2003 CPCMotionF 8595
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2003 CPCMotionF 8595
View Motion Document Collection - 2003 CarsMotionW 8881
Motion Factum
Subject: Civil Practice and Procedure; Public
Court of Queen's Bench Rules Rule 48, Rule 52.02
Date: January 4, 2002
© 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*****
No. CI 81-01-01010
THE QUEEN'S BENCH WINNIPEG CENTRE
BETWEEN:
BILLYJO DE LA RONDE and others 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:
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL OF MANITOBA
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DEFENDANTS
ROSENBLOOM & ALDRIDGE
1300 - 355 Burrard Street
Vancouver, B.C.
V6C 2G8
Thomas R. Berger Q.C.
James R. Aldridge Q.C.
Joseph Magnet
Ph: 605-5555
Fx: 684-6402
Included Documents
Plaintiffs' Position
Amendment of the Statement of Claim
Discoveries
Collective Deprivation and the Alleged Need for Further Research
PLAINTIFFS' BRIEF RE: DEFENDANTS' MOTIONS TO ADJOURN
Hearing Date: Tuesday, January 8, 2002, at 10 a.m. before Justice Oliphant
ROSENBLOOM & ALDRIDGE
1300 - 355 Burrard Street
Vancouver, B.C. V6C 2G8
Ph: 605-5555 Fx: 684-6402
Thomas R. Berger, Q.C.
James R. Aldridge, Q.C.
Joseph Magnet
PLAINTIFFS' POSITION
1. The Plaintiffs oppose the applications to adjourn the trial of this matter. The Plaintiffs say, with respect, that the
Defendants have had, and continue to have, ample time to prepare a full answer and defence to the Plaintiffs' case,
and there is no reason why they cannot, in the time remaining before the scheduled trial date, complete their prepara-
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tion.
2. The Defendants each base their requests for an adjournment of the trial on issues relating to the order for particulars made by the Manitoba Court of Appeal on December 30, 1991, to their desire to conduct examinations for discovery, and to their asserted need to perform still more historical research.
3. The Plaintiffs say, in brief, that they complied in 1992 with the order for particulars, that they have gone further
than was ordered by providing additional particulars in the proposed amended Statement of Claim, that much of the
proposed discovery and research is irrelevant to the issues in the action, and that the Defendants have had notice of
the nature of the Plaintiffs' case for many years and could by now have conducted all necessary and relevant research.
AMENDMENT OF THE STATEMENT OF CLAIM
4. The Defendants have had notice of the proposed amended Statement of Claim since December, 2000. They knew
of the general nature of the proposed amendments since at least March 2000. It was the Plaintiffs' hope that consent
would be obtained from both Defendants to the amendments without the need for a formal motion. When it became
clear that consent would not be forthcoming from Manitoba, the Plaintiffs brought on their motion for leave to
amend. However, the fact remains that the Defendants have known for more than a year the precise claim to which
they would be expected to plead.
5. As set out in the affidavits, the preparation and delivery to the Defendants of the proposed amendments to the
Statement of Claim followed a number of meetings of counsel during which there was extensive discussion of the
Plaintiffs' approach to the case and how the Defendants' concerns might be addressed. A number of draft amendments were circulated and discussed, in an effort to satisfy the Defendants' requests for more particulars. The
amendments reflect and particularize the Plaintiffs' efforts in this regard.
6. As early as April, 2001. Canada indicated it would consent to the amendments, while reserving its position in
respect of the need for further particulars and discovery. Manitoba has taken a different approach.
7. As indicated in the materials filed in support of the Plaintiffs' Motion to Amend the Statement of Claim. Manitoba
refused to consent to the amendments, on the ground that the Plaintiffs had not complied with the order for particulars made by the Court of Appeal. But, aside from the issue of whether the Plaintiffs have fully complied with the
Court of Appeal's order, counsel for Manitoba knew what the allegations in the amended Statement of Claim, once
filed, would be.
8. The Plaintiffs submit that the particulars filed in 1992 complied with the Court of Appeal's order for particulars,
and that the further amendments to the Statement of Claim, in any event, provide still further and better particulars.
