Date: 20030626
Docket: T-224-99
BETWEEN:
JAMES HOFER
Plaintiff
- and -
THE QUEEN IN RIGHT OF CANADA and
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT (as represented by the Department of
Indian Affairs and hereinafter referred to as DIAND)
- and -
THE BLOOD TRIBE CHIEF AND COUNCIL representing
all members of the Blood Band of Indians (as represented
by the Blood Tribe Department of Lands
hereinafter referred to as BTLD)
- and -
LEVI BLACKWATER
Defendants
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] By an order rendered herein on January 8, 2002 the Court allowed in part a motion for summary judgment brought by the defendants, struck out a part of the plaintiff's claim, and gave plaintiff leave to amend. The operative part of that order reads in relevant part as follows:
The motions for summary judgment are allowed in part ; the plaintiff's claim is limited to alleged breaches of permits 240530 and 256502. The plaintiff has leave to amend his Statement of Claim in consequence....
[2] That order was appealed to the Court of Appeal which confirmed it by an order rendered on February 2 of this year. In purported compliance with that order, plaintiff has amended his statement of claim and each of the defendants now moves to strike out certain paragraphs thereof on the ground that the amendments do not comply with the order. Both the Crown and the Band ask that paragraphs 10(a) and 10(d) be struck. The whole of paragraph 10 reads as follows:
10. The Plaintiff was the permitee pursuant to agricultural permits validly issued by the Defendants pursuant to Section 28 of the Indian Act as follows:
a. 15 permits from April 1, 1995 to March 31, 1998;
b. One permit from April 1, 1996 to March 31, 1999, hereinafter referred to as the "1996 Permit");
c. One permit from April 1, 1997 to March 31, 2000, hereinafter referred to as the "1997 Permit");
d. One permit from April 1, 1994 to March 31, 1997.
all of which are collectively referred to herein as the "Permits").
[3] Although the amended statement of claim does not specifically so state, it appears to be common ground that the permits referred to in paragraphs 10(b) and 10(c) are permits 240530 and 256502 being those mentioned in the order of January 8, 2002.
[4] Manifestly, paragraphs 10(a) and 10(d) go well beyond the terms of the order authorizing the amendment and are, in consequence, made without leave. The alleged permits and claims arising thereunder are ones which the Court has specifically struck out. They must be struck. Plaintiff's argument that the claim is for damage allegedly caused during the valid term of those permits, a matter that the Court did not deal with on the earlier motion for summary judgment, and that the order of January 8, 2002, goes further than the Reasons issued in support thereof cannot be accepted. That order now constitutes res judicata, has been confirmed by the Court of Appeal, and the time for seeking its correction pursuant to Rule 397 is now long past. The order is perfectly clear that only claims arising under permits 240530 and 256502 may be asserted by the plaintiff. Paragraphs 10(a) and 10(d) will be struck.
[5] In addition, the Band also requests that paragraphs 14, 16(b) and 20(e) be struck, on the ground that they are new causes of action.
These paragraphs read as follows:
14. The Defendants were advised by the Plaintiff that a person or persons had been observed by the Plaintiff to operate oil exploration and recovery equipment on or through seeded crops of the Plaintiff causing damage to or the destruction of those crops and the Defendants failed to act to enforce the terms or conditions of the permits of the Plaintiff, allowing the plaintiff quiet enjoyment of the lands for agricultural purposes and the Defendants failed to enforce the Agreements with those parties prohibiting them from interfering with the agricultural activities of the Plaintiff.
...
16. As a result of the actions of the Defendants in expressly permitting or allowing, condoning, acquiescing or failing to comply with the express terms and conditions of the Permits, the Plaintiff suffered losses and damages including:
...
b. Losses due to being required to repair and maintain existing Reserve roads and trails which the Plaintiff was specifically granted use of by the Permits, after the Defendants failed to so repair and maintain following being advised by the Plaintiff that the roads and trails had become unusable by the Plaintiff due to vehicle traffic from oil and gas exploration and recovery activities of other persons, permitted or allowed by the Defendants, on the permitted lands.
...
20. The Plaintiff claims that all the Defendants in their respective capacities failed to fulfill their terms of the agreements and as a result the following losses occurred:
...
e. Losses due to oil companies damaging roads and trails.
[6] The Band asserts that these are new claims. I disagree. In my view, they are no more than a particularization of the claims asserted from the beginning for losses due to oil companies conducting exploration on the land.
[7] Finally, the Band asks that paragraphs 12, 13, 15 and 16 be amended such that the word Permits be limited to the 1996 and 1997 permits. As I read paragraph 10 of the Statement of Claim (after deleting paragraphs 10(a) and 10(d), it already so limits by definition the scope of the claim and the Band's request is unnecessary.
[8] Both motions will be allowed with costs and paragraphs 10(a) and 10(d) of the amended statement of claim will be struck out.
ORDER
The motions are allowed with costs and paragraphs 10(a) and 10(d) of the amended statement of claim are struck out.
Judge
Ottawa, Ontario
June 26, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-224-99
STYLE OF CAUSE: James Hoffer v. The Queen et al
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: June 26, 2003
WRITTEN SUBMISSIONS BY:
Thomas MacLachlan FOR PLAINTIFF
Mr. Kenneth R. McLeod FOR DEFENDANTS The Blood Tribe Chief and Council and Levi Blackwater
Shane P. Martin FOR DEFENDANTS The Queen in right of Canada and the Minister of Indian Affairs and Northern Development
SOLICITORS ON THE RECORD:
MacLachlan McNab Hembroff
Lethbridge, Alberta FOR PLAINTIFF
Walsh Wilkins Creighton
Calgary, Alberta FOR DEFENDANTS The Blood Tribe Chief and Council and Levi Blackwater
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT The Queen in right of Canada and the Minister of Indian Affairs and Northern Development