Montana Band v. Canada, docket T-2954-93

Date: 19991026

Docket: T-2954-93

OTTAWA, Ontario, this 26th day of October, 1999.

PRESENT:      THE HONOURABLE MR. JUSTICE MacKAY

BETWEEN:

THE MONTANA BAND AND CHIEF LEO CATTLEMAN,

LAWRENCE STANDING-ON-THE-ROAD,

CARL RABBIT, REMA RABBIT, EUNICE LOUIS,

     the Chief and Councillors of the Montana Band

suing on their own behalf and on behalf of

all the other members of the Montana Band

     Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF CANADA

     Defendant

     UPON motion by the defendant for Orders:

a)      striking out the amended amended statement of claim in this action, or portions thereof, or

b)      staying the proceedings, or

c)      extending the time to serve and file a defence, or

d)      giving further orders and directions as may be required to ensure expeditious proceedings, and

e)      for costs in any event of the cause to be paid forthwith;

     UPON hearing the application, together with similar applications in Court file T-61-99 between the same parties, and in Court files T-2953-93 and T-57-99 between The Louis Bull Band and Her Majesty the Queen in Right of Canada, at Ottawa, on June 4, 1999, when decision was reserved, and upon consideration of submissions then made:

     O R D E R

     IT IS ORDERED THAT:

1.      The plaintiffs' actions as set out by the amended amended statement of claim in this action and by the statement of claim in Court action T-61-99 shall be consolidated by further amendment of the amended amended statement of claim in this action, T-2954-93, to incorporate the specific cause and the particular relief claimed in action T-61-99, which further amendment shall be filed on or before December 15, 1999.

2.      The defendant may file a defence in action T-2954-93 within 45 days after the further amendment of the statement of claim is filed in accord with paragraph 1.

3.      Costs shall be in the cause.

                                     (signed) W. Andrew MacKay

    

                                         JUDGE

Date: 19991026

Docket: T-2953-93

OTTAWA, Ontario, this 26th day of October, 1999.

PRESENT:      THE HONOURABLE MR. JUSTICE MacKAY

BETWEEN:

THE LOUIS BULL BAND AND CHIEF HERMAN ROASTING,

HENRY RAINE, JONATHAN BULL, THERESA BULL,

CLYDE ROASTING, DONNA TWINS, WINNIE BULL,

SOLOMON BULL, GEORGE DESCHAMPS, the Chief and

Councillors of the Louis Bull Band suing on

their own behalf and on behalf of all other

members of the Louis Bull Band

     Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF CANADA

     Defendant

     UPON motion by the defendant for Orders:

a)      striking out the amended amended statement of claim in this action, or portions thereof, or

b)      staying the proceedings, or

c)      extending the time to serve and file a defence, or

d)      giving further orders and directions as may be required to ensure expeditious proceedings, and

e)      for solicitor and client costs in any event of the cause to be paid forthwith;

     UPON hearing the application, together with similar applications in Court file T-57-99 between the same parties, and in Court files T-2954-93 and T-61-99 between The Montana Band and Her Majesty the Queen in Right of Canada, at Ottawa, on June 4, 1999, when decision was reserved, and upon consideration of submissions then made:

     O R D E R

     IT IS ORDERED THAT:

1.      The plaintiffs' actions as set out by the amended amended statement of claim in this action and by the statement of claim in Court action T-57-99 shall be consolidated by further amendment of the amended amended statement of claim in this action, T-2953-93, to incorporate the specific cause and the particular relief claimed in action T-57-99, which further amendment shall be filed on or before December 15, 1999.

2.      The defendant may file a defence in action T-2953-93 within 45 days after the further amendment of the statement of claim is filed in accord with paragraph 1.

