PRACTICE |
Pleadings |
Motion to Strike |
Shubenacadie Indian Band v. Canada (Attorney General)
T-1525-00
2001 FCT 181, Hugessen J.
14/3/01
8 pp.
Motion to strike statement of claim based on improper amendment of pleadings (addition of new claims and parties when proceeding converted from application for judicial review to action) and failure to disclose reasonable cause of action--Motion dismissed--Nothing in Federal Court Act, s. 18.4, nor in principle, preventing plaintiffs from adding new claims and parties--As to second ground, heavy burden on party bringing motion; must show beyond doubt case would not succeed at trial--Statement of claim to be read generously and with open mind, especially in evolving field of Aboriginal law--Where pleading containing glimmer of cause of action, should be allowed to go forward--Plaintiffs herein based claim upon assertion beneficiaries of Aboriginal rights devolved both from treaty and at common law--Although pleading very far reaching in scope and vagueness of claims, contains essence of claim of Aboriginal rights by treaty and at common law--Language in R. v. Marshall No. 1, [1999] 3 S.C.R. 456 and R. v. Marshall No. 2, [1999] 3 S.C.R. 533 capable of supporting different views; interpretation should be left to trial judge--Would not be right, in situation as obscure as present one, to deprive plaintiffs of right to present their claim--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.4 (as enacted by S.C. 1990, c. 8, s. 5).