Date: 19971114
Docket: T-1529-95
BETWEEN:
ALINE ELIZABETH HUZAR, JUNE MARTHA KOLOSKY,
WILLIAM BARTHOLOMEW McGILLIVRAY, MARGARET
HAZEL ANNE BLAIR, CLARA HEBERT, JOHN EDWARD
JOSEPH McGILLIVRAY, MAURICE STONEY, ALLAN
AUSTIN McDONALD, LORNA JEAN ELIZABETH McREE,
FRANCES MARY TEES, BARBARA VIOLET MILLER
(NEE McDONALD),
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
DEPARTMENT OF INDIAN AND NORTHERN AFFAIRS
CANADA, and WALTER PATRICK TWINN, as Chief
of the Sawridge Indian Band and the SAWRIDGE
INDIAN BAND,
Defendants.
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MR. JOHN A. HARGRAVE, PROTHONOTARY |
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[1] These reasons arise out of an application on behalf of the defendants, Walter Patrick Twinn, Chief of the Sawridge Indian Band and the Sawridge Indian Band (the "Sawridge Band" and together referred to as the "Sawridge Defendants") to strike out all of the Statement of Claim or alternatively, part of the Statement of Claim and a portion of the reply to a demand for particulars, or in the further alternative, for further and better particulars, together with an extension of time within which to file a defence. |
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[2] The motion is denied, for the reasons which follow, except as to paragraph 34 of the Statement of Claim, which is struck out with leave to amend and as to a 30 day extension, following service of an amended Statement of Claim, within which to file a defence. I now turn to some pertinent background material. |
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[3] The plaintiffs are Treaty Indians by virtue of the Indian Act (the "Act"), R.S.C. 1985 c. I-5, as amended. The plaintiffs' forbearers are said to have been either members of the Sawridge Band or duly constituted Sawridge Band members by adhesion to Treaty No. 8, a treaty signed by a group of Indians, known as the Treaty 8 Group, the Group including the Sawridge Band. The late Walter Twinn, Chief of the Sawridge Band, was cross-examined on his affidavit in support of this motion: he admitted that all of the plaintiffs had an affiliation with the Sawridge Band "through their parents" (p. 98). On the basis of band membership the plaintiffs' forbearers had such rights and benefits as would, in the normal course of events, accompany band membership, including land allocation, educational programmes, agriculture and economic incentives and an interest in the assets of the Sawridge Band: the plaintiffs would like to be in a similar position. |
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[4] The plaintiffs point out, in their Statement of Claim, that members of Indian bands might at one time lose membership in their band by reason of provisions contained in the Act, but that the possibility of such a unilateral loss of membership, referred to by the plaintiffs as a discriminatory loss, was abolished by amendments to the Act in 1985. The amendments are referred to in the Statement of Claim, including in paragraph 19, where the plaintiffs set out their understanding of the effect of five new sections of the Act, which are now Sections 8 through 12 of the Act.
[5] The plaintiffs, who wish a declaration of entitlement to membership in the Sawridge Band, plead that the effect of the 1985 amendments to the Act is that persons whose names were omitted or deleted from band membership and indeed, a number of additional persons, are entitled to have their names entered in the relevant Band List maintained by the Department of Indian Affairs and Northern Development ("DIAND"). Moreover, the plaintiffs say that while an Indian band may control its membership pursuant to the Act, there are limits to this control, which do not justify the Sawridge Band excluding the plaintiffs from band membership.
[6] While the plaintiffs all hold status cards issued by DIAND, pursuant to the 1985 amendments to the Act, identifying them as members of the Sawridge Band, the Sawridge Band has refused to reinstate them.
[7] The Sawridge Band is wealthy. As a result since 1985 there have been, according to the Sawridge Band, "hundreds" of applications for membership (p. 89 of the cross-examination of Walter Twinn) and "more than two hundred" (ibid p. 39). None of the applications have been put forward to the Sawridge Band membership for approval (ibid p. 42). Indeed, the Chief and Sawridge Band Council have never read any of the completed 42 page Sawridge Band membership application questionnaires received from applicants for band membership (ibid, p. 68). Since 1985 there have only been two individuals accepted into band membership, both sisters of the Chief, Walter Twinn.
[8] It is against this background that the plaintiffs seek band membership. Their claim is set out in detail in a moderately lengthy, but quite readable Statement of Claim, filed 20 July 1995.
[9] On 22 September 1995 the defendants, Walter Twinn and the Sawridge Band, served a 12 point demand for particulars. The plaintiffs responded, 4 March 1996, with a detailed reply to the demand for particulars: one might even say an overly detailed response which, if read with the Statement of Claim, would seem to leave nothing to speculation, at least so far as particulars required for pleading are concerned.
[10] On 2 May 1996 the Sawridge Defendants requested further particulars. Reading the Statement of Claim, the demand for particulars, the reply and the further request for particulars, one is hard pressed to see what else might be required or even available which could assist the Sawridge Defendants in filing a defence. Indeed, Walter Twinn, in his affidavit in support of this motion, fails to offer any explanation at to why further particulars are required in order to prepare a defence.
[11] The present motion was filed on 23 May 1997, to be heard 20 August 1997. The motion referred to Mr. Twinn's affidavit in support, however the affidavit was not sworn until 13 August 1997. It was served on counsel for the plaintiffs at the last minute. As a result the motion was adjourned to allow plaintiffs' counsel to assimilate the affidavit and, as it turned out, to cross-examine on the affidavit. The matter finally came on for hearing 22 October 1997.
ANALYSIS:
Some Applicable Principles
[12] The Sawridge Defendants first seek to have the whole of the Statement of Claim struck out, either as disclosing no reasonable cause of action under Rule 419(1)(a) or as being scandalous, frivolous or vexatious (Rule 419(1)(c)).
[13] A motion to strike out under Rule 419 places a heavy onus on the applicant. In the case of an allegation of want of a reasonable cause of action, I must accept the Statement of Claim as if the facts had been proven, unless the facts are patently unreasonable. No affidavit evidence is permitted, when testing for a reasonable cause of action, except where there is a jurisdictional issue. It must be plainly, obviously and beyond doubt that a pleading is futile and will not succeed before it will be struck out. When it is alleged that an action is scandalous, frivolous or vexatious, under Rule 419(1)(c) the test is as stringent as or even more stringent than that under Rule 419(1)(a): Waterside Ocean Navigation Co. v. International Navigation Ltd. [1977] 2 F.C. 257 at 259. A court will not deny a party a day in court if there is any chance of the claim succeeding. If a claim might possibly succeed it ought to be allowed to proceed. Alternately, if the claim might succeed if the statement of claim were amended, an amendment should be allowed: to deny an amendment there must be no scintilla of a cause of action.
[14] When there are contentious or serious issues of law, disputed points of law, or uncertain points of law, they ought not be determined on a summary motion to strike out, but rather left for a decision at trial when all the facts are known: Manitoba Fisheries Ltd. v. The Queen [1976] 1 F.C. 8 at 18; Vulcan Equipment Co. Ltd. v. Coats Co. Inc. (1981) 58 C.P.R. (2d) 47 at 48 (Fed. C.A.), leave to appeal to the Supreme Court of Canada refused (1982), 63 C.P.R. (2d) 261 and The Queen v. Amway of Canada Ltd. (1986) 2 F.C. 312 at 326, affirmed [1986] 2 C.T.C. 339 at 340.
[15] The final relevant point of procedure is that a court will not strike out statements that are merely surplus, provided no prejudice flows from them: Belanger Inc. v. Keglonada Investments Ltd. (1986) 1 F.T.R. 238 at 241; Pater International Automotive Franchising Inc. v. Mister Mechanic Inc. [1990] 1 F.C. 237 at 243; and Copperhead Brewing Co. v. John Labatt Ltd. (1995) 61 C.P.R. (3d) 317 at 322 (F.C.T.D.).
