Date: 20000210
Docket: T-66-86A
BETWEEN:
BERTHA L"HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
Plaintiffs (Respondents)
- and -
HER MAJESTY THE QUEEN
Defendant (Applicant)
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
- AND -
Docket: T-66-86B
BETWEEN:
BRUCE STARLIGHT suing on his own behalf and
on behalf of all other members of the Sarcee Band
Plaintiffs (Respondents)
- and -
HER MAJESTY THE QUEEN
Defendant (Applicant)
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
REASONS FOR ORDER
(Delivered orally from the Bench in Toronto,
Ontario on Thursday, February 3, 2000)
HUGESSEN J.
[1] I have before me for decision two subsidiary or incidental motions both brought in the context of a main or principal motion which has been brought by the plaintiffs and which seeks to strike out the intervention by the interveners or to limit the participation of the interveners in the trial which is eventually to take place in these matters. I do not have that principal motion before me at this moment, but it is scheduled to be heard on April 20, 2000.
[2] The two subsidiary motions which I do have before me are as follows:
| - First, a motion by the interveners in which they seek to strike out the affidavit of Clara Midbo filed by the plaintiffs in support of their main motion; |
| - Second, a motion by the plaintiffs in which they seek leave to examine representatives of the interveners in connection with the main motion. |
[3] All motions are brought in these two files which are an outgrowth of an original single file in which a trial was held, a judgment rendered and that judgment ultimately set aside by the Court of Appeal on the grounds of reasonable apprehension of bias on the part of the trial judge.
[4] Since the decision of the Court of Appeal, the nature of the action has arguably been changed. There has been a substantial amendment to the statement of claim and there have been a number of interlocutory orders rendered by myself as case management judge which have had the effect of dividing the actions of the two remaining plaintiffs and striking out the action of a person who was a third plaintiff in the original action.
[5] Dealing first with the motion brought by the interveners that the affidavit of Clara Midbo should be struck out as it is an improper affidavit within the meaning of the Rules, I may say that upon examination of that affidavit, I have no doubt whatever that it is improper. It is replete with conclusory and argumentative allegations, almost all of them being on matters of law as to which the deponent is not apparently qualified. I set out below, simply by way of example, paragraphs 3 and 4 of the affidavit in which the deponent attempts to interpret the pleadings, the Rules and various orders that have been made in this case, something which she is eminently unqualified to do and something which is clearly not a matter for evidence in any event:
| "3. The issue in this case is who has the constitutional authority and jurisdiction to determine band membership. I am advised by counsel, and verily believe, that although the original trial interveners" (i.e, NCC (now CAP), NCC(A) and NSIAA representatives have made public comments and court submissions to the contrary, this case, as defined by the parties" pleadings, is clearly not about whether the Indian status provisions of the Indian Act are valid. Attached hereto as Exhibit "A" is a copy of a newspaper report from the Lakeside Leader dated July 16, 1986. The issue to be decided in this case is whether Parliament or Canada"s First Nations communities have the power to determine their memberships, requiring the Court to determine the aboriginal and treaty rights of the plaintiffs in the context of s. 35. The case does not, and properly should not in any way involve the Court in examining how First Nations or Parliament might exercise their jurisdiction to determine membership in any particular case or in the future. |
| 4. The proposed interveners rely on rule 369. I am advised by counsel that while this rule is designed to serve the Court"s and parties" common interest in promoting practicality and efficiency, and reducing expense, it does not dispense with the fundamental requirement that applications to the Court require a proper evidentiary record before they can be treated as procedurally correct or substantively meritorious. In connection with the participation herein of the trial interveners, they have been granted quasi-party status without any application or evidentiary record describing the appropriateness or scope of their intervention in these proceedings as presently constituted by the parties" pleadings. Moreover, NWAC has been accorded what amounts to quasi-party status without any application or evidentiary record, and despite failing to apply for intervener status in the first trial. A review of the history of the participation of the interveners serves to illustrate the plaintiffs" complaints." |
[6] That said, I have not been persuaded that the affidavit should be struck. In my view, in a sane modern procedure, irregularities in proceedings should not be made the subject of motions and should not require the Court to give orders striking out or correcting such irregularities unless the party attacking the irregularity can show that it suffer some sort of prejudice as a result thereof. I put that point squarely to counsel for the interveners and the only prejudice he was able to suggest to me that his clients might suffer was that the Court, when it hears the main motion, might be induced to believe that these highly tendentious allegations in the affidavit were uncontested matters of fact. I think that counsel is ascribing to the Court a degree of gullibility which I hope he is not justified in doing. Accordingly, absent any showing of prejudice and notwithstanding that almost all of the affidavit is irregular and should not be before the Court, I have no grounds that would justify me in striking it out. Counsel for the interveners admits readily that virtually every paragraph of the affidavit is proper argument and can properly be made by counsel for plaintiffs and indeed has been made by counsel for plaintiffs in his written submissions in support of the main motion. I am therefore going to dismiss the motion to strike the affidavit.
[7] I turn now to the second motion, that brought by the plaintiffs seeking leave to examine representatives of the interveners. As I understand the plaintiffs" position, they are of the view either that the original order given by Mr. Justice McNair over 10 years ago granting intervener status to the interveners is spent or void or no longer of any force and effect because of the intervening judgment of the Court of Appeal setting aside the decision in the first trial. Or, alternatively, that if that order is not spent or void, that it should now be revisited and reviewed because of things that have happened in the interval, including without limitation, the judgment of the Court of Appeal finding the first trial to have been tinted by a reasonable apprehension of bias and the subsequent amendment of the statement of claim and the subsequent orders which have been made and are now in place with respect to the trial.
[8] It seems to me that on either hypothesis the plaintiffs" motion must fail. If, indeed, the original order of Mr. Justice McNair is spent, that is a matter of legal argument, and no doubt the plaintiffs will assert that on the return of the main motion. There is no need for evidence, as the plaintiffs seem to think there should be, to show that the interveners have no continuing right to intervene. If the plaintiffs are right in the view they take of the thing, then it is for the interveners to show that the order of Mr. Justice McNair, although spent should be renewed. If they have failed to do so, they will lose. It is as simple as that. If, on the other hand, the plaintiffs second position prevails and it is thought that because of what has happened since the first trial, the situation is sufficiently changed that the order of Mr. Justice McNair should be revisited, and I make no comment on whether or not that may properly be done, there is no doubt in my view that the burden of making that showing lies squarely on the plaintiffs. And they must make that showing on their own evidence. If they have facts which justify the Court setting aside Mr. Justice McNair"s order, it is for them to bring those facts forward. They have no right on a motion of this sort or indeed, ever, simply to go on a fishing expedition, hoping that by forcing the interveners to testify they will hit upon something. The classic Dickensian hope that "something will turn up" is not a solid basis for an application to this Court for leave to examine a party on a motion. The right given in Rule 371 is restricted to special circumstances and there has been no showing of such circumstances in my view.
[9] I accordingly conclude that with respect to the second motion, it too, should be dismissed.
[10] As to costs, it is my view that on the first motion, the motion by the interveners, although the motion is unsuccessful, it was to some considerable extent justified by the wholly inexcusable affidavit which I have already described. I accordingly will dismiss that motion but without costs. With regard to the second motion, it is my view that the motion had no foundation in fact or law and that the interveners are entitled to their costs to be payable forthwith in any event of the cause. Such costs are fixed in the amount of $1,500 together with allowable disbursements.
"James K. Hugessen"
Judge
OTTAWA, ONTARIO
February 10, 2000