Fox Lake Indian Band v. Reid Crowther & Partners Ltd., 2002 FCT 630

Date: 20020530

Docket: T-501-88

                                                                                                              Neutral Citation: 2002 FCT 630

BETWEEN:

                          FOX LAKE INDIAN BAND and ROBERT WAVEY as CHIEF

                                   and CLARA WAVEY and GORDON ANDERSON as

                                COUNCILLORS of the said FOX LAKE INDIAN BAND

                                                and CLIFFORD STEVEN SAUNDERS

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                       REID CROWTHERS & PARTNERS LIMITED

                                                    and HER MAJESTY THE QUEEN

                                                                                                                                                    Defendants

                                                            REASONS FOR ORDER

HARGRAVE P.

        These reasons arise out of a fairly complex action, between the two surviving parties to this litigation, on a guarantee. The Plaintiff, Clifford Saunders ("Saunders"), succeeds on this application to amend the Statement of Claim in order to add his company and to make a claim for quantum meruit.

BACKGROUND

        The events leading to this motion are convoluted, but other than to provide some background context, are of only passing interest.

        It is sufficient to say that the Fox Lake Indian Band joint ventured with a local contractor, CBJ Northern Inc., contracting with the Crown to construct a water and sewage system on the Fox Lake Indian Reserve. The engineering specifications provided to the Crown by the Defendant, Reid Crowthers and subsequently relied upon by the joint venturers, proved faulty. The joint venturers, probably at the request of the Crown that the deficient system be made workable and on the understanding that money would inevitably be found to pay for such work, completed the system.

        In order to complete the system the joint venturers went to the Plaintiff, Saunders, for interim funding giving, as security, a series of assignments under which there is said to be a substantial amount of money owing. The Plaintiff says not only that the Crown has ignored his assignments, but also that the Crown has since made very substantial payments to the Fox Lake Indian Band and has decommitted money which was to have paid toward the water and sewer project. The form, delivery of notice and the effect of the assignments are for the trial judge to consider within a full context of facts: those issues are not to be dealt with on a motion to amend.

        Over the years the Plaintiff managed to settle with the other parties and intended to carry on with this action for the balance. However, Saunders now realizes the import and impact of the separation of an entrepreneur and his company: he loaned company funds, not his own. Saunders now wishes to add his company, Rank Electronics Ltd. ("Rank"), as a plaintiff with a claim similar to that of his own. The Plaintiff also desires to amend to claim reimbursement in the action, by way of quantum meruit and unjust enrichment, from the Crown.

CONSIDERATION

        At one point the Crown had offered to consent to part of the amendment, that of unjust enrichment. By reason of changes of counsel and other circumstances we now have an opposed motion to amend. This motion is not the place for a determination of the effect of the disputed consent, but rather to recognize its existence as a factor.

        I will begin by stating, as I did to counsel, two points. First, both sides have delayed and have been delayed for legitimate reasons. Therefore nothing in determining this motion hinges on the fact that the action is 14 years old, or that it took the Crown nine years to file a Defence. Second, whether or not effective notice of one or more of the assignments was given to the Crown is a complex and highly charged issue, compounded by misunderstandings and changes of counsel. I am not about to either determine that point, or to accept that notice of assignments was not given to the Crown, on the basis of a disputed Rule 255 request to admit. It is an issue which requires the full panoply of a trial to determine. I would also observe that there was no evidence of real prejudice to the Crown were the amendments to be allowed.

Some Basic Law on Amendment

        Turning now to the amendment issue, Mr. Justice Hugessen made some most useful comments in The Queen v. The "Irving Maple", an unreported 12 March 1999 decision in action T-1625-97, which are on point in this instance, both generally and specifically as to the time bar upon which the present Defendants rely in opposing this amendment. Mr. Justice Hugessen said:

. . . I am not called upon to decide, at this stage, whether or not the defendants may be entitled to obtain particulars of some one or more of the proposed amendments. I do, however, note that any pleading, and that includes a proposed amendment to a pleading, must be read in its entire context. When applying that principle to a proposed amendment, it means that the proposed amendment must be read as being part of the pleading to which it relates. When the proposed amendments to which objection has been taken on this ground are read in that context, I am quite satisfied that it is, by no means, plain and obvious that such amendments would be susceptible of being struck out on a motion as not disclosing a cause of action. That being so, it is my view that the amendments may properly be made and that, as I say, notwithstanding that there may be a right on the part of one or more of the defendants to obtain further particulars, a matter on which I make no decision.