9. The Plaintiffs respectfully reject the suggestion that, by filing the Written Argument before pleadings have been
closed, the Plaintiffs have somehow put the cart before the horse. Regardless of the state of the pleadings, there can
be no doubt that the Defendants have known the Plaintiffs' case for several years, and have all along been in a position to develop their pleadings and written arguments.
10. Contrary to the suggestion made by Mr. Anderson in his December 27, 2001 affidavit, and in particular paragraph 43 of that affidavit, the Plaintiffs have asserted since the action was commenced in 1981 that provincial legislation was unconstitutional in that it dealt with matters falling under section 91(24). The assertion that Canada owed
the Metis fiduciary obligations, including in particular the obligation to ensure that the lands selected under section
31 would be of a nature to meet the wishes of the Metis, has been the subject of pleadings and/or the particulars
since 1991 and 1992 (even though the amendment to that effect was ordered but not filed). Moreover, in paragraph
17 of its amended Statement of Defence filed on December 24, 1992. Canada specifically pleaded to the allegation
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of the existence of a fiduciary duty. The assertion that a treaty was reached between the Provisional Government and
the Government of Canada has been consistently made by the Plaintiffs, and is expressly included in the particulars
filed by the Plaintiffs in 1992. Canada has not been taken by surprise by any of these matters.
11. The Plaintiffs filed their Written Argument on December 27, 2001, as they had committed to do at the Case
Management Conference held on May 30, 2001. The Argument reflects the approach to the case that the Plaintiffs
have adopted all along and discussed with counsel for the Defendants, and that is founded on the allegations of fact
in the amended Statement of Claim.
DISCOVERIES
12. The Plaintiffs do not agree that discovery on the matters likely to be in issue in this case need be lengthy or time
consuming. The Plaintiffs have already disclosed the evidence on which they intend to rely.
13. The case at bar depends on the historical record contained in the more than 28 volumes of documents that have
been in the possession of all the Parties for several years. Indeed, most of the documents were supplied by Canada to
the other Parties in 1998 and augmented by a smaller number thereafter. The record has been further augmented by
additional documents provided by Manitoba, and, finally, by a small number of supplementary documents located
and provided to all Parties by the Plaintiffs over the course of the last 18 months.
14. The Plaintiffs, with the agreement of the Defendants, have compiled these documents into a set of more than 28
volumes, arranged in chronological order. Copies of the compilations were provided to the Parties on September 12,
2000, and a copy reserved for the Court. The Parties have agreed to share the cost of the production of these volumes. A number of supplementary documents, some of which were on the original federal and MMF lists of documents, and a small number of additional documents, were provided to the Defendants later in 2000 and in 2001.
15. In July of 2001 a "Book of Extracts" listing the documents that the Plaintiffs consider to be most relevant to the
case, and on which they intend to rely, was provided to the other Parties. The documents listed therein currently
comprise approximately seven volumes. The Plaintiffs have invited the Defendants to advise of any additional documents that they consider should be added to the Book of Extracts so that a more manageable common set of documents can be used by all Parties and the Court. To date, no additions have been suggested. An updated Book of Extracts has now been provided to the Defendants. It, of course, can be added to by the Defendants as we approach the
trial date.
16. In these circumstances, the utility of examinations for discovery is open to question. At the Case Management
Conference held May 30, 2001, His Lordship Mr. Justice Oliphant noted:
8. Mr. Anderson advised that examinations for discovery have not been conducted as of yet. Mr. Anderson indicated that the individual plaintiffs will not be examined for discovery respecting the historical matters involved
in this action but that he expects to be examining at least some of them for discovery on other issues relating to
this litigation.
17. Once the historical issues are set aside, it is difficult to see what questions might be put which would pertain to
the action.
18. Counsel for Canada sent to counsel for the Plaintiffs an outline of proposed questions to be put to David Chartrand, the president of the Manitoba Metis Federation. They relate to two subjects:
(a) the structure of the MMF and the position that it might take on a number of issues should negotiations in respect
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of its land claim be commenced; and
(b) Mr. Chartrand's line of descent, etc.
19. Canada has reserved its position in respect of discovery about the detailed genealogy of the other plaintiffs. It is
worth noting that in its 1990 Demand for Particulars, Canada had sought particulars of the individual plaintiffs' genealogy, specifically, "particulars of... the persons from whom the Plaintiffs referred to in paragraph 2A are said to
be descended" (April 20, 1990 letter to counsel for the MMF from counsel for Canada, Exhibit "A" to the affidavit
of Harley Schachter sworn January 4, 2002). This request was denied by both the Chambers Judge and the Court of
Appeal.
