Paul v. Canada (Attorney General), 2001 FCT 1280

Date: 20011121

Docket: T-646-01

Neutral citation: 2001 FCT 1280

BETWEEN:

CLEM PAUL and NORTH SLAVE METIS ALLIANCE

                                                                                                                                                        Plaintiffs

                                                                              - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

THE GOVERNMENT OF CANADA as represented by the

ATTORNEY-GENERAL OF CANADA, THE MINISTER

OF INDIAN AND NORTHERN AFFAIRS CANADA, THE

GOVERNMENT OF THE NORTHWEST TERRITORIES,

THE DOGRIB FIRST NATION as represented by THE

DOGRIB TREATY 11 COUNCIL, JEAN-YVES ASSINIWI,

JOHN B. ZOE, JAMES LAWRENCE, JOHN DOE #1,

JOHN DOE #2 AND JOHN DOE #3

                                                                                                                                                    Defendants

                                                            REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]                 Clem Paul is a Metis person residing in Yellowknife, Northwest Territories, who claims is descendant from the historic Metis families who settled in the North Slave region of the Northwest Territories. North Slave Metis Alliance (the "Alliance") is a non-profit organization whose purpose is to promote the interests of the indigenous Metis in the North Slave region part of which lies in the area within which Treaty 11, made in 1921, applies.

[2]                 Clem Paul and the Alliance commenced an action in this Court on April 12, 2001, seeking various declarations against the defendants arising out of land claim negotiations commenced in 1992 between the Federal Government, the Government of the Northwest Territories ("GNWT") and the Dogrib First Nation (the "Dogrib First Nation"). These negotiations resulted in a comprehensive land claim and self-government Agreement-in-Principle ("AIP") entered into on January 7, 2000.

[3]                 The plaintiffs named as defendants the negotiators of that AIP. The defendant, Jean-Yves Assiniwi, negotiated on behalf of the Federal Government; the defendant, John B. Zoe, negotiated on behalf of the Dogrib Treaty 11 Council and the Dogrib Nation and the defendant, James Lawrence, negotiated on behalf of the GNWT. The defendants John Doe #1, John Doe #2 and John Doe #3 are any successors of these negotiators.

[4]                 Pursuant to paragraphs (a), (b), (c) and (f) of subsection 221(1) of the Federal Court Rules, 1998, (the "Rules") the defendant negotiators moved the Court for orders striking out the plaintiffs' statement of claim against them or their successors on the grounds it discloses no reasonable cause of action, is immaterial or redundant, is frivolous and vexatious or is an abuse of the process of the Court. No motion to strike was launched by the Federal Government, the GNWT and the Dogrib First Nation who will remain as defendants.

THE RULES

[5]                 Rule 221 reads:

THE TESTS

[6]                 The tests for striking out a statement of claim on the basis it discloses no reasonable cause of action or is frivolous and vexatious are well-known.

[7]                 On a motion to strike on the ground of disclosing no reasonable cause of action, no evidence is permitted and all of the facts pleaded in the statement of claim must be deemed proven. A claim will be struck only in plain and obvious cases where a Court is satisfied the case is beyond doubt ([1980] 2 S.C.R. 735">Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at 740). A claim will not be struck if it discloses a reasonable cause of action, i.e. a cause of action with some chance of success but will be struck if it is plain and obvious that the action cannot succeed (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at 486-87).

[8]                 Justice Bertha Wilson in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 859 at 980, stated:

As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.

[9]    Justice Pratte in Creaghan Estate v. The Queen, [1972] F.C. 732 (F.C.A.), stated a statement of claim should not be ordered struck out on the grounds it is frivolous or vexatious for the sole reason, in the opinion of the motions judge, a plaintiff's action should be dismissed. He went on to say at page 736:

In my opinion, a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding, whoever the judge may be before whom the case could be tried. It is only in such a situation that the plaintiff should be deprived of the opportunity of having "his day in Court".

[10]            Rule 221(b) speaks to a pleading that is immaterial or redundant. The ordinary meaning of an "immaterial" pleading is one that is irrelevant or of no consequence. A "redundant" pleading is one that is superfluous or unnecessary. In applying this Rule, a contextual approach should be adopted namely having regard to other Rules. In this case, regard should be had to Rule 104 dealing with joinders.

