Date: 20080611
Docket: T-568-07
Citation: 2008 FC 729
BETWEEN:
EDOUARD VOLLANT, AGNÈS MCKENZIE, JEAN-YVES
PINETTE,
MICHEL PINETTE, JACQUES MCKENZIE,
ALPHONSE AMBROISE,
JEAN-GUY PINETTE, ÉRIC ROCK, GEORGE
MCKENZIE,
PHILOMÈNE MCKENZIE, GEORGES-ERNEST GRÉGOIRE,
RONALD FONTAINE, RAYMOND JOURDAIN, DANIEL
ST-ONGE,
ANDRÉ JÉRÔME, FRANÇOIS FONTAINE, LÉO
GRÉGOIRE,
ANTOINE JOURDAIN, SYLVIO JOURDAIN, ISRAEL
ST-ONGE,
MARC ST-ONGE, ANGÉLINE
JOURDAIN AMBROISE
Plaintiffs
and
HER
MAJESTY THE QUEEN
Defendant
and
ATTORNEY GENERAL OF QUEBEC
and
ATTORNEY GENERAL OF NEWFOUNDLAND AND
LABRADOR
Interveners
REASONS FOR ORDER
(Delivered from the
bench at Montréal on June 6, 2008)
HUGESSEN
J.
[1]
It
is clear that some parts of the amended statement of claim fall within the
jurisdiction of this Court under subsection 17(1) of the Federal Courts Act,
R.S.C. 1985, c. F-7 (the Act).
[2]
However,
read in its entirety, it is also clear that the action is essentially an action
against the province of Newfoundland and Labrador.
[3]
It
is impossible to
separate the allegations against Canada from the ones against the province. The
plaintiffs, who are Innu, claim aboriginal rights, treaty rights and interests
in land in Labrador. In my view, it is obvious that the province of
Newfoundland and Labrador is an essential party to the dispute.
[4]
If
I had the jurisdiction, I would make an order under Rule 104(2) of the Federal
Courts Rules, SOR/98-106 (the Rules), adding it as a defendant to the
dispute.
[5]
But
the Act does not grant me this jurisdiction. It is immaterial that the dispute raises
issues of federal law within the meaning of the second and third tests in ITO
–Int’l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752. The
first test, the statutory grant of jurisdiction, is completely missing here,
and without that the Court lacks jurisdiction. Joe v. Her Majesty the Queen
in Right of Canada (1983), 49 N.R. 198 (F.C.A.), aff’d [1986] 2 S.C.R. 145
deals with this specific issue and is the leading authority.
[6]
The
position of the Attorney General of Quebec, who also brought a motion to strike out, is less
clear. In my view, his presence is not necessary to resolve the dispute
completely. But the plaintiffs made him a party and served him with a notice of
constitutional questions. That alone gives him the right to ask to be removed
as a party. His motion should also be granted but without costs.
[7]
With
respect to the Attorney General of Canada, although he supported the position
of the two provinces, he did not ask that the action be dismissed. Therefore,
if the action were to be dismissed after the amended statement of claim is
struck out, it would be without costs.
[8]
It follows
that it is clear and indisputable that the motion by the Attorney General of
Newfoundland and Labrador should be granted with costs and that the amended
statement of claim should be struck out in its entirety without leave to amend.
The motion of the Attorney General of Quebec will also be granted without
costs. The plaintiffs’ action will be dismissed with costs.
[9]
An order
to that effect will issue.
“James
K. Hugessen”
Certified
true translation
Mary
Jo Egan, LLB
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