Date: 20000714
Docket: T-849-00
Between:
CATHY KIRBY AND SAMUEL KIRBY
Plaintiffs
AND
HER MAJESTY THE QUEEN
and
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
and
THE DEPARTMENT OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Defendants
REASONS FOR ORDER
MR. RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the defendants under Rules 221(1)(a), (b), (c) and (f) of the Federal Court Rules, 1998 (the Rules) directed in opposition to the statement of claim filed by the plaintiffs.
[2] At the hearing, the defendants dropped Rule 221(1)(a). On consideration, it seems to me as well that only Rule 221(1)(f) is applicable in this case.
[3] The defendants' line of attack is essentially that the principle of res judicata means that the plaintiffs' action in this Court must be regarded as an abuse of process since the action is simply a second facet of a cause of action brought between the same parties in the same capacities in the Superior Court. The present action in this Court is therefore litigation by instalments, which the courts strongly condemn.
[4] In my opinion, the defendants are correct in taking this view of the situation.
[5] Essentially, the facts at the foundation of this litigation are as follows.
[6] As a result of an accident, Mr. Norman Kirby, an aboriginal person, was classified in April 1986 as mentally incompetent, falling under the jurisdiction of the Minister of Indian Affairs and Northern Development (the Minister) within the meaning of section 51 of the Indian Act, R.S.C. 1985, c. I-5, as amended. This section reads in its relevant part as follows:
| 51. (1) Subject to this section, all jurisdiction and authority in relation to the property of mentally incompetent Indians is vested exclusively in the Minister. (2) Without restricting the generality of subsection (1), the Minister may (a) appoint persons to administer the estates of mentally incompetent Indians; (b) order that any property of a mentally incompetent Indian shall be sold, leased, alienated, mortgaged, disposed of or otherwise dealt with for the purpose of (i) paying his debts or engagements, (ii) discharging encumbrances on his property, (iii) paying debts or expenses incurred for his maintenance or otherwise for his benefit, or (iv) paying or providing for the expenses of future maintenance; and (c) make such orders and give such directions as he considers necessary to secure the satisfactory management of the estates of mentally incompetent Indians. |
51. (1) Sous réserve des autres dispositions du présent article, la compétence à l'égard des biens des Indiens mentalement incapables est attribuée exclusivement au ministre. (2) Sans que soit limitée la portée générale du paragraphe (1), le ministre peut: a) nommer des personnes pour administrer les biens des Indiens mentalement incapables; b) ordonner que tout bien d'un Indien mentalement incapable soit vendu, loué, aliéné, hypothéqué, qu'il en soit disposé ou que d'autres mesures soient prises à son égard aux fins, selon le cas: (i) d'acquitter ses dettes ou engagements, (ii) de dégrever ses biens, (iii) d'acquitter les dettes ou les dépenses subies pour son entretien ou autrement à son avantage, (iv) d'acquitter les frais de l'entretien ultérieur ou d'y pourvoir; c) prendre les arrêtés et donner les instructions qu'il juge nécessaires pour assurer l'administration satisfaisante des biens des Indiens mentalement incapables. |
|
[7] The plaintiffs, in their capacity as administrators of the property of Norman Kirby, a status they obtained in May 1997, commenced an action in the Superior Court in November 1998 against, inter alia, the defendants.
[8] In this Superior Court action, the plaintiffs strove mainly to accuse the defendants of negligence in the administration of the property of Norman Kirby and, more particularly, of having been negligent and delayed in appointing the plaintiffs as administrators of the property of Norman Kirby.
[9] However, at the time this action was undertaken in the Superior Court, the record disclosed beyond the shadow of a doubt that there was a second aspect to the plaintiffs' cause of action against the defendants based on the Minister's jurisdiction over the person of Norman Kirby. This second aspect was that the defendants had been negligent in not themselves taking steps to recover some money that belonged to Norman Kirby and that had allegedly been squandered, apparently with the collusion of Norman Kirby's mother and brother, prior to the plaintiffs' appointment as administrators.
[10] In paragraph 14 of the statement of claim in this Court, the plaintiffs argue that this aspect and the facts surrounding it are not identical to those raised in the Superior Court and that is why, we are given to understand, the plaintiffs thought they were justified in commencing their action in this Court, in which they would develop this aspect in a different light.
