[1] This proceeding was and remains a representative action, commenced under former Rule 114, which the representative Plaintiffs commenced in December of 1999, seeking declaratory relief on behalf of Métis and non-status Indians, in effect an important action designed to sort out the position of Métis and non-status Indians in Canada.

[2] The difficulty which has now arisen is that the Plaintiff Harry Daniels, who was a leading figure in Métis matters, has died and those on whose behalf this action is brought, recognizing that all are mortal and perhaps being of concern as to whether The Congress of Aboriginal Peoples has the standing to be an appropriate plaintiff, wish to add additional representative plaintiffs: that addition of plaintiffs is the subject of the present motion.

CONSIDERATION

[3] The proposed new Plaintiffs are Gabriel Daniels of Winnipeg, a Métis and the son of Harry Daniels, who is committed to the Métis cause; Terry Joudrey, a non-status Mi'kmaq Indian, of Elmwood, Nova Scotia who has both a personal and formal interest in Mi'kmaq affairs and who considers himself typical of many non-status Indians in Atlantic Canada; and Cheryl Storkson, a former common-law partner of Harry Daniels, herself a Métis person, who expects to obtain letters of administration for the estate of Harry Daniels which would then bring her within Rule 117 and enable her to file a notice and affidavit as to the devolution of the action, at least from a procedural point of view, which could allow the estate to remain a plaintiff.

[4] Overall the Plaintiffs look to establish a sufficient factual context so that this action might proceed toward the intended declaratory relief. More specifically, there would be at least one plaintiff who is a Western Canadian Métis, a plaintiff who is a non-status Indian from Ontario and a plaintiff who is a non-status Indian from the Atlantic provinces, each representative with perhaps different perspectives and circumstances, by which to assist the Court in defining the real issues in controversy.

[5] Of importance is that each of these proposed plaintiffs wishes, of their own accord, to be added as a plaintiff.

[6] I will begin from the premise that the Federal Court has been most generous in allowing joinder of parties and here I specifically have in mind plaintiffs, for there are hardline cases against joinder involve defendants. Further, if each of the intended plaintiffs were to institute their own actions, there is good probability that the Court would at some point order either consolidation or joinder, a point made by Mr. Justice Hugessen in Shubenacadie Indian Band v. Canada (Attorney General) (2001) 202 F.T.R. 30, upheld on appeal (2002) 291 N.R. 393:

The rules of the Court are extremely generous in respect of both amendments and joinder of parties and causes of action and as a matter of principle, it would seem to me that there is nothing that can be said against the joinder in a case such as this. Indeed, as I mentioned during an earlier hearing, if the plaintiffs were to institute a separate action claiming damages, it is entirely probable that the Court would, at some stage, order either the consolidation or the joinder of the two proceedings. If, at a later date the joinder turns out to be cumbersome or otherwise inappropriate, the Court retains a discretionary power under Rule 107 to order separate trials.

In Shubenacadie Mr. Justice Hugessen approved the addition of other plaintiffs, who asserted that they were beneficiaries of aboriginal rights by way of treaty and common law.

[7] First, dealing with the proposed plaintiffs Gabriel Daniels and Terry Joudrey, I have considered the submissions on behalf of the Defendants and the various cases brought to my attention, including Amon v. Raphael Tuck & Sons Ltd. [1956] 1 Q.B. 357. None of those cases involve representative actions and all involve whether proposed defendants are necessary parties to the litigation. I prefer the view taken by Mr. Justice Hugessen, in the Shubenacadie case (supra) and all the more so in that the proposed plaintiffs, Gabriel Daniels and Terry Joudrey, might themselves commence similar actions, which in all likelihood would end up being consolidated or joined with the present proceeding. Gabriel Daniels and Terry Joudrey are joined as Plaintiffs, with counsel for the Plaintiffs to serve and file an appropriately amended Statement of Claim.

[8] The addition of Cheryl Storkson, as a plaintiff, involves, in some respects, different considerations.

[9] The continuation of a proceeding, following the death of a party is governed, from a procedural point of view, by Rules 116 and 117. As Madam Justice Snider pointed out in Tacan v. Canada (2003) 237 F.T.R. 304 at 305-306, Rule 117, which sets out what paperwork must be accomplished in order to complete the assignment or devolution of a proceeding, is purely procedural, with the issue of permissibility of the assignment or devolution to be found elsewhere in statutory provisions or in the common law:

Rule 117 of the Federal Court Rules, 1998 provides that "where an interest of a party in, or the liability of a party under, a proceeding is assigned or transmitted to, or devolves upon another person, the other person may, after serving and filing a notice and affidavit setting out the basis for the assignment, transmission or devolution, carry on the proceeding." In my view, this Rule does not provide for the authority to assign an interest in litigation; it merely addresses the procedural requirements for dealing with an assignment that is otherwise legally undertaken. In fact, there are no Rules that would assist me in this case. Thus, to determine whether the assignment is permissible, I must look to other relevant law - be it common law or statutory provision.

The issue of an estate carrying on with a proceeding is thus not mechanical and as a right, but becomes a question of permissibility.

[10] The Defendants, dealing with the permissibility of Ms. Storkson continuing the present action, relying on authority to the effect that equality rights under the Charter are personal rights which belong to individuals, but not to artificial entities such as estates. I will not refer to all of the authorities, but rather only to the most recent, which does pick up some of the earlier cases, being Métis National Council of Women v. Canada (Attorney General), an unreported 18 February 2005 decision of Mr. Justice Kelen, 2005 FC 230, docket T-595-01. That decision, at paragraphs 17 and following canvasses the authorities, including Canada (Attorney General) v. Vincent Estate (2004) 257 F.T.R. 107, a decision of Mr. Justice MacKay, to which I will turn shortly.

