Noade v. Blood Tribe, 2002 FCT 2011

Date: 20021120

Docket: T-2243-95

Neutral citation: 2002 FCT 2011

BETWEEN:

                                                           EDWARD NOEL NOADE

                                                                                                                                                         Plaintiff

                                                                              and

                                              BLOOD TRIBE CHIEF AND COUNCIL

                                                                                                                                               Defendants

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  There are two basic issues to deal with this application to amend the Statement of Claim of this proceeding. The proceeding began as a judicial review application and was subsequently ordered to be treated as and proceeded with as an action. The first issue is the propriety of adding the Blood Tribe Membership Tribunal, which made a decision, or perhaps failed or refuse to decide an issue, as a party. The second issue is whether amendment should be allowed to the Statement of Claim which may, on one view, raise new or perhaps time barred causes of action and, on another view, is merely a supplying of additional facts and a particularizing of administrative law issues.

CONSIDERATION

[2]                  I will deal with the law as to adding a party, here the Blood Tribe Membership Tribunal, shortly. I will touch first on the established law as to amendment.

[3]                  It is established law that I ought not, for the most part, to prejudge whether the amendments will be successful, but assuming the facts pleaded in the amendment to be true, I ought to allow the amendment, so long as it will assist in focusing or re-focusing on or particularizing a point in issue, which will in turn assist the Court in determining the real points in controversy, so long as the amendment will not prejudice the other side. Here I note the prejudice must go beyond inconvenience or disruption which can be compensated for in costs. Of course, and this is the qualification with which I opened this paragraph, if it is plain, obvious and beyond doubt that amendment will not succeed, it ought not to be allowed, that being the same test as for striking out a pleading.

[4]                  The essence of this whole area is that "ultimately it boils down to consideration of simple fairness, common sense and the interest that the Court have that justice must be done": Continental Bank Leasing Corporation v. Canada, [1993] 1 C.T.C. 2306 (T.C.C.) at 2310, as quoted by the Federal Court of Appeal in Canderel Ltd. v. Canada, [1994] 1 F.C. 3 at 12.

The Blood Tribe Membership Tribunal as a Party

[5]                  The addition of a party is governed by Federal Court Rule 104 which provides, in part:

[6]                  Adding a defendant is not entirely within the discretion of the Plaintiff: see for example Havana House Cigar & Tobacco Merchants Ltd. v. Jane Doe (1998), 80 C.P.R. (3d) 443 at 445, a decision of Mr Justice Rothstein, as he then was. Indeed, the Federal Court of Appeal set out guidelines as to when a party may be added, under the Federal Court Rules, in Stevens v. Parker (1998), 228 N.R. 133. There the Court rejected the view that a person might be joined for the purpose of discovery or because he or she had relevant evidence to give (page 141). The Court considered the concept of a necessary party pursuant to what is now Rule 104(1)(b) which provides that a court may order a person joined as a party if that person's presence "is necessary to insure that all matters in dispute in the proceeding may be effectually and completely determined..." (see page 140). The Court in Stevens quoted with approval a passage from Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357, a decision of Mr Justice Devlin, as he then was. Mr Justice Devlin characterized the portion of the rule as to joinder, dealing with necessary parties, as giving effect to the old practice in equity to join those whose presence was necessary for complete and effectual justice. He set out his view of the reason which made it necessary that a person become a party at page 380:

There, of course, Mr Justice Devlin, in stating that the only reason to join a party was to bind that person to the outcome, was considering only who might be a necessary party, which is one branch of our rule which also provides for joinder of those who ought to be

parties. Mr Justice Devlin took a narrow approach to who ought to be joined. Such joinder, in his view, should not occur when it was merely just convenient to do so, but only where parties ought to have been joined, in the strict legal sense. Indeed, he characterized the "ought to have been joined" branch of the rule as reflecting the common law practice. He gives, as examples, joint contractors or co-covenants, who had a legal right to be parties. This is very different from the addition of a party whenever it seemed just and convenient to do so. This narrow interpretation is considered, at length, in Enterprises Realty Ltd. v. Barnes Lake Cattle Co. (1980), 101 D.L.R. (3d) 92 at 96 and follows by the BC Court of Appeal and Ferguson v. Arctic Transportation Ltd. (1995), 105 F.T.R. 13 at 18 and following. The Tribunal ought not, from a common law point of view, to become a party under the first branch of Rule 104. I turn to consider whether the Tribunal is a necessary party.

