Responding Affidavit (Heather Leonoff)

Transcription

2003 CPCMotion 41795
Page 1
View Motion Document Collection - 2003 CarsMotionW 8880
© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved.
Court document related to:
Manitoba Metis Federation Inc. v. Canada (Attorney General), 2003 CarswellMan 62, 29 C.P.C. (5th) 148
Document appears as reproduced from court files, including any omissions or deficiencies arising from the reproduction process.
*****START OF COURT DOCUMENT*****
File No. CI 81-01-01010
THE QUEEN'S BENCH Winnipeg Centre
BETWEEN:
BILLYJO DE LA RONDE, ROY CHARTRAND, RON ERICKSON, CLAIRE RIDDLE, JACK FLEMING, JACK
McPHERSON, DON ROULETTE, EDGAR BRUCE Jr., FREDA LUNDMARK, MILES ALLARIE, CELIA KLASSEN, ALMA BELHUMEUR, STAN GUIBOCHE, JEANNE PERAULT, MARIE BANKS DUCHARME, EARL
HENDERSON, AND MANITOBA METIS FEDERATION INC. SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHER DESCENDANTS OF METIS PERSONS ENTITLED TO LAND AND OTHER RIGHTS
UNDER SECTION 31 AND 32 OF THE MANITOBA ACT, 1870 AND NATIVE COUNCIL OF CANADA INC.,
Plaintiffs,
—and—
THE ATTORNEY GENERAL OF CANADA AND THE ATTORNEY GENERAL OF MANITOBA,
Defendants.
DEPARTMENT OF JUSTICE, Constitutional Law Branch
1205 - 405 Broadway
Winnipeg, Manitoba
Accessed using Litigator, a Westlaw Canada service.
Page 2
R3C 3L6
Holly Penner
Telephone: (204) 945-0679
Facsimile: (204) 945-0053
AFFIDAVIT OF HEATHER LEONOFF, Q.C. Affirmed the 14 th day of December, 2001
Hearing Date: Tuesday, January 8th, 2002 at 10:00 a.m.
DEPARTMENT OF JUSTICE
Constitutional Law Branch
1205 - 405 Broadway
Winnipeg, Manitoba
R3C 3L6
Holly Penner
Telephone: (204) 945-0679
Facsimile: (204) 945-0053
THE QUEEN'S BENCH
Winnipeg Centre
BETWEEN:
BILLYJO DE LA RONDE, ROY CHARTRAND, RON ERICKSON, CLAIRE RIDDLE, JACK FLEMING, JACK
McPHERSON, DON ROULETTE, EDGAR BRUCE Jr., FREDA LUNDMARK, MILES ALLARIE, CELIA KLASSEN, ALMA BELHUMEUR, STAN GUIBOCHE, JEANNE PERAULT, MARIE BANKS DUCHARME, EARL
HENDERSON, AND MANITOBA METIS FEDERATION INC. SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHER DESCENDANTS OF METIS PERSONS ENTITLED TO LAND AND OTHER RIGHTS
UNDER SECTION 31 AND 32 OF THE MANITOBA ACT, 1870 AND NATIVE COUNCIL OF CANADA INC.,
Plaintiffs,
—and—
THE ATTORNEY GENERAL OF CANADA AND THE ATTORNEY GENERAL
OF MANITOBA,
Defendants.
Page 3
AFFIDAVIT OF HEATHER LEONOFF
I, HEATHER LEONOFF, of the City of Winnipeg, in the Province of Manitoba, lawyer, AFFIRM THAT:
1. I am Counsel with the Constitutional Law Branch of the Department of Justice for the Province of Manitoba and I have
had conduct of this litigation since September, 1998. As a result of having had conduct of this litigation, and having reviewed
the file created prior to my assuming conduct of this litigation, I have personal knowledge of the facts and matters hereinafter
deposed to by me except where those facts are stated to be on information and belief.
