McLeod Lake Indian Band v. Chingee
T-2327-97
Hargrave P.
10/3/98
7 pp.
Motion for particulars as to election custom of McLeod Lake Indian band-Statement of claim pleading valid election based on custom in abstract-Defence responding election unlawful, not in accordance with custom-Election custom discussed in affidavits-While should not be assumed will be discovery before trial at which to thoroughly explore defendants' views as to Band electoral custom, discovery such important aspect of modern litigation practice, would be naive to imagine Band election custom, key to outcome, will not be main topic for exploration during discovery process-Particulars before pleading allowing party to plead intelligently-Required for greater clarity in defining issues to be tried-Discovery enabling opposite party to know case has to meet and to simplify trial by obtaining admissions-Application denied-(1) If, following completion of discoveries, plaintiffs continuing to have difficulty in understanding issues to be tried, may bring further demand for particulars-(2) Defendants' plea of custom merely denial of plaintiffs' allegation which plaintiffs have to prove as part of case-Traverse by defendant, even in form of affirmative, so long as in substance traverse of other side's allegation, not giving rise to particulars-Defendants merely putting plaintiffs to proof of case-As to whether particulars indirectly making trial judge's task easier, rather than presenting trial judge with carefully drafted answers, by way of particulars, trial judge should hear evidence of custom in words of witnesses themselves-Particulars should be brief-Party ought not be required to provide particulars containing detailed facts which should more properly be presented at trial as evidence-Improper to shift onus from plaintiffs to defendants by ordering defendants to give particulars of custom.