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Date: 20011107 Docket: A-386-00 Neutral citation: 2001 FCA 341 CORAM: LINDEN J.A. BETWEEN: BERTHA L'HIRONDELLE, suing on her own behalf and on behalf of all other members of the Sawridge Band Plaintiffs/Appellants and HER MAJESTY THE QUEEN Defendant/Respondent and NATIVE COUNCIL OF CANADA, NATIVE COUNCIL OF CANADA (ALBERTA) and NON-STATUS INDIAN ASSOCIATION OF ALBERTA Interveners Heard at Ottawa, Ontario, on November 6, 2001 and November 7, 2001 Judgment delivered from the Bench at Ottawa, Ontario, on November 7, 2001 REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A. Date: 20011107 Docket: A-386-00 Neutral citation: 2001 FCA 341 CORAM: LINDEN J.A. BETWEEN: BERTHA L'HIRONDELLE, suing on her own behalf and on behalf of all other members of the Sawridge Band Plaintiffs/Appellants and HER MAJESTY THE QUEEN Defendant/Respondent and NATIVE COUNCIL OF CANADA, NATIVE COUNCIL OF CANADA (ALBERTA) and NON-STATUS INDIAN ASSOCIATION OF ALBERTA Interveners REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario on November 7, 2001) [1] The appellants appeal from two interlocutory orders of Hugessen J. in his capacity as case management judge in this action. The first order dismissed the appellants' motion to terminate or limit the scope of participation of three interveners, namely, The Native Council of Canada, the Native Council of Canada (Alberta), and the Non-Status Indian Association of Alberta (collectively, "the Trial Interveners"). The second order granted intervener status to the Native Women's Association of Canada ("NWAC") to participate on the same basis as the Trial Interveners. [2] The original order granting intervener status to each of the Trial Interveners was issued by McNair J. on September 14, 1989, giving these interveners the right to adduce evidence and make submissions on the issues of band membership status or rights to status. That order was appealed to this Court, but remained dormant for almost seven years whereupon it was dismissed without an appeal hearing for want of prosecution. [3] The case management orders now under appeal are attacked on the basis that Hugessen J. is said to have erred by not properly limiting the scope of intervention as required by Rule 109(3) of the Federal Court Rules, 1998, thereby permitting unfair and wide intervention in an unregulated manner. The appellants submit either there should be no interveners, or, alternatively, there should be one intervener whose participation is limited to written submissions. [4] We can find no error on the part of the case management judge in his refusal to disturb the order of McNair J. granting status to the Trial Interveners. We agree with his finding that the matter is res judicata; namely, the same question has already been decided, the order of McNair J. was appealed and is a final order, and the parties are the same (see Diamond v. The Western Realty Co., [1924] S.C.R. 308 at 315; Angle v. Canada (Minister of National Revenue), [1975] 2 S.C.R. 248 at 254). We also agree that no new circumstances have been advanced by the appellants that would permit the order of McNair J. to be set aside or varied under Rule 399 so as to narrow its scope. [5] In our view, it is open to the appellants to apply to the case management judge under Rule 385 to narrow the statements of intervention of the Trial Interveners so as to ensure that the actual trial is not burdened with individual issues or causes of action that are collateral to the main issues. [6] As to the case management judge's order granting intervener status to NWAC, we can find no reversible error or misuse of his judicial discretion of any kind. While it is true that NWAC seeks to intervene in support of the Crown's position that Bill C-31 is constitutionally valid, Hugessen J. found that its submissions would offer a useful and different perspective than that of the Crown or the Trial Interveners. [7] We are not satisfied that Hugessen J's orders do not comply with Rule 109(3) as alleged by the appellants. Rule 109(3) provides:
The appellants argued that this rule requires a complete set of directions being given at the time the intervention application is granted governing all aspects of the role of the intervener. We do not agree. Hugessen J. gave directions as to the service and filing of the intervention. His order provides that rights of discovery and pre-trial matters shall be as directed by the case management judge and that participation at trial shall be subject to the direction of the trial judge. It is clear that Hugessen J. was cognizant of and put his mind to the requirements of Rule 109(3). This is a very complex case and we see nothing inappropriate in his directions. In a complex case, subject to case management, it makes sense that pre-trial matters be left to the direction of the case management judge and that the participation of interveners at the trial be left to the direction of the trial judge. We are satisfied there has been compliance with Rule 109(3). Costs [8] The appeal should be dismissed. All interveners shall be entitled to one set of costs for Court files A-386-00 and A-387-00 payable throughout in any event of the cause and payable forthwith. "B. Malone" J.A. |
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