T-66-86
Walter Patrick Twinn suing on his own behalf and
on behalf of all other members of the Sawridge
Band, John Daniel McLean suing on his own
behalf and on behalf of all other members of the
Sturgeon Lake Band, Wayne Roan suing on his
own behalf and on behalf of all other members of
the Ermineskin Band, Raymond Cardinal suing on
his own behalf and on behalf of all other members
of the Enoch Band, Bruce Starlight suing on his
own behalf and on behalf of all other members of
the Sarcee Band, and Andrew Bear Robe suing on
his own behalf and on behalf of all other members
of the Blackfoot Band (Plaintiffs)
v.
The Queen (Defendant)
INDEXED AS TWINN V. CANADA
Trial Division, Strayer J.—Ottawa, May 6 and 20,
1987.
Practice — Pleadings — Motion to strike — Statement of
claim, or paragraphs thereof for failure to disclose cause of
action — Court functus officio having denied earlier motion to
strike — Nothing in amendments nor particulars subsequently
provided altering former conclusion — Amendments and
particulars not rendering appeal moot as amendments only
relevant to matters not under appeal — Federal Court Rules,
C.R.C., c. 663, R. 419.
Practice — Judgments and orders — Reversal or variation
— Order denying motion to strike statement of claim — Fresh
motion for some relief on basis of changed circumstance —
Recent Supreme Court of Canada judgment on freedom of
association said to be inconsistent with previous order herein
— No court having power to reopen decision where higher
court later issuing inconsistent judgment.
Practice — Judgments and orders — Stay of execution —
Application to stay earlier order requiring statement of
defence to be filed within 30 days of service on defendant of
amendments to statement of claim — Application dismissed
— Defendant not meeting onus of demonstrating clear balance
of convenience in favour of stay of whole action pending appeal
of interlocutory order — No special injury to defendant
shown, but judicial notice taken of plaintiffs' evidence amend
ments to Indian Act being applied while case going on —
Likelihood of success of appeal considered — Application of
principle that onus on applicant for stay greater where order
not subject of execution procedures — Federal Court Rules,
C.R.C., c. 663, RR. 402, 1909 — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 50 — Indian Act, R.S.C. 1970, c.
I-6.
This is an application to strike out the whole statement of
claim on the ground that it discloses no cause of action, or
paragraphs 9 and 11 thereof on the same ground, and an order
staying an earlier order requiring the defendant to file a
statement of defence within 30 days of service on it of the
amendments to the statement of claim, or an order extending
the time for the defendant to file its statement of defence.
Held, the application should be dismissed with costs against
the defendant-applicant regardless of the outcome of the cause.
The defendant is to file a statement of defence within 14 days
of the filing of the formal order.
There is no jurisdiction to strike the whole statement of claim
as the Court is functus officio having already refused to strike
out the statement of claim on a previous motion. Nothing in the
amendments nor in the particulars provided since the previous
order, alters the conclusion that the statement of claim should
not be struck out. The Court found that the statement of claim
raised an arguable case. The plaintiffs have since provided
particulars with respect to certain paragraphs. Although the
facts may not be properly particularized, this does not affect
the validity of the statement of claim as a whole.
Nor has the Court authority to reopen its decision on the
basis that since rendering it a higher court has issued a decision
inconsistent with the former. In any case, it would be inappro
priate on a motion to strike to conclude, on the basis of
Reference re Public Service Employee Relations Act, [1987] 1
S.C.R. 313, that in the particular circumstances of the plain
tiffs there was now no basis for a claim of infringement of
freedom of association. The issues are very different in respect
of Indian bands and trade unions.
The amendments and particulars do not render the appeal
from this Court's prior order moot as those matters are not
under appeal. The appeal only relates to the refusal to strike
out the whole statement of claim.
There is no automatic or presumptive right to a stay of an
interlocutory order pending the determination of an appeal
from that order. The defendant has not met the onus on it to
demonstrate a clear balance of convenience in favour of the
stay. The defendant has not demonstrated a special injury that
will be caused to it or to the beneficiaries of the impugned
amendments to the Indian Act if preparations for trial contin
ue. The only disadvantage to be suffered would be the incurring
of some legal costs with respect to filing a statement of defence,
making discovery of documents, and proceeding to examination
for discovery. However, judicial notice was made of the evi-
dence that the composition of the plaintiff bands is being
affected by amendments to the Indian Act. Also the probabili
ties of the success of the appeal are limited as it is from the
exercise of a discretion. The principle that the onus on the
applicant for a stay is greater where the order sought to be
stayed is not one which is the subject of execution procedures,
was applied. The order, being the dismissal of an application to
strike a statement of claim, is not the subject of execution
procedures.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Reference re Public Service Employee Relations Act,
[1987] 1 S.C.R. 313; R. v. Baird, [1982] 2 F.C. 539
(C.A.).
