Date: 20000911
Docket: A-406-00
CORAM: LINDEN J.A.
EVANS J.A.
SHARLOW J.A.
(FCTD No. T-1254-92)
BETWEEN:
CHIEF JOHN ERMINESKIN, et al.
Appellants
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, et al.
Respondents
(Defendants)
(FCTD No. T-2022-89)
BETWEEN:
CHIEF VICTOR BUFFALO, et al.
Respondents
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, et al.
Respondents
(Defendants)
- and -
CHIEF JEROME MORIN, et al.
Respondents
(Interveners)
- and -
EMILY STOYKA and SARA SCHUG
Respondents
(Interveners)
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario on
Monday, September 11, 2000)
EVANS J.A.
[1] We were not persuaded by counsel for the Crown that the Learned Trial Judge committed reversible error when, in the exercise of his discretion, he refused to order that, without the consent of the parties, these actions should be tried on common evidence. The Trial Judge is in the best position to determine how the trial should be run.
[2] However, in order to remove any possible ambiguity, and to express more clearly what we think that the Trial Judge meant in making his order, paragraphs 3 and 4 of his order are amended to read in the manner proposed by counsel for the Samson Band:
| 3. Before a plaintiff's witness gives evidence, the other plaintiff will make an election by indicating to the Court whether that plaintiff accepts the witness as its witness; and |
| 4. Such elections are to be made on the basis that, if the witness is accepted by that plaintiff as its witness, the evidence of the witness is, in its entirety, evidence in that plaintiff's case as if that plaintiff had called the witness in its case. |
[1] We also wish to make it clear that nothing in the order as amended precludes the Trial Judge from permitting a plaintiff, after a witness of the other plaintiff has testified, to elect to treat that witness as if it had called the witness as its own witness, when, in the Judge's view, to do so would assist the just and expeditious disposition of these actions.
[2] For these reasons the appeal of Chief John Ermineskin et al. and the cross-appeal by Chief Victor Buffalo et al. are allowed, and the cross-appeal by the Crown is dismissed. Costs will be in the cause.
"John M. Evans"
J.A.