Date: 200200912
Docket: T-165-01
Neutral citation: 2002 FCT 973
BETWEEN:
GARNET DESJARLAIS
Plaintiff
and
GORDON GILL, BRYAN GILL, TRENT GILL and
ARMANDE THERESA L'HIRONDELLE GILL acting on
their own behalf and on behalf of all the living descendants
of Armande Gill numbering approximately 40 persons,
Plaintiffs
and
JOHN MALCOM, WALTER JEAN MALCOM,
EVELYN SELINIA ROBILLARD,
FLORA LORRAINE POWDER, and
MIKE POWDER acting on their own behalf and
on behalf of all the living descendants of
Caroline Thompson numbering approximately 270 persons,
Plaintiffs
and
MARGARET (DESJARLAIS) PARENTEAU and
LEO PARENTEAU acting on their own behalf and
on behalf of the living descendants of Leon Desjarlais
numbering approximately 302 persons and of
Marie Rose Cardinal numbering approximately 50 persons,
Plaintiffs
and
FLORENCE MARY PULLIAM on her behalf and
on behalf of her living descendants numbering approximately 50 persons,
Plaintiffs
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Parliament Buildings, Ottawa, Ontario
Defendants
REASONS FOR ORDER
HARGRAVE P.
This action represents a consolidation of five earlier actions involving declarations as to aspects of the rights of the Plaintiffs, damages and an accounting of Treaty No. 6 benefits since 1885. The motion which resulted in the consolidation Order of 5 December 2000 directed that the redrafted consolidated Statement of Claim omit any claims on behalf of ancestors and descendants. The Crown, which had liberty to apply to strike out the consolidated Statement of Claim, under the 5 December 2000 Order, now exercises that option, seeking to strike out the whole of the Statement of Claim on various grounds.
BACKGROUND
As background I look to the facts set out in the Statement of Claim which, to the extent that they are to be tested to determine if they constitute a reasonable cause of action, I must take as if proven for the purposes of this motion.
The consolidated Statement of Claim is framed as a representative action in which various individuals act on their own behalf and either on behalf of their living descendants, or on behalf of the living descendants of a named individual. The individuals and delineated descendants, all of whom are Cree, are direct descendants of Indians whose ancestors have lived in what is now part of Western Canada since time immemorial. As such the Plaintiffs and those they represent claim treaty rights and particularly rights under Treaty No. 6 of 1876, Aboriginal title and rights, personal and usufructuary rights, declaratory relief, including that they are Aboriginal peoples of Canada as per section 35 of the Constitution Act of 1982 and are thus entitled to be registered as Indians under the
Indian Act and finally, among other specific relief, an accounting and payment of Treaty No. 6 benefits.
ANALYSIS
As I have indicated, this is a motion to strike out the Statement of Claim. The motion gives rise to several points which, while fairly basic, may be disposed of summarily.
Scope of Amendment in Consolidation Process
The Defendants submits that the consolidated Statement of Claim contains substantial amendment going beyond what they believe was envisioned in the consolidation Order. This is not a major issue.
If the amendments do seem to go beyond what was intended in the consolidation Order, I have kept in mind several points. First, this is a consolidated action with a new style of cause and Court number, which might be looked upon as a new action, with amendment as a right before a defence is filed; second, reasonable amendments may be easily obtained at this stage; third, there is no point in trying to determine which amendments were envisioned by the consolidation Order and which were not, for the consolidated Statement of Claim, amendments and all, is now being tested under Rule 221, the striking out rule; and finally, were I to disallow portions of the Statement of Claim merely because they might be beyond the intent of the consolidation Order, we would all be spending further time dealing with a motion to amend and argument, similar to that of the Defendants on the present motion, against amendment, all a duplication of effort. I am not about to delete material because it might go beyond what was contained in the five claims making up this consolidated action.
Action on Behalf of Living Ancestors
The Defendants submit that not all of the references to the ancestors and descendants of the Plaintiffs, which Madam Prothonotary Aronovitch found objectionable, have been removed. Here I may interpret the Order, which requires removal of the reference in the style of cause to "on behalf of all ancestors and descendants" in the original actions and the consequential amendments, in the light of the endorsement leading to that order. Clearly Prothonotary Aronovitch found an action might not be maintained on behalf of deceased ancestors, relying upon Wewayakum Indian Band v. Wewayakai Indian Band, [1991] 3 F.C. 420 at 427 (F.C.T.D.) for the proposition that neither deceased nor yet to be born individuals, who do not exist, may sue or be sued and thus may not be made part of a class of plaintiffs in a group action. Of course, this view, while still correct as to parties to litigation, predates Federal Court Rule 115, a new rule which envisions representatives not only for unascertained persons, but also for unborn persons.
