Northlands Band v. Canada ( Minister of Indian Affairs and Northern Development )
T-703-93
Hargrave P.
13/8/96
7 pp.
Motion to replace unsatisfactory discovery witness-Plaintiffs selecting long-time Crown employee who worked as assistant, then senior, negotiator of Nunavut Comprehensive Land Claim-Defendants' nominee chief federal negotiator on contract basis from 1980 until matter resolved in 1993-Now under contract with same status negotiating land claims in B.C.-R. 456(3), requiring Crown to select informed officer to be examined, not limited to first witness-Crown, acting in good faith, may nominate second witness-If witness unsuitable, opposing party may apply for production of more appropriate witness-Present application possibly premature as Crown's new nominee for discovery not tested by discovery process-R. 456(4), allowing applicant to apply for second discovery witness who is properly informed, not applicable until initial discovery witness demonstrably found wanting: Richter Gedeon Vegyészeti Gyar Rt v. Merck & Co. et al. (1995), 185 N.R. 88 (F.C.A.)-Whether contractor "officer, servant or employee" of Crown within R. 456(3)-Employer/ employee relationship existing where individual employed under contract of employment in nature of contract of service-Factors considered in distinguishing between contract of service and contract for service: control, degree of risk, opportunity to profit from management of task-Settling of aboriginal land claims, treaty rights done within scope of government policies, under control, direction of government through instruction given to negotiators-Defendants' nominee, as negotiator for federal government, employee with contract of service, currently employed as such-Evidence would bind Crown-Can give full discovery of facts, but if proves unsatisfactory, plaintiffs can apply for fresh witness for examination for discovery-Federal Court Rules, C.R.C., c. 663, R. 456(3),(4) (as am. by SOR/90-846, s. 15).