[11] The plaintiffs have submitted no evidence as to the reasons why they did not include this aspect -- as they now express it in this Court -- in their action in the Superior Court. As stated earlier, it is clear in my mind that the plaintiffs disposed of all the information they needed to proceed completely in the Superior Court.
[12] It is this situation that the defendants denounce as being litigation by instalments and accordingly an abuse of process.
[13] It is clear, in my opinion, that when the plaintiffs brought their action in the Superior Court, they were perfectly able to include in their action, and ought to have included, all of the factors or aspects they could allege against the defendants in regard to the various responsibilities falling to the Minister under section 51 of the Indian Act. I can only presume that they deliberately chose not to fully develop this second aspect in the Superior Court and now that there is res judicata in regard to that action between the parties (the action was dismissed pursuant to a motion by the defendants under article 75.1 of the Code of Civil Procedure), the plaintiffs are unable to proceed in the Federal Court.
[14] In fact, the Superior Court judgment dismissing the action is not really relevant. Having elected to proceed first in the Superior Court, the plaintiffs were obliged from that point on to include in it all of their causes of action under section 51. Even if the Superior Court had dismissed the defendants' motion to dismiss, I do not think the plaintiffs could at some later time bring their present action in this Court since the principles of lis pendens and abuse of process would have been similarly applicable.
[15] In Apotex Inc. et al. v. Merck & Co. Inc., an unreported decision of April 28, 1999, Court docket number T-2869-96, the Court, at paragraphs 23, 24 and 25, made the following remarks which are in my opinion applicable to the case at bar:
[23] In Singh v. Canada (1996), 123 F.T.R. 241, this Court made the following comments:
There is a plethora of jurisprudence which supports the defendant's complaint herein to the effect that: if a party to litigation could have raised an issue before a competent tribunal, that party fails to raise the issue at the peril of being estopped on the basis of res judicata when purporting to raise that same issue in subsequent litigation in which the same adversary is engaged. The above mentioned party's practice was roundly condemned by the Alberta Court of Appeal in Re Abacus Cities Ltd., [1988] 1 W.W.R. 78 at p. 85 when it held that "* * * no litigant can be permitted to litigate issues by instalment."
That Court of Appeal made reference to the judgment of the Supreme Court of Canada in Maynard v. Maynard, [1951] S.C.R. 346 at pp. 358/9, [1951] 1 D.L.R. 241, where the Supreme Court adopted a passage from Green v. Weatherill, [1929] 2 Ch. 213 at pp. 221/22, as follows:
* * * the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.
...
[24] In Borley v. Canada (Fraser River Harbour Commission) (1995), 92 F.T.R. 275, the Court struck out a statement of claim on the basis that the issues had already been dealt with, and to the extent that they were not brought forward, they ought to have been.
[25] From this, it is apparent that the application of the doctrine of res judicata does not depend on whether the parties actually raised the issue or issues in previous proceedings, but rather whether the parties could have done so. Should a party choose to drop certain issues for reasons of tactics, strategies, or otherwise, the party seals its fate with regard to those decisions. Parties must bring forward their whole case, and will not be permitted to litigate by instalments in piecemeal fashion. It is a principle of law and also of policy that there be finality to court decisions: see also Grandview v. Doering, [1976] 2 S.C.R. 621 at 634 and 636. Parties to litigation must be able to rely on the finality of final judgments so that they can adjust their affairs, if necessary, and conduct themselves accordingly.
[16] For these reasons, this motion by the defendants will be allowed. However, it seems to me it is sufficient in the circumstances that it be with the regular costs provided in Rule 407.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
July 14, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20000714
Docket: T-849-00
Between:
CATHY KIRBY AND SAMUEL KIRBY
Plaintiffs
AND
HER MAJESTY THE QUEEN
and
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
and
THE DEPARTMENT OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-849-00
STYLE: CATHY KIRBY AND SAMUEL KIRBY
Plaintiffs
AND
HER MAJESTY THE QUEEN
and
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
and
THE DEPARTMENT OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 10, 2000
REASONS FOR ORDER OF MR. RICHARD MORNEAU, PROTHONOTARY
DATED: July 14, 2000
APPEARANCES:
Benito Aloé for the plaintiffs
Chantal Sauriol for the defendants
Virginie Cantave
SOLICITORS OF RECORD:
Rouleau Doss d'Amours for the plaintiffs
Montréal, Quebec
Morris Rosenberg for the defendants
Deputy Attorney General of Canada