Date: 20020326
Docket: T-673-00
Neutral Citation: 2002 FCT 344
BETWEEN:
PAUL MICHAEL CHARLIE
Plaintiff
- and -
VUNTUT GWITCHIN DEVELOPMENT CORPORATION,
and HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendants
- and -
VUNTUT GWITCHIN FIRST NATION
Defendant and Third Party
REASONS FOR ORDER
HARGRAVE P.
[1] This action involves a claim by Mr. Charlie, a disabled Aboriginal person who lives in Victoria, who alleges he has been discriminated against by the Defendants who have denied him any part in or information about a substantial settlement between his First Nation and the Crown.
[2] The Defendants, Vuntut Gwitchin First Nation and Vuntut Gwitchin Development Corporation, collectively the Vuntut Gwitchin Defendants, bring the present motion to strike out the Further Amended Statement of Claim for want of jurisdiction, as against the Vuntut Gwitchin Defendants.
[3] The Plaintiff's action is a difficult one, from the point of view of the jurisdiction of the Federal Court. However, I am unable to say that it plainly, obviously and beyond doubt cannot succeed, for it is arguable that there is jurisdiction under section 17(4) of the Federal Court Act, which speaks to obligations of the Crown and conflicting claims with respect to those obligations.
BACKGROUND
[4] To summarize the lengthy Statement of Claim, Mr. Charlie is a member of the Vuntut Gwitchin First Nation, having been born in 1959 at Old Crow, Yukon, to a family which had been active in that First Nation's affairs. At the age of 18 months he was hospitalized in Edmonton with rheumatoid arthritis. During the next 16 years he was in and out of hospital and various foster homes. Since the age of 18, when he decided to live as independently as he could, he has maintained contact with his family and his community and has tried to maintain contact with his First Nation. However, because of his disability, medical service requirements and the need to reside in a temperate climate, he has lived in Alberta and British Columbia and most recently, at a subsistence level, in Victoria, B.C.
[5] While in Victoria Mr. Charlie has substantially raised his education level, but has been unable to complete this endeavour because he needs money.
[6] In 1993 the Vuntut Gwitchin First Nation, which is comprised of somewhere between 460 and 770 members, signed a settlement agreement with the Crown worth $36 million, 2,990 square miles of land including subsurface rights and various other benefits including employment, in return for the release of all claims against the Crown: the Plaintiff calls the settlement agreement the "final agreement" a term which I shall adopt. At the same time the Vuntut Gwitchin First Nation contracted for self-government. Mr. Charlie was not and has not been consulted and so has been unable to make any representations as to his position and needs as a disabled Aboriginal person.
[7] The final agreement of 1993 provides settlement funds to the Vuntut Gwitchin First Nation from which they may supplement low incomes and fund education. Other than to provide Mr. Charlie with a computer, in 1998, the Vuntut Gwitchin First Nation has ignored Mr. Charlie's many letters and a video tape seeking assistance. Nor, despite requests, has Mr. Charlie been able to obtain any information as to the use of the settlement proceeds, of the constitution of the Vuntut Gwitchin First Nation, or of any Band bylaws as to various matters including healthcare, social services and distribution of the proceeds of the settlement.
[8] Mr. Charlie says that the Vuntut Gwitchin First Nation not only owes to him various fiduciary duties, but also ought not to be permitted to retain that portion of the settlement benefits which should rightfully belong to him. He then goes on to seek, in addition to damages, remedies pursuant to section 24 of the Charter of Rights and Freedoms, for a breach of equality rights guaranteed by section 15 of the Charter of Rights and Freedoms.
CONSIDERATION
[9] While the Vuntut Gwitchin Defendants refer to the existence of various additional issues, which they say they do not concede, at this point they wish to deal only with the threshold question of whether the Federal Court of Canada has the jurisdiction to determine the claims and to grant the relief requested by the Plaintiff against the Vuntut Gwitchin Defendants. Basic to this point is that the Federal Court is a statutory court, with a jurisdiction limited, for the most part, to provisions found in the Federal Court Act. However, before getting into the substance of this motion, there is a procedural point, raised by the Vuntut Gwitchin Defendants, as to the test for striking out for want of jurisdiction and the onus, in the sense of who must satisfy that test, points to which I will first turn.