20. Without agreeing that Canada's proposed questions are material, we are quite prepared to have Mr. Chartand
answer them, subject to objection, at an examination for discovery. Indeed, such was arranged for November 25,
2001, and was adjourned by consent to accommodate counsel for Canada. Given the importance of this case to the
MMF, Mr. Chartrand will make himself available at almost any time.
21. Counsel for Canada has indicated that he intended to conduct a short discovery of the Plaintiff Congress of Aboriginal Peoples ("CAP"). CAP has indicated that it is ready to proceed with this examination at any reasonable time.
Counsel for Canada has indicated that he would have few questions to ask of CAP. These questions are basically the
same as will be asked of the Plaintiff MMF, as indicated above. Accordingly, for this examination, Canada has little
to prepare, little to discuss and little to do. Examining CAP for discovery is not a reason to delay the trial of this
action. (See correspondence between J. Magnet and P. Andersen dated Dec. 13, 2001. attached as exhibit "B" to the
affidavit of Harley Schachter sworn January 4, 2002.)
22. The Plaintiffs are not aware whether Manitoba wishes to examine Plaintiffs for discovery in respect of any matters different from those generally described above.
23. As set out in Ms. Leonoff's affidavit, she has advised the Plaintiffs that there would be no need to examine the
individual plaintiffs for discovery if she were able to establish their genealogy through research that she would conduct upon receiving releases or authorizations from the individual plaintiffs. Although it is the Plaintiffs' position
that the genealogy of the individual plaintiffs is irrelevant to the issues in the case at bar, counsel for the Plaintiffs
agreed to attempt to obtain and provide the authorizations so as to expedite matters, while reserving our position as
to the relevance of the information.
24. Despite considerable efforts, we have not been able to obtain authorizations from all individual plaintiffs; those
we have been able to obtain have been forwarded to counsel for Manitoba.
25. The difficulty is that the individuals concerned were named in the action, with three exceptions, in their capacity
as members of the Board of Directors of the plaintiff MMF. The individuals' names were added originally in 1987
(with some amendments since then). They were not named as constituting a statistically relevant sample of Metis
individuals, or a statistically representative set of the persons descended from the Metis people entitled to rights under sections 31 and 32 of the Manitoba Act. Today, all but one of those individuals are no longer members of the
Board.
26. In any event, the information contained in the authorizations thus far obtained has not proven satisfactory to
Manitoba. While the contents of the authorization form were originally settled by counsel for the Plaintiffs and
counsel for Manitoba, Manitoba has subsequently indicated that it wishes further information from those who have
signed the authorizations.
27. While still maintaining that all such information is irrelevant, counsel for the Plaintiffs offered to counsel for
Manitoba to provide authorizations from the current Board of Directors, which would he as "representative" a sample as the former Board. (See Exhibit 6 to Leonoff affidavit.) Counsel for the Province rejected this suggestion in her
letter dated November 6, 2001. suggesting instead that the Plaintiffs "must make all necessary effort, including if
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necessary, hiring a private investigator to locate these individuals". (See Exhibit 7 to Leonoff affidavit.)
28. With respect. Manitoba's position seems to confuse "representative proceedings" with a "representative sample".
The individual Plaintiffs were named to obviate the need to address the issue of whether a corporate body such as
the MMF would have standing to bring the action. They bring the action as representatives of the descendants of
people who had rights under the Manitoba Act. Their standing to do so has been affirmed by the Supreme Court of
Canada. They do not purport to be a "representative sample". The list of individual plaintiffs could as easily have
been those who have returned the authorizations, or it could be the current Board, or it could be a single individual.
This would not have affected the Plaintiffs' case in any way.
29. Nothing whatsoever turns on who the ancestors of the particular members of the list might turn out to be. whether or not they happened to be among those who finally received a grant without having first sold it to a speculator, or
who received relatively valuable land instead of swamp or bald prairie, or whose interests were properly protected
by the Court, or who might have received a reasonable payment instead of a mere trille for their land. This would
simply he a matter of statistical accident.
