PRACTICE |
Pleadings |
Motion to Strike |
Little Chief v. Siksika Nation (Chief and Council)
T-376-03
2003 FCT 708, Hargrave P.
4/6/03
10 pp.
Defendants seeking to strike out statement of claim for want of jurisdiction--Statement of claim alleging improper stewardship of funds belonging to Siksika Nation by Chief, Council of Siksika Nation and by directors, officers of Siksika Youth Entrepreneurial Development Society--Plaintiffs stating Council of Siksika Nation breached fiduciary duty to members of Siksika Nation by failing to ensure funds properly used to benefit Society--Plaintiffs questioning procedure used by Siksika defendants on motion to strike out--R. 208 provides leave to party, served with statement of claim, to object to jurisdiction without attorning to jurisdiction of Court--Challenge must be brought under other provision of Federal Court Act--Court at liberty to apply either r. 221(1)(a), want of cause of action, with affidavit evidence as may be appropriate, or r. 221(1)(f) to strike out pleading, by reason of want of jurisdiction on part of Court, as abuse--In striking out pleading, action, must be plain, obvious, beyond doubt claim will not succeed--Lack of jurisdiction must be "plain and obvious" to justify striking out of pleadings at preliminary stage--Test to apply in order to determine whether jurisdiction over matter in Federal Court set out by S.C.C. in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752--First branch of test that "must be statutory grant of jurisdiction by federal Parliament", which Siksika defendants say plaintiffs failed to meet--Siksika defendants referring to want of jurisdiction as considered by Court in Stoney Band v. Band Council of the Stoney Band (1996), 118 F.T.R. 258 (F.C.T.D.) as complete answer to plaintiffs' case--Heald J. ruled required statutory grant must be found either in Federal Court Act, or other Act of Parliament--Nothing in present statement of claim would establish Chief, Council of Siksika Nation, in collective official role or on own individual parts, acting as officers, servants, agents of Crown--Siksika Nation had authority to control, manage, expend in whole or in part revenue moneys--Did not act as servant, agent of Crown-- Court not having jurisdiction as proceeding presently set out--Action struck out as beyond jurisdiction of Court-- Federal Court Rules, 1998, SOR/98-106, rr. 208, 221-- Federal Court Act, R.S.C., 1985, c. F-7.