Dockets: T-2022-89/
T-1254-92
Neutral citation: 2002 FCT 551
T-2022-89
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all of the other members of the Samson Indian Nation and Band
- and -
THE SAMSON INDIAN BAND AND NATION,
PLAINTIFFS
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE MINISTER OF FINANCE
DEFENDANTS
AND:
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
INTERVENORS
AND:
EMILY STOYKA and SARA SCHUG
INTERVENORS
AND BETWEEN:
T-1254-92
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Defendants
REASONS FOR ORDER
TEITELBAUM, J.:
[1] The Samson plaintiffs have brought a motion seeking an Order directing that the claims of the Samson Cree Nation and the Ermineskin Indian Band and Nation, which are presently being heard together, henceforth be pursued in separate proceedings.
Background
[2] On February 24, 1994, Federal Court Actions T-2022-89 [hereinafter the "Samson action"], T-1254-92 [hereinafter the "Ermineskin action"], and T-1386-90 [hereinafter the "Enoch action"] were ordered, by Jerome A.C.J., to be heard together. Subsequently, on June 20, 1996, MacKay J. ordered that the Enoch action be severed from the Samson and Ermineskin actions.
[3] By Order dated June 12, 2000, following a Reasons for Order issued on April 25, 1997, MacKay J. allowed Ermineskin plaintiffs to sever from their action claims relating to programs and services, as well as what are referred to as home reserve issues. The severance of these claims was without prejudice to any future resolution if the Ermineskin plaintiffs took certain steps outlined in the Order.
[4] On October 1, 1999, MacKay J. ordered that the Samson and Ermineskin actions be heard together, commencing on May 1, 2000 in Calgary. And, indeed, that is when opening statements commenced in these two actions.
[5] On June 2, 2000, this Court refused the defendant Crown's request that these two actions be tried on common evidence. Both plaintiffs had vigorously contested the Crown's request. In the Order that was issued, I set out the manner in which evidence was to be treated in these actions. On September 11, 2000, the Federal Court of Appeal slightly amended paragraphs 3 and 4 of my Order for purposes of clarity. They read as follows:
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.
[6] Thus, and at the request of both Samson and Ermineskin plaintiffs, these actions were not to be conducted on the basis of common evidence. Rather, each plaintiff maintains control and discretion over the manner in which it choses to litigate its case, subject always to the Court's ultimate control over the proceedings.
[7] Evidence in the first phase of the trial of these actions commenced on June 5, 2000. Samson plaintiffs have called some 35 witnesses over the course of this phase. Ermineskin plaintiffs have adopted three of those witnesses. Ermineskin plaintiffs also called a further two witnesses, whom Samson plaintiffs chose not to adopt.
[8] At the outset of the presentation of its case for this phase on December 11, 2001, Ermineskin plaintiffs entered into evidence in its action a booklet containing, among other things, a Request to Admit, dated November 13, 2001, and the Crown's Response, dated November 30, 2001 [exhibit E-255]. At that point, counsel for Samson plaintiffs stated their intention to proceed with a motion to apply for a severance of the two actions.
[9] The Request to Admit, submitted by Ermineskin plaintiffs to the defendant Crown, was made pursuant to Rule 255 of the Federal Court Rules, 1998, which deals with requests to admit facts and documents. I note that the opening line of the accompanying form for the Request to Admit, Form 255, reads as follows:
YOU ARE REQUESTED TO ADMIT, for the purposes of this proceeding only...
Parties' Positions
[10] Samson plaintiffs bring their motion for severance on the basis that if the trials continue to be heard together, Samson plaintiffs will suffer appreciable prejudice because the interests of the two plaintiffs have diverged on what Samson plaintiffs consider to be a significant and fundamental aspect of Samson's case. According to Samson plaintiffs' written submissions:
32. Samson's case requires that the treaty and aboriginal rights being asserted, inter alia, as sources of the trust and fiduciary obligations of the Crown respecting the Samson and Pigeon Lake reserves, the natural resources thereof, the royalties, moneys or payments therefrom and treaty benefits, programs and services, be considered along with Treaty No. 6; and, that Treaty No. 6 itself (both the oral and written record of that Treaty) be considered in its proper historical, social and cultural context.
