Muskoday First Nation v. Saskatchewan et al., (2010) 365 Sask.R. 150 (QB)

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 17, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 365 Sask.R. 150 (QB);2010 SKQB 342

Muskoday First Nation v. Sask. (2010), 365 Sask.R. 150 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. SE.079

Chief Austin Bear suing on his own behalf and on behalf of all members of the Muskoday First Nation (plaintiff) v. The Government of Saskatchewan (defendant) and The Attorney General of Canada (defendant)

(2009 Q.B.G. No. 544; 2010 SKQB 342)

Indexed As: Muskoday First Nation v. Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Gabrielson, J.

September 17, 2010.

Summary:

The plaintiff First Nation issued a statement of claim against Saskatchewan and Canada, alleging breaches of a land settlement agreement. Against Saskatchewan, the plaintiff sought relief including declaratory relief, certiorari, mandamus, damages, interlocutory relief and costs. No relief was claimed as against Canada. Canada applied to strike the statement of claim as against it for, inter alia, disclosing no cause of action (rule 173(1)). Initially, the plaintiff agreed to consent to an order striking the claim against Canada if Canada confirmed that it would be bound by the decision in the action against Saskatchewan. The parties were given two weeks to draft a consent order. Subsequently, Canada determined that it would not give the consent required. The hearing proceeded.

The Saskatchewan Court of Queen's Bench allowed Canada's application, but refused to order costs of the application in favour of Canada.

Practice - Topic 351

Parties - Joinder of parties - General - Person whose participation is necessary for full and effectual adjudication - The plaintiff First Nation issued a statement of claim against Saskatchewan and Canada, alleging breaches of a land settlement agreement - Against Saskatchewan, the plaintiff sought relief including declaratory relief, certiorari, mandamus, damages, interlocutory relief and costs - No relief was claimed as against Canada - Canada applied to strike the statement of claim as against it for, inter alia, disclosing no cause of action (rule 173(1)) - The plaintiff asserted that, under s. 11 of the Queen's Bench Act, so long as a declaratory judgment was sought, the action against Canada should not be dismissed because the judgment would bind Canada as well as Saskatchewan - Further, Canada's participation was required because it was a party to the land settlement agreement - The Saskatchewan Court of Queen's Bench allowed Canada's application - While s. 11 allowed a claim for declaratory relief, it did not allow the plaintiff to name Canada as a defendant unless the declaratory order was also sought as against Canada - Under rule 38, the court could order the joinder of a necessary party, but no such application regarding Canada had been made and there was no evidentiary basis for one at present - While Canada might be affected by the decision, that was not sufficient to establish a legal right to require Canada to be involved in the litigation - See paragraphs 11 to 25.

Practice - Topic 1458

Pleadings - Statement of claim - General - Necessity of claiming damages or relief - [See Practice - Topic 351 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Practice - Topic 351 ].

Practice - Topic 2242.1

Pleadings - Striking out pleadings - Practice - Costs - The plaintiff First Nation issued a statement of claim against Saskatchewan and Canada, alleging breaches of a land settlement agreement - Against Saskatchewan, the plaintiff sought relief including declaratory relief, certiorari, mandamus, damages, interlocutory relief and costs - No relief was claimed as against Canada - Canada applied to strike the statement of claim as against it for, inter alia, disclosing no cause of action (rule 173(1)) - Initially, the plaintiff agreed to consent to an order striking the claim against Canada if Canada confirmed that it would be bound by the decision in the action against Saskatchewan - The parties were given two weeks to draft a consent order - Subsequently, Canada determined that it would not give the consent required - The hearing proceeded and Canada's application was allowed - Regarding costs, the Saskatchewan Court of Queen's Bench refused to award costs in favour of Canada in these circumstances, although it was the successful party - See paragraph 17.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct (incl. counsel) - [See Practice - Topic 2242.1 ].

Practice - Topic 7035

Costs - Party and party costs - Entitlement to party and party costs - The Crown or governmental bodies - [See Practice - Topic 2242.1 ].

Cases Noticed:

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 8].

Peigan Indian Band v. Alberta (1998), 231 A.R. 201; 1998 ABQB 850, refd to. [para. 8].

Gola v. Zaporanik, [1925] 1 D.L.R. 34 (Sask. C.A.), refd to. [para. 8].

Canada (Attorney General) v. Nunavut Tunngavik Inc., [2008] Nunavut Cases Uned. 11; 58 C.P.C.(6th) 46; 2008 NUCJ 11, refd to. [para. 8].

Stubart Investments Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 536; 53 N.R. 241, refd to. [para. 9].

Collver and Management Associates Ltd. v. MacDermid & Co., [1979] 6 W.W.R. 316; 4 Sask.R. 16 (C.A.), refd to. [para. 9].

Campbell et al. v. British Columbia (Attorney General) et al., [1994] B.C.T.C. Uned. E09 (S.C.), dist. [para. 9].

Boothroyd Indian Band v. British Columbia (Attorney General) - see Campbell et al. v. British Columbia (Attorney General) et al.

Williams et al. v. British Columbia (Minister of Transportation and Highways), [1994] B.C.T.C. Uned. 524; 25 C.P.C.(3d) 121 (S.C.), dist. [para. 9].

Kispiox Indian Band v. British Columbia (Minister of Transportation and Highways) - see Williams et al. v. British Columbia (Minister of Transportation and Highways).

Uukw v. British Columbia, [1986] B.C.J. No. 2396 (S.C.), dist. [para. 9].

Heritage Regina v. Harvard Developments Ltd., [1982] S.J. No. 827 (Q.B.), refd to. [para. 9].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 12].

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

Letang v. Cooper, [1964] 2 All E.R. 929 (C.A.), refd to. [para. 16].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [1999] 8 W.W.R. 429; 172 Sask.R. 40; 185 W.A.C. 40 (C.A.), refd to. [para. 16].

Domco Industries Ltd. v. Mannington Mills Inc. and Congoleum Corp. (1988), 24 F.T.R. 234; 23 C.P.R.(3d) 96 (T.D.), affd. (1990), 107 N.R. 198; 29 C.P.R.(3d) 481 (F.C.A.), leave to appeal refused (1990), 127 N.R. 239 (S.C.C.), refd to. [para. 16].

Clow v. MacNevin and Smith (No. 1) (1986), 60 Nfld. & P.E.I.R. 358; 181 A.P.R. 358 (P.E.I.S.C.), refd to. [para. 18].

Elliott Estate, Re, [1941] 1 W.W.R. 356 (B.C.S.C.), refd to. [para. 18].

R.L.T.V. Investments Inc. v. Saskatchewan Telecommunications et al. (2009), 331 Sask.R. 78; 460 W.A.C. 78; 2009 SKCA 83, refd to. [para. 25].

Counsel:

J. Ronald Cherkewich, for the plaintiff;

R. James Fyfe, for the defendant, The Government of Saskatchewan;

John O. Krowina, for the defendant, The Attorney General of Canada.

This application was heard by Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following fiat on September 17, 2010.