Date: 20101129
Docket: T-332-07
Citation: 2010 FC 1205
Vancouver, British Columbia, November 29, 2010
PRESENT: Roger R. Lafrenière, Esquire
Case
Management Judge
BETWEEN:
CHIEF NORMAN YAHEY, MARVIN YAHEY, SHERRI
DEMENIC and
JOE APSASSIN, the elected Chief and
Councillors of the Blueberry
River Indian Band
suing on their own behalf and on behalf
of all the other members of the
Blueberry River Indian Band
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA,
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Defendants
REASONS FOR ORDER AND ORDER
[1]
The
Plaintiffs, the elected Chief and Councillors of the Blueberry River Indian
Band (Blueberry Band), move for an order approving the discontinuance of the underlying
proceeding
brought on their own behalf and on behalf of all the other members of the
Blueberry Band. They also seek an order fixing the costs payable to the
Defendants upon discontinuance of the proceeding.
[2]
The
motion is not contested. The parties have agreed on the amount of costs to be
paid by the Plaintiffs for discontinuing their action. In addition, the
Defendants take no position regarding the Plaintiffs’ request for the Court’s
approval of the discontinuance of the representative proceeding pursuant to
Rule 114(4) of the Federal Courts Rules.
[3]
Although
the
Plaintiffs who started this litigation wish to bring it to an end and are
prepared to pay costs, the Court has a responsibility to ensure that
the interests of the members that the Plaintiffs claim to represent will not be
prejudiced by the discontinuance. In the absence of any evidence that members
of the Band were given notice of the Plaintiffs’ intention to discontinue the
proceeding, and have voiced no objection, I decline to grant the relief
requested.
Background
[4]
The
following facts can be gleaned from a review of the Court file. The Plaintiffs
commenced the present action on February 21, 2007. The Statement of Claim
states that the Blueberry Band is made up of two distinct ethnic and cultural
groups, the Beaver or Dunne-za Indians (Beaver) who speak the Dunne-za
language, and the Cree Indians (Cree) who speak the Cree language. Prior to
1962, the Plaintiffs were known as the Fort St. John Beaver Band.
[5]
The
Plaintiffs allege that, in or about 1977, the Defendant, Her Majesty the Queen
in Right of Canada (Crown), purported to exercise her discretion and power
pursuant to section 17 of the Indian Act to effect the process of
dividing the Fort St. John Beaver Band into two separate bands, the Blueberry
Band and the Doig River Band (Doig Band). The stated purpose of the band
division process was to remedy the problems arising from ethnic, cultural and
linguistic conflict within the Fort St. John Beaver Band.
[6]
The
Plaintiffs further allege that the Crown breached her fiduciary, equitable and
other obligations owed to the Plaintiffs and abused her discretion and power
over band constitution and division. In particular, they claim that the Crown
failed to: (a) identify the separating groups on the basis of ethnic, cultural
and linguistic differences, as specifically requested by the
Plaintiffs; (b) consider or allow for input of the Beaver in
determining the criteria for band division; (c) complete the band
division process in a timely manner; and (d) adequately and conclusively
allocate Fort St. John Beaver Band property between the Doig Band and the
Beaver Band. In their prayer for relief, the Plaintiffs seek a declaration that
the band division process remains incomplete, as well as damages for breach of
fiduciary duty.
Earlier Action
[7]
An
action in virtually the same terms as the present action was commenced in this
Court in 2001 bearing Court File No. T-1725-01. The earlier action proceeded to
close of pleadings with a defence filed on behalf of the Defendants.
Instructions with respect to the action were received from the Chief and
council of the Blueberry Band who were in office at the time.
[8]
By
December 2001, as a result of biennial elections there was a change in the
elected Chief and council. The prior Chief and council had represented the
Beaver elements of the Band whereas the new Chief and council elected in
December 2001 represented the Cree elements of the Band.
[9]
By
the spring of 2002, counsel for the Plaintiffs was instructed to discontinue
the proceedings by then current Chief and council. That discontinuance was
filed in April 2002.
Present
Action
[10]
In
December 2006, Chief Norman Yahey, who was Chief when the action was commenced
in 2001, was re-elected as Chief with a predominantly Beaver council. Chief
Yahey made enquiries in 2007 as to the status of the 2001 proceeding. When he
learned that the earlier action had been discontinued on instructions from the
previous Chief and council, he gave instructions to commence a new action – the
present proceeding.
[11]
After
the Defendants sought particulars of the Plaintiffs’ claim pursuant to Rule 181
of the Federal Courts Rules, the action was ordered to continue as a
specially managed proceeding. Over the next two years, the parties completed
documentary production and scheduled oral discoveries.
