Date: 20110329
Docket: T-1236-10
Citation: 2011 FC 378
Ottawa, Ontario, March 29,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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CHARLES ROBERTSON
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Plaintiff
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and
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KYLE BEAUVAIS AND
MOHAWK COUNCIL OF KAHNAWAKE
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Defendants
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and
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HER MAJESTY THE QUEEN
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Third Party
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REASONS FOR ORDER AND ORDER
[1]
This
is a motion by the Defendant, Kyle Beauvais, to strike out in their entirety
the allegations made against him in the Statement of Claim in this proceeding.
Mr. Beauvais contends that this Court is plainly without jurisdiction to
hear the matter because it involves a private contractual dispute involving the
possession of land situated on a First Nations reserve that must be resolved by
reference to provincial and not federal law. Mr. Beauvais acknowledges
that the Indian Act, RS, 1985, c I-5 contains some limited provisions
regarding Aboriginal land issues but contends that they have no application to
the issues raised in the Statement of Claim. Indeed, he asserts that there “is
a complete and utter absence of federal law governing the dispute” between the
Plaintiff and himself and that the case will be resolved under the Quebec Civil
Code.
Litigation
Background
[2]
There
is no doubt that this dispute as framed in the Statement of Claim concerns a
purported transfer of possession of lands situate on the Kahnawake Mohawk
Reserve in Kahnawake, Quebec (the disputed land) from the Plaintiff to
Mr. Beauvais. It is undisputed that title to the disputed land is held by
the federal Crown on behalf of the Kahnawake Band.
[3]
The
Plaintiff alleges in the Statement of Claim that Mr. Beauvais had occupied
the disputed land beginning in 2007 under a rental agreement. The Plaintiff
maintains that he entered into a verbal agreement with Mr. Beauvais in March
2010 that provided for the latter to purchase the Plaintiff’s possessory
interest in the disputed land for a price of $350,000.00. This agreement, he
alleges, was partially executed – albeit by mistake or fraud – when the
requisite transfer documents were registered by the Band. However, the
Plaintiff also alleges that Mr. Beauvais has since resiled from their
agreement by refusing to pay the balance of the agreed purchase price and by
refusing to pay further rent. The Plaintiff seeks relief in the form of a
series of declarations cancelling the agreement and the transfer of possession
of the disputed land and damages.
[4]
The
Third Party, represented by the Minister of Indian Affairs, appears to have
declined to give legal effect to the transfer of the disputed land under s 24
of the Indian Act pending a judicial resolution of the underlying
dispute.
Issues
[5]
Should
the Court refuse to grant relief on this motion because the Defendant, Kyle
Beauvais, has pleaded over to the substantive allegations in the Statement of
Claim or because of his delay in bringing this motion?
[6]
Should
the allegations in the Statement of Claim against the Defendant, Kyle Beauvais,
be struck out under Rule 221 of the Federal Courts Rules, SOR/98-106 on
the basis that this Court lacks jurisdiction over the subject matter as
pleaded?
Analysis
[7]
There
is no merit to the Plaintiff’s argument that by pleading over and by the delay
in bringing this motion the Defendant should be precluded from raising a
challenge to the Court’s jurisdiction to hear the matter. The Court cannot, by
an agreement of the parties or by their procedural conduct, acquire a
jurisdiction that it does not have. The cases dealing with motions to strike
where such discretionary bars to relief have been recognized did not involve
challenges like this one to the Court’s jurisdiction. Jurisdiction is an issue
that can be raised at any time in a proceeding subject to the Court’s authority
to award costs in cases of abuse or delay: see Verdicchio v Canada,
2010 FC 117, [2010] 3 CTC 80.
[8]
The
Plaintiff and Defendant agree, as do I, that the question to be answered on
this motion is whether it is plain and obvious and beyond doubt that this Court
lacks jurisdiction to resolve their dispute as pleaded: see Hodgson v
Ermineskin Band (2001), 267 NR 143 (FCA), 193 FTR 158 .
[9]
To
found jurisdiction in the Federal Court over a particular cause of action or claim
to relief there must exist (a) a statutory grant of jurisdiction by Parliament;
(b) an existing body of federal law essential to the disposition of the case;
and (c) the law must be a law of Canada: see ITO – International Terminal
Operators Ltd. v Miida Electronics Inc., [1986] 1 S.C.R. 752, 28 DLR (4th) 641at
p 766.
