Date: 20030902
Docket: T-1525-00
Citation: 2003 FC 1018
BETWEEN:
SHUBENACADIE INDIAN BAND, on behalf of itself and its members and
ALEXANDER PETER MCDONALD, LEON RUSSELL ROBINSON,
CHAD ROBIN ROBINSON, JOHN PETER PAUL, PETER ALLEN PAUL,
VANDORA LEE PAUL, GENEVIEVE ROSE MARIE JOHNSON,
HOLLY LYNN MCDONALD, MARK LAWRENCE HOWE,
JASON WAYNE MARR, ROLAND DOUGLAS MARR,
FRANCIS ISAAC MARR, JOHN MICHAEL MARR (known as
"Johnny" Marr), EDWARD JOSEPH PETER-PAUL,
JAMES BERNARD JOHNSON, LYN SACK, in her capacity as
Administrator of the Estate of Carl Joseph Sack, AMY ETHEL MALONEY,
MARIE ELIZABETH ROBINSON, GREGORY CHRISTOPHER PAUL,
DAVID WAYNE MACDONALD, DONALD JEANS,
FRANKLIN BENJAMIN SMITH, JOHN MICHAEL MARR
(Known as "John" Marr), STEPHEN MAURICE PETER-PAUL,
GLENDON BROOKS and ELLEN ROBINSON,
Plaintiffs
- and -
MINISTER OF FISHERIES AND OCEANS (CANADA),
MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT (CANADA)
and HER MAJESTY IN RIGHT OF CANADA,
Defendants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
LFA DISTRICT 34 LOBSTER COMMITTEE,
ATLANTIC FISHING INDUSTRY ALLIANCE,
CONFEDERACY OF MAINLAND MI'KMAQ and
UNION OF NOVA SCOTIA INDIANS,
Interveners
Docket: T-1250-01
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members
Plaintiff
- and -
MINISTER OF FISHERIES AND OCEANS (CANADA),
MINISTER OF INDIANS AFFAIRS AND
NORTHERN DEVELOPMENT (CANADA),
and HER MAJESTY IN RIGHT OF CANADA,
Defendants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
LFA DISTRICT 34 LOBSTER COMMITTEE,
ATLANTIC FISHING INDUSTRY ALLIANCE,
CONFEDERACY OF MAINLAND MI'KMAQ and
UNION OF NOVA SCOTIA INDIANS,
Interveners
Docket: T-953-02
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members
Plaintiff
- and -
MINISTER OF FISHERIES AND OCEANS (CANADA),
MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENTS (CANADA)
and HER MAJESTY IN RIGHT OF CANADA,
Defendants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
LFA DISTRICT 34 LOBSTER COMMITTEE,
ATLANTIC FISHING INDUSTRY ALLIANCE,
CONFEDERACY OF MAINLAND MI'KMAQ and
UNION OF NOVA SCOTIA INDIANS,
Interveners
REASONS FOR ORDER AND ORDER
[1] This is a motion brought pursuant to Rule 369 of the Federal Court Rules, 1998, by the interveners, LFA District 34 Lobster Committee and Atlantic Fishing Industry Alliance, seeking an order to have the plaintiffs' representative attend for discovery by the interveners. The motion is not supported by an affidavit and, except in the most general terms, does not indicate the questions to be dealt with on such discovery. The Crown's discovery of the plaintiffs' representative, at least as far as regards matters of concern to the interveners, is substantially complete.
[2] In the order dated April 12, 2002 granting the interveners leave to intervene, I specifically reserved the question of discovery rights : "The rights of the interveners at discovery and at trial may be dealt with at a later date as may become necessary and by way of motion either to the case management judge or in due course to the trial judge."
[3] In my view, it is clear from the terms of that order that if the interveners were to seek and obtain rights of discovery, they would have to demonstrate the need therefor. At a minimum, this would require a showing that the examinations conducted by the parties had not adequately explored some areas of unadmitted allegations of fact in the pleadings. (Statements of intervention are, of course, not "pleadings" within the meaning of the Rules and the allegations in them can give rise to no discovery rights.) It was for this reason that I suggested during a case management conference that the interveners might wish to submit discovery questions by way of written interrogatories so that their relevance and necessity could be assessed, a suggestion which they have ignored. Instead, the interveners have simply assumed they are entitled, as of right, to unlimited rights of discovery on virtually any subject of interest to them. As I have indicated, that is a wrong assumption. The motion, even assuming that it had the necessary supporting affidavit, which it does not, fails altogether to demonstrate any need for the relief sought.
O R D E R
The motion is dismissed.
Judge
Ottawa, Ontario
September 2, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1525-00
STYLE OF CAUSE: Shubenacadie Indian Band et al v. Minister of Fisheries and Oceans et al
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: September 2, 2003
WRITTEN SUBMISSIONS BY:
Mr. Tom Hart FOR THE INTERVENERS LFA District 34 Lobster Committee and Atlantic Fishing Industry Alliance
Mr. Bruce H. Wildsmith FOR PLAINTIFFS
Mr. Reinhold M. Endres FOR DEFENDANT CROWN
SOLICITORS ON THE RECORD:
McInnes Cooper
Halifax, NS FOR THE INTERVENERS LFA District 34 Lobster Committee and Atlantic Fishing Industry Alliance
Bruce H. Wildsmith
Barss Corner, Nova Scotia FOR PLAINTIFFS
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT CROWN