Date: 19990910
Docket: T-2553-91
BETWEEN:
THEODORE HODGSON, HARLEY HODGSON,
DENNIS HODGSON, LARRY HODGSON, AMY PUGH,
PEGGY LUNDIE, ALMA DUWAR AND CAROL LEEB,
Plaintiffs,
- and -
ERMINESKIN INDIAN BAND NO. 942 and
THE ERMINESKIN BAND COUNCIL,
Defendants,
- and -
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, as represented by the MINISTER
OF INDIAN AND INUIT AFFAIRS,
Defendant.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] On a motion to strike out a statement of claim, or part of it in this case, I must accept the statement of claim as if proven, subject to allegations that are too far fetched, which is not the case here. As relevant background I turn to the Statement of Claim.
BACKGROUND
[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. |
The grounds to have these paragraphs struck out, as set out in the motion itself, seem to be that the relevant date in all of this is 7 January 1944, the date of the Minister"s decision and that 16 November 1937, the date on which the Ermineskin Band made Fred and Mina Hodgson and their issue Band members, has no relevance.
[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. The only claim for relief then left against the Ermineskin Band would be the possibility of a declaration that the Plaintiffs have in fact been Band members since 1937.
ANALYSIS
[7] The Ermineskin Band attacks parts of the Statement of Claim in two ways. First, the Ermineskin Band says it owes no fiduciary duty to the Plaintiffs and thus damages are not founded on any reasonable cause of action; and second that, in any event, the Court has no jurisdiction over a claim for damages or equitable relief in this instance.
[8] To begin, the motion to strike out is brought under Rule 221(1) which deals with, among other things, want of a reasonable cause of action. Attacks focussing on jurisdiction perhaps ought to be brought under Rule 208(d). However Rule 208, in contrast with its predecessor, Rule 401, does not, as Sgayias points out in the 1999 Edition of the Federal Court Practice, provide any direction as to the steps a party objecting to jurisdiction may take. It was never considered wrong under the pre-1998 Rules to challenge jurisdiction under the predecessor to Rule 221: see for example Mobarakizadeh v. Canada (1994), 72 F.T.R. 30 (T.D.) at 31.
[9] Counsel for the Crown touches upon the test for striking out. Now one might consider trite the case law requiring the moving party to show it to be plain, obvious and beyond doubt that a pleading will not succeed. Yet it is all to easy to strike out a pleading by overlooking the plain and ordinary meaning of "plainly, obviously and beyond doubt" and in doing so deny a party a day in Court merely because the pleading will likely not or probably not succeed, or because a party will have great difficulty in proving a claim or a defence, or because a claim is novel. Properly the test for striking out for want of a reasonable cause of action is to accept the pleading as if proven and then determine if the pleading would be absolutely forlorn and futile.
Want of a Reasonable Cause of Action
[10] I will deal first with the submission of want of a reasonable cause of action. The Ermineskin Band challenges the claim which they view as one hinging upon breach of fiduciary duty to the Plaintiffs.
[11] The Ermineskin Band takes the position that the relevant dates are 1944, when the Minister made his decision to cancel Band membership and 1991 when the Band refused to allow reinstatement and here counsel refers to a 16 April 1998 Court of Appeal decision arising out of an interlocutory motion. I do not think the 1998 decision particularly helps the Ermineskin Band for the Court of Appeal was of the view, at paragraph 20, that the real question is whether the Ermineskin Band and the Crown "... were under a fiduciary duty toward the respondents, based on a failure to honour the Band Council resolution of November 16, 1937 which was nullified by the Ministerial decision of January 7, 1944.". Now the Ermineskin Band"s position here is that the 1937 resolution was nullified by the 1944 Ministerial decision and thus there is no cause of action against the Band, but only against the Minister.
[12] The submissions of the Ermineskin Band are to the effect that while a Band council stands in a fiduciary position vis à vis not only all of the Band members, both individually and collectively, but also toward the Band as a whole and that the Band council has an obligation to act impartially, the Plaintiffs were not at any relevant time members of the Ermineskin Band. Counsel for the Ermineskin Band refers to substantial case law for these propositions including Leonard v. Gottfriedson (1981), 21 B.C.L.R. 326 at 343 (B.C.S.C.) Campbell v. Elliott [1988] 4 C.N.L.R. 45 at 54 (F.C.) Barry v. Garden River Band (supra) at 627-629 (Ont. C.A.), Gilbert v. Abbey [1992] 4 C.N.L.R. 21 at 23-24 (B.C.S.C.) and Attorney General of Quebec v. Canada [1994] 3 C.N.L.R. 49 at 85-86 (S.C.C.), but no case law setting out that the Band has no duty: I will return to this point in due course. As I have indicated the Ermineskin Band places the relevant period between 1944, when the Minister cancelled the Plaintiffs" membership in the Band and 1991 when the action was commenced, pointing out that the Court of Appeal denied an amendment which might carry the claim beyond 1991.