CONSIDERED:
Manitoba (Attorney General) v. * Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110.
REFERRED TO:
Cercast Inc. et al. v. Shellcast Foundries Inc. et al. (No.
4) (1973), 10 C.P.R. (2d) 83 (F.C.T.D.); Communica
tions Workers of Canada v. Bell Canada, [1976] 1 F.C.
282 (T.D.); Canadian Broadcasting Corporation v. L'As-
sociation des réalisateurs, [1982] 2 F.C. 337 (T.D.);
Baxter Travenol Laboratories of Canada Ltd. et al. v.
Cutter (Canada), Ltd. (1981), 54 C.P.R. (2d) 218
(F.C.T.D.); Orient Leasing Company Ltd. v. Ship "Kosei
Maru" (1978), 22 N.R. 182 (F.C.A.); Baxter Travenol
Laboratories of Canada, Ltd. et al. v. Cutter (Canada),
Ltd. (1984), 2 C.P.R. (3d) 142 (F.C.T.D.).
COUNSEL:
Maurice C. Cullity, Q.C., Catherine Twinn
and June M. Ross for plaintiffs.
Dogan D. Akman for defendant.
SOLICITORS:
Davies, Ward & Beck, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an application by the
defendant for one or more of the following orders:
(1) An order to strike out the whole statement of
claim, as amended on November 17, 1986 and
particularized on March 13, 1987 on the
ground that it discloses no cause of action; or
(2) an order striking out, if I understand it cor
rectly, paragraphs 9 and 11 of the statement
of claim with respect to which the plaintiffs
provided further particulars on March 13,
1987, on the ground that these disclose no
reasonable cause of action; and
(3) an order staying my earlier order of October
31, 1986 requiring the defendant to file a
statement of defence within thirty days of
service on it of the amendments to the state
ment of claim and particulars; or
(4) an order extending the time for the defendant
to file its statement of defence.
Both (3) and (4) contemplate postponement until
the defendant has "exhausted" its appellate reme
dies with respect to my order of October 31, 1986
[[1987] 2 F.C. 450 (T.D.)].
My order of October 31, 1986 dealt with an
application by the defendant by notice of motion
dated July 4, 1986. In my order I dismissed the
first two motions set out in that notice of motion
which sought to have the entire statement of claim
as amended up to that time struck out on the basis
that it disclosed no cause of action or that it was
frivolous and vexatious, or that the plaintiffs were
not entitled to bring the action as constituted.
With respect to the third motion in that notice of
motion, I struck out the second sentence of para
graph 5 of the amended statement of claim and
gave the plaintiffs leave to amend it within thirty
days, if they wished, so as to allege that the Crown
had recognized their bands prior to the making of
Treaties 6, 7 and 8. With respect to the fourth
motion in that notice of motion, I ordered that if
the plaintiffs so amended paragraph 5 they should
give particulars as to the nature, form and approx
imate dates of such acts of recognition; and I also
ordered that if they wished to adduce any evidence
to prove the existence of aboriginal rights as
alleged in paragraphs 9 and 11 of the amended
statement of claim they would have to provide
particulars "as to the rights, customary laws and
institutions of the bands (of which they claim to be
the successors) which are alleged to be included in
such aboriginal rights".
The defendant has since appealed that decision
but has not, apparently, taken the necessary steps
to have the appeal heard. Pending that appeal, the
defendant has filed this application with four new
motions as set out above.
With respect to the first motion to strike the
whole statement of claim, I am satisfied that I
have no jurisdiction to grant such an order unless
the amendments made since my last order have
somehow invalidated the whole statement of claim.
Neither counsel provided me with any authority on
the specific point of the extent to which a court,
having refused to strike out a statement of claim,
can entertain a subsequent motion to strike out the
statement of claim as subsequently amended. It
appears to me on principle that I am functus
officio in this matter unless the amendments, with
or without the particulars, somehow have rendered
the whole statement of claim invalid. That is clear
ly not the case here. In paragraphs (1) and (2) of
my order of October 31, 1986 I dismissed uncondi
tionally the defendant's motions to have the whole
statement of claim struck out. In other words, I
found that as a whole the statement of claim
raised an arguable case and was not a fit object for
an order under Rule 419 [Federal Court Rules,
C.R.C., c. 663]. What I ordered in paragraphs (3)
and (4) of my October 31, 1986 order, with
respect to then motions (3) and (4) of the defend
ant, was the striking out of one sentence in para
graph 5 of the statement of claim and the granting
of leave to amend it further subject to the provi
sion of particulars; I also conditionally ordered the
provision of further particulars with respect to
paragraphs 9 and 11 of the statement of claim if
the plaintiffs intended to call evidence to establish
their aboriginal rights instead of simply relying on
some general proposition of law that such rights
exist. The plaintiffs have taken advantage of the
opportunity I gave them with respect to amending
paragraph 5 and in my view have provided appro
priate particulars in respect of that amendment.
