Date: 20010918
Docket: T-343-99
Neutral citation: 2001 FCT 1031
Toronto, Ontario, Tuesday, the 18th day of September, 2001.
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
CHIEF CHRIS SHADE, LES HEALY, LEVI BLACK WATER, JIM RUSSELL, KIRBY MANY FINGERS, ROD FIRST RIDER, ALEX GOODSTRIKER,
TOM LITTLE BEAR, MARTIN HEAVY HEAD, LEWIS LITTLE BEAR, NARCISSE BLOOD, DOROTHY FIRST RIDER and RANDY BOTTLE,
Chief and Councillors of KAINAIWA/BLOOD TRIBE representing and on behalf of all KAINAIWA/BLOOD INDIAN WAR VETERANS,
THEIR DEPENDENTS AND DESCENDANTS
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
[1] This is a motion in writing, pursuant to Rule 369 of the Federal Court Rules, 1998,by the Plaintiffs for the following relief:
(a) An Order pursuant to Rule 114 appointing Stephen Mistaken Chief to represent the Blood Tribe Veterans of World War I, World War II, and the Korean War, and their dependants and descendants;
(b) An Order adding Stephen Mistaken Chief as a Party to the proceedings;
(c) An Order granting leave to the Plaintiffs to file an Amended Amended Statement of Claim to reflect the addition of Stephen Mistaken Chief as a Party; and
(d) An Order that Court Nos. T-343-99 and T-344-99 be consolidated.
[2] The Defendant consents to all the relief requested by the Plaintiffs, with the exception of item (a) above. Consequently, the only issue to be determined is whether Stephen Mistaken Chief should be appointed as a representative of the War Veterans of the Blood Tribe and their dependants and descendants.
Background
[3] The present action was instituted in February 26, 1999 by the Chief and Councillors of Blood Band on behalf of Blood Band war veterans, some living and others deceased, and their dependants and descendants. An Amended Statement of Claim was filed on October 11, 2000 . The rather lengthy pleading alleges in summary that the Plaintiffs have been wrongfully deprived of veterans benefits to which they were entitled as a result of their service in either World War I, World War II or the Korean War, by the application of racially discriminatory laws, policies and practices.
Evidence filed in support of the motion
[4] The Plaintiffs filed one affidavit in support of their motion, that of Stephen Mistaken Chief sworn July 31, 2001. The Defendant chose not to adduce any evidence and no cross-examination was undertaken of the Plaintiffs' affiant. In light of the brevity of the affidavit filed, it is reproduced in its entirety below.
I, STEPHEN MISTAKEN CHIEF, of the Blood Tribe, Standoff, Alberta, World War II Veteran, MAKE OATH AND SAY THAT:
1. I am a Veteran of World War II and an Indian Veteran of the Blood Tribe and as such I have personal knowledge of the facts herein deposed to except where based to be on information and belief and where so stated I verily believe the same to be true.
2. I am, and have been, aware of the Statement of Claim, Federal Court Action T-343-99, that was filed on my behalf and on behalf of all the other Blood Tribe War Veterans, their dependants and descendants, by the Chief and Councillors of the Blood Tribe.
3. I am personally aware that some of the Councillors named as Plaintiffs in the Statement of Claim are direct descendants of Blood Tribe War Veterans and therefore capable of representing our interests.
4. At a recent meeting of the Blood Tribe War Veterans and their dependants and descendants it was decided that I should also be named as a person representing this group.
5. We were hoping that the National Round Table on First Nations Issues would bring a speedy resolution to our claims, however that has not been the case.
6. Since the time of the filing of the Statement of Claim we have suffered the loss of another of our World War II Veterans and we cannot afford to continue to wait for the Defendant to come forward voluntarily to right the wrongs done to us.
7. I make this affidavit in support of the Motion to appoint me as a representative and party to the action and for leave to file an Amended Amended Statement of Claim to reflect this. Attached as Exhibit "A" to this my affidavit is a copy of the proposed Amended Amended Statement of Claim.
