Daniels v. Can., (2002) 220 F.T.R. 41 (TD)

• Court: Federal Court (Canada)
• Case Date: February 13, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 220 F.T.R. 41 (TD)

Daniels v. Can. (2002), 220 F.T.R. 41 (TD)

MLB headnote and full text

Temp. Cite: [2002] F.T.R. TBEd. AP.002

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; 2002 FCT 295)

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

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

March 15, 2002.

Summary:

The individual plaintiffs were non-status Indians and Métis and the other plaintiff, the Congress of Aboriginal Peoples, was a group that represented Métis and non-status Indian peoples throughout Canada. The plaintiffs sought declaratory relief to establish: (1) that Métis and non-status Indians were Indians as the term was used in s. 91(24) of the Constitution Act of 1867; (2) that the Crown owed to Métis and to non-status Indians a fiduciary duty as Aboriginal peoples; and (3) that they had a right to be negotiated with, on a collective basis, in good faith by the Crown. The Crown applied to strike down the statement of claim, alleging that the plaintiffs lacked standing and authority, that there was a lack of material facts or particulars leading to a want of a reasonable cause of action and, finally, that the pleading was vexatious, prejudicial and abusive.

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the Crown's application to strike.

Practice - Topic 219

Persons who can sue and be sued - Individuals and corporations - Status or standing - Validity or interpretation of legislation - The plaintiffs, a non-status Indian and a Métis, and a group that represented Métis and non-status Indian peoples in Canada, sought declarations that Métis and non-status Indians were "Indians" under s. 91(24) of the Constitution Act of 1867, that the Crown owed them a fiduciary duty and that they had a right to be negotiated with, on a collective basis, in good faith by the Crown - The Crown applied to strike out the statement of claim, arguing that the plaintiffs lacked standing - A Prothonotary of the Federal Court of Canada, Trial Division, held that plaintiffs had the requisite standing - See paragraphs 10 to 39.

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing - [See Practice - Topic 219 ].

Practice - Topic 2215

Pleadings - Striking out pleadings - Declaratory actions - The plaintiffs, a non-status Indian and a Métis, and a group that represented Métis and non-status Indian peoples in Canada, sought declarations that Métis and non-status Indians were "Indians" under s. 91(24) of the Constitution Act of 1867, that the Crown owed them a fiduciary duty and that they had a right to be negotiated with, on a collective basis, in good faith by the Crown - The Crown applied to strike out the statement of claim, arguing that the declaratory relief sought was not available because it would constitute a declaration of fact - A Prothonotary of the Federal Court of Canada, Trial Division, refused to strike the pleading - The court stated that it was strongly arguable that the declarations sought were declarations of law, and in any event, declarations of fact were not unknown - See paragraphs 48 to 50.

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - The plaintiffs, a non-status Indian and a Métis, and a group that represented Métis and non-status Indian peoples in Canada, sought declarations that Métis and non-status Indians were "Indians" under s. 91(24) of the Constitution Act of 1867, that the Crown owed them a fiduciary duty and that they had a right to be negotiated with, on a collective basis, in good faith by the Crown - The Crown applied to strike out the statement of claim, arguing that the pleading did not comply with the requirements for proper pleading under rule 174 of the Federal Court Rules and was therefore improper and a nullity - A Prothonotary of the Federal Court of Canada, Trial Division, rejected the Crown's argument, stating that "where there is not compliance with rule 174, a pleading is clearly not a nullity, for the court may always order further and better particulars" - See paragraph 40.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The plaintiffs, a non-status Indian and a Métis, and a group that represented Métis and non-status Indian peoples in Canada, sought declarations that Métis and non-status Indians were "Indians" under s. 91(24) of the Constitution Act of 1867, that the Crown owed them a fiduciary duty and that they had a right to be negotiated with, on a collective basis, in good faith by the Crown - The Crown applied to strike out the statement of claim, claiming that the pleading was vexatious, prejudicial and abusive - A Prothonotary of the Federal Court of Canada, Trial Division, rejected the Crown's argument and refused to strike out the statement of claim - See paragraphs 43 to 47.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Practice - Topic 2231 ].

Cases Noticed:

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General), [1990] 1 S.C.R. 279; 105 N.R. 228; 65 Man.R.(2d) 182; 67 D.L.R.(4th) 159, refd to. [para. 3].

Vulcan Equipment Co. v. Coats Co., [1982] 2 F.C. 77; 39 N.R. 518 (F.C.A.), leave to appeal refused (1982), 63 C.P.R.(2d) 261 (S.C.C.), refd to. [para. 3].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338; 33 D.L.R.(4th) 321, refd to. [para. 3].

