Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., (2005) 272 F.T.R. 288 (FC)

• Court: Federal Court (Canada)
• Case Date: April 07, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 272 F.T.R. 288 (FC);2005 FC 699

Daniels v. Can. (2005), 272 F.T.R. 288 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. MY.058

Harry Daniels, Leah Gardner and The Congress of Aboriginal Peoples (plaintiffs) v. Her Majesty the Queen, as represented by the Minister of Indian Affairs and Northern Development and the Attorney General of Canada (defendants)

(T-2172-99; 2005 FC 699)

Indexed As: Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Federal Court

Hargrave, Prothonotary

May 13, 2005.

Summary:

The plaintiff commenced a representative action against the federal Crown seeking declaratory relief on behalf of the Métis and non-status Indians in Canada. The plaintiffs moved for an order adding additional representative plaintiffs. The proposed new plaintiffs were Gabriel Daniels, son of the deceased plaintiff Harry Daniels; Terry Joudrey, a non-status Mi'kmaq Indian; and Cheryl Storkson, who expected to obtain letters of administration for the estate of Harry Daniels.

A Prothonotary of the Federal Court allowed the motion in part. The court added Gabriel Daniels and Terry Joudrey as plaintiffs. The court declined to add Cheryl Storkson as a plaintiff. The dismissal was without prejudice to Cheryl Storkson to bring a further application in her own right or when she had the letters of administration of the estate.

Executors and Administrators - Topic 5124

Actions by and against representatives - Actions by administrators - Requirement of prior issue of grant of probate - [See Practice - Topic 652 ].

Practice - Topic 125

Persons who can sue and be sued - Estates - Proper representative - [See Practice - Topic 652 ].

Practice - Topic 652

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Circumstances when denied - The plaintiff commenced a representative action against the federal Crown seeking declaratory relief on behalf of the Métis and non-status Indians in Canada - The plaintiffs moved for an order adding additional representative plaintiffs - A proposed new plaintiff was Storkson, who expected to obtain letters of administration for the estate of Harry Daniels which would then bring her within Federal Court Rule 117 and enable her to file a notice and affidavit as to the devolution of the action, at least from a procedural point of view, which would allow the estate to remain a plaintiff - A Prothonotary of the Federal Court declined to add Storkson as a plaintiff - Storkson was not yet at law a representative of the estate - Accordingly, adding Storkson, or the estate as informally represented by Storkson, would be premature given the absence of letters of administration - See paragraphs 8 to 15.

Cases Noticed:

Shubenacadie Indian Band v. Canada (Attorney General) et al. (2001), 202 F.T.R. 30 (T.D.), affd. (2002), 291 N.R. 393 (F.C.A.), consd. [para. 6].

Amon v. Raphael Tuck & Sons, [1956] 1 Q.B. 357, refd to. [para. 7].

Tacan et al. v. Canada (2003), 237 F.T.R. 304 (F.C.), refd to. [para. 9].

Métis National Council of Women et al. v. Canada (Attorney General) (2005), 265 F.T.R. 162; 2005 FC 230, consd. [para. 10].

Canada (Attorney General) v. Vincent Estate (2004), 257 F.T.R. 107 (F.C.), consd. [para. 10].

Canard Estate et al. v. Canada (Attorney General) and Rees, [1976] 1 S.C.R. 170; 4 N.R. 91, refd to. [para. 14].

Stinson Estate v. British Columbia et al. (1999), 133 B.C.A.C. 15; 217 W.A.C. 15; 70 B.C.L.R.(3d) 233 (C.A.), refd to. [para. 14].

Counsel:

Andrew K. Lokan, for the plaintiff, Harry Daniels;

Joseph E. Magnet, for the plaintiff, Congress of Aboriginal Peoples;

Cynthia J. Dickins and Karen J. Metcalfe, for the defendant.

Solicitors of Record:

Paliare Roland Rosenberg Rothstein LLP, Toronto, Ontario, for the plaintiff, Harry Daniels;

Faculty of Law (Common Law Section), University of Ottawa, Ottawa, Ontario, for the plaintiff, Congress of Aboriginal Peoples;

John Sims, Deputy Attorney General of Canada, Edmonton, Alberta, for the defendant.

This application was heard on April 7, 2005, at Vancouver, British Columbia, before Hargrave, Prothonotary, of the Federal Court, who delivered the following decision on May 13, 2005.