Date: 20021217
Docket: A-585-01
Neutral citation: 2002 FCA 509
CORAM: STRAYER J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
THE MINISTER OF FISHERIES AND OCEANS
AND HER MAJESTY THE QUEEN
Appellants
(Defendants)
and
SHUBENACADIE INDIAN BAND, on behalf of itself and its members and
ALEX MACDONALD, LEON ROBINSON, CHAD ROBINSON, JOHN PAUL,
PETER PAUL, VANDORA PAUL, GENEVIEVE JOHNSON, HOLLY
MACDONALD, MARK LAWRENCE HOWE, ANDREW ROBINSON, JASON
MARR, DOUG MARR, IKE MARR, JOHN MARR, EDWARD PETER-PAUL,
BERNARD JOHNSON, CARL SACK, AMY MALONEY, MARIE ROBINSON,
GREGORY PAUL, DAVID MACDONALD, DONALD JEANS, FRANK SMITH,
JOHN MARR (No.2)
Respondents
(Plaintiffs)
and
UNION OF NOVA SCOTIA INDIANS, a body corporate,
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
Respondents
(Defendants)
and
ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY
GENERAL OF NEW BRUNSWICK, LFA DISTRICT 34
LOBSTER COMMITTEE, ATLANTIC FISHING INDUSTRY
ALLIANCE, NATIVE COUNCIL OF NOVA SCOTIA
Interveners
Heard at Halifax, Nova Scotia, on December 17, 2002.
Judgment delivered from the Bench at Halifax, Nova Scotia, on December 17, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20021217
Docket: A-585-01
Neutral citation: 2002 FCA 509
CORAM: STRAYER J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
THE MINISTER OF FISHERIES AND OCEANS
AND HER MAJESTY THE QUEEN
Appellants
(Defendants)
and
SHUBENACADIE INDIAN BAND, on behalf of itself and its members and
ALEX MACDONALD, LEON ROBINSON, CHAD ROBINSON, JOHN PAUL,
PETER PAUL, VANDORA PAUL, GENEVIEVE JOHNSON, HOLLY
MACDONALD, MARK LAWRENCE HOWE, ANDREW ROBINSON, JASON
MARR, DOUG MARR, IKE MARR, JOHN MARR, EDWARD PETER-PAUL,
BERNARD JOHNSON, CARL SACK, AMY MALONEY, MARIE ROBINSON,
GREGORY PAUL, DAVID MACDONALD, DONALD JEANS, FRANK SMITH,
JOHN MARR (No.2)
Respondents
(Plaintiffs)
and
UNION OF NOVA SCOTIA INDIANS, a body corporate,
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
Respondents
(Defendants)
and
ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY
GENERAL OF NEW BRUNSWICK, LFA DISTRICT 34
LOBSTER COMMITTEE, ATLANTIC FISHING INDUSTRY
ALLIANCE, NATIVE COUNCIL OF NOVA SCOTIA
Interveners
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Halifax, Nova Scotia
on December 17, 2002.)
EVANS J.A.
[1] This is an appeal by the Minister of Fisheries and Oceans (Canada) from an order of the Motions Judge, dated September 19, 2001, dismissing a motion by the Crown that the Union of Nova Scotia Indians ("UNSI") and the Confederacy of Mainland Mi'kmaq ("CMM") should cease to be defendants in the action by the Shubenacadie Indian Band and others against the Minister and Her Majesty in right of Canada: Shubenacadie Indian Band v. Canada (Attorney General), 2001 FCT 1049.
[2] The UNSI and CMM are statutorily incorporated bodies and serve as the Tribal Councils for the thirteen Mi'kmaq Bands of Nova Scotia, including the Shubenacadie Indian Band. The central question in this litigation is the existence and scope of an Aboriginal or treaty right entitling the plaintiffs to fish for lobster in St. Mary's Bay, Nova Scotia, and arises from the Minister's refusal to accept a lobster management plan for St. Mary's Bay proposed by the Shubenacadie Indian Band.
