Sark v. Lennox Island Band of Indians, docket T-390-95

Date: 19990624

Docket: T-390-95

BETWEEN:

     JOHN JOE SARK

     Plaintiff

     - and -

     THE LENNOX ISLAND BAND OF INDIANS,

     and HER MAJESTY THE QUEEN,

     as represented by THE MINISTER OF INDIAN AFFAIRS

     AND NORTHERN DEVELOPMENT CANADA

     Defendants

     REASONS FOR ORDERS

MacKAY J.

[1]      These Reasons concern disposition of motions by the defendant Her Majesty the Queen to strike portions of the plaintiffs' Statement of Claim or for alternate relief, and by the plaintiff for an order directing Her Majesty to file an Affidavit of Documents pursuant to Rule 223 of the Federal Court Rules, 1998.

[2]      The plaintiff's Statement of Claim was filed in February 1995, and while it was not served in accord with the Court's Rules, the Deputy Attorney General of Canada became aware of the action upon receipt of a telecopied copy of the document. On the same day as the action was filed the plaintiff by Notice of Motion sought an injunction to restrain a band election scheduled to be held on March 1, 1995. That application was heard by Mr. Justice Muldoon by telephone on February 28, 1995 when he granted a request by the defendant Her Majesty the Queen to be excused from the hearing of the motion, the Crown then contending that the Statement of Claim made no allegations against Her Majesty. By Order, Muldoon J. directed that the plaintiff's motion be dismissed but the Band was to be bound until trial by certain conditions.

[3]      On March 15, 1995 the plaintiff filed an Amended Statement of Claim, amending the original claim by the addition of paragraph 24 alleging breach of fiduciary duty by Her Majesty the Queen and the Minister of Indian Affairs and Northern Development, and also by the addition of subparagraph 25(9) claiming relief against Her Majesty the Queen by a declaration of breach of Her fiduciary duty owed to the plaintiff. By a further Amended Statement of Claim, filed on April 7, 1995, the former paragraph 24 and subparagraph 25(9) were renumbered as, respectively, 25 and 26(9). It is these provisions in the Amended Statement of Claim that the defendant, Her Majesty the Queen, applies to have struck out.

[4]      On January 23, 1998, the plaintiff filed his Affidavit of Documents and subsequently on May 8, 1998 the defendant Her Majesty was served with a copy of an Affidavit of Documents of the defendant Lennox Island Indian Band. No Statement of Defence has been filed by the defendant Her Majesty the Queen, and counsel for Her Majesty is said to have consistently taken the position that she is improperly impleaded as a defendant and the action should be withdrawn.

[5]      Following filing of the plaintiff's motion for an order that Her Majesty file an Affidavit of Documents, Her Majesty filed the notice of motion for an order to strike paragraph 25 and subparagraph 26(9) of the Statement of Claim and to dismiss the action against Her Majesty. In the alternative the Crown seeks an order that the plaintiff provide by further amendment to his claim, a concise statement of the material facts on which the conclusion of law in paragraph 25 is based, or by a statement of further and better particulars, the particulars of the breach of duty to the plaintiff alleged in that paragraph. Moreover, if the portions objected to in the statement of claim are not struck, the defendant seeks an order extending the time for filing a Statement of Defence by the defendant to fifteen days after the delivery of particulars ordered, or if none be ordered then to ten days after disposition of Her Majesty's motion.

[6]      The plaintiff's claim is based on the following allegations of fact. He states that he is a member of the defendant Indian Band and that he does not reside on the Band's reserve lands, located in Prince Edward Island, though he does reside in that province. By "Rules Governing Lennox Island Band Elections", adopted by the Band in 1974, ordinary residence on the reserve is a pre-condition to voting for the Band Council. By an amendment to those Rules, adopted in 1990, six months' residence on the reserve is required to be nominated as a candidate for Chief of the Band or as a member of the Band Council. The plaintiff claims that he did stand for election as chief in 1989, although he was not then resident on the reserve. By reason of these Rules, adopted by the Band purportedly as custom, he claims he is denied the right to vote and the right to be a candidate for office of the Band.

[7]      The plaintiff claims that the election Rules of the Band, purportedly adopted as customary rules of the Band, are not based on the custom of the Band. Rather, he says that the Band adopted, as its customary rules, Indian Band Election Regulations of the Department of Indian Affairs and Northern Development ("DIAND") with some modifications, and with "Guidelines for determining Residency for the purpose of Band Elections" as developed and used by DIAND.

[8]      The plaintiff relies, in his Statement of Claim, on ss. 2(b), 2(d) and 15 of the Canadian Charter of Rights and Freedoms. He has given Notice of Constitutional Question, in accord with s. 57 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, which indicates his intent to question the constitutional validity of ss. 5(a), 5(b), 7(1) and 7(2) of the Rules governing Lennox Island Indian Band Elections. No provisions of any Act of Parliament or of regulations thereunder are specifically said to be constitutionally invalid in the Notice of Constitutional Question or in the Statement of Claim.

The motion to strike

[9]      The portions of the Statement of Claim that are here in issue are paragraph 25 and subparagraph 26(9), which are as follows.