33. Thus, fundamental issues in Samson's case are the identification, meaning, interpretation, implementation and consequence[s] of the colonial/Crown/Indian relationship over the centuries leading up to the signing and adhesion to the treaty; and, more particularly, the extent of the applicability to Samson's subsisting aboriginal and treaty rights of the Indian Act, the Royal Proclamation of 1763, the common law, Treaty No. 6 and s. 35 of the Constitution Act, 1982. Samson submits that Indian treaties constitute a unique, sui generis type of agreement and attract special principles of interpretation which are grounded in history, including the existence of aboriginal societies, the culture, language, spiritual values and institutions of such societies, the use and occupation of lands by such societies, the rules of conduct of such societies and the recognition of such societies by other Indian societies and by the Crown.
34. The evidence adduced by Samson over the last year and a half goes to these fundamental issues and provides the background, context and factual matrix within which Samson's claims are mad and within which, it is submitted, Samson's claims are to be determined.
35. Ermineskin's apparent decision to rely upon the written text of Treaty No. 6 and on the evidence of only 3 of the witnesses called by Samson plus their own 2 witnesses, given the comments of Ermineskin's counsel on December 11, 2001, prejudicially undermines Samson's case and position before this Court, amongst other things, it is likely to raise questions or doubts about the utility or assistance of the 31 other Samson witnesses to Samson's own case, especially when coupled with the position that the defendant Crown has taken and can be expected to take respecting Samson's general and historical evidence.
[11] Samson plaintiffs submit that there is an unwarranted and prejudicial risk that the Ermineskin plaintiffs will, in the conduct of their separate action, challenge, question, or impugn, even by implication, Samson's evidence in its own action. This contention of prejudice is further raised in the supporting affidavit of Lena Cutknife [Samson Motion Record, volume 1, tab B, para. 16], where Ms. Cutknife takes issue with the "ability of Ermineskin to selectively adopt witnesses called by Samson Cree Nation... ." Samson plaintiffs also contend that they were unaware of the full extent of this risk of prejudice until Ermineskin plaintiffs presented their evidence in this first phase on December 11, 2001.
[12] Ermineskin plaintiffs, in their materials, state that they are willing to consent to the Samson plaintiffs' application, provided that Samson pay the costs incurred thus far by Ermineskin and provided that another trial judge is appointed to hear their action on an expedited basis. The bulk of their submissions, however, lend support to the position that the trials ought not to be severed. Ermineskin plaintiffs set out, in some detail, their pleadings, which make clear the manner in which they intend to rely on Treaty 6 and set out the scope of their view of the issues to be litigated. Ermineskin plaintiffs also provide numerous instances where their position has been made clear (May 2000 opening statements, June 2, 2001 submissions relating to the admissibility of documents relating to the Dreaver case, and trial transcript excerpts).
[13] The defendant Crown opposes this application. They contend that Samson's assertion of prejudice is mere speculation and, as such, does not establish prejudice. The Crown also points to the June 2, 2000 Order of this Court (and the Federal Court of Appeal's amendment of it on September 11, 2000) and contends that Samson plaintiffs are now asserting a claim that is in complete contradiction of their earlier submission that the trials proceed together only if they remain separate and each plaintiff retains exclusive control over the evidence in their respective actions.
[14] The Crown contends that they will suffer prejudice in the event that Samson's application for severance is granted. If the proceedings are to continue separately, the Crown will have to appoint other counsel and will incur great costs and further delay.
[15] The Crown submits that although the plaintiffs have different approaches, the major issues in both actions are virtually the same, especially in the remaining phases.
[16] The Crown, in their materials, also point to numerous examples in the trial transcripts to contradict Samson plaintiffs' assertion that the fundamental differences in approach taken by Ermineskin plaintiffs to the first phase only became clear on December 11, 2001 (see affidavit of James Eickmeier, exhibits D, E, G, H, and I).
Analysis
[17] Rule 106 of the Federal Court Rules, 1998 provides as follows:
106. Separate determination of claims and issues - Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that
(a) claims against one or more parties be pursued separately;
(b) one or more claims be pursued separately;
(c) a party be compensated for, or relived from, attending any part of the proceeding in which the party does not have an interest; or
(d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party.
[18] The issue to be decided in this application is whether prejudice to the Samson action exists. The question could be framed thus, have the Ermineskin plaintiffs, by the manner in which they have chosen to litigate their action, caused Samson plaintiffs any prejudice in the Samson action?
[19] As was pointed out above, the Crown had requested that the trials proceed on the basis of common evidence. That request was opposed by Samson and Ermineskin plaintiffs. The Court agreed, in the main, with the plaintiffs, and accordingly issued an Order setting out the manner in which evidence is to be treated. Those directions ensure that the plaintiffs retain control over their respective actions. Neither plaintiff can be bound unilaterally by the conduct of the other plaintiff's case. Evidence in one case is not evidence in the other unless it is adopted by the other plaintiff. While the Samson and Ermineskin actions are being heard together, each maintains its integrity as a separate, discrete action. Accordingly, exhibit E-255, which contains Ermineskin plaintiffs' Request to Admit and the Crown's Response, is evidence only in the Ermineskin action; it has no bearing on the Samson action, contrary to their assertions.
[20] It is true, as Samson plaintiffs aver, that Ermineskin plaintiffs have a different vision of their case and are conducting their case according to that vision. To put it simply, Ermineskin plaintiffs have chosen not to litigate the off-reserve surrender issue. Samson plaintiffs, on the other hand, have chosen to do so, and have led a great deal of evidence on that issue. The Crown, early on, objected to this evidence on the basis of relevance. The Court has taken the matter under reserve and permitted Samson plaintiffs to continue to make what evidence they see fit on this issue. Its relevance has yet to be decided.
[21] I cannot agree with Samson plaintiffs' assertion that they will suffer prejudice in their action by the operation of the June 2, 2000 Order, which permits - but does not mandate - the parties to adopt each other's witnesses as they see fit. It is mere speculation to contend that the manner in
which Ermineskin plaintiffs have chosen to conduct their case will have a negative impact on the determination of Samson's action. Indeed, Ermineskin plaintiffs' action can have no bearing on the Samson action, and the different approach taken by Ermineskin plaintiffs has no effect on the Samson action.
[22] The Crown, however, will suffer prejudice if Samson plaintiffs' application is granted. They will have to retain another set of counsel to defend the Ermineskin action. New counsel will likely
require a considerable amount of time to become familiar with this litigation and a delay in the Ermineskin action seems inevitable. Increased costs and delay amount to prejudice; mere speculation does not.
[23] At the plaintiffs' urging, these actions were ordered to be tried together; at the plaintiffs' urging, rules were established to treat plaintiffs' evidence separately unless a plaintiff elected to adopt a witness put forth by the other plaintiff. Procedural safeguards are in place to maintain the integrity of the separate actions. Accordingly, Samson's application for severance is dismissed.
[24] In that the present application to sever is dismissed, the issue of costs on this application must be spoken to.
[25] The parties shall file written submissions by no later than Tuesday the 21st of May, 2002.
"Max M. Teitelbaum"
J. F. C. C.
Calgary, Alberta
May 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020513
Dockets: T-2022-89/
T-1254-92
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all of the other members of the Samson Indian Nation and Band
- and -
THE SAMSON INDIAN BAND AND NATION,
PLAINTIFFS
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE MINISTER OF FINANCE
DEFENDANTS
AND:
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
INTERVENORS
AND:
EMILY STOYKA and SARA SCHUG
INTERVENORS
AND BETWEEN:
T-1254-92
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: T-2022-89 and T-1254-92
STYLE OF CAUSE: Chief Victor Buffalo et al. v. Her Majesty the
Queen et al.
Chief John Ermineskin et al. v. Her Majesty the
Queen et al.
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: May 13, 2002
REASONS FOR ORDER : TEITELBAUM, J.
DATED: May 13, 2002
APPEARANCES:
Mr. James O'Reilly
Mr. Ed Molstad, Q.C. FOR PLAINTIFF SAMSON
T-2022-89
Mr. Marvin Storrow, Q.C. FOR PLAINTIFF
Ms. Maria Morellato ERMINESKIN
T-1254-92
Mr. Allan Macleod, Q.C.
Mr. Clarke Hunter FOR HER MAJESTY THE
Ms. Brenda Armitage QUEEN
Mr. S. H. (Stan) Rutwind FOR ATTORNEY GENERAL
FOR ALBERTA
- 2 -
SOLICITORS OF RECORD:
O'Reilly & Associés
Montréal, Québec
Parlee McLaws FOR PLAINTIFF SAMSON
Edmonton, Alberta T-2022-89
Blake, Cassels & Graydon FOR PLAINTIFF
Vancouver, B.C. ERMINESKIN
T-1254-92
Macleod Dixon LLP FOR HER MAJESTY THE
Calgary, Alberta QUEEN
Alberta Justice Constitutional FOR ATTORNEY GENERAL
& Aboriginal Law FOR CANADA
Edmonton, Alberta