Date: 19990831
Docket: A-616-97
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
ROTHSTEIN J.A.
BETWEEN:
PERCY RICHARD WARD AND BERT WARD
Respondents (Plaintiffs)
- and -
SAMSON CREE NATION NO. 444 and CHIEF AND COUNCIL
OF SAMSON CREE NATION NO. 444
Appellants (Defendants)
and HER MAJESTY THE QUEEN AS REPRESENTED BY
THE MINISTER OF INDIAN AND INUIT AFFAIRS
(Defendants)
REASONS FOR JUDGMENT
THE CHIEF JUSTICE
[1] The appellants bring this appeal from an interlocutory order made by a Motions Judge in the Trial Division on 9 September, 1997. The order allowed the respondents' motion to amend the statement of claim they filed in an action they brought against the appellants and the Minister of Indian and Inuit Affairs.
[2] The motion was brought pursuant to Rule 420 of the Federal Court Rules,1 as it stood on November 13, 1996 (the former Federal Court Rules), the date on which the motion was filed; and it was supported by the affidavit of Bert Ward, one of the respondents (plaintiffs). In paragraph 5 thereof Ward deposes:
| 5. Based upon comments made by my solicitors to myself, it is my opinion and belief that the Amended Statement of Claim does not set out one or more new causes of action, but simply sets out further particulars in support of the existing pleadings and even if the amendments to the Statement of Claim do set out one or more new causes of action, the facts supporting the amendments have always been known to all Defendants.2 |
[3] In view of the position taken by Counsel for respondents in argument, I reproduce the proposed amendments to the Statement of Claim:
| 12. Further, or in the alternative, on July 29, 1985, the Plaintiff Percy Ward and on June 23, 1986, the Plaintiff, Bert Ward, applied, pursuant to Section 6 (1) and (2) of the INDIAN ACT, for registration as status Indians. |
| 13. On April 29, 1986 in respect to Percy Ward, and on August 25, 1987, in respect to Bert, the Defendant Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs informed each respective Plaintiff that their applications were approved and that their respective names were added to the Indian Register. On the same dates they were also informed that they were registered as members of Samson Cree Nation No. 444 in accordance with Section 11 (2) (b) of the INDIAN ACT. |
| 14. The Defendants, Samson Cree Nation No. 444 and chief and Council of Samson Cree Nation No. 444, did on or about June 23, 1987, give notice to the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, that pursuant to Section 10 (6) of the INDIAN ACT, that Samson Cree Nation No. 444 wish to assume control of Band membership, however, the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, did not and has not given notice to the Defendants, Samson Cree Nation No. 444 and Chief and Council of Samson Cree Nation No. 444 that control of the membership had been transferred to the Band as required by Section 10 (7) of the INDIAN ACT. |
| 15. The Defendants, Samson Cree Nation No. 444 and Chief and Council of Samson Cree nation No. 444 have not protested, pursuant to the INDIAN ACT the addition of the Plaintiff's names to the Samson Cree Nation membership list. |
| 16. Despite their names being properly added to the membership list of the Samson Cree Nation No. 444, the Defendants, Samson Cree Nation No. 444 and Chief and Council of Samson Cree Nation No. 444 have refused and continue to refuse to acknowledge that the Plaintiffs have been and are members of Samson Cree Nation No. 444, from at least July 28, 1987. |
| WHEREFORE THE PLAINTIFFS CLAIM: |
| c) In the alternative, a declaration that the Plaintiffs have been members of Samson Cree Nation No. 444 since July 28, 1987, and continue to be members of Samson Cree Nation No. 444.3 |
[4] Before the Motions Judge, the appellants contended that the amendments sought were inappropriate and should not be granted, for three reasons. Firstly, they contended that the proposed amendments sought judicial review of a decision of the Samson Cree Band Council and that that remedy and the declaratory relief that they sought is not available in the context of amendments to a statement of claim. Secondly, they contended that the amendments sought were inappropriate because, contrary to Rule 427 of the former Federal Court Rules, they disclose a new cause of action which did not arise from the same facts, or substantially the same facts, as the original cause of action, and, in any case, it was outside the limitation period. They contended, finally, that the amendments were not sought in a timely way and were, therefore, prejudicial to them.
[5] Relying on the decision of this Court in Francoeur v. Canada,4 the learned Motions Judge granted the respondents' motion and allowed the amendments.5
[6] In granting the motion, the Motions Judge did not deal with the first objection taken by the appellant. Instead, he dealt with the matter on the basis of the second and third objections raised.
