Native Transfer Committee at Mountain Institution v. Canada (Solicitor General), (1997) 125 F.T.R. 10 (TD)

• Court: Federal Court (Canada)
• Case Date: January 06, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 125 F.T.R. 10 (TD)

Mountain Institution v. Can. (1997), 125 F.T.R. 10 (TD)

MLB headnote and full text

Native Transfer Committee at Mountain Institution on Behalf of its Members, and on Behalf of all Aboriginal Offenders of the Correctional Service of Canada (plaintiffs) v. Solicitor General of Canada (defendant)

(T-1940-96)

Indexed As: Native Transfer Committee at Mountain Institution v. Canada (Solicitor General)

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

January 6, 1997.

Summary:

A Native Transfer Committee at Mountain Institution, consisting of and represented by five members of the Federal Penitentiary in Agassiz, sought, on behalf of some 1,800 aboriginal inmates, the implementation of s. 81 of the Corrections and Conditional Release Act. Section 81 permitted the Solicitor General of Canada to enter into agreements with aboriginal communities for the transfer of an offender into the care and custody of aboriginal communities. The defendants applied to strike out the statement of claim.

A Prothonotary of the Federal Court of Canada, Trial Division, allowed the application and struck out the action on the basis that it lacked a reasonable cause of action. The court refused leave to amend.

Civil Rights - Topic 8380

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Status or standing - A Native Transfer Committee at Mountain Institution sought, on behalf of some 1,800 aboriginal inmates, the implementation of s. 81 of the Corrections and Conditional Release Act, referring to ss. 7 and 24(1) of the Charter - The Committee members were not named as plaintiffs - The Solicitor General sought to strike out the statement of claim, asserting, inter alia, that an unincorporated association such as the Committee was not entitled to a Charter remedy where the Committee did not fall within the definition of "anyone" under s. 24(1) of the Charter - A Prothonotary of the Federal Court of Canada, Trial Division, rejected the assertion as a basis of striking out the statement of claim - The action as styled was clearly a representative action - See paragraph 14.

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - A Native Transfer Committee at Mountain Institution, consisting of and represented by five members of a federal penitentiary, sought, on behalf of some 1,800 aboriginal inmates, the implementation of s. 81 of the Corrections and Conditional Release Act - The Committee members were not named as plaintiffs - The Solicitor General sought to strike out the statement of claim, asserting, inter alia, that the Committee was neither an individual nor a corporation and lacked capacity or standing to bring an action in the Federal Court, but in any event, as an unincorporated association, it could not be represented by nonlawyers - A Prothonotary of the Federal Court of Canada, Trial Division, held that the assertions referred to curable defects and while they might lead to amendments or a stay, they were not grounds to strike out the claim - See paragraphs 9 to 13.

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - A Native Transfer Committee at Mountain Institution sought, on behalf of some 1,800 aboriginal inmates, the implementation of s. 81 of the Corrections and Conditional Release Act - The Committee members were not named as plaintiffs - The Solicitor General sought to strike out the statement of claim, asserting, inter alia, that the Committee was neither a person nor a corporation and could not utilize Federal Court Rule 1711 to bring a representative action - A Prothonotary of the Federal Court of Canada, Trial Division, stated that the assertion might be true but the defect was curable - See paragraphs 15, 16.

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - A Native Transfer Committee at Mountain Institution sought, on behalf of some 1,800 aboriginal inmates, the implementation of s. 81 of the Corrections and Conditional Release Act - Section 81 permitted the Solicitor General of Canada to enter into agreements with aboriginal communities for the transfer of an offender into their care and custody - A Prothonotary of the Federal Court of Canada, Trial Division, struck out the statement of claim, holding that the Committee did not meet the test for a representative action - The class members did not all have a common interest and grievance and not all members would benefit from s. 81 - The court also stated that the proceeding was defective, where the Committee did not establish that it spoke for more than its five members - The court was not convinced that the Committee could fairly and adequately represent the class, particulary where it lacked proper legal assistance - See paragraphs 15 to 26.

Practice - Topic 2226

Pleadings - Striking out pleadings - Grounds - General - [See first and second Practice - Topic 209 ].

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T.(2d) 1; 43 C.P.C.(2d) 105; 49 B.C.L.R.(2d) 273; 74 D.L.R.(4th) 321; [1990] 6 W.W.R. 385, appld. [para. 8].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Canada (Radio-Television & Telecommunications Commission) v. Teleprompter Cable Communications Corp., [1972] F.C. 1265 (F.C.A.), refd to. [para. 11].

Pawar v. Canada (1996), 123 F.T.R. 257 (T.D.), refd to. [para. 15].

Bedford (Duke) v. Ellis, [1901] A.C. 1, refd to. [para. 17].

Duke of - see proper name of Duke.

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 17].

Pasco v. Canadian National Railway (1989), 56 D.L.R.(4th) 404 (B.C.C.A.), refd to. [para. 18].

Oregon Jack Creek Indian Band Chief v. Canadian National Railway - see Pasco v. Canadian National Railway.

Logan et al. v. Canada (1995), 89 F.T.R. 37 (T.D.), refd to. [para. 19].

Markt & Co. v. Knight Steamship Co., [1910] 2 K.B. 1021 (C.A.), refd to. [para. 20].

Mayrhofer v. Canada (1993), 61 F.T.R. 81 (T.D.), refd to. [para. 22].

Kiist and Robertson v. Canadian Pacific Railway Co. et al., [1982] 1 F.C. 361; 37 N.R. 91 (F.C.A.), refd to. [para. 24].

Cairns et al. v. Farm Credit Corp. et al. (1992), 49 F.T.R. 308 (T.D.), refd to. [para. 25].

Canada v. Perry et al. (1982), 41 N.R. 91 (F.C.A.), refd to. [para. 26].

R. v. Sheldon S., [1990] 2 S.C.R. 254; 110 N.R. 321; 41 O.A.C. 81; 77 C.R.(3d) 273; 57 C.C.C.(3d) 115; 49 C.R.R. 79, refd to. [para. 27].

R. v. S.S. - see R. v. Sheldon S.

Beauchemin v. Commission de l'Emploi et de l'Immigration du Canada (1988), 15 F.T.R. 83 (T.D.), refd to. [para. 29].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 24(1) [para. 6].

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 81 [para. 5].

Authors and Works Noticed:

Cromwell, Thomas A., Locus Standi: A Commentary on the Law of Standing in Canada (1986), p. 98 [para. 14].

Counsel:

E.C. Bolton, Chair, and M. Schemmann, Secretary, for the plaintiffs;

Darlene Prosser, for the defendant.

Solicitors of Record:

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This application was dealt with in writing without the appearance of counsel, by Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on January 6, 1997.