[13] It may be too narrow an analysis to try to strike out on the basis that the Plaintiffs" situation does not seem to fall within a number of specific cases and to deny a fiduciary duty merely on the basis that, since the Plaintiffs were not shown in Band and government records as Band members between 1944 and 1991, no fiduciary duty is owed.
[14] To begin, the Plaintiffs in their Statement of Claim do not limit their claim as commencing in 1944, but rather go back to 16 November 1937 and allege that the Band Council failed to honour its resolution. Here I would reiterate that, for the purposes of the present motion, this must be assumed to be a true statement, and so also the statement that the Band Council Resolution made the parents of the Plaintiffs and three of the Plaintiffs members of the Ermineskin Band. This indicates to me that the claim of at least three of the Plaintiffs may well not be absolutely futile. Here I would also note and repeat the observation of the Federal Court of Appeal in dealing with an interlocutory motion arising out of this action, Mr. Justice of Appeal Stone writing for the Court:
| In my view, the real question or questions in controversy as originally pleaded are whether the appellants and their co-defendant were under a fiduciary duty toward the respondents based on the failure to honour the Band Council resolution of November 16, 1937, which was nullified by the ministerial decision of January 7, 1944. |
Moreover, serious issues of law ought not to be determined on a summary motion unless they are so absolutely futile as to warrant being struck out: Vulcan Equipment Co. v. Coats Co. [1982] 2 F.C. 77 (F.C.A.) at 78 (leave to appeal to the Supreme Court of Canada refused (1982), 63 C.P.R. (2d) 261 n.). Moreover, in the present instance, the possibility of a fiduciary duty going back to 1937 is not only pleaded, but may well be completely arguable. Yet there are other arguments why the Plaintiffs may have a reasonable cause of action.
[15] In arguing that there is no fiduciary duty, the Ermineskin Band had to deal with Barry v. Garden River Band of Ojibways (1997), 147 D.L.R. (4th) 615 (Ont.C.A.). There the Ontario Court of Appeal held that a Band council had an obligation to ascertain the membership of a Band before distributing benefits to which all band members were entitled to share pro-rata. The Band council had denied the distribution to the appellant children because they were not members of the Band at the time of the distribution. However, the children were not members merely because of a delay in processing their membership applications, with each of the children being entitled to become a member of the Band and in fact each did. The court held that the Band council ought to have delayed the distribution until it was able to determine membership or alternately "it would have been a simple thing to have made the distribution to members whose credentials were certain, after withholding for the time being an amount sufficient to cover the interests of those minor appellants whose applications had not yet been accepted." (page 628). The court went on to note that the Band council had not shown ordinary care, skill and prudence in its duties as trustee (page 631). The court decided the matter "... on the basis of well recognized principles relating to the fiduciary obligations of any person who undertakes to make a per capita distribution of a fund of money entrusted to that person"s care." (loc. cit. ). In Garden River Band each appellant received a share of a lump sum, together with interest and costs on a solicitor and client basis both in the trial and appeal courts.
[16] The Ermineskin Band says that Garden River Band ought not to be extended beyond the precise facts of the case. And particularly so where the membership claim might be tenuous, for otherwise the process of distribution of resources and funds would come to a halt. Yet the Ermineskin Band has known of this present claim, a serious claim, for some time. The law of fiduciary duty, as applied to Indian matters, has been evolving quite rapidly. A Band council, showing ordinary care, skill and prudence in carrying out fiduciary duties, might well be expected to put aside sufficient funds to cover the eventuality of the Plaintiffs becoming or being reinstated as members before making a general distribution to those who are listed by the Band as members.
