Lower Similkameen Indian Band v. Allison
T-1690-94
Hargrave P.
19/7/95
13 pp.
Motion by plaintiffs for amendments to statement of claim, defence, to strike out portion of counterclaim, for changes in parties and for discovery of persons not parties-Action arising out of disputed Band Council election of March 29, 1994, and subsequent usurpation of positions of Chief and Band Councillors by dissident faction including former Chief and Council members-Plaintiffs submitting three persons, alleged to be motivating force behind defendants, ought to be added as parties-Robert Heinrich ceasing to be party as proceedings further complicated if unwilling plaintiff required to remain in action-Remaining liable to defendants for portion of costs to date-Plaintiffs requesting paragraphs 12, 13, 14 of counterclaim be struck out under R. 419(1)(b),(c),(d) as immaterial or redundant, scandalous, frivolous or vexatious, or may prejudice, embarrass or delay fair trial of action-Alleged wrongful destruction of ballots by successful candidate, if proven, no small matter-Counterclaim provisions complained of by plaintiffs should not be struck out as not plainly, obviously without chance of success-Counsel for plaintiffs submitting motivating parties, Theresa Dennis, John Terbasket, Gloria Bent ought to be made parties in stead of present defendants-Addition of said persons not "necessary to ensure that all matters in dispute in the action may be effectively and completely determined and adjudicated upon" as required by R. 1716(2)(b)-No point in adding new set of defendants where relief asked for by plaintiffs may be moot-No written consent by new set of defendants as plaintiffs by counterclaim as required by R. 1716-Substitution of defendants not allowed-Plaintiffs asking for amendment to statement of claim by adding prayer for relief for costs against intended defendants-R. 344(1) allowing Federal Court to award costs against persons other than parties-Affidavit material not indicating intended defendants real litigants-Prayer for relief as to costs on material presented by plaintiffs rejected-No order for discovery of Theresa Dennis, John Terbasket as persons who are not parties-Test for allowing such discovery set out in R. 456(8)-Party to be examined must derive benefit-Difference between immediate benefit, ultimate benefit-Material not setting out immediate interest of intended defendants-Motion dismissed-Federal Court Rules, C.R.C., c. 663, RR. 344, 419, 456, 1716.