[3] The appeal raises two issues. The first is whether a party who is joined to an application for judicial review as a respondent by virtue of Rule 303 of the Federal Court Rules, 1998, is entitled automatically to be a defendant when the proceeding is converted to an action pursuant to subsection 18.4(2) of the Federal Court Act, R.S.C. 1985, c. 7.
[4] In our view, once an application is converted to an action, the proceeding is governed by the rules pertaining to actions. Indeed, Rule 300(a) expressly provides that Part 5 of the Rules, which deals with applications, does not apply to applications for judicial review that the Court directs under subsection 18.4(2) be proceeded with as an action. Although decided under the previous Rules, Adams v. Canada (Commissioner, Royal Canadian Mounted Police) (1995), N.R. 354 at paras. 7 and 9 (F.C.A.) contains statements on the procedural consequences of converting an application for judicial review to an action that remain pertinent.
[5] In our respectful opinion, the learned Motions Judge erred in law if he dismissed the motion to remove the UNSI and CMM as defendants to the proceeding simply because they had been added as respondents when the proceeding was still an application for judicial review.
[6] The second issue is whether the UNSI and the CMM were properly joined as defendants pursuant to Rule 104, regardless of the fact that they had been respondents in the application for judicial review. In our view, they were not. The plaintiffs' statement of claim states no cause of action against them, seeks no relief against them, and makes no allegations against them. Moreover, it is not clear that the Federal Court would have jurisdiction over UNSI and CMM as defendants to the action.
[7] It may well be that the UNSI and CMM will be able to adduce evidence relevant to the plaintiffs' statement of claim, and that their members may be adversely affected by the outcome of the litigation. However, neither is sufficient to enable the UNSI and CMM to be joined as necessary defendants to the action.
[8] In determining whether a person could properly be joined as a necessary party to an action under the previous rules, this Court in Stevens v. Canada (Commissioner, Commission of Inquiry), [1998] 4 F.C. 125 at 138 (C.A.), quoted with approval the following passage from the judgment of Devlin J. (as he then was) in Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357 at 380:
What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately. .... The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.
In our view, this description of a necessary party is equally applicable under the current Rules, and UNSI and the CMM do not fall within it.
[9] For these reasons, the appeal will be allowed with costs, the order of the Motions Judge set aside, and the UNSI and CMM struck from the action as defendants, together with their statements of defence, but without prejudice to their right to apply for intervener status on the basis of appropriate material.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-585-01
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED SEPTEMBER 19, 2001, TRIAL DIVISION FILE NO. T-1525-00
STYLE OF CAUSE: Minister of Fisheries and Oceans v. Shubenacadie Indian Band
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: December 17, 2002
REASONS FOR JUDGMENT BY: Evans, J.A.
DATED: December 17, 2002
APPEARANCES:
REINHOLD ENDRES Q.C. FOR APPELLANT
ANGELA GREEN
BRUCE WILDSMITH Q.C. FOR RESPONDENTS
(SHUBENACADIE INDIAN BAND)
DOUGLAS BROWN FOR RESPONDENT
UNION OF NOVA SCOTIA INDIANS
ERIC ZSCHEILE FOR RESPONDENT
CONFEDERACY OF MAINLAND MI'MAQ
SOLICITORS OF RECORD:
DEPUTY ATTORNEY GENERAL OF CANADA
HALIFAX, NS FOR APPELLANT
BRUCE WILDSMITH, Q.C.
BARRS CORNER, NS FOR RESPONDENTS
(SHUBENACADIE INDIAN BAND)
DOUGLAS BROWN
HALIFAX, NS FOR RESPONDENT
UNION OF NOVA SCOTIA INDIANS
ERIC ZSCHEILE
TRURO, NS FOR RESPONDENT
CONFEDERACY OF MAINLAND MI'MAQ
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