Date: 20001229
Docket: T-501-88
BETWEEN:
FOX LAKE INDIAN BAND and ROBERT WAVEY as
Chief and CLARA WAVEY and GORDON ANDERSON
as Councillors of the said FOX LAKE INDIAN
BAND and CLIFFORD STEVEN SAUNDERS
Applicants
- and -
REID CROWTHER & PARTNERS LIMITED and
HER MAJESTY THE QUEEN
Respondents
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] The action herein arises from contracts for the provision of water and sewer services on lands held for an Indian Band. The services contracted for were substantially provided and failed to serve. The original contract was entered into by a joint venture formed by the Indian Band and C.B.J. Northern Inc. ("CBJ"). A corporation solely owned by Ron Zettergren ("RZ"). When the project was not workable it was thought that additional work would cure the problem. RZ gained the impression that CBJ would be authorized by the Department of Indian Affairs and Northern Development ("DIAND") to proceed with additional work and would be paid for it. It is alleged that RZ made arrangements with the plaintiff, Clifford Steven Saunders ("Saunders") for an advance of money to fund the additional work. Saunders it is alleged caused his wholly owned corporation, Rank Electronics Ltd. ("Rank") to draw cheques for the necessary funds in favour of RZ who deposited them for the use of CBJ. As security for re-payment of this advance of funds it is alleged CBJ, RZ and the Band were to assign to Saunders the moneys that would be paid to them with respect to the additional work. In due course, the Crown, DIAND, failed to pay for the additional work.
[2] An action was commenced by the Band and Saunders against the Crown and the designers of the project. The Band has settled with the Crown and the action is at the moment by Saunders as Assignee of the interests of RZ and CBJ. There is no allegation that Saunders or Rank had any direct relationship with the Crown and have none other than as Assignee of the rights of RZ and CBJ.
[3] The action was commenced early in 1988 and was based on Saunders' position as Assignee of the rights to the payments alleged due for the work. Apparently, the Crown had been notified of the assignment before it settled with the Band. The action was left in abeyance from mid 1989 while a dispute with the designer was litigated in the Manitoba Court of Queen's Bench and not until 1995 were any further steps taken in this action.
[4] Now, twelve years after the action began and more than five years after interest was again aroused. Saunders seeks to add his company, Rank as a plaintiff and also seeks to expand his claim to rely on unjust enrichment of Crown lands and quantum meruit in addition to the original grounds based on assignment of the chose in action.
[5] The Crown opposes the motion to add arguing first the limitation period has run. Secondly, the Crown argues that there is no direct relationship between Rank (or Saunders) and the Crown so unjust enrichment and quantum meruit or any other equitable relief is not available.
[6] The proposed amending statement of claim was not filed. In my view, it should have been. Where it is sought merely to add a party it may not be strictly necessary to exhibit an amending claim if the remainder of the claim is to be substantially unaltered. Where however, new grounds are to be alleged, the Court must be able to ascertain that the claim would not be struck out as revealing no cause of action.
[7] It has been held that an action should not be dismissed on a motion to strike where there is an allegation of expiry of the limitation period but the matter should be left to the judge at trial or on summary judgment. However, where the Court does not know what the allegations will be in an amended statement of claim, an amendment should not be permitted. If it were to be alleged that the claim for unjust enrichment and for payment quantum meruit were assigned, it may be that the statute of limitations did not run. In any event, a draft amended statement of claim should be filed to indicate the relationship between the existing or proposed plaintiffs and the Crown. Any action based on unjust enrichment or quantum meruit payment can only be based on assignment of choses in action by persons having a direct relationship with the Crown.
ORDER
[8] The motion to add a party and to amend will therefore be dismissed but with leave to re-apply exhibiting an amended statement of claim which alleges only causes of action arising from assignments of interests in favour of the plaintiff(s). Such a new application, if any, to be filed by January 31st, 2001, any response thereto is to be filed by February 28th, 2001 and any reply by March 8th, 2001.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
December 29, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-501-88 |
| STYLE OF CAUSE: FOX LAKE INDIAN BAND and ROBERT WAVEY as Chief and CLARA WAVEY and GORDON ANDERSON as Councillors of the said FOX LAKE INDIAN BAND and CLIFFORD STEVEN SAUNDERS |
Applicants
-and-
REID CROWTHER & PARTNERS LIMITED
and HER MAJESTY THE QUEEN
Respondents
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
| DATED: FRIDAY, DECEMBER 29, 2000 |
| WRITTEN SUBMISSIONS BY: Mr. Richard Henderson |
| For the Applicants |
Mr. Paul Anderson
| For the Respondents |
| SOLICITORS OF RECORD: Richard Henderson |
Barrister & Solicitor
| 162 - 2025 Corydon Avenue |
Winnipeg, Manitoba
| R3P 0N5 |
| For the Applicants |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondents |
FEDERAL COURT OF CANADA
Date: 20001229
Docket: T-501-88
Between:
FOX LAKE INDIAN BAND and
ROBERT WAVEY as Chief and CLARA
WAVEY and GORDON ANDERSON
as Councillors of the said FOX LAKE
INDIAN BAND and CLIFFORD
STEVEN SAUNDERS
Applicants
- and -
REID CROWTHER & PARTNERS
LIMITED and HER MAJESTY THE
QUEEN
Respondents
REASONS FOR ORDER
| AND ORDER |