Date: 20010622
Docket: T-1525-00
Neutral Citation: 2001 FCT 699
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members and
ALEX MACDONALD, LEON ROBINSON, CHAD ROBINSON,
JOHN PAUL, PETER PAUL, VANDORA PAUL,
GENEVIEVE JOHNSON, HOLLY MACDONALD,
MARK LAWRENCE HOWE, ANDREW ROBINSON,
JASON MARR, DOUG MARR, IKE MARR, JOHN MARR,
EDWARD PETER-PAUL, BERNARD JOHNSON, CARL SACK,
AMY MALONEY, MARIE ROBINSON, GREGORY PAUL,
DAVID MACDONALD, DONALD JEANS, FRANK SMITH
AND JOHN MARR (No. 2)
and WILLIAM J. NEVIN, STEPHEN M. PETER-PAUL,
BENJAMIN J. BRAKE, GLENDON BROOKS, and
ELLEN ROBINSON
Plaintiffs
- and -
ATTORNEY GENERAL OF CANADA,
representing the Minister of Fisheries and Oceans (Canada),
HER MAJESTY IN RIGHT OF CANADA,
UNION OF NOVA SCOTIA INDIANS, a body corporate, and
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
Defendants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
LFA DISTRICT 34 LOBSTER COMMITTEE,
ATLANTIC FISHING INDUSTRY ALLIANCE,
NATIVE COUNCIL OF NOVA SCOTIA
Interveners
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] This is a motion brought pursuant to Rule 369 by which the defendant Crown seeks to strike out virtually all of the statement of claim. To a very large extent, the motion repeats allegations which were heard and decided by me on a previous motion to the same effect, although, because the statement of claim has since been amended, the precise nature of the impugned paragraphs has changed. As with the previous motion, I consider the defendant's assertion that the plaintiffs have failed to allege sufficient material facts to support some or all of their claims to be without substance. The impugned claims, both those which were previously attacked and those which have now been added, are very broad and general in nature and would certainly require particularization, but they are not so defective as to require that they be struck out.
[2] There are, however, two matters which were not timely raised on the first motion (Crown counsel having failed to meet a deadline to file submissions in this regard) and one which was not raised at all. I now turn to them.
[3] Firstly, it is said that the defendant, the Attorney General of Canada as representing the Minister of Fisheries, is wrongly named as there are no allegations against the Attorney General but only against the Minister. While this is true, it is also of very little consequence. These proceedings were started as a judicial review application and the Attorney General was properly named as a respondent. When the proceeding was converted into an action it seems clear that the necessary consequential changes were not made. But there can simply be no doubt that it is the plaintiffs' intention to sue the Minister and that both the Crown and the Minister are fully aware of that fact. I shall accordingly order that the references to the Attorney General as representing the Minister of Fisheries and Oceans (Canada) be struck out and replaced by references to the Minister of Fisheries and Oceans simpliciter.
[4] Secondly, there are a number of allegations of vicarious liability on the part of the Minister for the acts of officers, servants and agents of the Department of which he is the head. Those allegations cannot stand. While the Minister may be personally responsible for his own actions, including orders which he has personally given, (and there are allegations to that effect) he cannot, as a servant of the Crown, be held responsible for the acts of other Crown servants. The allegations of vicarious liability on the part of the Minister will be struck out.
[5] Thirdly, it is said that paragraph 8 of the Statement of Claim "contradicts a previous pleading" in that it is at variance with a previous written submission filed by plaintiffs' counsel. I disagree. In the first place, a written submission is not a pleading. Secondly, and more importantly, there is in my opinion no real contradiction but simply a clarification and expansion of what was previously said.
ORDER
1. All references to the Attorney General of Canada as representing the Minister of Fisheries and Oceans (Canada) in the style of cause and in the Statement of Claim are replaced by a reference to the Minister of Fisheries and Oceans.
2. All claims of vicarious liability of the Minister of Fisheries and Oceans for the acts of officers, agents or servants of the Crown are struck out.
3. Costs in the cause.
Judge
Ottawa, Ontario
June 22, 2001