Date: 20020308
Docket: A-246-01
Neutral citation: 2002 FCA 95
CORAM: STRAYER J.A.
BETWEEN:
DAVID STARR, MARTIN OKEMOW, MELANIE OKEMOW (TRINDLE),
GEORGE NETAWASTANUM, RITA OAR, HELEN STARR,
JOHNNY MERRIER (OSSEMEMAS), GEORGE NOSKIYE,
ANDREW ORR, LOUIS J. CARDINAL, SARAH SINCLAIR,
HARVEY HOULE, and VICTOR CARDINAL on behalf
of the Cree Indians of Peerless Lake, or Trout Lake, and
of God's Lake, the Peerless Lake Indian Band, and
the Trout Lake Indian Band
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA as represented by the Minister
of Indian Affairs and Northern Development
Respondent
Heard at Vancouver, British Columbia, on March 7, 2002.
Judgment delivered at Vancouver, British Columbia, on March 8, 2002..
REASONS FOR JUDGMENT OF THE COURT BY: STRAYER J.A.
Date: 20020308
Docket: A-246-01
Neutral citation: 2002 FCA 95
CORAM: STRAYER J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
DAVID STARR, MARTIN OKEMOW, MELANIE OKEMOW (TRINDLE),
GEORGE NETAWASTANUM, RITA OAR, HELEN STARR,
JOHNNY MERRIER (OSSEMEMAS), GEORGE NOSKIYE,
ANDREW ORR, LOUIS J. CARDINAL, SARAH SINCLAIR,
HARVEY HOULE, and VICTOR CARDINAL on behalf
of the Cree Indians of Peerless Lake, or Trout Lake, and
of God's Lake, the Peerless Lake Indian Band, and
the Trout Lake Indian Band
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA as represented by the Minister
of Indian Affairs and Northern Development
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
[1] The present appeal is of an interlocutory order in an action on behalf of numerous aboriginal claimants to assert inter alia aboriginal title, treaty rights, and damages for breach of fiduciary duty. The order appealed from was made by a judge of the Trial Division dismissing an appeal from an order of a prothonotary of October 24, 2000, requiring the plaintiffs to provide many particulars prior to the respondent-defendant filing a statement of defence.
[2] Counsel for the appellants-plaintiffs argued in part that the order of the prothonotary should have been set aside on appeal because it required excessive particulars at this stage of the proceedings. She contended that what was being required of the plaintiffs was disclosure of the evidence it would be presenting to prove its case, and that this is not proper or necessary at this stage prior to the respondent-defendant pleading. I am not satisfied that the prothonotary made any error in principle such that the Trial Division Judge should have altered his order on appeal. Therefore we should not interfere with the Trial Division decision.
[3] Counsel for the appellants-plaintiffs also argues that the prothonotary ordered the provision of particulars which it is impossible for them to provide. She invoked the fact that the appellants-plaintiffs are aboriginals with different or limited records of various information sought such as the names, places and dates of birth, death, and marriages for several generations of people. She contends that the prothonotary should have, on his own initiative, taken into account the particular difficulties of aboriginal parties in this respect and she invoked sections 7, 15 and 27 of the Charter and section 35 of the Constitution Act, 1982.
[4] I am satisfied that the prothonotary's order cannot be impugned on these grounds as these issues were never clearly put before him by evidence or argument.
[5] Further, counsel for the appellants-plaintiffs now argues (although there is of course no admissible evidence at this stage to this effect) that through their efforts both before and after the prothonotary's order they have provided all the information required of them that they are capable of providing. If this is so, it is not a matter for this appeal but should be the subject of further proceedings before the case management judge or prothonotary, including perhaps a motion for variance of the order of October 24, 2000 pursuant to paragraph 399(2)(a) of the Rules. Such a motion would, of course, have to be supported by precise affidavit evidence as to what efforts have been made to comply with the order and details as to why and in what respects it cannot be complied with. General assertions by counsel or experts as to their problems will not suffice.
[6] The appeal should therefore be dismissed.
(Sgd.) "B.L. Strayer"
J.A.
"I agree" (Sgd.) "K.R. Sharlow"
J.A.
"I agree" (Sgd.) "B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-246-01
STYLE OF CAUSE: David Starr et al. v. The Queen
PLACE OF HEARING: Vancouver BC
DATE OF HEARING: March 7, 2002
REASONS FOR JUDGMENT : STRAYER J.A.
CONCURRED IN BY: SHARLOW, MALONE J.JA
DATED: March 8, 2002
APPEARANCES:
Priscilla Kennedy FOR THE APPELLANTS
Kevin Kimmis and Leanne Young FOR THE RESPONDENT
SOLICITORS OF RECORD:
Parlee McLaws FOR THE APPELLANTS
Edmonton
Deputy Attorney General of Canada FOR THE RESPONDENT