Date: 20020605
Docket: T-67-99
Neutral Citation: 2002 FCT 642
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, of Trout
Lake, and of God's Lake, the Peerless Lake Indian Band,
and the Trout Lake Indian Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA as represented by the Minister
of Indian Affairs and Northern Development
Defendant
REASONS FOR ORDER
HARGRAVE P.
This action involves a representative claim based on, among other things, Aboriginal title, treaty rights and fiduciary duty owed to the Indians of several Bands who were lost from Indian Registration through being misplaced in the wilderness. These reasons arise out of ongoing interlocutory sparring over particulars to be provided by the Plaintiffs, particularly as to genealogies of some 720 individuals who say they should be classified as Indians, with attendant benefits.
BACKGROUND
On 20 December 1999, I ordered particulars in the form of relevant genealogies. At that time the genealogies were just one aspect of a broader case management conference. The Plaintiffs had some particulars ready to deliver. Mindful that many of us would have difficulty in producing a comprehensive genealogy going back to dates set out in the Statement of Claim, perhaps as early as the Royal Proclamation of 1763, but certainly to Treaty 6 of 1876 and Treaty 8 of 1899, I set the standard for particulars in that 20 December 1999 Order as one of best efforts.
The Defendant was, and justifiably so, not satisfied with the particulars initially tendered pursuant to the 20 December 1999 Order. They therefore issued a formal demand for particulars on 31 December 2000.
Both counsel forgot about a 6 June 2000 case management conference at which the issue of genealogical particulars ought to have been resolved. Thus the matter remained unresolved until 24 October 2000, when it came before a fellow prothonotary, who issued an absolute order as to genealogical particulars, including as to residences, dates of birth, marriages and deaths going back to all relevant ancestors, and at least to paternal and maternal great-great-grandparents. It may well be that counsel for the Plaintiffs had taken neither the original demand for particulars nor the resulting motion seriously enough to consider their ramifications and particularly the ramifications of the motion. In the result the Plaintiffs found themselves absolutely obligated to a very difficult and indeed perhaps impossible task.
The Plaintiffs were not able to tender additional evidence on appeal and therefore were unable to upset the prothonotary's order on subsequent appeals. Mr. Justice Strayer, in his reasons for the Court Appeal on 8 March 2002, acknowledged the Plaintiffs position that some of the particulars were impossible to provide because of an absence of records as to "names, places and dates of birth, death and marriages for several generations of people". However, the Court of Appeal was unable to offer direct relief by way of appeal because none of this had ever been put before the prothonotary in evidence or in argument on the initial motion. But the Court of Appeal did offer an approach for a reasonable resolution:
[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.
This is a precise direction. It refers to variation of the initial order of 24 October 2002, by way of Rule 399(2)(a), which provides for variation by reason of matters arising or discovered subsequent to the Order and that the motion be supported by detailed affidavit evidence showing why particulars could not be provided. Mr. Justice Strayer was very definite in his view that general assertions, by counsel or experts, would not suffice.
CONSIDERATION
Plaintiffs' Motion to Vary
In its reasons the Federal Court of Appeal has invited the Plaintiffs to apply for a reconsideration pursuant to Federal Court Rule 399(2)(a). That application is to be founded upon specific, rather than general assertions.
The Plaintiffs' motion is to set aside or vary the 24 October 2000 Order. While the Plaintiffs do not produce a draft order, I take it that either the obligation to provide particulars should be less absolute, in effect a best efforts standard, with a finding of compliance with that standard, or a variation to allow the conclusion that the Plaintiffs have done all that they are able. Here I note that the Plaintiffs argue substantial compliance with the existing Order. The propriety of these arguments depends upon the Plaintiffs' affidavit material.
