Date: 20130625
Docket: T-340-99
Citation: 2013
FC 704
Montréal, Quebec,
June 25, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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KAINAIWA NATION (BLOOD TRIBE)
AND CHIEF CHRIS SHADE, SUING ON
HIS
OWN BEHALF AND ON BEHALF OF
THE MEMBERS OF THE
KAINAI WA/BLOOD TRIBE
PEIGAN NATION AND CHIEF PETER
STRIKES WITH A GUN, SUING ON
HIS OWN
BEHALF AND ON BEHALF OF THE
MEMBERS OF THE PEIGAN NATION
SIKSIKA NATION AND CHIEF
DARLENE
YELLOW OLD WOMAN MUNROE, SUING
ON HER OWN BEHALF AND ON BEHALF
OF
THE MEMBERS OF THE SIKSIKA
NATION
TSUU T’INA NATION AND CHIEF ROY
WHITNEY SUING ON HIS OWN BEHALF
AND ON BEHALF OF THE MEMBERS OF
THE TSUU T’INA NATION
BEARSPAW BAND AND CHIEF DARCY
DIXON, SUING ON HIS OWN BEHALF AND
ON BEHALF OF THE MEMBERS OF
THE BEARSPAW BAND
CHINIKI BAND AND CHIEF PAUL
CHINIQUAY, SUING ON HIS OWN
BEHALF
AND ON BEHALF OF THE MEMBERS
OF THE CHINIKI BAND
WESLEY BAND AND CHIEF JOHN SNOW
SR., SUING ON HIS BEHALF AND ON
BEHALF OF THE MEMBERS OF
THE WESLEY BAND
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Plaintiffs
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and
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HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
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Defendant
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
plaintiffs lay claim to all of Alberta from Edmonton south. In their action as
originally filed, they allege that both Her Majesty in Right of Canada and Her
Majesty in Right of Alberta breached various trusts and fiduciary obligations
arising from the Royal Proclamation of 1793, the Rupert’s Land and
North-Western Territory Order, the Constitution Acts of 1867, 1930 and
1982, the Indian Act and Treaty 7 of 1877. They deny that they gave
up aboriginal title of Treaty 7 territory, including mines and minerals,
and say that both Canada and Alberta continue to hold resources for them
notwithstanding the transfer from Canada to Alberta under the National
Resources Transfer Agreement of 1930.
[2]
Alberta
successfully moved to have the action dismissed as against it on the grounds
that this Court does not have jurisdiction over the plaintiffs’ claim against
it. Prothonotary Hargrave’s decision is reported at 2001 FCT 1067, 211 FTR 288,
[2001] FCJ No 1502 (QL). Canada took no position. The decision was not
appealed.
[3]
Without
discontinuing their action in this Court, the last three groups of plaintiffs,
often referred to as Wesley or Stoney Band, then sued both Alberta and Canada in the Court of Queen’s Bench of Alberta. That case is ongoing.
[4]
Nine
years later, Canada moved to have this action stayed as against it. It claimed
that Alberta was a necessary party, that it was desirous of claiming
contribution or indemnity from it, but that this Court lacked jurisdiction. In
accordance with s. 50.1 of the Federal Courts Act, if those two
requirements are met, this Court is obliged to grant a stay.
[5]
In
the alternative, it also sought a stay on what can be broadly termed forum
non conveniens, in accordance with s. 50 of the Federal Courts Act.
The Court of Queen’s Bench of Alberta is said to be a more convenient forum in
that it has jurisdiction over all the parties, and some of the plaintiffs have already
filed suit there.
[6]
Before
the stay motion was heard by the case manager, Prothonotary Milczynski, two
further events occurred. Canada, in fact, filed suit in the Court of Queen’s
Bench of Alberta against Her Majesty in Right of Alberta seeking indemnity or
contribution should it be condemned in this action. It also had made tentative arrangements
with the plaintiffs, except Tsuu T’ina Nation and Chief Roy Whitney, to have
their actions transferred to the Court of Queen’s Bench.
[7]
By
order dated 24 July 2012, Prothonotary Milczynski dismissed the motion. She
found it unnecessary to consider whether this Court has jurisdiction over a
claim by Canada against Alberta, for contribution or indemnity, because the
“desirous” aspect of s. 50.1 of the Federal Courts Act was not met.
After taking into account factors to be considered in granting a stay under s.
50, as set out in Tractor Supply Co of Texas et al v TSC Stores LP, 2010
FC 883, 376 FTR 218, [2010] FCJ No 1102 (QL), and White v E.B.F.
Manufacturing Ltd, 2001 FCT 713, [2001] FCJ No 1073 (QL), she determined
that Canada had not met its burden of establishing that continuation of these
proceedings would cause it prejudice or injustice.
