Date: 19980113
Docket: A-602-96
CORAM: MARCEAU J.A.
DESJARDINS
LÉTOURNEAU J.A.
BETWEEN:
RAYMOND CARDINAL, Chief and EDWARD MORIN,
CHARLES COWAN, ROMEO MORIN, ALEX PEACOCK
and ALPHONSE THOMAS, Counsellors of the Enoch Band
of the Stony Plain Indians for Themselves and on behalf
of the Indians of the Enoch Band of the Stony Plain Indians
Reserve No. 135, and The Enoch Band of the Stony Plain
Indians Reserve No. 135,
PLAINTIFFS
(Respondents)
- and -
HER MAJESTY THE QUEEN
DEFENDANT
(Appellant)
Heard at Edmonton, Alberta, on Monday and Tuesday, January 12 and 13, 1998.
Judgment delivered at Edmonton, Alberta, on Tuesday, January 13, 1998.
REASONS FOR JUDGMENT BY: MARCEAU J.A.
Date: 19980113
Docket: A-602-96
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
BETWEEN:
RAYMOND CARDINAL, Chief and EDWARD MORIN,
CHARLES COWAN, ROMEO MORIN, ALEX PEACOCK
and ALPHONSE THOMAS, Counsellors of the Enoch Band
of the Stony Plain Indians for Themselves and on behalf
of the Indians of the Enoch Band of the Stony Plain Indians
Reserve No. 135, and The Enoch Band of the Stony Plain
Indians Reserve No. 135,
PLAINTIFFS
(Respondents)
- and -
HER MAJESTY THE QUEEN
DEFENDANT
(Appellant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta,
on Tuesday, January 13, 1998)
MARCEAU J.A.
[1] We are all of the view that this appeal should succeed only in part.
[2] It is true that, in her application to strike out certain allegations of the plaintiff's Reply and Joinder of Issues as well as in her objection to let her selected officer answer questions put to him in the course of an examination for discovery, the defendant has relied on grounds that raised questions of law. The scope and extent of a previous order or judgment of a court of law, the binding effect of an agreement between litigants as to the issues involved and objections based on lack of relevancy are pure questions of law. But the decision of a motions judge or a prothonotary to refer a matter relating to the admissibility of an allegation in a pleading to the trial judge or to allow, during examination for discovery, a question despite a possibility that such a question may eventually be found to be irrelevant, is a discretionary one which will be set aside on appeal only if it appears to have been clearly wrong or made in a non-judicial manner.
[3] In our view, none of the rulings made by the prothonotary in dealing with the two motions brought before him have had the purpose or effect of disposing definitively of the legal objections raised. They were all based on the view that, at this juncture of the proceedings, giving effect to the objections or striking out pleadings would risk unduly limiting the litigation and would thereby be unwarranted. In any event, counsel for the respondents has not been able to persuade us that there was any reason for the motions judge to refuse to defer to the prothonotary's views where a mere refusal to dispose immediately of an issue relating to the scope of prior decisions was involved.
[4] It is true also that by refusing to close the door to certain lines of questioning which might turn out to be useless is not quite in keeping with the obvious requirement that an end be finally put to the preparation and pre-trial stage of the proceedings, but it seems to us that the limitations imposed by the prothonotary's ruling show that he was sufficiently sensitive to the most unusual situation in that respect. And it is true, finally, that the rules of Court are to be the same regardless of the parties involved. But, while the form of the respondents' pleadings and the way they put material before the Court, with affiants trying to breathe life back into issues put to rest by prior decisions or treating propositions of fact and propositions of law on the same level, are quite unorthodox and certainly not to be condoned, the rules have not been breached in such a way that the prothonotary should have been prevented from exercising his discretion to let the material in on the assumption that he himself, and even more so the trial judge, would not be wrongly influenced.
[5] Our reaction is, however, totally different with respect to the objections of the appellant to allegations of the Reply based on the fact that they stand in contradiction to the 1985 Agreement now on file. That such an agreement may be set aside for special reasons as to the admission of facts it contains is clear, but it cannot simply be ignored or said not to be binding. Counsel for the respondents explained before the prothonotary, and reiterated before us, that he just wants to preserve the possibility of bringing new evidence forward that could allow him to plead forgery with respect to the taking of the vote at the meeting convened for the purpose of the surrender. As the agreement does not specifically discard the possibility of the respondents pleading such forgery, and counsel for the appellant agreed not to dispute the respondents' ability to look into the issue, there appears to be nothing that the respondents could argue to seek the setting aside of the agreement and, indeed, they have not formulated such a request. The agreement is therefore legally binding and must be given full effect. There is no discretion involved here. Paragraphs 4 and 5(c) of the Reply and Joinder of Issues cannot be allowed to stand in view of that agreement and the prothonotary and the motions judge were wrong to decide otherwise.
[6] The appeal will therefore be allowed in part, the Order of the motions judge will be set aside in so far as it did not allow in part the appeal against the decision of the prothonotary by striking out paragraphs 4 and 5(c) of the Reply and Joinder of Issues. Costs shall be in the cause.
"Louis Marceau"
J.A.
FEDERAL COURT OF APPEAL
Date: 19980113
Docket: a-602-96
BETWEEN:
RAYMOND CARDINAL, Chief and EDWARD MORIN, CHARLES COWAN, ROMEO MORIN, ALEX PEACOCK and ALPHONSE THOMAS, Counsellors of the Enoch Band of the Stony Plain Indians for Themselves and on behalf of the Indians of the Enoch Band of the Stony Plain Indians Reserve No. 135, and The Enoch Band of the Stony Plain Indians Reserve No. 135,
PLAINTIFFS
(Respondents)
- and -
HER MAJESTY THE QUEEN
DEFENDANT
(Appellant)
REASONS FOR JUDGMENT
OF THE COURT