[5]            With regard to the second objection taken by the defendants, it deals, as I have said, with certain specific words or phrases contained in some of the proposed amendments. An example is the new pleading to the effect that the defendants committed a "statutory" (as well as common law) nuisance. The defendants take the point that by a previous decision of this Court all claims based on Part XVI of the Canada Shipping Act [R.S.C. 1985, c. S-9] were found to have no basis in law because they were brought out of time. My reaction to the defendants' objection is simply this: it is no part of the Court's role on a motion to amend to edit the proposed amendments. If the amendments taken as a whole, appear to be a reasonable pleading which discloses a cause of action which is not susceptible to being struck out, then the fact that one or more words or phrases in any particular paragraph of the pleading may be susceptible to being struck out does not render the amendment as a whole bad.

Mr. Justice's Hugessen' s decision was upheld by the Federal of Appeal: see note at (2001) 182 F.T.R. 160. In this passage Mr. Justice Hugessen sets out various principles including: first, the concept of reading an amendment in its entire context, as a part of the relevant pleading; second, considering whether the pleading appears reasonable; third, determining whether it would be plain and obvious that the plea would not be struck out as wanting a cause of action, even where further particulars might eventually be required; and finally, keeping in mind that the existence of a possible time bar, including a statutory time bar, is not a reason to curtail an amendment. These are points are not new, but are neatly and succinctly expressed. I shall expand upon them through reference to cases dealing with specific points.

        The basic principles, alluded to by Mr. Justice Hugessen in The "Irving Maple", to apply in considering an amendment are well established. First, the Court should take a generous approach to a request for an amendment. This is implicit in a passage from the Federal Court of Appeal's decision in Canderel Ltd. v. Canada [1994] 1 F.C. 3 where Mr. Justice Décary sums up the Court's past jurisprudence at page 10:

. . . while it is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment, the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice.

In Canderel the Court of Appeal was considering the Tax Court Rule as to amendment, however the Court of Appeal pointed out that the rule was not substantially different from the contemporary rule which allowed amendment in the Federal Court. Canderel, while decided under the Tax Court equivalent to the Federal Court pre-1998 Rules, still sets the standard, a generous standard, for amendment: see for example the reliance upon Canderel both in Yeager v. Correctional Service of Canada (2001) 189 F.T.R. 196 at 199 (F.C.T.D.) and by the Court of Appel in Bering Trawlers Ltd. v. Richardson International Ltd., an unreported 22 March 2002 decision in file A-121-01. Moreover, the Rules bearing on amendment ought to be interpreted and applied in the light of Rule 3, so as to secure just, expeditious and inexpensive determination of a proceeding on its merits.

      Associate Chief Justice Jerome built on Canderel in Gleason Works v. Excalibar Tool Inc. (1996) 66 C.P.R. (3d) 139 at 140, observing that Canderel made it clear that a plain reading of Rule 420(1), predecessor to the present Rule 75, was enough to interpret its import. He went on to adopt a passage from Société Canadienne de Métaux Reynolds v. Fednav Ltd. (1989), 18 A.C.W.S. (3d) 1234 in which Mr. Justice Dubé observed that:

. . . the motions judge does not anticipate whether an amendment will be successful at trial, but merely decides whether or not it ought to be filed.

This is in line with the concept that so long as there is a cause of action which would not plainly and obviously be struck out as futile, the amendment ought to be allowed. It is, of course, subject to whether the amendment can be made without prejudice to the other side. Here I would refer to Visx Inc. v. Nidek Co. (1999) 234 N.R. 94 at 95, where the Federal Court of Appeal quoted and approved the following passage from Steward v. North Metropolitan Tramways Co. (1886) 16 Q.B.D. 556, a decision of Court of Appeal, at page 558:

The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed, if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs: but, if the amendment will put them into such a position that they must be injured, it ought not to be made.

This passage, which is in the reasons of Lord Esher, M.R,. has impeccable lineage, going back to at least the Court of Appeal decision in Tildesley v. Harper (1878) 10 Ch.D. 393 where Lord Justice Bramwell, commented:

My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fides, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise. (page 397)

This concise statement of procedure has often been elaborated upon, but never improved. More currently both Visx and Steward were applied by Mr. Justice Pelletier in Halford v. Seed Hawk Inc. (2001) 13 C.P.R. (4th) 36 at page 40. As I have already observed there is no evidence of real prejudice, in the legal sense of prejudice which cannot be compensated for by costs or otherwise.