2. The Statement of Claim was originally filed in this matter on April 15th, 1981. I have informed myself by reviewing the
file and do believe that from that date to this the following concrete steps have been taken in this litigation:a) On July 17th,
1981, the defendant Attorney General of Canada filed a Statement of Defence;b) On August 26th, 1981, the plaintiffs filed an
Amended Statement of Claim;c) On January 25th, 1982, the defendant Attorney General of Manitoba filed a Statement of
Defence;d) On January 8th, 1987, the plaintiffs filed a Further Amended Statement of Claim;e) On February 18th, 1987, Justice Barkman of the Court of Queen's Bench dismissed the motion of the Attorney General of Canada to strike the plaintiffs'
Statement of Claim;f) On March 3rd, 1987, the plaintiffs filed a Further Amended Statement of Claim which appears to be
identical to the January 8th, 1987 Further Amended Statement of Claim;g) On June 17th, 1988, the Manitoba Court of Appeal reversed the decision of Justice Barkman and struck the plaintiffs' Statement of Claim as against the Attorney General of
Canada;h) On March 2nd, 1990, the Supreme Court of Canada allowed the plaintiffs' appeal and reversed the decision of the
Manitoba Court of Appeal;i) On October 29th, 1990 and October 30th, 1990 respectively, the Attorneys General of Manitoba
and Canada brought motions for particulars;j) On December 20th, 1990, both motions were dismissed by Justice Schwartz of
the Court of Queen's Bench;k) On February 9th, 1991, an Order was signed allowing the plaintiffs to file another Amended
Statement of Claim. It is not clear from the Court pocket whether this Amended Statement of Claim was ever filed;l) On December 30th, 1991, the Court of Appeal reversed the decision of Justice Schwartz and ordered that particulars be provided;m)
On September 1st, 1992, the plaintiffs filed particulars;n) On December 24th, 1992, the Attorney General of Canada filed a
Statement of Defence to the Amended Statement of Claim;o) In March, 1995, the plaintiffs served an Affidavit of Documents;p) On October 31st, 1995, the plaintiffs filed a Further Amended Statement of Claim;q) In December, 1997, the Attorney General of Canada served an Affidavit of Documents; andr) In March, 2001, the Attorney General of Manitoba served an
Affidavit of Documents.
3. The Statement of Claim filed on January 8th and March 3rd, 1987 contains two allegations of particular concern to the
Attorney General of Manitoba. The first is the allegation in paragraph 7 that the impugned federal and provincial legislation
"had the purpose and effect of stripping the Metis of the land base promised to them under sections 31 and 32 of the Manitoba Act, 1870". The second is the allegation in paragraph 13 that "[a]pproximately 85% of Metis persons entitled to rights under sections 31 and 32 of the Manitoba Act failed to receive or were deprived of such rights by reason of this unconstitutional
federal and provincial legislation purporting to alter those rights". These allegations are also found in the Statement of Claim
filed on October 31st, 1995, which is the operative Statement of Claim.
4. These allegations are problematic for the Attorney General of Manitoba because they do not indicate the extent to which
the impugned provincial, as opposed to the impugned federal, legislation allegedly had the effect of depriving the Metis of
their rights under sections 31 and 32 of the Manitoba Act. To address this and other issues, a Demand for Particulars was
made on May 23, 1990 and on October 29, 1990 a Motion for Particulars was brought.
Page 4
5. The Order for Particulars issued by the Court of Appeal requires, amongst other things, that the plaintiffs specify "with
respect to each enactment, each and every Metis person to whom it is alleged an interest in land was not conveyed as promised" and "each and every Metis person whose interest in land already conveyed to him or her is alleged to have been stripped
from him or her as the case may be".
6. The plaintiffs did provide particulars. However, they never provided the detailed information relating to deprivation ordered by the Court of Appeal. Rather, the plaintiffs say at page 16 of their particulars that "[i]t is not practical to provide particulars in the detail set forth in paragraphs 2(b)(i) to (iv) in the Order of the Court of Appeal." In providing alternative information, the plaintiffs rely upon paragraph 2(b)(vii) of the Order, which says that "if particulars cannot be given in such
detail, the facts relied on as demonstrating that each enactment had the alleged effect". As I understand it, the essence of the
dispute between the plaintiffs and the Attorney General of Manitoba regarding whether the Order has been complied with is
whether the plaintiffs are entitled to rely upon paragraph 2(b)(vii) of the Order.
7. On November 18th, 1999, the Attorney General of Manitoba received a copy of a proposed Amended Statement of Claim
from James Aldridge and Thomas Berger, the lawyers for the individual plaintiffs and the Manitoba Metis Federation. That
proposed Amended Statement of Claim made small, although not necessarily insignificant, changes to the Statement of Claim
filed on October 31st, 1995. The issue of deprivation continued to be a concern to the Attorney General of Manitoba.
8. On November 26th, 1999, a meeting of all counsel was held to discuss, amongst other things, the November 18th, 1999
proposed Amended Statement of Claim.
9. By letter dated March 15th, 2000, the Attorney General of Manitoba received a copy of another proposed Amended Statement of Claim from Messrs. Berger and Aldridge with a request for the defendants to consent to the filing of this pleading.
The March 15th, 2000 proposed Amended Statement of Claim was quite different from any Statement of Claim, either proposed or filed, that I had seen to that date. It was in similar, although not identical, terms to the Amended Statement of Claim
that the plaintiffs now seek to file.