[8]
This
is Canada’s appeal from that decision. For the reasons that follow, the appeal
shall be dismissed.
DISCUSSION
[9]
The
action was filed 14 years ago. Although there was some finger pointing before
me, the proceedings have been under special case management almost from the
outset. For the most part, the parties appear to have been satisfied to leave
the case in abeyance. Certainly, I am not prepared to cast aspersions on
anyone. Nevertheless, a brief timeline will help put matters into perspective:
a.
26
February 1999: action filed in the Federal Court.
b.
10
October 1999: action put under case management.
c.
29
October 2001: Prothonotary Hargrave granted Alberta’s motion to
strike the action as against it on the grounds of lack of jurisdiction.
d.
10
December 2003: the last three groups of plaintiffs (Wesley or
Stoney Band) took action in the Court of Queen’s Bench of Alberta against both Canada and Alberta.
e.
April
2009:
Stoney Band called upon Canada to file a statement of defence in this action.
f.
31
March 2010:
Canada moved to have the Federal Court action stayed.
g.
9
April 2010:
Canada sued Alberta in the Court of Queen’s Bench claiming indemnity should it
be found liable to the plaintiffs. If liable, which it denies, Canada asserts
that Alberta is liable to contribute or to indemnify, in that if there are
trusts, by taking Crown lands, Alberta has become a constructive trustee or a
trustee de son tort, and if the Crown lands were subject to interests of the
plaintiffs then by agreeing to the terms of the National Resource Transfer
Agreement of 1930, Alberta accepted the transfer subject to those
interests.
h.
12
February 2012: although the evidence is not perfectly clear, it
may well be that the plaintiffs with the exception of Tsuu T’ina Nation and its
Chief Roy Whitney were prepared to consent to an order to reconstitute their
actions in Alberta, one provision being that Canada’s motion under s. 50.1 of
the Federal Courts Act be granted.
i.
17
February 2012: stay motion argued before Prothonotary Milczynski.
j.
24
July 2012:
Prothonotary Milczynski’s refused to grant a stay.
[10]
At
the hearing before me, Canada did not advance the proposition that the action
should be stayed in virtue of s. 50.1 of the Federal Courts Act. The
reason given is that although it has always been somewhat ambivalent as to
whether this Court has jurisdiction over a claim by it against Alberta for
contribution or indemnity, it failed to draw to Prothonotary Milczynski’s
attention the unappealed decision of Mr. Justice Phelan in Lac Seul Band of
Indians v Canada, 2011 FC 351, 386 FTR 265, [2011] FCJ No 561 (QL)). More
shall be said about this.
[11]
The
stage was set by Prothonotary Hargrave in his dismissal of the plaintiffs’
action against Her Majesty in Right of Alberta. He pointed out that s. 17(1) of
the Federal Courts Act grants this Court jurisdiction over claims
against the “Crown”. However, “Crown” means Her Majesty in Right of Canada, not
Her Majesty in Right of a province.
[12]
He
also referred to s. 17(4) of the Federal Courts Act which gives the
Court jurisdiction with respect to conflicting claims against the Crown.
However, there was nothing in the record before him to indicate there were such
claims.
[13]
Finally,
Prothonotary Hargrave considered inter-government disputes. He said at
paragraph 29 of his reasons:
The issue here is whether section 19 of the Federal
Court Act, which provides that:
19. Inter-governmental disputes -
Where the legislature of a province has passed an Act agreeing that the Court,
whether referred to in that Act by its present name or by its former name of
the Exchequer Court of Canada, has jurisdiction in cases of controversies.
(a) between Canada and that province, or
(b) between that province and any
other province or provinces that have passed a like Act,
the Court has jurisdiction to determine the
controversies and the Trial Division shall deal with any such matter in the
first instance.
in tandem with section 28 of the Judicature
Act of Alberta:
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The Supreme Court of Canada and the Federal Court of Canada, or
the Supreme Court of Canada alone, according to the Supreme Court Act (Canada) and the Federal Court Act (Canada) have jurisdiction
(a)
in controversies between Canada and Alberta;
(b)
in controversies between Alberta and any other province of Canada in which an Act similar to this Act is in force;
(c)
in proceedings in which the parties by their pleadings have raised
the question of the validity of an Act of Parliament of Canada or of an Act of
the Legislature of Alberta, when in the opinion of a judge of the court in
which they are pending the question is material, and in that case the judge shall,
at the request of the parties, and may without request if he thinks fit, order
the case to be removed to the Supreme Court of Canada in order that the
question may be decided.
grant jurisdiction in this instance. Certainly
the jurisdiction granted is broad, section 19 of the Federal Court Act
being phrased in terms of controversies. Indeed, the term controversies ".
