Date: 20010601
Docket: 00-T-13
Neutral citation: 2001 FCT 574
BETWEEN:
NORRIS TACAN, ALFRED TACAN, RALPH MERRICK,
SOLOMON HALL, STAN McKAY and CHIEF KENNETH WHITECLOUD
as Personal Representative of the Estates of MANUS MERRICK,
JOHN TAYLOR, RUFUS WILLIAMS, FREDERICK ESSIE, HERBERT HAPA,
NORMAN CHASKE, ZEPH SIOUX, CHARLES HAPA, JOHN DOOTA,
FRANK HAPA, HERMAN ESSIE, LAWRENCE ANTOINE, JOHN SIOUX,
ALLAN PRATT, PETER WHITECLOUD, ALBERT ELK,
JOSEPH RUNEARTH, PHILLIP WASICUNA, ABRAHAM ALEXANDER MINI
late of the Sioux Valley First Nation, Province of Manitoba, Deceased
Plaintiffs
- and -
HER MAJESTY THE QUEEN in Right of Canada
Defendant
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1] This is a motion on behalf of the Plaintiffs, brought prior to the commencement of an action in accordance with Rule 67(6) of the Federal Court Rules, 1998, for an order pursuant to Rules 113 and 114 allowing the elected Chief of the Sioux Valley First Nation to represent, and be litigation guardian for, the estates of approximately twenty deceased veterans in an action against the Crown.
[2] The Statement of Claim which the Plaintiffs propose to file consists of 119 paragraphs and runs 52 pages in length. In summary, it is an action by or on behalf of a number of Plaintiffs, some living and the others deceased, who claim that they have been wrongfully deprived of veterans benefits to which they were entitled as a result of their service in either World War I, World War II or the Korean War, allegedly by the application of racially discriminatory laws, policies and practices.
[3] The motion was initially supported by only one affidavit, that of Chief Kenneth Whitecloud sworn February 3, 2000. Since the affidavit is relatively short, it is reproduced below in its entirety.
1. I have been the elected Chief of The Sioux Valley First Nation since 1997 and as such have personal knowledge of the proposed action herein to be filed by the living Aboriginal Veterans and the Estates of Aboriginal Veterans of Sioux Valley First Nation.
2. I am informed through direct conversations with descendants of the deceased Veterans and verily believe that the various Estates as listed in the Statement of Claim wish to have relief against the wrongs alleged therein.
3. I am also informed by the same sources and verily believe that the said Estates are in various different states, whether because a Will was left or not and whether assets existed or not and whether Probate under The Indian Act (sic) was achieved or not. In any event, I am of the belief the claims of the Estates as outlined in the proposed Statement of Claim should proceed irrespective of the status of the individuals, based on my conversation with the descendants of the deceased Veterans.
4. Accordingly, I am prepared to act as Personal Representative of the named Estates for the purpose of advancing the claims and causes referred to in the Statement of claim (sic). I am fully prepared to pledge security for costs if necessary from band resources upon obtaining a Band Council Resolution or to honour any Order as to Costs pronounced by this Honourable Court at any time, should the Order sough (sic) be granted.
5. I make this affidavit bona fide to support the motion for a Representation Order.
[4] The hearing of the motion began on April 25, 2000 but was adjourned sine die at the request of counsel for the Plaintiffs after concerns were expressed by the Court with respect to the adequacy of the affidavit material filed. On consent of the Defendant, the Plaintiffs were granted leave to file additional affidavits from relatives of the deceased veterans as well as supplementary written submissions. The motion was scheduled to proceed on August 11, 2000 but was once again adjourned to allow the Plaintiffs more time to secure the necessary affidavits.
[5] The additional affidavits filed in support of the Plaintiffs' motion are those of various family members of deceased veterans. The majority of the deponents attest to the fact that they have limited or no knowledge as to whether their deceased relative died intestate or how their estate was administered. They speculate that the estate may have been dealt with informally without probate, however only a few can confirm this. Most of the deponents assume that the estate of their relative was administered informally, without probate. All however purport to consent of behalf of the estate of their deceased relative to a representation order in favour of Chief Whitecloud.
