Date:
20030401
Docket
No.: T-129-89
Citation:
2003 FCT 383
Ottawa, Ontario, this 1st day
of April, 2003
PRESENT: THE HONOURABLE MR. JUSTICE
BLANCHARD
BETWEEN:
THE
FEDERATION OF NEWFOUNDLAND INDIANS,
CALVIN
WHITE, CLIFTON GAUDON, LAWRENCE
JEDDORE,
CALVIN FRANCIS, WILSON SAMMS,
MARIE
SPARKES and EFFIE SCANLON
Plaintiffs
-
and -
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
First
defendant
-
and -
MINISTER
OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Second
defendant
REASONS
FOR ORDER AND ORDER
Introduction
[1]
On November 14 and 15, 2002, the plaintiffs brought three motions: (i) a
motion for an order pursuant to Rule 104(1) to add four plaintiffs to the
statement of claim, an order pursuant to Rule 104(2) for direction with respect
to the necessary amendments as a consequence of the addition, and a further
order to remove the name of a plaintiff now deceased; (ii) a motion for an
order pursuant to Rule 75(1) to further amend the amended statement of claim to
effect certain minor revisions, and an order adding FNI as a public interest
litigant; (iii) a motion under Rule 225 for full disclosure by the defendants.
[2]
The defendants brought a single motion to strike out the Federation of
Newfoundland Indians (“FNI”) as a plaintiff, to strike out the Minister of
Indian Affairs and Northern Development (“Minister”) as a defendant, and to
strike out certain portions of the amended statement of claim as a consequence
of these two changes.
[3]
The underlying action is brought by a number of individual plaintiffs
and the Federation of Newfoundland Indians (“FNI”), a group that represents the
interests of non-status Micmac Indians resident in Newfoundland. The plaintiffs
bring action against Her Majesty in Right of Canada and the Minister of Indian
Affairs, seeking an order that they be declared “Indians” within the meaning of
subsection 91(24) of the Constitution Act, 1867. The plaintiffs claim
that their s. 15 Charter rights have been violated, given that they have
been denied Indian Act benefits as compared to the Conne River Micmac,
who were granted status in 1984 pursuant to the Canada-Newfoundland-Native
Peoples Conne River Agreement. The plaintiffs also seek damages for breach of
fiduciary obligations owed by the Minister in respect of his failure to extend Indian
Act benefits to them.
[4]
On 21 November, 2002, shortly after these motions were heard, the new
Federal Court Rules concerning class actions came into effect, and Rule 114,
which had governed representational actions, was repealed. New Rule 299.17
requires that a plaintiff seeking certification must bring a motion to certify
an action as a class action, and must also meet the conditions specified in
Rule 299.18.
[5]
On December 5, 2002, I ordered that the parties file submissions concerning
the impact of the new rules on the management of the proceeding. Submissions
were received in January 2003.
[6]
On March 6, 2003, a teleconference was held to allow the parties to
address issues germane to the motions, including the procedure for certifying
the action as a class action according to the new Federal Court Rules. As noted
in my direction dated March 10, 2002, it was agreed that the plaintiffs will
file a motion for leave to amend the statement of claim and a motion for
certification of the action pursuant to the class action rules.
[7]
I will now determine the motions under reserve to the extent that their
determination does not affect the impending certification application.
Plaintiffs’
First Motion: Joinder
[8]
The plaintiffs state that a number of developments have occurred since
the commencement of litigation in 1989. Audrey Stanford seeks to replace
Lawrence Jeddore, who has died. The FNI has undergone reorganization in that
“three regional bands” have ceased to exist, whereas the number of affiliated
local bands have increased by three. The plaintiffs submit that all ten local
bands should be represented in the litigation and therefore seek an order to
add Andrew Tobin (St. George’s Indian Band), Benedict White
(Stephenville/Stephenville Crossing Local Band), and Ignatius Paul (Exploits
Local Band) as plaintiffs.
[9]
In view of the plaintiffs’ intention to seek certification, I will
refrain from ruling on this motion at this time.
Plaintiffs’
Second Motion: Further amend statement of claim & public
interest standing
[10]
The plaintiffs seek to amend the statement of claim in relation to a
number of minor items, which are enumerated in the plaintiffs’ motion record at
tab 2, paragraphs 5, 6 and 7, and 12. Some of these amendments relate to the status
of the plaintiffs, and need not be addressed in view of the plaintiffs’
impending certification motion: namely those amendments requested in paragraphs
5(b), 5(e), 6(a), 6(b), and 7(b) at tab 2 of the plaintiffs’ motion record.
[11]
The following amendments requested by the plaintiffs are unrelated to
the status of the plaintiffs and, accordingly, will be addressed. The
amendments noted in paragraphs 5(a), 5(c), 5(d), 7(a) and 7(c) at tab 2 of the
plaintiffs’ motion record are granted. These items relate to minor changes in
terminology. In addition, the amendments noted in paragraph 12(a)-(h) at tab 2
of the plaintiffs’ motion record are granted. I am of the view that allowing
these amendments would not prejudice the defendants.
[12]
The plaintiffs state that the FNI’s articles of continuance now create
an obligation on the Federation to pursue standing as a public interest
plaintiff. The plaintiffs submit that the FNI has standing under Canadian
Council of Churches v. Canada (Minister of Employment and Immigration), [1992]
1 S.C.R. 236, to act as a public interest plaintiff and they request an
amendment to paragraph 1 of the amended statement of claim to reflect this
status.
[13]
The test for public interest standing involves a consideration of three
questions, as noted by Cory J. in Canadian Council of Churches, supra, at
253:
It has been seen that when public interest standing is
sought, consideration must be given to three aspects. First, is there a serious
issue raised as to the invalidity of legislation in question? Second, has
it been established that the plaintiff is directly affected by the
legislation or if not does the plaintiff have a genuine interest in its
validity? Third, is there another reasonable and effective way to bring
the issue before the court? (emphasis added)
[14]
The jurisprudence on public interest standing suggests that requests by
aboriginal groups are routinely denied when individual aboriginals are already
listed as plaintiffs: see Landry v. Canada (Indian and Northern Affairs)
[1994] F.C.J. No. 2004 (QL); Nolan v. Canada (Attorney General) [1997]
O.J. No. 3361 (Q.L.). The major hurdle for aboriginal “umbrella” groups is the
third branch of the public interest standing test. In the instant case, since
individual aboriginal plaintiffs are already named as plaintiffs, it cannot be
said there is no other way to bring the litigation. Therefore, I find that the
plaintiffs have not satisfied the third branch of the test set out by the
Supreme Court of Canada in Canadian Council of Churches, supra, and
consequently the FNI will not be accorded public interest standing.
Plaintiffs’
Third Motion: Disclosure
[15]
The plaintiffs bring a motion for disclosure under Rule 225 of the Federal
Court Rules, 1998, SOR/98-106, as amended.
[16]
The plaintiffs state that the defendants’ affidavit of documents is
limited to documents that pre-date the statement of claim, i.e. January 12,
1989. The plaintiffs argue that the failure to honour the fiduciary obligation
constitutes “a continuing breach” that continues to this day, and accordingly,
there may be post-1989 documents that are relevant to the pleadings as framed.
The plaintiffs rely on Samson Indian Nation and Band v. Canada (1999),
180 F.T.R. 243, [199] F.C.J. No. 2011 (QL), for the proposition that discovery
obligations are not limited to documents that come into existence before the
commencement of proceedings.
[17]
In Samson Indian Nation, supra, the Ermineskin plaintiffs brought
a motion for disclosure of documents, “including such documents as have come
or may come into existence or to the attention of the Crown or have been or
may be received by the Crown at any time subsequent to the commencement of
these proceedings and up until the trial of this action”. The defendant
Crown argued that a cut-off date for discovery should be set, and that an
obligation to discover new documents would be unduly onerous would cause the
trial to be delayed. MacKay, J. held that the plaintiffs could rely on Rule 226
(continuing discovery) and that the Crown would have to apply for relief from
production under Rule 230 “if the general obligation to continue production is
to be varied” (at para. 27). The Court refused to set a cut-off date after
which documents would not be required to be produced.
[18]
The defendants take the position that documents that came into existence
after the pleadings were filed are not relevant and base their position on the
proposition that facts arising after the date of an action cannot be relied
upon to sustain it. The defendants contend that because the pleadings must
contain material facts that occurred prior to the filing of the statement of
claim, the “temporal scope of relevance is similarly confined”.
[19]
The defendants rely on Canfran Investments Ltd. v. Glivar (1983),
42 O.R. (2d) 601 (Ont. H.C.). In that case, a writ for foreclosure on a
mortgage was issued at a time when there was no actual default on the mortgage,
although default occurred subsequently. The defendants argued that the action
was a nullity, since there was no valid claim when the writ was issued. The
Court held that “a cause of action accrues only upon default on the mortgage
and the action is a nullity.”
[20]
I am of the view that the Canfran case, supra, is not relevant to
the issue of disclosure. In Canfran, supra, an essential element of the
claim was absent at the time of commencement of proceedings: a default on the
mortgage. In the case at bar, no analogous claim is made by the defendants. I
am of the view that Canfran, supra, does not stand for the
proposition that disclosure is necessarily limited to documents that pre-date
the statement of claim.
[21]
As with the defendants in Samson, supra, the defendants in
the instant case appear to be concerned about the onerous task of producing
post-1989 documents. They submit an affidavit from Thomas Dale Pegg, a
litigation project manager at the Department of Indian Affairs and Northern
Development. Mr. Pegg states that post-1989 discovery is onerous because (i) he
has no criteria with which to direct his staff to flag documents, and (ii) the
time required to sort through post-1989 files is considerable. Mr. Pegg also
states that the endeavour would require the work of three full-time workers for
nine months.
[22]
In his Order re continuing production in Samson, supra, Mr.
Justice MacKay wrote in a recital:
UPON reserving decision at the hearing and
subsequently considering submissions then made and the Court considering that
the obligation of a party, pursuant to Rule 226(2), to serve a supplementary
affidavit of documents when it is aware that an affidavit of documents
previously served is inaccurate or deficient, when reasonably applied in the
circumstances of this case does not require periodic reconsideration of all
sources of documents but rather requires reasonable steps to ensure that
following provision of an affidavit of documents, any relevant documents
subsequently acquired, or previously acquired but not earlier discovered, of
which a party becomes aware, are included in a supplementary affidavit and produced;
[23]
My learned colleague went on to allow the application on terms which I
consider both reasonable and applicable to the case at bar. I do not believe,
in the circumstances of this case, that a periodic reconsideration of all
sources of documents is required. The parties will be required to take all
reasonable steps to ensure that following provision of an affidavit of
documents, any relevant documents subsequently acquired, or previously
acquired, but not earlier discovered, of which a party becomes aware, are
produced and eventually included in a supplementary affidavit of documents to
be filed prior to the pre-trial conference.
[24]
In summary, I am not prepared to find that discovery obligations are
limited to the production of documents that pre-date the statement of claim, as
urged by the defendants. Accordingly, I will order that the defendants produce
all documents that are relevant to the plaintiffs’ claims, such production to
be circumscribed, however, by the above terms.
Defendants’
Motion: Striking the FNI as plaintiff and the Minister as defendant
[25]
In view of the plaintiffs’ intention to apply for certification as a
class action and to seek leave to amend the statement of claim, I decline to
rule on the defendants’ motion strike the FNI as a plaintiff at this time. The
question of who is an appropriate plaintiff will be dealt with on the motion
for leave to amend the statement of claim and for class action certification.
[26]
In this motion, the defendants also move to strike the Minister as a
defendant as they argue that he is not a necessary and proper party to this
action. Rule 104(1) of the Federal Court Rules, SOR/98-106 provides:
At
any time, the Court may
(a) order that a person who is not a proper or
necessary party shall cease to be a party;
La Cour peut, à tout moment, ordonner :
(a) qu'une personne constituée erronément
comme partie ou une partie dont la présence n'est pas nécessaire au règlement
des questions en litige soit mise hors de cause;
[27]
The defendants rely on Cairns v. Farm Credit Corp. (1991), 49
F.T.R. 308, [1991] F.C.J. No. 1143 (QL), wherein Denault J. stated, at QL para.
6, that a “Minister of the Crown cannot be sued in his representative
capacity, nor can he be sued in his personal capacity unless the allegations
against him relate to acts done in his personal capacity” (emphasis added). In Cairns,
supra, the Honourable William McKnight had been listed as a defendant.
Denault J. struck all references to Mr. McKnight on the basis that the
plaintiffs’ claims did not relate to acts committed by Mr. McKnight in his
personal capacity.
[28]
The plaintiffs rely on a case in which a Minister of the Crown was
ordered to remain as a defendant, although the claim related to acts done in
his representative capacity. In Liebmann v. Canada (Minister of National
Defence) [1994] 2 F.C. 3, the plaintiff, a Jewish member of the armed
forces, brought a s. 15 Charter challenge to the Department of National
Defence policy that precluded his posting to the Middle East during the Gulf
War. The defendants brought a motion to replace the “Minister of National
Defence” with either “Her Majesty the Queen” or “Attorney General of Canada”.
Reed J. held, based on her review of the Crown immunity jurisprudence and the
Federal Court Rules, that the Minister of National Defence should remain as a
defendant. However, in Liebmann, supra, the plaintiffs sought an
injunction against the Minister of National Defence to preclude him from
applying the impugned policy. Such circumstances do not arise in this case.
[29]
The plaintiffs argue that the Minister is a necessary and proper party
to this action and that matters in dispute cannot be completely and effectively
determined without the Minister as a party. In particular, the plaintiffs note
that, in 1982, the then Minister made a commitment to the FNI in his capacity
as a servant of the Crown. They argue that the Minister’s inclusion as a party
is essential to determine the issues.
[30]
I disagree with the plaintiffs’ submission. As noted above, the jurisprudence
of this Court has established, generally, that a Minister cannot be sued in his
representative capacity, nor in his personal capacity, when acting on behalf of
the Crown except in particular circumstances which are not applicable to this
case. In my view, Her Majesty the Queen in Right of Canada is the proper party
defendant and any documentation related to the Minister’s alleged promise will
no doubt be produced by the defendant Her Majesty the Queen in Right of Canada.
In any event, the Minister does not have the statutory authority to give the
plaintiffs the remedy of registration of a new Indian band. Under subsection
2(1) of the Indian Act, R.S. 1985, c. I-5, a “band” is declared to be a
band by the Governor in Council, not the Minister. Consequently, I am of the
view that the Minister is not a necessary party to the action. Accordingly, the
motion to strike is allowed and the Minister will be struck as a defendant.
[31]
I will reserve any decision dealing with costs until disposition of the
motion for leave to amend the statement of claim and the motion for
certification of the action.
ORDER
THIS COURT ORDERS that:
1. Further to my Order of October 8, 2002,
Effie Scanlon ceased to be a party to this action, consequently, the name Effie
Scanlon, one of the plaintiffs, is deleted from the style of cause.
2. The plaintiffs are granted leave to amend
the amended statement of claim with respect to the amendments noted at tab 2,
paragraphs 5(a), 5(c), 5(d), 7(a), 7(c), and 12(a)-(h) of the plaintiffs’
motion record for the second motion herein.
3. The plaintiffs’ motion to be accorded
public interest standing is denied.
4. The Crown shall continue to produce
documents relevant to the issues in this action, and to provide appropriate
supplementary affidavits of documents in accord with Rule 226(1), including:
(i) new documents contained in active files
identified by the defendants, on their initiative or by them in consultation
with the plaintiffs, which may be of particular interest in regard to the
issues in this proceeding.
(ii) documents otherwise coming to
the attention of Crown counsel and others concerned with issues raised in this
action, whether or not previously existing or discovered, and known to be
relevant in this proceeding.
5. The Minister is struck as a defendant and
shall cease to be a party. The style of cause and statement of claim shall be
amended accordingly.
6. Costs on these motions will be dealt with
upon disposition of the motions respecting certification.
“Edmond P. Blanchard”
Judge
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-129-89
STYLE OF CAUSE: The Federation of
Newfoundland Indians et al. V. Her Majesty the Queen in Right of Canada et al.
PLACE OF HEARING: Halifax,
N.S.
DATE OF HEARING: November
14, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD
J.
DATED: April
1, 2003
APPEARANCES:
Stephen J. May FOR
PLAINTIFFS/APPLICANTS
John B. Edmond FOR
Defendants/Respondents
SOLICITORS OF RECORD:
Stephen J. May FOR
PLAINTIFFS/APPLICANT
Patterson Palmer
235 Water Street, P.O. Box 610
St. John’s, NF A1C 5L3
John B. Edmond For
Defendants/Respondents
331 Cooper Street, Suite 500
Ottawa, Ontario K2P 0G5
Email this Content