Date: 20020619
Docket: T-66-86A
Neutral citation: 2002 FCT 693
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 Calgary, Alberta
on Tuesday, June 18th, 2002)
[1] I have before me four motions one by each of the Plaintiffs in each action and one by the Intervener, the Native Council of Canada (Alberta) in each action. All the motions seek leave to put interrogatories in the case of the Plaintiffs to each of the Interveners and in the case of the Intervener, Native Council of Canada (Alberta), to each of the Plaintiffs and Defendant by way of examination for discovery.
[2] I start from the proposition which in my view is undoubted that none of the moving parties may demand as of right to conduct a discovery of the type proposed or indeed any discovery at all. I follow that observation immediately however by saying that it is equally clear to me that the leave to conduct a discovery or discoveries of the type sought may be granted as a matter of discretion. I think that was stated both expressly and by necessary implication in a number of previous Orders and Reasons for Orders which have been made not only by me but by other Judges in this file and I think it also flows quite clearly from the terms of Paragraph 3 of Rule 109 as well as from the more general powers which are vested in me as Case Management Judge.
[3] The reason there is no right to discovery by or of Interveners is of course that the Rules themselves limit discoveries to parties and define the relevance of questions on examination for discovery by reference to the pleadings. Interveners are not parties. That has been stated many times and I say it again without any hesitation. I also say and notwithstanding representations to the contrary made by Plaintiff's counsel that the statements of intervention which have been filed are not pleadings. They do not fall within the definition of pleadings in Rule 2. They are not amongst the listed pleadings in Rule 171 and they do not give rise to the kind of allegation of fact which lends itself to examination for discovery.
[4] If there is to be an Order for examination for discovery by or of an Intervener that Order therefore must be seen as being an exceptional order one which is out of the course of the ordinary. It was ably suggested to me by more than one Intervener during argument that in fact I should apply the criteria which are set out for the examination of non-parties in Rule 238. I do not have to decide whether Rule 238 actually applies in the circumstances here where it is sought to examine Interveners or to conduct examinations by Interveners but I am inclined to think that it does not. That said, however, I do think Rule 238 and 239 make it quite clear that examination for discovery of non-parties is a wholly exceptional remedy. And that means that anyone who moves for leave to conduct such an examination has the burden of persuading the Court that it is necessary for the just, expeditious, least expensive, and above all fair disposition of the case that such examination should be allowed.
[5] I have examined the questions, the interrogatories which have been proposed both by the Plaintiffs with respect to all the Interveners and by the Intervener, Native Council of Canada (Alberta) with respect to Plaintiff and Defendant. I am not persuaded that they are necessary within the context that I have just described. Some of the questions and I need not go any further or say which ones, might in fact be perfectly proper questions on an examination for discovery of a party, or by a party, but in my view they are not necessary questions to allow this case to move forward.
[6] The strongest argument put forward by Plaintiffs' counsel is that Plaintiff may suffer prejudice if it is not allowed to explore with each of the Interveners. The implicit allegations of fact (for that is what they are, they are not express allegations of fact for the most part;) contained in the statements of intervention. As I say I am not persuaded that they will suffer such prejudice. There is already in place and it is common ground that the Order in place will require each of the Interveners to file full witness statements well in advance of trial, to indicate what parts if any of the transcript at the earlier trial they may intend to make use of, and to file whatever expert reports they intend to rely on.
[7] That filing will not of itself give any Intervener the right to lead the proposed evidence because I think it is equally clear from previous Orders that the overriding discretion of the Judge at trial will alone determine what evidence the Interveners may lead. In those circumstances I am simply not persuaded that there would be any prejudice or any surprise whatever to any Plaintiff by any evidence which an Intervener might succeed in leading at trial.
[8] There is more however. It is my view that a number of the questions proposed to be asked, and this is especially the case with the questions which are proposed by the Plaintiffs to be put to the Interveners, are extraordinarily burdensome and would require a vast amount of work. Simply by way of example, one question which is proposed to be put to each Intervener is to say whether that Intervener agrees or disagrees with every single one of the answers given by the Crown in the Plaintiff's discovery of the Crown's representative. I am afraid I don't know how many thousands of documents and pages of discovery have already taken place and there are more to come, but to require the Interveners, each of them, to fine tooth comb all that material with a view to saying whether or not they agree with every single thing that the Crown's representative has said would not only be extraordinarily burdensome. It would serve no purpose to anybody.
[9] Finally, and this too plays a large part in my exercise of discretion. This case has not had an easy path to date, and I do not see it having an easy path in the next months and years as we strive, all of us, to bring it on to trial. I do not impute motives to anybody because I accept that all parties and the Interveners have a genuine interest in having the case tried. I accept that unreservedly but if these interrogatories were allowed to stand, they would inevitably and beyond any shadow of doubt add enormously to the time, already far too long, which would be required between now and the date when finally the Plaintiffs will stand and open their case before the Trial Judge.
[10] In the result I am going to dismiss all of the motions. I do not think that this is the case or that this is an occasion to make an Order as to costs. The Plaintiffs have been invited to make the motion that they made. It was the only way we could solve the matter and if there are to be any costs I think that they should simply be in the event
"James K. Hugessen"
Judge
Calgary, Alberta
June 19, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020619
Docket: T-66-86A/
T-66-86B
T-66-86A
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
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86A and T-66-86B
STYLE OF CAUSE: T-66-86A Bertha L'Hirondelle and others -v-
Her Majesty the Queen -v- Native Council of Canada
(Alberta) and others
T-66-86B Bruce Starlight and others v. Her Majesty
the Queen -v- Native Council of Canada (Alberta) and
others
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: June 18, 2002
REASONS FOR ORDER OF: HUGESSEN, J.
DATED: June 19, 2002
APPEARANCES:
Mr. Martin J. Henderson
Ms. Catherine Twinn
Ms. Christina Midbo FOR PLAINTIFFS
Mr. Frederick Fenwick
Ms. Kathleen Kohlman FOR DEFENDANT, Crown
Mr. Michael J. Donaldson FOR INTERVENER Non-
Ms. Janna Gates Status Indian Association of
Alberta
Mr. Jon Faulds FOR INTERVENER Native
Council of Canada (Alberta)
- 2 -
Ms. Mary Ebert FOR INTERVENER Native
Women's Association of Canada
SOLICITORS OF RECORD:
Aird & Berlis
Toronto, Ontario FOR PLAINTIFF B. Starlight
Catherine Twinn FOR PLAINTIFF B.
Slave Lake, Alberta L'Hirondelle
Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT Crown
Burnet Duckworth & Palmer FOR INTERVENER Non-
Calgary, Alberta Status Indian Association of
Alberta
Field Atkinson Perraton FOR INTERVENER Native
Edmonton, Alberta Council of Canada (Alberta)
Eberts Symes Street & Corbett FOR INTERVENER Native
Toronto, Ontario Women's Association of Canada