3.      Costs shall be in the cause.

Date: 19991026

Docket: T-61-99

OTTAWA, Ontario, this 26th day of October, 1999

PRESENT:      THE HONOURABLE MR. JUSTICE MacKAY

BETWEEN:     

     THE MONTANA BAND and CHIEF LEO CATTLEMAN,

REMA RABBIT, DARRELL STRONGMAN,

CARL RABBIT and COADY RABBIT, the Chief

and Councillors of the Montana Band suing on their

behalf and on behalf of all other members

of the Montana Band

         Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

IN RIGHT OF CANADA

         Defendant

     UPON motion by the defendant for Orders:

a)      striking out the statement of claim in this action, or

b)      staying the proceedings, or

c)      extending the time to serve and file a defence, or

d)      giving further orders and directions as may be required to ensure expeditious proceedings, and

e)      for costs in any event of the cause to be paid forthwith;

     UPON hearing this application, together with similar applications in Court file T-2954-93 between the same parties, and in Court files T-57-99 and T-2953-93 between the Louis Bull Band et al. and Her Majesty the Queen in Right of Canada, at Ottawa, on June 4, 1999, when decision was reserved, and upon consideration of submissions then made:

     O R D E R

     IT IS ORDERED THAT:

1.      The plaintiffs' actions as set out by the statement of claim in this action and by the amended amended statement of claim in Court action T-2954-93 shall be consolidated by further amendment of the statement of claim in action T-2954-93 to incorporate the specific cause and the particular relief claimed in this action, T-61-99, which further amendment shall be filed on or before December 15, 1999.

2.      The statement of claim in this action, T-61-99, shall be struck out effective upon the date that the further amendment of the statement of claim in T-2954-93 is filed in accord with paragraph 1.

3.      The defendant may file a defence in action T-2954-93 within 45 days after the further amendment of the statement of claim is filed in accord with paragraph 1.

4.      Costs shall be in the cause.

                                     (signed) W. Andrew MacKay

    

                                         JUDGE

                                

    

     Date: 19991026

     Docket: T-57-99

OTTAWA, Ontario, this 26th day of October, 1999.

PRESENT:      THE HONOURABLE MR. JUSTICE MacKAY

BETWEEN:     

     THE LOUIS BULL BAND and CHIEF HELEN BULL,

HENRY RAINE, NORMAND DESCHAMPS,

SIMON THREEFINGERS, SOLOMON BULL,

THERESA BULL, TERENCE RAIN, ELAINE ROASTING and

JOSEPH DESCHAMPS, the Chief and Councillors

of the Louis Bull Band suing on their own behalf

and on behalf of all other members of the

Louis Bull Band

         Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

IN RIGHT OF CANADA

         Defendant

     UPON motion by the defendant for Orders:

a)      striking out the statement of claim in this action, or

b)      staying the proceedings, or

c)      extending the time to serve and file a defence, or

d)      giving further orders and directions as may be required to ensure expeditious proceedings, and

e)      for solicitor and client costs in any event of the cause to be paid forthwith;

     UPON hearing this application, together with similar applications in Court file T-2953-93 between the same parties, and in Court files T-61-99 and T-2954-93 between The Montana Band et al. and Her Majesty the Queen in Right of Canada, at Ottawa, on June 4, 1999, when decision was reserved, and upon consideration of submissions then made:

     O R D E R

     IT IS ORDERED THAT:

1.      The plaintiffs' actions as set out by the statement of claim in this action and by the amended amended statement of claim in Court action T-2953-93 shall be consolidated by further amendment of the statement of claim in action T-2953-93 to incorporate the specific cause and the particular relief claimed in this action, T-57-99, which further amendment shall be filed on or before December 15, 1999.

2.      The statement of claim in this action, T-57-99, shall be struck out effective upon the date that the further amendment of the statement of claim in T-2953-93 is filed in accord with paragraph 1.

3.      The defendant may file a defence in action T-2953-93 within 45 days after the further amendment of the statement of claim is filed in accord with paragraph 1.

4.      Costs shall be in the cause.

                                     (signed) W. Andrew MacKay

    

                                         JUDGE

Date: 19991026

Dockets: T-2954-93

T-2953-93

T-61-99

T-57-99

     Docket: T-2954-93

BETWEEN:

THE MONTANA BAND AND CHIEF LEO CATTLEMAN,

LAWRENCE STANDING-ON-THE-ROAD,

CARL RABBIT, REMA RABBIT, EUNICE LOUIS,

     the Chief and Councillors of the Montana Band

suing on their own behalf and on behalf of

all the other members of the Montana Band

     Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF CANADA

     Defendant

     Docket: T-2953-93

AND BETWEEN:

THE LOUIS BULL BAND AND CHIEF HERMAN ROASTING,

HENRY RAINE, JONATHAN BULL, THERESA BULL,

CLYDE ROASTING, DONNA TWINS, WINNIE BULL,

SOLOMON BULL, GEORGE DESCHAMPS, the Chief and

Councillors of the Louis Bull Band suing on

their own behalf and on behalf of all other

members of the Louis Bull Band

     Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF CANADA

     Defendant

     Docket: T-61-99

AND BETWEEN:

