McLeod Lake Indian Band v. Chingee
T-2327-97
Hargrave P.
8/5/98
11 pp.
Motion for further, better particulars, answers to discovery questions-Particulars now requested identical to those denied on earlier motion, upheld on appeal-Reasons for order leaving open possibility plaintiffs might, if continuing to have problems understanding issues, following completion of examinations for discovery, bring further demand for particulars as suggested in Smith, Kline & French Laboratories Ltd. v. Lek Tovarna Farmacevtskih in Kemichinh IzdelKov N. Sol. O. (1985), 4 C.P.R. (3d) 257 (F.C.T.D.)-Band's electoral custom central issue, as on earlier motion, appeal-Plaintiffs' position, unsupported by further material affidavit evidence, but on basis of documents including discovery transcript, that further particulars ought to be provided, issues narrowed, by way of document called statement of issues, dealing largely with band custom-While such statement of issues might serve as time saving device, material requested of defendants in statement of issues same material sought, denied in earlier motion for particulars, albeit in different form at different time-That party may apply at later stage in proceeding for particulars for trial not meaning application will automatically succeed-In Smith, Kline, application for particulars for pleading denied only because plaintiff able to adequately plead on basis of knowledge of case at that point: applicant had enough particulars for pleading and not entitled to particulars amounting to examination for discovery, but might be entitled to apply for fuller particulars for trial at later date-Defendants submitting issue of particulars res judicata-Clearly doctrine of res judicata applies to interlocutory matters-Basic argument to contrary that decision on interlocutory application not final in sense decision interlocutory-In Stamper v. Finnigan (1984), 57 N.B.R. (2d) 411 (Q.B.) holding rule of estoppel by res judicata applied to decisions on interlocutory applications-Referring to Diamond v. The Western Realty Co., [1924] S.C.R. 308, wherein Duff J. holding although decision interlocutory in that proceeding in which given interlocutory, nevertheless final in that, in absence of appeal, decision binding upon all parties-Requirements of estoppel by res judicata, also referred to as estoppel by record and estoppel per rem judicatum: (1) same question decided; (2) judicial decision creating estoppel final; (3) parties to judicial decision same as parties to proceedings in which estoppel raised-As to whether same question decided, previous reasons characterizing issue as what constituted Band custom-Plaintiffs' statement of issues attempting to have defendants volunteer positions: (1) whether Band elections governed by custom; (2) terms of governing custom; (3) whether October 1997 election in accordance with custom; (4) if election deviated from custom, did deviation result in election being invalid-Statement of issues, by which plaintiffs seek to obtain position of defendants, similar in sense of sameness to particulars sought on both motions-In light of earlier decision on point, improper to require either particulars of custom or answers to statement of issues now sought, as plaintiffs estopped on issue by reason of earlier orders-To extent plaintiffs taking slightly different approach in arguing present motion for particulars, doctrine of estoppel by matter of record, or res judicata, applies not only to matters actually in dispute, but also to any point which party might, with due diligence, have brought forward at time of previous hearing-Concept based on principle must be end to litigation, even in case of interlocutory wrangling, for motions, like actions, should not be dealt with piecemeal, either motion upon motion or action upon action, as such amounts to abuse: see Borley v. Fraser River Harbour Commission (1995), 92 F.T.R. 275 (F.C.T.D.)-As to answers to discovery questions, to require Harry Chingee, whose discovery concluded, to answer further questions, plaintiffs must establish special reason to do so-R. 235 providing "except with the leave of the Court, a party may examine for discovery any adverse party only once"-Until 1990, R. 465(19) requiring special reason in exceptional case to obtain further discovery-Present form of Rule, however, should not be interpreted so as to easily allow further discovery, once examination concluded, for discovery must at some point, end-Further discovery denied because material on which counsel wishing to examine available at time of discovery of Harry Chingee and with diligence might have been to him at that time-Federal Court Rules, C.R.C., c. 663, R. 465(19)-Federal Court Rules, 1998, SOR/98-106, R. 235.