PRACTICE |
Appeals and New Trials |
Montana Band v. Canada
A-231-01
2001 FCA 176, Sharlow J.A.
31/5/01
11 pp.
Appeal from decision of Hugessen J. dismissing appellants' motion for order compelling Crown officer to attend for oral discovery under r. 97--Basis of April 5, 2001 order documents that were intended subject of examination for discovery would not be relevant to first phase of trial--Controversy arising as to contents of Appeal Book to be prepared for appeal of April 5, 2001 order--Test for inclusion of documents in appeal book found in r. 343(2)--Appellate court generally will not consider evidence not before court from which appeal taken--Crown wishing to include in Appeal Book "series of documents bearing Production Numbers 2446 to 2559"--Appellants objecting to documents being included in Appeal Book as not before Hugessen J. when order made on April 5, 2001, therefore should not be before Court in appeal from order--Appellants not at fault for not putting documents before Hugessen J.--Evidence falling far short of establishing documents could be considered part of record before Hugessen J. when latter rendered decision under appeal--Documents should not be included in Appeal Book--Crown also wishing to have included in Appeal Book copies of written submissions of counsel made in course of settling terms of severance order of January 10, 2001--Not appropriate case for including in Appeal Book copies of written submissions relating to April 5, 2001 order or January 10, 2001 severance order--Notice of intention to amend pleadings filed by Crown in November 2000, number of questions and answers given in course of written examination for discovery of Crown officer of no assistance to Court in dealing with appeal--Appeal Book will not include that material--Federal Court Rules, 1998, SOR/98-106, rr. 97, 343.