THE MONTANA BAND and CHIEF LEO CATTLEMAN,

REMA RABBIT, DARRELL STRONGMAN,

CARL RABBIT and COADY RABBIT, the Chief

and Councillors of the Montana Band suing on their

behalf and on behalf of all other members

of the Montana Band

     Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF CANADA

     Defendant

     Docket: T-57-99

AND BETWEEN:

THE LOUIS BULL BAND and CHIEF HELEN BULL,

HENRY RAINE, NORMAN DESCHAMPS,

SIMON THREEFINGERS, SOLOMON BULL,

THERESA BULL, TERENCE RAIN, ELAINE ROASTING and

JOSEPH DESCHAMPS, the Chief and Councillors

of the Louis Bull Band suing on their own behalf

and on behalf of all the other members of the

Louis Bull Band

     Plaintiffs

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF CANADA

     Defendant

     REASONS FOR ORDERS

MacKAY J.

[1]      These Reasons concern the disposition of applications to strike statements of claim, or to stay proceedings, or to extend the time for the defendant to serve and file its defence in relation to four statements of claim, two of them filed by the Louis Bull Band and designated members of the Band and two of them filed by the Montana Band and designated members. In all four actions the individual plaintiffs sue on their own behalf and on behalf of all members of the respective Bands.

The background and positions of the parties

[2]      Two of the actions, one filed by each Band in 1993, are essentially similar. So too are the two later actions, one by each Band, filed in 1999. The defendant's motions are based on the perception that the later actions in each case are essentially similar, except for specific relief claimed, to the actions originally filed in 1993 as those are now set out by amended amended statements of claim. I propose to discuss the actions, and the motions, without distinguishing between the plaintiff Bands in any detail, though I note that the 1993 actions in each case relate in part to Pigeon Lake Reserve No. 138A in which both Bands share interests, and also in part to different reserve lands held by each of the Bands. All of the Reserve lands are in Alberta.

[3]      The two Bands share interests with two other Bands in the Pigeon Lake Reserve. Those other two Bands, the Samson Band and the Ermineskin Band, earlier commenced actions against Her Majesty the Queen, in 1989 (T-2022-89) and in 1992 (T-1254-92) respectively, which actions raise issues that are generally similar to those raised in the 1993 actions as originally commenced by the plaintiff Bands now before the Court. The files in those 1993 actions remained essentially dormant, upon an understanding reached by counsel that defences would not then be filed since the actions as originally framed reflected similar versions of fact and issues to those raised in the Samson and Ermineskin actions, which were expected to be ready for trial before the plaintiff Bands' 1993 actions.

[4]      In January 1999 the plaintiffs herein, the Louis Bull and the Montana Bands, each served the defendant with a statement of claim filed in the Court in files T-57-99 and T-61-99, by the Louis Bull and Montana Bands respectively. In these statements of claim each of the Bands seeks declarations and damages in relation to moneys paid or credited as royalties or revenues earned from oil and gas production from the Pigeon Lake Reserve, in which each of the Bands claims it is entitled to 25% of the total royalties and revenues held or paid by the defendant for or to the four Bands entitled to share in those royalties. In the past those funds have been credited or paid to each of the four Bands on a basis reflecting the share of each in the total population of the four Bands, a basis described as "per capita distribution".

[5]      In February 1999 the plaintiff Bands filed amended statements of claim in their 1993 actions and subsequently on March 20, 1999 each served Her Majesty with and filed an amended amended statement of claim in their original files, T-2953-93 (Louis Bull Band) and T-2954-93 (Montana Band). In these Reasons when reference is made to the 1993 actions, the Amended Amended Statements of Claim are included as the pleadings concerned unless otherwise indicated.

[6]      By the 1993 actions as now amended each Band claims that it is entitled to 25% of all damages suffered by reason of the defendant's breach of trust, fiduciary and equitable obligations owed to the plaintiffs in relation to the Pigeon Lake Reserve and that each is entitled to 25% of all profits, recoveries, royalties, etc., which were derived or which should have been earned or derived by Her Majesty from the management of, and the production of oil and gas resources from the shared Reserve, as well as damages arising from alleged mismanagement of other reserve lands and their resources, and the royalties of each Band, and further damages are claimed in respect of programs and services said to have been withheld improperly from the plaintiff Bands.