THE STATEMENT OF CLAIM

[11]            The plaintiffs' statement of claim contains several references to the defendant negotiators and makes several allegations against them.

[12]            First, each defendant negotiator is described as being "an agent . . . with authority to negotiate". Paragraph 9 of the statement of claim in respect of the federal negotiator reads:

9.         The Defendant, Jean-Yves Assiniwi ("Assiniwi"), is an agent of the Federal Government with authority to negotiate on behalf of the Federal Government with Aboriginal representatives with respect to a land claims agreement within the meaning of section 35(3) of the Constitution Act, 1982 in the North Slave Region. The Defendant, John Doe #1, is any successor of Assiniwi in that capacity.

[13]            The defendant John B. Zoe is similarly described as being an agent of the Dogrib Council with authority to negotiate on behalf of the Dogrib Council and Dogrib Nation. The defendant James Lawrence is described as being an agent of the GNWT with authority to negotiate on its behalf.

[14]            Paragraphs 35 through 38 of the plaintiffs' statement of claim pleads breaches against the negotiators' principals in the following terms:

35.        The North Slave Metis are members of an "Aboriginal People" within the meaning of s. 35 of the Constitution Act, 1982. The North Slave Metis have Aboriginal rights related to their use and occupation of the North Slave Region which are protected by s.35 of the Constitution Act, 1982. The Defendants' actions in signing the AIP and continuing with negotiations toward the Final Agreement without consideration or protection of the Plaintiffs' rights constitutes an unjustifiable violation of the Plaintiffs' s.35 rights.

36.        The Plaintiffs state that the Defendants, the Queen, the Attorney-General, the Minister, the GNWT and the Dogrib Nation, have a duty to consult, in good faith, with all Aboriginal Peoples with rights in the North Slave Region. All Defendants were aware, or ought to have been aware, of the Plaintiffs' claim to s. 35 Aboriginal title and rights in the North Slave Region. The Plaintiffs state that the Defendants' failure to take adequate or any steps to consult with the Plaintiffs regarding the impact of the AIP and the Final Agreement upon those rights, constitutes a breach of their duty to consult.

37.        The Plaintiffs state that, as a result of the historical and legislative relationship between all Aboriginal Peoples and the Crown, the Defendants, the Queen, the Federal Government, the Minister and the GNWT owe the Plaintiffs a fiduciary duty in their dealings with them regarding their Aboriginal and Treaty rights.

38.        Specifically, the Defendants, the Queen, the Attorney-General, the Minister, the Federal Government, the GNWT have a fiduciary duty not to put their interests or the interests of an Aboriginal People with equivalent rights to the Plaintiffs', ahead of the Plaintiffs' interests. [emphasis mine]

[15]            Paragraph 39 of the plaintiffs' statement of claim links the negotiators' duties to those of their principals in the following terms:

39.        Assiniwi, Zoe, Lawrence, John Doe #1, John Doe #2 and John Doe #3 ("the Negotiators") owe the Plaintiffs the same duties as their principals, as described in paragraph 36-38, above. [emphasis mine]

[16]            Paragraphs 42 and 43 make specific allegations against the negotiators in the following terms:

42.        The Plaintiffs state that the Negotiators' mandates must be consistent with their principal's duty to consult, fiduciary duties and s. 35 of the Constitution Act, 1982. To the extent that their mandates or actions violate these rights and duties, the Plaintiffs state the Negotiators acted and continue to act without legal authority.

43.        The Plaintiffs state the current Federal Government and GNWT land claims policies require negotiators involved in a land claims negotiation to consult with interested third parties regarding the impact of a land claims agreement on their interests. The Plaintiffs have status far beyond a third party and yet the Negotiators have failed to consult with the Plaintiffs or any North Slave Metis regarding the AIP or Final Agreement. The Plaintiffs state the Negotiators have acted outside their jurisdiction and without legal authority. [emphasis mine]

[17]            Paragraph 47 of the plaintiffs' statement of claim sets out the relief they seek which consists of declarations, injunctive relief and, in the alternative, damages.

