Date: 19980310
Docket: T-2327-97
BETWEEN:
ALEC CHINGEE, SHARON SOLONAS,
TANIA SOLONAS, ELIZABETH SOLONAS,
and PATRICK PRINCE in their capacity as Chief
and Councillors of the McLeod Lake Indian Band,
Plaintiffs,
- and -
HARRY CHINGEE, VICTOR CHINGEE, GILBERT CHINGEE,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS,
and THE ATTORNEY GENERAL OF CANADA,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of the Plaintiffs' motion for particulars, as to the election custom of the McLeod Lake Indian Band, heard and denied 9 February 1998. The Plaintiffs, in their Statement of Claim, plead a valid October 1997 Band election based on election custom in the abstract. In response to this plea the Defendants set out, in their Defence, that the October 1997 election was unlawful and not in accordance with the custom of the Band and that the present incumbents hold no office as they were elected neither in accordance with Band custom nor in any other lawful manner.
[2] The Plaintiffs seek particulars, which I will paraphrase, of various pleas in the Defence as follows:
| (1) as to paragraphs 2 and 3 of the Defence, the Defendants' view of what constitutes the Band custom as to elections; |
| (2) who deemed the Plaintiff, Elizabeth Solonas, to have resigned as councillor and the authority relied upon; |
| (3) why the termination of the Band manager, the Defendant Gilbert Chingee, was unlawful; |
| (4) why the appointment of Peter Prince, as Chief Electoral Officer was unlawful; |
| (5) the length of time the Defendants Harry Chingee and Victor Chingee, Chief and Councillor, would remain as such and what might bring an end to their term of office; and |
| (6) How Patrick Prince and Arlene Solonas ceased to be Councillors of the Band, referring to paragraph 5 of the counterclaim. |
[3] The motion was well argued but, in my view, did not present any critical or novel issues that might warrant reasons. In the present instance, the parties, particularly the Plaintiffs, have submitted, in other proceedings in this action, that time is of the essence in getting this matter to trial. In such a situation, a reserved decision and carefully crafted reasons would have been counter-productive. Moreover, the workload of the Court is such that there is not always time available to prepare considered reasons to explain every interlocutory decision: indeed, "If reasons were given in every interlocutory motion, the court's progress would grind to a halt." (Beloit Canada Ltd. v. Valmet Oy, unreported reasons of Mr. Justice Collier, 28 October 1986, in action T-851-83). In this instance I had not intended to provide reasons. However, my decision is under appeal. The Plaintiffs' appeal was adjourned in order that the Plaintiffs might request these reasons.
[4] Some of the requests for particulars may be dealt with briefly. The second particular, who deemed Elizabeth Solonas to have resigned and identifying the authority relied upon, has been answered, albeit in a circular fashion, there being no deeming authority Elizabeth Solonas merely having resigned in accordance with the custom of the Band. This is something for exploration on discovery, not for further particulars, a point which I will touch on shortly. Counsel for the Defendants takes the view, correctly in my opinion, that points 3, 4, and 5, although partly answered in various affidavits, are questions of law and not properly the subject of a request for particulars, which are to compel disclosure of material facts, not legal argument: C.S.I. Manufacturing and Distribution Inc. v. Astroflex Inc. (1993), 45 C.P.R. (3d) 195 at 197 (F.C.T.D.). Counsel also makes the valid point, which I will touch on later, that the Plaintiffs' request for particulars of custom embodies the determinations which the trial judge must make once he or she has heard the evidence and thus, in effect, the Plaintiffs now seek the final argument of counsel for the Defendant to the judge. As to the sixth item, how it is that Arlene Solonas and Patrick Prince ceased to be a lawful Councillors of the Band, that is clearly set out in the affidavit of Harry Chingee, filed 17 November 1997 at paragraph 5(b) and the affidavit of Larry Gilbert Chingee, filed 7 November 1997 at paragraph 5: those two councillors were removed because they failed to attend council meetings. Thus the motion, reduced to its basic outstanding element, is for particulars of Band electoral custom.
[5] The particulars of election custom requested are not for pleading, but rather are for trial and as such could be quite detailed. A party is certainly entitled to know the case of the other side before trial. The election custom of the band is discussed at some length in the affidavits of Harry Chingee and Larry Gilbert Chingee, referred to above. There may however, be further material as to custom. The conventional view is that I should not assume there will be discovery, before trial, at which to thoroughly further explore the Defendants' views as to Band electoral custom. However, discovery is such an important aspect of modern litigation practice that it would be naive in a case such as this to imagine that Band election custom, which is key to the outcome, will not be a main topic for exploration during the discovery process. Here it would be useful to touch upon a basic difference between particulars and discovery. Particulars, before pleading, are to allow a party to plead intellegently. Particulars for trial are required for greater clarity in defining the issues to be tried. Discovery has a purpose distinct from particulars: it is to enable the opposite party to know the case he or she will be called upon to meet and to simplify the trial by obtaining admissions: Brennan v. Jack Posluns & Co. Ltd. (1959), 30 C.P.R. 106 at 110, a decision of Chief Justice McRuer, Ontario High Court. In the present instance, the issue critical to the Plaintiffs' case and one which has been clearly defined by the pleadings, is electoral custom. The Plaintiffs and the Defendants should now get on with examinations for discovery in order to determine the case to be met and, to the extent possible, to obtain admissions.
