Montana Indian Band v. Canada
The motion was dismissed because the materials did not meet the established criteria for admission of new evidence and there were no special circumstances to justify admitting them; the supporting affidavit was vague and insufficient and key paragraphs were withdrawn, leaving the affidavit inadequate to sustain the...
Source-derived case information.
- Citation
- 2002 FCA 318
- Parties
- Appellant: Ermineskin Band et al.; Respondent: Her Majesty the Queen et al.; Respondent: Montana Band et al.; Respondent: Samson Band et al.
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 11 September 2002
- Procedural Posture
- Appeal Motion to Admit New Evidence / Motion Hearing Before the Federal Court of Appeal; Reasons for Order Delivered From the Bench
- Outcome
- Motion dismissed with costs.
- Legal Topics
- New Evidence Admissibility, Affidavit Sufficiency, Costs, Third Party Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ermineskin Band et al.
Appellant
Her Majesty the Queen et al.
Respondent
Montana Band et al.
Respondent
Samson Band et al.
Respondent
Procedural Posture
Appeal Motion to Admit New Evidence / Motion Hearing Before the Federal Court of Appeal; Reasons for Order Delivered From the Bench
Legal Issues
- 1 Whether new evidence should be admitted on appeal
- 2 Whether the affidavit in support met the criteria for admission of new evidence
- 3 Whether special circumstances exist to warrant exercise of discretion to admit new evidence
Ratio Decidendi
The motion was dismissed because the materials did not meet the established criteria for admission of new evidence and there were no special circumstances to justify admitting them; the supporting affidavit was vague and insufficient and key paragraphs were withdrawn, leaving the affidavit inadequate to sustain the conclusions sought.
Court Disposition
Motion dismissed with costs.
Orders
- Motion dismissed with costs.
Full Case Text
Judgment text and source record
1 paragraphs
Montana Indian Band v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2002-09-11 Neutral citation 2002 FCA 318 File numbers A-337-02 Notes Digest Decision Content Date: 20020911 Docket: A-337-02 (Action Nos. T-617-85, T-782-97, T-2804-97) Neutral citation: 2002 FCA 318 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER J.A. Action No. T-617-85 BETWEEN: MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta RESPONDENTS (PLAINTIFFS) - and - HER MAJESTY THE QUEEN RESPONDENT (DEFENDANT) - and - SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians RESPONDENTS (THIRD PARTY) - and - ERMINESKIN BAND, Chief Gerald Robert Ermineskin, and Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Ermineskin Band of Indians APPELLANTS (THIRD PARTY) - AND - Action No. T-782-97 BETWEEN: CHIEF FLORENCE BUFFALO, acting on her own behalf and on behalf of all of the other members of the SAMSON CREE NATION AND BAND - and - THE SAMSON CREE NATION AND INDIAN BAND RESPONDENTS (PLAINTIFFS) - and - HER MAJESTY THE QUEEN IN RIGHT OF CANADA and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario RESPONDENTS (DEFENDANTS) - AND - Action No. T-2804-97 BETWEEN: ERMINESKIN CREE NATION and Chief Gerald Ermineskin, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing on their own behalf and on behalf of the ERMINESKIN CREE NATION APPELLANTS (PLAINTIFFS) - and - HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA RESPONDENTS (DEFENDANTS) Heard at Ottawa, Ontario, on September 11, 2002. Order delivered from the Bench at Ottawa, Ontario, on September 11, 2002. REASONS FOR ORDER BY: LÉTOURNEAU J.A. Date: 20020911 Docket: A-337-02 Neutral citation: 2002 FCA 318 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER J.A. Action No. T-617-85 BETWEEN: MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta RESPONDENTS (PLAINTIFFS) - and - HER MAJESTY THE QUEEN RESPONDENT (DEFENDANT) - and - SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians RESPONDENTS (THIRD PARTY) - and - ERMINESKIN BAND, Chief Gerald Robert Ermineskin, and Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Ermineskin Band of Indians APPELLANTS (THIRD PARTY) - AND - Action No. T-782-97 BETWEEN: CHIEF FLORENCE BUFFALO, acting on her own behalf and on behalf of all of the other members of the SAMSON CREE NATION AND BAND - and - THE SAMSON CREE NATION AND INDIAN BAND RESPONDENTS (PLAINTIFFS) - and - HER MAJESTY THE QUEEN IN RIGHT OF CANADA and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario RESPONDENTS (DEFENDANTS) - AND - Action No. T-2804-97 BETWEEN: ERMINESKIN CREE NATION and Chief Gerald Ermineskin, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing on their own behalf and on behalf of the ERMINESKIN CREE NATION APPELLANTS (PLAINTIFFS) - and - HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA RESPONDENTS (DEFENDANTS) REASONS FOR ORDER LÉTOURNEAU J.A. [1] We are satisfied that this motion fails to meet the criteria governing the admissibility of new evidence and that there are no special circumstances warranting our exercise of discretion to admit it: Amchem Products Inc. v. British Columbia (Worker's Compensation Board (B.C.)) 192 N.R. 390 (S.C.C.); Smith and Nephew Inc. et al. v. Glen Oak Inc. et al. 192 N.R. 271 (F.C.A.). In addition, we believe that the affidavit in support of the motion is vague and insufficient to sustain the conclusions sought in the motion, especially in view of the fact that counsel for the appellant at the hearing withdrew paragraphs 3, 4 (save the last sentence), 5, 6 (save the last sentence), 7, 8 (save the last sentence) and 10 as they related to disputed facts. This leaves only the first paragraph which states that the deponent is a lawyer associated with the law firm representing the appellant, the second paragraph which enunciates that copies of two rebuttal expert reports from the Crown were received, paragraph 9 alleging that the information in these reports was not available to the appellants prior to June 28, 2002 and paragraph 11, the concluding paragraph, which states that the affidavit is given in support of the motion. [2] For these reasons, the motion will be dismissed with costs. "Gilles Létourneau" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-337-02 (Action Nos. T-617-85, T-782-97, T-2804-97) STYLE OF CAUSE: ERMINESKIN BAND ET AL. v. HER MAJESTY THE QUEEN ET AL. PLACE OF HEARING: OTTAWA DATE OF HEARING: September 11, 2002 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER J.A. REASONS FOR ORDER DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A. DATED: September 11, 2002 APPEARANCES: MS. BARBARA FISHER FOR THE APPELLANTS ERMINESKIN BAND ET AL. MS. SHEILA M. READ and FOR THE RESPONDENTS MR. PAUL HENDERSON HER MAJESTY THE QUEEN ET AL. MS. SYLVIE MOLGAT FOR THE RESPONDENTS MONTANA BAND ET AL. SOLICITORS OF RECORD: BLAKE CASSELS & GRAYDON FOR THE APPELLANTS VANCOUVER, B.C. ERMINESKIN BAND ET AL. DEPUTY ATTORNEY GENERAL FOR THE RESPONDENTS OF CANADA HER MAJESTY THE QUEEN ET AL. OTTAWA, ONTARIO DUBUS OSLAND FOR THE RESPONDENTS OTTAWA, ONTARIO MONTANA BAND ET AL.