Date: 20091015
Docket: T-436-04
Citation: 2009
FC 1043
Ottawa, Ontario, October 15, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
TODD SIMPSON, SKONWAKWENINI
GABRIEL,
SYLVIA BONSPILLE LORENTE, ANNIE MICHALA,
HILDA BONSPILLE, RUBY MARTIN, BELLIE BEAUVAIS,
SANDRA RICHARDS and STEVEN BONSPILLE,
JOHN HARDING,
PEARL BONSPILLE personally and as duly
elected Chiefs of the
MOHAWK COMMUNITY OF KANESATAKE
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA,
the MINISTER OF INDIAN AND NORTHERN
AFFAIRS AND
NORTHERN DEVELOPMENT CANADA, the MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS CANADA,
JAMES GABRIEL, CLARENCE SIMON, MARIE CHÉNÉ, DOREEN CANATONQUIN as duly
elected Chiefs of the MOHAWK
COMMUNITY OF KANESATAKE
Defendants
REASONS FOR ORDER AND ORDER
I. INTRODUCTION
[1]
The
specific matters before the Court were motions by the Defendants to dismiss the
action in whole, or alternatively, to strike significant and critical portions
of the Plaintiffs’ Statement of Claim.
[2]
There are
significant questions with this action not the least of which are who are the
proper Plaintiffs, who are the proper Defendants, who is counsel for the
Plaintiffs, what is the true nature of the claim and does this Court have
subject matter and/or personal jurisdiction.
[3]
It is not
the Court’s intention to set out anything more than a brief summary of this
file; details are contained in the Court record.
II. BACKGROUND
[4]
This
action was commenced on March 1, 2004. The Statement of Claim was amended on
June 3, 2005, at which time additional Plaintiffs were added and the Plaintiffs
claimed jointly and severally against the Defendants for general damages of $90
million plus punitive damages. The Plaintiffs alleged breach of contract,
breach of fiduciary duty, breach of the duty to consult, negligence, abuse of
power, abuse of process, conspiracy, pain and suffering, psychological and
psychiatric trauma, and breach of constitutional rights.
[5]
The
Plaintiffs also seek various orders and declarations under s. 35 of the Constitution
Act, 1982 and s. 35 of the Charter of Rights and Freedoms.
[6]
There have
been a series of delays in the prosecution of this action, only partially related
to the government departments requiring time to prepare a voluminous affidavit
of documents in the face of the wide ranging claims made.
[7]
By Order
dated May 9, 2005, the then Plaintiffs were ordered to pay security for costs
in favour of the individual Defendants (who are in this action separately
represented) in the amount of $32,960 and the action was stayed until the
security was paid. The security for costs has yet to be paid.
[8]
In
companion litigation to the original action, the then Plaintiffs commenced an
application against virtually the same Defendants. The then Plaintiffs advised
the Court that they did not recognize the jurisdiction of the Federal Court.
Justice von Finckenstein, who was then case managing both matters, dismissed
the application on January 20, 2005 with costs to the individual Defendants in
the amount of $18,900. These costs have not been paid.
[9]
This
action seems to have hung in limbo thereafter. On April 30, 2008, a Forensic
Audit Report was issued by the two federal departments after which the
Plaintiffs asked the Minister of Public Safety to hold an inquiry into the
events of January 2004 which form part of the facts pleaded in the action. The
Minister refused the request on July 15, 2008 but indicated willingness to
explore alternatives to litigation. Despite expressing a willingness to engage
in those discussions, the Plaintiffs have done nothing.
[10]
The Court
issued a direction on September 26, 2008 for the parties to advise the Court of
the status of the action and the plans to move the matter forward. The due date
for responses was January 15, 2009.
[11]
On that due
date, counsel for the Plaintiffs (Mr. Reynolds) asked for a 45-day delay in
order to obtain instructions and to put their alternative litigation proposal
to the Defendants.
[12]
By fax
dated that same due date, January 15, 2009, a Notice of Change of Solicitors
was filed by Mr. Allali, signed only by himself.
[13]
The Court
granted the delay and imposed an obligation on the Plaintiffs to advise the
Court by March 2, 2009 of the status of this matter and absent significant
advancements, the matter would be set for a status review.
[14]
The
Court’s directions and orders as to moving this case along have not been acted
upon by the Plaintiffs.
[15]
There is
apparent confusion in the Plaintiffs’ camp as to who is counsel. On May 8,
2009, the Court rendered an Order requiring the Defendants to serve and file
any motions, to dismiss or to strike for reasons of delay or any other reasons,
within 30 days of the date of that Order. In addition, the Court ordered that a
copy of that Order be served on former counsel to the Plaintiffs by fax or by
courier.
[16]
The
Defendants, obviously frustrated with the lack of action and concerned about
the serious deficiencies in the pleadings, indicated their intention to move to
strike parts of the Statement of Claim or dismiss the action.