Scope of Rule 399(2)(a)
Overall I must keep in mind that this is neither a rehearing of the evidence from and the arguments made on the original motion and appeals nor a forum for arguments which could and ought to have been made on the initial motion and appeals. Unfortunately a substantial part of the Plaintiffs' written argument falls into the category of argument which was either made or could have been made on the initial hearing. To recognize and to consider such would go beyond the bounds of Rule 399(2)(a) as a narrow exception to the rule that judicial decisions are final: see for example Zolfiqar v. Canada (1999) 48 Imm. L.R. (2d) 149, a decision of Mr. Justice Rothstein, as he was then:
The general rule is that judicial decisions are final. Reconsideration is a narrow exception to the rule of finality. Matters arising subsequent to the making of a decision or discovered subsequent to the making of a decision may provide grounds for reconsideration. . . . See Federal Court Rules 1998, subsection 399(2). However, the party seeking reconsideration must exercise due diligence to obtain all relevant information prior to the original decision being rendered. Further, the new information must indeed be new and not the same information that was previously available put in another form or brought in through another witness. (page 152)
Generally a motion to vary an order ought to be made before the judge or prothonotary who made the initial order. However this is not an absolute or near absolute rule as in the variance of an ex parte order. In the present instance it is not reasonable to send this matter for further hearing before the prothonotary in Toronto who made the initial order, in part by reason of travel distance, but in the main because the present workload of the Toronto prothonotary is such that the matter could not be heard for many months. Thus it is expeditious and least expensive to have this matter dealt with in the context of a special hearing and case management.
Rule 399(2) provides, in part:
(2) Setting aside or variance -- On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order;
Counsel, as a gloss to Rule 399(2) refers to Saywack v. Canada [1986] 3 F.C. 189 (F.C.A.) at page 201 and following. In Annacis Auto Terminals (1997) Ltd. v. The "Cali" (2000) 178 F.T.R. 40 at 46 I summarized the law including the three elements necessary to satisfy the rule, which the Court of Appeal touched upon in Saywack:
[20] As counsel for Annacis Terminals points out, the courts have been reluctant to vary an order or a judgment because of its finality: See for example Rostamian v. Minister of Employment and Immigration (1991), 129 N.R. 394 (F.C.A.). Although the Rule 399 provides an exception, a moving party must meet a stringent test in order to vary an order or to set it aside. The test is three-fold: First, there must be new matter arising or discovered subsequent to the order; second, the moving party must establish that it could not with reasonable diligence have discovered the new matter sooner; and third, that if the new matter had initially been brought forward it would probably have resulted in a different original order: see Saywack v. Minister of Employment and Immigration, [1986] 3 F.C. 189 (F.C.A.), at page 201 and following, approving Dumble v. Cobourg and Peterbrough Railway Co. (1881), 29 Gr. 121 (Ont. H.C.) and Canada v. Palmier (1997), 137 F.T.R. 71 at 73.
The test set out in this passage, which was approved by Mr.. Justice Blais, in Watson v. The Queen, an unreported decision of 28 May 2002 in action T-1227-00, is therefore that first there must be a new matter arising or discovered after the order has been made; second, that the moving party must establish that it exercised reasonable diligence in initially looking for the new matter but could not discover it sooner; and third, that if the new matter had been before the person initially hearing the motion, it would probably have resulted in a different order.
The Court of Appeal in Saywack (supra) accepted the view that a matter subsequently discovered may encompass something broader than fresh evidence (page 201).
Application of Rule 399(2)(a)
In order to satisfy Rule 399(2)(a) the Plaintiffs must first establish that a new matter has arisen or been discovered since the 24 October 2000 Order. While the test is stringent and the exception to finality of an order narrow, I believe it proper, particularly where the issue is the proof of a negative, in the sense that certain information does not exist, to extend the first branch of the test, that of a matter arising or discovered after the order, to include matters to which the mind of the applicant was directed by reason of the order. This is implicit both in Mr. Justice Strayer's direction as to the application of Rule 399(2) and the use of precise affidavit evidence as to what aspects of the Order were beyond the compliance abilities of the Plaintiffs. Because the Plaintiffs must show certain information does not exist, one must carefully examine the evidence of the Plaintiffs and give it appropriate weight to establish, on a balance of probabilities, the existence or non-existence of the material. This concept was set out by Chief Justice Laskin in Continental Insurance Co. v. Dalton Cartage Co. [1982] 1 S.C.R. 164 at 171 where, after rejecting the concept of a varying standard of proof, said:
I do not regard such an approach as a departure from a standard of proof based on a balance of probabilities nor as supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established.
Second, the Plaintiffs must establish that they could not, with reasonable diligence, have discovered the new matter or matters to now be relied upon at an earlier stage. Third, the Plaintiffs must establish that, the new matter, had it been considered in October of 2000, would probably have given rise to a different order.
