Date: 20001212
Docket: A-183-00
CORAM: STRAYER, J.A.
ROTHSTEIN, J.A.
McDONALD, J.A.
BETWEEN:
| THEODORE HODGSON, HARLEY HODGSON, DENNIS HODGSON, LARRY HODGSON, AMY PUGH, PEGGY LUNDIE, ALMA DUWAR and CAROL LEEB |
Plaintiffs
(Respondents)
| ERMINESKIN INDIAN BAND #942 and THE ERMINESKIN |
Defendants
(Appellants)
- and -
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA, |
| AS REPRESENTED BY THE MINISTER OF INDIAN |
Defendant
(Respondent)
Heard at Edmonton, Alberta, on Monday, December 11th, 2000.
JUDGMENT delivered at Edmonton, Alberta, Tuesday, December 12th, 2000.
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.A.
| IN AGREEMENT: STRAYER, J.A. |
IN AGREEMENT: McDONALD, J.A.
Date: 20001212
Docket: A-183-00
CORAM: STRAYER, J.A.
ROTHSTEIN, J.A.
MCDONALD, J.A.
BETWEEN:
| THEODORE HODGSON, HARLEY HODGSON, DENNIS HODGSON, LARRY HODGSON, AMY PUGH, PEGGY LUNDIE, ALMA DUWAR and CAROL LEEB |
Plaintiffs
(Respondents)
| ERMINESKIN INDIAN BAND #942 and THE ERMINESKIN |
Defendants
(Appellants)
- and -
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA, |
| AS REPRESENTED BY THE MINISTER OF INDIAN |
Defendant
(Respondent)
REASONS FOR JUDGMENT
ROTHSTEIN, J.A.:
This is an appeal from an order of Reed, J. which dismissed an appeal from an order of Hargrave, P. denying the motion of the Ermineskin Indian Band # 942 and The Ermineskin Band Council ("Ermineskin Defendants") to strike out certain of the Plaintiffs' claims against them.
The Plaintiffs say the Crown and the Ermineskin Defendants breached their fiduciary duties to all the Plaintiffs by allowing deletion of their names from the Ermineskin Band Membership List or failing to add the names of those born after 1944 to the List. They say these breaches deprived them of the benefits of membership in the Band. The Plaintiffs claim declarations that they are members of the Band and that they are entitled to receive benefits available to members of the Band. They also claim an accounting of all benefits they would be entitled to since 1944.
The basis of the Ermineskin Defendant's motion to strike is that the Federal Court lacks jurisdiction over a claim for damages or equitable relief against them and that they have no fiduciary duty towards non-members.
Counsel for the Ermineskin Defendants concedes that on a motion to strike under Rule 221(1)(a) the case must be plain and obvious and beyond doubt. The action was brought in 1991. The absence of jurisdiction in this Court in respect of the Ermineskin Defendants does not appear to have been plain and obvious to counsel for these Defendants for some years as the motion to strike was only first brought in 1998. Nor was it plain and obvious to Hargrave, P. or Reed, J. as they both dismissed the motion to strike.
While we are by no means confident that this Court has jurisdiction over the Plaintiffs' claims against the Ermineskin Defendants under section 17 of the Federal Court Act, we are not prepared to say that the Court's lack of jurisdiction is plain and obvious and beyond doubt. This is a case involving claims against an Indian band and band council as well as the Crown. While the Court clearly has jurisdiction in respect of judicial reviews of decisions of Indian band councils, jurisdiction in the case of actions against bands is far less clear. Insofar as the breach of fiduciary duty claim is concerned, the Band's argument that it has no fiduciary duty to non-members, while seemingly obvious at first blush, rests upon the Plaintiffs never having been members or being entitled to membership. It is not plain and obvious that, if the Plaintiffs or their ancestors were wrongly deleted or not added as members, there may not be some fiduciary duty owed to them.
Counsel for the Ermineskin Defendants has not persuaded us that the validity of her motion is plain and obvious. We think it is prudent to allow this long outstanding matter to go to trial as soon as possible, without further interlocutory proceedings, at which time, based upon all the facts adduced in evidence and full argument made before the Trial Judge, the jurisdiction and fiduciary duty questions can best be decided in the first instance.
The appeal is dismissed with costs.
"Marshall Rothstein"
J.A.
EDMONTON, Alberta
December 12th , 2000.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Theodore Hodgson and Others v. |
| Ermineskin Indian Band #942 and Others and Her Majesty the |
Queen and Others
| PLACE OF HEARING: Edmonton, Alberta |
| DATE OF HEARING: December 11th , 2000 |
| REASONS FOR JUDGMENT BY: Rothstein, J.A. |
| CONCURRED IN BY: Strayer, J.A. |
McDonald, J.A.
| DATED: December 12th , 2000 |
APPEARANCES:
| Maria Morellato For the Appellants |
Ronald E. Johnson For the Respondents
Ermineskin Indian Band #942
| and The Ermineskin Band Council |
| James Baird For Respondent |
| Department of Justice Her Majesty the Queen in Right of Canada |
SOLICITORS OF RECORD:
| Blake, Cassels & Graydon For the Appellants |
Roddick & Johnson For the Respondents
Ermineskin Indian Band #942 and The Ermineskin Band Council
| Morris Rosenberg For Respondent |
| Deputy Attorney General Her Majesty the Queen in Right of Canada |
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