[6] The hearing of the motion took place on October 17, 2000 in Winnipeg and the matter then taken under reserve. Before disposition of the motion, the parties were invited by the Court to file supplementary written submissions to comment on the decision of Trotter, J. in Raiz v. Vaserbakh (1986) 9 C.P.C. (2d) 141 (Ont. D.C.) which had not been referred to by either party.
[7] The motion raises two issues. The first one is whether it is appropriate to appoint Chief Whitecloud to bring the proposed action on behalf of the estates of the named deceased pursuant to Rule 113. The second issue is whether Chief Whitecloud should be permitted to bring the action as a representative action pursuant to Rule 114.
Rule 113 of the Federal Court Rules, 1998
[8] Rule 113 of the Federal Court Rules, 1998 allows the Court to appoint a person to represent the estate of a deceased and reads as follows:
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113. (1) Where a party to a proceeding is deceased and the estate of the deceased is not represented, the Court may appoint a person to represent the estate of the deceased or order that the proceeding continue without representation of the estate.
(2) Before making an order under subsection (1), the Court may require that notice be given to all persons who have an interest in the estate of the deceased.
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113. (1) Dans le cas où une partie à une instance est décédée et où la succession de celle-ci n'a pas de représentant, la Cour peut nommer une personne à titre de représentant de la succession ou ordonner la poursuite de l'instance sans qu'un représentant soit nommé.
(2) Avant de rendre une ordonnance en vertu du paragraphe (1), la Cour peut exiger qu'un avis soit donné aux personnes qui ont un intérêt dans la succession de la personne décédée.
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[9] The Plaintiffs did not refer to any case law, nor advance any argument, as to what criteria must be met by a person seeking to be appointed pursuant to Rule 113 . They simply submit that it would be unreasonable to require that Letters of Administration be obtained for each deceased veteran. They maintain that it would be more expedient in the circumstances for a representation order to be granted.
[10] The Defendant submits that Rule 113 must be read in conjunction with Rule 112 which sets out the general rule that proceedings by a deceased person must be brought by a representative of the estate. The Defendant further contends that Rule 113 is applicable only where a proceeding has already been commenced. In other words, a representative can only be appointed to "continue" an action, lacking any authority to institute one on behalf of the estate of a deceased. The Defendant submits as well there must be clear evidence that the estate of the deceased is not represented. The Defendant characterizes the evidence adduced by the Plaintiffs with respect to status of representation of the estate of the deceased veterans as inadequate.
[11] The Plaintiffs reply that Rule 113 should not be read so restrictively. They submit an un-administered estate is not necessarily required to appoint an administrator and that Rule113 provides the Court with a discretion to dispense with such formal requirement. They say that the Rules must be interpreted broadly to ensure a "just, most expeditious and least expensive determination" of the proceeding on its merits. Counsel for the Plaintiffs reminds the Court that his clients are elderly and fragile. Consequently, arguments relating to form and procedure should not be allowed to prevail.
Analysis
[12] The onus is on a moving party to satisfy the Court that it is appropriate to grant the relief requested. Rule 113 sets out two conditions which must be met by the Plaintiffs before the Court can exercise its discretion. The first is that "a party to the proceeding is deceased" and the second is that "the estate of the deceased is not represented".
[13] The Defendant argues that Rule 113 is applicable only when an action has already been commenced and a representative is required to "continue" the proceeding. Although there is some merit to this argument, I do not agree that the Rule should be interpreted so restrictively. The Court clearly has a discretion, in appropriate circumstances, to appoint a party to defend a proceeding on behalf of a deceased person, whether the action is instituted before or after the death of the party. A distinction should be drawn however between a representative appointed to defend an action on behalf of a deceased party and one who seeks to bring an action in the name of a deceased person.
[14] It is trite law that the right to sue generally dies with the person. This principle is well recognized in common law, as succinctly stated by Trotter, J. in Raiz, supra at
page 143:
At common law, the maxim actio personalis moritur cum persona provides that a personal right of action dies with the person. In other words, both the procedural and substantive right to sue or be sued dies with the original party litigant.
