Federal Court Decisions

Date: 20030604

Docket: T-376-03

Citation: 2003 FCT 708

BETWEEN:

ROY LITTLE CHIEF, EVE YELLOW OLD WOMAN

and JEANIE DELANEY

                                                                                                                                                       Plaintiffs

                                                                                 and

THE CHIEF AND COUNCIL OF THE SIKSIKA NATION

FROM TIME TO TIME AND, ADRIAN STIMSON SR.,

CHIEF OF THE SIKSIKA NATION AND, MORRIS RUNNING RABBIT,

GERALD SITTING EAGLE, RUTH SCALP LOCK,

JANICE DOORE, KENDALL PANTHER BONE, SCOTTY MANY GUNS,

LEONARD GOOD EAGLE, JASON DOORE, ELDON WEASEL CHILD,

CLIFFORD MANY GUNS, CLARENCE WOLF LEG, DEBBIE SMITH, COUNCILLORS OF THE SIKSIKA NATION ON THEIR OWN BEHALF

AND AS REPRESENTATIVES OF THE SIKSIKA NATION COUNCIL AND,

ROMEO CROW CHIEF, ADRIAN STIMSON JR., STACEY DOORE

                                                                                                                                               Defendants

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  The Defendants, other than Stacey Doore, seek to strike out the Statement of Claim for want of jurisdiction: I will refer to this group of Defendants as the Siksika Defendants. As I understand the Statement of Claim it is a general allegation of improper stewardship of funds belonging to the Siksika Nation by both the Chief and Council of the Siksika Nation and by the Directors and Officers of the Siksika Youth Entrepreneurial Development Society (the "Society"). The Statement of Claim seeks to recover $100, 600.00 over which the Siksika Nation had control, any recovery to be held in trust by the Plaintiffs for the Siksika Nation.

BACKGROUND

[2]                  The Plaintiffs are concerned that $100,600.00, which was earmarked to support a market garden project which was to have provided employment for young members fo the Siksika Nation, was somehow diverted from that purpose. The Plaintiffs say that the Council of the Siksika Nation, which by section 5 of their Code is:

... responsible for ensuring the effective and efficient administration of the financial resources of the Siksika Nation for the benefit of the members of the Nation

breached their fiduciary duty to the members of the Siksika Nation by failing to ensure that the funds were properly used to benefit the Society.

[3]                  I accept the uncontradicted evidence of Ms Connie Tuharsky, an Alberta barrister and solicitor, who is general counsel for the Siksika Nation, that the Chief and Council have complete discretion to make decisions on behalf of the Nation and its members, decisions which are made independently and without consultation with the Crown. I understand the reference here be to the Indian and Revenue Moneys Regulations. In addition to adding to the substance of the Chief and Council of the Siksika Nation, this goes to negate the suggestion that the Siksika Defendants are servants or agents of the Crown, a point I will consider in due course.

[4]                  The Plaintiffs go on to say that the Defendant, Stacey Doore, has misappropriated the funds of the Society.

[5]                  Finally, the Plaintiffs say that there should be various additional relief, including restraining orders, an accounting, return of director's fees by the directors of the Society and the appointment of a receiver manager for the Society.

[6]                  In passing, the Defendant, the Chief and Council of the Siksika Nation have established that, as represented by its Chief and Councillors, the Nation has begun an Alberta Court of Queen's Bench action against Mr Doore and his proprietorship or partnership, First Light Market Garden. Mr Doore and his enterprise were to have created jobs for Siksika Nation youth. The Court of Queen's Bench action on behalf of the Siksika Nation is to recover funds and to seek additional relief against Mr Doore. Relevant here is the fact of jurisdiction in the Alberta Court system as a bar to jurisdiction in the Federal Court by way of section 25 of the Federal Court Act.

[7]                  The Defendants, other than Mr Doore, who is not yet represented in this action, submit that even were all the allegations in the Statement of Claim taken as proven, the Federal Court does not have jurisdiction to try the case.

CONSIDERATION

Procedure

[8]                  The Plaintiffs question the procedure used by Siksika Defendants on their motion to strike out. Rule 208 provides leave to a party, served with a statement of claim, to object to jurisdiction without attorning to the jurisdiction of the Court. The editors of Sgayias on Federal Court Practice note that a challenge must be brought under some other provision of the Federal Court Act.

[9]                  In Weider v. Beco Industries Ltd. (1976), 29 C.P.R. (2d) 175 (F.C.T.D.) at 176 Mr Justice Mahoney observed that "... pleading a cause of action that is beyond the Court's jurisdiction to adjudicate is a clear abuse of its process.". On this authority I take it that the Court may look to what is now section 221(1)(f) for jurisdiction to strike out as an abuse of process. On such a motion affidavit evidence is allowed.