[10]      For the defendant Her Majesty the Queen, it is urged that paragraph 25 should be struck out on the ground it discloses no reasonable cause of action, and in consequence then paragraph 26(9), seeking relief against Her Majesty should be struck out. With no cause of action against Her, the action should be dismissed as against Her Majesty the Queen.

[11]      For the Crown it is urged that since there is no allegation of breach of fiduciary control of aboriginal assets, reserve lands, mineral rights or Indian moneys, no alleged breach of aboriginal or treaty rights, and no allegation of some discretion or power vested in the Crown that was exercised to the disadvantage of the plaintiff, there is no allegation to which the claim in paragraph 25, of breach of a fiduciary duty, can be related. There is, in the Crown's view, no jurisprudence that would support finding a fiduciary duty on the Crown in the circumstances of this case. I am not persuaded, however, that the contexts in which fiduciary duties owed by Her Majesty to aboriginal peoples are yet closed, for the application of the concept continues to evolve.

[12]      Further, the Crown urges that it has no jurisdiction to approve, disapprove or affect in any way the basis of action by the Band that is based upon custom. The plaintiff's complaint about the Band's customary election rules, it is urged, is a matter to be resolved between the plaintiff and the Band, a matter in which the defendant, Her Majesty the Queen has no role to play.

[13]      While the plaintiff urges that delay on the part of Her Majesty in bringing the motion to strike is sufficient ground for dismissing the application, I am not persuaded that any delay precludes, at any time, a motion based on the ground that there is no reasonable cause of action. (see: Coca-Cola Ltd. v. Pardhan, (1997), 77 C.P.R. (3d) 501, 139 F.T.R. 223; upheld on appeal, [1999] F.C.J. No. 484 (F.C.A.), online: QL(FCJ)).

[14]      The plaintiff urges that the essence of paragraph 25 of the Statement of Claim is that, under the Indian Act, the Minister owes a fiduciary duty to aboriginal peoples living off reserves to protect their aboriginal rights under customary election procedures and that duty is breached in the circumstances of this case. The Indian Act, ss. 3 and 74(1) and certain jurisprudence are relied upon in support of the plaintiff's claim that a fiduciary duty here exists and, in the circumstances, it was breached. The plaintiff urges that the Minister has residual authority, and a fiduciary duty to aboriginal people, to ensure that where it is applicable, the custom of the Band is followed. It is not for this Court, at this stage, to determine whether that is so. It is sufficient to acknowledge that it is not plain and obvious that the plaintiff's action has no chance of success. Thus, the test set by Mr. Justice Estey in [1980] 2 S.C.R. 735">Canada v. Inuit Taparisat of Canada, [1980] 2 S.C.R. 735 at 740, 115 D.L.R. (3d) 1 at 5, 33 N.R. 304 at 310, is not here met. There appears an arguable issue raised by the plaintiff's claim, even if that not be adequately expressed at this stage. In these circumstances the motion of Her Majesty, to strike portions of the Statement of Claim, is dismissed.

[15]      While not directly related to the defendant's motion, the plaintiff's failure, as alleged by the Crown, to question the validity of any Act of Parliament or regulation thereunder either in the Statement of Claim or in the plaintiff's Notice of Constitutional Question, is said to be a basis for questioning the plaintiff's claim. For the plaintiff it is urged that the election rules here called into question are made in accord with, and have recognition because of, the Indian Act. That Act provides no legislated guidelines to ensure that rules that are said to be customary do actually reflect true custom and no statutory guidelines protect the rights of Band members, or ensure consistency with the Charter under the Constitution. Thus, it is said, the Indian Act itself is questioned in the circumstances of this case. That argument need not be resolved at this stage; it appears to raise an arguable issue for the judge at trial after hearing evidence and full argument.

The alternate relief sought by Her Majesty

[16]      In responding to the motion to strike, the plaintiff has set out by way of explanation further details of the basis upon which his claim is raised, in relation to alleged breach of fiduciary duty, by Her Majesty. The necessity for that further explanation of matters that may be considered implicit in the Statement of Claim, in my view, supports the claim of Her Majesty to alternative relief if the action not be struck as against Her.

[17]      In my opinion, the Crown is entitled to particulars of the matters said to be implicit in the Amended Statement of Claim which give rise to the plaintiff's claim of breach of fiduciary duty by or on behalf of the defendant Her Majesty the Queen. Those particulars might be provided by a further amendment to the Statement of Claim, or preferably by a Statement of Particulars. I agree that the plaintiff should have reasonable time to prepare that statement, and an Order issued with these Reasons, pursuant to Rule 181(2), permits that to be done on or before August 2, 1999.

[18]      Thereafter, Her Majesty the Queen shall file and serve a Statement of Defence on or before August 17, 1999. She shall also serve an Affidavit of Documents on the other parties on or before September 16, 1999, in accord with Rule 223(1).

[19]      In view of the Directions now issued by order, as alternatives to the defendant's motion to strike portions of the Statement of Claim, there is no necessity to deal separately with the plaintiff's motion that Her Majesty be ordered to produce an Affidavit of Documents. Thus, that motion by the plaintiff is dismissed.

                                     W. Andrew MacKay

                                         JUDGE

OTTAWA, Ontario

June 24, 1999.