Shubenacadie Indian Band v. Canada (Attorney General) et al. (2001), 202 F.T.R. 30 (T.D.), refd to. [para. 9].

Huseyinov et al. v. Minister of Employment and Immigration (1995), 174 N.R. 233 (F.C.A.), refd to. [para. 9].

Dyson v. Attorney General, [1911] 1 K.B. 410 (C.A.), refd to. [para. 10].

Deare v. Attorney General, [1835] 1 Y. & C. Ex. 197; 160 E.R. 80 (Ex. Div.), refd to. [para. 10].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 11].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85; 55 D.L.R.(3d) 632; 32 C.R.N.S. 376, refd to. [para. 11].

Borowski v. Canada (Minister of Justice) and Canada (Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; [1982] 1 W.W.R. 97; 24 C.R.(3d) 352; 24 C.P.C. 62; 64 C.C.C.(2d) 97; 130 D.L.R.(3d) 588, refd to. [para. 11].

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General) (1987), 48 Man.R.(2d) 4 (Q.B.), refd to. [para. 13].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745; 50 C.C.C.(2d) 495, refd to. [para. 15].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481; 13 C.R.R. 287; 12 Admin. L.R. 16, refd to. [para. 16].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289; 109 C.C.C.(3d) 1; 50 C.R.(4th) 1, refd to. [para. 21].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193; [1998] 1 C.N.L.R. 14, refd to. [para. 24].

Boyce v. Paddington Borough Council, [1903] 1 Ch. 109, refd to. [para. 28].

Native Women's Association of Canada et al. v. Canada et al., [1992] 3 F.C. 192; 146 N.R. 40 (F.C.A.), refd to. [para. 30].

Native Women's Association of Canada et al. v. Canada et al., [1992] 2 F.C. 462; 53 F.T.R. 194 (T.D.), refd to. [para. 30].

Eskimos, Re, [1939] S.C.R. 104, refd to. [para. 32].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263; 70 D.L.R.(4th) 385, refd to. [para. 33].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 88 D.L.R.(4th) 193, refd to. [para. 36].

Junior Books Ltd. v. Veitchi Co., [1983] 1 A.C. 520 (H.L.), refd to. [para. 37].

Mountain Prison (Inmates) v. Canada (1998), 146 F.T.R. 265 (T.D.), refd to. [para. 43].

Larden v. Canada et al. (1998), 145 F.T.R. 140 (T.D.), refd to. [para. 44].

Caterpillar Tractor Co. v. Babcock Allatt Ltd., [1983] 1 F.C. 487 (T.D.), refd to. [para. 45].

Ceminchuk v. IBM Canada Ltd. (1996), 101 F.T.R. 38 (T.D.), refd to. [para. 46].

Administration de Pilotage des Laurentides v. Pilotes du Saint-Laurent Central Inc. (1994), 74 F.T.R. 185 (T.D.), refd to. [para. 48].

Harris et al. v. Minister of National Revenue (2000), 256 N.R. 221; 187 D.L.R.(4th) 419 (F.C.A.), refd to. [para. 49].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man. R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1; 125 D.L.R.(3d) 1, refd to. [para. 49].

Ruby Trading S.A. v. Parsons et al. (2001), 194 F.T.R. 103 (T.D. Protho.), refd to. [para. 53].

Horii v. Canada (Attorney General) et al. (2001), 195 F.T.R. 163 (T.D. Protho.), refd to. [para. 53].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (1999 Looseleaf Ed.), generally [para. 32].

Pound, Rosco, Introduction to the Philosphy of Law (1922), generally [para. 9].

Counsel:

Dale Gibson, for individual plaintiffs;

Patrick G. Hodgkinson, Shaun Mellen and Suzanne M. Dawson, for the defendants;

Andrew K. Lokan, for the Congress of Aboriginal Peoples;

Joseph Magnet, of counsel, for the Congress of Aboriginal Peoples.

Solicitors of Record:

Dale Gibson Associates, Edmonton, Alberta, for individual plaintiffs;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendants;

Paliare Roland Rosenberg Rothstein LLP, Toronto, Ontario, for the Congress of Aboriginal Peoples;

Joseph Magnet, Faculty of Law, University of Ottawa, Ottawa, Ontario, of counsel, for the Congress of Aboriginal Peoples.

This matter was heard in Edmonton, Alberta, on February 13, 2002, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on March 15, 2002, in Vancouver, British Columbia.