Waquan v. Canada,

• Judge: Côté, Russell and Costigan, JJ.A.
• Neutral Citation: 2002 ABCA 150,2002 ABCA 110
• Date: 28 February 2002
• Court: Court of Appeal (Alberta)

Mikisew Cree First Nation v. Can. (2002), 303 A.R. 43 (CA);

    273 W.A.C. 43

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. MY.060

Chief Archie Waquan on His Own Behalf and on Behalf of the Members of the Mikisew Cree First Nation (respondents/plaintiffs) v. Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of Alberta (appellants/defendants)

(01-00071; 01-00096; 2002 ABCA 110; 2002 ABCA 150)

Indexed As: Mikisew Cree First Nation v. Canada et al.

Alberta Court of Appeal

Côté, Russell and Costigan, JJ.A.

May 6 and June 11, 2002.

Summary:

The plaintiffs, the chief and members of the Mikisew Cree First Nation, issued a statement of claim against the governments of Canada and Alberta in December 1996. Contents were added to and subtracted from the statement of claim three times in 1997. After close of pleadings and discovery of records, and after examinations for discovery of the defendants were virtually complete, the plaintiffs brought a motion seeking to make further extensive amendments to the statement of claim.

The Alberta Court of Queen's Bench, in a decision reported at 278 A.R. 375, allowed certain proposed amendments and disallowed other proposed amendments. The question of other proposed amendments was deferred because they raised issues of new causes of action and limitations which could not be determined until trial. The defendants appealed many of the amendments which were allowed and all of the amendments which were deferred.

The Alberta Court of Appeal allowed the appeal, disallowing most of the contested amendments. Most of the contested amendments lacked any evidentiary foundation. Most were also new causes of action raised outside the time limit for suing and lacked any ground to bypass the expired limitation period. There was no warrant for deferring the issues of new causes of actions or limitations to the trial judge.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action - The chief and members of the Mikisew Cree First Nation brought an action against the governments of Canada and Alberta - The plaintiffs applied to make extensive amendments to their already amended statement of claim - The only evidence to support the amendments was two affidavits of a legal assistant who had no personal knowledge - The chambers judge allowed certain proposed amendments and disallowed other proposed amendments - The question of other proposed amendments which raised issues of new causes of action and limitations were deferred to the trial judge - The defendants appealed - The Alberta Court of Appeal allowed the appeal, disallowing most of the contested amendments - Most of the contested amendments lacked any evidentiary foundation - Most were also new causes of action raised outside the time limit for suing and lacked any ground to bypass the expired limitation period - There was no warrant for deferring the issues of new causes of actions or limitations to the trial judge.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action which is statute barred - [See Practice - Topic 2110 ].

Practice - Topic 2131

Pleadings - Amendment of pleadings - Leave - Evidence - [See Practice - Topic 2110 ].

Practice - Topic 2131

Pleadings - Amendment of pleadings - Leave - Evidence - The Alberta Court of Appeal stated that an amendment to a pleading to allege new facts of substance required some evidence, even if there was no question of limitation periods - See paragraph 26.

Practice - Topic 4490

Discovery - Use of examination in court - General - The Alberta Court of Appeal discussed what discovery material was admissible in evidence and against whom -The court stated that no one could adduce his or her own answers given on examination for discovery as evidence - Employees or ex-employees could be examined for discovery, but their answers were not admissible in evidence at all - An answer given by a party on examination for discovery was admissible in evidence against that party, but it was inadmissible against any other party, whether on the same side or not - See paragraphs 14 to 17.

Practice - Topic 4496

Discovery - Use of examination in court - Use of discovery evidence of one defendant against another defendant - [See Practice - Topic 4490 ].

Practice - Topic 4497

Discovery - Use of examination in court - Use of discovery evidence of one plaintiff against another plaintiff - [See Practice - Topic 4490 ].

Practice - Topic 4643

Discovery - Affidavit or list of documents - Effect of making - The Alberta Court of Appeal stated that in general, an affidavit of records does not transform any of the records (documents) listed in any of its schedules into evidence and that an affidavit of records never made a record evidence of the truth of its contents - See paragraphs 20 to 22.

Cases Noticed:

Paquin v. Gainers Inc., [1990] 2 W.W.R. 378; 101 A.R. 290 (C.A.), refd to. [para. 15].

Sterling Trusts Corp. v. Postma, [1965] S.C.R. 324; 48 D.L.R.(2d) 423, refd to. [para. 15].

Pelican Oil & Gas Co. v. Northern Alberta Natural Gas & Development Co., [1918] 1 W.W.R. 957; 14 Alta. L.R. 172 (C.A.), refd to. [para. 16].

McLean v. C.P.R. (No. 1) (1916), 10 W.W.R. 949; 12 Alta. L.R. 61 (C.A.), refd to. [para. 16].

Empire Financiers v. Nance, [1920] 1 W.W.R. 694; 16 Alta. L.R. 109 (C.A.), refd to. [para. 16].

Dench v. Albertan Publishing Co., [1931] 2 W.W.R. 116; 25 Alta. L.R. 326 (C.A.), refd to. [para. 16].

Syncrude Canada Ltd. et al. v. Canadian Bechtel Ltd. et al., [1994] 4 W.W.R. 397; 149 A.R. 54; 63 W.A.C. 54; 16 Alta. L.R.(3d) 153 (C.A.), refd to. [para. 17].

Opron Construction Co. v. Alberta (1990), 100 A.R. 58 (C.A.), refd to. [para. 17].

Crown Life Insurance Co. v. A.E. Lepage (Ont.), [1989] A.U.D. 152 (Alta. C.A.), refd to. [para. 26].

Wil-Ton Construction Ltd. v. Amerada Minerals Corp. of Canada Ltd. et al. (1989), 98 A.R. 296; 61 D.L.R.(4th) 360; 69 Alta. L.R.(2d) 285 (C.A.), refd to. [para. 26].

Udovitch Estate v. Helm Estate (2001), 286 A.R. 185; 253 W.A.C. 185 (C.A.), refd to. [para. 26].

Luscar Ltd. and Norcen Energy Resources Ltd. v. Pembina Resources Ltd., [1995] 2 W.W.R. 153; 162 A.R. 35; 83 W.A.C. 35; 24 Alta. L.R.(3d) 305 (C.A.), refd to. [para. 83].

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307; 71 Alta. L.R.(3d) 50 (C.A.), refd to. [para. 84].

Authors and Works Noticed:

Holmested, G.S., and Gale, G.A., The Ontario Judicature Act and Rules of Practice (1997 rev.) rule 132 §10 [para. 61].

Counsel:

V.W. May, Q.C., and J.R.W. Rath, for the respondents;

P. Hodgkinson, for the appellant, Her Majesty the Queen in Right of Canada;

E. Bunnell, Q.C. and A. Argento, for the appellant, Her Majesty the Queen in Right of Alberta.

This appeal was heard on February 28, 2002, before Côté, Russell and Costigan, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the Court of Appeal on May 6, 2002, and a supplementary memorandum of judgment on June 11, 2002.