[15] Although various statutes have curtailed the application of this maxim, the right to sue on behalf of a deceased before this Court is clearly vested in trustees, executors or administrators (see Rule 112). Rule 113 is of limited application and does not change the substantive law. In particular, it does not authorize a representative (other than a trustee, executor or administrator) to commence an action on behalf of a deceased. I conclude that the first condition of Rule 113 has not been met.
[16] That is not to say that resort cannot be had to Rule 113 in exceptional situations, such as when a limitation period is about to expire, or when the administration of an estate is contested or otherwise delayed. In such cases, the Court may authorize a representative to take limited steps to protect the interests of the estate.
[17] Turning to the second condition set out in Rule 113, the Plaintiffs must also establish that "the estate of the deceased is not represented". It is well established that evidence on a motion which does not appear on the Court file must be set out by affidavit. Rule 81(1) provides as well that affidavits must be confined to facts within the personal knowledge of the deponent, except on motions in which statements on belief can be included.
[18] I have carefully reviewed the affidavits filed on behalf of the Plaintiffs and find that in general they do not adequately establish knowledge of the status of representation of their deceased relative's estate. Most of the affidavits filed in support of the motion are replete with conjecture and speculation. As an example, at paragraph 4 of the affidavit of Frank Sioux, Brenda Bone and Loretta Sioux sworn July 27, 2000 (the propriety of filing an affidavit sworn by multiple individuals was not raised by the Defendant and is therefore not addressed in these reasons), the deponents state as follows:
4. We have absolutely no knowledge of whether or not our grandfather had a Will; however, we strongly suspect and believe his estate was handled informally amongst our family.
[19] Such statements are of no assistance to the Court. The affidavits does nothing more than provide vague assertions. The deponents do not identify the source of their information and belief nor indicate what, if any, reasonable steps were taken to ascertain the information. Consequently, little weight has been given to the Plaintiffs' evidence.
[20] Even if the two conditions set out in Rule 113 had been met by the Plaintiffs, I would seriously question the propriety of appointing Chief Whitecloud as a representative of the estates of the deceased veterans.
[21] At the hearing of the motion, I raised concerns with respect to the intermeddling by a stranger to an estate who purports to assert the rights of a deceased. As I stated to counsel, giving assisting and encouraging beneficiaries of the estates of the deceased veterans to bring action is tantamount to maintenance.
[22] There are many definitions of maintenance and champerty. At pages 728-729 of his decision in Pioneer Machinery (Rentals) Ltd. v. Aggregate Machine Ltd. (1978) 93 D.L.R. (3d) 726 (Alta. S.C.), Laycroft, J. states as follows:
Champerty and maintenance were both torts and crimes at common law. In [1939] S.C.R. 446">Goodman v. R., [1939] S.C.R. 446 at 449... Kerwin J. (as he then was) adopted what he termed the classical definition of maintenance as given by Lord Arbinger in Findon (Finden) v. Parker (1843)...152 E.R. 976 [(Ex.)] at 979:
The law of maintenance as I understand it upon the modern constructions, is confined to cases where a man improperly and for the purpose of stirring up litigation and strife, encourages others either to bring actions or to make defences which they have no right to make.
Champerty is a particular kind of maintenance in which the maintainor stipulates for a portion of the proceeds of the litigation as his reward for the maintenance...
The doctrines of champerty and maintenance are based upon considerations of public policy.
...
If a person has a legitimate concern in supporting litigation, his support of the action is not maintenance. What constitutes a legitimate concern has been greatly widened in this century. In Chitty on Contracts, art. 939, it is said:
A person is guilty of maintenance if he supports litigation in which he has no legitimate concern without just cause or excuse. The mischief directed against is wanton and officious intermeddling with the disputes of other in which the defendant has no interest whatever and where the assistance he renders to one or the other party is without justification or excuse. The bounds of justification and excuse for supporting litigation by others have been greatly widened over the past 50 years.