Issues:
[7] The appellants attack the interlocutory order of the Motions Judge on two grounds: firstly, they say that the Motions Judge was wrong in law in allowing the amendments, because they are not in the nature of a cause of action but rather are in the nature of a judicial review and are out of time, contrary to the jurisdiction of the Federal Court as provided in the Federal Court Act6 and the Constitution Act, 1867.7 Secondly, they say, in the alternative, that the Motions Judge was wrong in law to allow the amendments because they disclose a new cause of action. They say further that the respondents had delayed for a period of nine years after the new cause of action had arisen before bringing the action, and, therefore, the action was brought outside of the limitation period.
[8] With respect to the first issue, the appellants contend, in paragraph 10 of their memorandum of fact and law, that "the amendments to the statement of claim contained in paragraphs 12 to 16 and the Prayer for Relief contained in paragraph c) request the remedy of a declaration setting aside the decision (quashing/certiorari) of the Samson Cree Nation Chief and Council dated July 24, 1987 refusing to acknowledge that the plaintiffs are members of the Samson Cree Nation and declaring the plaintiffs to be members of the Samson Cree Nation (mandamus)".
[9] In paragraph 11 of the memorandum, the appellants say that "this declaration is more properly characterized as certiorari and/or mandamus in order to quash the decision of the Samson Cree Nation Band Council or alternatively to compel the Samson Cree Nation Band Council to add the plaintiffs to the membership of the Samson Cree Nation".
[10] These contentions are supported by reference, firstly, to paragraph 18(1)(a) of the Federal Court Act which invests the Trial Division of this Court with exclusive original jurisdiction to issue an injunction, the prerogative writs of certiorari, prohibition, mandamus and quo warranto or to grant declaratory relief against any federal board, commission or other tribunal; secondly, to subsection (3), which provides that those remedies may only be obtained on an application for judicial review; and thirdly, to the fact that the Samson Cree Band Council is a "federal board" when it makes or purports to make decisions about membership.
[11] In advancing these contentions, counsel for the appellants placed great reliance on the reasons for judgment of this Court, (Stone, Robertson and McDonald JJ.A.) in Ermineskin Indian Band #942 and the Ermineskin Band Council v. Hodgsen et al.8 I will deal with those reasons later.
[12] For their part, the respondents oppose the appeal on several grounds. Firstly, they say that the appeal is without merit and taken solely for the purpose of delay. I note that the action was commenced in 1992, and after 7 years does not appear to have advanced beyond the statement of defence and a motion to amend the statement of claim. Secondly, they say that the order in appeal is discretionary and should not be set aside, unless there is a demonstrated error of law or principle. They say, thirdly, that the appellants have not demonstrated such error. They say, fourthly, that the facts alleged in paragraphs 12 to 16 of the amended statement of claim do not plead a new cause of action; rather, they allege additional facts respecting the respondents' claim to membership in the Samson Cree Nation No. 444.
Analysis
[13] Before proceeding to an analysis of the issues, it would be helpful to outline briefly the procedural history of this litigation, because, in my view, it will illuminate the analysis.
[14] On 28 May, 1992, the respondents, claiming to be registered Indians residing in the Province of Alberta, commenced an action in the Trial Division alleging, inter alia , that they became members of the appellant Samson Cree Nation No. 444 by virtue of a Band Council resolution dated 16 November, 1937; that their names had been wrongfully deleted from the register; and that the appellants and their co-defendant, the Minister of Indian and Inuit Affairs ("the Minister"), in breach of their fiduciary duty to the appellants, have either by acts of commission or omission respecting the deletion or an addition of the appellants' names to the band register, deprived the appellants of the financial benefits, as members of the Samson Cree Nation No. 444, to which they are entitled. As a result the appellants seek, declarations of entitlement to membership in the Samson Cree Nation No. 444 from birth, declarations of entitlement to benefits, an accounting and general damages.
[15] On 2 July, 1992, the appellants filed their statement of defence, denying the allegations contained in the statement of claim and denying the jurisdiction of this court to grant the relief claimed.
[16] On 7 March, 1995, the co-defendant, the Minister, filed his statement of defence.
[17] In paragraph 2 of his statement of defence the Minister admitted that the respondents had the status of registered Indians. He pleaded that such status was conferred on them by the provisions of Bill C-31 in 1986 and 1987. He also pleaded that Bill C-31 was incorporated in the Act to amend the Indian Act, R.S.C. 1985, c. 32 (1st Supp.). Finally, he pleaded specifically the current Indian Act, R.S.C. 1985, c I-5.