      That a court, dealing with an application to amend, must both assume that the facts pleaded are true (see Visx Inc. v. Nidek Co. (1997) 209 N.R. 342 (F.C.A.) at 347) and apply the same rule as in striking out a pleading, that it will only deny an amendment in a plain and obvious case where the situation is beyond doubt, deserves emphasis. This latter point was made both by Chief Justice Isaac in the 1997 Visx decision (supra) at page 347 and by Mr. Justice of Appeal Décary in Cardinal v. Canada (1994) 164 N.R. 301 at 303. In Cardinal the Court went on to observe that they were dealing ". . . with an area of law which cannot be said to be settled with certainty. Accordingly we think the appellant should have a chance to raise the whole issue of trust at trial." (loc cit.).

      The principles in Canderel (supra), Cardinal (supra) and inContinental Bank Leasing Corp. v. Canada (1993) 93 D.T.C. 298 were considered by Mr. Justice Lemieux in Hoechst Marion Roussel Deutchland GmbH v. Adir (2001) 190 F.T.R. 233. In referring to Continental Bank Mr. Justice Lemieux put emphasis on the role of amendments in facilitating the Court's analysis of the substance of a dispute on its merits, with all of the factors to be weighed in the context of the particular case. The passage he quotes sums up all of this and I believe what underlies all of the cases on amendment:

Ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done. (page 302 of Continental Bank / 238 of Hoechst Marion)

      The Crown makes a number of submissions as to why the amendments sought ought not to be allowed, submissions which may be dealt with as falling within the category of objections which do not surmount the basic principles of law which I have set out above. These submissions include that Rank is not a necessary party and that unjust enrichment requires a corresponding benefit to the Crown.

Rank as a Necessary Party

      Rule 104 permits the addition of a party at any time. I have considered that Rule and the law, including for example as set out in Eastman Kodak Co. v. Hoyle Twines Ltd. (1985) 5 C.P.R. (3rd) 264 in which Mr. Justice Strayer, as he then was, allowed the addition of a party, with leave to defend on the basis of a spent limitation period, in the context of Rank as a necessary party. The Crown questions whether Rank ought to be a party at all.

      I am satisfied that Rank is arguably be a necessary party, for Rank's cheque represented the funds which in fact constituted the loan giving rise to this litigation. Moreover, it may well be that applying what is essentially a purposive construction to one or more of the assignments of construction proceeds which underlie the action, assignments given to Saunders, Rank was in fact an intended assignee, a point raised by counsel for the Plaintiff in his argument in reply to the Crown. To elaborate on this aspect, counsel should be aware of and consider the modern principles of purposive construction of contractual documents, set out by the House of Lords in Investors Compensation Scheme Ltd. v. West Bromwich Building Society [1998] 1 W.L.R. 896 at pages 912-913. There the House of Lords held that the interpretation of a contractual document had as its goal to find the meaning that the document would convey to a reasonable person, someone having all of the background knowledge which was reasonably available to the parties. It is the meaning that such reasonable parties, looking at the complete background and purpose of the document and notwithstanding the actual wording of the document, would give to the document. In Investors Compensation Scheme Lord Hoffmann observed that modern principles of purposive construction of contractual documents were not always properly appreciated, summarizing these principles, at pages 912-913 as follows:

(1)            Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2)            The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3)            The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. . . .

(4)            The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. . . .

(5)            The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191, 201:

"if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense."

In the present instance it is certainly arguable that, given the factual matrix and the circumstances in which the guarantees arose, together with the commercial purpose of that guarantee, factors falling within "absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man", would give rise to an interest by Rank in the guarantee and a further reason for Rank being added as a plaintiff.

Unjust Enrichment

      Turning now to unjust enrichment, it does not particularly bother me that funds did not past directly from the Plaintiff, or his company, to the Crown, but rather went through a contractor to emerge as a water and sewage system, for it is an equitable remedy, known for its flexibility in order to achieve justice . Moreover, the assignments may also come into play. What is more troublesome is whether the Plaintiff is able to satisfy the elements of unjust enrichment. Mr. Justice Dickson, in Pettkus v. Becker (1981) 117 D.L.R. (3d) 257, set out three requirements, which he felt had emerged through the general principles of equity, to be satisfied before an unjust enrichment claim might exist, being:

. . . an enrichment, a corresponding deprivation and an absence of any juristic reason for the enrichment. (page 274)