10. The March 15th, 2000 proposed Amended Statement of Claim deleted the "purpose and effect" allegation contained in
paragraph 7 of the March 3rd, 1987 and subsequent Statements of Claim. It also expanded the deprivation allegation contained in paragraph 13 of the January 8th, 1987 and subsequent Statements of Claim. Further, it sought, for the first time, a
declaration that Manitoba "unconstitutionally interfered with the fulfillment of the obligations under section 31 of the Act".
11. The Attorney General of Manitoba had some concerns with the March 15th, 2000 version of the Amended Statement of
Claim which were communicated to Messrs. Aldridge and Berger. During the next several months correspondence was exchanged and meetings were held amongst lawyers for the various parties to identify and discuss the concerns of the parties
with a view, amongst other things, to arriving at a form of pleading to which the Attorney General of Manitoba could consent.
12. Amendments were made to the March 15th, 2000 version of the Amended Statement of Claim as least partially a result of
the exchange of correspondence and the meetings. By letters dated August 2nd, 2000 and December 5th, 2000, the Attorney
General of Manitoba received revised versions of the proposed Amended Statement of Claim. I understood from communica-
Page 5
tions with Messrs. Berger and Aldridge that the December 2000 version of the proposed Amended Statement of Claim was a
final version. They requested that the defendants advise whether we would consent to the filing of this version of the proposed Amended Statement of Claim.
13. At the date of affirming this affidavit I have not seen the plaintiffs' material on their motion to file an Amended Statement
of Claim but I believe, based upon communications with Messrs. Berger and Aldridge, that the Amended Statement of Claim
that they seek to file at this time is identical to the December 2000 version of the proposed Amended Statement of Claim.
14. By letter dated March 5th, 2001, Mr. Berger addressed the on-going dispute between the parties regarding whether the
plaintiffs had complied with the Order for Particulars. Mr. Berger indicated that he took the position that the proposed
Amended Statement of Claim, in combination with amended Particulars to be filed, complied with the Order for Particulars
made by the Court of Appeal in December, 1991. Neither of these documents contains the detailed information referred to
previously. I believe that the essence of the dispute continues to be as described in paragraph 6 of my affidavit.
15. It was my position, and continues to be my position, that the expanded allegations against the Attorney General of Manitoba made the detailed particulars ordered by the Court of Appeal more necessary, not less.
16. As a result, Mr. Berger was advised by letter dated March 14th, 2001 that we did not agree with his position with respect
to the Order for Particulars and that the Attorney General of Manitoba would not consent to the filing of the proposed
Amended Statement of Claim until either the Order was complied with or varied.
17. Following this exchange of correspondence, I attended another meeting of counsel on May 29th, 2001. At that meeting
we discussed a number of outstanding issues including our dispute over the Court of Appeal Order. I understood our mutual
goal to be to move this litigation to trial in the most expeditious manner possible. With that goal in mind, I advised Messrs.
Berger and Aldridge that the Attorney General of Manitoba would not require strict compliance with the Court of Appeal
Order on two conditions. First, the individual plaintiffs would provide me with authorizations to allow me to have genealogical research conducted at the expense of the Attorney General of Manitoba. Second, the plaintiffs would provide me with
specific information regarding the alleged deprivation caused by the impugned provincial legislation. On this latter point, I
agreed to tell the lawyers for the plaintiffs exactly what information I would require in order to waive strict compliance with
the Court of Appeal Order. However, I was not in a position to do so at that meeting.
18. I told the lawyers for the plaintiffs at the May 29th meeting that, once I had received the information and authorizations
the Attorney General of Manitoba would consent to the filing of the Amended Statement of Claim. In addition, there would
be no need to examine the individual plaintiffs for discovery if I was able to establish their genealogy through this alternate
means and there would be no need to formally resolve our dispute over the Court of Appeal Order. I understood that Messrs.
Berger and Aldridge agreed to use their best efforts to provide the information and authorizations.
19. The next day, on May 30th, 2001, a case management conference was held in this matter. At the case management conference, counsel for the parties indicated that we had met the previous day and had reached various agreements concerning
the conduct of this litigation with the common intention of moving this litigation forward as expeditiously as possible. The
disagreement between the parties regarding the Court of Appeal Order was identified and very briefly discussed but not resolved. The agreement referred to in the preceding paragraphs was neither specifically described nor alluded to. Rather, I said
Page 6
that the Attorney General of Manitoba could not consent to the filing of the Amended Statement of Claim because there were
some things that needed to be done first. I said that the Attorney General of Manitoba anticipated being able to consent to the
filing of the Amended Statement of Claim in the fall. This representation was based upon my understanding that the information and authorizations would have been provided by that time.
