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T-1636-81 |
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T-3150-92 |
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T-956-93 |
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Between: |
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T-1636-81 |
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JOE MATHIAS and the |
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SQUAMISH INDIAN BAND et al. |
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Plaintiffs, |
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- and - |
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HER MAJESTY THE QUEEN et al., |
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Defendants. |
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And Between: |
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T-3150-92 |
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CHIEF WENDY GRANT and the |
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MUSQUEAM INDIAN BAND et al., |
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Plaintiffs, |
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- and - |
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HER MAJESTY THE QUEEN |
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IN RIGHT OF CANADA et al., |
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Defendants. |
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And Between: |
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T-956-93 |
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LEONARD GEORGE as Chief, |
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and the BURRARD INDIAN BAND et al., |
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Plaintiffs, |
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HER MAJESTY THE QUEEN IN RIGHT OF CANADA et aL,
Defendants.
REASONS FOR ORDER
(concerning the Squamish Indian Band's motion heard August 28, 1996, regarding the 1923 Amalgamation/Reorganization of the Squamish Indian Band and whether it should be considered in Phase I of the Trial)
SIMPSON, J.
The issue is whether to include evidence concerning the 1923 amalgamation/reorganization of the Squamish Indian Band (the "Matter") in Phase I of the trial. The Squamish Indian Band and the Crown are in favour of such inclusion. The Burrard Indian Band is opposed and the Musqueam Indian Band takes no position.
Phase I of the trial is intended to deal with issues of entitlement. I am satisfied that that Matter is one which will bear on entitlement. It will not be possible for me to determine which, if any, plaintiff has a right to complain about the conduct of the Crown after 1923 without reaching a conclusion about the impact of the Matter. Accordingly, evidence about the Matter will be heard in Phase I.
I should note that, further to the submission by counsel for the Burrard Indian Band, I recognize that Phase II will deal with the conduct of the Crown both prior to and after 1923, and that, in Phase I, it will be necessary to consider the question of entitlement at each date on which there is alleged to have been a breach of fiduciary duty by the Crown. However, the detailed evidence relating to all alleged breaches will be received in Phase II.
(Sgd.) "Sandra J. Simpson" Judge
Vancouver, B.C. September 3, 1996
Î1i~ prenivore in$Îani º e ~k`
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I: Sa & ur féibéra ÿii Laitaba |
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T-1636-81 |
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T-3150-92 |
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T-956-93 |
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Between: |
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T-1636-81 |
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JOE MATHIAS and the |
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SQUAMISH INDIAN BAND et al. |
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Plaintiffs, |
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- and - |
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HER MAJESTY THE QUEEN et al., |
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Defendants. |
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And Between: |
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T-3150-92 |
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CHIEF WENDY GRANT and the |
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MUSQUEAM INDIAN BAND et al., |
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Plaintiffs, |
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- and - |
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HER MAJESTY THE QUEEN |
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IN RIGHT OF CANADA et al., |
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Defendants. |
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And Between: |
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T-956-93 |
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LEONARD GEORGE as Chief, |
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and the BURRARD INDIAN BAND et al., |
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Plaintiffs, |
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HER MAJESTY THE QUEEN IN RIGHT OF CANADA et al.,
Defendants.
REASONS FOR ORDER
(Concerning the Musqueam Indian Band's Motion for Reconsideration of my Order of August 20, 1996, dealing with its request for an adjournment)
SIMPSON, J.
The Musqueam Indian Band has moved for a reconsideration of my Order of August 20, 1996 (the "Order"). It refused that Band's motion, which was made with the consent of all parties, for an adjournment of the Case Opening Statements to November 25, 1996, and the evidence to mid-January 1997. Instead, the Order granted a more limited adjournment. It provided that Case Opening Statements are to begin on September 24, 1996, as previously ordered, but it adjourned the commencement of evidence until November 18, 1996.
The present motion is again supported by all parties. An affidavit was filed by the Musqueam Indian Band and a separate affidavit was filed on behalf of the Squamish Indian Band. I will deal with each in turn.
The Musqueam Indian Band's Affidavit
Maria Morellato is the deponent of an affidavit sworn on August 26, 1996, (the "Morellato Affidavit"). It provides the reason why the parties are not ready for trial. In brief, the parties tried to settle this action during the Spring of 1996 and, because they hoped for a settlement and wished to minimize costs, they delayed the Examinations for Discovery. Examinations did not begin until late June 1996. The parties apparently believed that, if they all consented, the trial date would be adjourned.
The Federal Court works on a fixed trial date system. Trial dates are assigned far in advance so that parties can be prepared and adjournments are rarely granted, even on consent, unless compelling unforeseen circumstances arise. In this case, at the time of the Order, no such circumstances were presented and, in my view, none are presented in the Morellato Affidavit. The parties had an obligation to organize their settlement efforts and their pre-trial preparation so that they could be ready to proceed on the appointed day.
