Date: 20021113
Docket: T-1525-00
Neutral Citation : 2002 FCT 1173
BETWEEN:
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), WILLIAM J. NEVIN,
STEPHEN M. PETER-PAUL, BENJAMIN J. BRAKE,
GLENDON BROOKS and ELLEN ROBINSON
Plaintiffs
- and -
MINISTER OF FISHERIES AND OCEANS (CANADA),
HER MAJESTY IN RIGHT OF CANADA,
UNION OF NOVA SCOTIA INDIANS, a body corporate, and
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
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
Docket: T-1250-01
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members
Plaintiff
- and -
MINISTER OF FISHERIES AND OCEANS (CANADA),
MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
(CANADA), HER MAJESTY IN RIGHT OF CANADA,
UNION OF NOVA SCOTIA INDIANS, a body corporate, and
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
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
Docket: T-953-02
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members
Plaintiff
- and -
ATTORNEY GENERAL OF CANADA
representing the Minister of Fisheries and Oceans (Canada),
UNION OF NOVA SCOTIA INDIANS, a body corporate, and
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
Defendants
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] This is a motion pursuant to Rule 369 of the Federal Court Rules, 1998 by the plaintiffs to again amend their statement of claim.
[2] The plaintiffs state that their proposed amendments do not appear to be controversial and do not appear to prejudice the defendants; they state that their purpose is to clarify certain aspects of the claims.
[3] The defendant Canada submits that the proposed amendments do not clarify but convolute the pleadings. In support of their position, the defendant suggests that the proposed amended Statement of Claim is confusing for the following reasons:
(a) The plaintiffs propose to remove William Nevin from the list of plaintiffs; however, the proposed amended Statement of Claim still contains allegations relating to damages suffered by him.
(b) The proposed amended Statement of Claim contains confusing inconsistencies between paragraphs 1(k), 3, 20 to 24 and 29(c) to 29(e). Specifically, the defendant argues that the proposed amended Statement of Claim is confusing as to whether all of the plaintiffs or only the few plaintiffs listed in paragraph 1(k) are making particular claims.
[4] The defendant Canada suggests that the plaintiffs make a further amendment to their Claim by removing the generalized allegations contained in paragraphs 1(k) and 3.
In part, at least, the defendant's position is misconceived : it is not the Court's duty to re-write the plaintiffs' pleadings or to impose on them a clarity and logic which they may otherwise lack.
[5] The defendant's suggestion that all references to William Nevin are improper since his claim has been discontinued is not correct. As the plaintiffs note in reply, the references to details with regards to William Nevin are relevant to the Band's request for damages and other relief and thus need not be struck.
[6] As to the defendant's argument that the proposed amended Statement of Claim is unclear, while it is certainly not a model of draftsmanship, I think that on a fair reading, and considered, as it must be, as a whole, it is not so unclear as to warrant its rejection outright. If one cross references the specific pleadings (paragraphs 20 to 24) with the general (paragraphs 1(k), 3 and 29(c) to 29(e)), it becomes clear enough what claims relate to which specific plaintiffs.
[7] The defendant Canada finds paragraph 29(c) confusing because it implies, along with paragraphs 1(k) and 3, that all the plaintiffs are claiming trespass and conversion. Paragraphs 20 to 24, however, clarify that some of the property was owned by some of the plaintiffs individually while other property was owned by the Band.
[8] The defendant takes issue with paragraph 29(d) because it again contains a global allegation of unlawful arrest, detention, handcuffing and imprisonment, though it refers back to the individuals specified. I think paragraphs 20 to 23 make clear which individual plaintiffs are claiming what with regard to these allegations.
[9] The defendant takes issue with paragraph 29(e) since it only claims assault and battery for 3 plaintiffs when earlier either all or 17 of the plaintiffs were claiming assault and battery. In fact, paragraph 29(e) is a claim for use of excessive and unnecessary force resulting in injury on July 26 and thus can be differentiated from most of the allegations of assault and battery. This paragraph is, however, confusing since 4 individual plaintiffs have, in the earlier paragraphs, claimed injury caused on July 26 and it is obscure why only 3 are mentioned in paragraph 29(e). However, the fact that the paragraph may be under-inclusive is not a ground for refusing the amendment.
[10] The motion will be allowed. No order as to costs.
ORDER
Plaintiffs have leave to amend the statement of claim in accordance with the draft submitted. No order as to costs.
Judge
Ottawa, Ontario
November 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1525-00
STYLE OF CAUSE: Shubenacadie Indian Band et al v. Her Majesty the Queen et al
Pursuant to Rule 369 (in writing) : Ottawa, Ontario
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: November 13, 2002
APPEARANCES:
Bruce Wildsmith FOR THE PLAINTIFFS
Reinhold Endres FOR THE DEFENDANT CROWN
SOLICITORS ON THE RECORD:
Bruce Wildsmith
Brass Corner, Nova Scotia FOR THE PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada FOR THE DEFENDANT CROWN
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