[17] It also bothers me that the Ermineskin Band refers to a number of cases setting out, in positive terms, the various fiduciary duties of a Band Council, but is not able to point to any conclusive authority to establish, as a matter of law, that a fiduciary duty is not owed in the present circumstances. In the absence of such authority the governing principle is that the categories of fiduciary duty, like those of negligence, ought not to be considered closed:
| It is sometimes said that the nature of fiduciary relationships is both established and exhausted by the standard categories of agent, trustee, partner, director and the like. I do not agree. It is the nature of the relationship, not the specific category of actor involved that gives rise to the fiduciary duty. 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 at p. 392, [1972] 1 O.R. 465 (C.A.); Goldex Mines Ltd. v. Revill et al. (1974), 54 D.L.R. (3d) 672 at p. 680, 7 O.R. 216 (C.A.) at p. 224. [Guerin v. The Queen (1985), 13 D.L.R. (4th) 321 (S.C.C.) at 341] |
[18] In the present instance the Plaintiffs plead, in paragraph 14 of the Statement of Claim, a breach of fiduciary duty by all of the Defendants and go on to give particulars. It is a plea which could possibly succeed.
[19] I am not prepared to strike out either paragraphs 10 and 11 or to remove from paragraphs 13 and 14 or the relief claimed, relief which might flow from breach of fiduciary duty, any reference which could include the Ermineskin Band.
Want of Jurisdiction
[20] Counsel for the Ermineskin Band made various submissions to endeavour to establish that the Court has no jurisdiction. He began by considering section 18 of the Federal Court Act. In this, counsel for the Crown agrees, pointing out that there is no jurisdiction under sections 18(1)(a) and (b) in the circumstances, for subsection 18(3) of the Federal Court Act limits remedies provided in subsection 18(1) to applications for judicial review. Counsel for the Plaintiffs conceded it was not necessary to look for jurisdiction under section 18.
[21] The real issue is whether jurisdiction might be found in section 17(2)(a), (4) and (5)(b) of the Act:
| 17.(2) Cases - Without restricting the generality of subsection (1), the Trial Division has concurrent original jurisdiction, except as otherwise provided, in all cases in which (a) the land, goods, or money of any person is in the possession of the Crown; |
. . .
| (4) Conflicting claims against Crown -- 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. |
. . .
| (5) Relief in favour of Crown or against officer -- The Trial Division has concurrent original jurisdiction |
. . .
| (b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown. |
[22] These sections are said to provide the Court with its statutory grant of jurisdiction for, pursuant to ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. [1986] 1 S.C.R. 752 at 766, there must be first, a statutory grant of jurisdiction by the Federal Parliament; second, an existing body of law nourishing the statutory grant of jurisdiction and essential to the disposition of the case; and third, the law underlying the case must be a law of Canada. It is the first element in Miida Electronics, that of a lack of a statutory grant of jurisdiction from the Federal Parliament, which is the element the Ermineskin Band urges in this instance.
Statutory Grant of Jurisdiction
[23] Counsel for the Ermineskin Band submits that there is no statutory grant of jurisdiction under any of the three possible subsections of section 17 of the Act. Counsel for both the Plaintiffs and the Crown submit that jurisdiction lies under three provisions of section 17 of the Federal Court Act. I will consider each subsection in turn.
Jurisdiction Under Subsection 17(2)(a)
[24] Section 17(2) gives a statutory concurrent grant of jurisdiction to the Trial Division where land, goods or money of anyone is in the possession of the Crown. Sections 61 through 69 of the Indian Act deal with the management of Indian money which is held in trust by the Crown in the consolidated revenue fund, both as to capital money and revenue money. This money is held in trust, just as Indian lands were held in trust by the Crown in Roberts v. Canada (1989), 57 D.L.R. (4th) 197 (S.C.C.). In Roberts the dispute was between two Indian Bands who each claimed the same reserve territory. At issue before the Supreme Court of Canada was whether the Federal Court had jurisdiction. The Supreme Court held that there was jurisdiction because the Crown held the land in trust for one or the other of the claimant Bands (see page 207).
[25] In the present instance, the Crown holds Indian moneys in trust for all Band members. The Plaintiffs say that they are Band members. The Ermineskin Band says they are not. All of this seems a familiar type of dispute in the light of both Roberts v. Canada and Garden River Band (supra).
[26] At this point, I should acknowledge that there has been some legislated transfer of control of Band money, yet the Minister still has some obligations. For example, the Indian Band"s Revenue Money Regulations, C.R.C. c. 953, contains a reporting requirement to the Minister of Indian Affairs and Northern Development who, by section 3 of the Indian Act , administers the Act. Counsel for the Plaintiffs submits that a transfer of control over funds does not relieve the Minister from his overseeing capacity and the requirement that it be distributed to all members and indeed to all potential members.