ANALYSIS
Striking Out for Want of Jurisdiction
[10] The test for striking out for want of a cause of action, that it be plain, obvious and beyond doubt that a claim or a defence will not succeed, as in the well known trilogy of 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 v. Inuit Tapirisat of Canada [1980] 2 S.C.R. 735, is so solidly established that it is no longer usually necessary to dwell on the test. However, in the present instance, the Vuntut Gwitchin Defendants say that the test for striking out for want of jurisdiction is less stringent, submitting that the approach to strike out is really akin to answering a question of law and further, that the burden shifts to the Plaintiff to show, positively, that there is jurisdiction. Here the Vuntut Gwitchin Defendants refer to several examples which they submit support the position that the test for striking out for want of jurisdiction is a preponderance of evidence or a balance of probabilities.
[11] In Varnam v. Canada [1988] 2 F.C. 454, the Court of Appeal dealt with a refusal by the Trial Division, reported [1987] 3 F.C. 185, to strike out the statement of claim because it was not "beyond all doubt that no cause of action exists . . ." (page 199). I would observe here that the trial judge in Varnam did not refer to either Operation Dismantle or to Inuit Tapirisat, which set out the conventional standard for striking out for want of a cause of action, however the trial judge clearly used a proper variation of the standard mandated by the Supreme Court of Canada in those cases.
[12] In the Court of Appeal in Varnam Mr. Justice Hugessen disagreed with the trial judge's interpretation of jurisdiction under section 17(1) of the Federal Court Act, pointing out that section 17(1) did not grant relief against persons other than the federal Crown and that no degree of intertwining, a rather vague and doubtful doctrine at the time, could create jurisdiction (pages 461 and 462). Granted, Mr. Justice Hugessen did not refer to the plain, obvious and beyond doubt standard, however his decision is a rather absolute statement leading to a conclusion that "the Court is without jurisdiction" (page 464).
[13] The Vuntut Gwitchin Defendants then referred to Pacific Western Airlines Ltd. v. The Queen (1980) 105 D.L.R. (3d) 44, where both the Federal Court Trial Division and the Court of Appeal decisions are reported. There, Mr. Justice Collier, on a motion, after referring to many cases, dismissed the action for want of jurisdiction, without referring to any specific test for striking out under the predecessor to present Rule 221(1)(a). The Court of Appeal agreed with Mr. Justice Collier, holding that there was no jurisdiction, but again not referring to the plain, obvious and beyond doubt test. While the Pacific Western Airlines decisions predate the earliest of the Supreme Court trilogy of cases on the test for striking out, the Inuit Tapirisat case (supra) the plain, obvious and beyond doubt test was applied much earlier in Canada. Indeed it appears that the test was so well known that the Ontario Court of Appeal referred to it in an offhand way in Ross v. Scottish Union and National Insurance Co. (1920) 53 D.L.R. 415 at 420.
[14] Finally, the Vuntut Gwitchin Defendants refer to Westerlee Development Ltd. v. Canada (1997) 116 F.T.R. 57, in which I dealt with a want of jurisdiction motion. In that the action did not come within the Federal Court Act, I allowed the remedy sought, a stay of the action as against one of the Defendants, rather than striking out the action. Here I would also touch upon the submission of the Vuntut Gwitchin Defendants that there is a change of onus and that it is for the Plaintiff to establish jurisdiction. Westerlee Development Ltd. v. Canada has two passages in it, noting that the plaintiff had been unable to satisfy the jurisdictional tests set out in Quebec North Shore Paper Co. v. Canadian Pacific Limited [1997] 2 S.C.R. 1054 and in Bensol Customs Brokers Ltd. v. Air Canada [1979] 2 F.C. 575 (F.C.A.), at issue being whether the claim fall within section 23 of the Aeronautics Act. The defendant, who brought the motion, the Vancouver International Airport Authority, had made a very substantial case that there was no jurisdiction and thus the action ought to be stayed. The plaintiff was unable to persuade me otherwise by showing how it might satisfy the tests for bringing the claim within the Aeronautics Act. It is much the same process that one uses in considering whether an action ought to be struck out for want of jurisdiction, with the defendant putting up his or her best argument, which might stand, or which might be shown by the plaintiff to be weak and in doubt. Here the Vuntut Gwitchin Defendants put too much stock in a shifting of burden and are completely incorrect when they suggest that the Plaintiff has a burden to show, positively, that there is jurisdiction.
