Date: 20030207
Docket: T-66-86A
Neutral Citation : 2003 FCT 135
BETWEEN:
BERTHA L'HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
(Delivered from the bench in Toronto
on Thursday, February 5, 2003)
[1] I have before me this morning two motions or, more accurately, a motion and a cross-motion which are themselves both interlocutory or incidental to another interlocutory motion which was brought by the Crown. That motion, the Crown's motion, was made on November 1st, 2002 and has yet to be presented. Its conclusions are in the nature of interlocutory, declaratory and injunctive reliefs and I here set out the first 2 paragraphs of the prayer for relief:
THE MOTION IS FOR:
a. An interlocutory declaration that, pending a final determination of the Plaintiff's action, in accordance with the provisions of the Indian Act, R.S.C. 1985 c. I-5, as amended, (the "Indian Act, 1985") the individuals who acquired the right to be members of the Sawridge Band before it took control of its own Band List, shall be deemed to be registered on the Band List as members of the Sawridge Band, with the full rights and privileges enjoyed by all band members;
b. In the alternative, an interlocutory mandatory injunction, pending a final resolution of the Plaintiffs' action, requiring the Plaintiffs to enter or register on the Sawridge Band List the names of the individuals who acquired the right to be members of the Sawridge Band before it took control of its Band list, with the full rights and privileges enjoyed by all band members;
[2] At a case management conference held in Edmonton following the hearing of some other unrelated motions in this case in December 2002, the question of the scheduling of the Crown's motion was spoken to and in consultation with counsel for plaintiffs and the Crown, I set a schedule for the filing of responding materials and motion records and the like with today and tomorrow being set as the return dates for the Crown's motion.
[3] Some of the interveners were present or represented at that case management conference but they did not participate in that scheduling discussion and the consequence was that when the interveners sought to file evidentiary materials in support of their position which, be it said, is supportive of the Crown's motion, the plaintiffs objected. We held a quickly convened case management conference by telephone on January 17, 2003 at which I listened to the plaintiffs objection and I also pointed out that, in my view, the interveners, whatever their status in the action itself might be, were not "parties" to the Crown's motion as that term is defined in Rule 2 of the Federal Court Rules, 1998. That rule makes it absolutely plain that a person who is not named as a respondent to a motion is not a party to that motion.
[4] Out of that case management teleconference held last month come the two motions which I have before me today and regrettably also came an adjournment of the Crown's motion which was to have been heard today.
[5] The first motion is by the interveners seeking leave to do what they tried to do last month in the teeth of the plaintiffs' objection, and the second is a cross-motion brought by the Crown seeking leave to amend its interlocutory motion, that is the November 1st motion, to add the interveners as parties respondent.
[6] I am going to allow both the motions, but I want to say as little as possible about my grounds for doing so. The principal objection raised by the plaintiffs to having the interveners file the evidence that they are proposing to file goes to the relevancy, and cogency, and perhaps also to the credibility of that evidence. I have, on a previous occasion, in this very case, commented on the undesirability of having interlocutories within interlocutories and these present motions, although I think they are an exception to that rule in the sense that they are necessary, point up how undesirable the situation could be. I will not comment on what the plaintiffs have said about the interveners' proposed evidence because I think I must reserve to the plaintiffs the right to make those comments on the return of the Crown's motion and I think it would be wrong for me to foreclose them for doing so at this stage. The most I can say is that the proposed evidence is not obviously and patently irrelevant and may have a bearing, and may be of some help to me when I come to decide the Crown's motion on the well-known issues of balance of inconvenience and irreparable harm. I really cannot carry the matter any further than that.
[7] An Order will issue accordingly.
Judge
Ottawa, Ontario
February 7, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-66-86A
STYLE OF CAUSE: Bertha L'Hirondelle et al v. Her Majesty the Queen et al
DATE OF HEARING: February 6, 2003
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: February 7, 2003
APPEARANCES:
Philip Healey, Catherine Twinn
and Lori Mattis FOR PLAINTIFFS
Kathleen Kohlman FOR DEFENDANT, CROWN
Kenneth Purchase FOR INTERVENER, NATIVE COUNCIL OF CANADA
Jon Faulds FOR INTERVENER, NATIVE COUNCIL OF CANADA (ALBERTA)
Michael Donaldson FOR INTERVENER, NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Mary Eberts FOR INTERVENER, NATIVE WOMEN'S ASSOCIATION OF CANADA
SOLICITORS ON THE RECORD:
Aird & Berlis
Toronto, Ontario FOR PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT, CROWN
Lang Michener
Ottawa, Ontario FOR INTERVENER, NATIVE COUNCIL OF CANADA
Field Atkinson Perraton
Edmonton, Alberta FOR INTERVENER, NATIVE COUNCIL OF CANADA (ALBERTA)
Burnet Duckworth Palmer
Calgary, Alberta FOR INTERVENER, NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Eberts Syms Street & Corbett
Toronto, Ontario FOR INTERVENER, NATIVE WOMEN'S ASSOCIATION OF CANADA