Allison v. Allison
T-1690-94
Hargrave P.
25/4/96
8 pp.
Portions of amended amended statement of claim-Statement of claim originally action for declaration plaintiffs duly elected-Preliminary objection: whether proper to move under R. 419(1)(a) to strike out pleading for want of jurisdiction-Plaintiffs submitting application should be under R. 401, providing defendant may, by leave of Court, file conditional appearance in order to object to Court's jurisdiction-Failure to recite correct Rule not defeating substance of motion: Carins v. Farm Credit Corp., [1992] 2 F.C. 115 (T.D.)-Test for striking out under R. 401 not that applied under R. 419 (i.e. cause of action plainly and obviously without chance of success), but that in ITO-International Terminal Operators Ltd. v. Miida Electronics et al., [1986] 1 S.C.R. 752-Plaintiffs agreeing to delete references to libel, slander as Court lacking jurisdiction over causes of action between subject and subject-Plaintiffs submitting doctrine of intertwining of pleadings in statement of claim ought to apply in order to find jurisdiction-That approach rejected in Varnam v. Canada (Minister of National Health and Welfare), [1988] 2 F.C. 454 (C.A.)-Paragraphs 16, 17 struck out as departures from previous pleadings as provided for under R. 419(1)(e)-Similarly plea for general damages for intentional infliction of mental suffering, mental distress, nervous shock struck out-Paragraphs 27 to 31 dealing with nuisance through trespass, obstruction, unlawful occupation of Lower Similkameen Band Office, allegation of false Band Council banking resolution, allegation of conversion of Band's bank accounts-Paragraphs 36 to 44 dealing with conversion-Paragraphs 27 to 31, 36 to 44 struck out under R. 419(1)(e) as substantial departure from previous pleading-Also no statutory grant of jurisdiction authorizing Court to deal with claims of conversion, obstruction as between individuals-Finally, while Indian Act, s. 31 dealing with trespass, Attorney General of Canada must claim on behalf of individual Indians in Federal Court-Claim for damages for trespass not fitting within either Indian Act, s. 31 or Federal Court Act, s. 17(2)(a), (4)-Federal Court not having jurisdiction to award damages as between individuals for conversion of funds-Prayer for relief seeking damages for wrongful interference with private property also struck out-Paragraphs 32 to 35 dealing with obstruction of operation of Band Office and of plaintiff as elected Chief consistent with plaintiffs seeking declaration as to status-Federal Court Rules, C.R.C., c. 663, RR. 401, 419-Federal Court Act, R.S.C., 1985, c. F-7 ss. 17 (as am. by S.C. 1990, c. 8, s. 3), 18 (as am. idem, s. 4), 18.1 (as enacted idem, s. 5)-Indian Act, R.S.C., 1985, c. I-5, s. 31.