[10]
This
motion cannot succeed because it is not plain and obvious that the Court lacks
jurisdiction to hear and resolve the Plaintiff’s claim. There are central
aspects to the Plaintiff’s allegations which may well turn on the application
of federal law and, in particular, the Indian Act. The clearest support
for this comes from the decision by Justice Andrew MacKay in Jones Estate v
Louis et al (1996), 108 FTR 81, 3 CNLR 85. Jones was a case
involving competing claims to possession of land on the Okanagan Indian Reserve
based on a purported transfer agreement between the parties. Justice MacKay
noted that the Indian Act “establishes the legislative framework
relating to interests in lands on a reserve” (see para 6) including matters of
transfer and possession (see para 8). He also noted the effect of s 24 of the Indian
Act, which vests in the Minister the absolute authority to approve a land
transfer between members of a band. According to Justice MacKay, in the
absence of ministerial approval of a transfer no private agreement or deed of
transfer between band members had any legal effect. This led Justice MacKay to
conclude that until the Minister gave approval for a transfer, a party was free
to withdraw from the arrangement at any time. Justice MacKay went on to
address the specific issue of the Federal Court’s jurisdiction over the
dispute. He held that the Federal Court had concurrent jurisdiction under ss
17(4) of the Federal Courts Act, RS, 1985, c F-7 to deal with a matter “where
the Crown may be under an obligation, in respect of which there are or
may be conflicting claims” [emphasis added to quote]. The obligation of the
Minister under s 24 of the Indian Act to consider the approval of a land
transfer was sufficient to ground this Court’s jurisdiction.
[11]
In
my view the decision in Jones, above, is indistinguishable from the
circumstances of this case. Section 24 of the Indian Act could also be
determinative of the outcome of this case, whatever the nature or details of
the arrangement between the parties may have been. It is not my role on a
motion to strike to decide if Justice MacKay was correct in finding as he did.
It is sufficient that the decision in that case raises an arguable case in
favour of this Court’s jurisdiction (ie. it is not plain and obvious that the
Court lacks jurisdiction) and clearly it does.
[12]
In
Rhine v Canada, [1980] 2 S.C.R. 442, 116 DLR (3d) 385, the Court recognized
that the enforcement of an ordinary contractual obligation may still fall
within the jurisdiction of the Federal Court provided that there is valid
federal law which governs the transaction. In that case, it was necessary to
resort to the underlying federal statute in order to enforce what was
essentially a borrowing agreement; this was found sufficient to underpin the
jurisdiction of the Federal Court. The same type of statutory framework exists
here under the Indian Act as the legislation deals with the federal
Crown’s authority to control the use and possession of reserve lands. Section
21 of the Indian Act provides for the establishment of a Reserve Land
Register and s 24 recognizes the possibility of transfer of possessory
interests in reserve lands subject to the Minister’s approval. In the face of
these provisions and having regard to the holding of the Supreme Court of
Canada in Derrickson v Derrickson, [1986] 1 S.C.R. 285, 26 DLR (4th) 175 that
“the right to possession of lands on an Indian reserve is manifestly of the
very essence of the federal exclusive legislative power” it is arguable that
provincial law does not apply to disputes of this kind. It seems to me that
band custom and federal common law (including Aboriginal title) are the more
likely sources for the principles to be applied to this dispute than is the
Civil Code of Quebec: see Roberts v Canada, [1989] 1 S.C.R. 322, 25 FTR
161. In any event, the incidental application of provincial law to a matter that
must be determined primarily by federal law is not a bar to this Court’s
jurisdiction: see ITO – International Terminal Operators Ltd. v Miida
Electronics Inc., above, at p 781.
Conclusion
[13]
The
Defendant has not met the elevated threshold for relief under Rule 221 and this
motion is dismissed with costs payable to the Plaintiff in any event of the
cause.
ORDER
THIS COURT
ORDERS that this motion is dismissed with costs payable to the
Plaintiff under Column III in any event of the cause.
“ R. L. Barnes ”
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