Date: 20000508
Docket: T-2243-95
BETWEEN:
EDWARD NOEL NOADE,
Plaintiff,
- and -
BLOOD TRIBE CHIEF AND COUNCIL,
Defendants.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This proceeding began as an application for judicial review. Subsequently it was changed, by Order the Court, into an action. In this proceeding Mr. Noade seeks review of a decision arising out a Blood Tribe Membership Tribunal hearing on 19 June 1995, which upheld a decision, made by the Blood Tribe Chief and Council, a denial of a grant of membership in the Blood Tribe to Mr. Noade.
[2] These reasons and order arise out of a motion filed 1 May 2000 for production of various documents, including a legal opinion given by counsel for the Blood Tribe to his client, said to have been prepared in contemplation of the present litigation.
PREVIOUS HEARING OF A SIMILAR MOTION
[3] The motion could well have been straight forward. However a difficulty arises in that at least portions of it are similar to a motion dated 19 August 1997, heard by conference call 26 September 1997. The abstract of hearing and the minutes of hearing taken by the Registrar indicate that the motion was denied. Unfortunately, through oversight, there was never a signed order to reflect the oral decision. On 28 April 2000, the judge issued a direction indicating that the abstract and minutes where consistent with the notes in his trial book, but that he was of the view that it would be inappropriate, at this late date, to issue an order. In the direction there is a reference to Rule 392(2).
[4] Rule 392(2) deals with the time at which an order becomes effective:
| Unless it provides otherwise, an Order is effective from the time that it is endorsed in writing and signed by the presiding judge or prothonotary or, in the case of an order given orally from the bench in circumstances that render it impractical to endorse a written copy of the order, at the time it is made. |
In the present instance it appears that the second branch of Rule 392(2) does not apply, for it was through oversight, not impracticability, that the order was not reduced to writing.
[5] The Federal Court of Appeal and indeed the Supreme Court of Canada have dealt with the question of when a judgment becomes effective. In Liberty Ornamental Iron Ltd. v. B. Fertleman Ltd. (1977), 13 N.R. 552 (F.C.A.), Chief Justice Jackett pointed out, at page 556, there referring to a similar predecessor rule, that there is no judgment until a judgment has been signed by the presiding judge and further, it does not take effect until it has been signed.
[6] Liberty Ornamental was followed by Mr. Justice Catanache in Baxter Travenol Laboratories of Canada Ltd. v. Cutter (Canada) Ltd. (1981), 20 C.P.C. 263. Mr. Justice Cattanach"s decision was upheld by the Federal Court of Appeal (1982), 41 N.R. 476, a decision of Chief Justice Thurlow. When Baxter Travenol reached the Supreme Court of Canada, Mr. Justice Dickson, as he was then, referred to a number of decisions and, in effect, endorsed the Liberty Ornamental case, agreeing with the Federal Court of Appeal that:
| There is no judgment until a document in form 14 is executed. I agree with Cutter and the Federal Court of Appeal that, by virtue of Rule 337, a judgment in that court only takes effect on the date a document in Form 14 is executed |
| [Baxter Travenol Laboratories v. Cutter (Canada) Ltd. [1983] 2 S.C.R. 388 |
| at pages 395-396] |
While the Supreme Court did send the matter back to the Federal Court, it was on a different aspect of the case.
[7] Applying all of this to the present situation, there is thus no order arising out of the hearing of the 1997 motion. The only appropriate course is therefore to rehear the motion as now presented, as I say, in slightly different form from the 1997 motion. Here I would note that while I examined the two motions, the 1997 abstract of hearing and the 1997 minutes, I did not look at the notes in the trial book kept by the judge who heard the 1997 motion.
ANALYSIS
[8] In dealing with the motion, Mr. Noade and counsel for the Blood Tribe both spoke at length. I allowed Mr. Noade a good deal of leeway, even to the extent of letting him refer to material which was not before me by way of affidavit.
[9] The first item requested by Mr. Noade is production of March and April 1996 Blood Tribe Council meeting minutes, in which Mr. Noade was apparently referred to. My understanding, as a result of advice both from Mr. Noade and from counsel for the Blood Tribe, is that those minutes dealt with land, not with band membership, and therefore are irrelevant in the present proceedings. Moreover, the minutes post date the decision of the Blood Tribe Membership Council by nearly a year. The minutes are clearly not documents which were before the membership tribunal and are irrelevant for that reason also. They need not be produced.
[10] Second, Mr. Noade requests production or inspection of Band membership lists for the years 1986 through 1999 inclusive, for he believed that he must be on those lists, having received treaty money. I am convinced, both from the affidavit of Audrey White Quills, filed 24 September 1997 and from the submissions of counsel, that Mr. Noade is a status indian, associated with the Blood Tribe, but that there is nothing to indicate that he was on a Blood Tribe membership list as a member, the three categories, status, association and member, being quite different. Moreover, an Indian might have status and association with a given tribe, but not necessarily membership in that tribe. In any event, all things considered, including portions of discovery transcript, I am not convinced that the material sought is in any way relevant. It is denied.
[11] Third, is a request for the production of the legal opinion of Eugene Creighton, given 14 June 1994, to the Blood Tribe Chief and Council. I am satisfied that it is privileged. It need not be produced.
[12] Items 4 and 5 requested by Mr. Noade, are similar. Mr. Noade requests Bill C-31 additions to the Blood Tribe membership list, a copy of something called the "A" list report of :Blood Tribe 435 and the family grouping list for Blood Tribe 435. In addition to objecting to production on the grounds of relevance, the Blood Tribe also takes the position that some of this material is confidential. It need not be produced.
[13] The last item, item 6, is a treaty pay list for 1986, through 1999. This is apparently a document generated by Indian and Northern Affairs for the payment of treaty money. Treaty money payment is not contingent on Band membership. I do not see the document as relevant. It need not be produced.
ORDER:
| The motion is denied. Costs, in any event, to the Defendants at the end of the day. |
(Sgd.) "John A. Hargrave"
Prothonotary
May 8, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-2243-95 |
| STYLE OF CAUSE: Edward Noel Noade |
v.
Blood Tribe Chief and Council
| PLACE OF HEARING: VANCOUVER, BC |
| DATE OF HEARING: May 4, 2000 |
REASONS FOR ORDER AND
| ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY |
| DATED: May 8, 2000 |
APPEARANCES:
| Mr. Edward Noade on his own behalf |
| Mr. Robb Beeman for the Defendant |
SOLICITORS OF RECORD:
Walsh Wilkins
| Standoff, AB For the Defendant |