Date: 20050207
Docket: T-165-01
Citation: 2005 FC 192
BETWEEN:
GORDON GILL, BRYAN GILL, TRENT GILL and
ARMANDE THERESA L'HIRONDELLE GILL acting on
their own behalf and on behalf of all the living descendants
of Armande Gill numbering approximately 40 persons,
Plaintiffs
and
JOHN MALCOM, WALTER JEAN MALCOM,
EVELYN SELINIA ROBILLARD,
FLORA LORRAINE POWDER, and
MIKE POWDER acting on their own behalf and
on behalf of all the living descendants of
Caroline Thompson numbering approximately 270 persons,
Plaintiffs
and
MARGARET (DESJARLAIS) PARENTEAU and
LEO PARENTEAU acting on their own behalf and
on behalf of the living descendants of Leon Desjarlais
numbering approximately 302 persons and of
Marie Rose Cardinal numbering approximately 50 persons,
Plaintiffs
and
FLORENCE MARY PULLIAM on her behalf and
on behalf of her living descendants numbering approximately 50 persons,
Plaintiffs
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Parliament Buildings, Ottawa, Ontario
Defendants
REASONS FOR ORDER
HARGRAVE P.
[1] By this consolidated action of 20 December 2000, which began earlier as several representative proceedings, under former Rule 114, the Plaintiffs through their representatives, whose forebearers were Cree, living in western Canada, seek various declaratory relief, including that they are entitled to be registered as Indians under the Indian Act. By this present motion counsel seek clarification whether this action should proceed as a representative action, or be conducted as an action under the class action series 299.1 Rules, which came into effect 21 November, 2002.
[2] Counsel are not in adamant opposition as to the result, but rather, and indeed properly, seek order and clarification as to ongoing procedure. Where the disagreement arises is in the route to the ongoing procedure. I am most grateful to counsel, particularly counsel for the Defendants, who have taken the time and put in the effort to clearly set out the options, the pros and cons of each and subject to some useful conditions which might be imposed, a preference as to outcome which accords with that of counsel for the Plaintiffs: as I say the only issue between the Plaintiffs and Defendants is the route to that end.
[3] The efforts of counsel and a consideration of the procedural nature of representative and of class actions justify these reasons, as opposed to a bare order. For my part I have considered the options and kept in mind two principles. First, there is the purpose of a joint proceeding, whether called a representative action or a class action, which aside from the efficiency in protecting many from the improper activities of a few and so modifying the behaviour of the latter, is twofold: it is to provide a reasonably priced means of preventing the frustration of justice by prohibitively expensive individual litigation and in so achieving this end, conserving scarce judicial resources. Second, I have followed the guiding principle derived from Rule 3, which requires that the Federal Court Rules "... be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.".
CONSIDERATION
[4] To begin the Federal Court Rules constitute subordinate legislation: see Bhatnager v. Canada [1990] 2 S.C.R. 217 at 228, where Mr. Justice Sopinka observed that the Federal Court Rules defined matters leading to expeditious conduct of litigation, but did not detract from or affect substantive rights. Here I subscribe to the view that the commencement of class or representative proceedings, or any subsequent modifications to such procedure, do not create substantive rights: while this proposition comes by way of Bendall v. McGhan Medical Corp. (1993) 106 D.L.R. (4th) 39 (Ontario General Division) at 345, it is of general application, including in the instance of the Federal Court Rules.
[5] The question then becomes, with the repeal of the Representative Action Rule together with the implementation of the Class Action Rules, whether a representative action may continue as such.
[6] It is implicit in Dene First Nation v. Canada, an unreported 8 April 2004 decision of Mr. Justice Hugessen, in action T-705-97, 2004 FC 530, involving a properly initiated representative action, that it must proceed as a class action, subject to a Rule 55 order dispensing with compliance with the new Class Action Rules. Mr. Justice Hugessen took the court order approach, notwithstanding his observation at paragraph 8, that the action, having been properly brought as a representative action, continued to exist. This is sensible even pending formal certification as a class action and absent any specific Federal Court transitional provisions as between representative actions under former Rule 114 and class actions pursuant to the present Rule 299.1 series of rules.
[7] Counsel for the Crown have referred to section 44 of the Interpretation Act, R.S.C. 1985, c. I-23, which, to paraphrase section 44(c), provides that when legislation is repealed and a new enactment substituted, proceedings taken under the former legislation are to be continued as provided in the new legislation "... in so far as it may be done consistently with the new enactment". Section 44(d) goes on to provide that the newly established procedure be followed "... as far as it can be adapted thereto ..." as to matters which have occurred before the repeal of the former legislation. This is touched upon in Sullivan and Driedger on the Construction of Statute, 4th edition, Butterworth, 2002 at page 583 which provides a guide for the application of section 44 to the effect that new procedural law applies to all actions, including those pending on the date of the legislation, unless there is some obstacle in the way.