30. Suppose that a study revealed that 99% of the ancestors of the individual plaintiffs sold their land as infants, before grant and for unconscionably low prices. Would the Defendants agree that this was evidence that 99% of all
Metis in the province in 1870 suffered similar deprivation? Of course not. Suppose the study were to reveal that
99% of the ancestors either kept their land, or sold it after patent for a fair market price. Would the Plaintiffs agree
that this meant that 99% of their ancestors were so fortunate? To ask the question is to answer it.
31. The fact is, the nature and extent of the deprivation suffered by the Metis people cannot be deduced from the
information sought. Therefore there is no reason to adjourn the trial in order to enable the Defendants to obtain that
information.
32. In this case, the individual Plaintiffs have no different interest or role in the litigation than that of the other descendants of Metis persons entitled to land and other rights under sections 31 and 32 of the Manitoba Act. This is an
action for declarations. No damages are sought. If the action were an action for damages, there would be a three-step
process: to determine liability, damages, and entitlement among the represented class. Issues relating to entitlement
would await the resolution of liability and the assessment of damages. However, in an action for a declaration, no
issue of assessment of damages, or of entitlement to participate in an award of damages, can arise. If it should turn
out that one or more of the individual plaintiffs are not descended from a person entitled to land or other rights under
the Manitoba Act, the declaration would not be affected. The only possible relevance of the individuals' genealogy
would be to their standing to bring the action, and that matter has been resolved by the Supreme Court of Canada in
the ease at bar. Whether or not one or more of the individual plaintiffs' ancestors suffered a particular loss or deprivation is not relevant to the question at bar—whether the Metis as a people were denied rights to which they were
entitled.
33. The Plaintiffs have advised the Defendants that, depending upon what matters are raised in their Statements of
Defence, the Plaintiffs may need to examine representatives of the Defendants for discovery. However, once again,
because of the nature of the case, the Plaintiffs do not anticipate that any such discoveries would be lengthy or time
consuming.
COLLECTIVE DEPRIVATION AND THE ALLEGED NEED FOR FURTHER RESEARCH
34. The Plaintiffs' argument is that there were negotiations which culminated in a treaty. The treaty promises were to
be implemented by enactment of the Manitoba Act. The Plaintiffs claim that the Manitoba Act. properly construed,
tracks the treaty provisions. The Plaintiffs say that these promises were made to the Metisas a people.
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35. The case at bar has all along been limited to a claim for certain declarations. The Plaintiffs do not, in this action,
seek damages. The Plaintiffs have commenced an action in the Federal Court Trial Division in which damages are
sought. By agreement of the Parties this action has remained in abeyance for many years, pending the outcome of
the case at bar. As the Plaintiffs have said since the outset, they believe that a declaration in the case at bar should
lead to negotiations, rather than further litigation.
36. The Plaintiffs' case, as described in detail in the amended Statement of Claim, the Particulars and the Written
Argument, is that under s. 31 of the Manitoba Act, properly construed, the land was to be selected in accordance
with the wishes of the Metis, distribution of land was to take place in family blocks and before grants were made to
new settlers, there were to be conditions as to settlement, and there were to be no sales before grant and no sales
before the age of majority, except in accordance with the laws of general application in Manitoba. All of this was to
be supervised by the Crown which, under s. 31 of the Act, and in accordance with the promises made by Sir John A.
Macdonald and Sir Georges-Etiénne Cartier to the delegates of the Provisional Government and people of the Red
River Settlement, had a fiduciary obligation to the Metis children.
37. Similarly, under s. 32. properly construed, all persons in possession of land were to have that possession confirmed by grants from the Crown, and no payment would be required.
38. In this way, the Metis people would have a secure land base, comprising the land of which they were already in
possession, augmented by the family blocks to be granted to the children. Once secure in their ownership of the
land, the Metis people would be able to determine the future use and disposition of their land in the way that they
considered to be most beneficial to their survival and prosperity in the new province, and in the new era that was
replacing the days of the buffalo hunt.
39. The Plaintiffs' case is that Canada failed to fulfill these obligations, that by a series of unconstitutional statutes
and orders-in-council, and by Canada's administrative action and inaction, the intent of the Manitoba Act was
thwarted. The frustration of the promises was exacerbated by the fact that Manitoba passed a series of statutes undermining the safeguards of the Manitoba Act and facilitating sales of the children's lands. These statutes were inconsistent with the Manitoba Act and trenched upon s. 91(24) of the Constitution Act, 1867.