[18] Paragraphs 6 to 8 of the statement of defence are especially instructive. For that reason I reproduce them here in their entirety:
| 6. With respect to paragraph 6 of the Statement of Claim, he admits that James Ward was made a member of the Samson Band in 1937 pursuant to the provisions of the Indian Act. His wife and unmarried children were automatically added to the Samson Band list. He denies the remaining allegations set forth in the said paragraph. |
| 7. With respect to paragraph 7 of the Statement of Claim, he admits that on January 7, 1944, the Minister of Mines and Resources made a decision wherein he determined that James Ward, his wife and children, including the Plaintiffs, were not Indians and consequently were not entitled to share in the property and annuities of any Indian Band. He specifically denies that the decision was wrongful and states that the said decision was made in accordance with, and pursuant to, legislation in effect at the relevant time. He adds that the decision of the Minister of Mines and Resources was validly made, in good faith, and is conclusive. |
| 8. With respect to paragraphs 8 and 9 of the Statement of Claim, he admits that in 1944 and 1945, the Chief and Council of the Samson Band protested the decision of the Minister of Mines and Resources. He states that, on November 9, 1944, the Minister of Mines and Resources issued an Order pursuant to section 34 of the Indian Act, R.S.C. 1927, c. 98, permitting James Ward and Mary Ward to reside during their lifetime on the Samson Indian Reserve and permitting their five children, including the Plaintiffs, to reside on the Samson Indian Reserve until they reached the age of 21. A lease of 160 acres was granted to James Ward in 1945 for $1.00 per year "during the pleasure of the Minister". He specifically denies the remaining allegations set forth in paragraphs 8 and 9 of the Statement of Claim.9 |
[19] For the same reason, I also reproduce paragraphs 11-17 of the Minister's statement of defence:
| 11. He specifically denies the allegations set fourth in paragraph 12 of the Statement of Claim. He adds that the Plaintiffs were added to the Samson Band List in 1987 in accordance with the provisions of the current Indian Act. |
| 12. In answer to the Statement of Claim as a whole, he states that the Plaintiffs have no cause of action against the Minister in the circumstances of the within case. He specifically pleads and relies on section 22 of the Act to Amend the Indian Act, supra. |
| 13. He further states that, since April 4, 1988, the Samson Band has not authorized Her Majesty to make any per capita distributions of capital moneys of the Band to Band members. |
| 14. He states that the Samson Band has been permitted pursuant to the Indian Act to control and manage its revenue account since at least 1973. |
| 15. He states that any per capita distributions that were made after April 4, 1988 were made by the Samson Band from its revenue moneys and her Majesty had no involvement or responsibility with respect to any such distributions. |
| 16. He specifically denies that the Plaintiffs are entitled to the relief claimed or at all. In the alternative, he denies that the Plaintiffs have suffered the loss or damage complained of or at all and puts the Plaintiffs to the strict proof thereof. In the further alternative, he states that the damages claimed by the Plaintiff are excessive and too remote in the circumstances. |
| 17. He further states that if monies are owing to the Plaintiffs, or any of them, which is not admitted but is expressly denied, they should be paid by the Samson Band from its funds and not from Crown funds.10 |
[20] In paragraph 18 the Minister pleaded that the respondents' action, in so far as it relates to matters occurring before 28 July, 1986, was statute barred. In paragraph 19 he pleads the equitable defence of laches.
[21] I should observe here that the Minister did not file a memorandum in this appeal. Although he was represented at the hearing of the appeal by counsel, he did not participate in oral argument.
[22] That is how matters stood in this litigation until 26 November, 1996, when the respondents brought this motion to amend.
[23] The litigation was proceeding at a leisurely pace, encouraged no doubt by the Federal Court Rules, as they existed at the time. It is no wonder, then, that the Motions Judge was moved to observe in obiter in his reasons:
| As I indicated at the hearing, once the parties have had an opportunity to examine these reasons, I am available to convene a conference call to ensure expeditious progress in the action . . . . |
[24] On 26 November, 1996, the respondents filed a notice of motion under former Rule 420 of the Federal Court Rules, seeking leave to amend the statement of claim. By the order now in appeal, the Motions Judge allowed the motion.
[25] Although the motion was brought under former Rule 420 only, the Motions Judge considered former Rule 427 as being relevant to a resolution of the issues that he had to decide.
[26] For convenience, I reproduce those Rules, in part, below:11
| 420. (1) The Court may, on such terms, if any, as seem just, at any stage of an action, allow a party to amend his pleadings, and all such amendments shall be made as may be necessary for the purpose of determining the real question or questions in controversy between the parties.
(2) No amendment shall be allowed under this Rule
| (a) except upon terms designated to protect all parties so far as discovery and preparation for trial are concerned; and |
| 427. An amendment may be allowed under Rule 424 notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of actions arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment. |
|
Règle 420. (1) La Cour pourra, aux conditions qui semblent justes le cas échéant, à tout stade d'une action, permettre à une partie d'amender ses plaidoiries, et tous les amendements nécessaires seront faits au fins de déterminer la ou les véritables questions en litige entre les parties.
(2) Aucun amendement ne doit être permis en vertu de la présente règle
a) sauf à des conditions destinées à protéger toutes les parties quant à la communication, l'interrogatoire préalable et la préparation de l'instruction; et
427. Un amendement peut être permis en vertu de la règle 424 même si l'amendement aura pour effet d'ajouter une nouvelle cause d'action ou de remplacer une ancienne cause d'action par une nouvelle, si la nouvelle cause d'action naît de faits qui sont les mêmes ou à peu près les mêmes que ceux sur lesquels se fonde une cause d'action qui a déjà fait l'objet, dans l'action, d'une demande de redressement présentée par la partie qui demande la permission de faire l'amendement.
|
[27] For convenience, I will deal with and dispose of the second and third objections that the appellants have taken to the order of the Motions Judge. It is my view that the facts alleged by the respondents in paragraphs 12-16 of their statement of claim do not allege a new cause of action, but are rather additional facts supporting their claim to membership in the Samson Cree Nation No. 444. In the statement of claim that the respondents filed on 28 May, 1992 (the original statement of claim), they pleaded that they were members of the Samson Cree Nation No. 444, that they were excluded from membership by actions of the Minister and that the Band Council appears to have acquiesced in that exclusion. As a consequence they allege that they were deprived of benefits of membership by the acts or omission of the Minister and the Samson Cree Nation No. 444, in breach of their fiduciary obligations. They then plead entitlement to damages, an accounting and asked for certain declarations.
[28] In paragraph 12 to 16 of the amended statement of claim the respondents plead the amendments to the Indian Act, enacted by Bill C-31, which provide a statutory basis to their claim to membership and the circumstances surrounding their attempt to assert that claim. In the amended prayer for relief, they ask for a declaration that, in the alternative, they were members of the Samson Cree Nation No. 444 since 28 July, 1987 and continue to be such members.
[29] It is well known that Bill C-31 was enacted to provide the foundation for the re-instatement of certain Indians who had been deprived of their membership in Indian Bands and of the benefits flowing from such membership.
[30] It is reasonable to assume that these amendments to the pleadings and the addition of the prayer for relief of paragraph 18(c) to the statement of claim were done as a result of the statement of defence which the Minister had filed. When the original statement was filed on 28 May, 1992, the respondents could have pleaded the amendments to the Indian Act, as an alternative basis of their claim, because those amendments had been in force for some time; but they did not. The pleading of the additional facts in the amended statement of claim served merely to strengthen their claim to membership in Samson Cree Nation No. 444, to their wrongful exclusion from such membership, and to the consequential loss of the benefits of membership. In my opinion, the additional facts pleaded in the amended statement of claim do not create a new cause of action. I am, consequently, in respectful agreement with the Motions Judge when he stated in his reasons:
| The plaintiffs' assertion that none of the facts contained in the proposed amendments are unknown to the defendants was not contested by the defendants. The substance of the plaintiffs' claim remains unchanged by the proposed amendments. That is, the issue before the Court is the plaintiffs' membership in Samson Cree Nation No. 444, whether there has been a breach of fiduciary duty and whether the plaintiffs are entitled to an award of damages. As such, I do not find that the amendments create a new cause of action.12 |
[31] In view of this conclusion, I do not find it necessary to deal with the issues of limitation or delay.
[32] The Motions Judge had, earlier in his reasons, properly instructed himself respecting the principles laid down by this Court to determine whether the amendments should be allowed. He exercised his discretion in accordance with those principles and allowed the amendments. In these circumstances, I must conclude that the appellants have failed to demonstrate any error in law or in principle which would justify our interference on the second and third grounds of attack.
[33] As I mentioned earlier, the first ground of attack which the appellants raised against the order in appeal is that the respondents were seeking to obtain in an action, relief that they could obtain only on an application for judicial review. In support of this submission, the appellants cited and placed great reliance on the decision of this Court, in Ermineskin Indian Band #942, et al, supra.
[34] I am unable to accept this submission for the following reasons. First, the submissions which the appellants articulate in paragraphs 10 to 17 of their memorandum rest on the assumption that the authority of this Court to grant declaratory relief is confined to that which is authorized in paragraph 18(1)(a) of the Federal Court Act. Starting from the fact that the respondents have in paragraph 18(c) of the amended statement of claim asked for a declaration, the appellants have assumed, incorrectly, in my opinion, that the respondents have asked for "remedy of a declaration setting aside the decision (quashing/certiorari) of the Samson Cree Nation Chief and Council dated July 28, 1987 refusing to acknowledge that the plaintiffs are members of the Samson Cree Nation and declares the plaintiffs to be members of the Samson Cree Nation (mandamus)".
[35] This assumption is, of course, false. What the respondents seek in their amended statement of claim, including paragraph 18(c) of the amended statement of claim are declarations of right. Actions for declarations of right have been recognized in the law long before the notion of judicial review of administrative action was ever conceived. To contend, as the appellants do, that whenever a party seeks a declaration, that party is seeking judicial review, is to place a limitation on the jurisdiction of this Court that is not only unwarranted, but is wrong in law.
[36] Rule 64 of the Federal Court Rules 1998, clearly recognizes the jurisdiction of this Court to grant a declaration of right simpliciter. That Rule reads:13
| 64. No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed.
|
Il ne peut être fait opposition à une instance au motif qu'elle ne vise que l'obtention d'un jugement déclaratoire, et la Cour peut faire des déclarations de droit qui lient les parties à l'instance, qu'une réparation soit ou puisse être demandée ou non en conséquence.
|
[37] Rule 64 is the successor to former Rule 1723 which clearly empowered the Court to grant declarations in actions. That Rule reads:14
| 1723. No action shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. [emphasis added].
|
Il ne peut être fait opposition à une action pour le motif que cette action ne vise qu'à l'obtention d"un jugement our d'une ordonnance purement déclaratoires; et la Cour pourra faire des déclarations de droit obligatoires, qu'un redressement soit ou puisse être demandé ou non en conséquence. [Les italiques ne figurent pas dans l'original.]
|
[38] The use of the word "proceeding" in Rule 64 of the Federal Court Rules does not restrict the remedy to judicial review proceedings. Under the current Rules "proceeding" include actions commenced by statement of claim.15
[39] As I have said earlier, the appellants sought support for this submission in the decision of the Court in Ermineskin Band #942, et al, supra. It is my respectful view that that case is of no assistance either to the appellants or to this Court for several reasons, but principally because it is distinguishable on its facts. There, the appellants' contention was that the amendments to the statement of claim sought "a review and indeed a reversal of the Band Council's decision of May 18, 1991":
| Rule 3 of the Band's membership rules grants the right to have a name entered on the Band List to any person falling under any one of the several categories of persons set forth in that rule. The decision to accept or reject a membership application rests with the Band Council. Rule 12 provides an unsuccessful candidate with a right of appeal to the electors of the Band, "by delivering a notice in writing to the Band Council ...within 15 days after communications to him or her of the decision of the Band Council."16 |
[40] That appeal turned on the fact that, in the opinion of the Court, the respondents were, as the appellants contended, attempting to reverse a decision to refuse the appellants memberships in the Ermineskin Band. That decision was made by the Band Council in accordance with the newly adopted membership rules pursuant to the power conferred on the Band Council by the 1985 amendment to the Indian Act to control the Band lists.
[41] Here, the Samson Cree Nation No. 444 did not at the relevant times have control of the Band List, and there is no suggestion that, following the 1985 amendments to the Indian Act, appellant Council had made any rules respecting membership in the Samson Cree Nation No. 444.
[42] Thus, it cannot be said in this appeal, as it was in Ermineskin Indian Band #942, supra, that the respondents in this appeal are seeking to set-aside or quash any decision which the appellants, admittedly, a federal board, commission or tribunal, have made. What the appellants seek in their statement of claim, both original and amended, is recognition of their claim to memberships in the Samson Cree Nation No. 444, both legally and factually and enjoyment of the benefits flowing from such memberships, both of which they say, the appellants and the Minister have deprived them of and are continuing wrongfully to deprive them of.
