Cooper v. Tsartlip Indian Band
T-2639-90
Reed J.
14/11/94
11 pp.
Motion to set aside default judgment pursuant to R. 439(3) and to strike statement of claim pursuant to R. 419 on grounds Court lacking jurisdiction over defendant and to award damages-Purchase of Indian reserve land by plaintiff not properly registered in Reserve Land Register with Department of Indian Affairs (Minister)-Son of assignor unsuccessfully attempting to re-purchase land from plaintiff-Document purporting to transfer possession of land to Band Council signed without plaintiff's knowledge-Minister approving Band Council's request to authorize use of land for school purposes-Band Council ignoring plaintiff's claim for compensation-Plaintiff first commencing Supreme Court of British-Columbia action naming Band Council members in individual capacity, and subsequently commencing Federal Court action due to jurisdiction issue-Process server refused permission to enter reserve for purpose of serving upon defendants statement of claim in present action-Order for substitutional service obtained and default judgment issued against defendants-Setting aside of default judgment requiring reasonable explanation as to why action not defended, and good defence on merits-Reasons asserted by defendant for failure to defend action: (1) lack of knowledge of law suit; (2) understanding another person looking after it; (3) matter under sole authority of Minister; (4) claim without merit; (5) no funds available to defend law suit; and (6) action not against Band Council but rather against individuals only-Adverse finding as to reasonable explanation by defendants for failure to defend action and as to merit of defendants' defence-Court without jurisdiction to award damages against individual defendants in personal capacity-Limited circumstances whereby band council considered agent of Crown not applying to case at bar thus Court precluded from awarding damages against Band Council-Variation of default judgment to remove grant of damages-Action against defendant Band Council and various members thereof properly within jurisdiction of Court-Additional remedies available had plaintiff chosen to sue Crown as damages may be awarded against Crown-Defendant's arguments which, had they been raised in context of properly contested action could have led plaintiff to amend pleadings to obtain relief sought, not resulting in striking out of default judgment due to lack of jurisdiction-Adverse finding with respect to lack of jurisdiction-Minister's involvement in proceeding appropriate only where their jurisdiction at issue-Procedural defects not meriting setting aside default judgment-Plaintiff's statement of claim standing with allowance for amendments to cure procedural defects and to plead other relevant remedies-Federal Court Rules, C.R.C., c. 663, RR. 419, 439(3).