Submission of the parties
[5] The written representations initially filed by the Plaintiffs to support their request for a representation order pursuant to Rule 114 are succinct, to say the least. Counsel for the Plaintiffs submits that Stephen Mistaken Chief, by virtue of his status as a Blood Tribe Veteran of World War II and because he is "clearly a member of the class", should be appointed to represent the class which chose him for that purpose.
[6] The Defendant responds that it would not be appropriate to grant the relief requested on numerous grounds. First, the capacity of the Plaintiffs (the Blood Band and its Chief and Council) to sue on behalf of the Indian veterans and their dependents and descendants has been denied in the Statement of Defence. The Defendant maintains that the action should have been brought by the aggrieved parties personally.
[7] Second, there is no evidence that two or more persons have the requisite same interest in the proceeding, one of four conditions which must be satisfied before a representative proceeding can proceed, according to a recent decision of the Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton, [2001] S.C.C. 4. The Defendant submits that the claims of each Indian veteran, dependent or descendant will likely be based on facts and circumstances unique to each claimant. Counsel indicates that individual discoveries may be required to assess the Defendant's potential liability and the value of the claims. Moreover, she writes that different defences, such as limitations defences, may be available to the Defendant against different Plaintiffs.
[8] Third, the legislation under which the individual Indian veterans received benefits was amended at various times over the years, including between each war referred to in the claim. It follows, the Defendant submits, that benefits provided to Indian veterans would be different depending upon the time of discharge from service of the individual veteran.
[9] The Plaintiffs reply that the alleged breaches of fiduciary duty to the Indian veterans and their dependents and descendants are all based on the same type of circumstances. They submit that their claims are essentially the same, requiring resolution of the same facts. Although they acknowledge that damages of each class member may vary, they say the question of discovery of other class members is premature and may be addressed, as required, by the Court at a later date.
Analysis
[10] The Federal Court Rules, 1998 presently address class actions (also referred to as representative proceedings) in Rule 114. Rule 114(1) sets out the basic rule that a proceeding may be brought by or against two or more persons having the same interest in the proceeding by naming any one or more of the persons as representing them all.
[11] Apart from earlier restrictive interpretations, Rule 114 suffers from a number of deficiencies, as identified by the Federal Court Rules Committee in its discussion paper entitled Class Proceedings in the Federal Court of Canada dated June 9, 2000 at page 11 and 12:
· there is no procedure for determining whether a class action has been properly brought;
· there is no procedure for giving notice to members of the class;
· there is no way that class members can elect not to be part of the action;
· there are no provisions for discovery or other pre-hearing procedures to address the procedural rights and responsibilities of members of the class;
· there is no special provision for costs, including with regard to the rights and responsibilities of members of the class; and,
· there is no provision for determining issues relating to members of the class, should the class be successful on the common questions (e.g., the liability of the defendant)
[12] Yet such gaps in the Rules should not prevent a party from obtaining relief. The Supreme Court of Canada recently ruled in Western Canadian Shopping Centres Inc. v. Dutton, supra, that class actions can proceed in Alberta under its existing Rules of Court, even in the absence of class proceedings legislation. It should be noted that Rule 42 of the Alberta Rules of Court, which governs class action practice in the province, is strikingly similar to Rule 114 of the Federal Court Rules, 1998.
[13] Chief Justice McLachlin, writing for the Court, concluded that in the absence of detailed class action practice, lower courts are required to fill the procedural vacuum. At paragraph 35 of the decision, she wrote:
Absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them...However desirable legislation on class action may be, if such legislation has not been enacted, the courts must determine the availability of the class action and the mechanics of class action practice.
[14] The Supreme Court of Canada then proceeded to set out general principles governing class actions and listed four conditions which must be met before allowing a matter to proceed as a class (or representative) action. First, the class must be capable of clear definition. Second, there must be issues of fact or law common to all class members. Third, with regard to the common issues, success for one class member must mean success for all. Fourth, the class representative must adequately represent the class.
[15] The issues on the return of a representation motion must accordingly relate to the above conditions and the onus is on the proposed representative to establish that all four conditions have been met before a representation order will issue.