With respect to the condition I imposed on them
concerning paragraphs 9 and 11, in my view they
have not properly provided particulars of facts on
which they intend to rely (that is, facts to demon
strate customs, practices, or other forms of recog
nition of the aboriginal rights they claim). But that
does not in any way invalidate paragraphs 9 and
11 of the statement of claim. In my view those
paragraphs now can be taken to be only statements
of law and not allegations of fact, but that of
course will be a matter for the trial judge to
determine at trial. Failure by the plaintiffs proper
ly to particularize facts, however, in no way affects
the validity of the statement of claim as a whole. It
may be that they will be unable to sustain their
apparent contention that such aboriginal rights
existed as a general principle of law without refer
ence to any customary exercise of those rights, but
that is not a matter which can or should be
decided at this time.
There was therefore nothing in the amendments
to the statement of claim nor in the particulars—
inadequate as they may be in certain respects—
provided since my order of October 31 which in
any way alters my conclusion of that time that the
statement of claim is not a suitable object for an
order to strike out.
The only other changed circumstance suggested
by counsel for the defendant was that the Supreme
Court of Canada in a judgment rendered April 9,
1987 in Reference re Public Service Employee
Relations Act, [1987] 1 S.C.R. 313, had held that
the "freedom of association" protected by para
graph 2(d) of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] protected individual rights of association
and not the rights of the group itself. He therefore
contended that I should reconsider my earlier deci
sion not to strike out the prayer for relief for a
declaration that the plaintiffs' freedom of associa
tion has been infringed by the amendments to the
Indian Act [R.S.C. 1970, c. I-6]. As a matter of
procedure I find this suggestion surprising: I know
of no authority for any court reopening its decision
on the basis that since rendering it a higher court
has issued a judgment inconsistent with the deci
sion of the former. Even if this were procedurally
or jurisdictionally legitimate, it would certainly not
be open to me to conclude on the basis of the
Supreme Court decision that in the particular
circumstances of the plaintiffs there was now no
basis for a claim to infringement of freedom of
association. The issues are very different in respect
of Indian bands and trade unions. It may be that
the individual's freedom to associate with whom he
or she wishes may have more relevance to the
control of band membership than it has to indus
trial action by unions. In my view it is not possible
or appropriate for me to decide this matter on a
motion to strike.
Counsel for the defendant contended several
times that the foregoing matters had to be raised
by such an application and dealt with by me prior
to the appeal being heard, so that the record would
be complete for the Court of Appeal. I have had
some difficulty understanding this point, and can
only take it to refer to the possibility that as a
result of the amendments to the statement of claim
and the provision of certain particulars, all since
my order of October 31, 1986, the appeal from
that order may have become moot and could be
dismissed on that basis as happened, for example,
in R. v. Baird.' I am unable to see how the
amendments and the particulars involved in this
case could have that effect. Paragraphs (1) and (2)
of my order of October 31, 1986 dismissed the
defendant's motions that the entire statement of
claim be struck out. Paragraph (3) of my order
only dealt with striking out of one sentence leaving
the possibility of an amendment, at the option of
the plaintiffs, and paragraph (4) only dealt with
the provision of particulars. In its notice of appeal
dated November 10, 1986 the defendant only
1 [ 1982] 2 F.C. 539 (C.A.).
appeals against my order "dismissing the Appel
lant's application for an Order pursuant to Rule
419 ... that the Amended Statement of Claim
herein be struck out". The defendant does not
appeal paragraphs (3) and (4) of that order and it
is only with respect to the application of those
paragraphs that the amendment and particulars
are relevant. Those matters are not under appeal
and what has been done by way of amendment and
particulars since my order does not, as I have
indicated above, in any way affect my decisions
with respect to refusing to strike out the statement
of claim. I therefore consider that this aspect of
the defendant's application is both futile and
unnecessary.
As noted earlier, the defendant also seeks an
order under either Rule 1909 or Rule 402 to delay
the filing of the statement of defence until thirty
days after the defendant has exhausted its appel
late remedies in respect of my order of October 31,
1986. In that order I had allowed the defendant
until thirty days after the receipt by it of the
amendments and particulars filed by the plaintiffs.
On April 15, 1987 I extended that time, with the
consent of the plaintiffs, until such time as I had
disposed of the present application. The defendant
filed no evidence with respect to the stay now
requested, counsel for the defendant arguing that
the need was apparent from the record. The plain
tiffs filed some evidence to indicate that the
impugned amendments to the Indian Act are being
applied while this case goes on.
