Federal Court Decisions

Date: 20020522

Docket: T-617-85

Neutral citation: 2002 FCT 583

BETWEEN:

MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo,

Rema Rabbit, Carl Rabbit and Darrell Strongman,

suing on their own behalf and on behalf of all other members

of the Montana Indian Band, all of whom reside on the

Montana Reserve No. 139, in the Province of Alberta.

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                                                                                                                                       

                                                                              - and -

SAMSON BAND, Chief Victor Buffalo, and Larron Northwest,

Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo,

Raymond Lightning, Stan Crane, Lawrence Saddleback,

Todd (Chester) Buffalo, Arnup Louis, Lester B. Nepoose,

Jim Omeasoo, and Robert Swampy, Councillors of the

Samson Band, sued on their own behalf

and on behalf of the members

of the Samson Band of Indians,

                                                                                                                                               Third Parties

                                                                              - and -

ERMINESKIN BAND, Chief Eddie Littlechild and Ken Cutarm,

Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee,

Arthur Littlechild, Richard Littlechild, Emily Minde,

Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe,

Councillors of the Ermineskin Band, sued on their

own behalf and on behalf of the members of the

Ermineskin Band of Indians.

                                                                                                                                               Third Parties

                                                                             - AND -

                                                                                                                                         Docket: T-782-97

BETWEEN:

CHIEF FLORENCE BUFFALO acting on her own behalf

and on behalf of all the members of the

SAMSON CREE NATION AND BAND

- and -

THE SAMSON CREE NATION AND INDIAN BAND

                                                                                                                                                        Plaintiffs

                                                                              - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

and Her Majesty the Queen in Right of Canada as

represented by the MINISTER OF INDIAN AFFAIRS

AND NORTHERN DEVELOPMENT Parliament

Buildings, Ottawa, Ontario

                                                                                                                                                    Defendants

                                                                             - AND -

                                                                                                                                       Docket: T-2804-97

BETWEEN:

ERMINESKIN CREE NATION and Chief Gerald Ermineskin,

Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening,

Carol Margaret Wildcat, Carol Elizabeth Roasting,

Glenda Rae White, Craig Alton Makinaw, Councillors of the

Ermineskin Cree Nation, suing on their own behalf and on

behalf of the ERMINESKIN CREE NATION

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                                    HER MAJESTY THE QUEEN and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                    Defendants

                                               REASONS FOR ORDER AND ORDER

HUGESSEN J.

[1]                 This is a motion brought by the plaintiff, Ermineskin Band, pursuant to Rule 75 seeking leave to further amend its Statement of Claim in action T-2804-97 (with corresponding amendments to its Reply in that action) and its Statements of Defence as a Third Party in actions T-617-85 and T-782-97, wherein the Montana and Samson Bands are the respective plaintiffs. Both the Crown, as defendant in all three actions, and Montana Band, as plaintiff in action T-617-85, object to the motion.

[2]                 The case involves three principal actions : the first, brought by the Montana Band in 1985, seeks to obtain for that Band the subsurface rights to that Band's Reserve lands, IR 139, originally set aside for the Bobtail Band. The second two actions, brought only in 1997 by the Samson and Ermineskin Bands, assert their own similar rights in those same Reserve lands. Each Band's action has spawned third party claims by the Crown against each of the other two Bands. There are accordingly nine separate lawsuits before the Court. The issues are complex and intimately intertwined. All actions have been the subject of intensive case management and have been ordered to be tried together. The first stage of the trial, dealing with events up to and including the surrender and transfer agreements of June 1909 by which IR 139, formerly held for the Bobtail Band, became the Montana Band's Reserve, is scheduled to start in mid-September of this year and is estimated to last about six months. The discovery process has been extensive. The Ermineskin Band and the Crown have disclosed approximately 1,460 and 3,837 documents or bundles of documents respectively. The Crown's interrogatories included 1,047 written questions (not including sub-questions). The Court, in its case management capacity, has intervened on many occasions and has attempted to keep matters moving forward through a series of interlocutory judgments. Discovery is now substantially complete.

[3]                 The Ermineskin Band has already amended its Statement of Claim twice - once on March 13, 2001 and again on April 18, 2002. This is therefore its third attempt.

[4]                 The proposed new amendments are substantial. (I wholly disregard throughout these reasons, except when considering the question of costs, Ermineskin Band's irregular and most improper attempt to "bootleg" further amendments to its own proposed amendments in the course of its written submissions in Reply). Their principal thrust, beyond what is alleged in the pleadings to date, is that at the time of surveying Reserves 137, 138 and 139 in 1885, the Indians who would inhabit those Reserves were all members of a single group that was represented by Chief Bobtail and was known as the Maskwachees or Bear Hills Cree. This group had collectively selected its common Reserve lands, yet far from being already composed of three distinct Bands, was made up of three informal sub-groups that were only subsequently recognized as the Bobtail, Samson and Ermineskin Bands by the Crown which allocated to each its own Reserve lands. Furthermore, while in the current pleadings, the Ermineskin Band refers to and claims its collective, communal, customary and treaty interest in the Bobtail Reserve, the only explicit manner in which that interest is alleged to have arisen or have been acquired is through the subsequent "assimilation" of Bobtail members into the Ermineskin (and Samson) Bands, when they joined and were accepted as members of those Bands in about 1887 following the dispersal of most of Bobtail's members around the time of the North-West Rebellion. By contrast, the amended pleadings suggest that what happened at that time was that the Bands were "amalgamated," a very different concept in law carrying very different consequences, not the least of which would be the continued existence of the Bobtail Band with all its rights to IR 139 intact. In addition, the proposed amendments allege that both before and after the creation of their respective Reserves, all three Bands continued to use their Reserves collectively and in common and that this was consistent with Cree customs and traditions giving rise to some sort of joint right by all three Bands in all three Reserves.    Such rights would, of course, date back to at least the creation of those Reserves or perhaps even to the adherence of Chief Bobtail to Treaty 6 in 1877 and would not, as in the present pleadings, date only from the time the Bobtail members were accepted into the other two Bands some 10 years later.