[15] Returning to Varnam and to Pacific Western Airlines, as examples of earlier cases, to some degree courts dealing with motions based on want of jurisdiction may have avoided the plain, obvious and beyond doubt test, because courts were a little unsure of which procedural rule applied on motions alleging want of jurisdiction under the pre-1998 Rules, being either former Rules 401 or 419(1)(a). Here I would refer, as examples of the uncertainty, to the decision in Cairns v. Farm Credit Corp. [1992] 2 F.C. 115 at 128-129; to the extended discussion as to how to proceed in Banerd v. Canada (1995) 88 F.T.R. 14; and to MIL Davie Inc. v. Hibernia Management and Development Co. (1998) 226 N.R. 369 at 373-374.
[16] Fortunately, this somewhat unproductive discussion of procedure and seeming inconsistent standards on motions to strike out for want of jurisdiction has been laid to rest in Hodgson v. The Queen. In my reasons of 10 September 1999, in action T-2553-91, I set out at paragraph 28 that I would only find want of jurisdiction where a matter was plain, obvious and beyond doubt, which was not there the case.
[17] On appeal to the Trial Division (2001) 180 F.T.R. 285, Madam Justice Reed was squarely faced with that test as a ground for appeal. In denying the appeal she found that the plain and obvious test applied:
. . . 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. (page 289)
That finding was not changed when Mr. Justice of Appeal Rothstein denied the appeal (2001) 267 N.R. 143. While he noted that counsel for the defendants conceded the test, it was that test which the Court of Appeal in fact applied in allowing the action to proceed. An application in Hodgson for leave to appeal was dismissed by the Supreme Court of Canada on 6 September 2001.
[18] While some jurisdictional issues ought not to be decided until trial, when all of the facts on the question are before the Court, in other instances jurisdiction may be decided in a summary way. In such an instance it is the usual plain, obvious and beyond doubt test which applies in striking out for want of jurisdiction. Of course, to reach that conclusion, one must initially test jurisdiction on the basis of Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd. [1986] 1 S.C.R. 752.
Jurisdiction
[19] The Vuntut Gwitchin Defendants, in their written argument, raised a number of possibilities as to where jurisdiction might be found and then go on to make submissions to show why those possibilities of jurisdiction are fatally flawed. Of those possibilities the Plaintiff says he relies on only two heads of jurisdiction, sections 17(4) and 17(5)(b) of the Federal Court Act, which provide as follows:
(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.
[20] Critical to the Plaintiff's case is whether he can establish that at least one of these statutory grants of jurisdiction fulfills the first element of the three-part test set out in ITO-International Terminal Operators Ltd. by the Supreme Court, the three elements being:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in section 101 of the Constitution Act, 1867.
The second and third elements of this test are not in issue on the present motion.
Jurisdiction under Section 17(4) of the Federal Court Act
[21] The reference in section 17(4) of the Federal Court Act to "conflicting claims against the Crown", is in the context of the federal Crown. In considering this section the Supreme Court of Canada, in Roberts v. Canada [1989] 1 S.C.R. 322, approved the approach taken by Mr. Justice Hugessen, in Roberts on appeal [1987] 2 F.C. 535 at 544, that section 17(4) contained four requirements: first, that there be a proceeding; second, that the proceeding be to determine a dispute; third, that the Crown is or may be under an obligation; and fourth, that the obligation be one in which there may be conflicting claims (see page 335 of Roberts in the Supreme Court).
[22] Rule 17(4) is usually characterized as a rule applying to interpleader, however as pointed out by the Supreme Court in Roberts, at page 335, with regard to the predecessor section to section 17(4), "the description of the proceedings covered by the provision would clearly include interpleader but are not limited to that.". There the Supreme Court felt that the usual situation in which the Rule applied was that of interpleader, but that it could, in certain instances, cover other situations, one being where the Crown held land for the use and benefit of one of two Indian Bands, the issue to be that of deciding for which Band the land was held in trust. In effect the application in Roberts was analogous to an interpleader situation. However the Supreme Court left it open so that what is now section 17(4) might include any claim coming within the four-part test first set out by Mr. Justice of Appeal Hugessen.