[7]      The relief now sought by Her Majesty by a similar motion in each of the 1993 actions and the 1999 actions, is that the statement of claim be struck out (in whole or in part in the case of the 1993 actions), or that the proceedings be stayed, or if the action is to continue that the time be extended for the defendant to serve and file its defence.

[8]      The Crown contends that the statement of claim in each of the 1999 actions is essentially the same as the amended amended statement of claim now filed in the 1993 actions. The only difference of any significance, it is said, is that the relief claimed in the later action is not set out specifically in the prayer for relief in the 1993 actions. It is submitted, however, by the Crown that the terms of general prayers for relief in those actions, for "such further and other relief as is justified by the facts alleged or as may be granted by this Honourable Court", are broad enough to include the relief sought in the 1999 actions. Even if that is not conceded, the Crown urges that the relief sought in the 1999 action could be claimed within the 1993 action, and it ought not to be pursued by a separate action.

[9]      The plaintiff Bands claim that the 1993 actions are different from the 1999 actions in their respective claims and in the relief sought. They also say that joining them, which the applicant/defendant does not propose by its motions, would be unfair because the 1993 actions require adjudication concerning numerous issues that are extraneous to the 1999 actions. They suggest that the 1999 actions may proceed relatively expeditiously, and that it would be in the interests of justice to do so, even if, in the result, findings in those actions, should they be tried first, are to become the basis for motions by the defendant to apply the doctrine of res judicata or of issue estoppel so far as the issues determined are similar to those in the 1993 actions.

[10]      The plaintiff Bands respond to that perception in their written submissions (in the case of the Montana Band, for example,) as follows:

16.      Whereas action No. T-2954-93 seeks 25% of all damages and losses arising out of the Crown's improper negotiation and imposition of the Leases and subsequent mismanagement of the Royalty Trust Funds, action No. T-61-99 claims damages equal to a one-quarter (25%) share of the Royalty Trust Funds already paid out and yet to be paid out by the Crown to the four (4) Bands having a beneficial interest in the Pigeon Lake Reserve.

17.      In other words, action No. T-2954-93 seeks 25% of all damages which may be awarded by a Court relating to the manner in which monies were derived from the Pigeon Lake Reserve and flowed into the Consolidated Revenue Fund and the manner in which those trust monies were managed once in the said Fund (that is, 25% of those amounts which the four Bands have not earned or been credited or paid, because of the Crown's negligence and breach of trust). Action No. T-61-99, on the other hand, seeks damages equal to 25% of all monies already paid out and to be paid out in the future from the said Fund (that is, 25% of those amounts which have already been earned, paid or credited, or will be earned, paid or credited to the four Bands). In view of the foregoing, it is the Respondents' submission that the two actions are not the same.

[11]      The defendant submits that the plaintiffs have filed multiple actions which concern essentially the same facts and raise essentially similar issues, and the two actions merely seek different forms of relief. The relief claimed in the 1999 actions, it is said, could have been sought and could still be sought within the 1993 action. Thus, it is urged the Court should strike the statements of claim in the 1999 actions, or stay those actions. It is urged that filing two actions to deal with essentially the same issues of fact for relief that could be available within one action, is scandalous, frivolous or vexatious, or is an abuse of the process of the Court within Rule 221(1)(c) and (f) of the Federal Court Rules, 1998.

[12]      The Crown puts forth its motions as alternatives so that the motions to be considered are those concerning whichever of the actions is considered the later filed. Thus, if the 1999 actions are considered the later ones, the motions to be dealt with are those that would strike or stay those actions. If the 1993 actions as amended in March 1999 are considered to be filed later because the latest amendments were filed after the 1999 actions were commenced, then the motions to be considered are those to strike or stay the 1993 actions. In my view, with no defence filed in any of the actions, the amendments to the 1993 actions may be deemed, for purposes of the motions now before the Court, to relate back to the original date of filing and the 1999 actions are the later proceedings. Thus, I propose to deal primarily with the motions to strike or stay the 1999 actions.

[13]      I propose to review briefly the jurisprudence relied upon by each of the parties and then to compare the statements of claim in the 1999 action with the amended amended statements of claim in the 1993 actions, before setting out my resolution of the matter. In comparing the statements of claim, I consider, as counsel did when the matter was heard, the statements of claim filed in the two actions by the Montana Band, which are in essence similar to those filed in the actions by the Louis Bull Band, except for the difference in separate reserve lands referred to in the 1993 actions.

Jurisprudence relied upon by the parties

[14]      The Crown relies upon Edmonton Northlands v. Edmonton Oilers Hockey Corp. (1993), 15 Alta L.R. (3d) 179 (Q.B.) and upon Great Pacific Contracting Ltd. et al. v. Harwyn Properties et al. (1981), 29 B.C.L.R. 145, 21 C.P.C. 280 (S.C.), in both of which a second proceeding was struck as an abuse of process where it sought relief similar to that claimed in an earlier proceeding which raised the same issues and which was still pending. In the former case Chief Justice Moore commented (at para. 26-28, pages 185, 186):

The courts of Alberta generally recognize a rule against multiple prosecution. It is trite law that commencing a second action while one is currently pending is an abuse of process. ...

Since the same relief can be obtained in the first action, Northlands is not entitled to bring a second action while the first is still pending: ...

In my view, the second action must be set aside...

In the Great Pacific Contracting Ltd. case Mr. Justice Spencer struck out a statement of claim seeking cancellation of an agreement of sale of certain property where similar relief was claimed in an application already pending before the Court in relation to the same circumstances and the same property.

[15]      Neither of these cases deals with the circumstances here raised by the plaintiff Bands' two actions where the statements of claim are said to raise different causes of action in the sense of different allegations of breach of particular duties owed by the defendant to the plaintiffs, and different relief related to those causes of action. In two other cases relied upon by the Crown a second action was struck, though it was said to be for different forms of relief from that claimed in a pending proceeding dealing with the same cause of action. Both cases, in my opinion, are distinguishable on factual grounds and each concerns particular circumstances that are not relevant here. Thus, in Earl Poulett v. Viscount Hill, [1992] 1 Ch. 279 (C.A.), a second action seeking interest for the period following default on a mortgage was held to be improperly commenced since the remedy sought, the payment of interest, could be addressed in the original action, still pending, for foreclosure of the mortgage. In Paterson v. Jaikumar and Munroz (1979), 10 B.C.L.R. 48 (S.C.), a second action for damages, commenced while an earlier action was still outstanding for the same remedy of the same alleged wrong, was struck out where the second action was said to be initiated in order to elect trial by a jury, an election not made in the first action within the time limited by the Court's Rules.

[16]      The Crown relies as well on cases concerning res judicata or issue estoppel where a second action was commenced in relation to matters already dealt with by judicial decision. In dealing with such a circumstance in Grant et al. v. Canada (Minister of Indian and Northern Affairs) et al. (1990), 31 F.T.R. 31, Mr. Justice Joyal stated (at p. 47):

...parties are expected to bring forward their whole case and should not be allowed, except in special circumstances, to perpetuate the dispute by discovering new grounds for action. As Lord Shaw stated [in Hoystead et al. v. Federal Commissioner of Taxation (1921), 29 C.L.R. 537], if this were permitted, litigation would have no end except where legal ingenuity is exhausted.

...whether or not a case falls into the complex issue of res judicata or issue estoppel with all of its historical refinements, it should not be allowed to proceed, if to do so would constitute an abuse of process.

[citation added in quotation]

Of course, the doctrines of res judicata and of issue estoppel have no application in the circumstances here. Yet it may be that the underlying principles of those doctrines have persuasive value, to require determination of all issues arising in a cause of action between the same parties to be made once and for all, thus avoiding the duplication of proceedings, any unnecessary use of judicial resources, and the possibility of conflicting decisions.

[17]      For the plaintiffs, it is urged there is a heavy burden on the party seeking to strike pleadings or to stay an action at this stage. Here no evidence is adduced by affidavit in support of the Crown's motions in an effort to meet that burden. I am not persuaded that affidavit evidence is necessary or helpful where the motion and the submissions made concern the pleadings themselves, already in the Court file. It is the statements of claim themselves which here give rise to the Crown's submissions and which provide the basis for argument.