The Morellato Affidavit also deals with the need for an adjournment until mid-January. It suggests that, given extra time, settlement might still be possible. In my experience, however, settlement is most likely to occur if parties are facing the courtroom door. Accordingly, I am not prepared to grant an adjournment until mid-January 1997 for the continuation of settlement discussions.
Following oral argument, I received a letter from counsel on behalf of the Musqueam Indian Band. It is dated August 29, 1996, and appends two lists of documents just provided by the Crown. It suggests that this production further demonstrates the need for the proposed adjournment. I also reviewed a letter to me dated August 30, 1996, from counsel for the Crown. It was sent in response to the Musqueam Indian Band's correspondence. On this issue, I can see no reason why the Crown's documents cannot be promptly reviewed. This production by the Crown does not, in my view, justify the proposed adjournment.
I have concluded that there is no basis for reconsidering the Order. The parties have already been given an additional seven weeks for preparation and the initial sitting schedule only required them to lead evidence for four weeks before the holiday break. In the revised sitting schedule, which I am about to issue, the period for the presentation of evidence will be reduced to three weeks following November 18, 1996. What this means is that the Musqueam Indian Band and/or the Burrard Indian Band are only required to call three weeks' worth of evidence this Fall.
The Squamish Indian Band's Affidavit
Chief Joe Mathias is the deponent of an affidavit sworn on August 28, 1996. It indicates that Donna L. Kydd, a Barrister and Solicitor who has represented the Squamish Indian Band in this litigation since 1981, has
resigned effective August 22, 1996. No reason for her resignation is before me. Ms. Kydd was responsible for research and document management. She worked under the direction of Mr. Harry Slade who is lead counsel for the Squamish Indian Band. Members of Mr. Slade's firm will be required to take over her duties in respect of thousands of documents. They will be obliged to acquaint themselves with the contents of the documents and the computer systems employed to manage them.
The Squamish Indian Band has a further problem with its legal representation. It is not mentioned in Chief Mathias' affidavit but was presented by counsel in submissions. In the circumstances, this procedure was entirely appropriate. I was advised that, due to unforeseen matters, Mr. Slade was not able to devote his full time to trial preparation in August and he will not be available for some weeks to come.
Accordingly, due to Ms. Kydd's unexpected resignation and Mr. Slade's unavailability, I am prepared to reconsider the Order as it relates to the Squamish Indian Band. The Order will be amended to indicate that:
1. All parties' Experts' Reports are to be filed and exchanged on September 13, 1996 (this change is made in response to a request by counsel for the Squamish Indian Band).
2. The Squamish Indian Band will not be expected to begin its evidence prior to January 1997.
3. All parties, except the Squamish Indian Band, will provide Case Opening Statements which will include a detailed opening for Phase I and overview openings for Phases II and III. These statements will commence on September 24, 1996.
4. On September 24, 1996, the Squamish Indian Band may, at its option, provide a Case Opening Statement which will only be an overview opening statement for Phases I, II and III. If it proceeds on this basis, the Squamish Indian Band is to provide its detailed Case Opening Statement for Phase I prior to the commencement of its evidence in or after January 1997.
(Sgd.) "Sandra J. Simpson" Judge
Vancouver, B.C. September 3, 1996
NAMES OF COUNSEL AND SOLICITORS OF RECORD
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STYLE OF CAUSE: |
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T-1636-81 |
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JOE MATERAS et aL |
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- and - |
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HER MAJESTY THE QUEEN et al |
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- AND - |
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T-31%-92 |
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CHIEF WENDY GRANT et aL |
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HER MAJESTY THE QUEEN et aL |
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T-956-93 |
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LEONARD GEORGE et aL |
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HER MAJESTY THE QUEEN et aL |
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PLACE OF HEARING: |
Vancouver, B.C. |
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DATE OF HEARING: |
August 28, 1996 |
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REASONS FOR ORDER: |
SIMPSON, J. |
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DATED: |
September 3, 1996 |
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APPEARANCES: |
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Mr. John Rich for Squamish Indian Band Mr. Robert Freedman
Mr. Marvin Storrow for Musqueam Indian Band Ms. Maria Morellato
Mr. Stan Ashcroft for Burrard Indian Band Ms. Myriam Brulot
Mr. Geoffrey Cowper as agents for HMQ Ms. Tanya Jorgensen
Ms. Judith Mules
SOLICITORS OF RECORD:
Ratcliff & Co.
North Vancouver, B.C.
for Squamish Indian Band
Blake, Cassels for Musqueam Indian Band Vancouver, B.C.
Ganapathi, Ashcroft for Burrard Indian Band Vancouver, B.C.
Russell & DuMoulin as agents for HMQ Vancouver, B.C.
George Thomson for HMQ Deputy Attorney General
of Canada