As I have indicated the order to be reconsidered is that of 24 October 2000. The Plaintiffs, in support of this motion for reconsideration, have tendered the affidavits of Edward Van Dyke, sworn 29 October 2000 and 5 April 2002 and the affidavit of Ms. Dawn Repchinski, sworn 7 May 2002.
Mr. Van Dyke is an anthropologist with substantial relevant experience. His 29 October 2000 evidence may be summarized as follows:
1. Before about 1940 the birth dates for the Plaintiffs were not recorded and that such dates as might be known to individuals, were only approximate;
2. As to genealogical dates and relevant locations, for parents through great-great-grandparents, being Cree, their concepts and institutions did not mesh with usual Canadian concepts in that:
- Crees identify grandparents and earlier generations as brothers and sisters.
- Before 1940 a Cree individual might have more than one husband or wife at the same time.
- Dates and places of death, before 1940, are largely unknown, or are known to have happened at a place known by a Cree name, which cannot be coordinated with a current Canadian place name.
- The Cree work on a lunar calendar.
Attached to the 29 October 2000 affidavit is a tree type genealogical chart. All of this, except as to the genealogical chart, is in the form of general assertions which Mr. Justice of Appeal Strayer believed ought not to form the foundation of the present motion.
In the interim Mr. Van Dyke made further inquiries and now deposes, 5 April 2002 that: first, he had spoken with the Executive Director of Aboriginal Land Claims for Alberta, who advised him that one Susan Weston, of Indian Affairs and Northern Development Canada had, before this litigation, prepared a database of the Cree at Trout Lake, Peerless Lake and God's Lake, which Mr. Van Dyke believes contains information which he does not have, but that neither he nor the Plaintiffs have access to that material; second, Indian Affairs has further relevant material from about 1985 relating to Bill C-31 reinstatement, but that material is not available to the Plaintiffs; third, while there are some records for birth, marriages and deaths at the Roman Catholic church in McLennan, Alberta, the Plaintiffs are unable to obtain that information because the church requires not only precise dates of births, deaths and marriages, which the Plaintiffs do not have and a fee which, to the Plaintiffs, is substantial; and finally, the National Archives holds pay lists showing the membership of the Bigstone Band, in which, according to the Amended Statement of Claim, a small number of the Plaintiffs feel they were wrongfully recorded as members, but again Mr. Van Dyke has been unable to obtain that material from the Band. The first point, the existence of a federal Crown database, is new, specific and relevant.
Ms. Repchinski deposes that on 2 May 2002 she provided an update of a genealogical list to the Defendant and that on 28 August 2001 a 36-foot long family tree type genealogy of the Peerless Lake Band. While the 29 October 2000 affidavit of Mr. Van Dyke refers to the diagrammatic genealogical chart as being for all the Plaintiffs, the affidavit evidence of Ms. Repchinski does not establish whether her genealogical chart was for all of the Plaintiffs, or just for the Peerless Lake Band. The family trees are new, specific and relevant.
In addition, in order to deal with other missing particulars, we have advice from counsel that the "One Cree" referred to in paragraph 34 of the Statement of Claim was just that, a recording of a generic one Cree. However, this is not evidence. Moreover, it is not new. As to scrip certificates the Plaintiffs clearly set out in the Statement of Claim that there are no records of scrip payments made to the ancestors of the Plaintiffs. The surveyors referred to in paragraph 46 of the Statement of Claim, if I understand counsel for the Plaintiffs, is the J.J. Steele referred to in that paragraph. Paragraph 53 of the Statement of Claim and the particulars requested as to the improper registration of Plaintiffs with the Bigstone Band, are dealt with in the affidavit of Mr. Van Dyke.
Unfortunately, all of the new evidence, aside from the specific genealogical charts and the specific existence of the federal Crown's database of the Cree who bring this action, is given by experts in a general way. Mr. Justice Strayer clearly said in his reasons that "General assertions by counsel or experts as to their problems will not suffice.", but rather that he looked to the support of this application ". . . 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.".
I would not expect affidavits from some 700 individuals, but would have expected, given the clear directions of Mr. Justice of Appeal Strayer, to have at least representative affidavits from several Plaintiffs setting out the problems which they had encountered in trying to assemble further particulars, particularly as to apparent gaps in genealogy.
