Huzar et al. v. Canada et al., (1997) 139 F.T.R. 81 (TD)

• Court: Federal Court (Canada)
• Case Date: October 22, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 139 F.T.R. 81 (TD)

Huzar v. Can. (1997), 139 F.T.R. 81 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. DE.047

Aline Elizabeth Huzar, June Martha Kolosky, William Bartholomew McGillivray, Margaret Hazel Anne Blair, Clara Hebert, John Edward Joseph McGillivray, Maurice Stoney, Allan Austin McDonald, Lorna Jean Elizabeth McRee, Frances Mary Tees, Barbara Violet Miller (nee McDonald) (plaintiffs) v. Her Majesty the Queen in Right of Canada, Department of Indian and Northern Affairs Canada, and Walter Patrick Twinn, as Chief of the Sawridge Indian Band and the Sawridge Indian Band (defendants)

(T-1529-95)

Indexed As: Huzar et al. v. Canada et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

November 14, 1997.

Summary:

The plaintiffs were Treaty Indians whose forbearers were said to have been members of the Sawridge Indian Band. The plaintiffs sought, inter alia, a declaration of entitlement to membership in the Sawridge Band. They pleaded that the effect of 1985 amendments to the Indian Act was that persons whose names were omitted or deleted from band membership, as well as a number of additional persons, were entitled to have their names entered on the relevant band list. The defendants, the Sawridge Band and its chief, applied to strike out the statement of claim as disclosing no reasonable cause of action or as being scandalous, frivolous or vexatious. Alternatively, they sought to strike out portions of the statement of claim. The defendants also sought to strike out a portion of the plaintiffs' reply to a demand for particulars, further and better particulars and an extension of time within which to file a defence.

A Prothonotary of the Federal Court of Canada, Trial Division, denied the motion with the exception of striking out one paragraph of the statement of claim with leave to amend. The Prothonotary also granted a 30 day extension within which to file a defence following service of an amended statement of claim.

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership - The plaintiffs were Treaty Indians whose forbearers were said to have been members of the Sawridge Indian Band - The plaintiffs sought, inter alia, a declaration of entitlement to membership in the Sawridge Band - They pleaded that the effect of 1985 amendments to the Indian Act was that persons whose names were omitted or deleted from band membership, as well as a number of additional persons, were entitled to have their names entered on the relevant band list - The defendants, the Sawridge Band and its chief, applied to strike out the statement of claim as disclosing no reasonable cause of action or as being scandalous, frivolous or vexatious - A Prothonotary of the Federal Court of Canada, Trial Division, denied the motion - See paragraphs 1 to 20.

Practice - Topic 1915

Pleadings - Particulars - Application for - Considerations - [See Practice - Topic 1935 ].

Practice - Topic 1935

Pleadings - Particulars - Bars to granting of order - Where particulars provided are adequate - A Prothonotary of the Federal Court of Canada, Trial Division, denied the defendants' motion for further and better particulars - The affidavit material failed to disclose the need for further particulars and also whether, by reason of lack of further particulars, the defendants were unable to plead to the statement of claim - Those were essential requirements where it appeared that more than ample particulars already existed - On the basis of the particulars already provided, the defendants were taken to know the case against them and to be in a position to provide an intelligent defence - Requiring further particulars would be an abuse of process - See paragraphs 31 to 35.

Practice - Topic 2234

Pleadings - Striking out pleadings - Grounds - Unnecessary - Defendants applied to strike out portions of the statement of claim - A Prothonotary of the Federal Court of Canada, Trial Division, found that while certain paragraphs might not be strictly necessary, they had a useful aspect and merely because they might be surplusage was not a reason to strike them out - See paragraph 22.

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - Defendants applied to strike out the plaintiffs' statement of claim or portions of the statement of claim - They also sought to strike out a portion of the plaintiffs' reply to a demand for particulars, further and better particulars and an extension of time within which to file a defence - A Prothonotary of the Federal Court of Canada, Trial Division, denied the motion with the exception of striking out paragraph 34 of the statement of claim - The Prothonotary awarded the plaintiffs their taxable costs on an enhanced basis where the defendants were successful on only one item (the striking of paragraph 34) and the request for further particulars was spurious and should not have been brought - See paragraph 37.

Cases Noticed:

Waterside Ocean Navigation Co. v. International Navigation Ltd., [1977] 2 F.C. 257, refd to. [para. 13].

Manitoba Fisheries Ltd. v. Canada, [1976] 1 F.C. 8 (T.D.), refd to. [para. 14].

Vulcan Equipment Co. v. Coats Co. (1981), 39 N.R. 518; 58 C.P.R.(2d) 47 (F.C.A.) leave to appeal refused (1982), 63 C.P.R.(2d) 261 (S.C.C.), refd to. [para. 14].

Amway of Canada Ltd. v. R., [1986] 2 F.C. 312, affd. [1986] 2 C.T.C. 339 (F.C.A.), refd to. [para. 14].

Belanger and Belanger v. Keglonada Investments Ltd. and Buller Buff Co. (1986), 1 F.T.R. 238 (T.D.), refd to. [para. 15].

Pater International Automotive Franchising Inc. v. Mister Mechanic Inc., [1990] 1 F.C. 237 (T.D.), refd to. [para. 15].

Copperhead Brewing Co. v. Labatt (John) Ltd. et al. (1995), 95 F.T.R. 146; 61 C.P.R.(3d) 317 (T.D.), refd to. [para. 15].

Twinn et al. v. Canada et al. (1997), 215 N.R. 133 (F.C.A.), refd to. [para. 18].

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General), [1990] 4 W.W.R. 127; 105 N.R. 228; 65 Man.R.(2d) 182 (S.C.C.), refd to. [para. 22].

Johnson (S.C.) & Sons Ltd. v. Pic Corp. (1975), 19 C.P.R.(2d) 26 (F.C.T.D.), refd to. [para. 28].

Gulf Canada Ltd. v. Tug "Mary Mackin" and Sea-West Holdings Ltd. (1984), 52 N.R. 282 (F.C.A.), refd to. [para. 31].

IBM Canada Ltd. et al. v. Printech Ribbons Inc. et al. (1994), 77 F.T.R. 147 (T.D.), refd to. [para. 32].

Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Ltd. (1979), 43 C.P.R.(2d) 285 (T.D.), refd to. [para. 32].

Windsurfing International Inc. v. Novaction Sports Inc. and Teasdale (1987), 15 F.T.R. 302; 18 C.P.R.(3d) 230 (T.D.), refd to. [para. 33].

Flexi-Coil Ltd. v. Bourgault (F.P.) Industries Air Seeder Division Ltd. (1988), 19 C.P.R.(3d) 125 (F.C.T.D.), refd to. [para. 33].

Counsel:

Peter Abrametz, for the plaintiffs;

Michael R. McKinney, for the defendants, Walter P. Twinn and Sawridge Indian Band;

Mary King, for the defendant, Her Majesty The Queen.

Solicitors of Record:

ICFS Legal Consultant, Prince Albert, Saskatchewan, for the plaintiffs;

Sawridge Indian Band, Slave Lake, Alberta, for the defendants, Walter P. Twinn and Sawridge Indian Band;

George Thomson, Deputy Attorney General, Ottawa, Ontario, for the defendant, Her Majesty The Queen.

This application was heard at Edmonton, Alberta, on October 22, 1997, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following decision on November 14, 1997.