[8] Counsel for the Plaintiffs submits that the Federal Court Rules, in that they are regulations, should not apply retroactively, unless there is an express provision to that effect, referring to various cases, all of which deal with vested rights. However procedure gives rise to no vested rights: see for example [1984] 2 S.C.R. 311">Wildman v. The Queen [1984] 2 S.C.R. 311 at 331, where the Supreme Court refers to the predecessor section to section 44 of the Interpretation Act:
This is an enactment of the common law rule that there is no vested right in procedure along with a limitation to the effect that the following of the new procedure must be feasible (see [1980] 1 S.C.R. 221">R. v. Ali [1980] 1 S.C.R. 221). Therefore, a new procedure applies to pending suits without breaching the "rules of interpretation to the effect that statutes ought, if possible, to be interpreted so as to respect vested rights" (see E.A. Driedger, "The Retrospective Operation of Statutes", Legal Essays in honour of Arthur Moxon, University of Toronto Press, 1953, pages 5 et seq.). Section 36(d) of the Interpretation Act uses procedure in a wide sense and that expression includes the rules of evidence.
Here we learn that current section 44 of the Interpretation Act, is an enactment of the common law rule against a vested right in a given procedure. It is interesting to look to a House of Lords decision of a number of years ago, Jardner v. Lucas (1878) III A.C. 582. In that instance the House of Lords was dealing with the retrospectivity of certain legislation. Lord Blackburn, at page 603, referred to the general rule "of every civilized nation", that a new law affects future transactions, not those in the past. But he went on to except new forms of procedure which applied to past transactions:
Nevertheless, it is quite clear that the subject matter of an act might be such that, though there were not express words to shew it, it might be retrospective. For instance, I think it is perfectly settled that if the Legislature intended to frame a new procedure, then instead of proceeding in this form or that, you should proceed in another and a different way; clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. (loc cit.)
Similarly, in Angus v. Sun Alliance Insurance Co. [1988] 2 S.C.R. 256 Mr. Justice La Forest observed:
There is a presumption that statutes do not operate with retrospective effect. "Procedural" provisions, however, are not subject to the presumption. To the contrary, they are presumed to operate retrospectively: see E.A. Driedger, Construction of Statutes (2nd ed. 1983), at pp. 202-3; [1957] S.C.R. 403">Howard Smith Paper Mill v. The Queen, [1957] S.C.R. 403.
In Angus, where the Supreme Court of Canada differentiated between the effect of statutory and procedural provisions, at issue was whether a provision dealt with substantive rights or was merely a procedural enactment. However in the present instance there is not that issue. I now turn to the application of the procedural Class Action Rules.
[9] Mr. Justice Hugessen, as he now is, has provided us with substantial law bearing on representative actions and the effect on them of the Class Action Rules, beginning at a fairly early stage after the latter became effective, 21 November 2002. From the beginning he took the position that representative actions, under former Rule 114, were governed by Rules 299.1 and following: see for example Aussante v. Canada, an 18 December 2002 decision in file T-2442-98, 2002 FCT 1502. In Buffalo v. Canada, (2002) 226 F.T.R. 63 Mr. Justice Hugessen dealt with a representative plaintiff commenting:
His action started life as a representative action, but with the coming into force of the amendments to the Federal Court Rules, 1998 a scant couple of weeks ago relating to class actions and the repeal of old rule 114, by the Rules Amending the Federal Court Rules, 1998, SOR 2002-417, s. 12, it must now be treated as a class action ... [p. 67]
[10] That representative actions became class actions under the November 2002 amendment, is clear from Federation of Newfoundland Indians v. Canada, (2003) 231 F.T.R. 140. It is interesting to note that while Federation of Newfoundland Indians was heard 14 November 2002, a week before the Class Action Rules came into effect, in his judgment given 1 April 2003 Mr. Justice Blanchard applied the Class Action Rules, a clear indication of their retroactive effect. In his decision he treated the proceeding as clearly coming within the Class Action Rules and went on to refer a subsequent teleconference to allow counsel to address various issues, including the procedural step of certifying the proceeding as coming within the class action rule requirements.