Striking Out the Statement of Claim
[16] Counsel for the Sawridge Band referred to s.10 of the Act and particularly the ability of an Indian band to elect to control its own membership. This submission left unanswered the question of whether the Sawridge Band had in fact assumed control for it would seem that, other than for two nepotistic inductions, the Band has not in fact provided any real mechanism or procedure for either making or reviewing decisions on membership.
[17] Counsel also referred to Sections 6 and 11 of the Act, giving his interpretation of those Sections. He submitted that the Statement of Claim set out no facts that would allow any of the plaintiffs to meet the requirements in the Act and which might lead to membership in the Sawridge Band. Here I would note that band membership rules may not deprive a person, with pre-existing rights of membership under the Act, from becoming a member.
[18] Rather than set out my own interpretation of the effect of the 1985 amendments to the Act on the rights of a person to rejoin a forebear's band, I would refer to the gloss given to the pertinent portions of the amended Act by the Federal Court of Appeal in Twinn v. The Queen, A-779-95 and A-807-95, an unreported decision of 3 June, 1997:
| "This appeal involves an action commenced in 1986 for declarations that certain sections of the Indian Act are invalid. These sections were added by an amendment in 1985. Briefly put, this legislation, while conferring on Indian bands the right to control their own band lists, obliged bands to include in their membership certain persons who became entitled to Indian status by virtue of the 1985 legislation. Such persons included: women who had become disentitled to Indian status through marriage to non-Indian men and the children of such women; those who had lost status because their mother and paternal grandmother were non-Indian and had gained Indian status through marriage to an Indian; and those who had lost status on the basis that they were illegitimate offspring of an Indian woman and a non-Indian man. Bands assuming control of their band lists would be obliged to accept all these people as members. Such bands would also be allowed, if they chose, to accept certain other categories of persons previously excluded from Indian status.". (p. 2) |
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Pertinent in the present instance is the concept that the children of women, who had lost status through marriage to a non-Indian man, might regain status under the 1985 amendments. Indeed, in Walter Twinn's own words, on cross-examination, each of the plaintiffs has an affiliation "through their parents".
[19] On my reading of the Statement of Claim each of the plaintiffs, a status Indian identified by DIAND as a member of the Sawridge Band, is either the son or the daughter of a parent who was a Sawridge Band member at one time and is the grandchild of a Sawridge Band member or members. These facts are not patently unreasonable and therefore I must accept them, for the purposes of this motion, as proven. These facts fall within the view of the Court of Appeal in Twinn v. The Queen (supra) as to those who became entitled to become members of a band by reason of the 1985 amendments to the Act. The defendants have not made their case that the action is plainly, obviously and beyond doubt a futile proceeding.
[20] Once a reasonable cause of action has been established it often becomes difficult for a defendant to then go on to establish the action as one which is scandalous, frivolous or vexatious. In this instance, having found a reasonable cause of action on the pleaded facts and not being disabused of the real possibility that the plaintiffs may in due course establish these facts through evidence, I am unwilling to find the action one which should be struck out as scandalous, frivolous or vexatious and as a result futile.
Striking Out Portions of the Statement of Claim
[21] The defendants' submissions as to striking out the Statement of Claim do not end here. The defendants submit, as an alternative, that paragraphs 11 through 18, 25, 26, 29, 30, 34 and 37 ought to be struck out under all of the heads contained in Rule 419(1) except Rules 419(1)(a) and (f). On the basis of the defendants' motion and counsel submissions, I will look at these paragraphs of the Statement of Claim to see if, in themselves, they are immaterial or redundant, scandalous, frivolous or vexatious, or are such as may prejudice, embarrass or delay a fair trial of the action: I do not accept that any of the paragraphs which the defendants seek to have struck out constitute a departure from a previous pleading and therefore do not consider further the application of Rule 419(1)(e) to any portions of the Statement of Claim.
[22] Paragraphs 11 through 18 refer to the effect, in the view of the plaintiffs, of the Constitution Act of 1982, and the types of rights possessed by Aboriginal people in 1899, under Treaty No. 8, the Treaty adopted by adhesion by the representatives or predecessors of the Sawridge Band. These paragraphs also touch on the method by which the ancestors and predecessors of the plaintiffs determined membership in the Sawridge Band, and the rights and benefits accruing to the Band and its members by reason of Treaty No. 8. In the more recent past, this portion of the Statement of Claim also deals with loss of membership by way of operation of the Indian Act, before the 1985 amendments and submits that the 1985 amendments to the Act reestablished existing bands as they would have been, but for the termination of band membership by reason of provisions in the earlier versions of the Indian Act. These paragraphs provide background information which helps in establishing the views of the plaintiffs and their claim. The paragraphs or some of them may not be strictly necessary. As such they may be surplus to the Statement of Claim, but as I have pointed out they also have a useful aspect. Merely because they may be surplusage is not a reason to strike them out: see The Belanger, Pater International and Copperhead Brewing cases, supra. Nor am I prepared to pass judgment on what may be contentious but serious issues of law and of the interpretation of the effect of early treaties and of provisions in the earlier versions of the Indian Act: see Manitoba Fisheries Ltd. v. The Queen, Vulcan Equipment Co. Ltd. v. Coats Co. Inc. and The Queen v. Amway of Canada Ltd., supra. Indeed, the proper interpretation of relevant provisions of the legislation involved in this instance would in all probability be better determined at trial where a proper factual basis can be set out: see for example Dumont v. Attorney General of Canada [1990] 4 W.W.R. 127 at 129 (S.C.C.).
[23] Paragraphs 25 and 26 allege that the plaintiffs, by reason of their loss of membership in the Sawridge Band, have lost a number of benefits including those of education, medical care, housing and tax exemption: each of the plaintiffs claims membership in the Sawridge Band and substantial damages for the loss of those benefits and entitlements. The Sawridge Defendants say the Act does not give rise to any rights or entitlements. However the claim is that the plaintiffs, having lost membership in the Sawridge Band and having been denied reinstatement, have suffered economic loss. I do not see this as immaterial or redundant, as scandalous, frivolous or vexatious, or as prejudicial, embarrassing or matters which would delay a fair trial. Indeed, these paragraphs are the crux of the plaintiffs' claim.
[24] In paragraph 29 the plaintiffs claim punitive and exemplary damages. The wording of the paragraph has a somewhat invective tone. But this is not inconsistent with a claim for punitive and exemplary damages. The plaintiffs say that the actions of the Sawridge Defendants have, among other things, been arrogant, high-handed, unwarranted and unjustified. The plaintiffs will have to prove those allegations, but given all of the background paragraph 29 does not go so far as to be scandalous, frivolous, vexatious, prejudicial or embarrassing. Indeed the sort of allegations contained in paragraph 24 appear to be material to the claim for punitive and exemplary damages in this instance. Paragraph 29 will remain in the Statement of Claim.
[25] Paragraph 30 is not directed toward the Sawridge Defendants, but rather against what the plaintiffs view as the discriminatory nature of previous versions of the Indian Act as passed by the Parliament of Canada and as administered by DIAND, all of which the plaintiffs say has resulted in loss to them. It does not impinge directly upon the Sawridge Defendants. It contains allegations basic to the claim of the plaintiffs against the Crown. While to explore this area may lengthen the trial, paragraph 30 is not one which ought to be struck out on the grounds of prejudice, embarrassment, or that it will unduly delay a fair trial of the action.
[26] In paragraph 34 the plaintiffs refer to Section 14 of the Indian Act and then go on to plead that they are entitled to their pro rata share of the interest monies and rents received by the Sawridge Band. Section 14 of the Act refers to the provision, maintenance and posting of Band Lists. I do not see the relevance of the reference to Section 14 in paragraph 34 of the Statement of Claim, although the balance of the paragraph, the claim for a share of interest and rents, certainly follows in the progression of the Statement of Claim. As a result of the reference to Section 14, which seems immaterial, paragraph 34 is struck out. However the plaintiffs may amend should they wish to elaborate and explain the reference to Section 14 and, of course, to include the plea of the plaintiffs' entitlement to a share of interest and rents.