[12]
On
March 17, 2010 the Plaintiffs sent a letter to the Defendants indicating that
they would discontinue their action against the Defendants provided costs were
waived. Counsel for the Defendants responded that the Defendants would be
willing to waive costs if a consent judgment, as opposed to a discontinuance,
was obtained. She also alerted the Plaintiffs to the requirement under Rule
114(4) for court approval to terminate this representative proceeding.
[13]
Rule
114(4) provides that the discontinuance of a representative proceeding is not
effective unless it is approved by the Court:
|
(4) The discontinuance or
settlement of a representative proceeding is not effective unless it is
approved by the Court.
|
(4) Le désistement ou le
règlement de l’instance par représentation ne prend effet que s’il est
approuvé par la Cour.
|
[14]
The
Plaintiffs did not reply to the Defendants’ proposal and instead proceeded to
file a Notice of Discontinuance on June 18, 2010.
[15]
Counsel
for the Defendants subsequently corresponded with the Plaintiffs on numerous
occasions in an attempt to get the Plaintiffs to comply with Rule 114(4). The
Defendants wanted to ensure that the discontinuance of the representative
proceeding was effective.
[16]
Once
again, the Plaintiffs did not respond to the correspondence from the Defendants
or seek approval of the Court to discontinue, as required under Rule 114(4).
[17]
The
Defendants advised the Plaintiffs by letter dated June 9, 2010 that the
Defendants intended to seek their costs. The Defendants sent the Plaintiffs a
draft Bill of Costs and proposed to have it set down for assessment by the Case
Management Judge at the same time as the motion seeking the Court’s approval of
the discontinuance.
[18]
In
the absence of any response from the Plaintiffs, the Defendants brought a
motion in writing for directions pursuant to Rule 54 of the Federal Courts
Rules concerning the appropriate procedure to follow to obtain the Court’s approval of the
discontinuance of this representative proceeding. By Order dated September 30,
2010, the Plaintiffs were directed to serve and file a motion in writing for
the Court’s approval of the discontinuance and to fix the costs payable to the
Defendants.
[19]
The
Plaintiffs brought the present motion on October 22, 2010. In support of their
motion, the Plaintiffs rely on a short affidavit of Ms. Lesley Thomson, a legal
assistant employed by Plaintiffs’ counsel, which only addresses the issue of
costs.
Analysis
[20]
The
motion for leave to discontinue raises two issues: first, whether approval should
be granted; and second, whether terms should be imposed on any order approving
leave to discontinue.
[21]
To
resolve these two issues, it is necessary to understand the nature of a
discontinuance. A discontinuance brings an action against a defendant to
an end, but would not bar a subsequent claim based on the same cause or causes
of action: Simanic v. Ross (2004), 71 O.R. (3d) 161 (S.C.J.).
[22]
In
an ordinary action, a plaintiff is free to discontinue at any time, subject to
cost consequences as provided in Rule 402. However, as a result of recent
amendments to the Federal Courts Rules in December 2007, a plaintiff in
a representative proceeding no longer has the same flexibility. The purpose of
the amendments was to reinstate former Rule 114, which provided for
representative proceedings in this Court. Former Rule 114 was repealed in 2002
by amendments which brought into force an expanded class actions proceedings.
[23]
Rule
114(4) now provides that the Court’s approval is required in order for the
discontinuance of a representative proceeding to be considered effective. The
same wording is used in Rule 334.3 for class actions. In exercising its
discretion, the Court must ensure that the interests of the members that the
Plaintiffs purport to represent will not be prejudiced by a discontinuance
should approval be granted or refused: see Campbell v. Canada, 2009 FC
30. The requirement to seek leave before a discontinuance is deemed effective
provides fairness to a party affected by the termination of proceeding, without
interfering with the efficiency of what is a simpler procedure for resolving a
collective dispute.
[24]
Absent
special circumstances, leave to discontinue should generally be granted upon
the payment of costs. However this is not a usual case taking into account the
earlier proceeding and an apparent conflict between factions in the Blueberry
Band.
[25]
A
plaintiff who starts a representative action has duties to all members of the
group. In order to give approval of a discontinuance, the court must be
satisfied that the interests of the group will not be prejudiced. In the case
at bar, an adverse effect of the discontinuance may be that limitation periods
will resume running. As a result, members of the group who relied on the
representative proceeding as their means for obtaining access to justice may
find their actions statute-barred.
[26]
An
order bringing to an end a representative proceeding is binding on all those
persons whom the Plaintiffs claim to represent. Accordingly, approval to discontinue
will only be granted once the Court is satisfied, based on proper evidence,
that appropriate notice has been given to the members of the Blackberry Band.
ORDER
THIS COURT ORDERS
that
the motion is adjourned to January 17, 2011 to allow the Plaintiffs to file
supplementary affidavit evidence in support of the motion.
“Roger
R. Lafrenière”
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