[23] The Vuntut Gwitchin Defendants say that the Further Amended Statement of Claim contains no allegations which would bring the Plaintiff's claim within section 17(4). The Plaintiff's response is that he need only show an assertion of a claim or of the existence of an obligation against the Crown and a response by the Crown that the obligation is owed to a third party. Here the Plaintiff relies upon Montana Band v. Canada [1991] 2 F.C. 273 in which Mr. Justice Strayer, as he then was, said that:
An assertion that the Crown owed a fiduciary obligation to the plaintiff Band in respect of Reserve No. 139 or its proceeds of sale is in effect an assertion that the Crown owed no fiduciary duty to the Samson and Ermineskin Bands in respect thereof. This surely gives rise to a "conflicting claim" to being the beneficiary of a fiduciary obligation. I do not understand subsection 17(4) to be limited to situations where two or more parties have independently initiated conflicting claims; it must also cover situations where the Crown contends that it does not owe, or has not owed, obligations to both parties where such obligations are mutually exclusive. (page 283)
Mr. Justice Strayer was upheld by the Court of Appeal in Montana Indian Band v. Canada [1993] 2 C.N.L.R. 134, leave to appeal to the Supreme Court of Canada refused in a note at [1993] 3 C.N.L.R. v. However, there are also other extensions of section 17(4). Certainly Roberts (supra) and Jones Estate v. Louis (1996) 108 F.T.R. 81 clearly establish that section 17(4) extends the Court's jurisdiction to interests in land. Mr. Justice Lutfy, as he then was, in Paul v. Kingsclear Indian Band (1998) 132 F.T.R. 145, extended the effect of section 17(4) extends beyond land to compensation for improvements made to land.
[24] The possible jurisdiction under section 17(4) of the Federal Court Act was further extended in Hodgson v. Ermineskin Indian Band (supra) where Madam Justice Reed refused to overturn a decision, denying a motion to strike out, on the basis that there could be jurisdiction under section 17(4) of the Federal Court Act where the claim of the plaintiffs related to Band membership status and the benefits that flowed from such status. In Hodgson the pleading was to the effect that the Crown breached its fiduciary obligation by allowing the deletion of various of the plaintiffs from the Band membership list, in failing to uphold a subsequent Band Council resolution as to membership and, pertinent here, an allegation of failing to advise as to benefits and failing to protect the interest of the plaintiffs by taking a course of action which deprived the plaintiffs of their benefits, including financial benefits (see pages 287 and 288). In Hodgson the Crown pleaded, in its defence, that once the Ermineskin Band had taken over control of its own membership, the Crown had no further responsibility. Madam Justice Reed pointed out that the dispute over continuing authority or over potential fiduciary responsibility gave rise to potential conflicting obligations within section 17(4). As I noted earlier, the Court of Appeal also agreed that it was not plain and obvious that the statement of claim ought to be struck out at a preliminary stage.
[25] From the pleadings the Crown clearly says, relying upon the 29 May 1993 final agreement, between the First Nation and the Crown, that it owes duties only to the Vuntut Gwitchin First Nation. The Vuntut Gwitchin Defendants say that any legal duties owed by the Crown are to the Defendant, Vuntut Gwitchin First Nation, and not to the Plaintiff. In effect all of the Defendants say that the Plaintiff should look to the Vuntut Gwitchin Defendants, for the Crown owes you nothing: anything the Crown does owe or any duty the Crown owes is to Vuntut Gwitchin First Nation. Yet the Plaintiff says, in his Further Amended Statement of Claim, that he is owed a fiduciary duty by the Crown including recompense for extinguishing his rights in a way which does not provide any consideration or benefit to him. This leads to the submission, and indeed this is also found in the prayer for relief, that the Plaintiff seeks damages from all of the Defendants. One way of characterizing the claim is that if the Crown has been in breach of duties owed to the Plaintiff, one remedy would be a declaration that further installments under the final agreement, which installments are payable over 15 years from 1993, be charged with whatever claim the Plaintiff is able to prove in the present litigation.
[26] All of this is perhaps a tenuous case, however, without extending section 17(4) of the Federal Court Act any further than has already been the case, it is an outside possibility. The case for Mr. Charlie, as against the Crown, is a difficult one, but I am unable to say that it is plainly, obviously and beyond doubt a claim which cannot succeed. Here I note that I put no stock in the Plaintiff's assertion that to strike out the proceedings at this point would be to deny him the ability to pursue additional facts through the discovery process. That would be a fishing expedition. However it is not the situation. The Plaintiff's claim should not be terminated at this point but, on the pleadings, information and argument, which have been presented to me, the claim should be allowed to proceed on the basis of jurisdiction under section 17(4) of the Federal Court Act.
Jurisdiction under Section 17(5)(b) of the Federal Court Act
[27] The Plaintiff also relies upon section 17(5)(b) as a possible head of jurisdiction. Here the gist of the contrary argument of the Vuntut Gwitchin Defendants is that section 17(5)(b) requires that relief must be sought for something done or omitted by a person as an officer, servant or agent of the Crown. Leaving aside section 15 of the Charter and differential treatment, including differential treatment by way of administrative discretion, which the Plaintiff has pleaded and which I do not think is a real issue on this motion to strike out, where the Plaintiff's claim fails is under section 17(5)(b) is on the question of whether the Vuntut Gwitchin Defendants ever acted as servants or agents of the Crown.
[28] The Plaintiff relies upon the view of Mr. Justice Heald in Powderface v. Baptiste (1997) 118 F.T.R. 258 who, on surveying some of the case law, concluded that while a Band council generally does not act as a servant or agent of the Crown, there might possibly be certain circumstances, which are not defined, in which a Band council could act in that capacity.
[29] Mr. Justice Heald, in Powderface, relied most substantially on Bear v. John Smith Indian Band [1983] 5 W.W.R. 21, a decision of the Saskatchewan Queen's Bench. In the Bear case Mr. Justice Noble referred to a basic proposition from Union Packing Co. v. The Queen [1946] Ex.C.R. 49, at 54, a decision of President Thorson that:
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. (page 54)
The emphasis here is on independent discretionary powers. I would observe that the current test for agency is that of control, not of function: see for example Northern Pipeline Agency v. Perehinec [1983] 2 S.C.R. 513 at 517 through 521. This is consistent with the approach in Union Packing. I would also note that an Aboriginal government entity might be an agent of the Crown for some purposes, but not for all purposes. I do not see anything in the final agreement, relied upon by the Plaintiff, which gives to the Crown the necessary or indeed any control over the Vuntut Gwitchin Defendants, so far as money provided under the agreement, nor have I been referred to any elements of control in the agreement. Parenthetically I would note that Union Packing was reversed on appeal to the Supreme Court of Canada, [1946] S.C.R. 456, but not as to the finding that the Bacon Board was a servant of the Crown. Proceeding with the Union Packing case, Mr. Justice Thorson looked upon the test as whether the entity, claimed to be a servant or agent, had discretionary powers which it might exercise independently, without consulting the Crown. Under this test, essentially a control test, it had such independent powers, the entity was neither a servant nor an agent.
[30] In the present instance the Plaintiff's difficulty is that the Vuntut Gwitchin First Nation, and indeed by extension both of the Vuntut Gwitchin Defendants, seemed to have been given broad discretion, within some general guidelines and here I will refer, for example, to Schedule A to Chapter 20 of the final agreement, which sets out a large number of activities which a settlement corporation, presumably Vuntut Gwitchin Development Corporation, might engage in. While I have not read the whole of the final agreement between the Crown and various parties, including the Vuntut Gwitchin First Nation, I do not see where, under the final agreement, the Vuntut Gwitchin Defendants give up their discretionary power or ceased to become a separate independent entity. Rather the final agreement seems, on the one hand, to protect Aboriginal rights and the cultural distinctiveness of the Vuntut Gwitchin people but, on the other hand, to try to enhance the ability of the Vuntut Gwitchin to participate fully in all aspects of the economy of the Yukon. I believe that the final agreement leaves it open for the Vuntut Gwitchin Defendants to administer specific but undefined programs, however those programs are not set out in the final agreement. Those undefined programs are something separate and apart and I think not relevant in this discussion of jurisdiction. Overall, there are no facts to support the argument that the Vuntut Gwitchin Defendants are servants or agents of the Crown: moreover, I expect that had such been suggested during the time the final agreement was being negotiated, matters would have come to a standstill. However this argument does not end with the First Nation Final Agreement.
