2003 CPCMotion 41802
Page 1
View Motion Document Collection - 2003 CarsMotionW 8884
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Court document related to:
Manitoba Metis Federation Inc. v. Canada (Attorney General), 2003 CarswellMan 62, 29 C.P.C. (5th) 148
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*****START OF COURT DOCUMENT*****
File No. CI-81-01-01010
THE QUEEN'S BENCH WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, 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 CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs,
—and—
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL OF MANITOBA,
Defendants.
ROSENBLOOM & ALDRIDGE
1300 - 355 Burrard Street
Vancouver, B.C.
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2003 CPCMotion 41802
Page 2
V6C 2G8
Thomas R. Berger Q.C.
Jim Aldridge Q.C.
Harley I. Schachter
Counsel
Ph: 605-5555
Fx: 684-6402
Solicitors for the Applicant
Included Documents
Affidavit of Harley Schachter
Affidavit of Yvon Dumont, sworn November 14, 2002
Affidavit of Cindy Miller, sworn November 15, 2002
Affidavit of Rachelle Neault, sworn November 15, 2002
Notice of Motion
Hearing Date: Monday, December 9, 2002, at 10 a.m. before A.C.J. 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.
Harley I. Schachter
Counsel
No. CI 81-01-01010
THE QUEEN'S BENCH
WINNIPEG CENTRE
BETWEEN:
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2003 CPCMotion 41802
Page 3
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
OF MANITOBA,
Defendants.
NOTICE OF MOTION
THE PLAINTIFF Manitoba Metis Federation Inc. will make a motion before the Honourable Mr. Justice Oliphant on the 9th
day of December, 2002 at the Law Courts Building, 408 York Avenue, in Winnipeg, Manitoba.
THE MOTION IS FOR:
1. An order deleting the individual plaintiffs except Yvon Dumont from the action, and granting leave to consequentially
amend the Further Amended Statement of Claim by amending paragraph 3 as set out in Exhibit "A" to the affidavit of Harley
I. Schachter, sworn November 15, 2002;
2. An order granting leave to delete the words "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" from the style of cause and to delete paragraph 4 from the Further Amended Statement of Claim, as as set out in Exhibit "A" to the affidavit of Harley I.
Schachter, sworn November 15, 2002;
3. such further or other relief as to this Honourable Court may seem meet and just.
THE GROUNDS FOR THE MOTION ARE:
1. Queens Bench Rules 1.04, 1.05, 5.04 and 26.01;
2. the continued participation in the action of the subject individual plaintiffs is unnecessary and inappropriate and could lead
to expense and delay in bringing the action to trial;
3. the representative aspect of the action is unnecessary and inappropriate and could lead to expense and delay in bringing the
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2003 CPCMotion 41802
Page 4
action to trial;
4. it would be just and convenient to make the orders sought.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
1. the pleadings herein;
2. the affidavit of Harley I. Schachter, sworn November 15, 2002;
3. the affidavit of Yvon Dumont, sworn November 14, 2002;
4. the affidavit of Cindy Miller, sworn November 15, 2002;
5. the affidavit of Rachelle Neault, sworn November 15, 2002;
6. such further and other evidence as counsel may advise and this Honourable Court may permit.
Dated this 15th day of November, 2002.
ROSENBLOOM & ALDRIDGE
1300 - 355 Burrard Street
Vancouver, B.C. V6C 2G8
Thomas R. Berger, Q.C.
Jim Aldridge, Q.C.
Harley I. Schachter
Solicitors for the Applicant
TO:Hill Abra Dewar
Suite 2670 - 360 Main Street
Winnipeg, Manitoba
R3C 3Z3
Attention: Robert A. Dewar, Q.C.
AND TO:Manitoba Justice
Constitutional Law Branch
1205 - 405 Broadway
Winnipeg, Manitoba
R3C 3L6
Attention: Heather Leonoff, Q.C.
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2003 CPCMotion 41802
Page 5
AND TO:Billyjo Delaronde
c/o Lionel R. R. Chartrand
409 - 181 Higgins Avenue
Winnipeg, Manitoba
R3B 3G1
AND TO:Jack Fleming
work address—Indian and Metis Friendship Centre
45 Robinson Street
Winnipeg, Manitoba
R2W 5H5
Telephone Number 586-8441
1111 Burrows Avenue
Winnipeg, Manitoba
R2X 0R9
AND TO:Miles Allarie
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
AND TO:Edgar Bruce Jr.
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
AND TO:Louis Banks (re Marie Banks Ducharme)
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
AND TO:Roy Chartrand
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
AND TO:Ron Erickson
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
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2003 CPCMotion 41802
Page 6
File No. CI-81-01-01010
THE QUEEN'S BENCH
WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
OF MANITOBA,
Defendants.
Affidavit of Harley Schachter Sworn November 15, 2002
Hearing Date: Monday, December 9, 2002, at 10 a.m. before A.C.J. 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.
Harley I. Schachter
Counsel
File No. CI-81-01-01010
THE QUEEN'S BENCH
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2003 CPCMotion 41802
Page 7
WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
OF MANITOBA,
Defendants.
AFFIDAVIT OF HARLEY SCHACHTER Sworn the 15th day of November, 2002.
I, Harley I. Schachter, of the City of Winnipeg in the Province of Manitoba, barrister and solicitor,
MAKE OATH AND SAY THAT:
1. I am one of the Lawyers representing the Manitoba Metis Federation Inc. (the "MMF"), and as such have personal
knowledge of the matters and facts herein deposed to by me in this affidavit, except those matters which are stated to be
based on information and belief, which matters I believe to be true.
2. This affidavit is intended to be confined to non-contentious factual matters.
3. The proposed Further Amended Statement of Claim is attached to this affidavit as Exhibit "A".
4. As appears from Exhibit "A", the amendments sought to the claim comprise the following changes:a) the style of cause
would be amended by deleting all individual plaintiffs except for Yvon Dumont,b) the removal of individual plaintiffs from
the claim would result in consequential amendments to paragraph 3 of the claim, as the individual plaintiffs removed would
no longer have to be described in paragraph 3;c) The style of cause would be amended by deleting the words "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";d) The above deletion of the representative nature of the claim would result in a consequential
amendment requiring the deletion of paragraph 4 from the Further Amended Statement of Claim.
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2003 CPCMotion 41802
Page 8
File No. CI-81-01-01010
THE QUEEN'S BENCH
WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
OF MANITOBA,
Defendants.
Affidavit of Yvon Dumont, sworn November 14, 2002
Hearing Date: Monday, December 9, 2002, at 10 a.m. before A.C.J. 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.
Harley Schachter
Counsel
File No. CI-81-01-01010
THE QUEEN'S BENCH
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2003 CPCMotion 41802
Page 9
WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
OF MANITOBA,
Defendants.
Affidavit of Yvon Dumont, sworn November 14, 2002
I, Yvon Dumont, of XXXXXXXXXX in the Province of Manitoba, MAKE OATH AND SAY THAT:
1. I was the President of the plaintiff Manitoba Metis Federation Inc. ("MMF") from 1984 to 1993.
2. This action was commenced on April 15, 1981 with the MMF and the Native Council of Canada Inc. (now the Congress of
Aboriginal Peoples) as plaintiffs.
3. In January 1986, legal counsel for the MMF sought instructions to use my name as an individual plaintiff in the action, as
well as the names of all other members of the MMF Board of Directors and the names of three additional individuals whose
descent from Metis persons entitled to land under the Manitoba Act was understood to be easily proven. Attached as Exhibit
"A" to this affidavit is a copy of the January 22, 1986 letter to the MMF from Thomas R. Berger, legal counsel for the MMF,
seeking those instructions.
4. The Board of the MMF resolved to give the instructions sought by legal counsel. Attached as Exhibit "B" to this affidavit
is a copy of my February 12, 1986 letter to Thomas R. Berger, confirming instructions to proceed on the recommended basis.
5. After the individuals were named as plaintiffs, the MMF continued to provide instructions to counsel in respect of the action. The individual plaintiffs did not, except to the extent that they held office in the MMF, participate in providing instructions to counsel.
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2003 CPCMotion 41802
Page 10
SWORN BEFORE ME at the City of
)
Winnipeg in the Province of Manitoba,
)
this 14 th day of November, 2002.
)
)
A commission for taking affidavits
)
Yvon Dumont
in Manitoba
HARLEY I. SCHACHTER
A NOTARY PUBLIC
IN AND FOR THE PROVINCE OF MANITOBA
File No. CI-81-01-01010
THE QUEEN'S BENCH
WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
OF MANITOBA,
Defendants.
Affidavit of Cindy Miller Sworn November 15, 2002
Hearing Date: Monday, December 9, 2002, at 10 a.m. before A.C.J. Justice Oliphant
ROSENBLOOM & ALDRIDGE
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2003 CPCMotion 41802
Page 11
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.
Harley I. Schachter
Counsel
File No. CI-81-01-01010
THE QUEEN'S BENCH
WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
OF MANITOBA,
Defendants.
Affidavit of Cindy Miller, sworn November 15, 2002
I, Cindy Miller, of the City of Winnipeg in the Province of Manitoba,,
MAKE OATH AND SAY THAT:
1. I am an administrative assistant to David Chartrand, the President of the Plaintiff the Manitoba Metis Federation Inc., (the
"MMF"), and as such have personal knowledge of the matters and facts herein deposed to by me in this affidavit, except for
those matters and facts which are stated to be based on information and belief, in which case I believe them to be true.
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2003 CPCMotion 41802
Page 12
2. I am advised by Diane McIvor, legal assistant to Harley I. Schachter, one of the counsel representing the MMF, that on or
about October 11, 2002, she attempted to deliver, either by personal service or by registered mail, to each of the surviving
individual plaintiffs in this case for whom we had an address, (save for Yvon Dumont), (totaling 14 individuals), a letter and
enclosure from David Chartrand which asked that the individual plaintiff to in turn request the removal of their name as a
plaintiff to the action.
3. Attached and marked as Exhibit "A" is a copy of the letter and enclosure from David Chartrand to those 14 individual
plaintiffs, which I am advised by David Chartrand, and as appears from Exhibit "A:a. were all dated October 11, 2002;b.
were each personally addressed to the individual plaintiff;c. each had attached to them a form that the individual could sign
and return requesting the removal of their name as a plaintiff.
4. In addition to the 14 persons who were contacted, two of the individual plaintiffs have not been personally contacted. I am
advised by Will Goodon, special assistant to President Chartrand, that the plaintiff Marie Banks Ducharme had, according
to her son Louis Banks Ducharme, died approximately in 1996. Additionally, the whereabouts of the Plaintiff Earl Henderson has not been ascertained. The MMF has not even been able to confirm he is still alive.
5. Of the 14 surviving individual plaintiffs who were contacted, eight of them have signed and returned requests to have their
names removed as plaintiffs. The letter of request of each such individual is attached as an exhibit as follows:Exhibit "B"—
Letter of request of Celia KlassenExhibit "C"—Letter of request of Don RouletteExhibit "D"—Letter of request of Stanley
GuibocheExhibit "E"—Letter of request of Claire RiddleExhibit "F"—Letter of request of Freda Lundmark, (now known
by Freda Lepine)Exhibit "G"—Letter of request of Jeanne PerreaultExhibit "H"—Letter of request of Jack McPhersonExhibit "I"—Letter of request of Alma Belhumeur.
6. I am informed by David Chartrand, the President of the MMF that but for Earl Henderson, Marie Banks Ducharme and
Jeanne Perrault, the persons who are currently listed as plaintiffs were board members of the MMF at the time their names
were added to the claim. The only person listed as an individual plaintiff and who is still a member of the board of directors
of the MMF is Claire Riddle.
7. When the MMF had earlier sought to obtain the signing by the individual plaintiffs of genealogical research authorizations
sought by the defendant Province of Manitoba, it took great effort on the part of the MMF to obtain any responses from the
many of the individual plaintiffs.
8. When the MMF president sent out written and personalized requests on September 6, 2002, to the 14 individual surviving
plaintiffs we had an address for (together with a similar letter to the son of the deceased plaintiff Marie Banks Ducharme) we
initially only received one reply back without following up by telephone or personal attendances.
9. After significant telephone work by myself and Rachelle Neault, we were only able to secure 5 signed authorizations by
the end of September, 2002.
10. In many cases our calls went unreturned even though messages were left. Of the plaintiffs we did speak with, some said
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2003 CPCMotion 41802
Page 13
they had in fact received the information and promised to return it to us. However in most cases the authorization was never
sent to us.
11. We had even offered to have the authorizations picked up, or offered that they could be returned to us via registered express mail as we required them as soon as possible, but the response was often "no, I will just put it in the mail".
12. A total of 7 of 16 possible authorizations were eventually received by the MMF by October 11, 2002, at which time new
letters were sent out to the individual plaintiffs seeking requests to have their names removed.
13. [Illegible text] the difficulties the MMF had in the past in obtaining responses from the [Illegible text] plaintiffs, President
Chartrand instructed both myself and Rachelle Neault, [Illegible text] employee of the MMF, on or about October 31, 2002,
to attempt to make [Illegible text] with those individuals who, up to that time had not yet responded to the [Illegible text] and
enclosure from President Chartrand (Exhibit "A") asking that they request [Illegible text] removal of their names as plaintiffs.
14. [Illegible text] told to try and contact BillyJo De La Ronde, Edgar Bruce Jr., and Earl [Illegible text]. I was also asked to
try and contact a representative for the late Marie Banks Ducharme, who was to receive a similar letter regarding the deletion
of Marie Banks Ducharme's name. The balance of this affidavit deals with the attempts [Illegible text] to reach them.
BillyJo De La Ronde.
15. [Illegible text] advised by Harley I. Schachter, one of the legal counsel to the MMF, that the [Illegible text] plaintiff Billy
Jo De La Ronde has purportedly retained Independent Legal [Illegible text], and that as at November 14, 2002, Mr. De La
Ronde's counsel has not yet [Illegible text] what position Mr. De La Ronde takes on the request to have his name [Illegible
text].
Edgar Bruce Jr.
16. Attached hereto and marked as Exhibit "J" is a copy of an affidavit of service of the [Illegible text] server, Ted Burton,
who swears that on October 11, 2002, he served Edgar Bruce Jr., with a copy of the letter and enclosure (Exhibit "A") by
leaving the letter with Mr. Bruce Jr.'s wife, at their place of residence.
17. On November 5, 2002, I telephoned Mr. Bruce Jr. to request his reply to the letter (Exhibit "A"). He advised me that he
wasn't sure if he received such a letter, but when I mentioned the nature of he contents of the letter, he advised me that he
seemed to recall reading something to that effect, was in agreement to be removed, but needed a copy of the letter of request.
18. I then made arrangements with Mr. Bruce Jr., that on the next day, November 6, 2002, a courier would deliver another
copy of the letter, and would wait at Mr. Bruce Jr.'s house for him to sign his request to have his name removed, (as he had
advised me that he was prepared to do so). The courier was to then return the form to me.
19. At approximately 10:40 on November 6, 2002, I sent one of the employees of the MMF, Grant Fleury, to take a copy of
the original letter and enclosure that was sent to Mr. Bruce Jr. I had given the employee instructions that he should wait for
Mr. Bruce Jr. to sign the request form, and bring it back to the MMF office.
20. I am advised by Mr. Fleury that when he arrived at Mr. Bruce Jr.'s home (address XXXXXXXXXX there was no answer
at the door, so he tried to call Mr. Bruce Jr. using his cell phone, from outside Mr. Bruce Jr.'s house, but no one answered.
Mr. Fleury then telephoned me and I then tried to call Mr. Bruce myself and was unable to reach him either. I instructed Mr.
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2003 CPCMotion 41802
Page 14
Fleury to leave the package in the mailbox.
21. I tried about three times that day, (November 6, 2002) to reach Mr. Bruce Jr. by phone, but was unsuccessful. I tried to
reach him again by phone two times on November 7, 2002 in the morning between 8:30 a.m. and 11 a.m., but was still unsuccessful.
22. When I called, I let the phone ring numerous times, but there was no answering machine, so I could not leave a message.
23. Mr. Bruce Jr. has not responded to the request to have his name removed as a plaintiff.
Earl Henderson
24. The last known address for Mr. Henderson on the MMF files was XXXXXXXXXX. This information was thought by
President Chartrand to date from the 1980's. The MMF has no record of who, if anyone might be a relative of Earl Henderson.
25. I am advised by Harley I. Schachter, that when mail was earlier sent by him to Earl Henderson at the Prince George address, the correspondence was returned unclaimed, and that Mr. Schachter's office had been unable to determine Mr. Henderson's whereabouts.
26. At or about the end of October 2002, I called telephone information (XXXXXXXXXX) for a listing for an Earl or "E"
Henderson at the Prince George address that we had. There was none. I then inquired if there were any possible listings for
any Earl Henderson in Prince George, British Columbia, and was advised that there were no such listings.
27. On November 7, 2002 I contacted the Métis Provincial Council of B.C., (the "MPCBC") which is the provincial affiliate,
like the MMF, of the Metis National Council, to see if the MPCBC had a Mr. Earl Henderson listed as a member, or if anyone at the MPCBC had heard of him or knew him. On or about November 7, 2002, I was informed by Barbara Calliou, an
employee of the MPCBC, that after checking their records and asking a few people, they know of no such person as Earl
Henderson, and therefore could not even advise who, if anyone, his relatives were.
28. I am advised by Diane McIvor, secretary to Harley I. Schachter, that she attempted to contact two "Earl Hendersons" who
were listed at the telephone number internet site "Canada 411", (one was in Ontario and one was in Manitoba), but neither
phone number yielded any clue as to Mr. Earl Henderson's whereabouts. I am also advised that Diane McIvor also tried to
contact every "E. Henderson" listed as a resident in British Columbia, but that no one contacted admitted to being the plaintiff Earl Henderson or knew of his existence. A listing of the telephone numbers retrieved and followed up on by Diane
McIvor is attached as exhibit "K".
Marie Banks Ducharme (deceased).
29. Although Will Goodon advised me that Marie Banks Ducharme was dead, I am also advised by Harley Schachter that no
grant of probate or letters of administration has been found in the Winnipeg probate office for a Marie Banks Ducharme.
30. I am advised by Will Goodon, that in the year 2000 or 2001 he was contacted by an individual by the name of Larry
Banks on behalf of his father Louis Banks, who claimed to be the sole surviving child of the plaintiff Marie Banks Ducharme, and that Louis Banks wanted to know if his name should be substituted for Marie Banks Ducharme's name.
31. I am further advised by Mr. Goodon that he thereafter arranged for Mr. Louis Banks to meet with Mr. Harley Schachter to
discuss the matter.
32. I am advised by Harley Schachter, that in the fall of 2001 he met with both Larry Banks and Louis Banks, and that Mr.
Schachter was advised by Louis Banks that he, Louis Banks, was the adopted son of Marie Banks Ducharme, and the only
surviving child of Marie Banks Ducharme. I am further advised by Mr. Schachter that at that meeting he advised the Banks
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2003 CPCMotion 41802
Page 15
that although it was not the intention to seek a replacement for Marie Banks Ducharme's name as plaintiff, he would take
their address and telephone numbers down.
33. Attached hereto and marked as Exhibit "L" is a copy of an affidavit of service of a process sever, Ted Burton, who swears
that on October 11, 2002, he served Larry Banks with a package, a copy of which is attached as Exhibit "M", which is similar
to the package at Exhibit "A", by which Mr. Banks was requested to sign a similar request to removal form, so as to facilitate
the removal of Marie Banks Ducharme's name as a plaintiff.
34. Attached hereto and marked as Exhibit "N" is a copy of an affidavit of service of the process sever, Ted Burton, who
swears that on October 11, 2002, he also served Louis Banks with a copy of the same package. (Exhibit "L".)
35. That I am informed by Harley Schachter that on November 13, 2002, he contacted Louis Banks by telephone, who advised again that he was the sole surviving child of Marie Banks Ducharme, and also advised that he does not wish to sign a
request for Marie Banks Ducharme name to be removed as a plaintiff.
SWORN BEFORE ME at the City of
)
Winnipeg in the Province of Manitoba,
)
this 15th day of November, 2002.
)
)
A Commissioner for Oaths in and for
)
Cindy Miller
the Province of Manitoba.
My Commission expires: Sept 19/04
File No. CI-81-01-01010
THE QUEEN'S BENCH
WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
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2003 CPCMotion 41802
Page 16
OF MANITOBA,
Defendants.
Affidavit of Rachelle Neault Sworn November 15, 2002
Hearing Date: Monday, December 9, 2002, at 10 a.m. before A.C.J. 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.
Harley I. Schachter
Counsel
File No. CI-81-01-01010
THE QUEEN'S BENCH
WINNIPEG CENTRE
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, 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 PERRAULT, MARIE BANKS DUCHARME and EARL HENDERSON, suing on their own
behalf and on behalf of all other descendants of Métis persons entitled to land and other rights under Section 31 and
32 of the Manitoba Act, 1870, and CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL
OF MANITOBA,
Defendants.
Affidavit of Rachelle Neault, sworn November 15, 2002
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2003 CPCMotion 41802
Page 17
I, Rachelle Neault, of the City of Winnipeg in the Province of Manitoba,
MAKE OATH AND SAY THAT:
1. I am an administrative assistant to David Chartrand, the President of the Plaintiff the Manitoba Metis Federation Inc., (the
MMF), and as such have personal knowledge of the matters and facts herein deposed to by me in this affidavit, except for
those matters and facts which are stated to be based on information and belief, in which case I believe them to be true.
2. On or about October 31, 2002, both myself and Cindy Miller, another employee of the MMF, were instructed by President
David Chartrand to attempt to make contact with those individuals who, up to that time had not yet responded to the letter
and enclosure from President Chartrand asking that the request that they be removed as plaintiffs. A sample copy of that letter and enclosure is attached to this affidavit as Exhibit "A".
3. I was instructed to try and contact Ron Erickson, Miles Allarie, Roy Chartrand, and Jack Fleming. The balance of this affidavit deals with the attempts made to reach them.
Ron Erickson.
4. I am advised By Diane McIvor, legal assistant to Harley I. Schachter, one of the counsel representing the MMF, that on or
about October 11, 2002, she mailed, via registered mail, the letter and enclosures (Exhibit "A") to Ron Erickson, who lives in
Brandon Manitoba.
5. Attached hereto and marked as Exhibit "B" is a printout of the proof of receipt from Canada post confirming that Ron Erickson received a copy of the letter and enclosure, (Exhibit "A") on October 15, 2002.
6. On November 1, 2002 at about 4:15 p.m., I telephoned to speak to Ron Erickson, and spoke with a female who identified
herself as Vera, Ron Erickson's wife, and I was told by her that her husband, Ron Erickson, would not be signing the request
to removal form (or words to that effect).
7. On November 5, 2002 at around 10:40 a.m, I phoned Mr. Erickson again, and when no one answered, I left a message on
the voice mail to the effect that I needed verbal confirmation from Mr. Erickson himself as to what position he was taking on
signing the request to have his name removed.
8. When I received no response to my voice mail message, I again phoned on November 8, 2002 at about 11:50 a.m., and left
a telephone message for Mr. Erickson to contact me as soon as possible to advise as to his position.(or words to that effect.)
9. Mr. Erickson has not responded to my messages. I do not know what position he is taking on the issue of the removal of
his name as a plaintiff.
Miles Allarie
10. Attached hereto and marked as Exhibit "C" is a copy of an affidavit of service of the process server, Ted Burton, who
swears that on October 11, 2002, he served Miles Allarie with a copy of the letter, (Exhibit "A"), by leaving the letter with
Mr. Allarie at his place of residence.
11. On November 5, 2002 at about 10:50 a.m. I telephoned Mr. Allarie at his home and left a message on with a male who
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2003 CPCMotion 41802
Page 18
answered the phone for Mr. Allarie to call me at the MMF offices.(or words to that effect.)
12. When he did not respond, I again telephoned him on November 8, 2002 at about 11:55 a.m, but there was no answer, and
there was no answering machine for me to leave a message.
13. I am advised by President David Chartrand that on one of the evenings during November 4 to 8, 2002, he spoke by telephone with Miles Allarie, who advised President Chartrand that he, Miles Allarie, was not sure what position he was taking
on the request to be removed as a plaintiff.(or words to that effect.)
14. Miles Allarie has not responded to the request made of him to have his name removed as a plaintiff.
Roy Chartrand
15. I am advised By Diane McIvor, legal assistant to Harley I. Schachter, one of the counsel representing the MMF, that on
or about October 11, 2002, she mailed, via registered mail the letter and enclosures (Exhibit "A") to Roy Chartrand, who
lives in Inwood, Manitoba.
16. Attached hereto and marked as Exhibit "D" is a printout of the proof of receipt from Canada post confirming that Roy
Chartrand received a copy of the letter and enclosure, (exhibit "A"), on October 16, 2002, when the package was picked up
by Rita Chartrand on his behalf.
17. When the MMF had not received any response from Mr. Roy Chartrand, and on or about November 6, 2002, I arranged
for an MMF employee by the name of Don Buors to go to Mr. Chartrand's residence in Inwood to deliver to him a copy of
the letter and enclosure. I am advised by Mr. Don Buors that Mr. Chartrand's wife advised Mr. Buors that Mr. Chartrand
would not sign the request to have his name removed as a plaintiff (or words to that effect).
Jack Fleming
18. The MMF has no home telephone number for Mr. Fleming. The last known residential address on file for Mr. Fleming is
XXXXXXXXXX Manitoba.
19. The MMF is also aware that Mr. Fleming works at, or has some involvement with the Indian and Metis Friendship centre
located at 45 Robinson St., Winnipeg Manitoba., telephone number 586-8441.
20. I am advised by the process server Ted Burton, that he attempted to serve Mr. Fleming with the package (Exhibit "A") on
three separate occasions. Once on October 11, 2002 and two times on October 12, 2002. All attempts at personal service were
made at the last known residence address for Mr. Fleming at XXXXXXXXXX but without success. The process server eventually left the package, (exhibit "A") in the mailbox at that address.
21. When we had not heard from Mr. Fleming, I telephoned him at the Friendship centre on November 6, 2002, at around
2:00 p.m., and after he confirming that he had received a copy of the package (Exhibit "A"), Mr. Fleming stated that he did
not know if he would sign the request to have his name removed form (or words to that effect). He advised me that he wanted
to speak to other plaintiffs, and would respond in due course (or words to that effect).
22. Mr. Fleming has not responded to the request made of him to have his name removed as a plaintiff.
SWORN BEFORE ME at the City of
)
Winnipeg in the Province of Manitoba,
)
this 15th day of November, 2002.
)
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2003 CPCMotion 41802
Page 19
)
A Commissioner for Oaths in and for
)
Rachelle Neault
the Province of Manitoba.
My Commission expires: Sept 19/04
END OF DOCUMENT
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