[6] If, following completion of discoveries, the Plaintiffs continue to have difficulty in understanding the issues to be tried, they may bring a further demand for particulars: Smith Kline & French Laboratories Ltd. v. Lek Tovarna Farmacevtskih In Kemichnih Izdelkov N. Sol. O. (1985), 4 C.P.R. (3d) 257 at 258 (F.C.T.D.). In this instance if the Plaintiffs are unable, following discovery, to prepare their case for trial they may apply again for particulars.
[7] There is, however, a more basic reason for denying the Plaintiffs particulars of Band electoral custom. The plea by the Defendants of custom in the first two paragraphs of their Defence is a denial of the Plaintiffs' allegation, in their Statement of Claim, an allegation which the Plaintiffs will have to prove as a part of their case. It has long been established that a traverse by a defendant, even one in the form of an affirmative, so long as it is in substance a traverse of the other side's allegation, does not give rise to a right to particulars: Weinberger v. Inglis, [1918] 1 Ch. 133 at 138. In Weinberger the plaintiff was turned down in his bid to be re-elected as a member of the stock exchange. The defendants raised only one affirmative plea, that they acted bonafide and honestly in exercising their duty and did not re-elect the plaintiff because they did not deem him eligible to be a member of the stock exchange. The court pointed out that the plea of the defendants, even though it was affirmative, was in substance a traverse of the plaintiff's allegation, a plea which the plaintiff must prove in order to succeed and as such did not give rise to a right to particulars, this being so even though the traverse amounted to a wide and undefined positive. The judge pointed out the defendants might properly leave the plaintiff to prove his own case.
[8] In the present instance the Plaintiffs say they were elected in accordance with the custom of the Band. It is up to them to establish, to a judge, that such is the case. The Defendants are merely putting the Plaintiffs to the proof of their case and need not give the Plaintiffs help by admitting it. The present instance is not one which falls within the further principle that a traverse, although negative in form, may be a negative pregnant with an affirmative and thus require particulars: see Pinson v. Lloyds and National Provincial Foreign Bank, Ltd., [1941] 2 K.B. 72 at 80, 84 and following (C.A.). Rather the present traverse is a denial of an allegation. It is a denial into which one ought not to read an affirmative allegation beyond that necessarily implied from the traverse, as it is for the Plaintiffs to convince the trial judge that they are the newly and validly elected Chief and Councillors, elected "in accordance with the custom of the Band" (to quote paragraph one of the Statement of Claim) and therefore particulars ought to be refused: see for example Duke's Court Estates, Ltd. v. Associated British Engineering, Ltd., [1948] Ch. 458. Counsel for the Defendants puts this idea slightly differently by saying it should be for the trial judge to decide the custom on which the Plaintiffs base their case, but it amounts to the same thing: no particulars will be ordered of a traverse in the form used by the Defendants.
[9] I also considered whether particulars, at this point, might indirectly make the trial judge's task easier, for Band electoral custom will certainly be key to a decision. I rejected this idea for rather than be presented with carefully drafted answers, by way of particulars, it should be for the trial judge to hear evidence of custom in the words of the witnesses themselves. In this way the trial judge may observe the witnesses, assess the way in which they give their evidence of custom and then come to a conclusion.
[10] In conclusion, there are two other thoughts which formed a basis for denial of this motion, initially without reasons. First, pleadings, including particulars, should be kept brief. A party ought not to be required to provide particulars containing detailed facts which should more properly be presented at trial as evidence: Cercast Inc. v. Shellcast Foundries Inc., [1973] F.C. 28 at 38. Second, for me to order the Defendants to give particulars of the custom of the McLeod Lake Indian Band, as to elections, would be to shift the onus from the Plaintiffs to the Defendants. That is improper. There will be no particulars.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
March 10, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: February 9, 1998
COURT NO.: T-2327-97
STYLE OF CAUSE: Alec Chingee et al.
v.
Harry Chingee et al.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated March 10, 1998
APPEARANCES:
Mr. Robert Lonergan for Plaintiff
Mr. Stan Ashcroft for Defendant
Mr. Gerald Donegan for AGC
Ms. Laura Donaldson for Receiver Manager
SOLICITORS OF RECORD:
Russell & DuMoulin for Plaintiff
Vancouver, BC
Ganapathi Ashcroft & Company
Vancouver, BC for Defendant
George Thomson for AGC
Deputy Attorney General
of Canada