[11] In Métis National Council of Women Mr. Justice Kelen rejected the participation of the estate of one of the applicants, Ms. Gus, to continue with the proceeding for Mr. Justice Kelen was of the view that the Charter right at issue, section 15 which protects equality rights individuals, did not provide a remedy to an estate. Mr. Justice Kelen does not, in his reasons, refer to survival of actions legislation. In reaching this conclusion Mr. Justice Kelen had to deal with the Vincent Estate case (supra), in which Mr. Justice MacKay did consider the Nova Scotia Survival of Actions Act.

[12] In Vincent Estate at issue was a motion by the Minister to prevent the Vincent Estate from pursuing a pension claim by way of an equality right under section 15 of the Charter. There Mr. Justice MacKay pointed out that none of the authorities referred to by the Minister stood for the proposition that a Charter claim, begun by an individual, terminated upon the death of that individual and might not be carried forward by the estate of the claimant. Mr. Justice MacKay felt that this was all the more the situation in that the claim was not unique to Ms. Vincent's personal situation, but rather centred around discrimination under the Constitution Act of 1982 and involved not just Ms. Vincent, but rather all former spouses, mostly women, who were in her situation. Having undertaken a fairly thorough analysis Mr. Justice MacKay found that there were special circumstances and then went on to say that:

In my opinion, however, the Review Tribunal did not err in holding that the Estate of Ethel Vincent had standing to pursue the claim initiated by her in her lifetime, including her claim that she had been denied equality contrary to s. 15 of the Charter.

Mr. Justice MacKay then observed that the Tribunal, in acknowledging the capacity of the Estate to carry on the claim, was not wrong in law. Here I note that Vincent is under appeal and is schedule to be heard later this spring.

[13] Here I would observe that by Rules 116 and 118, the death of a plaintiff does not, in itself, terminate a proceeding. Further, the Saskatchewan Survival of Actions Act, Statutes of Saskatchewan 1990-91, c. S-66.1, as amended, section 3, provides for the survival of an action for the benefit of the estate of the deceased.

[14] Counsel for the Plaintiffs also refers to [1976] 1 S.C.R. 170">Canard v. Canada (Attorney General) [1976] 1 S.C.R. 170, here building on the concept that section 15 of the Charter reflects individual rights, whereas in the present instance the rights are broader, involving those who are Indians. This may well put a different light on the ability of the estate to carry on, for a stake is not a personal right, for example the personal right in Stinson Estate v. British Columbia (1999) 70 B.C.L.R. (3d) 233 (B.C.C.A.), relied upon by Mr. Justice Kelen in Métis National Council of Women, where the B.C. Court of Appeal differentiated between section 7 Charter rights, belonging to everyone and section 15 rights, belonging to every individual. On the balance it may well be that Métis National Council of Women can be distinguished, including on the basis that in Métis National Council of Women there were other appropriate plaintiffs to carry on with the proceeding, whereas that may not necessarily be the case in the present instance: when counsel for the Defendants was questioned as to whether the Daniels proceeding, an important matter, might carry on, counsel merely avoided the issue by maintaining that the action must be properly brought. This is not an entirely satisfactory answer for the progress of an important test case ought to be held up stage by stage. Yet, I do not have to delve further into the apparent dichotomy between Métis National Council of Women and Vincent Estate (supra), together with the issue of whether the Supreme Court, in [1976] 1 S.C.R. 170">Canard (supra), puts a different light on the whole matter. Rather, I would observe that Ms. Storkson is not yet at law a representative of the estate.

[15] I am not prepared to add the estate as a plaintiff, as informally represented by Ms. Storkson, for that would be premature, given the absence of letters of administration. While it may be that Ms. Storkson would qualify as a plaintiff in her own right, that is not before me. Thus while the application to add the estate, as it presently exists, is dismissed, the dismissal is without prejudice to a further application either by Ms. Storkson, in her own right, or as by Ms. Storkson when she has letters of administration for the estate, thus clearly bringing her within the Federal Court devolution of proceeding rules. Indeed the time for commencing procedural steps to add the estate as a plaintiff has not yet begun to run.

[16] Success being mixed, costs will be in the cause.

(Sgd.) "John A. Hargrave"

Prothonotary

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-2172-99

STYLE OF CAUSE: Harry Daniels et al v. Her Majesty the Queen et al

PLACE OF HEARING: Vancouver

DATE OF HEARING: April 7, 2005

REASONS FOR ORDER BY : John A. Hargrave, Prothonotary

DATED: May 13, 2005

APPEARANCES:

Mr. Andrew K. Lokan FOR PLAINTIFF HARRY

DANIELS

Mr. Joseph E. Magnet FOR PLAINTIFF CONGRESS OF ABORIGINAL PEOPLES

Ms. Cynthia J. Dickins FOR THE DEFENDANT

Ms. Karen J. Metcalfe

SOLICITORS OF RECORD:

Paliare Roland Rosenberg Rothstein LLP FOR PLAINTIFF HARRY

Toronto, Ontario DANIELS

Faculty of Law (Common Law Section) FOR PLAINTIFF CONGRESS

University of Ottawa OF ABORIGINAL PEOPLES

Ottawa, Ontario

Mr. John Sims FOR THE DEFENDANT

Deputy Attorney General of Canada

Edmonton, Alberta

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Daniels v. Canada, 2005 FC 699

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2005 FC 699