Date: 19991117
Docket: T-962-99
BETWEEN:
COUCHICHING FIRST NATION
NAICATCHEWENIN FIRST NATION
NICICKOUSEMENECANING FIRST NATION and
STANJIKOMING FIRST NATION
Applicants
- and -
HER MAJESTY THE QUEEN AS REPRESENTED BY
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
| [1] The Applicants brought the present motion seeking the following relief: |
| 1. An Order pursuant to Rule 312(a) granting the applicants leave to file the supplementary affidavit of Chief Kelvin Morrison, dated 22 July 1999, or such other supplementary materials as may be allowed. |
| 2. An Order pursuant to Rule 318(4) requiring the respondent to comply with Rule 317 requests all the records of the trust account maintained by the Department of Indian Affairs and all other relevant documents. |
| 3. Leave pursuant to Rule 75 to amend the Notice of Application. |
| 4. Extension of time for cross-examination on affidavits and filing of record. |
| 5. Costs of this motion on a solicitor and client basis filed on 17 August 1999. |
[2] After hearing the submissions of counsel, I dismissed the Applicants" motion orally with the exception of the request for an extension of time for cross-examination on affidavits which was granted. The following are my reasons.
[3] The background is set out in the affidavit of Kelvin Morrison dated June 8, 1999. The Applicants allege that they were owners of an Indian reserve which they surrendered to the Crown for sale on October 1, 1908. An Order in Council, which was passed to make the surrender effective, provided that all moneys received from the sale would be held "for the benefit of the bands concerned". Following the sale of the reserve land, the Respondent held the proceeds in a separate account, referred to as Agency 1 Trust Revenue account #842 ("Agency 1 Trust"). Over the years and until 1996, funds from the Agency 1 Trust were paid out to the Applicants.
[4] In 1996, the band council of one of the Applicants, the Nicickousemenecaning First Nation, formally requested that the Respondent release $200,000 for economic development of the reserve. Around the same time, the band council of the Couchiching First Nation also made a request for the release of $50,000 to pursue lawsuits commenced against the Ontario and Federal Governments.
[5] There was initially a dispute as to what transpired subsequently. In his first affidavit, Chief Morrison states that the request for release of funds for economic development was partially granted by the Respondent. He further stated that the request for litigation financing was not actioned by the Respondent on the pretence that the department was conducting an investigation into the purported interest of other First Nations to the Agency I Trust. At paragraph 30 of his affidavit, Chief Morrison says:
| It was only after our request for the trust money in order to sue the respondent that the respondent dusted off this old issue and has used it as an excuse for denying us our own money. |
[6] The affiant"s skepticism was obviously based on incorrect facts as explained by Linda MacWilliams at paragraph 2 of her affidavit:
| I have reviewed the affidavit dated June 8, 1999 of Kelvin Morrison, filed on behalf of the Applicants. Throughout that affidavit, and in particular at paragraph 17, 30 and 38, it is suggested that a request for trust monies from the Agency 1 account for the purposes of pursuing litigation against the Federal Crown was denied in an attempt to frustrate that litigation. That suggestion is without foundation. It is founded on two factual inaccuracies, which will be dealt with in this affidavit. |
| (a) The request for funding for litigation in 1996 by the Applicants was, in fact, acted upon with the Department and $50,000 was paid out; and |
| (b) A later request for the release of $200,000 for an "economic development corporation" and "investment and business opportunities" was denied in 1997 when facts came to light of the purported entitlement of other Treaty 3 Bands in the Agency 1 lands and trust account. This decision was not related to the funding of litigation or a desire to frustrate same in any way. |
[7] The supplementary affidavit of Kelvin Morrison dated July 22, 1999 is being tendered by the Applicants on the grounds that the Respondent"s affidavit materials do not respond to the issue raised in the application and allege a version of events which was not anticipated.
[8] Counsel for the parties agreed that the following tests should be applied in determining whether to permit the filing of the further affidavit:
| (a)whether the proposed affidavit would serve the interests of justice; |
| (b) whether the proposed affidavit would assist the Court in making its final determination; |
| (c) whether the Respondent would be seriously prejudiced by permitting the filing of the proposed affidavit at this stage of the proceeding; and |
| (d) whether the Respondent"s evidence could have or should have been anticipated by the Applicants. |
[9] The Notice of Application describes the decision being reviewed as the "failure or refusal by the Respondent to make a decision respecting release of trust moneys held by the Respondent." The Applicants specify at paragraphs (f) and (g) that the request for release of funds in question was for "financing litigation against the Respondent for mismanagement of the reserve" and that same was delayed or refused by the Respondent despite a conflict of interest and based on a contrived excuse. At paragraph l, the Applicants state that the Respondent"s inaction (presumably by delaying a decision regarding the release of funds for litigation financing) is preventing them from enforcing remedies for breach of fiduciary duty in relation to lands.