[7]                  Turning specifically to the addition of the Blood Tribe Membership Tribunal (the "Tribunal")as a necessary party, the Tribunal is a body separate and independent from the Blood Tribe Chief and Council. For this reason and believing that Adams v. Canada (Royal Canadian Mounted Police) (1995), 182 N.R. 354 (F.C.A.) is still good law, it is quite proper to make a tribunal a party to an action, even if the action was once a judicial review proceeding. However, my initial view was that the Tribunal, the Blood Tribe Membership Tribunal, was not a necessary party because not only could this proceeding be determined in the absence of the Tribunal, as in judicial review in general, but also the Tribunal, whether or not a party, is in no position to ignore a determination were the Court to send the issue back to the Tribunal with a greater or lesser degree of instruction. However, the Plaintiff simplifies matters by conceding that "the Tribunal is not a completely necessary party" in part, perhaps, because nothing, in the amendments to the Statement of Claim, raises issues to which the Tribunal could properly speak to on a review of their decision. The Plaintiff puts the addition of the Tribunal no higher than that it would avoid further misapprehensions, on the part of the Defendants, as to the nature of the proceeding. I believe this is not necessary in that the Statement of Claim, particularly as amended, make clear the nature of the proceeding. While the addition of the Tribunal as a party would bring before the Court a party interested in and which has a relationship with the Plaintiff's claim, the Tribunal will not be a party. I now turn to the amendments.

Amendment

[8]                  As I understand it the Defendants have twice attempted to strike out the pleadings based upon what they have viewed as possible ambiguity in the pleadings.

[9]                  The Defendants take a number of objections both to the amendments which were made some years ago, when the judicial review proceeding was changed to an action and a statement of claim was filed and to amendments which are presently proposed. They say that the amendments do not clarify any issues, but rather add issues and causes of action. Moreover, the Defendants say that declaratory relief and also extraordinary relief, such as the writ of certiorari sought in the prayer for relief, are beyond the jurisdiction of the Court once a judicial review has become an action, for by section 18 of the Federal Court Act such remedies may be obtained only on an application for judicial review.

[10]            The Plaintiff characterizes the amendments as adding facts and particulars. The Plaintiff adds that while the existing Statement of Claim is likely broad enough to extend to declaratory relief, in addition to that sought in the initial Notice of Application, the Plaintiff makes the point and I accept it that the presence of a basket clause, seeking "such further relief as this Honourable Court may deem just" permits the Court to exercise its discretion to grant declaratory relief, even though such relief was not specifically pleaded: see for example The Queen v. Native Women's Association of Canada, [1994], 3 S.C.R. 627 at 647 - 648.

[11]            As to the amendments generally the Defendants suggest that they are late and prejudicial, but make no specific reference to prejudice in the sense of prejudice which might not be compensated for in costs. I do not see the amendments as being prejudicial in the proper sense of the term for any inconvenience or additional expense may be compensated in costs.

[12]            The Defendants also say that new claims ought not to be added: this contention was swiftly and decisively dealt with by Mr Justice Hugessen, in Shubenacadie Indian Band v. Canada (Minster of Fisheries and Oceans), an unreported decision of 14 March 2001 in action T-1525-00, 2001 FCT 181, as follows:

This is somewhat contrary to the view expressed by Mr Justice Rouleau in an earlier decision, Radil Bros. Fishing Co. v. Canada (Department of Fisheries and Oceans) (1998), 158 F.T.R. 313 (F.C.T.D.), who was of the view that a conversion of a judicial review application into an action did not entitle a plaintiff to seek, in the statement of claim, relief which was different than that set out in the originating notice of motion. In the present instance I prefer the view of Mr Justice Hugessen although my view is also that the amendments here at issue clarify and particularize what is already set out in the Statement of Claim. I do not agree that, as the Defendants submit, that Radil Bros. may be distinguished in that there was a possibility of consolidation or joinder of actions. Mr Justice Hugessen raised joinder or consolidation merely as a possibility of what might happen if the amendments were refused, requiring the plaintiff to commence a parallel action, which might be joined in due course. Shubenacadie Indian Band is directly on point in that it involves an alleged improper amendment after the initial judicial review proceeding had been converted into an action. As I say I prefer Mr Justice Hugessen's approach, that of generosity in amendment, including adding new elements to an action which began as a judicial review proceeding.

