Date: 20040316
Docket: T-66-86A
Citation : 2004 FC 385
BETWEEN:
SAWRIDGE BAND
Plaintiff
- 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
[1] The plaintiff have brought motion pursuant to Rules 99 and 369 of the Federal Court Rules seeking to strike certain Crown interrogatories, in whole or in part, on the basis that the questions are either:
- too general or overly broad;
- in effect, seeking a catalogue of the plaintiff's productions by various topics;
- seeking oral history summaries which are the subject of a separate timetable order;
- unduly onerous and time consuming to answer;
- a fishing expedition; and/or
- beyond the scope of obtaining facts for examination for discovery, seeking a comprehensive recitation of the evidence that will be called at trial.
[2] On May 29, 2003 the Crown submitted to the plaintiff 62 written examination questions on the Sawridge action (T-66-86A) and 101 written examination questions in the Tsuu T'ina action (T-66-86B).
[3] It was not until the November 24, 2003 case management teleconference, some 6 months later, that counsel for the plaintiff raised, for the first time, the issue of any problems with answering the Crown's written interrogatories. Because Crown counsel had not received any prior information regarding any alleged problems, it was suggested that the teleconference be adjourned for two weeks so as to allow Crown counsel an opportunity to review the plaintiff's concerns.
[4] Despite numerous occasions for plaintiff's counsel to make specific representations to the Court and to counsel for the Crown, the Crown heard nothing more about its interrogatories until January 8, 2004 when a letter was received from counsel for the plaintiff outlining, in general terms, a number of objections. At a subsequent case management conference, I set a final limit of February 6, 2004 for plaintiff to set out its objections in detail and to bring an appropriate motion.
[5] Now, finally, more than 8 months after being served with the Crown's interrogatories, the plaintiff files motions in both actions requesting that 25 of 62 interrogatories, or parts thereto, be struck out in the Sawridge action and that 87 of 101 interrogatories, or parts thereto, be struck out in the Tsuu T'ina action.
[6] With the notable exception of the questions pertaining to the oral histories (including questions asking, improperly in my view, for confirmation that all sources including oral histories have been produced) for which a separate timetable item has been set, it is clear that the type of questions that the Crown has provided to the plaintiff are proper discovery questions and relevant to the plaintiff's pleadings and related documents. They are in no way an abuse of process or a "fishing expedition" although, as is normal with written interrogatories, many of them may prove to be repetitive or unnecessary in the light of answers which will be given to prior questions. They are not unduly burdensome.
[7] Furthermore, the long delay in raising these objections, even though the motions were finally brought within the ultimate limit that I had set, is another factor which warrants my viewing these motions as being yet another delaying tactic similar to the plaintiff's reaction to other requests of the Crown for answers to undertakings, disclosure etc. The history of such requests is long and tedious and is one of reluctance and delay on plaintiff's part.
[8] With regard to those questions which plaintiff says have already been answered, apart from the fact that the assertion is not supported by any evidence, the fact that an interrogatory has been answered is no reason for striking it out. If the question is said to be repetitive, a simple reference to the place where the answer is to be found will suffice.
Thus, the only objections which will be allowed are those seeking or referring to oral histories. There will be no order as to costs.
ORDER
The following interrogatories are struck out:
Questions : 3b, 4b, 5b, 6b, 7b, 8, 25, 26, 27, 29, 30, 33b, 34b, 37b and 62.
Judge
Ottawa, Ontario
March 16, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-66-86A
STYLE OF CAUSE: Sawridge Band v. Queen et al
MOTION IN WRITING PURSUANT TO RULE 369 FILED BY PLAINTIFF ON FEBRUARY 6, 2004
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: March 16, 2004
WRITTEN SUBMISSIONS BY:
Philip Healey, Martin Henderson
Lori Mattis
Catherine Twinn FOR PLAINTIFFS
Wayne Schafer FOR DEFENDANT, CROWN
SOLICITORS ON THE RECORD:
Aird & Berlis
Toronto, Ontario
Twinn, Barrister & Solicitor
Edmonton, Alberta FOR PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT, CROWN