Date: 20040213
Docket: T-66-86B
Citation : 2004 FC 237
BETWEEN:
TSUU T'INA FIRST NATION
(formely the Sarcee Indian 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
(Delivered from the Bench at Ottawa, Ontario
on February 13, 2004)
[1] I have six motions before me, one by the plaintiffs in each of the two actions which seek to obtain leave to put further interrogatories on discoveries to the Crown (documents #1281 A and #1297 B), another by each of the plaintiffs in each of the two actions seeking to strike out some interrogatories put to them by the Crown (documents #1284 A and #1300 B) and thirdly, I have one motion but it is in both actions, brought by the Crown seeking better responses to the undertakings which have been responded to by the plaintiffs (documents #1289 A and #1293 B).
[2] I am only today going to schedule responding materials for the second pair of motions that is to say the motions brought by the plaintiffs seeking to strike certain of the Crown's interrogatories. The other motions I am going to dismiss without calling for any responses from the respondents thereto.
[3] The parties have already had a trial in this action, a very lengthy trial. Discoveries have now been going on for over 5 years. In October of last year, I declared discoveries to be concluded. I meant what I said but did, however, make a reservation allowing the plaintiffs exceptionally to move for leave to put interrogatories if it was necessary that they do so. I think I made it plain at the time and I don't think there has been any room for misunderstanding that that was not a general invitation to reopen discoveries. It was on the contrary intended to make it possible if there was something that had been overlooked or something that came up at the last minute that absolutely required further discoveries to be conducted to make an opening for the plaintiffs to do that.
[4] The interrogatories which the plaintiffs here seek to put to the Crown, or to put it more accurately, seek leave to be allowed to put to the Crown, are not of that nature at all. They are broad, general discovery interrogatories. They are questions which as far as I know may already have been asked, if they had not, they certainly should have been in the time that has already gone by. We are a few weeks away from the pre-trial conference. If I were to allow these interrogatories, there is no way that they would be answered within the time available. I consider them to be an abuse and I consider them to be unnecessary. I am not going to allow the plaintiffs' motions for leave to put interrogatories.
[5] By the same token, I am not going to allow the Crown's motion for further and better answers to the undertakings given by plaintiffs. A very large number of those requests ask that the plaintiffs confirm that the answers they have already given are complete and constitute all the knowledge they have on the subject. That is an entirely unnecessary question. The plaintiffs had an obligation to answer the undertakings, they have done so. I assume they have done so in good faith and have done so to the best of their knowledge and that their answers are complete. To the extent that their answers should become incomplete by the acquisition of further knowledge, they have the obligation already under the Federal Court Rules 1998 to complete those answers forthwith upon their obtaining further information.
[6] Some other of the Crown's requests for better answers to undertakings have to do with matters relating to the plaintiffs' proposed oral history evidence. The progress of this case has overtaken that question and in the course of the schedules which we have established in recent case management conferences, there has been a date proposed and it will be firmed up in due course for the production by plaintiffs of their oral histories. Those oral histories will have to be complete and there will be no room for further oral histories to be put in except with leave of the trial judge. Questions which the Crown now seeks to put relating to oral histories are therefore, in my view, improper.
[7] Accordingly, as I say, both the plaintiffs' motions in seeking leave to introduce further interrogatories and the Crown's motion with respect to better answers to undertakings will be dismissed and there will be no order as to costs.
[8] That leaves for discussion the scheduling of the middle set of motions that I described at the outset which are motions by the plaintiffs seeking to strike out certain of the Crown's interrogatories. I want to have that motion disposed of prior to the pre-trial conference. I think some of what I have already said will probably make it unnecessary for us to deal with most of those proposed interrogatories, in fact it may be unnecessary to deal with all of them. But I am prepared to give time to the Crown who have had the motions now since February 6, 2004. The normal period of time to reply to a Rule 369 motion is 10 days, I am prepared to give the Crown another 10 days from now to respond after which 5 days to the plaintiffs to reply and I shall then dispose of those motions according to Rule 369.
ORDER
1. Plaintiffs' motions to be allowed to put further interrogatories are dismissed (documents #1281 A and #1297 B).
2. Crown's motions for better answers to undertakings are dismissed (documents #1289 A and #1293 B).
3. No order as to costs.
4. Crown has until February 23, 2004 to respond to plaintiffs' motions to strike interrogatories (documents #1284 A and #1300 B).
5. Plaintiffs have until March 1st, 2004 to reply.
Judge
Ottawa, Ontario
February 13, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-66-86B
STYLE OF CAUSE: Tsuu T'ina First Nation v. Queen et al
MOTIONS IN WRITING PURSUANT TO RULE 369 FILED BY PARTIES ON FEBRUARY 6, 2004
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: February 13, 2004
WRITTEN SUBMISSIONS BY:
Philip Healey, Martin Henderson
Lori Mattis FOR PLAINTIFFS
Kathleen Kohlman, Janell Koch FOR DEFENDANT, CROWN
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
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