[27] This ongoing obligation is at least in part based on the concept that while a Minister may delegate his or her authority, a Minister may not abdicate or walk away from a legislated responsibility. The Minister holds Indian monies, as defined in the Indian Act, for the use and benefit of Indian Bands as defined by section 2 of the Act and must administer as set out in section 3 of the Act. Even though the Minister has delegated money management to the Ermineskin Band I am not prepared to say that the Minister has absolutely no responsibility.
[28] I ought only to find want of jurisdiction if the matter is plain and obvious and beyond doubt. Moreover, serious issues of law, certainly the case here, ought not to be determined on a summary motion to strike pleadings unless the pleading is so clearly futile as to warrant striking: see for example Vulcan Equipment Co. (supra) at 78.
[29] In summary it is not a futile argument to say that the Federal Court has statutory jurisdiction under section 17(2)(a) of the Federal Court Act. Yet this may not be the Plaintiffs strongest claim to jurisdiction in the Federal Court.
Jurisdiction Under Section 17(4) of the Federal Court Act
[30] Section 17(4) of the Federal Court Act grants a concurrent statutory jurisdiction to the Trial Division to determine disputes where the Crown is under an obligation "in respect of which there are or may be conflicting claims.". The key elements here are that there must be a dispute and that there either are or may be conflicting claims. This leads us back to Roberts v. Canada (supra), in another context.
[31] The Supreme Court of Canada, in Roberts at page 206, accepted that section 17(4) of the Federal Court Act contain four quite self-evident elements:
| ... the section requires: (a) a proceeding, (b) to determine a dispute (c) where the Crown is or might be under an obligation, (d) in respect of which there are or may be conflicting claims. |
The Court then went on to point out that:
| Interpleader by the Crown would fit this description. Indeed, at first blush it is hard to envisage situations other than interpleader in which the requirements of s. 17(3)(c) [now section 17(4)] will all be met. |
However, that the present case may be one such anomalous situation.
[32] It is perhaps useful to look very briefly at the facts in Roberts, where two Indian Bands claimed possession of the same reserve. The plaintiff Band, out of possession, claimed against the defendant Band which was in possession, the cause of action being trespass. The plaintiff claimed against the Crown for breach of fiduciary duty in permitting the defendant Band to occupy the reserve. The plaintiff Band also sought a declaration of entitlement to the reserve property. This resulted in a situation in which the Crown was under an obligation in respect of which they were conflicting claims, the obligation being to hold the reserve for the use and benefit of the properly entitled Band.
[33] Applying the test from Roberts (supra) at 206, in the present instance there is clearly a proceeding to determine a dispute. However, the Ermineskin Band says that there is neither an obligation nor a situation in which there are or may be conflicting claims. The Ermineskin Band takes this position on the basis that the Crown, having delegated the control of Band membership to the Ermineskin Band, under section 10 of the Indian Act, the Crown has neither the authority nor the duty to determine membership in the Band, here referring to section 10(9) which provides that Indian Affairs and Northern Development shall have no further responsibilities with respect to the Band list from the date that a Band takes over control of membership. This is not a retroactive control, but rather, in the case of the Ermineskin Band, came into being in May of 1987 and continues.
[34] The Crown, in a broad sense, no longer has responsibility for the Band membership list when a Band takes it over is not entirely so. Section 10(9) of the Indian Act merely provides that the Department of Indian Affairs and Northern Development has no further responsibility. Wisely the drafters of the section 10 did not extend the exemption to the Minister who, of course, may only delegate authority, not completely abdicate responsibility. It may thus turn out, for example, that the Minister having delegated his statutory duties as to keeping of the Band membership list to the Ermineskin Band, as agent, has an obligation to require the agent to take heed of the grand-fathering Band membership provisions under sections 10(4) and 10(5) of the Indian Act.
[35] Where the analysis of section 10 of the Indian Act by the Ermineskin Band also misses the mark is that the Plaintiffs" claim, both as to declaratory relief and damages, is not only as to present membership, but also as to past membership. This was certainly clear to the Federal Court of Appeal which, as I have already pointed out, characterized the question in controversy as whether the Ermineskin Band and the Crown were under a fiduciary duty toward the Plaintiffs based on a failure to honour the 1937 Band Council Resolution. I will not again set out paragraph 14 of the Statement of Claim, but it is clear that at least part of this paragraph relates to the years before 1944 and that the claim is one of joint and several liability against the Ermineskin Band, the Ermineskin Band Council and the Canadian government for breaches of fiduciary obligations. The Plaintiffs go on to seek remedies which involve all of the Defendants. This brings us to the fourth branch of the test in Roberts , whether there are or may be conflicting claims.