[18]            In some cases, the relief sought is against the defendants globally without distinguishing between them. An example is in paragraph 47(a) where a declaration is sought that by signing the AIP and continuing negotiations towards a final agreement without recognition or protection of the plaintiffs' rights, the defendants have violated the Aboriginal rights of the plaintiffs and the North Slave Metis they represent, contrary to section 35 of the Constitution Act, 1982. Another example is in paragraph 47(b) which seeks a declaration that the defendants have violated the equality rights of the plaintiffs and the North Slave Metis they represent contrary to section 15 of the Charter. Paragraphs 47(d), (f) and (g) are to similar effect.

[19]            In other cases, some of the defendants are specifically referred to in the declaration sought. For example, paragraph 47(c) seeks a declaration that, upon acceptance of the Alliance's land claims, "the Queen, the Federal Government, the Minister and the GNWT and the Negotiators had a duty to negotiate, in good faith, with the Plaintiffs regarding the North Slave Metis' claims for Aboriginal rights and title in the North Slave Region". Another example is paragraph 47(e) where a declaration is sought that "the Queen, the Federal Government, the Minister, the GNWT and the Negotiators have breached the fiduciary duties they owe to the Plaintiffs and the North Slave Metis they represent".

[20]            In terms of an injunction, paragraph 47(h) requests an order for an injunction enjoining the Defendants from taking further steps towards the completion or execution of the Final Agreement until the breaches of the plaintiffs' rights described have been addressed and remedied.

[21]            As for damages, paragraph 47(i) reads:

i)          In the alternative, the Plaintiffs seek damages in an amount equivalent to the value of their Aboriginal title and rights the North Slave Region, which amount shall be established at the trial of this matter.

CONCLUSIONS

[22]            In my view, the current negotiators, Jean-Yves Assiniwi, John B. Zoe and James Lawrence and their successors should be struck from the plaintiffs' statement of claim on the grounds its pleading does not disclose a reasonable cause of action against them and because the pleading is frivolous and vexatious and will not lead to any practical result.

[23]            As agreed between the parties, I have examined the AIP because it is a document specifically referred to in the statement of claim. This document is not "evidence" precluded by Rule 221(2) of the Federal Court Rules, 1998 (see, Harris v. Canada, [2000] 4 F.C. 37 (F.C.A.) approving the judgment of the Ontario Court of Appeal in Web Offset Publications Limited et al. v. Vickery et al. (1999), 43 O.R. (3d) 802 (C.A.)). I have not taken into consideration the land claims policies of the Federal Government contained in Mr. Assiniwi's record.

[24]            Clearly, the claim against John Doe #1, #2, and #3 must be struck because, whoever they are, they are not the current negotiators and have done nothing which the plaintiffs complain of. The plaintiffs' claim against them is purely hypothetical (see, Bell Canada v. Pizza Pizza Ltd. et al. (1993), 48 C.P.R. (3d) 129 (F.C.T.D.)).

[25]            A principal reason for striking the current negotiators from the plaintiffs' claim is because their pleading does not disclose any material facts relied upon by them.

[26]            The plaintiffs readily admit they do not know what mandate the negotiators had nor their scope of authority. They also concede the facts they know do not permit them to assert the existence of an independent fiduciary duty but they hedge their position by arguing it may not be necessary to find an independent breach because knowing participation in a breach of fiduciary duty is also recognized as a cause of action. However, they do not assert the current negotiators knowingly participated in any breach of fiduciary duty. This aspect of the plaintiffs' claim is speculative.

[27]            The plaintiffs say it is possible the current negotiators may each have a discretion to decide whether a particular Aboriginal group will be consulted but do not know and cannot plead any facts as to any such discretion. They say it is possible the negotiators have been given mandates directing them to act in a manner contrary to the Charter but add, however, it is equally possible such negotiators have acted in such a way as to violate their mandate and acted outside the scope of the authority they have been given. They concede the scope and extent of each negotiator's authority cannot be established without discovery of the defendants.

[28]            The Federal Court of Appeal in Painblanc v. Kastner et al. (1994), 58 C.P.R. (3d) 502, struck from an infringement action a defendant who was named as a personal defendant. Justice Hugessen, then of the Appeal Division, wrote the following at page 503:

It was perfectly clear from the material before the motions judge that the plaintiffs/respondents had no other evidence and knew of no facts which would engage the personal liability of Painblanc beyond his position as controlling shareholder and sometime managing director of the company. This is manifestly not enough... .

The learned motions judge seems to have been of the view that the plaintiffs/respondents should be given the chance to see if they could learn some further facts and obtain some more evidence implicating Painblanc personally during examination for discovery. We are all of the view that in so doing, the judge erred in law and proceeded upon a wrong principle. An action at law is not a fishing expedition and a plaintiff who starts proceedings simply in the hope that something will turn up abuses the court's process.

[29]            The second reason for striking out the current negotiators from the plaintiffs' pleading rests upon the well-known principle in agency law that the general rule of liability where there is a disclosed principal (and here, the plaintiffs plead the negotiators were agents with authority to negotiate) only the principal.

[30]            The decision of the Saskatchewan Court of Appeal in Westfair Foods Ltd. v. Avon Shopping Centre Inc. (1988), 72 Sask. R. 71, is apt. In that case, the Court was dealing with a broker where an injunction was sought against an agent holding out that new premises were available for rent. The claim against the agent was struck, Mr. Justice Cameron writing at page 74:

But he, personally, is incapable of letting premises or granting such rights. Only the corporation, Avon, can do that, and so on the whole of it, we have concluded that no reasonable cause of action has been set up against Mr. Kornberg, personally, and that the statement of claim in this respect is vexatious... .

If, following the examination for discovery, there is reason to believe that Mr. Kornberg may be personally liable, Westfair may then seek to have him added as a party. In the meantime, it seems to us, based on the statement of claim, that he ought not to be a party to the action, at least at this stage.

[31]            The principles in Westfair, supra, apply here. It may be that during discovery material facts will become known which would justify one or more of the negotiators being added as parties by Court order.

[32]            Leaving aside for the moment the process in arriving at the AIP, the source of the plaintiffs' alleged violated rights under section 35 of the Canadian Charter of Rights and Freedoms or otherwise is the AIP which the negotiators did not sign or the final agreement which the negotiators will not sign. The plaintiffs recognize the Federal Government, the GNWT and the Dogrib First Nation are the authorities to enter into agreements.

[33]            Third, the current negotiators are not necessary parties to this action since the plaintiffs will have an effective remedy against their principals. The pleading in this respect is redundant. The pleading in this respect is redundant. There are several reasons for this conclusion.

[34]            The declarations sought relate to Charter breaches and breach of fiduciary duty which are the same as their principals and which (other than for the Dogrib First Nation), if established, would involve a direct liability for the Federal Government and, subsidiarily, the GNWT). Furthermore, the negotiators are not necessary for effective injunctive remedy even though the negotiators are not named. For all practical purposes, such injunction would apply to the negotiators and counsel for the Federal Government and GNWT so acknowledged to the Court.

[35]            There is another reason the negotiators are not necessary parties notwithstanding the allegation made by the plaintiffs the negotiators acted outside of their mandate or their actions violate their principals' duties to consult, fiduciary duties and section 35 of the Constitution Act, 1982, obligations. If the plaintiffs establish the negotiators acted outside the scope of their authority during the negotiation process, their principals would be directly liable because they ratified that conduct in signing the AIP and would condone it by concluding the final agreement process.

[36]            The plaintiffs requested that, should I conclude their statement of claim was defective, I not strike the negotiators but grant the plaintiffs leave to amend. Given my conclusion which rests on three different grounds, I do not see how amending the pleadings would overcome the result.

DISPOSITION

[37]            For all of these reasons, Jean-Yves Assiniwi, John B. Zoe, James Lawrence, John Doe #1, John Doe #2 and John Doe #3 are struck as defendants in the plaintiffs' statement of claim. Costs of this motion shall be in the cause.

                                                                                                                           "François Lemieux"

                                                                                                                                          J U D G E         

OTTAWA, ONTARIO

NOVEMBER 21, 2001