. . is broad enough to encompass any kind of legal right, obligation or
liability that may exist between governments": see the reasons of Mr.
Justice of Appeal Le Dain in The Queen (Canada) v. The Queen (P.E.I.)
[1978] 1 F.C. 533 at 583. In this instance the Plaintiffs submit that the two
actions represent precisely the type of cases that are contemplated by section
19 of the Federal Court Act and which are facilitated by subsections (a)
and (c) of section 28 of the Judicature Act.
[14]
However,
there was no evidence before him that there was a controversy. He said that he
ought not to speculate as to what subsequent pleadings might put in issue, and
what controversies might conceivably arise.
[15]
Twelve
years later, still no evidence of a controversy between Canada and Alberta has been put before this Court. Consequently, I am at a loss as to why Canada referred to Mr. Justice Phelan’s opinion in Lac Seul, above, which dealt with a
dispute between Canada and Manitoba.
[16]
Prothonotary
Hargrave’s decision is res judicata, but does not determine whether or
not this Court has jurisdiction over a claim by Canada against Alberta for contribution or indemnity. Prothonotary Milczynski found it unnecessary to
determine that issue, as s. 50.1 of the Federal Courts Act requires,
among other things, that the Crown “desires” to institute a counter-claim or
third party proceedings.” Note the present tense. She was not satisfied that
the Crown was desirous of taking action in this Court due to the passage of
time and due to the fact that it had already instituted contribution or
indemnity proceedings in Alberta.
[17]
The
Federal Court is a statutory court enacted pursuant to s. 101 of the Constitution
Act. The parties cannot, by consent, confer jurisdiction upon it. Should Canada claim against Alberta in this Court, by way of third party proceedings, or by a fresh
action, Alberta would be entitled to make representations with respect to
jurisdiction. The parties would obviously have to deal with whether there is a
body of federal law arising from the sui generis relationship between
the Crown and First Nations. See Gottfriedson v Canada, 2013 FC 546, currently
under appeal.
PROTHONOTARY
MILCZYNSKI’S DECISION
[18]
I
need only deal with the prothonotary’s reasons with respect to s. 50 of the Federal
Courts Act which provides:
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50.
(1) The Federal Court of Appeal or the Federal Court may, in its discretion,
stay proceedings in any cause or matter
(a)
on the ground that the claim is being proceeded with in another court or
jurisdiction; or
(b)
where for any other reason it is in the interest of justice that the
proceedings be stayed.
(2)
The Federal Court of Appeal or the Federal Court shall, on application of the
Attorney General of Canada, stay proceedings in any cause or matter in
respect of a claim against the Crown if it appears that the claimant has an
action or a proceeding in respect of the same claim pending in another court
against a person who, at the time when the cause of action alleged in the
action or proceeding arose, was, in respect of that matter, acting so as to
engage the liability of the Crown.
(3)
A court that orders a stay under this section may subsequently, in its
discretion, lift the stay.
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50.
(1) La Cour d’appel fédérale et la Cour fédérale ont le pouvoir
discrétionnaire de suspendre les procédures dans toute affaire :
a)
au motif que la demande est en instance devant un autre tribunal;
b)
lorsque, pour quelque autre raison, l’intérêt de la justice l’exige.
(2)
Sur demande du procureur général du Canada, la Cour d’appel fédérale ou la
Cour fédérale, selon le cas, suspend les procédures dans toute affaire
relative à une demande contre la Couronne s’il apparaît que le demandeur a
intenté, devant un autre tribunal, une procédure relative à la même demande
contre une personne qui, à la survenance du fait générateur allégué dans la
procédure, agissait en l’occurrence de telle façon qu’elle engageait la
responsabilité de la Couronne.
(3)
Le tribunal qui a ordonné la suspension peut, à son appréciation,
ultérieurement la lever.
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[19]
It
is to be noted that the Tsuu T’ina Nation’s claim is not being pursued in Alberta. Thus, there is not an identity of parties. Section 50(2) is not applicable.
[20]
Furthermore,
as regards the other plaintiffs, they appear to have signed a consent order to
be presented to the Court. It provided that they would transfer their actions
to the Alberta courts. One of the requirements was that the Court grant the
Crown’s application under s. 50.1 of the Federal Courts Act which
requires a finding that this Court lacks jurisdiction over a claim by Canada against Alberta. I certainly would not be prepared to sign such a consent order. That is a
matter which should be properly litigated.
