PRACTICE |
Appeals and New Trials |
Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans)
A-771-00
2002 FCA 22, Sharlow J.A.
18/1/02
16 pp.
Motion under Federal Court Rules, 1998, r. 351 to introduce affidavits as evidence and to amend notice of appeal-- Appellants' action for declaration, damages and other relief relating to exclusion from Aboriginal Fisheries Strategy (program introduced by federal Department of Fisheries and Oceans) violation of Charter, s. 15 or breach of fiduciary duty, dismissed--In rejecting Charter argument, Trial Judge concluding differential treatment not based on analogous ground, not demeaning to human dignity--Considering whether effect of excluding appellants from participation in Aboriginal Fisheries Strategy (AFS) so severe, localized that differential treatment responsible for that effect discriminatory --Based on evidence Bruce Peninsula fishery administered by Crown in right of Ontario, and appellants participating in mediated discussions, Trial Judge not persuaded plaintiffs excluded from opportunity to enter into agreement with respect to co-management of fishery--Evidence on this point including letter from then Minister of Fisheries and Oceans and evidence of Chief Akiwenzie, particularly on cross-examination--Minister's letter, quoted by Trial Judge, stating understanding appellants involved in mediated discussions with Ontario Ministry of Natural Resources concerning development of co-management arrangement for commercial fishing around Bruce Peninsula--On cross-examination Chief Akiwenzie confirming participation in meetings, topics discussed--Thereafter appellants objected to admissibility of draft interim agreement marked "without prejudice" which Chief admitted was product of mediation discussion, on ground no information about mediated discussions to be disclosed until concluded--Trial Judge not admitting draft agreement as evidence--Appellants seeking to add new grounds to notice of appeal: Trial Judge erred in permitting Crown to introduce, rely on substance, content of mediated discussions; Trial Judge made unreasonable finding of fact, erred in law in relying on appellants' participation in Bruce Peninsula fishery discussions in finding not suffering any loss of dignity within meaning of Charter, s. 15--(1) Motion to amend notice of appeal allowed as no evidence any prejudice would result from amendment--(2) Motion to adduce evidence to support two new grounds of appeal dismissed--R. 351 permitting Court to grant leave to present evidence on question of fact in special circumstances--Court must consider whether evidence could with reasonable diligence have been discovered before end of trial, whether evidence credible, and whether evidence practically conclusive on appeal: Frank Brunckhorst Co. v. Gainers Inc., [1993] F.C.J. No. 874 (C.A.) (QL)--Furthermore evidence may be adduced if interests of justice require it--Evidence found in affidavit of Jeerakathil, one of lawyers representing appellants at trial, and in affidavit of Chief Akiwenzie--Jeerakathil's affidavit intended to establish appellants' counsel only learning participants accepting from outset mediated discussions confidential after trial--Chief's affidavit intended to establish belief obliged to answer questions put to him, and not discussing specifics of mediated discussions with counsel because confidential--Counsel for appellants knew there were discussions because disclosed in Chief's, Minister's letters; not investigating whether conditions imposed on participants; should have known Crown considered discussions relevant to appellants' claim based on questions asked in examination for discovery--Evidence as to privilege said to be attached to mediated discussions could with due diligence have been discovered before trial--As to reliability, Jeerakathil affidavit hearsay, introduced through person who, as counsel at trial, may have had interest in outcome of this motion--Also description of privilege interpretation by same counsel of information said to have been obtained from Justice Hunter, but motion record containing no affidavit from Justice Hunter --As not establishing any privilege relating to mediated discussions breached, affidavits not meeting second and third Brunckhorst tests--For same reason, not evidence that should be admitted on basis required by interests of justice-- Jeerakathil affidavit also intended to prove province of Ontario not recognizing appellants have constitutionally protected rights in relation to Bruce Peninsula fishery-- Appellants wish to argue exclusion from Aboriginal Fisheries Strategy affront to human dignity not mitigated by mediated discussions because discussions not predicated on recognition of appellants' constitutionally protected right to commercial fishery in ancestral waters--Appellants, knowing of existence of mediated discussions, should have considered whether and to what extent discussions might support or weaken Charter arguments--Should have asked Ontario government whether had policy stance inconsistent with existence of fishing rights asserted by appellants--Seeking to introduce hard copy of e-mail from someone at Ontario Ministry of Natural Resources to unnamed person within same department expressing view open to Ontario to argue no constitutionally protected Aboriginal right to commercial fishery, and undated, unsigned "draft" of history of Ontario Aboriginal Communal Fishing Licences Regulations by unknown author--Neither document sufficiently relevant, reliable to justify introduction on appeal--Federal Court Rules, 1998, SOR/98-106, r. 351.