Digests

Bellegarde v. Canada

T-1105-02

2003 FC 998, Snider J.

26/8/03

12 pp.

Motion for order striking out claim of respondents, plaintiffs in underlying action, on basis claim on basis discloses no reasonable cause of action--Alternatively, applicant seeking stay of proceedings pending completion of consultations--Not first attempt by applicant to strike claim--First time, MacKay J. refused to strike two portions of claim: (1) declaration defendant (applicant) breached fiduciary obligations and duties; and (2) declaration in future defendant (applicant) must act within honour of Crown and its fiduciary duty to uphold treaty rights by conducting meaningful consultations with full disclosure of such proposed statutes to leadership of First Nations Canada--Motion must be considered without admission of evidence and on basis material facts alleged in statement of claim assumed to be true for purposes of motion--Whether plain and obvious amended statement of claim disclosing no reasonable cause of action--As to res judicata argument, res judicata requires demand be based on same cause, between same parties and with same object--In case at bar, applicant raising same issues, requesting same relief, but has included request for stay of underlying application and parties essentially the same--Whether res judicata applies turns on whether anything new has arisen since MacKay J. first heard matter--Only new material submitted decision in Treaty Eight First Nations v. Canada (Attorney General) 2003 FCT 782 (First Nations)--However, First Nations distinguishable--Accordingly, likely motion barred by res judicata--As to merits of motion, applicant submits enactment of regulations does not give rise to private law fiduciary duty to consult with Aboriginal peoples--Case at bar distinguishable from First Nations--In First Nations, applicants asserted general fiduciary obligation arising from "constitutional right to governance and land"--Regulations at issue dealt with method in which elections and referendums would be conducted--In case at bar, Bill C-7 relates to amount of federal governmental control over Indian governments on reserves and involves substantive, major changes to Indian Act--Although plaintiffs asserting right similar to that asserted in First Nations, content of legislation in present case more clearly linked to Aboriginal and treaty rights--Impossible to conclude claim certain to fail-- Regarding stay of proceedings, given nature of relief sought by plaintiffs, not necessary to stay action--Motion to strike dismissed either because res judicata or on merits--Indian Act, R.S.C., 1985, c. I-5.