40. Any suggestion that the Plaintiffs have only now, in the amended Statement of Claim, argued collective deprivation, as opposed to individual deprivation, is unsound. Collective deprivation has been the Plaintiffs' claim since the
commencement of the action.
41. The Plaintiffs cannot show what happened to each and every Metis, both children and adults, to deprive them of
specific parcels of land. That is why, in supplying the particulars ordered by the Court of Appeal in 1991, the Plaintiffs followed the second option given by the Court. Moreover, much of the deprivation, such as that caused by delay, random selection and alienability prior to grant, affected the Metis children generally. If it was not abundantly
clear beforehand, the Defendants have known since the Plaintiffs filed the Particulars in 1992, that the Plaintiffs base
their claim on collective, not individual deprivation.
42. The Plaintiffs have indicated in their proposed amended Statement of Claim that the impugned measures, taken
together with the administrative action and inaction by Canada, necessarily resulted in a substantial deprivation to
the Metis people. The Plaintiffs say that, upon an examination of all of the actions of the federal and provincial governments, and the historical record, the conclusion can be drawn that the result must have been to deprive the Metis
as a people of a land base and rights that they ought to have received.
43. Canada's defence has always been that it actually did what the Manitoba Act required. It argues that under section 31. land was selected, divided and granted in the names of the Metis children. It may have been seven years
before there was a single allotment, it may have been that some of the children chose to sell their lands, it may have
been that there were almost ten years during which section 32 claims were rejected on the basis of insufficient im-
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provements, but eventually Canada did fulfil the mandate of the Act. Manitoba's defence has seemed to be that it
was entitled to pass the laws that it did, and if individuals chose to sell their lands under those laws, that was the
responsibility of those individuals.
44. If that sort of compliance was all that the Act required, if the impugned statutes did not alter or amend the provisions of the Act, if the promises made by Macdonald and Cartier had no legal significance, and if Manitoba had the
authority to single out Metis children and their lands and to deny them the protection that other children had, then
the Plaintiffs will not he entitled to the declarations sought.
45. However, if the Plaintiffs' construction of the Act and of the assurances given by Macdonald and Cartier is accepted, then the Plaintiffs are entitled to ask the Court to draw the inference that the Metis as a people suffered substantial deprivation. The Plaintiffs submit that an examination of the historical record, in light of what they argue is
the proper construction of the Act, will show that they are not engaged in an academic exercise nor discussing in a
vacuum the validity of measures long since spent. The action has been found by the Supreme Court of Canada to be
justiciable because the declarations, if granted, will be to the advantage of the Metis, even in the absence of a claim
for damages based on individual loss.
46. In its decision overturning the Court of Appeal's decision to strike the case at bar, Wilson J. said for the Supreme
Court of Canada (67 DLR (4th) 159 at 160 ):
The Court is of the view also that the subject matter of the dispute, inasmuch as it involves the constitutionality
of legislation ancillary to the Manitoba Act, 1870 is justiciable in the courts and that declaratory relief may be
granted in the discretion of the court in aid of extra-judicial claims in an appropriate case.
47. This has been the nature of the Plaintiffs' claim all along.
Substantial Deprivation: Section 31
48. The court may make a binding declaration of right whether or not consequential relief is or could he claimed (see
section 34 of the Court of Queen's Bench Act). The Plaintiffs are entitled to seek declarations without having to seek,
or prove, damages. Their entitlement to do so was affirmed by the Supreme Court of Canada.
49. Now it appears that the Defendants want to force the Plaintiffs and the Court to attempt to quantify the damages
suffered, even though no damages are sought. Canada says that in a number of areas, "evidence of appraisal or value" will be required. It wishes, for example, to determine the difference between the market value of the section 31
lands initially chosen by the Metis (presumably in 1871) and compare it to the market value of the land actually
granted (in the late 1870's and early 1880's). It says that "the claim raises a question of set-off of value received
against damage alleged".
50. The Defendants could have commissioned this sort of research many years ago, if they had thought it to be relevant. Indeed, Canada's expert witnesses. Professors Flanagan and Ens have already performed and published similar
research. But in what way would this research be relevant to this action?
