would seem reasonable to expect that, as part of any motion to amend, the Band would at least have ensured that the perfunctory and inevitable changes required to reflect Mr. Justice Hugessen's order of May 26, 2003 would have been addressed. The fact that the Band Motion does not deal with all such required changes does not, in my view, alter the fact that the Band is now proceeding separately and the pleadings must be read in that light and all changes to the text that flow from Mr. Justice Hugessen's order must be read into the pleadings. The Crown and NSIAA cannot be placed at a disadvantage merely because the Band has failed to seek leave to serve and file amendments that necessarily flow from Mr. Justice Hugessen's order of May 26, 2003 within the time set by the Pre-Trial Order of March 26, 2004. Looked at another way, where actions have been severed and the style of cause changed so that there is only one plaintiff, a failure to pick up that change in the body of the pleadings is itself an amendment that must be justified and Rule 75 makes it quite clear that the Court may allow amendments "on such terms as will protect the rights of the parties."
[32] The Crown Motion and the Band Motion both request "such further and other relief as this Honourable Court" deems just. Consequently, in light of Mr. Justice Hugessen's Order of May 26, 2003 and the injustice that might occur to the Crown if it were not made clear that the text of the pleadings must now be read with all changes made necessary by that order, it is my view that this matter must be dealt with as part of the order in these motions by the Crown and the Band.
[33] I have carefully reviewed the proposed amendments to the Band's Fresh as Amended Statement of Claim. Applying the jurisprudence, and bearing in mind the objections raised by the Crown and NSIAA and the particular context of this action, I am of the view that the amendments proposed by the Band are acceptable except for the following:
- in paragraph 8, the failure to change "First Nations" to "First Nation" and the addition of the words "who have applied to and have been or are recognized as its members are" should not be allowed;
- in paragraph 10, the addition of the words "to self-government of the" should not be allowed;
- in paragraph 11, the addition of the words "its own matters" and the addition of the second-last sentence at the end of the paragraph which reads "The correct characterization of the specific right claimed in this regard, is that the First Nation or band community has the right to self-determination or self-government, including the right to have its own political processes, institutions and decision-making structures for the governance of its internal affairs" should not be allowed;
- in paragraph 12, the addition of the words "self-determination or" and "whatever other elements such right of self-determination or self-government contains" in the last sentence of the paragraph should not be allowed;
- in paragraph 14, the addition of the words "and freedom to control its own affairs" in the last sentence should not be allowed;
- in paragraphs 20, 21, 22 and 23(f) all additions and/or references to include First Nations other than the plaintiff should not be allowed;
- in paragraphs 4, 7, 8, 26(b), 26(c), 26(d) and subparagraphs 26(e)(i), (ii), (iii), (iv), (vi), (vii), (viii), where "First Nations" has not been changed to the singular "First Nation" (and therefore the meaning of the pleadings has changed to include First Nations other than the plaintiff) the change should not be allowed;
- in paragraph 5, the addition of the words "traditional territory and the" should not be allowed;
- in paragraph 15, the addition of the words "as it had done prior to treaty in accordance with its own institutions, customary laws and traditions" should not be allowed.
ORDER
THE COURT HEREBY ORDERS that:
1. Leave is granted to the Crown to serve and file an Amended Statement of Defence in the form attached to the affidavit of Christine Hall that accompanies the Crown Motion except for those proposed amendments not allowed and referred to in the reasons to this Order at paragraph 15;
2. Leave is granted to the Band to serve and file an Amended Fresh As Amended Statement of Claim in the form that accompanies the Band Motion except for those amendments not allowed and referred to in the reasons to this Order at paragraph 33;
3. The Band shall amend its Fresh as Amended Statement of Claim throughout by changing all references to "First Nations" plural to "First Nation" singular and any minor grammatical changes which this change necessitates to accord with orders already made by Mr. Justice Hugessen to change the style of cause and sever actions;
4. The Band shall have the right, should it deem it necessary, to proceed with written interrogatories against the Crown but only in relation to those amendments allowed under the Crown's Motion to paragraph 32(a) of the Amended Statement of Defence.
"James Russell"
JFC
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-66-86B
STYLE OF CAUSE: TSUU T'INA FIRST NATION
Respondent
- and -
HER MAJESTY THE QUEEN
Applicant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
Motion in writing pursuant to Rule 369
REASONS FOR ORDER
AND ORDER BY: RUSSELL J.
WRITTEN SUBMISSIONS
BY: Philip Healey, Martin Henderson
Lori Mattis
For the Plaintiffs
Kathleen Lohlman, Janell Koch
For the Defendant, Crown
Mr. Michael Donaldson
For the Intervener, Non-Status Indian Association of Alberta
Mary Eberts
For the Intervener, Native Women's Association of Canada
SOLICITORS OF RECORD:
Aird & Berlis
Toronto, Ontario
For the Plaintiffs
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant, Crown
Burnet Duckworth Palmer
Calgary, Alberta
For the Intervener, Non-Status Indian Association of Alberta
Eberts Syms Street & Corbett
Toronto, Ontario
For the Intervener, Native Women's Association of Canada