[21]
The
other plaintiffs were all present at the hearing. Although invited to do so,
they declined to make any representation as to whether they were still prepared
to transfer their actions to Alberta. As far as I am concerned, the draft
consent order is a dead issue, not relevant to the present proceedings.
[22]
Basing
herself upon Tractor Supply Co, above, Prothonotary Milczynski set out at
pages 10 and 11 of her decision the considerations to be taken into account in
guiding her discretion:
(i)
Would the
continuation of the action cause prejudice or injustice (not merely
inconvenience or extra expense) to the defendant?
(ii)
Would
the stay work an injustice to the plaintiff?
(iii)
The
onus is on the party which seeks the stay to establish that the two conditions
are met.
(iv)
The
grant or refusal of the stay is within the discretionary power of the court.
(v)
The
power to grant a stay may only be exercised sparingly and in the clearest of
cases.
(vi)
Consideration
of whether the facts alleged, the legal issues raised and the relief sought are
similar or the same in the both proceedings.
(vii)
What
are the possibilities of inconsistent findings in both courts?
(viii)
Until
there is a risk of imminent adjudication in the two different forums, the Court
should be very reluctant to interfere with any litigant’s right of access to
justice and adjudication of claims.
(ix)
Priority
ought not to be necessarily given to the first proceeding over the second, or
vice versa.
[23]
She
concluded that the Crown had not met its burden that the stay would cause
prejudice or injustice to it. Rather, she was of the view that a stay would
grant a prejudice or injustice to at least the Tsuu T’ina Nation, if not all
the plaintiffs.
[24]
She
noted that the Wesley action in Alberta involved different parties, and that it
was not clear that the subject lands of the two actions are the same, although
there is some overlap. She concluded that the motion did not give rise to the
“clearest of cases” as per White, above.
[25]
As
the decision was discretionary, before interfering the Court has to determine
whether the matter should be considered de novo on the basis that the
questions raised are vital to the final issue of the case or that the decision
is clearly wrong in the sense that the exercise of discretion was based upon a
wrong principle or upon a misrepresentation of the facts (Merck & Co v
Apotex Inc, 2003 FCA 488, [2004] 2 FCR 459, [2003] FCJ No 1925 (QL)).
[26]
I
do not consider granting or denying this stay to be vital. Nor do I consider
that the Prothonotary misdirected herself in any way. It was submitted that it
was not open to her to find that there would be a prejudice to the Tsuu T’ina
Nation, as no affidavit had been filed in support of that proposition. However,
the prejudice is inherent in the motion itself. In accordance with s. 17 of the
Federal Courts Act, this Court and provincial courts have concurrent
jurisdiction over actions against the Crown. The choice lies with the
plaintiffs. The prejudice to them is that they would be driven from their
choice of forum because of the actions of others.
[27]
Although
there is some overlapping with the Alberta action, it must be emphasized that
in their statement of claim in Alberta, the Wesley Band claims traditional
lands but they specifically “[…] do not include Indian Reserves and the natural
resources thereof set aside for other Indian nations and Aboriginal Peoples.”
(Action number 0301-19586, Court of Queen’s Bench of Alberta, Judicial District
of Calgary, Amended Statement of Claim, paragraph 10 d.)
[28]
Should
I be wrong in holding that the matter was not vital, in the exercise of my
discretion I dismiss the appeal for the same reasons expressed by Prothonotary
Milczynski. The issue of this Court’s jurisdiction over an indemnity claim is
open. I do not consider it to be in the interests of justice to grant a stay on
a motion which could have been moved a decade earlier. Nor do we know that Tsuu
T’ina Nation is the last band standing. All the plaintiffs are in this Court.
Only one group is in the Alberta courts.
[29]
The
factors set out in Tractor Supply Co and White serve as a good
guideline. They do not serve to fetter the Court’s discretion. I agree that the
power to grant a stay should only be exercised sparingly and in the clearest of
cases. Although the possibility of inconsistent findings in both Courts exists,
there is no risk of eminent adjudication. I was told that the Wesley action in Alberta is now at the discovery stage. In this case, the Crown has yet to file a statement
of defence.
[30]
Perhaps
at some future date, a fresh motion may be considered. The Court is being asked
to act in too much of a factual vacuum. If Her Majesty in Right of Alberta must
be in this court in order for a final resolution of the issues, why did Her
Majesty in Right of Canada wait nine years after Prothonotary Hargrave’s action
to file proceedings in Alberta? Even if Alberta is not a party, the Federal
Courts Rules allow for production of documents and even discovery of a non-party.
JUDGMENT
FOR
REASONS GIVEN;
THIS
COURT JUDGMENT is that the appeal is dismissed, with costs in
favour of Tsuu T’ina Nation and Chief Roy Whitney only.
“Sean Harrington”
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