While the Crown, to some extent, argues the merits of the unjust enrichment claim, the real issue is whether, taking the amendment at face value, unjust enrichment of the Crown is a plea which would be struck out as obviously and incontestably forlorn. The Crown submits that while the lands upon which the water system and the sewer system are situated may have been benefited, that is a benefit which accrued to the Fox Lake Band and not to Canada. However, there appear to be contrary arguments including: that title to a reserve is vested in the Crown as set out in section 2(1) of the Indian Act; that the right of Indians to reserve lands has been characterized as a usufructuary right to use the Crown's property without damaging or diminishing it; that the completed water and sewage project is a benefit to the Crown in that they will no longer have to arrange to provide those utilities; and finally, that the Crown did, in fact, receive a direct benefit when funds, which were to have paid for the completion of the project, reverted to the Crown. Certainly the Plaintiff raises a prima facie case that he expected to be paid. All things considered, I am unable to say that the unjust enrichment plea is one which plainly, obviously and beyond doubt could not succeed.

Time Bar

      Perhaps the most interesting argument which the Crown makes is that of a time bar. Here I will leave aside, for the moment, that amendments ought not, generally, to be denied because there may be a time bar defence.

      Counsel for the Crown contends that the amendments ought not to be allowed for they are sought after time has run and that there are not, and here counsel relies upon cases from Provincial courts, special circumstances to enable such amendments to be made. Counsel for the Plaintiff submits that the amendments ought to be allowed for they arise out of similar or essentially similar facts. Counsel for the Crown then counters with the interesting submission that the relevant limitation, in the absence of an applicable federal Limitation Act, is set by Manitoba legislation, the Limitation of Actions Act R.S.M. 1987, ch. L 150, in section 2(1)(k) at six years. Crown counsel then submits that while the Manitoba law as to prescription is to apply, the Federal Court may not temper the strict six years because the Federal Court has no inherent jurisdiction to do so. I would observe that the reference in section 39 of the Federal Court Act, by which the Manitoba Limitation Act provision is imported, to "laws relating to prescription" refers only to those laws and does not include procedural rules: [1978] 2 S.C.R. 2">Leesona v. Consolidated Textile Mills [1978] 2 S.C.R. 2 at 10: thus the various Manitoba based and provincially based cases dealing with limitation, referred to by Crown counsel, while interesting, have no real application. The submission concludes to the effect that a statutory limitation period may not be extended by the Federal Court unless the statute so provides, for the Federal Court does not have the inherent jurisdiction to extend time, here referring to Nicholson v. Canada [2000] 3 F.C. 225, a decision of Mr. Justice Lemieux, at 244. Returning briefly to the Manitoba Limitation Act, it is interesting to note that section 14(3) provides for the application of equitable and legal principles which would allow amendment after limitation has run. The equitable and legal principles to apply would be Federal Court principles.

      The Plaintiff refers to the general principle, which has been applied by this Court in many instances, that where a new and apparently reasonable cause of action arises out of the same or essentially the same facts as already plead, an amendment to institute that cause of action ought to be allowed, even though a limitation has run. A good starting point is a consideration of the nature of a time bar defence, keeping in mind that the basic principle is the same for testing both an amendment and a cause of action which has already been pleaded. In Kibale v. Canada (1991) 123 N.R. 153 the Federal Court of Appeal invoked the rule that a statement of claim could not be struck out as wanting a cause of action, under the predecessor to Rule 221(1)(a), on the basis of a limitation defence. In leading into that rule the Court of Appeal considered the nature of a statute of limitations:

. . . a statute of limitations under the common law does not terminate the cause of action, but only gives the defendant a procedural means of defence that he may choose not to employ and must, should he choose to employ it, plead in his defence . . . . In other words, a plaintiff is not, in

writing his declaration, obligated to allege all the facts demonstrating that his action was brought in due time. A plaintiff is not obligated to foresee all the arguments the adverse party might bring against him. He can wait until the defence is filed and, should the defendant argue that the action is late, plead in reply any facts disclosing, in his opinion, that it is not late. It follows that, as Collier J. held in Hanna et al. v. Canada (1986), 9 F.T.R. 124, a defendant must plead a statute of limitations in his defence; he cannot do so in a motion to strike out under rule 419 because, for the reasons I have set out, an action cannot be said to be late on the sole ground that the statement does not demonstrate it is not late. (page 154-155)

In this passage the Court of Appeal points out that the ability to argue a limitation as a defence is not, per se, sufficient ground on which to strike out a cause of action. Rather, it provides a defendant with a defence that he may submit. This is because, as the Court of Appeal sets out, the plaintiff is not obliged, when drafting a statement of claim, to allege facts to indicate that the action is timely. In making the transition from a time bar as an improper approach to striking out an action, to an amendment which may be out of time, one must, as I have already said, keep in mind that the test for striking out is similar to that for allowing an amendment: if the amendment, taken as a whole, is not plainly and obviously futile it ought to be allowed and here I refer back to various of the cases which I have already touched upon and particularly Mr. Justice Hugessen's decision in The "Irving Maple".

      Certainly, I am aware of instances in which a pleading has been struck out because a limitation had run. These instances appeared to be, at least for the most part and perhaps entirely, special circumstances in which a statutory limitation may go beyond a mere defence: see for example Miucci v. Minister of National Revenue (1992) 52 F.T.R. 216.

      There are a number of Federal Court cases which deal with amendment after a limitation has run. Under the pre-1998 Rules the Federal Court of Appeal emphasized that an amendment, adding a new cause of action, after the limitation period had expired, would be permitted where the new cause of action is based on the same or substantially the same facts as the originally pleaded cause of action, so long as it seemed just to do so: see, for example, Francoeur v. M.N.R. (1992) 140 N.R. 389 (F.C.A.) at 391 and Domco Industries Ltd. v. Mannington Mills Inc. (1990) 107 N.R. 198 (F.C.A.) at 210, leave to appeal refused (1991) 127 N.R. 239. More current, in that it was decided under the present Rules, is Scottish & York Insurance Co. v. Canada (2001) 180 F.T.R. 115, a decision of Mr. Justice Teitelbaum. There he was faced with the submission that a new cause of action might be raised, notwithstanding time had run, only where there were special circumstances which invoked Rule 76. Rule 76 allows amendment to correct the name of a party, or alter the capacity in which a party brought an action, with Rule 77 providing that such an amendment is proper, notwithstanding the expiration of a limitation. In Scottish & York the defendant, who opposed the amendment, submitted that amendments after limitation had run could only be granted within Rule 76, that is dealing with correcting the name of a party or altering the capacity in which a party brought a proceeding. Mr. Justice Teitelbaum took broader views, including that Rule 75, the general rule as to amendment, was not limited to the same type of amendments as described in Rule 76 and that Rule 201 allowed amendment to raise a new cause of action, so long as the cause of action arose out of substantially the same facts as the existing cause of action, even though time had run: see pages 124 and 125.

      Just as there may be special circumstances which might allow an action to be struck out on the basis of a time limitation, and here I refer back to Miucci v. MNR, there may be instances in which a time barred amendment ought not to be allowed, notwithstanding the doctrine set out in Scottish & York (supra) and similar cases which allow amendment after time has run when the cause of action by amendment arises out of the same factual situation as the initial cause of action. Counsel for the Defendants submits that this is just such an instance.

      The Defendants point out that by section 39 of the Federal Court Act the relevant limitation period is provided by the Manitoba Limitation of Actions Act, R.S.M. 1987, CL 150. Section 2(1)(k) provides a six-year limitation. This is so, but one must keep in mind that such a provincial limitation period is applied not as provincial law, but becomes, by adoption, federal law and is applied as such by the Federal Court: see for example Wewayakum Indian Band v. Canada and Wewayakia Indian Band (2000) 247 N.R. 350 at 362 (F.C.A.). Other relevant propositions are first, as I have already said, provincial procedural rules are not imported by section 39 of the Federal Court Act: see [1978] 2 S.C.R. 2">Leesona (supra) at 37, there referring to section 39 of the Federal Court Act under its previous guise as section 38:

It is clear that, in s. 38 of the Federal Court Act, the reference to provincial "laws relating to prescription" does not include procedural rules. It cannot have been intended that, in respect of prescription, the filing and service of the proceedings in the Federal Court would be governed by the Quebec Code of Civil Procedure mentioned in art. 2224 rather than by the Rules of the Federal Court.

Implicit in this quotation is the intent that the Rules of the Federal Court are to be applied to prescriptions or limitations adopted from provincial law to become federal law and to be applied as such by the Federal Court. Second, while it is a truism that the Federal Court has no inherent jurisdiction, I would add that it has an implied jurisdiction to do what is necessary in order to make its Rules work. Counsel for the Defendants sums up his position by submitting that, unlike the Manitoba courts, the Federal Court has no jurisdiction to extend a limitation in an appropriate instance: this submission runs counter to what the Supreme Court teaches in [1978] 2 S.C.R. 2">Leesona.

      Counsel for the Defendants builds upon his summation by pointing to Nicholson v. Canada [2000] 3 F.C. 225, in which the defendants sought, on summary judgment, to strike out an action by reason of one-year time bar in section 649 of the Canada Shipping Act. There Mr. Justice Lemieux noted that a statutory limitation period, decreed in the first instance by Parliament, might not be extended in the absence of clear statutory authority.

      The short answer to this argument, that the amendment ought to be refused on the basis of a time bar, is that an amendment ought not to be refused where it may or may not be time barred and here there is certainly the 7 February 1995 letter from Mr. Glinter, of the Department of Justice, to counsel for the Plaintiff, acquiescing in the delay and indeed appearing to be a limited waiver of any time bar as to various amendments. I would also refer to the Court of Appeal's decision in Sembawang Reefer Lines (Bahamas) Ltd. v. The "Lina Erre" (1990) 114 N.R. 270 in which, in the face of a statutory time bar, it refused to allow a statement of claim to be struck out. The Court of Appeal noted that a plea of prescription ought to be just that, a plea raised in a defence.

      I suspect that the more involved answer is that the limitation, derived from the Manitoba Limitation Act, becomes in fact a general federal limitation of broad application, a limitation subject to Federal Court procedural rules as per [1978] 2 S.C.R. 2">Leesona (supra), rather than a statute specific time bar, to be observed absolutely and which precludes any procedural Federal Court relief which might be equitable.

      Leaving these possibilities aside, counsel have not been able to refer me to any on point Federal Court decisions dealing with the Court's jurisdiction to equitably temper a provincial limitation period which has become a general federal limitation provision. The law in this area is perhaps unsettled, subject to [1978] 2 S.C.R. 2">Leesona being accepted as an answer. Thus I am guided by Madam Justice Reed's view, in Hoechst Aktiengesellschaft v. Adir (1999) 153 F.T.R. 52 at 56-57, derived from, among other authorities, Cardinal v. Canada (1993) 164 N.R. 301 (F.C.A.) ". . . that amendment should not be denied when one is dealing with an area of the law that cannot be said to be settled with certainty.".

CONCLUSION

      While the amendment sought by the Plaintiff will not necessarily succeed at trial, I am satisfied, applying the test summarized by Mr. Justice Hugessen in The "Irving Maple" (supra) that, reading the amendments in the context of the Statement of Claim as a whole, it is certainly not plain and obvious that they are susceptible to being struck out as disclosing no cause of action. Indeed the amendments, taken together with the Statement of Claim, appear to constitute a reasonable pleading which ought to be allowed in the interests of fairness, common sense and the overall interest that justice be done.

      The amendments, which are also in keeping with the broad and generous view which the Court takes of the amendment rules, both in themselves and as a codification of amendment procedure, are thus allowed. In allowing the amendments I note that the amendments, when incorporated into the Statement of Claim, will most certainly assist in determining the substance of the dispute on its merits: thus enabling the Court to deal with the real question in controversy. To effectively deal with the amendments the Crown may have further discovery.

      I thank counsel for interesting argument. However costs will go to the Plaintiff in any event.

(Sgd.) "John A. Hargrave"

                                                                                                                     Prothonotary

Vancouver, British Columbia

30 May 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                          NAMES OF SOLICITORS AND SOLICITORS OF RECORD

DOCKET:                                                                                                                            T-501-88

STYLE OF CAUSE:                 FOX LAKE INDIAN BAND and ROBERT WAVEY as CHIEF and CLARA WAVEY and GORDON ANDERSON as COUNCILLORS of the said FOX LAKE INDIAN BAND and CLIFFORD STEVEN SAUNDERS v.REID CROWTHERS & PARTNERS LIMITED and HER MAJESTY THE QUEEN

PLACE OF HEARING:                                                                                                                  Vancouver, British Columbia

DATE OF HEARING:                                                                                                                   May 30, 2002

                                                         REASONS FOR ORDER OF

                                          MR. JOHN HARGRAVE, PROTHONOTARY

                                                               DATED MAY 30, 2002

APPEARANCES

Richard Henderson                                                                                                                 for the Plaintiffs

Mr. John Faulhammer                                                                                                       for the Defendants

Department of Justice

301 - 310 Broadway

Winnipeg, MB    R3C 0S6

SOLICITORS OF RECORD

Richard Henderson                                                                                                                 for the Plaintiffs

Barrister & Solicitor

Box 199

162 - 2025 Corydon Ave

Winnipeg, MB R3P 0N5

Morris Rosenberg                                                                                                              for the Defendants

Deputy Attorney General of Canada