It is clear from the authorities that there is no
automatic or presumptive right to a stay of an
interlocutory order (such as my order of October
31, 1986) pending the determination of an appeal
from that order. Applications for stays under sec
tion 50 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10], under Rule 1909, or through
the extension of time for filing a defence under
Rule 402, would appear to me all to involve the
same principle. What that principle should be is
less clear. At times it has been suggested that the
test should be that of balance of convenience: see
Cercast Inc. et al. v. Shellcast Foundries Inc. et
al., (No. 4) 2 approved without specific reference to
this point in [1973] F.C. 640 (C.A.). Elsewhere it
has been said that the appropriate test is the one
normally associated with section 50 of the Federal
Court Act, namely that the onus is on the party
seeking a stay of an order or judgment to show
that the denial of a stay would cause an injustice
to him and the grant of the stay will not cause an
injustice to the other party: see Communications
Workers of Canada v. Bell Canada.' Again, it has
been said elsewhere in this Court that a stay
pending appeal should not be issued unless
"irreparable injury" will otherwise be caused:
Baxter Travenol Laboratories of Canada Ltd. et
al. v. Cutter (Canada), Ltd.' More recently, the
Supreme Court of Canada has said in Manitoba
(Attorney General) v. Metropolitan Stores Ltd.'
that the criteria for a stay of an order pending
appeal where the constitutionality of that order is
in question are the same as for the grant of an
interlocutory injunction sought against enforce
ment of an order or law whose constitutional valid
ity has been challenged. For those purposes, the
Court regarded the balance of convenience as
being the proper test. It emphasized that in consti
tutional cases the balance of convenience should be
measured not just as between the interest of pri
vate parties attacking the validity of a law or order
and the interests of the public officer or institution
under direct attack. Rather, the interests of the
public or portion of the public which would be
furthered by the actions of the public agency or
officer carrying out the impugned law or order
must also be considered.
2 (1973), 10 C.P.R. (2d) 83 (F.C.T.D.).
' [1976] 1 F.C. 282 (T.D.); see also Canadian Broadcasting
Corporation v. L'Association des réalisateurs, [1982] 2 F.C.
337 (T.D.).
° (1981), 54 C.P.R. (2d) 218 (F.C.T.D.), at p. 219.
5 [1987] 1 S.C.R. 110, at pp. 334-363.
For present purposes I think it will be sufficient
to consider the balance of convenience. I do not
consider that the defendant has met the onus on it
to demonstrate a clear balance of convenience in
favour of the stay of this whole action pending the
defendant's appeal of an interlocutory order. The
defendant has shown no special injury that will be
caused to it or to the many beneficiaries of the
impugned amendments to the Indian Act if prepa
rations for trial continue. As far as I can see, the
only disadvantage to be suffered would be the
incurring of some legal costs with respect to filing
a statement of defence, making discovery of docu
ments, and proceeding to examination for discov
ery. At the same time I can take note of the
plaintiffs' evidence that the composition of the
plaintiff bands has been and is being affected by
the amendments to the Indian Act. I think I can
assume that these effects are not trivial and will be
progressively more unsettling as time passes.
I have also considered the fact that, the appeal
in question being from my exercise of discretion in
refusing to strike out the statement of claim, the
probabilities of its success are not very great. 6 I
also have applied the principle that the onus on the
applicant for a stay is greater where the order
sought to be stayed is not one which is the subject
of execution procedures.' The order being
appealed here, being the dismissal of an applica
tion to strike a statement of claim, is not the
subject of execution procedures. I have also con
sidered, in reaching my conclusion, the undertak
ing given by counsel for the plaintiffs to cooperate
with counsel for the defendant in seeking an early
date for the hearing of the appeal.
I will therefore refuse the stay as requested and
require the defendant to file a statement of
' Orient Leasing Company Ltd. v. Ship "Kosei Maru"
(1978), 22 N.R. 182 (F.C.A.), at p. 184.
Baxter Travenol Laboratories of Canada, Ltd. et al. v.
Cutter (Canada), Ltd. (1984), 2 C.P.R. (3d) 142 (F.C.T.D.).
defence within fourteen days of the filing of the
formal order in the present matter.
Because I have concluded that this application
was not warranted, I am ordering costs against the
defendant-applicant regardless of the outcome of
the cause. Counsel for the plaintiffs-respondents
requested at the end of argument that, should I
dismiss the application with costs, she wished to
make further written submissions that such costs
should be awarded on a solicitor-client basis. I
agreed to such a procedure, with of course provi
sion being made for the defendant to respond to
such submissions. I am therefore not entering a
formal order at this time but leave it for counsel
for the plaintiffs-respondents to apply under Rule
324 for entry of the order, submitting therewith
any written arguments she may wish to make
concerning costs. Counsel for the defendant will
have fourteen days after receipt of such written
submissions to respond in writing and counsel for
the plaintiffs-respondents will have seven days
after receipt of any such submissions on behalf of
the defendant-applicant to file a reply thereto.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.