Date: 20010926
Docket: A-39-01
Neutral citation: 2001 FCA 282
CORAM: Desjardins J.A.
BETWEEN:
CHIEF VICTOR BUFFALO, acting on his own behalf and on behalf
of all of the other members of the Samson Indian Nation and Band
- and -
THE SAMSON INDIAN BAND AND NATION
Appellants
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
and THE MINISTER OF FINANCE
Respondents
AND:
CHIEF JEROME MORIN, acting on his own behalf as well as on behalf of
all of the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE
RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
Respondents
AND:
EMILY STOYKA and SARA SCHUG
Respondents
Heard at Vancouver, British Columbia, on September 24, 2001
Judgment delivered from the Bench at Vancouver, British Columbia, on September 24, 2001
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
Date: 20010926
Docket: A-39-01
Neutral citation: 2001 FCA 282
CORAM: Desjardins J.A.
BETWEEN:
CHIEF VICTOR BUFFALO, acting on his own behalf and on behalf
of all of the other members of the Samson Indian Nation and Band
- and -
THE SAMSON INDIAN BAND AND NATION
Appellants
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
and THE MINISTER OF FINANCE
Respondents
AND:
CHIEF JEROME MORIN, acting on his own behalf as well as on behalf
of all of the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE
RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
Respondents
AND:
EMILY STOYKA and SARA SCHUG
Respondents
REASONS FOR JUDGMENT
[1] This is an appeal from a written order of Teitelbaum J. who, during the course of a trial, excluded as inadmissible the expert report of Mr. James Youngblood Henderson tendered by the Appellants.
[2] We are all of the view that this Court is without jurisdiction to pronounce on the evidentiary ruling made by the Trial Judge. Section 27 of the Federal Court Act provides:
|
27.(1) Appeals from Trial Division - An appeal lies to the Federal Court of Appeal from any (a) final judgment, (b) judgment on a question of law determined before trial, (c) interlocutory judgment, or (d) determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada, of the Trial Division |
27.(1) Appels des jugements de la Section de première instance - Il peut être interjeté appel, devant la Cour d'appel fédérale, des décisions suivantes de la Section de première instance: a) jugement définitif; b) jugement sur une question de droit rendu avant l'instruction; c) jugement interlocutoire; d) jugement sur un renvoi d'un office fédéral ou du procureur général du Canada |
[3] In Saint John Shipbuilding & Dry Dock Co. v. Kingsland Maritime Corp. [1979] 1 F.C. 523, this Court decided it was without jurisdiction to hear an appeal from an order of a Trial Judge delivered orally during the course of a trial where he refused to permit the introduction and the marking as an exhibit of a letter from the Respondent during the cross-examination of a witness by the Appellant. After having quoted section 27 of the Federal Court Act, Urie J.A. for the Court made the following comment at 526-527:
Clearly, no "final judgment" within the defined meaning of that term in section 27 has ever been pronounced. Nor has there been any interlocutory judgment pronounced. It does without saying that, since the so-called order in issue was made during the course of trial, there has not been a judgment on a question of law determined before trial. What the learned Trial Judge did here, as Trial Judges are called upon to do in practically every trial, was to rule whether or not certain evidence proposed by a party to be adduced, was admissible or not. The transcript discloses that after argument by counsel, he ruled, orally, that the letter in issue was not admissible and the trial proceeded to its conclusion, at least in so far as the adducing of evidence was concerned. He neither pronounced nor delivered any judgment nor any order which, at this stage, would give this Court jurisdiction to hear an appeal. After final judgment has been pronounced, his ruling may become a ground of appeal, but it cannot, of itself, before judgment, do so.
While the absence of a written judgment delivered and pronounced in accordance with the Federal Court Act and the rules of Court is fatal, even if a Trial Judge were to reduce his rulings on matters arising during the course of trial to writing, they would not, in our view, provide the basis for an appeal. The Trial Judge is the master of the proceedings in his Court after the commencement of a trial. His rulings during the course thereof, whether reduced to writing and signed by him or not, cannot form the subject matter for appeals until he has pronounced his judgment on the matters put in issue by the pleadings.
This case has been later applied in The Queen v. Wayne Perry [1982] 2 F.C. 519, Farmer Construction Ltd. v. Canada (F.C.A.) [1983] F.C.J. No. 417, and Lubrizol Corp v. Imperial Oil Ltd.., [1994] 55 C.P.R. (3d) 141.
[4] We understand it to be the authority which governs the case at bar. This appeal will therefore be quashed with costs payable by the Appellants to the Respondents (Defendants) only.
(Sgd.) "Alice Desjardins"
J.A.
Vancouver, British Columbia
September 26, 2001
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-39-01
STYLE OF CAUSE: Chief Victor Buffalo et al. v. HMQ et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 24, 2001
REASONS FOR JUDGMENT BY DESJARDINS, J.A.
CONCURRED IN BY: DÉCARY, J.A., SEXTON, J.A.
DATED: September 26, 2001
APPEARANCES:
James O'Reilly, Ed. Molstad, Q.C. FOR THE APPELLANTS
Alan Macleod, Q.C. and J. Bazant FOR THE RESPONDENTS
SOLICITORS OF RECORD:
O'Reilly & Associés (Montreal) FOR THE APPELLANTS
Parlee McLaws (Edmonton)
Macleod Dixon (Calgary) FOR THE RESPONDENTS