20. Although these details were not articulated at the case management conference, I consented to the May, 2002 date on the
understanding, and in the belief, that the authorizations and information would be provided in a timely manner. This would
have given my researcher time to complete the genealogical research and would have eliminated the need for seventeen individual discoveries. My intention was to consent to the May, 2002 date as a tentative one, subject to the completion of these
matters in a timely manner.
21. On June 11th, 2001, I wrote to Mr. Aldridge requesting the authorizations. Attached hereto and marked as Exhibit "1" to
this my affidavit is a true copy of that letter.
22. I followed up my request by letter dated September 5th, 2001, a true copy of which is attached hereto and marked as Exhibit "2".
23. From time to time between September 5th, 2001 and November 22nd, 2001 I received authorizations signed by various
individual plaintiffs from Harley Schachter, another of the lawyers for the individual plaintiffs and the Manitoba Metis Federation. Each time I received an authorization or authorizations I promptly forwarded it or them to Dorothy Lockhart, the
researcher hired by the Attorney General of Manitoba.
24. I am told by my assistant Angie Birch, and do believe, that on two occasions, Ms Lockhart telephoned to advise of her
progress and to ask for additional information regarding the plaintiffs. Attached hereto and marked as Exhibits "3" and "4"
are true copies of Ms Birch's memorandums to me dated September 17th, 2001 and November 26th, 2001
25. Following each communication from Ms Lockhart, I passed her requests for additional information on to the lawyers for
the individual plaintiffs, initially by letter dated September 21st, 2001 and most recently in a conference call on November
30th, 2001 amongst all counsel. A true copy of my September 21st, 2001 letter is attached and marked as Exhibit "5".
26. On October 24th, 2001, I received a letter from Mr. Berger advising, amongst other things, that he had not been able to
obtain authorizations from a number of the individual plaintiffs. A true copy of that letter is attached hereto and marked as
Exhibit "6".
27. I responded to that letter by letter dated November 6th, 2001, a true copy of which is attached hereto and marked as Exhibit "7".
28. At the present time, I have received authorizations from seven of sixteen individual plaintiffs. However, more information is required from each of these plaintiffs in order to complete the research. If that information is not provided voluntarily, examinations for discovery will be required.
Page 7
29. I have not received authorizations from nine of the sixteen individual plaintiffs. Further, I have not received an authorization from Yvon Dumont, which will be required if he is added as an individual plaintiff as is contemplated by the most recent
proposed Amended Statement of Claim that I have seen.
30. I do not know whether Messrs. Berger and Aldridge have been unable to contact the individuals who have not provided
authorizations or whether those individuals have refused to sign authorizations. Either way, if the authorizations are not
forthcoming, examinations for discovery will be necessary for each of those individuals. If authorizations are forthcoming, I
do not believe, based upon the information provided to me by Ms Lockhart, that the research can now be completed in time
for the May, 2002 trial date.
31. In addition to the individual plaintiffs, the Attorney General of Manitoba needs to examine a representative of the Manitoba Metis Federation and a representative of the Congress of Aboriginal People for discovery. However, I can not begin
these examinations for discovery until the pleadings are closed.
32. During the conference call on November 30th, 2001 Mr. Aldridge advised, and I believe, that the plaintiffs may need to
examine a representative of each defendant for discovery once the pleadings are closed. However, Mr. Aldridge advised, and
I believe, that the lawyers for the plaintiffs cannot make that determination until they have seen the final Statements of Defence.
33. I have not yet received the information regarding deprivation that I require in order to waive strict compliance with the
Court of Appeal Order. The dispute regarding that matter remains unresolved.
34. During the November 30th telephone conversation I advised all lawyers that, in light of the matters described in this affidavit, the Attorney General of Manitoba would require an adjournment of the May, 2002 trial dates. I was told by the lawyers
for the plaintiffs, and did believe, that they would not consent to an adjournment.
35. I make this affidavit bona fide in support of the motion of the Attorney General of Manitoba to adjourn the trial of this
matter and in opposition to the motion of the plaintiffs to file a further Amended Statement of Claim.
AFFIRMED before me
)
in the City of Winnipeg,
)
in the Province of Manitoba,
)
this 14th day of December, 2001.
)
)
A Barrister-at-law entitled to practice
)
HEATHER LEONOFF, Q.C.
in and for the Province of Manitoba
END OF DOCUMENT
Page 8

Responding Affidavit (Heather Leonoff)

Transcription

Similar documents