The present consolidated style of cause makes it clear that the named Plaintiffs clearly act only on behalf of living descendants of named individuals. I do not assume that the Plaintiffs, in the consolidated and amended Statement of Claim, are flouting the Rules by suing in the names of minors who require the benefit of a Rule 115 representative for the purposes of litigation. Here I would emphasize the view of Madam Justice Reed, in Montana Band v. Canada, [1998] 2 F.C. 3 (F.C.T.D.), that litigation guardians need not be appointed in a class action and that to require such, where a multitude of infants were involved "would be totally impractical - it would be a procedural nightmare." (page 19). This involvement of minors is not a factor by which I would strike out a pleading, for even were it a factor any deficiency could easily be rectified. I also note that there remain in the Statement of Claim quite appropriate references to ancestors. However, I have struck out, with leave to amend, paragraph 11 of the prayer for relief, a point which I will touch upon later.
Defining the Class and Requirement for Representatives
The Defendants say that this class proceeding is faulty because all of those with the alleged community of interest and relief have not been named. Individuals making up the represented class need not be named, so long as the class is sufficiently well defined. While this concept is not new, I will refer to a recent case, Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 (S.C.C.) at page 554, where Chief Justice McLachlin clearly states the point:
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While there are differences between the tests, four conditions emerge as necessary to a class action. First, the class must be capable of clear definition. Class definition is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment. It is essential, therefore, that the class be defined clearly at the outset of the litigation. The definition should state objective criteria by which members of the class can be identified. While the criteria should bear a rational relationship to the common issues asserted by all class members, the criteria should not depend on the outcome of the litigation. It is not necessary that every class member be named or known. It is necessary, however, that any particular person's claim to membership in the class be determinable by stated, objective criteria: see Branch, supra, at paras. 4.190-4.207; Friedenthal, Kane and Miller, Civil Procedure (2nd ed. 1993), at pp. 726-27; Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Ont. Ct. (Gen. Div.)), at paras. 10-11. [emphasis added] |
Here Madam Justice McLachlin makes the point that "it is not necessary that every class member be named or known.". She calls for the presence of an objective criteria by which to identify the members of the class at the outset of the litigation, a criteria independent from the outcome of the litigation. In this instance the criteria, that of a relationship to named individuals, is clear, objective and will not change regardless of the outcome. Moreover, counsel for the Plaintiffs notes that she will have to include the names of the Plaintiffs, some 650 of them, in particulars at some point: it would be counter-productive to clutter the Statement of Claim with the names of everyone in the class.
The Defendants say that the Plaintiffs must bring a Rule 115 application in order to act in a representative capacity and, not having done so, the Statement of Claim ought to be struck out. I have already commented on the Rule 115 aspect in referring to Montana Band (supra). In taking this position the Defendants also perhaps confuse Rule 115 with Rule 114. The latter applies. By Rule 114 the Plaintiffs may, should they desire, bring a motion, "at any time", to appoint representatives or, in this instance, to confirm the present representatives as appointed. However, I would draw the attention of counsel to the Federal Court Class Action Rules, gazetted 8 December 2001, but not in force when this motion was heard. I now turn to the merits of the motion.
Reasonable Cause of Action, Materiality and Other Reasons for Striking Out
The Defendants build their case for want of a reasonable cause of action on the Plaintiffs' use of what the Defendants feel are bare assertions, in 21 of the 64 paragraphs in the Statement of Claim, rather than the concise statement of material facts, exclusive of evidence, called for by Rule 174. The Defendants also say that some 35 paragraphs, a number of which are also attacked as disclosing no reasonable cause of action, are immaterial. It is convenient to consider both of these categories together, because materiality is merely another aspect of building a pleading which contains a reasonable cause of action. Throughout I have applied the standards for striking out set out in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 and the equivalents which apply to the other branches of Rule 221.
Just as the benefit of any doubt as to a reasonable cause of action should be resolved in favour of the plea remaining for trial, so should any paragraph of questionable materiality be left for the trial judge. Here I would refer to Discount Car & Truck Rentals Ltd. v. Enterprises Rent-A-Car Co. (1997), 76 C.P.R. (3d) 39 at 41 and Mathias v. R., [1980] 2 F.C. 813, at 816, both Federal Court Trial Division decisions. Of course, while mere surplusage which will not prejudice a party may be left in a pleading, that does not mean that completely redundant or completely immaterial paragraphs should remain in the pleading.