I am left with two new specific and relevant matters. First, there are two extensive genealogical charts: counsel for the Defendant says the second and colour code version, prepared by the Plaintiffs well after the 24 October 2000 motion, was received only as a black and white copy. Second, there is the newly discovered existence of a Crown database for the Peerless Lake, Trout Lake and God's Lake Cree. The existence of this database, referred to in the 5 April 2002 affidavit of Mr. Van Dyke, is confirmed in the 21 May 2002 affidavit of Ms. Susan Weston, a Policy Officer of the Crown, as represented by the Minister of Indian Affairs and Northern Development. That affidavit, filed by the Crown, sets out that Ms. Weston built upon a list of about 460 Cree, which was provided in 1995 by Mr. Van Dyke. Ms. Weston goes on to say that she did some further research and work on that list, at least been 1995 and 2000. I accept that the database, now held by the Crown, may still not be complete.
The Plaintiffs' genealogical charts, while new, could have been manufactured at an early stage by reasonably diligent Plaintiffs and thus do not come within the Rule 399(2)(a) parameter. I am satisfied that the Crown's genealogical database is a new matter which, on a balance of probabilities, would not have been searched for by reasonably diligent Plaintiffs until counsel's mind was directed to the need for determining the non-existence of certain genealogical data. Certainly the Plaintiffs' expert, Mr. Van Dyke, some seven years ago, supplied the Crown with the basic data from which to research and on which to build a database, but there is nothing in the material, including in the Defendant's list of documents filed 29 September 2000 in the parallel and similar Alberta Queen's Bench proceedings, to either indicate acknowledgment of receipt of the basic data in 1995 or the existence of a more extensive database presently held by the Crown.
I now come to the third part of the test, whether timely discovery of the Crown's apparently undeclared database would probably have resulted in a different order. Here I may look at the new matter, the Crown's database, in the context or matrix of all of the facts. In order to obtain the 24 October 2000 Order for particulars, the Crown had to establish a need for particulars for pleading. Given the recent discovery of the Crown's database, though it may be incomplete, yet contain information not in Mr. Van Dyke's genealogy, the absolute need for particulars, touching upon expert evidence, here the genealogical particulars, becomes suspect. That the Crown was able to file an intelligent defence in the parallel and similar Alberta Queen's Bench action, between the same parties, casts very substantial doubt on the Crown's real need for particulars. Moreover, the Crown now has what appears to be the Plaintiffs' best efforts at a genealogical charting, being not only the chart referred to by Mr. Van Dyke in his 29 October 2000 affidavit, but also as updated, perhaps not colour coded, sent the Crown 28 August 2001. All of this would, at least probably, have resulted in a different order than that made 24 October 2000. The Order, taking into account the new matter, should now reflect the Crown's actual need for particulars for pleading. At best this need would be satisfied through the Plaintiffs' present best efforts to provide genealogical charts by which to supplement the Crown's material which went into drafting the defence in the parallel and similar Alberta Queen's Bench action, including the Crown's newly discovered 1995-2000 database.
I would, however, caution the Plaintiffs. The Plaintiffs have indicated they cannot find further genealogical information. Without determining the point, the Plaintiffs may well in the future be prevented from easily introducing new and more extensive genealogical material into this proceeding.
CONCLUSION
By reason of a new matter, which could not with the exercise of reasonable diligence have been before the Court on 24 October 2000, the Order is varied. The order will note that, given the existence of the Crown's database on the Peerless Lake, Trout Lake and God's Lake Cree and taking into account that material and the Crown's defence in the Alberta Queen's Bench proceedings, together with the newly produced genealogical trees, a colour copy of which the Plaintiffs shall forthwith deliver to the Defendant, the Defendant has sufficient material to defend intelligently. The Defendant may have 60 days within which to serve and file a Defence. This is without prejudice to any reasonable particulars which the Crown may, in due course, require for trial.
Costs in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
05 June 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-67-99
STYLE OF CAUSE: David Starr et al. v. HMQ
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: May 23, 2002
REASONS FOR ORDER: Hargrave P.
DATED: June 5, 2002
APPEARANCES:
Ms. Priscilla Kennedy FOR PLAINTIFFS
Mr. Kevin P. Kimmis FOR DEFENDANT
SOLICITORS OF RECORD:
Parlee McLaws FOR PLAINTIFFS
Edmonton, AB
Mr. Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada