Date: 20011107
Docket: A-65-99
Neutral citation: 2001 FCA 339
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
BERTHA L'HIRONDELLE, suing on her own behalf
and on behalf of all other members of the Sawridge Band
WAYNE ROAN, suing on his own behalf
and on behalf of all members of the Ermineskin Band, and
BRUCE STARLIGHT, suing on his own behalf
and on behalf of all other members of the Sarcee Band
Plaintiffs/Appellants
and
HER MAJESTY THE QUEEN
Defendant/Respondent
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
Heard at Ottawa, Ontario, on November 6, 2001
Judgment delivered from the Bench at Ottawa, Ontario, on November 7, 2001.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
Date: 20011107
Docket: A-65-99
Neutral citation: 2001 FCA 339
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
BERTHA L'HIRONDELLE, suing on her own behalf
and on behalf of all other members of the Sawridge Band
WAYNE ROAN, suing on his own behalf
and on behalf of all members of the Ermineskin Band, and
BRUCE STARLIGHT, suing on his own behalf
and on behalf of all other members of the Sarcee Band
Plaintiffs/Appellants
and
HER MAJESTY THE QUEEN
Defendant/Respondent
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on November 7, 2001)
ROTHSTEIN J.A.
[1] This is an appeal from a January 20, 1999 order of Hugessen J. as case management judge in these proceedings which: (a) ordered that the claims of the Sawridge and Sarcee Bands be proceeded with separately; and (b) struck Wayne Roan and all other members of the Ermineskin Band from the style of cause and removed them as plaintiffs.
[2] As to the severance of the claims of the Sawridge and Sarcee Bands, the appellants argue that proceeding separately will increase their costs and add to repetition in the proceedings. They say there are far more issues they have in common than that are specific to each of them.
[3] Hugessen J.'s reasons for severing the Sawridge and Sarcee proceedings are set forth succinctly by him at paragraph 11 of his reasons:
Giving the matter the best consideration of which I am able, I have concluded that while there are common issues of law and fact in this matter, by far the more important and burdensome issues will be separate and that the establishment by each plaintiff of the asserted aboriginal rights and the extent thereof is very likely to occupy a far greater proportion of trial time than such common issues of law and fact as may arise, most of which, in my view, are likely to be matters relating to the extent of infringement or to possible defences which may be asserted. As a consequence, I think that joinder will cause undue complication and delay and I am going to order that the two claims of the two remaining Bands be separately asserted.
In deciding to sever the claims, Hugessen J. noted that the Crown had filed evidence that the two Bands occupy lands in widely separate parts of Alberta and are governed by different treaties. He found that this evidence was not contradicted and that no evidence was filed as to the possible commonality of issues.
[4] Questions of joinder and severance are quintessential subject matters of case management. Such questions are to be decided by the exercise of discretion by a case management judge familiar with the proceedings. On appeal, a court will interfere with such decisions only where there is demonstrated a clear misuse of judicial discretion. (See L'Hirondelle et al. v. Her Majesty, 2001 FCA 338, at paragraph 11 (Court files A-701-98, A-793-00, A-794-00, November 7, 2001).)
[5] No such misuse of discretion has been demonstrated here. The appellants are simply dissatisfied with the decision of the case management judge. They think he should have exercised his discretion in favour of joinder rather than severance.
[6] However, his reasons show that he considered the separate issues more important and burdensome than the common issues and that the separate issues will occupy more trial time than the common issues. The case management judge concluded that joinder would cause undue complication and delay and, therefore, ordered severance of the two claims. He came to this conclusion having regard to the evidence filed before him relating to separate issues and the lack of evidence of common issues. The issues he considered were relevant.
[7] The appellants have not demonstrated any error in the exercise of discretion by the case management judge that would warrant interference by this Court.
[8] As to the striking of the Roan claim, this was occasioned as a result of a notice of discontinuance filed by the Ermineskin Indian Band. The respondent, on the basis of the notice of discontinuance, filed a motion to strike the Roan claim.
[9] Counsel for Mr. Roan argues that in striking the Roan claim, the case management judge failed to appreciate that communal rights claims brought on behalf of members of Indian Bands must be brought by representative action and that the Band cannot, as the Ermineskin Band Council purported to do on behalf of the Ermineskin Band in this case, bring an action or discontinue a representative action.
[10] The difficulty with Mr. Roan's argument in this case is that his representative action purports to be brought on behalf of the Ermineskin Band as plaintiff. The Fresh As Amended Statement of Claim commences:
The plaintiffs state that each of the plaintiff Indian Bands (hereinafter referred to as the "First Nations") are Indian Bands recognized, inter alia, by the Crown and the Indian Act [...]
After referring to affidavit evidence before him from counsel for the Ermineskin Band, to the effect that the Band did not wish to participate in the action and wished that its name be struck from the style of cause and that Mr. Roan did not have authority to act in any representative capacity on behalf of the Band, Hugessen J., noting that the affidavit had been neither contradicted nor cross-examined, concluded:
While the evidence before me might be stronger, the fact that it is wholly uncontradicted, that the Band on behalf of whom Mr. Roan seeks to assert rights has specifically resiled from participation in the action, and that the rights themselves which are asserted are communal rights which are not susceptible of individual exercise and, indeed, are not asserted as such in the statement of claim, leads me to the conclusion that, indeed, Mr. Roan is not a proper party to be a plaintiff in this action and that to allow him to continue as such would be an abuse of the process of the Court.
Hugessen J.'s conclusion follows from Mr. Roan's pleadings.
[11] In addition, rule 114(1) of the Federal Court Rules, 1998 provides:
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114. (1) Where two or more persons have the same interest in a proceeding, the proceeding may be brought by or against any one or more of them as representing some or all of them.
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114. (1) Lorsque des personnes ont un intérêt commun dans une instance, celle-ci peut être engagée par ou contre l'une ou plusieurs de ces personnes au nom de toutes celles-ci ou de certaines d'entre elles.
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There was no evidence before Hugessen J. of two or more individuals on whose behalf the representative action was brought. The appellant says that, at the original trial of this matter, there were members of the Ermineskin Band who testified and on whose behalf the action was being brought. However, Hugessen J. was obliged to decide the matter on the evidence before him. Whether individuals who testified previously have changed their mind about supporting the action is not known. At the least, when faced with the respondent's motion to strike the claim based on the notice of discontinuance of the Band, an attack on the validity of the action as a representative action, it was incumbent on Mr. Roan to provide some evidence of compliance with rule 114. Whether that would be sufficient, in view of the way in which he worded his pleadings, "[...]the Plaintiff Indian Bands [...]" is doubtful. In any event, he failed to do so.
[12] Mr. Roan argues that he may maintain the action in his own right. However, his action was filed as a representative action. It is that action that was the subject of the motion to strike. On the evidence, the requirements for a representative action were not met and the claim was properly struck.
[13] The appeal will be dismissed. Consistent with the way in which costs were dealt with by the case management judge, there will be no order as to costs on this appeal.
"Marshall Rothstein"
J.A.
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