The Plaintiffs, in the paragraphs in question, claim treaty rights and other named rights by way of ancestors, from time immemorial; the adherence of ancestors of at least one of the Plaintiffs to Treaty No. 6; a connection between Big Bear, a contemporary of
Louis Riel, who objected to Treaty No. 6 in about 1884-1885; say that some of the ancestors of the Plaintiffs may have taken Scrip on given dates in 1885, withdrawal from treaty being a precondition to taking Scrip; and observe that notwithstanding the 1886 Indian Affairs prohibition of withdrawal from treaty by Indians in the Edmonton area, that Crown agents, in breach of trust, bought Scrip from the Plaintiffs' ancestors. These sections of the Statement of Claim go on to set out that notwithstanding the amnesty, arising out of the Northwest Rebellion, Indian Affairs cut off treaty benefits and that the actions of the Half-Breed Commission in all of this amounted to at least breach of trust and fiduciary duty as well as, more recently, fraudulent concealment, exacerbated by the provision of alcohol by employees, agents and officers of the Crown. The sections objected to conclude with assertions that the ancestors of the Plaintiffs, the Plaintiffs and the living descendants of the Plaintiffs were and are entitled to be registered as Indians. In passing I note that references in these paragraphs, to ancestors, is in an appropriate context and thus not to be struck out in the same way as dead ancestors were struck from the style of cause.
On the one hand, the Defendants characterize this portion of the pleadings as far too broad for in their views the bare assertions would seem to encompass and require litigation of the entire opening of western Canada. On the other hand, the Plaintiffs say that what is contained in these paragraphs is, as required by Rule 174, a concise statement of facts which does not contain any evidence and upon which the Plaintiffs build their cause of action.
These paragraphs must be read in the context of the whole of the Statement of Claim. In that way, to some extent, they provide a narrative background demonstrating, assuming the narrative to be proven, that the Plaintiffs are entitled to be registered as Indians. The narrative is not an easy read. Some of the allegations may be inflammatory and may harm the Plaintiffs. Other allegations, as to taking Scrip and the reasons which this does not constitute a bar to Indian status, might have been left for possible reply, but that is not in itself a ground to strike out a pleading.
The Defendants refer to Rochon v. Canada (1997), 141 F.T.R. 47. There a prison inmate, acting for himself, produced a prolix statement of claim containing many generally irrelevant and immaterial paragraphs which were either completely superfluous, argumentative or bare assertions which were incapable of supporting a cause of action. It was a statement of claim which would lead to a proceeding which I felt that the Court would be unable to properly control, thus also leading to a characterization as an abuse of process, or a vexatious pleading. However, I felt that portions of the statement of claim might conceivably survive, as a reasonable cause of action, with some amendment. Thus the following paragraph:
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[23] A statement of claim should be a readable narrative, so at the conclusion both the defendant and the Court may understand the plaintiff's claim. This particular statement of claim, which is long and difficult to follow, contains few facts, but many bare statements in the nature of assertions and conclusions, together with irrelevant material and argument. It is a claim which does not set out, in a reasonable way, a reasonable cause of action. It seeks arbitrary and unsupported relief, as well as relief which may be had only by way of judicial review. The whole of the statement of claim, following the style of cause, is struck out. (Rochon at page 53)
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In Rochon my major concern was that the plaintiff produced a readable and understandable narrative free of bare assertions which lead nowhere, irrelevancies which did not even add background, and argument, which at best was premature. A reader of the Rochon statement of claim would have had little or no idea of what the proceeding was about. In contrast, the present Defendants may have little liking for the pleading, but are well aware of what the claim is about.
While Rochon, to some degree, turned on its own facts, the principle set out, that a pleading be a readable and understandable narrative containing sufficient facts, is fundamental. The difficulty with the present Statement of Claim is that portions of it are said to be merely bare assertions. In my view this, in part, is a product of the consolidation which, to convey the narrative forward, necessitates pauses and lateral diversions in order to bring in the historical chronological context of the claims of each group of plaintiffs. Yet, as I say, it is not an easy statement of claim to read for it is broad litigation set against a portion of western Canadian history.
To adjudicate between the views of the Plaintiffs and the Defendants I must find a line between an allowable prolix view of history underlying the claim and the view that such a detailed history has no place in the Statement of Claim. Here the Dumont case is to some degree instructive: Dumont v. Canada (AG) (1987), 48 Man.R. (2d) 4; reversed [1988] 5 W.W.R. 193, Mr. Justice of Appeal O'Sullivan dissenting; and the trial decision reinstated [1990] 1 S.C.R. 279.