[17]
On
September 8, 2009, the Court ordered that the Defendants’ motions be served on
both solicitors and indicated that the motions would be heard on September 29,
2009.
[18]
On the day
of the hearing the Court was advised that Mr. Reynolds had written to the Court
the afternoon before indicating that he could not obtain instructions from his
clients either as to the motions or as to legal counsel (presumably meaning who
counsel to the Plaintiffs was to be).
[19]
At the
hearing Mr. Allali appeared but indicated that he had no instructions on the
motion and that he was unclear who he represented and what status they had. The
hearing proceeded absent any materials from or representations by the
Plaintiffs.
III. ANALYSIS
[20]
Before
dealing with the merits of the motion, the Court must address the issue of
legal representation.
[21]
The matter
of legal representation has been languishing since January 15, 2009 and despite
efforts by the Court, there is no greater clarity now than back then.
[22]
It is
important to note that the Rules of this Court require that a Notice of Change
of Solicitor be filed by a “party”. In the usual course the Notice is filed by
new counsel as agent for the party. Absent a dispute about representation, such
a procedure is sensible and sound in law as a matter of agency. However, here
the question of the legitimacy of the change of counsel is in question and
there is nothing filed by any of the Plaintiffs themselves indicating which
counsel is to represent which Plaintiffs.
[23]
This lack
of attention as to who represents the Plaintiffs is another factor indicating
that there is no genuine intention or ability of the Plaintiffs to proceed with
this action.
A. Motion to Strike
[24]
The
Defendants have collectively raised numerous grounds to strike significant
portions of the Statement of Claim. The Statement of Claim is fraught with
problems, many so serious that it cannot be resurrected by simple amendments
and deletions. The Court will touch on but a few.
[25]
There is
insufficient linkage between the individual Defendants and the Crown as to
bring them within this Court’s jurisdiction under s. 17 of the Federal
Courts Act, R.S., 1985, c. F-7.
[26]
The
“Mohawk Community of Kanesatake” is not a body known at law. The more
appropriate body is the “Mohawks of Kanesatake”; however, it is unclear from
the pleadings what status any or all of the individual Plaintiffs have to
invoke the legal status of the Band. Some of the Plaintiffs are not members of
the Band and one of them is deceased.
[27]
The
Amended Statement of Claim does not disclose how the Plaintiffs, as a minority
of Band Council, can initiate a claim on behalf of the Band, nor how they, not
being parties to the contract in issue, can claim breach of contract or have
standing to claim collective rights on behalf of the Band.
[28]
The
Amended Statement of Claim is so deficient in its allegations of material facts
that it is impossible for a defendant to properly defend. There are significant
deficiencies in the claim for breach of fiduciary duty, duty to consult,
violation of s. 35 rights, s. 25 rights, punitive damages and negligence,
without even considering whether an action is sustainable for at least some of
these claims.
[29]
The
government Defendants have raised a number of other grounds involving issues of
the applicability of various legal principles, both at common law and under the
Civil Code which are unnecessary to resolve here.
[30]
The
Plaintiffs’ problem is that there are so many clear difficulties with its
pleading that cannot be readily solved by amendments or the alternative remedy
of striking the claim with leave to file a further and better claim.
B. Motion to
Dismiss
[31]
The
government Defendants also moved to dismiss this action on the grounds that it
constitutes an abuse of process as is evident from the failure to prosecute the
action or to comply with Court order.
[32]
I share
these Defendants’ concern. It is an abuse to file an action with no intent to
proceed. The Court is not a parking lot for possible litigation. It does appear
that the Plaintiffs have used this litigation to pressure the government (not
an unusual tactic for some litigants) but most importantly, with no real
intention to proceed.
[33]
Consistent
with my reasons on the Motion to Strike, the action will be struck. The issue
is whether it should be struck “with prejudice” as to the merits of the claim.
[34]
There were
members of the Plaintiffs in Court at the hearing of these motions, as Mr.
Allali advised. The Court indicated that it would defer rendering its decision
in this matter for two weeks.
[35]
Since
then, there have been no steps to clarify the Plaintiffs’ position on
representation or on how they wished to proceed with the litigation.
[36]
Given the
past inaction, delays and failures to comply and failure to properly retain and
instruct counsel, the government Defendants are entitled to their request that
the action be dismissed with costs as an abuse of process.
[37]
The Court
is not prepared to dismiss the action on its merits so as to create some form
of estoppel or res judicata. However, if any of the Plaintiffs,
individually or collectively, intend to litigate the subject matter of the
Amended Statement of Claim, they will require leave of the Court. Such leave
may well contain terms.
ORDER
THIS COURT ORDERS that:
1.
The action
against the individual Defendants is dismissed with prejudice and with costs to
those Defendants.
2.
The action
against the remaining Defendants is dismissed with costs in their favour but
without prejudice to one or more of the Plaintiffs filing a new action in
respect of the same subject but only with leave of this Court and within 30
days of this Order.
“Michael
L. Phelan”
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