Date: 20031009
Docket: T-430-01
Citation: 2003 FC 1170
BETWEEN:
ANDREW MARK BUFFALO also known as ANDREW MARK FREEMAN on his own behalf and on behalf of all other members of the Samson Cree Nation on whose behalf Her Majesty the Queen holds unpaid per capita distributions in the Samson Band Suspense Account
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendant
- and -
Docket: T-354-01
BETWEEN:
SAMSON CREE NATION
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
As represented by the Minister of Indian Affairs and Northern Development
Defendant
REASONS FOR ORDER AND ORDER
[1] On December 11, 2002 I heard and disposed of two motions in Edmonton relating to competing claims to certain moneys being held by the Crown in trust for members of the Samson Band. With the consent of counsel, I had directed that the matter be treated as an interpleader with each plaintiff moving for summary judgment. At the hearing, I decided that the plaintiff Andrew Mark Buffalo in file T-430-01 should succeed and that the other plaintiff, Samson Band, should fail. Mr. Buffalo's action had started life as a representative action under former Rule 114 but that Rule had been abolished less than three weeks before I heard the matter. Rule 114 was replaced by the new Class Action Rules. While I was aware of the new Rules and mentioned that fact, I did not, as perhaps I should have, formally either declare that in my view this was, given the advanced stage of the litigation, (the direction to proceed by interpleader and competing motions for summary judgment was given well before the Rules had changed) a suitable case to dispense with the application of the new rules or, alternatively, certify the plaintiff as a representative of the class or describe the latter in any detail. This deficiency, if deficiency it was, was not remedied in the formal order which was drawn up by Mr. Buffalo's solicitor and signed by me on March 5, 2003. It is, however, I think tolerably clear from the Reasons which I gave at the time that I was satisfied that a class existed, that its description was clear, and that Mr. Buffalo was an appropriate, and at that late stage in the proceedings, the only possible representative plaintiff.
[2] The following extracts from my Reasons are relevant:
2. Andrew Mark Buffalo is a representative plaintiff and represents a certain number of other persons in similar situations and the evidence before me indicates that there are also other persons whose situation may not be identical to that of Andrew Mark Buffalo but the outcome of whose cases may depend upon the outcome of this case.
...
5. The second relevant consideration was the passage of a Band Council resolution in April of that year [1987] directing the Minister in accordance with section 64 of the Act to make payments per capita distributions to Band members who were members of the Band during the period of May 1987 to May 1988. Because Mr. Buffalo only became a member at the end of June, his entitlement in accordance with the terms of that resolution which called for per capita distributions of $500 per month is for ten of such payments for a total of $5,000, there having been no subsequent directions for per capita distributions.
...
7. The real issue as between the two plaintiffs in these cases has to do with the effect of a purported settlement agreement. Let me say, first of all, that the parties, by agreement and in accordance with the direction given by me have treated this matter as one of interpleader. The Crown does not dispute that it holds the money as a stake holder and that it is prepared to pay the money out to whoever is properly entitled to it. It is for that reason that I directed that this matter should go forward for determination in a summary way as rule 108 says and I indicated that I thought the best way for that to be done was for each plaintiff to move for summary judgment and those are the motions that I have before me today. As I say,I the issue is a purported settlement entered into between Andrew Mark Buffalo and the Band in 1995. Other claimants in the same position as Mr. Buffalo have apparently also entered into the same or similar settlement agreements.
[3] In the formal order which was subsequently submitted by plaintiff's solicitor to give effect to those Reasons neither he nor I thought to include any provision either granting or dispensing with certification of the action as a class action. Since I understand that the order is now in appeal, it would not be proper for me to say or do anything more on the subject at this time.
[4] I now have before me two motions. The first, made by plaintiff, follows on the previous order and proposes a method of inviting and assessing claims. Subject to one reservation, it is in generally acceptable form and I shall issue an appropriate order. My reservation is as to the description of the class of persons who should be invited to file claims. I think it is clear that the class is restricted to those persons who were or became members of the Samson Band between June 1987 and May 1988, both inclusive, whose per capita distributions for that period are held by the Government of Canada and with whom the Samson Band may have purported to have effected a settlement. I am told that there are at least 118 such persons. Since my previous order decides that the purported settlement cannot be set up against the plaintiff, and others of the class, the fact of having entered into such settlement is not a condition of membership. From the materials before me, however, it appears that there are other persons for whom the government may be holding funds some or all of which may relate to per capita distributions for other years; such persons are clearly not included in the class in so far as their claims may go beyond the 1987-1988 per capita distribution. They are said to number 213 but it is not clear what, if any, part of the funds being held for them relates to the 1987-1988 per capita distribution. They would of course be members of the class with regard to any such part, but not for any balance.