[36] The position of the Ermineskin Band is that it neither claims against the Crown nor asserts any obligation its owed them which conflicts with the obligations said to be owed to the Plaintiffs, nor do they claim any interest or asset which is being claimed by the Plaintiffs. Rather the Ermineskin Band and the Ermineskin Band Council merely say they are entitled to control their own membership.
[37] Again, this is a nice neat statement, but it may well be an over-simplification. In Roberts (supra) the situation might have been analogous to interpleader but was not, because the Crown, while caught in the middle between two claimants to the same reserve, held the land as more than a mere stakeholder and instead of being a neutral stakeholder, clearly sided with the defendant Band. The Supreme Court in Roberts pointed out that the description of the proceeding covered by what is now section 17(4) of the Federal Court Act clearly included interpleader, but was not limited only to interpleader (page 206). Yet section 17(4) does not grant jurisdiction as a right merely because the Crown is a co-dependant along with the Ermineskin Band for clearly that goes beyond the intent of section 17(4) and disregards the elements set out in the section.
[38] In the instant case, there are a number of possibilities which open up into competing claims. If the 1944 decision of the Minister was wrong and the 1937 Resolution of the Band Council, which would have made the Plaintiffs Band members, is correct, that could well give rise to obligations. Without more it is difficult to see either the Crown or the Ermineskin Band, both of whom have denied responsibility, stepping forward alone and voluntarily to settle with the Plaintiffs: a conflicting claim may thus quite easily arise. In this same scenario, if the Plaintiffs should have been Band members since 1937, or since birth, are they entitled to back payment of funds and interest as if they had been Band members since 1937, or since birth, and up to the date of trial: again there may well be conflicting claims as to whether the obligation of payment is that of the Crown, or of the Ermineskin Band, or is a divided obligation. The Crown also points out that there may be different obligations depending upon the benefit in question: for example at issue may be revenue distributions, capital distributions, provision of housing or any one of a number of benefits which the Plaintiffs have so far been denied and thus conflicting claims as to who should respond.
[39] Kenneth Paul v. Kingsclear Indian Band (1997), 132 F.T.R. 145, in which other defendants including the Crown and Ms. Cynthia Paul, is perhaps more instructive in that the defendants were less clearly in conflict than was the case in Roberts. Indeed, in Kingsclear the competing claims are not mirror images of one another, but are a fairly complex web of conflicting assertions, claims and possible claims. In Paul the plaintiff claimed injunctive and declaratory relief and damages, having constructed, and having made improvements to the family home , in which he held a half interest and which was on an Indian reserve. Mr. Paul had tried, without success, to obtain possession of the home from Ms. Paul, from the Band and from the Minister of Indian and Northern Affairs. In deciding whether the Court had jurisdiction to hear the claim under section 17(4) of the Act, Mr. Justice Lutfy observed:
| The sole issue in this motion is one of jurisdiction. I need not decide whether the plaintiff will succeed in asserting either s. 23 of the Indian Act or the Crown"s fiduciary obligation. The Crown "is or may be under an obligation" concerning the plaintiff"s assertion of his rights pursuant to the certificate of possession in respect of which he and the defendant Paul, if not others, may have conflicting claims. The plaintiff, for example, is seeking injunctive relief against the defendant Paul to prohibit her continued occupation of the family residence. Accordingly, the third and fourth requirements for s. 17(4) are also met. |
The certificate of possession thus sought by Mr. Paul may be looked upon as analogous to the Band membership sought by the Plaintiffs. On this basis the requirements of section 17(4) may have been met in the present instance.
[40] The Ermineskin Band raises a further issue as to whether there are in fact the conflicting claims required by section 17(4) or whether there are merely disputed allegations in the Statement of Claim. Yet whatever one calls the issues, conflicting claims or disputed allegations, they are really not any different than the interplay of responsibility and liability under which the Crown might have been in Paul v. Kingsclear (supra) when the case came to be resolved on the merits. To try to distinguish between what may become a conflicting claim and what is only at present a disputed allegation is, I believe, over-scrupulous semantics, for section 17(4) does not require a positive allegation in the Statement of Claim of a competing claim, but only that flowing from the facts are pleaded there may be competing claims.
[41] In summary, as to section 17(4), while the action under this head of jurisdiction may not be an easy one for the Plaintiffs to establish jurisdiction and bring to a successful conclusion, it is not an approach to jurisdiction which I am prepared to say is plainly, obviously and beyond doubt futile and one which will not succeed.