[27] Paragraph 37 of the Statement of Claim alleges that the Sawridge Defendants are committing waste and are dissipating and squandering the assets of the reserve, in which the plaintiffs have a vested interest. It goes on to seek relief of an injunctive nature. Now the bare allegations of waste and of dissipation and squandering of assets, if made without any factual basis, might constitute a vexatious or an embarrassing pleading. However before moving to strike out such a pleading it is reasonable to request particulars and this has been done and reasonable particulars provided. Were I to strike out paragraph 37, leave to amend would certainly be indicated. Given the particulars, which become part of the pleadings, it would be counter-productive to strike out paragraph 37, which shall remain.
Striking Out of Particulars
[28] The defendants seek to have paragraphs 11 and 12 of the Reply to Demand for Particulars struck out. A reply setting out particulars is a pleading (S.C. Johnson & Son Ltd. v. Pic Corp. (1975) 19 C.P.R. (2d) 26 at 28 (F.C.T.D.)) and as such may be struck out.
[29] Paragraph 11 of the particulars provided by the plaintiffs elaborates on the allegations of arrogant and high-handed behaviour by the Sawridge Defendants. Nothing in the affidavit of Walter Twinn, after his cross-examination, casts doubt on these particulars to the extent that they might be struck out under Rule 419(1)(b), (c), (d) or (e) as being particulars which beyond doubt are futile and unable, as a pleading, to succeed. Paragraph 11 will remain.
[30] Paragraph 12 of the particulars provides examples of waste and of the squandering and dissipation of assets. Nothing in the affidavit evidence provided by the Sawridge Defendants bears on this. The particulars do not appear unreasonable. If proven, and assuming the plaintiffs have an interest as Band members, the allegations could well constitute the commission of waste and the dissipation and squandering of Band assets. This is not to say that the allegations will succeed, but I cannot say that they are futile. Paragraph 12 of the particulars will remain.
Further and Better Particulars
[31] The function of particulars is to enable a party to know the nature of the case to be met and to limit the issues to be tried. Particulars prevent a party from being taken by surprise at trial and indeed to gather appropriate evidence in order to be prepared for trial. The leading case, as to particulars generally, is the decision of the Federal Court of Appeal in Gulf Canada Ltd. v. Tug "Mary Mackin" (1984) 52 N.R. 282.
[32] One must keep in mind that particulars required, or granted by court order, for the purpose of pleading, are not nearly as broad as are particulars for trial: see for example IBM Canada Ltd. v. Printech Ribbons Inc. (1994) 77 F.T.R. 147 at 149 (F.C.T.D.). Indeed, as Mr. Justice Marceau (as he then was) pointed out in Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. (1979) 43 C.P.R. (2d) 285 at 286 and 287, particulars at an early stage, that is particulars for pleading, are furnished so that the defendant may understand the plaintiff's position and may reply intelligently to the statement of claim, but that such particulars need not go further:
| "... I wish to point out that, as I understand the law in this regard, a distinction must be made between a request for particulars made prior to the filing of the statement of defence and one made at a later stage of the proceedings. Before trial, after the issues have been defined, a defendant is entitled to be informed of any and every particular which will enable him to properly prepare his case, so that he may not be taken by surprise at the trial. But, before the filing of the defence, the right of a defendant to be furnished particulars is not so broad, since it does not have the same basis and serves a different purpose. A defendant should not be allowed to use a request for particulars as a means to pry into the brief of his opponent with a view to finding out about the scope of the evidence that might be produced against him at trial, nor should he be allowed to use such a request as a means to go on a sort of fishing expedition in order to discover some grounds of defence still unknown to him. At that early stage, a defendant is entitled to be furnished all particulars which will enable him to better understand the position of the plaintiff, see the basis of the case made against him and appreciate the facts on which it is founded so that he may reply intelligently to the statement of claim and state properly the grounds of defence on which he himself relies, but he is not entitled to go any further and require more than that.". |
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[33] Still dealing with applicable general principles, the burden is on the party requesting particulars to show they are necessary. Indeed, particulars will not generally be ordered unless the party requesting them establishes that they are necessary for pleading and not within its knowledge, subject to the pleadings, on their face, appearing inadequate: see for example Windsurfing International Inc. v. Novaction Sports Inc. (1988) 18 C.P.R. (3d) 230 at 237. A party requesting further and better particulars must justify the request by affidavit unless the need is apparent from the record: see for example Flexi-Coil Ltd. v. F.P. Bourgault Industries Air Seeder Division Ltd. (1988) 19 C.P.R. (3d) 125 at 127 - 128 (F.C.T.D.). In the present instance, not only does the affidavit material fail to disclose the need for further particulars, but also it does not disclose whether, by reason of a lack of further particulars, the defendants are not able to plead to the Statement of Claim. These are essential requirements where, as here, there appear to be more than ample particulars already in existence.