The Dumont case involved, among others, the Manitoba Métis Federation and a group of Métis who, as a distinct Aboriginal group pursuant to section 35 of the Constitution Act of 1982, wished to litigate what they felt were unconstitutional measures bearing on their rights under the Manitoba Act of 1870. On the hearing of the Crown's motion to strike out the statement of claim, Mr. Justice Barkman denied the motion. He said that there were real issues to be decided and that they ought not to be decided until trial when all of the evidence would be before the court.
Unfortunately there are few specifics about the Dumont statement of claim in the three levels of decisions. However, the reasons of the Court of Appeal give some sense of the direction and content of the statement of claim. I will refer both to the reasons of Justice of Appeal O'Sullivan, for while he was dissenting, he was on side with the trial judge of the Supreme Court of Canada and to the majority reasons in the Court of Appeal.
Mr Justice of Appeal O'Sullivan observed that in dispute was the legal ability of individuals to assert rights belonging to a people: thus, while purpose of the motion in Dumont was the same as in the present instance, to strike out the statement of claim, the grounds differ. His decision is a substantial lesson in both Métis history and in historical legal philosophy bearing on minority group rights, in the general and in the particular Métis context. He concluded that there was a reasonable cause of action and that the Métis plaintiffs should be free to proceed with their class action to seek declaratory relief as to the vires of Canadian and Manitoban statutory provisions.
A majority decision in the Court of Appeal was similarly a history lesson, but from a slightly different perspective.
It is most unlikely that either of the Court of Appeal decisions was derived from whole cloth, but in all probability had their basis in the statement of claim. Thus, the Court of Appeal decision in Dumont, to a substantial degree, constitute justification for the inclusion of broad historical background in an instance such as the present. Therefore, following the Rochan case (supra), I have looked at the portions of the Statement of Claim which the Defendants impugn as wanting a reasonable cause of action and materiality, to determine whether they form a readable narrative which will allow both the Defendants and the Court to come to an understanding of the Plaintiffs' claim which, after all, requires an understanding of the history of the Métis, if not from time immemorial on one side, as least from the 18th century, on the other side.
While this consideration of the Statement of Claim is principally on the basis of materiality and lack of a cause of action, I will from time to time deal conclusively with paragraphs which attract other criticisms from the Defendants.
The first and second paragraphs of the Statement of Claim set out that the Plaintiffs are Aboriginal people who live and whose forbearers have lived in the same regions either since time immemorial, or at least since the execution of Treaty No. 6 in 1876. These two paragraphs are fundamental to the claim; in passing I also decline to strike them out, as contended by the Defendant, as tending to delay a fair trial. These paragraphs set out the background for a number of paragraphs which narrate particulars.
Paragraph 3 is said not to display a reasonable cause of action, to be scandalous and vexatious, to be abusive and to be such as it will delay a fair trail. Certainly it is some of the above, but most certainly it repeats the substance of the first two paragraphs and at least paragraph 61, as to Aboriginal rights and treaty rights. It is a superfluous paragraph, which is struck out as vexatious and as tending to delay the determination of this matter.
Paragraph 4, if it is to survive, need only be tested as to materiality. The thrust of the paragraph is that the grant of a Charter to the Hudson's Bay Company did not extinguish any of the Plaintiffs' Aboriginal rights. This is material only to the extent that extinguishment of Aboriginal rights and titles might have been the result of the grant of title to the Hudson's Bay Company. It is not a foregone conclusion that the Defendants will take this position and until the Defendants do, the paragraph is immaterial and is struck out as such. However, the striking out is without prejudice to the Plaintiffs re-pleading it in a clear response to the defence.
Paragraph 6, said among other things to be immaterial, deals with the re-transfer of lands, rights, privileges and powers from the Hudson's Bay Company to the Crown in 1870, by Order-in-Council. It is a material building block in the Plaintiff's narrative and case. It will remain. However, paragraph 7, which merely sets out that, pursuant to the 1870 Order-in-Council, the Hudson's Bay Company is relieved of responsibility for the claims of Indians and that the Crown was to make adequate provision for the protection of those Indian tribes involved in the transfer, is both redundant and immaterial. It is struck out.
Paragraphs 8 and 9 were challenged in the written material as being new material, an argument already dealt with. There was, however, some suggestions that those two paragraphs are also immaterial; I do not agree with that submission. Paragraphs 8 and 9 will remain.
Paragraph 10 deals with events leading up to Treaty No. 6 in 1876. I do not see it as in any way material, in the present context, to the entry of the Plaintiffs' ancestors into Treaty No. 6, or the claim of the present generation, the Plaintiffs, to treaty rights. It is struck out as immaterial.
Paragraph 11 is material, as it sets out, by way of forbearers, the Plaintiffs' understanding of and position relevant to Treaty No. 6.
Paragraph 12 is a specific statement as to the portions of Treaty No. 6 relied upon by the Plaintiffs. As such it is material. Moreover, neither paragraph 11 nor 12 of the Statement of Claim will unreasonably delay a trial. Paragraph 12 shall also remain.
Paragraphs 13 and 14, which are non sequiturs, set out genealogy said to connect the present Plaintiffs with a signatory of Treaty No. 6. This is possibly the stuff of particulars, but only if needed and sought by the Defendants. Paragraphs 13 and 14 are struck out as immaterial.
Paragraph 15 is a bald statement of the ancestors of the Plaintiff, Leo Parenteau, adhered to Treaty No. 6. This neither adds anything to the cause of action nor discloses a reasonable cause of action. It is struck out.
Paragraph 16 sets out that the great-grandmother of the Plaintiff, Florence Pulliam, was Sophy Loyer, Band No. 132, family no. 49, of Michels' Band. I can find no tie between this statement and the rest of the Statement of Claim. It is an irrelevant and immaterial paragraph and is struck out.
Paragraph 17, which I decline to strike out for the sole reason that it is new material, deals with mass starvation by or about 1879, by reason of an alleged failure by the Crown to uphold the Treaty No. 6 obligations. Paragraph 18 deals with the hardship suffered by Straglers, Indians not formally attached to Bands, said to be ancestors of some of the Plaintiffs. The Straglers as well suffered during the same period. Paragraph 17 and 18, together with paragraph 19 and 20, lead into and form the background for the Riel Rebellion, the beginnings of which are touched upon on paragraph 21. All of these paragraphs, except paragraph 17, are said to be immaterial. I disagree with the Defendants' view, for the Riel Rebellion led to the Amnesty of 1886: the Plaintiffs seek, among other things, a declaration of the Amnesty of 1886 is of full force and effect. Paragraphs 17 through 21 shall remain in order to provide, among other things, appropriate background.
Paragraph 22 sets out that "Twin Wolverine, son of Big Bear, together with about 190 Indians spent the winter of 1884-1885 in Buffalo Lake area near the Bear Hills Agency.". This is said to be an immaterial paragraph which does not disclose any cause of action. However, one must read it together with paragraphs 21 and 23 and as such it provides a link between those who suffered hardship, which led to the Riel Rebellion and the Plaintiffs, who said to have been involved in the Riel Rebellion. Paragraph 23 forms the same background, leading to the proclamation of the provisional government in 1885 by Louis Riel, set out in paragraph 24. These paragraphs, do not in themselves, disclose a cause of action. But neither are they immaterial nor such that they would delay the trial. While paragraphs 23 and 24 are perhaps borderline, they will remain as appropriate background.
Paragraph 25 deals with the involvement of ancestors of the Plaintiffs in the Riel Rebellion and their escape to Montana. Again, I am inclined to leave this paragraph in place as a bridge leading to the punishment of the ancestors of the Plaintiffs and a connection with the relief, including declarations that the Plaintiffs are Indians and that the Amnesty of 1886 is of full force and effect.
Paragraph 26 deals with the movement of the military into various areas which were inhibited by the ancestors of the Plaintiffs. The Plaintiffs may well have to provide particulars of the ancestors, but again I am not prepared to strike out the paragraph as immaterial. That the result of this military excursion was the hanging of Louis Riel is not particularly germane to the action, but again provides context.
Paragraph 27 sets out punishment meted out by the Indian Agent to those Indians, including ancestors of the Plaintiffs, who were suspected of being involved in the Rebellion. While one may muster a good deal of sympathy for those Indians caught in the aftermath of the Rebellion, I do not see the paragraph as being, in any way, material to the Plaintiffs' claim and is therefore struck out, as forlorn and futile.
Paragraph 28 sets out events which involved the grandfather of the Plaintiff, Florence Pulliam, who fled to the United States and married an American Blackfoot Indian. This paragraph is not completely immaterial for, among other things, it provides a link by which Florence Pulliam may be able to establish that she is more than entitled to be registered as an Indian under the Indian Act and that she falls within "Aboriginal peoples of Canada" pursuant to section 35 of the Constitution Act of 1982.
Paragraph 29 deals with the argument that some of the ancestors of the Plaintiffs took Scrip and in doing so withdrew from Treaty No. 6. This is a point which the Plaintiffs must deal with. Paragraph 29 shall remain, for it is material.
Paragraphs 30 through 33 deal with specific allegations that various of the forbearers of the Plaintiffs took Scrip. Again, this is something which would probably be raised sooner or later as a bar to the claim of the Plaintiffs, or at least some of them, that they are Indians. Paragraphs 30 through 33 are to remain.
Paragraphs 34 and 35 deal with the withdrawal of forbearers of the Plaintiffs from treaty. Defendants objected to the paragraphs being new material, a point which I already dealt. In addition, there are points which some of the Plaintiffs must meet in order to establish that they are entitled to be classified as Indians.
Paragraph 36 is generic in the sense that it refers to the Half-Breed Commission coming into the Edmonton area and as a result more Indians, "including ancestors of the Plaintiffs", are alleged to have withdrawn from the treaty. This is far too general and is completely immaterial. It is struck out.
Paragraph 37 sets out that in or about 1886 a Superintendent General of Indian Affairs forbade the acceptance of withdrawal from treaty by Indians in the Edmonton area. This certainly puts on record the position of the Crown vis-a-vis the withdrawal from treaty by Indians. While the paragraph does refer to allegation of breach of trust, impropriety, bribery, undue influence and duress, among other things, I am inclined to leave the material in, as working towards the cause of action of the Plaintiffs and while the material may border on the scandalous, that can be dealt with through particulars, perhaps followed by examination for discovery and then, if the Plaintiffs do not have the material by which to support their allegations, it might be further dealt with.
Paragraph 38, which is said to be immaterial, deals with the taking of Scrip by an ancestor of the Plaintiff, Armande Gill, after the directive of the Superintendent General of Indian Affairs forbidding the issuance of Scrip, referred to paragraph 37. Paragraph 38 is material. I do not see that it will unduly delay the proceedings, for it is an area which must be dealt with in any event. Paragraph 38 shall remain.
In paragraph 39 the Plaintiffs plead the Amnesty of 17 July 1886 issued by Queen Victoria, pardoning those involved in the Rebellion and restoring their rights, lands and goods. Again, this is material to the present position of the Plaintiffs. It is of the same tenor as paragraph 40, to which the Defendants do not object.
Paragraph 41 sets out that agents of the Crown, employed by Indian Affairs and by the Half-Breed Commission, were improperly involved in schemes to buy Scrip and that "the ancestors of the Plaintiffs suffered damages as a result of these actions of these agents of the Crown.". This paragraph is objected to as both not supporting any reasonable cause of action and as immaterial. I agree. The paragraph is struck out.
Paragraph 42 of the Statement of Claim notes that Indians could not take up Scrip Certificates unless they had withdrawn from treaty. It should be read in context with paragraph 43, in which the Plaintiffs observe that such withdrawals from treaty were contrary to section 132 of the Constitution Act of 1867, to various modern treaties and to principles of customary international law dealing with treaties. I do not see the relationship between subsequent legislation and earlier withdrawal from treaty. The paragraph goes on to say that the ancestors of the Plaintiffs had less than 1/3 "white blood", had lived all their lives as Indians and that what had happened was contrary to representations made to the ancestors of the Plaintiffs in conjunction with the signing of Treaty No. 6. I agree with the Defendants that paragraph 42 does not disclose a reasonable cause of action and that paragraph 43 is immaterial. Paragraphs 42 and 43 are struck out.
In paragraph 44 the Plaintiffs set out their position that the Scrip Certificates of 1885 and 1886 were void ab initio. That is material if the Plaintiffs are to establish that they did not renounce their position as Indians or Aboriginal people. Paragraph 44 shall remain.
Paragraph 45 sets out that "these Indians" did not thereafter receive treaty payments or other treaty benefits. This paragraph would seem to go to support the original claim for damages payable to ancestors. The paragraph is not only immaterial, but does not disclose a reasonable cause of action. It is therefore struck out.
Paragraph 46 deals with an alleged issuance of a Scrip Certificate to an ancestor of several of the Plaintiffs in 1900 by a Half-Breed Claims Commission. The Defendants do not object to that statement, but do object to the plea that the Scrip Certificates were void, saying it refers to ancestors. Well it may, however, it is not a claim made by ancestors, but rather it is to found the present claim of the Plaintiffs. Paragraph 46 shall remain.
Paragraph 48 sets out issuance of Scrip Certificates was contrary to the Indian Act of 1886. In that some of the Scrip Certificates were issued in 1886 and perhaps later, paragraph 48 is germane. I decline to strike it out as immaterial.
Paragraph 49 sets out that issuance of the Scrip Certificates were in breach of trust, in breach of Treaty No. 6 and contrary to the provisions of the Indian Act. It was not to say that the Scrip Certificates were an impropriety issued in circumstances of duress, fraud and so on. The Plaintiffs say that it relates back to paragraph 45, which I have already struck out. The Defendants say that it discloses no reasonable cause of action. In passing I would also note that it seems scandalous and vexatious, for it will lead nowhere. Paragraph 49 is struck out.
Paragraph 50 and 51 deal with the purchase of Scrip Certificates by Messrs McDougall and Secore, apparently about the time of the signing of Treaty No. 8. As a result of this purchase the Plaintiffs and their ancestors are said to have suffered damages. I do not see these paragraphs as in any way being material. Paragraphs 50 and 51 are struck out.
Paragraph 52 through 56 deal with the purchase or assignment of Scrip Certificates by McDougall and Secore and their presentation to the Crown in order to collect Scrip funds, the result of which is said to have amounted to equitable fraud on the Plaintiffs' ancestors. Paragraph 56 sets out that these actions, which occurred between 1885 and 1900, were concealed from the Plaintiffs and their ancestors. Paragraphs 52 through 56 are struck out as they plainly, obviously and beyond doubt do not disclose a reasonable cause of action.
Paragraph 57 deals with the enfranchisement of Michels' Band, the Band to which the Plaintiff, Florence Pulliam, traces her ancestors. This occurred in October 1958. The result is said to have deprived Florence Pulliam and her living descendants of their rights according to Treaty No. 6. This is straightforward. It represents a cause of action. The Plaintiffs then plead Constitution Act of 1867 together with various other international declarations and covenants, customary international law and the Crown's trust and fiduciary duties, among other things. On balance I intend to leave paragraph 57 in place. However, the Defendants are entitled to particulars as later set out in these reasons. Paragraph 57 may also present something of a burden that the Defendants will have to work through on discovery. On balance, taking paragraph 57 at face value, I am unable to say that it does not plainly and obviously disclose a reasonable cause of action and that it clearly will not succeed.
Paragraph 58 sets out that the ancestors of the Plaintiff were Indians, under various versions of the Indian Act and were either registered or entitled to be registered as Indians under the Indian Act. Again, that bears on the relief which the Plaintiffs claim. It discloses a possible reasonable cause of action. That being the case I am not prepared to strike it out by reason of the Defendants' allegations that the paragraph is both scandalous, vexatious and an abuse of process.
Paragraphs 59 and 60 claim entitlement, for some of the Plaintiffs, together with their living descendants, to be registered under the Indian Act. Those paragraphs, when read in the context of the preceding paragraphs, go towards constituting a cause of action cumulating in relief sought. Here I note that the Defendants still object to the reference to "living descendants": this is far different from referring to ancestors. It is a perfectly good plea. For that reason, I also decline to strike out paragraph 61 which sets out that the Plaintiffs and their living descendants totalled about 670 people.
Paragraph 62 makes the statement that the ancestors of the Plaintiffs, and their living descendants are Aboriginal people of Canada. The Plaintiffs will have to prove that their ancestors were Aboriginal people of Canada in order to establish the Aboriginal rights of the Plaintiffs' claim. Paragraph 62 of the Statement of Claim shall remain for, taken in the context of the Statement of Claim, it goes towards establishing a reasonable cause of action.
In paragraph 63 the Plaintiff, Gordon Gill, sets out that he is a person who would have been deleted from the Indian Act before 4 September 1951, by virtue of his father being a non-Indian person. This is a completely hypothetical basis on which to found a claim. The paragraph goes on to say that he is now entitled to be registered under the Indian Act, as are his children. In the context of the whole of the Statement of Claim this is not only immaterial, but given the hypothetical cases of the possible deletion of Gordon Gill, does not disclose a reasonable cause of action. While paragraph 63 goes on to claim treaty payments for Gordon Gill and his children, treaty payments are generally claimed elsewhere in the Statement of Claim, making portions of paragraph 63 redundant. Paragraph 63 of the Statement of Claim is struck out as being both immaterial and lacking a reasonable cause of action.
In paragraph 64 the Plaintiffs challenge the provisions of the Indian Act of 1985, as contrary to both section 15 of the Charter of Rights and Freedoms and section 35 of the Constitution Act. This may well be a hurdle that the Plaintiffs will have to surmount. Taken at face value I am unable to say that it does not disclose a reasonable cause of action. Moreover, it may be material. Paragraph 64 shall remain.