[18]      It is urged for the plaintiffs that the 1993 and 1999 actions as framed by the statements of claim are different, that they concern different causes of action, that is, different breaches of duty alleged to have been committed by Her Majesty's servants, and different relief for the wrongs that are said to be distinct. Where there are such differences it is urged the Court should not strike out the statement of claim, or stay the action. The second action here, it is urged, is not an abuse of process, and is not frivolous or vexatious. The plaintiffs refer to Waterside Ocean Navigation Company Inc. v. International Navigation Ltd. et al., [1977] 2 F.C. 257 (T.D.), a case concerned with an application to strike, and Renaud Cointreau & Cie et al. v. Cordon Bleu International Ltée. (1991), 34 C.P.R. (3d) 554 (F.C.T.D.), and Chevron Canada Resources v. Canada (Exec. Dir. of Indian Oil & Gas), [1998] A.J. No. 1202 (Alta. Q.B.) (QL). In these cases where two actions shared the same factual base and raised generally similar issues but sought different relief, the courts concerned did not strike out the later action. I note that among those cases, both Waterside Ocean Navigation and Chevron concern situations where two proceedings were initiated in different courts, each raising claims said to be different and seeking somewhat different relief, circumstances different from the situation in the actions now before this Court.

[19]      As for an application to stay proceedings, the plaintiffs rely on Renaud Cointreau and upon Varnam v. Canada (Minister of Health and Welfare), [1987] F.C.J. No. 511 (T.D.) (QL) in urging that only in the clearest of cases should a stay be granted. The test, it is suggested is that the applicant must satisfy the Court that continuance of the action would work an injustice because it would be oppressive or would be vexatious or an abuse of process, and further that a stay would cause no injustice to the other party. Here it is urged a stay would unnecessarily delay resolution of a discrete issue and provision of appropriate relief, and that delay would be an injustice to the plaintiffs.

[20]      In my opinion none of the jurisprudence cited by the parties deals directly with the circumstances raised by the plaintiffs' pleadings in the two actions in this case.

Comparing the statements of claim

[21]      When one compares the amended amended statements of claim of the 1993 actions with the statements of claim of the 1999 actions it is notable that of the 47 paragraphs of the former, some 38 are identical or virtually identical to 38 of the 39 paragraphs in the 1999 statements. The one paragraph of the 1999 statements that is different from paragraphs of the 1993 statements as now amended is the first paragraph setting out the claims for relief. Those claims for relief, in the 1999 statements, did appear, at least in essence, in an earlier amended statement of claim filed in February 1999 in relation to the 1993 actions, but those claims have now been deleted from the comparable paragraph in the 1993 amended amended statement. It may be inferred that at an earlier stage the plaintiffs contemplated claiming the relief now set out in the separate 1999 actions, which concern credits or payments to them of royalty trust moneys, among the broader range of claims raised and relief sought in the 1993 actions.

[22]      The plaintiffs urge that there is significant difference between the 1993 and 1999 actions because of those paragraphs of the 1993 amended amended statements of claim which have no counterparts in the 1999 statements. These differences include, in the 1993 statements, detailed allegations of failures by the defendant, to meet Her trust, fiduciary, equitable, statutory, treaty or sui generis obligations to the plaintiffs, concerning: the management of the reserve lands and the resources of those lands, on behalf of the plaintiffs (paragraph 32); the receipt by the defendant of "Royalty trust moneys" from leases for exploitation of the resources, the management of those moneys held in the Consolidated Revenue Fund ("C.R.F."), and allocated in the case of moneys from the Pigeon Lake Reserve on a per capita basis to the credit of the four interested Bands, including the plaintiff Bands (paragraphs 35, 36 37); alleged breaches of duties generally (paragraph 38); negligent management of moneys held within the C.R.F. (paragraph 40); and finally, the funding of programs and services provided to the Bands (paragraphs 43 to 45). The plaintiffs claim 25 per cent of the total damages found to arise from the failings by Her Majesty to meet obligations owed to the plaintiffs.