[5] The second motion before me is brought by the Samson Band. It is not entirely clear what is being sought but it appears to be either a stay or a revision of the March 2003 order and leave to intervene in the proceedings in the Buffalo case leading to the determination of individual claims of members of the class. In my view, the motion is ill-founded. No case is made for a stay of the March order and no attempt is made to satisfy the classic three part test laid down in such cases as Manitoba (Attorney General) v. Metropolitan Stores (MTS Ltd.) , [1987] 1 SCR 110. In so far as varying that order is concerned, as I have already said, the case is in appeal and it would be improper for me to do anything in that regard.
[6] Finally, I can see no basis for permitting the Band to intervene or have standing in the determination of individual claims. My previous order has determined that the Band has no interest in the moneys being held by the government for the members of the class and the Band's participation in the claims process would only serve to further delay the resolution of a matter that has already gone on for far too long.
[7] At the December 2002 hearing, the Band provided in the most general terms only information as to the nature and amount of all payments claimed to have been made by it to the individual members or potential members of the class. I was not satisfied with that evidence which did not establish that the payments were for the same amounts which were being held by the Crown in respect of per capita distributions. Accordingly, I dismissed the Band's claim to share in the moneys being held by the Crown. In my view, the Band is now estopped from objecting to the claims of individual plaintiffs based on the same or different evidence of those payments. Put briefly, the issue of payments to the claimants which is now raised by the Band in its argument in support of its motion was before me on summary judgment, and is therefore now res judicata.
[8] The Band's motion will be dismissed.
[9] There will be no order as to costs on the motions.
ORDER
1. The motion of the plaintiff Andrew Mark Buffalo under Rule 369 for terms respecting the distribution of the amounts in issue and the manner in which individual claimants may make their claims, is hereby granted.
2. The terms are as follows:
(i) The class is restricted to those persons who were or became members of the Samson Cree Nation between June 1987 and May 1988, both inclusive, whose per capita distributions for that period are held by the Government of Canada, and with whom the Samson Cree Nation may have purported to have effected a settlement. However, the fact of having entered into such settlement is not a condition of membership;
(ii) Proof of claim by each claimants who claims to be a member of the class shall be by way of affidavit with accompanying documentation establishing Band membership at the relevant time;
(iii) Pursuant to Rule 299.27 of the Federal Court Rules, 1998, claimants who do not wish to be bound by the terms of this settlement may opt out in writing;
(iv) Pursuant to Rule 299.42 of the Federal Court Rules, 1998, payment of fees inclusive of disbursements from the proceeds of the claim are capped at 25% of the individual claimant's right to costs on assessment;
(v) For members who cannot be located and notified by mail, or who do not respond to mailings by October 31, 2003 the plaintiff shall advertise in local newspapers having distribution in the Hobbema area in order to identify those members ; the text of such advertisements shall be submitted to the Court for approval on motion made ex parte pursuant to Rule 369.
(vi) All claims and any matters of dispute between the parties shall be resolved in a summary fashion by application to a Prothonotary pursuant to Rule 50 or to a Judge, as the case may arise.
3. The Contingency Fee agreement with plaintiff's solicitor is to remain sealed until further order, thereby maintaining the confidentiality requirement of the Alberta Rules of Court, Alta. Reg. 390/68.
4. The motion brought by the plaintiff Samson Cree Nation, under Rule 369 for a stay or revision of the March 5, 2003 order, and leave to intervene in the proceedings leading to the determination of individual claims of members of the class, is dismissed.
5. Pursuant to Rule 299.41 of the Federal Court Rules, 1998, there is no order for costs.
Judge
Ottawa, Ontario
October 9, 2003
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-430-01
STYLE OF CAUSE: ANDREW MARK BUFFALO et al v. HER MAJESTY THE QUEEN et al
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: October 9, 2003
WRITTEN SUBMISSIONS BY:
Terence Glancy FOR PLAINTIFFS
Kevin Kimmis FOR DEFENDANT CROWN
Priscilla Kennedy FOR PLAINTIFF SAMSON CREE NATION
In T-354-01
SOLICITORS ON THE RECORD:
Royal McCrum, Duckett & Glancy
Edmonton, Alberta FOR PLAINTIFFS
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT CROWN
PARLEE MCLAWS
Edmonton, Alberta FOR PLAINTIFF SAMSON CREE NATION
In T-354-01