51. If, as the Plaintiffs say, the Metis had a right under the Manitoba Act and the fiduciary obligations resting on the
Crown, to land of their own choice, and they did not receive the land that they chose, how is the relative value of
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that land compared to some other land that was granted in their name relevant, except perhaps to a claim for damages? The Plaintiffs would be entitled to a declaration that the Metis' right to have land selected in accordance with
their wishes was infringed. Even if it could be shown that the land they actually received beginning in 1877 and
thereafter, was in a monetary sense as valuable as the land they had chosen seven and more years earlier, it was still
not the land they had chosen. In any event, to prove the value, seven and more years later, of land they had not
chosen, is immaterial. It would not counter the allegation of substantial deprivation. The Metis were to have had
their choice of land before the new settlers arrived and chose their land.
52. Similarly, the Plaintiffs say that the Metis were promised that the land would be held in family blocks. If it can
be established that such a promise was made, and that the land was instead distributed at random, making family
blocks impossible, this represents a substantial deprivation even if the land eventually provided, on a random basis,
could somehow be said to equal in monetary value the land they should have had in family blocks (seven or ten or
twelve years earlier). The random selection deprived the Metis of something they had repeatedly sought, in order to
preserve their culture and their community. The relative market value of the lands is irrelevant to the disruption that
was wrought by random selection.
53. The Plaintiffs also say that the land grants were to be made forthwith following the transfer of the territory to
Canada. But grants were not made for many years, until 1877 and thereafter. This delay self-evidently caused a deprivation. The relative value of the lands in a fluctuating economy might somehow be relevant in a calculation of the
present value of a past loss (if that could even be calculated) but it is quite irrelevant to whether Canada had an obligation to grant the land promptly, and to the question of whether that promise was broken. If, as the Plaintiffs allege,
the land was to be distributed at once, but it was not allotted or granted for more than seven years, that is a substantial deprivation, even if it could be shown that eventually all of the children received land. The fact remains that they
were kept out of their land for seven years and more.
54. The Plaintiffs say that there should have been conditions of settlement on section 31 lands, and no sales of those
lands before grant, in order to ensure that the land was actually for the benefit of the families, not for the benefit of
the speculators. The question is whether there was an obligation to impose these conditions, and to prohibit sales,
and whether this obligation was met. The question is not whether the speculators paid the children a fair price for the
land which ought not to have been sold. The Plaintiffs say that Metis children, like homesteaders, should have unable to sell their interests in lands prior to the grants being issued after the conditions of settlement had been fulfilled.
That is what the delegates of the Provisional Government wanted, and that is what Macdonald and Cartier promised
in the House of Commons. It does not matter for the purposes of a declaration to that effect what price was received
for the sales of the allotments. The fact that the lands were alienable without settlement, and prior to grant, led selfevidently to a substantial deprivation to the Metis people collectively.
55. The Plaintiffs say that provincial legislation singling out Metis children and their lands was unconstitutional as
trenching on section 91(24) of the Constitution Act, 1867. It is not a procondition to seeking such a declaration that
the Plaintiffs allege or prove precisely how many of the Metis children were adversely affected by the unconstitutional laws. Constitutionality does not depend on how many persons are adversely affected. The Plaintiffs will show
that many sales took place under these enactments; indeed it is difficult to imagine that Manitoba or anyone else
could deny it. The question of how many, and for what prices, is quite irrelevant to whether a declaration should be
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granted.
56. Nonetheless, Manitoba takes the position that the Plaintiffs must particularize and prove precisely how many
sales of section 31 land took place prior to the receipt of patent, precisely how many sales took place under provincial laws that dealt solely with half-breed infants, and precisely how many invalid transactions were retroactively
validated by provincial law. The Plaintiffs do not know the answers to these questions—but the historical materials
in the possession of the Parties and referred to in the Particulars and in the Written Argument indicate that there
were many such sales. In order to even find out whether it would be possible to precisely quantify the number of
sales, substantial research would be required. Much of this research would of necessity involve a study of the documents in the provincial land registry offices, documents that the Plaintiffs say are inherently unreliable in the face of
contemporary evidence, such as the testimony of Chief Justice Wood referred to in the Brief submitted in support of
the motion to amend the Statement of Claim. [FN1] The Plaintiffs say that in light of these facts it is not possible or
necessary for the Plaintiffs to answer these questions. And, to repeat the main point, the question of how many children were adversely affected by Manitoba's laws is not relevant to whether those laws were unconstitutional.
57. In his December 27, 2001 Affidavit, Mr. Anderson deposes that the "proposed pleading that the Metis are Indians within the meaning of 91(24) has enormous potential impact on government programs" and refers to the goal of
the Metis National Council (a national organization to which the MMF belongs) to "establish the entitlement of the
Metis to all federal programs and funding currently accorded to registered Indians." It is not clear what relevance
this has to the motion for an adjournment. The Plaintiffs claim that the impugned provincial legislation trenched on
section 91(24) has been in the Statement of Claim since the action was commenced. Canada has certainly had ample
time to consider and prepare its views and evidence on this question as it pertains to this case.
Deprivation under s. 32
58. Under section 32 persons in possession of lands were to receive a free grant of those lands, with hay cutting
rights appurtenant to those lands properly ascertained and adjusted. The question is what sort of possession would
entitle a person to a grant, and whether the federal regulations and policies reflected that promise. For example, in
Ste. Agathe, claims to lands across the river from the lots on which homes were constructed were denied, and ultimately replaced by scrip. The question is whether the grant of scrip fulfilled Canada's obligation; the value of the
scrip compared to that of the lands is not relevant to whether the obligation was fulfilled. It might be relevant to a
claim for damages, but the Plaintiffs are not making such a claim in this action.
59. Finally, Canada apparently wishes to explore the extent to which any failure to fulfill promises under the Manitoba Act may have contributed to the Metis diaspora. This is, of course, unquantifiable. What led the Metis (some of
them) to leave? What led (some of them) to remain in Manitoba? There were no doubt many reasons, upon which
historians have agreed and disagreed. It is not in dispute that many Metis left the province. A definitive proof of all
of the reasons why they left, and the relative importance of those reasons, is almost certainly unachievable, and is in
any event not the subject of any of the declarations sought.
60. Should the declarations be granted, and if, as the Plaintiffs hope, negotiations to settle the Metis land claim take
place, some of the proposed research may be useful to establish the broad parameters of those negotiations, and the
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respective responsibilities of Canada and Manitoba. But it has no bearing on the questions before the Court in these
proceedings.
61. The Defendants' narrow approach—the application to delay the trial to enable the commissioning and completion of the proposed research—simply fails to come to grips with nature and substance of the Plaintiffs' claim.
62. The Plaintiffs submit that the Court should not at this time grant the adjournment sought by the Defendants. The
Plaintiffs submit that the Court should rather fix a schedule for filing Defences and Reply, leaving it to the Parties to
organize examinations for discovery and any other pre-trial matters. The Court has already set dates for Written Arguments. If, given their best efforts, the Defendants are not able to be ready for trial, it would be open to them to
renew their motion to adjourn.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
................................... for Thomas R. Berger, Q.C.
Counsel for the Plaintiffs
................................... for James R. Aldridge, Q.C.
Counsel for the Plaintiffs
................................... for Joseph Magnet
Counsel for the Plaintiffs
January 4, 2002
Vancouver, British Columbia
FN1 It is also worth noting that in its Statement of Defence, Canada asserts at paragraph 47 that:
...if the Plaintiffs have standing to sue they or those whom they represent have so long delayed asserting specific or general claims and taking proceedings thereon, if necessary, that it is no longer possible or practicable for
the Attorney-General of Canada to reasonably procure evidence to answer or defend against such claims or proceedings and accordingly the relief sought by the Plaintiffs should be refused on account of laches and the action should be dismissed.
Similarly, in its Statement of Defence. Manitoba asserts at paragraph 12 that:
... if the Plaintiffs have standing to sue, it would be inequitable and contrary to the public interest for the Court
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2003 CPCMotionF 8595
Page 12
to grant the relief claimed as it is no longer possible or practicable for this Defendant to procure evidence and
defend against such claims or proceedings by reason of the inordinate and inexcusable delay by the Plaintiffs or
the people whom they represent in asserting specific or general claims and taking proceedings thereon. Accordingly, the relief sought should be refused on account of laches.
Of course the issue of standing has already been resolved by the Supreme Court of Canada.
END OF DOCUMENT
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