Thahoketoteh of Kanekota v. Canada, (2013) 430 F.T.R. 178 (FC)

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: March 25, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 430 F.T.R. 178 (FC);2013 FC 350

Thahoketoteh of Kanekota v. Can. (2013), 430 F.T.R. 178 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. AP.009

Thahoketoteh of Kanekota (plaintiff) v. Her Majesty the Queen (defendant)

(T-2007-12; 2013 FC 350; 2013 CF 350)

Indexed As: Thahoketoteh of Kanekota v. Canada

Federal Court

Snider, J.

April 8, 2013.

Summary:

The plaintiff commenced an action against Her Majesty the Queen. The plaintiff sought: "[A] declaration that [HMQ] is under the 'legal duty' type of 'Trust' within the meaning of In re Indian Claims (1896) and section 109 of the Constitution Act, 1867, not to apply or permit the application of federal or provincial law to the Grand River or Haldimand Tract except by treaty in compliance with the Royal Proclamation of 1763 and proven, in the event of dispute, before the Standing Royal Committee consulted by the Order in Council (UK), 1704". In the final paragraph of his Statement of Claim, the plaintiff stated that: "The only genuine issue is the prima facie identity of the proper law of the territory and corresponding trust relationship between the parties, a question of constitutional jurisdictional law alone that is settled for stare decisis purposes". On that basis, the plaintiff proposed that the action be disposed of on the basis of rule 220(1)(a) of the Federal Courts Rules as a preliminary question of constitutional law. Concurrent with his Statement of Claim, he also filed a "Motion Record" asking the court to determine the above question. The defendant moved to strike the plaintiff's action, asserting that it was plain and evident that the claim could not succeed (rule 221(1)(a)).

The Federal Court struck the action without leave to amend for two reasons: (a) there were no factual underpinnings to the claim; and (b) the action had no reasonable grounds of success.

Constitutional Law - Topic 21

General - Raising constitutional issues - General - [See Constitutional Law - Topic 9952 ].

Constitutional Law - Topic 9952

Practice - Pleadings - The plaintiff commenced an action against Her Majesty the Queen, seeking "[A] declaration that [HMQ] is under the 'legal duty' type of 'Trust' within the meaning of In re Indian Claims (1896) and section 109 of the Constitution Act, 1867, not to apply or permit the application of federal or provincial law to the Grand River or Haldimand Tract except by treaty in compliance with the Royal Proclamation of 1763 and proven, in the event of dispute, before the Standing Royal Committee consulted by the Order in Council (UK), 1704" - In the final paragraph of his Statement of Claim, the plaintiff stated that: "The only genuine issue is the prima facie identity of the proper law of the territory and corresponding trust relationship between the parties, a question of constitutional jurisdictional law alone that is settled for stare decisis purposes" - On that basis, the plaintiff proposed that the action be disposed of on the basis of rule 220(1)(a) of the Federal Courts Rules as a preliminary question of constitutional law - The defendant moved to strike the plaintiff's action, asserting that it was plain and evident that the claim could not succeed (rule 221(1)(a)) - The Federal Court struck the action without leave to amend for two reasons: (a) there were no factual underpinnings to the claim; and (b) the action had no reasonable grounds of success - A cause of action had to lie on material facts - That was particularly true of actions in which a plaintiff sought to resolve a constitutional question - The plaintiff had raised an issue that was merely hypothetical or academic - The action was also struck on the basis that it lacked a cause of action - The plaintiff's claim rested on two documents, the Royal Proclamation of 1763 and a 1704 Order in Council - Neither the Royal Proclamation of 1763 nor the 1704 Order in Council had the effect asserted by the plaintiff - The Royal Proclamation of 1763 was revoked before the land interest asserted by the plaintiff first arose, rendering the proclamation irrelevant - The 1704 Order in Council created a specific dispute resolution mechanism to resolve a specific conflict that arose over three hundred years earlier - It was plain and obvious that the 1704 Order in Council did not have general application to disputes between First Nations and the Crown as asserted by the plaintiff.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect or scope of - [See Constitutional Law - Topic 9952 ].

Practice - Topic 1300

Pleadings - General principles - Stating material facts - [See Constitutional Law - Topic 9952 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Constitutional Law - Topic 9952 ].

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - [See Constitutional Law - Topic 9952 ].

Cases Noticed:

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 7].

Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [2008] F.T.R. Uned. 576; 2008 FC 823, refd to. [para. 8].

Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [2002] 4 F.C. 550; 220 F.T.R. 41; 2002 FCT 295, refd to. [para. 9].

Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2013), 426 F.T.R. 1; 2013 FC 6, refd to. [para. 10].

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 15].

Chippewas of Sarnia Band v. Canada (Attorney General) et al. (2000), 139 O.A.C. 201; 195 D.L.R.(4th) 135; 51 O.R.(3d) 641 (C.A.), refd to. [para. 19].

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215; 199 D.L.R.(4th) 228 (C.A.), refd to. [para. 19].

St. Catharines Milling and Lumber Co. v. Ontario (Attorney General) (1887), 13 S.C.R. 577, refd to. [para. 21].

Ontario (Attorney General) v. Bear Island Foundation et al. (1989), 32 O.A.C. 66; 68 O.R.(2d) 394; 58 D.L.R. (4th) 117 (C.A.), affd. [1991] 2 S.C.R. 570; 127 N.R. 147; 46 O.A.C. 396; 83 D.L.R.(4th) 381, refd to. [para. 21].

R. v. Clark, [1997] B.C.J. No. 715 (Prov. Ct.), refd to. [para. 25].

Clark v. Canada, [1994] T.C.J. No 1046, affd. [1997] 2 C.T.C. 334 (F.C.A), refd to. [para. 25].

Reference Re Supreme Court Act Amendment Act (Canada), [1940] S.C.R. 49, refd to. [para. 26].

Ontario (Attorney General) v. Canada (Attorney General), [1947] A.C. 127; [1947] 1 D.L.R. 801 (P.C.), refd to. [para. 26].

Counsel:

Thahoketoteh of Kanekota, on his own behalf, for the plaintiff;

Michael McCulloch, for the defendant.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the defendant.

This motion was heard on March 25, 2013, at Toronto, Ontario, before Snider, J., of the Federal Court, who delivered the following decision on April 8, 2013.