[23]      The claimed relief in the 1999 actions are a declaration that the defendant has breached trust, fiduciary and equitable obligations in failing to pay or credit royalty payments in one quarter equal shares to the four Bands entitled, in failing to inform the plaintiffs of their rights to a one-quarter equal share of Royalty Trust funds, in failing to obtain informed consent of plaintiffs before paying or crediting royalty trust funds to the plaintiffs and the other interested Bands, and in paying or crediting those funds to the plaintiff Bands and the other interested Bands on a per capita basis. The plaintiffs also seek a declaration they are entitled to recover special and general damages, an order for tracing and recovery of all trust assets of the plaintiffs, and an accounting for all royalty trust funds to which the plaintiffs are entitled pursuant to distribution of one-quarter to them and to the other Bands interested, and an order for payment to plaintiffs of the amount due on the accounting, with pre and post-judgment interest, and costs.

[24]      As I read the statements of claim there are differences between the actions. The 1993 actions are substantially broader in scope than the 1999 actions, with more allegations of particular wrongdoing and resulting relief claimed. Because of those differences, trial of the 1993 actions can be expected to require substantially more time than trial of the 1999 actions which concern essentially the payment out of the C.R.F., or allocation within it, of "Royalty Trust moneys" to the plaintiffs and the other Bands entitled, and the basis for that payment or allocation.

[25]      Despite the differences between the 1993 and 1999 statements of claim, which the plaintiffs emphasize, the substantial number of identical or virtually identical paragraphs in both reflect the reality that the underlying bases of both actions, the factual background and the legal principles that apply to define the relationship between the plaintiff Bands and the Crown are the same. The relief claimed in both actions depends upon the perception, and ultimately the establishment by evidence and argument, of duties owed by Her Majesty to the plaintiffs, whether arising from the law of trusts, of fiduciary relationships, from treaties or from statutes, or from the sui generis relationship of the parties, as well as the establishment by evidence of breach of the duties established.

[26]      It is difficult to foresee how either of the actions could be decided without determination of the underlying issues. While the 1999 action is comparatively narrow in its scope, both actions seek damages in addition to declaratory relief, and for all of the claims in both actions the underlying relationship of the parties, any obligations arising from that, and appropriate relief for any failure to meet responsibilities, will need to be determined. Determination in one action of those issues, except for the specific claims of failure and resulting relief set out, in all likelihood will provide grounds for considering the application of the doctrine of res judicata in relation to similar issues raised in the other action.

Conclusions

[27]      The two statements of claim, i.e., in the 1993 and the 1999 actions, do set out distinct claims and seek different relief. Yet those claims and the relief sought in the two actions are based upon the same factual and evidentiary base, the same transactions or occurrences for the legal relationship between the parties. That is apparent from the fact that nearly all, some 38 of 39, of the paragraphs in the 1999 statement of claim are identical or virtually identical to paragraphs in the 1993 statements. The relationship of the parties is the key to the claims and the relief sought in both actions, whether the claims relate to the management of the Reserve lands and the resources in or drawn from those lands, or the receipt, management and payment or crediting of moneys derived from those resources, or in the provision of programs and services.

[28]      I accept the representation of counsel for the Crown that the motions to strike or stay are not intended to foreclose the opportunity for the plaintiffs to have any claim heard and determined. I accept the submission of the Crown that the claim and the relief requested in the 1999 statement of claim could be dealt with in the 1993 action. I accept also the representation of counsel for the plaintiff Bands that proceeding as they now propose is intended to permit resolution of the claim raised in the 1999 action without awaiting the completion of evidence in regard to the wider range of issues included in the 1993 actions. Finally, I accept as well that within broad limits a plaintiff is at liberty to pursue claims within the Court's jurisdiction as the plaintiff sees fit.

[29]      Those broad limits include the authority of the Court under its Rules and within its inherent jurisdiction to control its own process, to order proceedings that will ensure the expeditious and least expensive disposition of claims consistent with ensuring justice to the parties.

[30]      The orders that the Crown seeks by its motions, to strike one or other of the statements of claim or in the alternative to stay one or other of the actions, are some of the means at the Court's disposal to limit proceedings as initiated by a plaintiff, but only in an appropriate case. Here, since each of the statements of claim raises arguable claims, which differ, in my opinion it cannot be said that either statement, considered by itself, is vexatious or scandalous or that it is an abuse of process. Further, it cannot be said that a stay should now be ordered in relation to either action, considered by itself, for neither is far advanced or likely, at this stage, to impede progress with the other. It is only in the initiation of the two actions, so similar in their factual allegations upon which relief is sought, that the combined processes raise the issue of possible abuse of process, because if both actions were to proceed, the same evidentiary base, in this case probably involving a very substantial collection of documents, would be required to be established.