Jurisdiction Under Section 17(5)(b) of the Federal Court Act
[42] As yet another source of jurisdiction the Plaintiffs and the Crown refer to section 17(5)(b) of the Federal Court Act which extends the Court"s jurisdiction to matters in which relief is sought by any person by reason of the performance of duties as the servant or agent of the Crown:
| 17.(5) The Trial Division has concurrent original jurisdiction |
. . .
| (b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown. |
[43] The Plaintiffs say that the Ermineskin Band, in dealing with Band membership, does so as a servant or agent of the Crown under authority delegated to the Band by the Minister of Indian Affairs and Northern Development pursuant to section 10 of the Indian Act.
[44] There are two difficulties with the concept that the Minister, by delegating Band membership determination or the authority to do so, under the Indian Act, constitutes the Ermineskin Band its servant or agent. First, a Band council is not usually a servant or agent of the Crown: here see the survey on this point in Powderface v. Baptiste (1997), 118 F.T.R. 258 at 262-263. Yet the cases referred to by Mr. Justice Heald, in Powderface, leave open the possibility that, in certain circumstances, a Band council could act as a servant or agent. Second, the Statement of Claim does not set out, in so many words, that the Ermineskin Band is a servant or agent. Here the Plaintiffs submit that the relationship need not be pleaded as such, but may be constructed from the facts in the Statement of Claim. In paragraph 12 of the Statement of Claim, the Plaintiffs set out that the Ermineskin Band, pursuant to the Indian Act, passed and adopted a set of membership rules and a membership code. By implication this is pursuant to authority delegated to the Ermineskin Band by the Minister of Indian Affairs and Northern Development. This may be a little thin, but could be cured by an amendment if necessary. The relationship of employee is not necessarily determined by label or by the way in which the parties think of themselves and their relationship. Rather it is a question of mixed fact and law, there being many factors to weigh, in an objective manner, in order to determine the overall classification of an individual or individuals. It is similarly so with agency for whether an agency relationship exists in any given situation depends not upon terminology used by the parties, but upon the nature of the agreement and the circumstances of the relationship:
| Whether the relation exists in any situation depends not on the precise terminology implied by the parties to describe their relationship but on the true nature of the agreement or the exact circumstances of the relationship between the alleged principal and agent. (Halsbury, 4th Edition Re-issue, Volume 1(2) at paragraph 1) |
[45] This is not the Plaintiffs best argument as to jurisdiction, but it is an outside possibility of the grant of jurisdiction. Were the Plaintiffs" claim based only on the argument that there was a servant or agent relationship and that section 17(5)(b) of the Federal Court Act applied, I would hesitate in striking out the claim on the basis that it was clear and obvious that it could not possibly succeed.
CONCLUSION
[46] All counsel put substantial effort into preparation and into argument. As a result the motion of the Ermineskin Band and the responses to it raise some interesting points. Indeed some of the points raised by the Ermineskin Band could conceivably prevail. Yet none of the points raised by the Ermineskin Band are such that they approach the persuasiveness and the certainty required to strike out any portion of the Statement of Claim. The parties ought now to concentrate on resolving the merits of the claim. The motion of the Ermineskin Band is denied.
[47] As to costs, both the Plaintiffs and the Crown had a large stake in the outcome. Both were instrumental in defeating the Ermineskin Band"s motion. Each shall have a separate set of costs payable by the Ermineskin Band in any event.
(Sgd.) "John A. Hargrave"
Prothonotary
September 10, 1999
Vancouver, British Columbia
[48]
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2553-91
STYLE OF CAUSE: Theodore Hodgson and Others
v. Ermineskin Indian Band No. 942 and
| The Ermineskin Band Council and Others |
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: August 31st, 1999
REASONS FOR ORDER: Mr. John A. Hargrave, Prothonotary
APPEARANCES:
Ronald E. Johnson for the Plaintiffs
Maria Morellato for the Defendants, Ermineskin Indian Band
| No. 942 and The Ermineskin Band Council |
| James Baird for the Defendant, Her Majesty the Queen in Right of Canada et al. |
SOLICITORS OF RECORD:
Roddick & Johnson
Edmonton, Alberta for the Plaintiffs
Blake, Cassels & Graydon for the Defendants, Ermineskin
Vancouver, British Columbia Indian Band No. 942 and The Ermineskin
Band Council
Morris A. Rosenberg for the Defendant,
| Deputy Attorney General of Canada Her Majesty the Queen in |
Right of Canada et al.