[10] The application includes a request whereby the Applicants seek, inter alia, the production of "all documents relating to review of the request by the Applicants for release of trust moneys for purposes of litigation against the Respondent". One can therefore understand why the Respondent concluded that the decision being challenged in this application was the delay or denial of release of funds for litigation.
[11] I have reviewed the affidavits of Linda MacWilliams and Heather Cottingham, both sworn July 5, 1999. The facts asserted therein are squarely in response to the allegations raised in Mr. Morrison"s affidavit dated June 8, 1999. The Respondent submits that the proposed affidavit of Kelvin Morrison in reply constitutes a fundamental alteration of the application. I agree.
[12] The supplementary affidavit improperly raises, in my view, facts which could, and in fact should, have been filed as part of the Applicant"s original evidence. In particular, the Applicants knew, or ought to have known, that the request for litigation financing had been approved back in 1997. In fact, the Respondent brought this to the Applicants" attention well before the present proceeding was instituted (see Exhibit K, Applicants" Motion Record, pp. 30-31). The Applicants surely cannot argue in the circumstances that they are taken by surprise by the Respondent"s evidence challenging their inaccurate facts.
[13] To permit the filing of the proposed affidavit at this stage would in my view cause a serious prejudice to the Respondent. The Respondent has served and filed her affidavit material upon which she relies. It would be improper to allow the Applicants to now split their case and introduce new facts which could, with due diligence, have been advanced earlier. As a result, the Applicants have failed to establish that the supplementary affidavit of Chief Kelvin Morrison dated July 22, 1999 should be admitted for filing.
[14] As for the contention by the Applicants that the Respondent has failed to comply with
Rule 317, I have reviewed the documents produced by the Respondent (see Tab 4, 5 and 6 of the Applicants" Motion Record) and conclude that the requirements under that Rule have been satisfied. The Applicants appear to have received or be in possession of all the documents relevant to this proceeding.
[15] Counsel for the Applicants urged upon me that the Respondent be ordered to produce additional documents which he framed as follows:
| Any documents that concern the administration of, or the discharge of, responsibilities of the Crown as trustee with respect to monies held arising out of surrenders of the Crown by the Applicants of their rights in the Agency 1 Trust Revenue Account which are not the possession of the Applicants. |
[16] Firstly, it was not established before me how such documents were relevant to the grounds of review set forth in the application (see Canada v. Pathak , ©1995ª 2 F.C. 455 (C.A) at p. 460). Secondly, the request is akin to discovery of documents which is only available in an action, and not in an application. Consequently, the request is denied.
[17] The Applicants also requested leave to make two amendments to the Notice of Application, one by deleting the first "the" in the third line of paragraph (f) (page 4) and the words "the purposes of litigation against the Respondent" at paragraph 3 (page 7). In my view, these minor amendments are inconsequential and merely an attempt to downplay the true nature of the application. As a result, the amendments were refused.
IT IS ORDERED THAT:
- . The parties shall complete cross-examinations on affidavits no later than December 22, 1999, unless otherwise ordered by the Court.
- . The parties shall submit to the Registry, either jointly or separately and no later than December 22,1999, a schedule for the completion of the steps in the proceeding for consideration by the case management judge.
- . The motion is otherwise dismissed.
- . Costs of this motion shall be to the Respondent in the event of the cause.
"Roger R. Lafrenière"
Prothonotary
Winnipeg, Manitoba
November 17, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-962-99
| STYLE OF CAUSE: COUCHICHING FIRST NATION |
NAICATCHEWENIN FIRST NATION
NICICKOUSEMENECANING FIRST NATION and
STANJIKOMING FIRST NATION
- and -
HER MAJESTY THE QUEEN AS REPRESENTED BY
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 17, 1999
| REASONS FOR ORDER |
AND ORDER OF THE COURT: LAFRENIÈRE P.
DATED: November 17, 1999
APPEARANCES
Donald Colborne for the Applicants
John S. Tyhurst for the Respondent
Department of Justice
Civil Litigation Section
East Memorial Building
2nd Floor, 284 Wellington Street
Ottawa ON K1N 7G2
SOLICITORS OF RECORD
Donald Colborne for the Applicants
P.O. Box 2095
Thunder Bay ON P7B 5E7
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent