Date: 20000313
Docket: T-2553-91
BETWEEN:
THEODORE HODGSON, HARLEY HODGSON, DENNIS HODGSON,
LARRY HODGSON, AMY PUGH, PEGGY LUNDIE,
ALMA DUWAR AND CAROL LEEB
Plaintiffs
(Respondents)
- and -
ERMINESKIN INDIAN BAND NO. 942 and
THE ERMINESKIN BAND COUNCIL
Defendants
(Appellants)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the MINISTER OF INDIAN
AND INUIT AFFAIRS
Defendant
(Respondent)
REASONS FOR ORDER
REED, J.:
[1] This is an appeal from a decision of the prothonotary refusing to strike out certain parts of the plaintiffs' Statement of Claim.
[2] The Statement of Claim seeks a declaration that the plaintiffs have been members of the Ermineskin Indian Band No. 942 since November 16, 1937, or since their respective birth dates, if that date is later. The plaintiffs seek: a declaration that they are entitled to receive all benefits that have been received by members of the band; a declaration that they are entitled to receive future benefits made available to band members; an accounting of all benefits; and general damages plus interest. The claim alleges joint and several liability on the part of Her Majesty the Queen in Right of Canada as represented by the Minister of Indian and Inuit Affairs ("the Crown") and the Ermineskin defendants.
[3] Prothonotary Hargrave has described the Statement of Claim and the Ermineskin defendants' motion in a concise and clear fashion. I adopt his description as set out in paragraphs 2-6 that follow:
| [2] The Plaintiffs in this litigation set out in their Statement of Claim that they are the children and descendants of Fred and Mina Hodgson, the latter either being a member of or being entitled to be registered as a member of the Ermineskin Indian Band. |
| [3] By resolution of 16 November 1937 the Ermineskin Band Council made Fred and Mina Hodgson, together with Amy Pugh, Alma Duwer and Larry Hodgson, Band members. |
| [4] On 7 January 1944, the Minister of Mines and Resources is said to have wrongly deleted from Band registration the names of Mina and Fred Hodgson and of five of the Plaintiffs, a decision which the Minister, despite requests, including from the Chief and Council of the Ermineskin Band, refused to reconsider. |
| [5] Next in the Statement of Claim, come paragraphs 10 and 11 which the Band wishes struck out: |
| 10. That the Defendant, Ermineskin Indian Band #942 and the Defendant, Ermineskin Band Council have publicly stated that those sections of the Indian Act which deal with membership in the Band are unconstitutional and that the control of membership in a Band is an aboriginal right held by the individual Bands that cannot be restricted by any provision of the Indian Act. |
| 11. That despite numerous demands made by the Plaintiffs herein, the Defendants, Ermineskin Indian Band No. 942 and the Ermineskin Band Council, have refused and continue to refuse to honour the Band Council Resolution dated November 16, 1937. |
| . . . |
| [6] In May of 1987 the Ermineskin Band, pursuant to the Indian Act, adopted its own membership rules and a code controlling membership. The Plaintiffs say that despite many requests all of the Defendants, including the Ermineskin Band, have refused to deal with the question of the Plaintiffs' membership in the Band as provided for by the membership rules and code (paragraph 13 of the Statement of Claim). This brings us to the crux of Statement of Claim, paragraph 14, which sets out that all of the Defendants have breached a fiduciary duty to all of the Plaintiffs. The particulars of the breach included allowing deletion of the names of the plaintiffs from the Band membership, failing to add subsequently born issue to the Band list and failing to protect the interest of the Plaintiffs, in the result depriving the Plaintiffs of the benefit they would have had as members of the Ermineskin Band. In full paragraph 14 is as follows: |
| 14. Each and all of the Defendant's herein have a fiduciary duty to each and all of the Plaintiffs herein and that this fiduciary duty has been breached by each and all of the Defendants herein, some particulars of which are as follows: |
| a) Allowing the deletion of the names of the Plaintiffs, Larry Hodgson, Harley Hodgson, Amy Pugh, Alma Duwar, and Peggy Lundie from the Ermineskin Band list as of January 7, 1944, thereby depriving the Plaintiffs of any benefits, financial or otherwise, they would have received as Ermineskin Band Members subsequent to January 7, 1944 to date of trial; |
| b) Failing to add the names of the Plaintiffs, Theodore Hodgson, Dennis Hodgson and Carol Leeb to the Ermineskin Band List as of their respective dates of birth thereby depriving the said Plaintiffs from any benefits, financial or otherwise, they may have received as Ermineskin Band Members subsequent to their respective dates of birth to date of trial; |
| c) Failing to advise the Plaintiffs herein as to the benefits they may be entitled to and failing to protect the interest of the Plaintiffs herein by taking a course of action which has deprived the Plaintiffs herein from benefits, financial and otherwise, that they are entitled to as members of the Ermineskin Indian Band. |
| The Ermineskin Band wishes all references to the Band, as in "all of the Defendants" removed from paragraphs 13 and 14 and from all of the portions of the prayer for relief except paragraph (a). These changes would make it clear that the claim, particularly as to any monetary relief, arising by way of declarations of entitlement in the nature of benefits and for damages, interest and costs, would be the responsibility of the Crown. ... |
[4] Should the appeal be granted, the only part of the plaintiffs' claim that would be left, relating to the Ermineskin defendants, would be the request for a declaration that the plaintiffs have been Band members since 1937. The Ermineskin defendants wish to remain part of the action insofar as that claim is concerned.
[5] The Ermineskin defendants argue that the deletions and modifications to the Statement of Claim that are sought, must be made because: (1) this Court has no jurisdiction over a claim for monetary relief against the Ermineskin defendants, arising out of a breach of fiduciary duty; (2) the facts pleaded in the Statement of Claim cannot possibly support a claim that the Ermineskin defendants owed, or owe, a fiduciary duty to the plaintiffs.
[6] All parties agree that the issues raised in this appeal are "vital to the final issue of the case". Therefore, on an appeal of a prothonotary's order, I am required to exercise my own discretion de novo, as set out in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 463.
Jurisdiction
[7] The Ermineskin defendants do not dispute that this Court has jurisdiction over decisions of the Band Council pursuant to sections 18 and 18.1 of the Federal Court Act, the Band Council being a "federal board, commission or other tribunal". However, the Ermineskin defendants argue that the Court does not have jurisdiction to hear a claim by an individual (including a band member) against the Band Council based on a breach of fiduciary duty or trust obligation (see Stoney Band v. Band Council of the Stoney Band, [1996] 3 F.C. D-052 (T.D.) at paragraph 22), or for damages for a breach of contract or tort (see Beauvais v. The Queen and the Mohawk Council of Kanawake, [1982] 1 F.C. 171 (F.C.T.D.) and Trotchie v. The Queen, [1981] 2 C.N.L.R. 147 (F.C.T.D.)). Other decisions that were referred to as demonstrating the Court's limited jurisdiction are: Lower Similkameen Indian Band v. Allison, [1997] 1 F.C. 475 (T.D.) at paragraph 19; Varnam v. Canada (Minister of Health and Welfare), [1988] 2 F.C. 454 (F.C.A.); Lubicon Lake Indian Band v. The Queen, [1981] 2 F.C. 317 (T.D.); and Alda Enterprises Ltd. v. The Queen, [1978] 2 F.C. 106 (T.D.).
[8] Counsel for the Ermineskin defendants argues that the prothonotary did not use the correct test when assessing whether the pleadings should be struck under Rule 221(1)(a) for lack of jurisdiction. The prothonotary stated that it must be "plain and obvious and beyond doubt" that the Court is without jurisdiction in order for a motion to strike to succeed at this stage. Counsel argues that the test is whether it is plain and obvious that the plaintiffs' pleading will fail because the Court lacks jurisdiction.
[9] I agree that a motion to strike under Rule 221(1)(a) [previously Rule 419(1)(a)] on the ground that the Court lacks jurisdiction is different from other motions to strike under that subrule. In the case of a motion to strike because of lack of jurisdiction, an applicant may adduce evidence to support the claimed lack of jurisdiction. In other cases, an applicant must accept everything that is pleaded as being true (see MIL Davie Inc. v. Hibernia Management & Development Co. (1998), 226 N.R. 369 (F.C.A.), discussed in Sgayias, Kinnear, Rennie, Saunders, Federal Court Practice 2000, at pages 506-7).
[10] I do not share the Ermineskin defendants' view that the prothonotary applied the wrong test. Some questions of jurisdiction cannot be easily decided until after all the evidence in a case has been adduced. On other occasions, such questions may easily be decided on a summary motion to strike. 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.
[11] The tests for Federal Court jurisdiction were set out in ITO"International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752 at 766. There must be: (1) a statutory grant of jurisdiction by Parliament; (2) an existing body of federal law essential to the disposition of the case; (3) the law must be a law of Canada. The Indian Act, R.S.C. 1985, c. I-5 satisfies the second and third requirements in this case.
[12] Insofar as the first requirement is concerned, for present purposes, it suffices to refer to the decisions in Roberts v. Canada, [1989] 1 S.C.R 322, and Paul v. Kingsclear Indian Band (1997), 132 F.T.R. 145. In the Roberts case, two Indian Bands claimed an interest in the same reserve lands. In the Paul case, there were competing claims between a husband and wife to a family home located on reserve lands. In both cases, the Crown held the underlying title and owed a fiduciary obligation to the parties. The Court was held to have jurisdiction arising from subsection 17(4) of the Federal Court Act:
(4) The Trial Division has concurrent original jurisdiction to hear and determine proceedings to determine disputes where the Crown is or may be under an obligation, in respect of which there are or may be conflicting claims.
(4) La Section de première instance a compétence concurrente, en première instance, dans les procédures visant à régler les différends mettant en cause la Couronne à propos d'une obligation réelle ou éventuelle pouvant faire l'objet de demandes contradictoires.
[13] The facts in the present case resemble those in the Roberts and Paul cases. In the present case, the plaintiffs' claim relates to band membership status and the benefits that flow from such status. The plaintiffs plead: that the Crown breached its fiduciary obligations by allowing the deletion of the names of certain of the plaintiffs in 1944; in failing to add the names of the plaintiffs to the Ermineskin Band list, up to the date of trial; that the Ermineskin defendants breached their fiduciary obligation in failing to uphold the 1937 Band Council Resolution, and in failing to add the plaintiffs to the Band list when the Ermineskin defendants took control of the Band list.
[14] Counsel for the Crown argues that these allegations involve claims against the Federal Crown in respect of which the following conflicting claims arise or may arise:
| (a) If a fiduciary obligation exists with respect to the alleged failure to honour the Band Council Resolution of November 16, 1937 - it that obligation Canada's, the Ermineskin defendants', or both?; |
| (b) If the plaintiffs are entitled to registration as members, as a result of this alleged breach of this fiduciary obligation, are the plaintiffs entitled to past "benefits" which members would have received? If so, is the Crown or the Ermineskin defendants responsible for the payment of these "benefits"? Are there differing obligations arising from different "benefits"? For example is the Crown's obligation any different if the "benefits" are defined as capital distributions, revenue distributions, or other benefits such as reserve housing? |
| [15] The Crown has pled in its defence, and the Ermineskin defendants argued in their memorandum, that after the Ermineskin Band took control over its membership, the Crown has "no further responsibility" for the addition or deletion of names from the Band list. The plaintiffs dispute this and argue a degree of continuing Crown responsibility. This dispute over continuing authority (or potential fiduciary responsibility) also gives rise to potentially conflicting obligations. |
| [16] I am not persuaded that it is plain and obvious that the Court is without jurisdiction to hear the claims that the Ermineskin defendants seek to have struck out. |
| Fiduciary Duty |
| [17] The Ermineskin defendants argue that the plaintiffs' claim discloses no reasonable cause of action against them because, as a matter of law, the Ermineskin defendants do not owe the plaintiffs any fiduciary obligations on the facts of the present case. |
| [18] The Ermineskin defendants argue that: (1) while there are several court decisions that recognize that a Band Council may owe a fiduciary obligation to band members in certain circumstances - the present case does not fit within these decisions; and (2) the plaintiffs were never, at any the relevant time, members of the Ermineskin Band and so could not be owed any fiduciary duty. |
| [19] The plaintiffs have claimed that the Ermineskin defendants breached their fiduciary obligations owed to the plaintiffs by failing, inter alia, to honour the Band Council resolution of November 16, 1937. According to paragraph 6 of the Amended Amended Statement of Claim, which must be assumed to be true for the purpose of this aspect of the defendants' motion, the Band Council resolution made the plaintiffs' parents, and three of the plaintiffs, members of the Ermineskin Band. |
| [20] Counsel for the Crown argues that it is not clearly futile for the plaintiffs to allege that the Ermineskin defendants, which had resolved to add the plaintiffs' parents and three of the plaintiffs as members, may owe a fiduciary obligation to those persons or to their descendants arising from that resolution. Those persons were members of the band at one point in time. Whether they can now claim a continuing fiduciary obligation is not a matter to be determined under a Rule 221(1)(a) motion. |
| [21] Counsel for the Crown argues that the Ermineskin defendants have not cited any conclusive authority to establish - as a matter of settled law - that a fiduciary obligation could not be owed in the circumstances. In the absence of such authority, Crown counsel argues that this aspect of the Ermineskin defendants' motion to strike can be dispensed with on the basis of the comments of Dickson J. for the Supreme Court of Canada in Guerin v. The Queen, [1984] 2 S.C.R. 335 at 384: |
| The categories of fiduciary, like those of negligence, should not be considered closed: see e.g., Laskin v. Bache & Co. Inc. (1971), 23 D.L.R. (3d) 385 (Ont. C.A.) at p. 392; Glodex Mines Ltd. v. Revill (1974), 7 O.R. 216 (Ont. C.A.) at p. 224. |
| [22] I find the Crown's arguments persuasive. |
| Conclusion |
| [23] For the reasons given this appeal will be dismissed. |
| Judge |
| OTTAWA, ONTARIO |
| March 13, 2000 |