[43] Although the Motions Judge did not deal with this objection in his reasons, he made no error in law or in principle in not doing so. As a result, on this ground as well, the appellants have failed to demonstrate any sufficient reason for intervention.
[44] I would allow the appeal with costs.
[45] As they have requested in their alternative prayer for relief, the appellants shall, at their own expense, serve and file their amended statement of defence within 20 days from and including the date of the judgment in this appeal. If so advised, at their own expense, the appellants shall conduct such oral and documentary discovery that flow from the amendments, within 60 days from the date of the judgment in this appeal.
[46] All parties to this litigation shall cooperate to ensure the expeditious resolution of the matters in dispute whether by trial or otherwise.
(Julius A. Isaac)
C.J.
Date: 19990831
Docket: A-616-97
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
ROTHSTEIN J.A.
BETWEEN:
PERCY RICHARD WARD AND BERT WARD
Respondents (Plaintiffs)
- and -
SAMSON CREE NATION NO. 444 and CHIEF AND COUNCIL
OF SAMSON CREE NATION NO. 444
Appellants (Defendants)
and HER MAJESTY THE QUEEN AS REPRESENTED BY
THE MINISTER OF INDIAN AND INUIT AFFAIRS
(Defendants)
Heard at Edmonton, Alberta, on Wednesday, June 2, 1999.
Judgment rendered at Ottawa, Ontario, on Tuesday, August 31, 1999.
REASONS FOR JUDGMENT BY: THE CHIEF JUSTICE
CONCURRING REASONS FOR JUDGMENT BY: DÉCARY J.A.
ROTHSTEIN J.A.
Date: 19990831
Docket: A-616-97
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
ROTHSTEIN J.A.
BETWEEN:
PERCY RICHARD WARD AND BERT WARD
Respondents (Plaintiffs)
- and -
SAMSON CREE NATION NO. 444 and CHIEF AND COUNCIL
OF SAMSON CREE NATION NO. 444
Appellants (Defendants)
- and -
HER MAJESTY THE QUEEN AS REPRESENTED BY
THE MINISTER OF INDIAN AND INUIT AFFAIRS
(Defendants)
REASONS FOR JUDGMENT
DÉCARY and ROTHSTEIN JJ.A.
[1] We are in general agreement with the reasons for judgment of the Chief Justice, except with respect to paragraphs 34 to 42 thereof.
[2] We do not think it is necessary in the circumstances of this case to decide whether declaratory relief may be sought otherwise than through judicial review proceedings. We would be particularly reluctant to accept, as seems to be suggested by the Chief Justice, that the Rules of the Court can be invoked to modify a statutory requirement which, prima facie at least, is imposed by subsection 18(3) of the Federal Court Act ("the Act").
[3] In our view, even if we accept that the relief claimed is of a declaratory nature and as such could only be sought through judicial review, the Court is expressly vested, by subsection 18.4(2) of the Act, with the authority to direct that an application for judicial review be treated and proceeded with as an action. It would be a futile exercise, in cases like the present one, to insist that one of the reliefs claimed be pursued in judicial review proceedings while the others are pursued in a parallel action. Clearly, in our view, the Motions Judge, had he been alerted to that possibility, would have directed that the so-called declaratory relief be treated as an action. Since the Appeal Division is entitled by subparagraph 52(h)(i) to give the judgment that the Trial Division should have given, we are prepared in the circumstances to allow that part of the claim which is for declaratory relief to continue as an action.
[4] We would dispose of the appeal in the manner proposed by the Chief Justice.
"Robert Décary"
J.A.
"Marshall E. Rothstein"
J.A.
__________________
1 C.R.C. 1978, c. 663, as amended.
2 Appeal Book, page 19.
3 Ibid., pp. 23-24 and p. 26 (underlining in original).
4 [1992] 2 F.C. 333 at 337-338.
5 Appeal Book, page 34.
6 R.S.C. 1985, C.-F. 7, as amended.
7 R.S.C. 1985, Vol. XII, Appendix II, No. 5.
8 Unreported, Court File A-635-97, 16 April, 1998.
9 Appeal Book, p. 11.
10 Ibid., p. 12.
11 Former Federal Court Rules, supra, note 1.
12 Appeal Book, p. 34.
13 SOR/98-106.
14 Former Federal Court Rules, supra, note 1.
15 See definition of "action" in section 2 and Part 4, Federal Court Rules, 1998, supra, note 14. See also definition of "relief" in subsection 2(1) of the Federal Court Act.
16 Reasons of Stone J.A. at 5.
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