Date:20000613
Docket:A-326-98
CORAM: DÉCARY, J.A.
SEXTON, J.A.
EVANS, J.A.
BETWEEN:
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
(Appellants)
- and -
ALINE ELIZABETH HUZAR, JUNE MARTHA KOLOSKY, WILLIAM BARTHOLOMEW McGILLIVRAY, MARGARET HAZEL ANNE BLAIR, CLARA HEBERT, JOHN EDWARD JOSEPH McGILLIVRAY, MAURICE STONEY, ALLEN AUSTIN McDONALD, LORNA JEAN ELIZABETH McREE, FRANCES MARY TEES, BARBARA VIOLET MILLER (nee McDONALD)
Plaintiffs
(Respondents)
Heard at Toronto, Ontario, Tuesday, June 13, 2000
Judgment delivered from the Bench at Toronto, Ontario
on Tuesday, June 13, 2000
| REASONS FOR JUDGMENT OF THE COURT BY: EVANS, J.A. |
Date: 20000613
Docket: A-326-98
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
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
(Appellants)
- and -
ALINE ELIZABETH HUZAR, JUNE MARTHA KOLOSKY, WILLIAM BARTHOLOMEW McGILLIVRAY, MARGARET HAZEL ANNE BLAIR, CLARA HEBERT, JOHN EDWARD JOSEPH McGILLIVRAY, MAURICE STONEY, ALLEN AUSTIN McDONALD, LORNA JEAN ELIZABETH McREE, FRANCES MARY TEES, BARBARA VIOLET MILLER (nee McDONALD)
Plaintiffs
(Respondents)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, June 13, 2000)
EVANS J.A.
[1] This is an appeal against an order of the Trial Division, dated May 6th, 1998, in which the learned Motions Judge granted the respondents" motion to amend their statement of claim by adding paragraphs 38 and 39, and dismissed the motion of the appellants, Walter Patrick Twinn, as Chief of the Sawridge Indian Band, and the Sawridge Indian Band, to strike the statement of claim as disclosing no reasonable cause of action.
[2] In our respectful opinion, the Motions Judge erred in law in permitting the respondents to amend and in not striking out the unamended statement of claim. The paragraphs amending the statement of claim allege that the Sawridge Indian Band rejected the respondents" membership applications by misapplying the Band membership rules (paragraph 38), and claim a declaration that the Band rules are discriminatory and exclusionary, and hence invalid (paragraph 39).
[3] These paragraphs amount to a claim for declaratory or prerogative relief against the Band, which is a federal board, commission or other tribunal within the definition provided by section 2 of the Federal Court Act. By virtue of subsection 18(3) of that Act, declaratory or prerogative relief may only be sought against a federal board, commission or other tribunal on an application for judicial review under section 18.1. The claims contained in paragraphs 38 and 39 cannot therefore be included in a statement of claim.
[4] It was conceded by counsel for the respondents that, without the proposed amending paragraphs, the unamended statement of claim discloses no reasonable cause of action in so far as it asserts or assumes that the respondents are entitled to Band membership without the consent of the Band.
[5] It is clear that, until the Band"s membership rules are found to be invalid, they govern membership of the Band and that the respondents have, at best, a right to apply to the Band for membership. Accordingly, the statement of claim against the appellants, Walter Patrick Twinn, as Chief of the Sawridge Indian Band, and the Sawridge Indian Band, will be struck as disclosing no reasonable cause of action.
[6] For these reasons, the appeal will be allowed with costs in this Court and in the Trial Division.
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: 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
- and -
| ALINE ELIZABETH HUZAR, JUNE MARTHA KOLOSKY, WILLIAM BARTHOLOMEW McGILLIVRAY, MARGARET HAZEL ANNE BLAIR, CLARA HEBERT, JOHN EDWARD JOSEPH McGILLIVRAY, MAURICE STONEY, ALLEN AUSTIN McDONALD, LORNA JEAN ELIZABETH McREE, FRANCES MARY TEES, BARBARA VIOLET MILLER (nee McDONALD) |
| DATE OF HEARING: TUESDAY, JUNE 13, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: EVANS J.A. |
Delivered at Toronto, Ontario on
Tuesday, June 13, 2000
APPEARANCES BY: Mr. Philip P. Healey
For the Defendants
(Appellants)
Mr. Peter V. Abrametz
(Respondents)
| SOLICITORS OF RECORD: Aird & Berlis |
| BCE Place, Suite 1800, Box 754 |
181 Bay Street
(Appellants)
Eggum, Abrametz & Eggum
Barristers & Solicitors
101-88-13th Street East
Prince Albert, Saskatchewan
S6V 1C6
(Respondents)
FEDERAL COURT OF APPEAL
Date: 20000613
Docket: A-326-98
BETWEEN:
| 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
(Appellants)
- and -
| ALINE ELIZABETH HUZAR, JUNE MARTHA KOLOSKY, WILLIAM BARTHOLOMEW McGILLIVRAY, MARGARET HAZEL ANNE BLAIR, CLARA HEBERT, JOHN EDWARD JOSEPH McGILLIVRAY, MAURICE STONEY, ALLEN AUSTIN McDONALD, LORNA JEAN ELIZABETH McREE, FRANCES MARY TEES, BARBARA VIOLET MILLER (nee McDONALD) |
Plaintiffs
(Respondents)
REASONS FOR JUDGMENT
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