PRACTICE |
Case Management |
Status Review |
Stoney Band v. Canada
T-1627-88
2004 FC 122, Gibson J.
29/1/04
17 pp.
Appeal of Prothonotary's order dismissing action for delay in proceeding--Statement of claim alleging improprieties concerning transfer of surrendered reserve lands, filed in 1988 --No steps taken in action since 1991--Test for determining appropriate decision on status review set out in Baroud v. Canada (1998), 160 F.T.R. 91 (F.C.T.D.)--Against Baroud test, reasons why action has not moved forward with greater dispatch lie entirely at door of plaintiff--Court invited submissions in writing from counsel on whether defendant Crown owed plaintiff First Nation any fiduciary duty applicable on facts of this particular status review--Defendant referred to Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, in which Justice Binnie wrote: "Somewhat associated with the ethical standards required of a fiduciary in the context of the Crown and Aboriginal peoples is the need to uphold the `honour of the Crown'. . .The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests"--Whether specific Indian interest or interests giving rise to fiduciary duty will only be determined if litigation allowed to proceed to final determination-- "Honour of the Crown" remains concept in search of principle --Crown's conduct in this matter reviewed--Chose not to file defence and not to engage in assembly of documentation supporting defence--Chose not to seek extension of time to file defence and not to seek stay of action justifying inaction-- Lastly, chose not to seek order dismissing this action for delay --Then, only when status review implemented, Crown cited prejudice would suffer by reason of long delay--Actions of Crown on undisputed facts of matter not consistent with "honour of the Crown"--Conduct of defendant relevant and determinative factor on this status review--Finally, plaintiff suggested Federal Court in part responsible for long period of inaction on this matter--While Federal Court Rules, 1998, r. 380 creates obligation to conduct status reviews, Rules not relieving plaintiff of "primary responsibility for the carriage of a case" (Baroud)--Plaintiffs not entitled to rely on Court's failure to commence status review to justify or excuse own inaction--Appeal allowed--Federal Court Rules, 1998, SOR/98-106, r. 380.