[11] That representative actions automatically became class actions is also born out by the decision of Mr. Justice Hugessen in Dene Tsaa First Nation v. Canada, an unreported 8 April 2004 decision, docket T-705-97, 2004 FC 550, [200 F.C.J. No. 664 (QL). There he observed that there were no transitional provisions to take effect when former Rule 114 was repealed, the assumption being that representative actions might conveniently proceed as class actions. In Dene Tsaa, because so much time and effect had been invested in the action as a representative action and because the process of certification of a representative action as a class action was so time consuming, expensive and, in some circumstances, regrettably, unnecessary, the representative plaintiffs moved and Mr. Justice Hugessen agreed that pursuant to Rule 55 the plaintiffs might dispense with the application of the 299.1 series of rules, with the action to proceed as before, as a representative action. The Crown did not oppose the motion. Mr. Justice Hugessen wrote:
I agree that this is a proper case to dispense with the application of Rules 299.1-299.42. The amount of time, money and effort that have already gone into the action, the stage which it has reached and the absence of any discernable benefit to anyone from the insistence on a strict application of those Rules at this time, all lead me to that conclusion. [Paragraph 6]
Mr. Justice Hugessen considered the possibility of applying the gap rule and provincial representative action rules, but rejected that approach, instead favouring the Federal Court Rules and case management directions observing that:
... I can see no objection to simply dispensing with the application of Rules 299.1-299.42 and leaving the matter there. Former Rule 114 was simply permissive, allowing a representative action to be brought. That was properly done while the Rule was still in force and the action having been validly brought continues in existence. The Federal Court Rules, 1998 contained and still contain no other rules specifically dealing with the conduct of representative actions and the procedure to be followed is and had always been the same as for any other action. This case, in particular, is specially managed and as Case Management Judge, I will be in a position to deal with and to give directions regarding any specific problem which may arise and which may be brought to my attention by the parties. [Paragraph 8]
The reasons were followed by an order dispensing with the Class Action Rules.
[12] The case law points to two options, either that of letting the present action proceed as a class action, or exercising discretion, under Rule 55, to allow the action to proceed as if it were still a representative action. Here Crown counsel point out that some aboriginal claims, brought under former Rule 114, do not fit conveniently within the new Class Action Rules, particularly when the claim seeks a determination of collective rights as is the case here, where the Plaintiffs claim aboriginal and treaty rights and declaratory relief to that effect. The Supreme Court of Canada has on a number of occasions pointed out that aboriginal right are collective rights, belonging to collective entities and this is particularly so when the rights are derived from treaty and thus are collective rights belonging to the band as a whole: for example see R. Sparrow [1990] 1 S.C.R. 1075 at pages 1111 and 1112; R. v. Van der Peet [1996] 2 S.C.R. 507, in which the Court looked upon the right claimed as a right, if it had existed, of the Sto:lo Indian Nation; R. v. Marshall [1999] 3 S.C.R. 533 at 546-547 where the individual on trial, claiming an aboriginal right, was required to demonstrate membership in an aboriginal community; and R. v. Sundown [1999] 1 S.C.R. 393 at paragraph 36 where Mr. Justice Cory, in writing the decision of the Court, observed that:
Any interest in the hunting cabin is a collective right that is derived from the treaty and the traditionary method of hunting. It belongs to the Band as a whole and not to Mr. Sundown or an individual member of the Joseph Bighead First Nation. It would not be possible, for example, for Mr. Sundown to exclude other members of this First Nation who have the same treaty right to hunt in Meadow Lake Provincial Park.
[13] Given the collective nature of aboriginal rights and claims under treaty, they are difficult to reconcile with class action procedure. By way of example, Crown counsel point to Rule 299.23, which allows an individual to opt out of a class proceeding. This observation is pertinent because a declaration as to aboriginal rights and treaty benefits is not a remedy of an individual nature, accruing to only those individuals who participate in the litigation, but a collective right, not amenable to opting out, the result binding each and every member of the entity, here the descendants of a specific group of people.
[14] Certainly there may be some elements of the Class Action Rules that might benefit this proceeding, for example the requirement as to a precise definition of the parties and the reporting requirements, to the group as a whole, pursuant to Rules 299.34 and 299.18(1)(e)(ii). However, all else being equal, these are provisions which can be dealt with as case management matters.
[15] Counsel for the Defendants point out that neither the class action nor the representative action procedure is clearly a perfect fit. Counsel for the Defendants request that the Court dispense with the Class Action Rules and allow the action to proceed as a representative proceeding on condition that the Plaintiffs establish the required authority to pursue the claim and that they provide notice to those who will be bound. This will be dealt with at the next case management conference as a priority.
[16] Counsel for the Defendants submit that there should be no award of costs. This is a sensible outcome.
[17] The action shall continue as a representative action. Here I recognize, as set out by Mr. Justice Hugessen in Dene Tsaa (supra), that there being no rules specifically bearing on the conduct of a representative action and the procedure to be followed, conduct should be the same as that for any other action, with appropriate case management directions as may be needed. The action being case managed, there will be a case management conference shortly.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-165-01
STYLE OF CAUSE: Gordon Gill et al v Her Majesty the Queen in Right of Canada et al.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Mr. John A. Hargrave, Prothonotary
DATED: February 7, 2005
WRITTEN REPRESENTATIONS BY:
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Ms. Priscilla Kennedy
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FOR THE PLAINTIFFS
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Mr. Donna Tomljanovic
Mr. Karen Metcalfe
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FOR THE DEFENDANTS
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SOLICITORS OF RECORD:
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