[23] Chief Whitecloud does not claim to be a beneficiary of any of the estates, nor has he established that he has any special relationship with any of the deceased veterans. Further, there is no evidence that Chief Whitecloud has any particular knowledge of the state of mind of the deceased veterans when they elected decades ago to receive benefits. His ability to comply with discovery obligations has not been established. As such, the discovery rights of the Defendant could be seriously impaired. Finally, I am unable to conclude on the facts before me that he has any legitimate concern for supporting the litigation in favour of the estates of the deceased veterans. In fact, I question whether any claim would have been advanced by theses estates were it not for his solicitation.
[24] Rule 113 cannot be applied so as to usurp the role of trustees, executors and administrators who ultimately must weigh the cost and benefits of litigation. I cannot do better than repeat the words of Trotter, D.C.J. in Raiz, supra at p.146:
As a general consideration, a Court should be very cautious in granting authority to a person to carry out litigation without the burden of administering an entire estate.
[25] I conclude that public policy militates against granting such sweeping relief claimed in this motion. For the above reasons, I decline to exercise my discretion in favour of granting an order pursuant to Rule 113. I therefore need not address whether the matter should be allowed to proceed as a representative action pursuant to Rule 114.
ORDER
[26] The motion is dismissed, without costs. In the circumstances, the Defendant is precluded from relying on the period from the date of filing of the Plaintiffs' motion to the date of this Order in any defence based on limitations of actions in response to the claim to be amended.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
June 1, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: 00-T-13
STYLE OF CAUSE: NORRIS TACAN, ALFRED TACAN,
RALPH MERRICK, SOLOMON HALL,
STAN McKAY and CHIEF KENNETH
WHITECLOUD as Personal Representative of
the Estates of MANUS MERRICK, JOHN
TAYLOR, RUFUS WILLIAMS, FREDERICK
ESSIE, HERBERT HAPA, NORMAN
CHASKE, ZEPH SIOUX, CHARLES HAPA,
JOHN DOOTA, FRANK HAPA, HERMAN
ESSIE, LAWRENCE ANTOINE, JOHN
SIOUX, ALLAN PRATT, PETER
WHITECLOUD, ALBERT ELK, JOSEPH
RUNEARTH, PHILLIP WASICUNA,
ABRAHAM ALEXANDER MINI late of the
Sioux Valley First Nation, Province of
Manitoba, Deceased
Plaintiffs
- and -
HER MAJESTY THE QUEEN in Right of
Canada
Defendant
DATES OF HEARING: TUESDAY, APRIL 25, 2000
AND TUESDAY, OCTOBER 17, 2000
PLACE OF HEARING: WINNIPEG, MANITOBA
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE P.
DATED: FRIDAY, JUNE 1, 2001
APPEARANCES BY: Mr. Robert L. Patterson
For the Plaintiffs
Ms. Glynis Hart
For the Defendant
.../2
Page: 2
SOLICITORS OF RECORD: PATERSON ROSS
Barristers and Solicitors
#1-1040 Princess Avenue
Brandon, Manitoba
R7A 0P8
For the Plaintiffs
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Winnipeg Regional Office
301-310 Broadway
Winnipeg, Manitoba
R3C 0S6
For the Defendant
FEDERAL COURT OF CANADA
Date: 20010601
Docket: 00-T-13
Between:
NORRIS TACAN, ALFRED TACAN,
RALPH MERRICK, SOLOMON HALL,
STAN McKAY and CHIEF KENNETH
WHITECLOUD as Personal Representative
of the Estates of MANUS MERRICK, JOHN
TAYLOR, RUFUS WILLIAMS,
FREDERICK ESSIE, HERBERT HAPA,
NORMAN CHASKE, ZEPH SIOUX,
CHARLES HAPA, JOHN DOOTA, FRANK
HAPA, HERMAN ESSIE, LAWRENCE
ANTOINE, JOHN SIOUX, ALLAN PRATT,
PETER WHITECLOUD, ALBERT ELK,
JOSEPH RUNEARTH, PHILLIP
WASICUNA, ABRAHAM ALEXANDER
MINI late of the Sioux Valley First Nation,
Province of Manitoba, Deceased
Plaintiffs
- and -
HER MAJESTY THE QUEEN in Right of
Canada
Defendant
REASONS FOR ORDER
AND ORDER
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