[10]            Sgayias (supra) goes on to refer to Cairns v. Farm Credit Corp. (1991), 49 F.T.R. 308 (F.C.T.D.) in which Mr Justice Denault touched upon the issue of bringing a motion to strike out, for want of jurisdiction, under the former Rule 401, now Rule 208 and Rule 419(1)(a), now 221(1)(a), for want of reasonable cause of action. He observed that failure to rely on the correct rule did not defeat the substance of such a motion to strike out.

[11]            Sgayias (supra) goes on in the editorial comment on Rule 208 to refer to MIL Davie Inc. v. Hibernia Management and Development Co. (1998), 226 N.R. 369 in which the Court of Appeal, at page 373 and following grappled with the issue and finally observed that the prohibition against affidavit evidence, on a motion to strike out, under what was then Rule 419(2) which is now Rule 221(2), did not apply when the jurisdiction of the Court was contested, for that was beyond a mere objection to a pleadings for failure to set out a reasonable cause of action.

[12]            Given this background, culminating in the MIL Davie case, I take it that I am at liberty to apply either Rule 221(1)(a), want of cause of action, with affidavit evidence as may be appropriate, or Rule 221(1)(f) to strike out a pleading, by reason of want of jurisdiction on the part of the Court, as an abuse.

[13]            In striking out a pleading or an action it must be plain, obvious and beyond doubt that a claim will not succeed, this being the test set out in three Supreme Court of Canada cases, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 and Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735: this test is so solidly established that it is no longer usually necessary to dwell on the test. However, as I pointed out in Charlie v. Vuntut Gwitchin Development Corp. (2002), 218 F.T.R. 116 (F.C.T.D.) at page 121, it is for the defendant, seeking to strike out an action, to put forward his or her best argument which might stand, or which may be shown by the plaintiff to be weak or in doubt. However this is not to say that the burden shifts to the plaintiff to show, positively, that there is jurisdiction. Indeed, in Hodgson v. Ermineskin Indian Band No. 942 (2000), 180 F.T.R. 285 (F.C.T.D.) Madam Justice Reed observed at page 289 that:

The "plain and obvious" test applies to the striking out of pleadings for lack of jurisdiction in the same manner as it applies to the striking out of any pleading on the ground that it evinces no reasonable cause of action. The lack of jurisdiction must be "plain and obvious" to justify a striking out of pleadings at this preliminary stage.

Madam Justice Reed was upheld on appeal (2000), 267 N.R. 143 (F.C.A.), leave to appeal to Supreme Court of Canada denied (2001), 276 N.R. 193.

Lack of Jurisdiction

[14]            Mr Stacey Doore is unrepresented and took no part in this action. I therefore do not decide his situation. It may be that the claim against him is purely between subject and subject and is thus clearly beyond jurisdiction of the Federal Court. Alternately, the Siksika Nation is presently suing Mr Doore in the Court of Alberta Queen's Bench for at least the relief claimed here in the Federal Court and thus Federal Court action as against Mr Doore should be stayed. However all of this, subject to a discontinuance, will have to be dealt with at some later date. I now turn to the want of jurisdiction alleged by the Siksika Defendants.

[15]            The test to apply in order to determine whether there is jurisdiction over a matter in the Federal Court was set out by the Supreme Court of Canada in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752 at 766. While the second and third branches of the test deal with a requirement of an existing body of federal law to nourish a statutory grant of jurisdiction and that the law underlying the case must be a law of Canada, it is the first branch of the test that "[there] must be a statutory grant of jurisdiction by the federal Parliament.", which the Siksika Defendants say the Plaintiffs have failed to meet.

[16]            The Siksika Defendants refer to want of jurisdiction as considered by the Court in Stoney Band v. Band Council of the Stoney Band (Powderface v. Baptiste) (1996), 118 F.T.R. 258 (F.C.T.D.) as a complete answer to the Plaintiffs' case. In that instance the plaintiff band members commenced an action against the band council, two band employees and Crown alleging breaches of fiduciary and trust obligations and seeking remedies similar to those sought in the present instance, including damages, an accounting and appointment of receiver manager. In Stoney Band, at page 8, Mr Justice Heald observed that the required statutory grant must be found either in the Federal Court Act or some other Act of Parliament. He was unable to find a statutory grant of jurisdiction in the Indian Act. He therefore looked to the Federal Court Act. He pointed out that section 17 of the Act dealt with various matters, all involving the Crown and including instances in which relief was sought against an officer, servant or agent of the Crown for some act or omission in the performance of the duties of that person. Mr Justice Heald, relying upon Bear v. John Smith Indian Band, [1983] 5 W.W.R. 21 (Sask. Q.B.) and Cooper v. Tsartlip Indian Band (1994), 88 F.T.R. 21 (F.C.T.D.) rejected the concept of an Indian band Council as an agent of the Crown, however in Cooper Madam Justice Reed did not close off that avenue completely: see pages 24 - 25 of Cooper.

[17]            I do not see that the Stoney Band decision can be distinguished because band assets other than money were at stake, for the same principles apply in Stoney Band, just as in the present situation.

[18]            In the present instance I can find nothing in the Statement of Claim which, if proven, would establish that the Chief and Council of the Siksika Nation, either in their collective official role or on their own individual parts, were acting as officers, servants or agents of the Crown. Certainly, there is no allegation in the Statement of Claim that the Plaintiffs, or any of them, were officers, servants or agents of the Crown.

[19]            Counsel for the Siksika Defendants submits that, in addition to the evidence of Ms Tuharsky, General Counsel of the Siksika Band, that the Chief and Council never acted as agent for the Crown, there is also the concept that without anything further, a band council is not inherently an agent of the Crown: see Stoney Band (supra)at 262 and 263, Copper (supra) at 24 and following and Bear v. John Smith (supra) at 24. In Bear v. John Smith Mr Justice Noble refers to Union Packing Company Limited v. The King, [1946] Ex.C.R. 49 (Ex. Ct.) at 54 where President Thorson defined the circumstances by which a person or group of persons act as servant or agent of the Crown:

It is, I think, clear from these authorities that the question whether a body performing functions of a public nature is a servant or agent of the Crown or is a separate independent entity depends mainly upon whether it has discretionary powers of its own, which it can exercise independently, without consulting any representative of the Crown.

Union Packing was reversed [1946] S.C.R. 456, on another aspect: Mr Justice Noble observes in Bear v. John Smith that the Exchequer Court decision in Union Packing is the most widely accepted statement on defining a body as a servant or agent of the Crown. In the present instance the Plaintiffs acknowledge in argument that the Siksika Nation clearly has the authority to "control, manage, and expend in whole or in part its revenue moneys". Clearly, on this test, the Siksika Nation does not act as a servant or agent of the Crown.

[20]            The Plaintiffs refer to the Indian Act for several propositions upon which to build a statutory grant of jurisdiction. This is not an allegation which is made in the Statement of Claim. Instead the Plaintiffs refer to section 69(1) and (2) of the Indian Act. However these sections are permissive in the sense of giving a band power to control, manage and expend revenue money and go on to allow the Governor-in-Council to make regulations to that effect. Here the Plaintiffs observe that the Indian Band Revenue Moneys Order, SOR/90-297 grants the Siksika Nation the authority to "control, manage and expend in whole or in part its revenue moneys.". All of this, if taken as proven and if one accepts as proven the allegation in section 15 of the Statement of Claim that the "... funds were taken from the Ottawa trust accounts of the Siksika Nation.", still does not result in a cause of action founded in the Indian Act.

[21]            Counsel for the Plaintiffs, as two alternatives, refers both to Rule 55, providing that "in special circumstances, on motion, the Court may dispense with compliance with any of these rules." and to Rule 57, allowing conversion of an action into judicial review, as possible grounds for allowing this matter to proceed. The answer to this is that in any event the Court does not have jurisdiction as the proceeding is presently set out. Certainly a band council may be a federal board whose actions are subject to judicial review, however that is neither implied nor alleged in the Statement of Claim which refers to events happening between the end of August 2000 and end of February 2001, which leaves the Plaintiffs, who commenced this proceeding in March 2003 well out of time. However, none of that is before me on a motion to strike out. Of course, if the Plaintiffs still feel that the Siksika Chief and Band Council acted as a federal board, commission or tribunal it is also open to them to seek an extension of time within which to commence judicial review proceedings.

[22]            The present action is struck out, as beyond the jurisdiction of the Court, but without prejudice to any procedure by which the Plaintiffs might bring a separate judicial review application and seek to establish jurisdiction in that way. Costs to the Defendants.

(Sgd.) "John A. Hargrave"

                                                                                              Prothonotary

Vancouver, British Columbia

4 June 2003

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            T-376-03

STYLE OF CAUSE:                        Roy Little Chief et al. v. The Chief and Council of the Siksika Nation et al.

PLACE OF HEARING:                   Vancouver, British Columbia

DATE OF HEARING:                      26 May 2003

REASONS FOR ORDER:            Hargrave P.

DATED:                                              4 June 2003

APPEARANCES:                          

                                         

SOLICITORS OF RECORD: