Date: 20001128
Docket: T-2204-93
BETWEEN:
SHIRLEY MARIE YELLOWBIRD
Plaintiff
- and -
CHIEF AND COUNCIL SAMSON CREE NATION No. 444
and SAMSON CREE NATION NO. 444
Defendants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS
Defendants
REASONS FOR ORDER
(Delivered from the bench at Edmonton, Alberta
on November 23, 2000)
HUGESSEN J.
[1] This is an application by the defendant band to extend time and for leave to file a third party claim against its co-defendant Crown. It is unusual in this respect, it is normal in any application to extend time for the moving party to explain as best he or she can the reasons for the delay in not having acted earlier. In this particular case, there is no explanation offered and indeed there really is no explanation that can be offered than a simple oversight. It is quite clear that band new what position it wanted to take vis-à-vis the Crown many months ago because it took that position in proceedings in two other actions which are moving forward in tandem with the present one. It remains, however, that explanation or no, the ultimate test must always be fairness, it simply would not be fair to deny the band the opportunity to make the assertions which it makes in the two parallel cases in the present case.
[2] The Crown can suffer no prejudice from the fact of this third party claim being filed, there is no argument put forward that is not already well known to the Crown and I therefore propose to grant leave.
[3] There is, however, one other aspect to the matter, one of the other tests on an application to extend time is that the moving party must show that there is an arguable case. The proposed third party claim contains certain paragraphs which are identical to paragraphs in the third party claim in the case of Martel and which I struck out on an application by the Crown over a year ago. Those paragraphs will have to be removed from the third party claim. I understand that the order that I made a year ago or more is presently under appeal and there may be some change in that situation as a result of whatever the Court of Appeal decides to do, but as matters presently stand, the third party claim may be filed but excepting those paragraphs which were struck in the Martel claim.
[4] I think it is normal and proper that the moving party on an application of this sort should bare the costs of the application.
Judge
Ottawa, Ontario
November 28, 2000