Digests

Cree Indians of Peerless Lake v. Canada (Minister of Indian Affairs and Northern Development)

T-67-99

2002 FCT 642, Hargrave P.

5/6/02

15 pp.

On October 24, 2000 Prothonotary ordering plaintiffs to provide genealogical particulars of individuals seeking to have classified as Indians, including residences, dates of birth, marriages, deaths going back to all relevant ancestors, at least to paternal and maternal great-great-grandparents--Although absence of records making task impossible, Court of Appeal unable to offer relief from order as plaintiffs not able to tender additional evidence not before Prothonotary--Directing plaintiffs to apply for variance pursuant to Federal Court Rules, 1998, r. 399(2), providing for variation by reason of matter arising or discovered subsequent to order--Requiring motion to be supported by detailed affidavit evidence showing why particulars could not be provided; stating general assertions by counsel, experts as to problems would not suffice--Generally motion to vary order made before judge, Prothonotary who made initial order, but not absolute rule-- Not reasonable herein to return matter to Prothonotary who made initial order because would not be heard for many months--Context of special hearing, case management expeditious, least expensive way to deal with matter--Test to satisfy r. 399(2): (1) must be new matter arising or discovered after order made; (2) moving party must establish exercised reasonable diligence in initially looking for new matter but could not discover it sooner; (3) if new matter had been before person initially hearing motion, would probably have resulted in different order--Matter subsequently discovered may encompass something broader than fresh evidence--Proper where issue of proof of negative (eg. that certain information does not exist) to extend first branch of test to include matters to which applicant directed by reason of order--Plaintiffs filing two affidavits in support of motion--First affiant deposing as to existence of federal Crown database--Second affiant deposing as to existence of family trees--Both new, specific, relevant evidence--Other evidence rejected as too general for purposes of r. 399 or to comply with F.C.A. direction--Crown's genealogical database new matter which, on balance of probabilities, would not have been searched for by reasonably diligent plaintiffs until counsel's mind directed to need for determining non-existence of certain genealogical data--Although plaintiffs' expert supplied Crown with basic data, nothing indicating existence of more extensive database presently held by Crown--In order to obtain October 24 order for particulars, Crown had to establish need for particulars for pleading--Given recent discovery of Crown's database, and plaintiffs' best efforts at genealogical charting, different order would probably have resulted--Order, taking into account new matter, should now reflect Crown's actual need for particulars for pleading--Need satisfied by plaintiffs' best efforts to provide genealogical charts by which to supplement Crown's material--Plaintiffs may be prevented from easily introducing new, more extensive genealogical material after indicating unable to find further genealogical information-- Order varied to note, given existence of Crown's database and taking into account that material and Crown's defence in Alberta Queen's bench proceedings, together with newly produced genealogical trees, defendant having sufficient material to defend intelligently--Federal Court Rules, 1998, SOR/98-106, r. 399(2).