Date: 19980923
Docket: T-66-86
BETWEEN:
BERTHA L"HIRONDELLE suing on her own behalf and on behalf
of all other members of the Sawbridge Band
WAYNE ROAN suing on his own behalf and on behalf of
all members of the Erminskin Band, and
BRUCE STARLIGHT suing on his own behalf and
on behalf of all other members of the Sarcee Band
Plaintiffs (Respondents)
- and -
HER MAJESTY THE QUEEN
Defendant (Applicant)
- and -
NATIVE COUNCIL OF CANADA
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario,
Wednesday, September 23, 1998)
HUGESSEN J.
[1] This is a motion brought by the plaintiffs to amend their statement of claim in their action which is an attack upon the constitutional validity of the amendments to the Indian Act popularly known as Bill C-31.
[2] The amendments are said to be made necessary by a series of recent judgments rendered by the Supreme Court of Canada which have, to a very considerable extent, changed the law with respect to claims of aboriginal rights. I accept that the amendments will considerably assist the plaintiffs in invoking that recent jurisprudence of the Supreme Court of Canada.
[3] Two things make this motion to amend somewhat unusual.
[4] The first is the position taken by the interveners who are groups purportedly representing the interests of certain women who were enfranchised by the terms of Bill C-31 but to whom status has been refused, I am told, by the plaintiffs" bands. The interveners ask that I should make an interim mandatory order requiring the plaintiffs to comply with the terms of the presumptively valid legislation, which is Bill C-31. I decline to make such an order. I do not view the interveners as being parties to this action and, as I read the terms of Rule 75, my duty in allowing an amendment is to protect the rights of parties . I also note that, while the interveners are representing the collective rights of the persons I have just described, such persons have not individually, at least not in this action, asserted any claim to those rights. I would, it seems to me, be improper to make an interim order on their behalf in these circumstances.
[5] The second aspect of this case which lifts it far out of the realm of the ordinary is the fact that a trial has already been held in this division, a trial which lasted, I am told, seventy-nine days. Judgment was given following the trial and on appeal to the Court of Appeal, that judgment was set aside on the grounds of a perceived apprehension of bias on the part of the trial judge. Costs of that trial, on a party and party basis, were ordered paid, but I am informed have not yet been assessed or paid.
[6] In my view, my obligation to protect the rights of the parties includes an obligation to ensure that, as much as possible of what took place at that first trial, is preserved and used at the second trial. It also includes an obligation, which is clearly expressed in Rule 3, to bring the second trial on as quickly as possible and in the most efficient and cost-saving manner. It seems to me to be self-evident that one way in which both time and money at the new trial can be saved will be by the use of the transcript of oral evidence given at the first trial. During the presentation of the motion to amend, I attempted to extract from counsel for plaintiffs some kind of useful suggestion as to how this might be done but, no doubt due to inability on my own part to make myself clear, I was unsuccessful in that attempt. I propose, however, as a term of the order to amend, to try again. It seems to me that, notwithstanding the amendment to the pleadings, counsel for both parties and for the interveners as well, should now be in a position, having lived through the first trial and having the transcripts of the first trial available to them, to come to a substantial measure of agreement as to what can now be used and properly laid before the trial judge as evidence for use at the second trial. Of course there will be the right in each party to bring further evidence. The amendments to the statement of claim make it obvious that there will have to be further evidence and further discoveries as well, but, at least as a starting point, and subject to being completed, the evidence from the first trial can surely, in very large measure, be used so that some of those seventy-nine days of trial will not have been wholly wasted effort on everyone"s part.
[7] The terms of the order that I propose to give are as follows:
The motion to amend the statement of claim is granted on the following terms:
1) Counsel for plaintiffs shall submit in writing to counsel for defendant and each intervener by 15 November 1998, a detailed list of all those parts of the transcript of the evidence at the first trial, including any interventions by the trial judge, to which objection is taken to their use as evidence at the new trial together with the reasons therefor. Counsel for defendant and the interveners shall respond thereto in writing by 30 December, 1998, following which any party of intervener may apply to have any dispute over admissibility resolved by the case-management judge;
2) Plaintiffs shall pay the costs of this motion to defendant in the amount of $1,500.00 forthwith and in any event of the cause.
"James K. Hugessen"
judge