[34] The request for further and better particulars might well be disposed of by pointing out that nowhere in the Sawridge affidavit material is there any specific averment as to the need for particulars for pleading. Granted, there is a letter of 2 May, 1996 on Sawridge Band stationary, pointing to some perceived shortcomings in the initial particulars provided by the plaintiffs, but when one considers the Statement of Claim and the initial particulars provided by the plaintiffs pursuant to the demand for further particulars, the request, particularly at this stage, is just not plausible. The plaintiffs submit that the cross-examination of Walter Twinn indicates not that particulars are required, but that there is some malice in requesting particulars. I would not go so far. It is sufficient to say that the Sawridge Defendants have demonstrated no need for additional particulars.
[35] Even leaving aside that the Sawridge Defendants have not shown a need for particulars, those already provided by the plaintiffs are, by inspection, at least sufficient and indeed more than are really necessary in order to enable the defendants to understand the plaintiffs' case: this is clearly substantiated on the cross-examination of Walter Twinn. On the basis of the particulars provided to date, the Sawridge Defendants must be taken to know the case against them, appreciate the facts on which it is founded and be in a position to provide an intelligent defence. To require further particulars would be an abuse of process.
Costs
[36] There are two aspects to the consideration of costs. First, there is the failure of the Sawridge Defendants to provide the plaintiffs with their affidavit in support of this motion until the last minute. The present motion was filed in May of 1997 for a 20 August, 1997 hearing. The affidavit was not sworn until the 13th of August, 1997 and was served on counsel for the plaintiffs far too late. Quite properly the plaintiffs applied for an adjournment to consider the material and, as it turned out, to cross-examine Walter Twinn. The plaintiffs shall have the costs of that hearing in any event, in the amount of $500.00.
[37] As to the costs of subsequent preparation for the motion and the ultimate disposition of the motion, the defendants have been successful on only one item, that of striking out paragraph 34. Paragraph 34 of the Statement of Claim did not invoke much debate on the hearing of the motion. The defendants sought no particulars. The plaintiffs have received leave to amend paragraph 34. All things considered, including the request for further particulars for pleading, a spurious request that ought not to have been brought
to the court, the plaintiffs will also have their taxable costs, on an enhanced basis, including costs related to preparation for the hearing and the cross-examination of Walter Twinn, payable at the conclusion of the matter, in any event.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
14 November, 1997
[38] FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1529-95
STYLE OF CAUSE: Aline Elizabeth Huzar et al.
-v- H.M.T.Q. et al.
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 22, 1997
ORDER AND REASONS FOR ORDER BY: Mr. John A. Hargrave,
Prothonotary.
DATED: November 14, 1997
APPEARANCES:
Mr. Peter Abrametz for the Plaintiffs
Michael R. McKinney for the Defendants,
Walter P. Twinn and
Sawridge Indian Band
Mary King for the Defendant,
Department of Justice Her Majesty the Queen
SOLICITORS OF RECORD:
ICFS Legal Consultant for the Plaintiffs
Prince Albert, Saskatchewan
Sawridge Indian Band for the Defendants,
Slave Lake, Alberta Walter P. Twinn and
Sawridge Indian Band
George Thomson for the Defendant,
Deputy Attorney General of Canada Her Majesty the Queen
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