[5]                 It would be difficult to overestimate the importance of these changes. They are not merely "technical" or "housekeeping" matters but go to the very basis of the Ermineskin Band's claimed rights. Nor is there any merit to the Ermineskin Band's suggestion that they are merely "particulars" of the claim as presently asserted : if that were the case, the amendments would not be necessary. Particulars are not given for the benefit of the party providing them but at the request of the opposing party for the purpose of allowing it to plead over. The Ermineskin Band's argument that the proposed amendments flow from their answers to some of the Crown's interrogatories is also misplaced : the relevance and admissibility of interrogatories are determined by the pleadings, not the other way around. The Trial Judge will of course be the arbiter of whether or not any answers to interrogatories are relevant and admissible at trial but the mere fact that answers have been given does not make them automatically relevant.

[6]                 Given the manner and pace at which this litigation has progressed to date, I have absolutely no doubt that, if these proposed amendments are allowed, they will require substantial pleadings over by the other parties and lengthy additional discovery, either oral or by way of interrogatories. They will also require important changes to the instructions to, and existing opinions given by, the experts retained by the parties. In my view, allowing these amendments would make it impossible to hold the trial of the first phase on the scheduled date ; it would require an adjournment of at least one year and probably much longer given the difficulty of finding and assigning scarce judicial resources.

[7]                 The law is clear : amendments should be allowed unless they cause a prejudice which cannot be compensated by an award of costs. The present is a classic example of such non-compensable prejudice. Every amendment to pleadings will of course cause some delay but some delays are far more consequential than others. Where one is virtually on the eve of a lengthy and major trial, whose date has been known and anticipated for many months, the preparation for which has been the subject of close and intensive cooperation between counsel and the Court extending over a period of years and where the issues are many and complex and the proceedings involve numerous parties, there is simply no way in which an order for costs could possibly provide adequate compensation for the loss of the trial date. Indeed, even the attempt to assess the costs that would have been thrown away by the anticipated delay of this trial would be well-nigh impossible. And costs, even on the highest scale, can, as their name implies, only compensate for the moneys spent in preparing for and conducting the trial ; they cannot include the substantial damages that an ultimately successful party suffers by being denied what is due to it for a further period of months or years.

[8]                 I have anxiously considered attempting to devise some kind of Order which, while allowing the proposed amendments would still allow the trial to start on the scheduled date or at least shortly thereafter. One alternative would be to set the parties a very tight time line that would get the pleadings closed and new discoveries completed by early fall. I do not consider that such an Order would be possible while still doing justice to all sides. The nature and scope of the proposed amendments, the complexities of the case and the experience we have all gained over the past years clearly indicate that this is not a dossier that can be rushed. Nor should it be.

[9]                 The other possibility that I have considered is that of severing the Ermineskin Band's case from that of the other two plaintiffs and allowing the other two trials and related third party claims to go forward as scheduled. That simply cannot be done ; not only is the Ermineskin Band involved in each file as a third party defendant, but their presence is essential in the principal actions of each of the other two plaintiffs in order to permit a complete solution to all of the questions in issue. In effect, all three plaintiffs are claiming more or less the same rights in the same piece of territory and it is that very fact which led me to order that the actions be consolidated in the first place.

[10]            I conclude that the motion to amend must be dismissed. On the question of costs, I am of the view that there can be no valid excuse for the bringing of the motion at such a late date. As a plaintiff, the Ermineskin Band has had years to ponder and consider the basis on which it should place its claim. It has already made two amendments thereto, although neither of them is of anything approaching the significance of what is now proposed. It says that it has been too busy up to now with the preparation of answers to interrogatories, oral histories and expert reports to consider the advisability of amending ; that is no excuse . If the Ermineskin Band has been unable or unwilling to devote the necessary resources to this litigation, which it has itself commenced, it must bear the consequences of that. And the fact that the case has been under intensive management for a long time makes it more, not less, inexcusable that it should have delayed making these amendments until now. I have already commented on its improper attempt to amend its own motion to amend at the Reply stage, a tactic which I consider to be an abuse of the Court's process. I shall order that it pay the costs of this motion fixed in the amount of $10,000 divided equally to Montana Band and the Crown, forthwith and in any event of the cause. (The amount would have been much higher if the motion had not proceeded under Rule 369, thus avoiding the necessity of an oral hearing).

ORDER

The motion is dismissed. The Ermineskin Band shall pay costs of $5,000 to each of the Montana Band and the Crown, forthwith and in any event of the cause.

                                                                                                                                                                                                                                               

                                                                                                                                                               Judge                        

Ottawa, Ontario

May 22, 2002