[16] In my view, the Plaintiffs have simply failed to address any of the four conditions in their motion materials. To begin with, no attempt has been made to identify with any degree of precision the class to be represented, or its size. Although a list of veterans is attached as a schedule to the proposed Amended Statement of Claim, this does not constitute evidence on a motion, which must be adduced by affidavit. It also appears that even if a class can be identified, it may include subclasses whose members have claims that raise common issues not shared by all class members.
[17] Further, there is no reference, either in the affidavit evidence or in the written representations, to the claims of the class members which purportedly give rise to common issues, or for that matter, nor any definition of the common issues being advanced by the Plaintiffs.
[18] As to the suitability of the representative, there is no evidence establishing that Stephen Mistaken Chief would fairly and adequately represent the interests of the class. No plan of the proceeding has been produced that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding. Nor has the proposed representative satisfied the Court that he does not have an interest in conflict with the interests of other class members.
[19] The Plaintiffs' motion raises more questions than it answers. Are the Plaintiffs seeking to add Stephen Mistaken Chief as a representative, or is it intended that he replace the Chief and Councillors as representative ? Will he be liable for the costs of litigation and, if so, can he afford those costs ? Can a representative appointed under Rule 114 represent deceased individuals ? Is a representative proceeding the most effective mechanism for the resolution of this action ?
[20] There may be some merit to granting a representation order in this action, however such a determination cannot be made based on the material filed. In my view, the only proper
disposition is to dismiss the motion with leave being granted to the Plaintiffs to re-apply with further and better evidence addressing the four conditions set out by the Supreme Court of
Canada in Western Canadian Shopping Centres Inc. v. Dutton, supra and other issues identified in these reasons.
[21] In the event the Plaintiffs decide to re-apply, they should revisit whether a motion in writing is an appropriate procedure for a proper canvassing of such complex issues. Serious consideration should therefore be given to requesting an oral hearing.
[22] Finally, in the circumstances, the balance of the relief consented to by the parties is also dismissed, with leave to re-apply.
ORDER
1. The Plaintiffs' motion is dismissed, with leave to re-apply.
2. Costs of this motion shall be to the Defendant in the cause.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
September 18, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-343-99
STYLE OF CAUSE: CHIEF CHRIS SHADE, LES HEALY, LEVI BLACK WATER, JIM RUSSELL, KIRBY MANY FINGERS, ROD FIRST RIDER, ALEX GOODSTRIKER, TOM LITTLE BEAR, MARTIN HEAVY HEAD, LEWIS LITTLE BEAR, NARCISSE BLOOD, DOROTHY FIRST RIDER and RANDY BOTTLE, Chief and Councillors of KAINAIWA/BLOOD TRIBE representing and on behalf of all KAINAIWA/BLOOD INDIAN WAR VETERANS, THEIR DEPENDENTS AND DESCENDANTS
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE P.
DATED: TUESDAY, SEPTEMBER 18, 2001
WRITTEN SUBMISSIONS BY: Ms. Joanne F. Crook
For the Plaintiffs
Ms. Kathleen Kohlman
For the Defendant
SOLICITORS OF RECORD: WALSH WILKINS
Barristers and Solicitors
2800, 801 - 6 Avenue S.W.
Calgary, Alberta
T2P 4A3
For the Plaintiffs
Morris Rosenberg
Deputy Attorney General of Canada
Edmonton, Alberta
For the Defendant
FEDERAL COURT OF CANADA
Date: 20010918
Docket: T-343-99
BETWEEN:
CHIEF CHRIS SHADE, LES HEALY, LEVI BLACK WATER, JIM RUSSELL, KIRBY MANY FINGERS, ROD FIRST RIDER, ALEX GOODSTRIKER,
TOM LITTLE BEAR, MARTIN HEAVY HEAD, LEWIS LITTLE BEAR, NARCISSE BLOOD, DOROTHY FIRST RIDER and RANDY BOTTLE,
Chief and Councillors of KAINAIWA/BLOOD TRIBE representing and on behalf of all KAINAIWA/BLOOD INDIAN WAR VETERANS, THEIR DEPENDENTS AND DESCENDANTS
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER
AND ORDER