[31]      In my opinion, this is a situation that warrants an Order by the Court, on its own initiative, even in the absence of a specific motion by a party that the two proceedings, the 1993 action and the 1999 action, be consolidated pursuant to Rule 105, with the specific claims of the 1999 action and the relief there sought included by further amendment to the 1993 statement of claim.

[32]      Consolidation of the two actions as here proposed would preserve all of the plaintiffs' claims, and the forms of relief they seek. It is not intended to prejudice the plaintiffs' desire to have the relief claimed in the 1999 action dealt with as quickly as possible, without awaiting evidence and trial of all other issues included in the 1993 action as currently framed for under the Court's Rule 106 the Court may order that one or more claims raised in a single proceeding be pursued separately where the hearing of two or more claims in a single proceeding would cause undue complication or delay or would prejudice a party. Clearly, at an appropriate time the plaintiffs may propose trial of an issue for which the evidentiary base is laid. It is clear also that the Court, of its own motion, "may, at any time, order the trial of an issue or that issues in a proceeding be determined separately", pursuant to Rule 107. In another form of proceedings, where the facts may be agreed upon, the parties may state a case for determination by the Court in advance or in lieu of trial, pursuant to Rule 220. That process may apply to some or all of the issues arising in an action.

[33]      There appears a dearth of reported cases where courts have moved of their own initiative to consolidate actions. In John E. Canning Ltd. v. Tripap Inc., [1999] F.C.J. No. 71, (T.D.) (QL), Mr. Justice Lemieux, in dismissing an application for consolidation of actions, commented (at paras. 26-27):

Consolidation of two actions will usually be ordered when the issues raised by the pleadings in the action are sufficiently familiar or common so as to achieve the objectives of consolidation namely: the general interest of justice, its proper administration and the true interests of the parties.

The underlying policy objectives in consolidation is the avoidance of a multiplicity of proceedings and the promotion of expeditious and inexpensive determination of those proceedings. Common parties, common legal and factual issues, similar causes of action, parallel evidence and the outcome of one case as likely resolving the other case are the factors which the Court looks to in determining whether consolidation will be ordered or not...

[34]      In that case, Lemieux J. declined to order consolidation, for he found that the two actions there concerned different contracts arising from the same general circumstances, different parties to the two actions, and there was no substantive commonality of legal and factual issues in the two actions. That cannot be said of the circumstances in the matter before this Court. Nor is there here any concern arising from the relative states of readiness for trial in the two actions, which may be a factor in finding likely prejudice to one party that would weigh against consolidation: see Mon-Oil Ltd. v. Canada (1989), 27 F.T.R. 50; Apotex Inc. and Novopharm Ltd. v. Wellcome Foundation Ltd. (1993), 69 F.T.R. 178.

[35]      In my opinion, the circumstances here warrant an order that the actions be consolidated. That will avoid a multiplicity of proceedings and promote the more expeditious and less expensive process than separate actions for determination of the matters at issue between the parties. In the two actions as now framed the parties are common, the legal and factual issues upon which the plaintiffs' claims are based are substantially common, much of the evidence in the two actions will be common or similar, and the differences in relief claimed concern specific causes flowing from one basic set of circumstances.

[36]      Thus, to facilitate expeditious proceedings an Order goes directing consolidation of the two actions by providing that the plaintiffs further amend the statement of claim in the 1993 action to incorporate the claims and the relief sought in the 1999 action. That amendment should be filed on or before December 15, 1999.

[37]      In consequence of the direction to consolidate the actions, the Order also provides for an extension of time, to 45 days after filing of a further amended statement of claim, for the defendant to file her statement of defence, and that the 1999 statement of claim be struck out effective upon the date of filing of the plaintiffs' further amended statement of claim.

[38]      Both parties asked for costs and in their respective memoranda of fact and law each requests costs on a solicitor and client basis. There is no ground for an award of costs on that scale and in the circumstances here, it seems to me appropriate that costs be in the cause.

[39]      A copy of these Reasons shall be filed on each of Court files T-2954-93, T-2953-93, T-61-99 and T-57-99 with a separate Order, in response to the Crown's motion, in each file.

                                     (signed) W. Andrew MacKay

    

                                         JUDGE

OTTAWA, Ontario

October 26, 1999.