[31] The Plaintiff refers to a portion of a 1998 thesis by Kerry Wilkins, which became an article, "The Royal Commission, the Charter of Rights and the Inherent Right of Aboriginal Self-Government" (1999) 49 University of Toronto Law Journal 53. The Plaintiff's view is that the role and obligation of the Vuntut Gwitchin Defendants, to administer benefits payable to Mr. Charlie by the Canadian government, support an agency relationship between Canada and the Vuntut Gwitchin Defendants. This of course assumes that there are benefits payable to Mr. Charlie by Canada, rather than money and land being granted to the Vuntut Gwitchin First Nation in return for a surrender of collective Aboriginal rights and interests. The passage which the Plaintiff relies upon appears at page 62:
It now seems clear, therefore, that the federal government itself will remain responsible for any Charter consequences that result from the exercise of self-government powers it confers on aboriginal bodies or organizations not themselves subject to the Charter. This will be so, again, whether it confers such powers by statute, contract, treaty or agreement, and even where it confers such powers exclusively at the behest of the aboriginal party.
Briefly, then, the Charter applies generally to the federal, provincial and territorial governments and to certain statutory entities on which they confer certain kinds of authority. Other entities may also sometimes attract Charter scrutiny, but only insofar as they are engaged in the implementation of government policy. These arrangements probably mean that the Charter will govern the exercise by aboriginal governments of most, if not all, self-government powers that originate from the federal, provincial or territorial governments.
[32] When one reads the whole of the article and considers the footnotes applicable to the above passage, the passage does not particularly assist the Plaintiff. It may be, and I am not convinced by reading the Wilkins article, that the federal government could be responsible, in some situations, clearly fairly limited situations, when an Aboriginal Band, upon which the federal government has conferred self-government and that Aboriginal body is not subject to the Charter. Here the Plaintiff has not explained how his situation comes within the exception seemingly left by Wilkins' comment that ". . . the Charter will govern the exercise by aboriginal governments of most, if not all, self-government powers that originate from the federal, provincial or territorial governments.". However, even were one to assume both that the Defendants are not bound by the Charter and that the federal government is responsible for any Charter consequences, that does not bring the situation within section 17(5)(b) of the Federal Court Act. That is because one is still left with the bare and unsupported assertion of jurisdiction because the Vuntut Gwitchin Defendants are servants or agents of the Crown.
[33] While it may be that the federal Crown has, in some instances, as suggested as a possibility in the Wilkins article, the responsibility for Charter consequences arising out of the exercise of conferred self-government powers, without more than this bare assertion of jurisdiction and leaving aside the argument based upon jurisdiction by way of section 17(4) of the Federal Court Act, the Plaintiff should be in a court which is not bound by a statutory jurisdiction.
[34] That there is jurisdiction over the Vuntut Gwitchin Defendants, by reason of section 17(5)(b), is a jurisdictional argument that plainly, obviously and beyond doubt will not succeed.
CONCLUSION
[35] The Plaintiff's argument for jurisdiction by way of section 17(4) of the Federal Court Act is not one which is plainly, obviously and beyond doubt doomed to failure. This is not to say that it is in any way an easy jurisdictional argument to make. Indeed, were the standard for striking out merely a preponderance of evidence or a balance of probabilities, as argued by the Vuntut Gwitchin Defendants, the Plaintiff could be in difficulty at this point.
[36] The motion is dismissed, with taxable costs, mid-range in column III, to the Plaintiff forthwith.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
26 March 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-673-00
STYLE OF CAUSE: Paul Michael Charlie v. Vuntut Gwitchin First Nation et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 30, 2001
REASONS FOR ORDER: Hargrave P.
DATED: March 26, 2002
APPEARANCES:
Mr. Craig Dennis FOR PLAINTIFF
Mr. Robin Junger
Mr. Arthur Pape FOR DEFENDANTS
Vuntut Gwitchin First Nations and
Vuntut Gwitchin Development Corporation
Mr. Jason Herbert FOR DEFENDANT
Her Majesty the Queen in Right of Canada
SOLICITORS OF RECORD:
Sugden, McFee & Roos FOR PLAINTIFF
Vancouver, B.C.
Pape & Salter FOR DEFENDANTS
Vancouver, B.C. Vuntut Gwitchin First Nations and
Vuntut Gwitchin Development Corporation
Davis & Company FOR DEFENDANT
Vancouver, B.C. Her Majesty the Queen in right of Canada