[13]            The Defendants also submit that some of the amendments are stale dated. It may well be that if what the Plaintiff seeks is, at some future point when the evidence is in, characterized as a new cause of action, it will be dealt with by way of a limitation defence. However, that is not to be decided at this point.

[14]            While the Defendants raised a number of additional points, the only one which merits dealing with is whether this proceeding, having become an action, puts declaratory relief beyond the jurisdiction of this Court.

[15]            The Defendants' submissions seem to be to the effect that by changing the judicial review proceeding to an action, the Plaintiff had not only abandoned, but also lost any right and the Court any jurisdiction over the declaratory and associated extraordinary relief provided for in section 18, or by section 18(3) of the Federal Court Act, for those remedies may only be obtained on application on judicial review. Such relief is the main thrust of the Plaintiff's case. Section 18.4(2) of the Federal Court Act provides that:

Leaving aside Rule 64, which clearly empowers the Court to grant declarations in actions, what the Defendants must keep in mind is that an order under section 18.4(2) is neither an abandonment of a judicial review proceeding, nor a foreclosure of section 18 relief, as submitted by the Defendants. After the judicial review application becomes an action the substance of the proceeding still remains that of judicial review, for the judicial review application is merely to be treated and proceeded with as if it were an action: that does not make it an action in all respects. The difference is that, in an appropriate case, judicial review may be ordered to go forward with the trappings and procedure normally reserved for an action. The purpose for this purely procedural shift is, as pointed out by Mr Justice of Appeal Hugessen, in Haig v. Canada (Chief Electoral Officer); Haig v. Kingsley (1993), 145 N.R. 233, so that there are appropriate procedural safeguards in place:

While the nature of a proceeding under section 18.4(2) was not squarely before the Court of Appeal, the view of Mr Justice Hugessen is certainly authoritative. We have his clear statement that declaratory relief may be sought in a judicial review application which has been ordered to proceed as an action and that the change in format is of a procedural nature. Thus the Defendants' argument, that the only statutory grant of jurisdiction over the Blood Tribe Chief and Council, section 18.1 of the Federal Court Act is not available in a judicial review application which is proceeding as an action, fails.

CONCLUSION

[16]            Clearly it is not necessary to add the Blood Tribe Membership Tribunal as a party. The substantive remaining issues are the nature of and the amendment of the judicial review application which is proceeding as an action. In my view the amendments merely add facts and particulars to what is already contained in the Statement of Claim and in the relief sought. However, as Mr Justice Hugessen pointed out in Shubenacadie (supra), not only are the Federal Court Rules as to amendment extremely generous, but also, there is not barrier adding new claims once the judicial review proceeding goes forward as an action. To the extent that some of the amendments might possibly, when all the evidence is available to consider, constitute new causes of action, which could be stale, a time bar is not generally an aspect to be dealt with on a motion to amend, but rather should be raised as a defence.

[17]            There being no demonstrable prejudice to the Defendants, the Plaintiff succeeds on all of the amendments sought to be approved and to be made to the body of the Statement of Claim and to the relief sought, for those amendments, accepting them as presented, are certainly arguable. However, the amendment to add the Blood Tribe Membership Tribunal is denied. Success being mixed, costs shall be in the cause.

(Sgd.) "John A. Hargrave"

                                                                                               Prothonotary

Vancouver, British Columbia

20 November 2002

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                            T-2243-95

STYLE OF CAUSE:                        Edward Noel Noade v. Blood Tribe Chief and Council

REASONS FOR ORDER OF: Hargrave P.

DATED:                                                20 November 2002

WRITTEN REPRESENTATIONS BY:                              

Janet L Hutchison                                                                       FOR PLAINTIFF

Joanne F Crook                                                                          FOR DEFENDANTS

SOLICITORS ON THE RECORD:

Chamberlain Hutchison                                                             FOR PLAINTIFF

Barristers & Solicitors

Edmonton, Alberta

Walsh Wilkins Creighton LLP                                                  FOR DEFENDANTS

Calgary, Alberta