Date: 20040408
Docket: T-705-97
Neutral citation: 2004 FC 550
BETWEEN:
CHIEF LIZA WOLF on her own behalf
and on behalf of the members of the
DENE TSAA FIRST NATION,
otherwise known as the
PROPHET RIVER INDIAN BAND
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] This action is on the eve of its seventh anniversary. It was started as a representative action under Rule 1711 of the old Federal Court Rules and continued under the former Rule 114 of the Federal Court Rules, 1998 . The action has been intensively case managed and there has been a high level of cooperation between counsel. While not yet ready for trial, the action has had a great deal of work invested in it in its present form.
[2] Approximately 12,000 documents have been produced. Thirty two days of examinations for discovery have been conducted and extensive lists of written interrogatories have been exchanged and answered. There have also been six days of videotaped trial evidence of two elderly witnesses taken by commission.
[3] The former Rule 114 was repealed with effect on November 21, 2002. No transitional provisions were adopted regarding the continuation of pending representative actions and it appears to have been assumed that such actions could conveniently go forward as class actions under the newly adopted Rules 291.1-291-42 which came into force on the same day. The plaintiffs, together, in my experience, with a number of other groups urging claims for aboriginal rights, do not share that view. The process of certification is seen as time consuming, expensive and, regrettably, unnecessary where the plaintiff is the Chief of a Band recognized as such under the Indian Act and the claim is asserted on behalf of all the members of that Band. In at least one case of which I am aware where it was felt necessary to convert the action to a class action, the Case Management Judge informs me that the parties have since spent over a year in procedural debates and certification has still not issued. (See Federation of Newfoundland Indians, 2003 FCT 383.) In at least one other case the problem was avoided by naming the Band itself as plaintiff (see Sawridge Band v. Her Majesty the Queen, 2003 FCT 665) but for a variety of reasons that solution is not always possible or desirable.
[4] The plaintiffs now move for an order pursuant to rule 55 to dispense with the application of Rules 299.1-299.42 and to permit that the action proceed as before as a representative action. In the alternative, they ask that the "gap" rule (rule 4) be invoked and that the Court order that the action proceed in accordance with Rule 5(11) of the British Columbia Rules of Court which reads::
5(11). Representative proceeding - Where numerous persons have the same interest in a proceeding, other than a proceeding referred to in subrule (17), the proceeding may be commenced and, unless the court otherwise orders, continued by or against one or more of them as representing all or as representing one or more of them.
[5] The defendant Crown, while not consenting, does not oppose the motion, although it expresses a preference for the alternative conclusion sought by plaintiffs, namely the adoption by reference of the British Columbia Rules of Court .
[6] 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 an insistence on the strict application of those Rules at this time, all lead me to that conclusion.
[7] I have, however, considerable hesitation about accepting the Crown's suggestion that I should adopt the British Columbia Rules of Court by reference. It is important that in a national Court, such as this one, the applicable rules should wherever possible be uniform across the country. To my knowledge, the problem raised by the present motion exists in several parts of Canada and it is by no means clear that other provinces have the equivalent to Rule 5(11) of the British Columbia Rules of Court. Also, of course, those latter Rules are at any time subject to being altered by competent authority and the Court has no input into such process. I think that that would introduce an undesirable degree of uncertainty into these proceedings. I note, however, that at least in British Columbia, it appears to be thought that a representative action rule can comfortably coexist with class action rules, something which the Federal Court Rules, 1998 do not contemplate. .
[8] On the other hand, 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 has 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 problems which may arise and which may be brought to my attention by the parties. I can see no reason to do anything more.
ORDER
The application of Rules 299.1 to 299.42 of the Federal Court Rules, 1998 in the present action is dispensed with.
No order as to costs.
Judge
Ottawa, Ontario
April 8, 2004
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-705-97
STYLE OF CAUSE: Chief Liza Wolf et al v. Her Majesty the Queen
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: April 8, 2004
WRITTEN SUBMISSIONS BY:
Jeffrey Rath and Allisun Taylor Rana FOR PLAINTIFFS
Mary King FOR DEFENDANT
SOLICITORS ON THE RECORD:
Rath & Company FOR PLAINTIFFS
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT
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