I have considered the various objections which the Defendants take to the prayer for relief. A very minor portion of the prayer is objected to as new material, principally damages for breach of treaty, breach of international law, the law of nation and constitutional law. That may at some later point give rise to a request for particulars, however I am not prepared to strike out those references at this time. The Defendants object to an alleged failure, on their part, to maintain the names of the ancestors of the Plaintiffs in the Indian Registry. That is not a claim by ancestors, but rather a basis for the present claim of the Plaintiffs. It shall remain.
The Plaintiffs claim an accounting of Treaty No. 6 payments and benefits which have not been paid since 1885 to the date of this trial. I fail to see the relevance of the 1885 date. That date clearly relates to ancestors. Thus paragraph 11 of the prayer for relief is struck out, but with leave to amend if the intent is that it refer to benefits to which the Plaintiffs, in their own right, would be entitled to receive.
The Plaintiffs may have 30 days from the date of the Order, resulting from these Reasons, within which to serve and file an amended statement of claim.
Particulars
The Defendants seek leave to file an amended defence. However, as an alternative to succeeding on striking out, they also seek particulars. I will now turn briefly to the matter of particulars. It is common place law, but also basic and important, that a function of particulars is to assist the party which has requested particulars in delineating the issues. In this instance there are some portions of the Statement of Claim which will require particulars before the Defendants should be required to plead to them.
At this point it would be appropriate, so that the Defendants may know who are involved in this class action, that the Plaintiffs provide the names of the approximately 700 other individuals referred to in paragraph1 of the Statement of Claim.
I do not see that the Defendants require particulars of paragraph 6 at his point, for what is set out they should be able to answer.
It is appropriate that the Plaintiffs provide particulars of the terms, understandings, obligations and representations relating to Treaty No. 6, as understood by their ancestors, that being a part of the plea in paragraph 11 of the Statement of Claim.
I do not see that the Defendants need particulars in order to respond to paragraph 12 of the Statement of Claim.
Paragraph 18 provides, as I indicated, some appropriate background. I do not see that the Defendants need particulars in order to respond. However, there is reference to forbearers or ancestors of the Plaintiffs in paragraph 19, in the context of the wanderings of the ancestors of the Plaintiffs. To the extent that the Plaintiffs know who those ancestors were, particulars are to be provided in order to assist in the Defendants' pleading to paragraph 21 of the Statement of Claim.
The names of the ancestors of the Plaintiffs, referred to in paragraphs 25, 26 and 29, are to be provided by the Plaintiffs, to the extent that they are able.
The Plaintiffs are to provide particulars of the breach of trust, impropriety, bribery, undue influence, duress, non est factum and breach of statutory authority referred to in paragraph 37.
The Plaintiffs are to provide particulars of the purported issuance of a Scrip Certificate to Josephte Gray, as set out in paragraph 46 and similarly whatever particulars the Plaintiffs have of the purported issuance of a Scrip Certificate to Caroline Thompson, referred to the paragraph 47 of the Statement of Claim.
To the extent that the living descendants of Florence Pulliam, referred to in paragraph 57 of the Statement of Claim are not particularized by way of particulars pursuant to paragraph 1 of the Statement of Claim, those are to be provided in order to give the Defendants better particulars of paragraph 57.
The Plaintiffs are to provide particulars of the international law, the law of treaties, the law of nations and the Crown's breach of trust and fiduciary duty, referred to paragraph 57. The Plaintiffs are also to provide particulars of the duress, undue influence, abuse of position, misrepresentation, bribery, intimidation, non est factum and lack of capacity referred to in paragraph 57. Finally, the Plaintiffs are to provide particulars of the provision of alcohol to the voting male members of Michels' Band.
The living descendants of Armande Gill, referred to in paragraph 59 and to the extent that they have not been delineated in particulars pursuant to section 1 of the Statement of Claim, shall be provided.
Success on this motion being mixed, costs shall be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
12 September 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-165-01
STYLE OF CAUSE: Garnet Desjarlais et al. v. HMQ et al.
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: 25 July 2001
REASONS FOR ORDER OF THE COURT BY: Hargrave P.
DATED: 12 September 2002
APPEARANCES:
Priscilla Kennedy FOR PLAINTIFFS
Patrick G Hodgkinson FOR DEFENDANTS
Leanne K Young
Suzanne Dawson
SOLICITORS OF RECORD:
Parlee Mclaws FOR PLAINTIFFS
Barristers & Solicitors
Edmonton, Alberta
Morris A Rosenberg FOR DEFENDANTS
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta