Yellowbird v. Samson Cree Nation No. 444 et al., (2006) 405 A.R. 333 (QB)

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 24, 2006
• Citations: (2006), 405 A.R. 333 (QB);2006 ABQB 434

Yellowbird v. Samson Cree Nation No. 444 (2006), 405 A.R. 333 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JN.118

Shinnez-Lee Yellowbird also known as Shinnez-Lee Bearhead (plaintiff) v. Chief and Council of the Samson Cree Nation No. 444, Samson Cree Nation No. 444, and Her Majesty the Queen as Represented by the Minister of Indian And Northern Affairs (defendants)

Billie Jean Yellowbird, a minor, and Jillian Ann Yellowbird, a minor, both by their next friend, Shirley Marie Yellowbird (plaintiffs) v. Chief and Council of the Samson Cree Nation No. 444, Samson Cree Nation No. 444, and Her Majesty the Queen in Right of Canada as Represented by the Minister of Indian and Northern Affairs Canada (defendants)

(0203 10724; 0203 22358; 2006 ABQB 434)

Indexed As: Yellowbird v. Samson Cree Nation No. 444 et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Slatter, J.

June 14, 2006.

Summary:

The plaintiffs sought a declaration that they were entitled to share in per capita distributions made from time to time by the Samson Cree Nation to its members. The main issue was whether the claim was barred by the Limitations Act.

The Alberta Court of Queen's Bench issued declarations accordingly.

Indians, Inuit and Métis - Topic 2108

Nations, tribes and bands - Bands - Distribution of funds - [See Limitation of Actions - Topic 207, Limitation of Actions - Topic 1907 and Limitation of Actions - Topic 9058 ].

Limitation of Actions - Topic 207

Practice - Limitation period - Commencement of - The plaintiffs sought a declaration that they were entitled to share in per capita distributions (PCDs) made from time to time by the Samson Cree Nation to its members - Samson conceded that the plaintiffs were entitled to PCDs made in the two years prior to the issuance of their statements of claim - However, it argued that any earlier payments were blocked by the Limitations Act - The plaintiffs argued that the Limitations Act did not apply to these claims because, inter alia, their claims did not come into existence until a 2002 judgment confirmed the status of their mother as a Samson member - They argued that their status was based on their mother's status, and until their mother's status was declared by the court, they had no claim - The Alberta Court of Queen's Bench rejected the argument - Once the Registrar of Indian and Northern Affairs placed their mother and the plaintiffs on the Band list, they could have immediately sued for any benefits due to them - The argument also presupposed that the court would not enforce a right until a certain relationship or entitlement had first been declared - However, the courts routinely granted relief which implicitly declared rights - See paragraphs 45 to 48.

Limitation of Actions - Topic 1907

Actions - General - Declaratory relief - The plaintiffs sought a declaration that they were entitled to share in per capita distributions (PCDs) made from time to time by the Samson Cree Nation to its members - Samson conceded that the plaintiffs were entitled to PCDs made in the two years prior to the issuance of their statements of claim - However, it argued that any earlier payments were blocked by the Limitations Act - The plaintiffs argued that the Limitations Act did not apply to these claims because, inter alia, they were not seeking "remedial orders" to which the Act applied, merely declaratory orders - The Alberta Court of Queen's Bench held that the plaintiffs were seeking a declaration that they were owed money - If the declaration was granted by the court and resisted by Samson, there was no way that the plaintiffs could enjoy the fruits of the declaration without the intervention of further legal process - As such, the relief was remedial in nature, and subject to the Limitations Act - See paragraphs 22 to 39.

Limitation of Actions - Topic 9058

Persons under disability and exemptions and exclusions - Infants - Infants in actual custody of parent or guardian - The plaintiffs sought a declaration that they were entitled to share in per capita distributions (PCDs) made from time to time by the Samson Cree Nation to its members - Samson conceded that the plaintiffs were entitled to PCDs made in the two years prior to the issuance of their statements of claim - However, it argued that any earlier payments were blocked by the Limitations Act - The plaintiffs argued that the Limitations Act did not apply to these claims because, inter alia, the Act did not apply to them when they were minors - The Alberta Court of Queen's Bench held that the plaintiffs had been under their mother's actual custody until they were each the age of 17 and moved out to form common law relationships - Once they moved out to form common law relationships that "actual custody" ended, and by ss. 1(i) and 5(1) of the Act, the limitation period was "suspended" until they turned 18 - Even though their mother testified she was still concerned about, and felt responsible for their welfare, the plaintiffs were no longer under her "actual custody" - The fact that their mother actually issued a claim for two of them on November 22, 2002 simply reflected their legal incapacity, and not any "actual custody" by their mother - See paragraphs 40 to 44.

Cases Noticed:

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241, refd to. [para. 25].

Brennenstuhl v. Trynchy et al., [2002] A.R. Uned. 193 (Q.B.), dist. [para. 26].

Yellowbird v. Samson Cree Nation No. 444 et al. (2003), 349 A.R. 208; 36 Alta. L.R.(4th) 107; 2003 ABQB 535, refd to. [para. 28].

Mason (V.K.) Construction Ltd. v. Canadian General Insurance Group Ltd. (1998), 116 O.A.C. 272; 42 O.R.(3d) 618 (C.A.), refd to. [para. 28].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 28].

Huang v. Telus Corp. Pension Plan - see Huang et al. v. Drinkwater et al.

Huang et al. v. Drinkwater et al., [2005] 9 W.W.R. 51; 372 A.R. 336; 41 Alta. L.R.(4th) 107; 44 C.C.P.B. 100; 13 E.T.R.(3d) 233; 2005 ABQB 40, refd to. [para. 30].

Callihoo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2006), 402 A.R. 1; 2006 ABQB 1, refd to. [para. 31].

Blair v. Besharnais (2003), 336 A.R. 174; 2003 ABQB 657, affd. (2005), 371 A.R. 196; 354 W.A.C. 196; 52 Alta. L.R.(4th) 54; 2005 ABCA 272, refd to. [para. 32].

Daniels v. Mitchell (2005), 371 A.R. 298; 257 D.L.R.(4th) 663; 51 Alta. L.R.(4th) 212; 15 C.P.C.(6th) 266; 36 R.P.R.(4th) 7; 2005 ABCA 271, refd to. [para. 33].

Sommers v. Edmonton (City) and Scott (1978), 10 A.R. 48; 88 D.L.R.(3d) 204 (C.A.), refd to. [para. 34].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161, refd to. [para. 34].

Papaschase Indian Band No. 136 v. Canada - see Lameman et al. v. Canada (Attorney General).

Lameman et al. v. Canada (Attorney General), [2005] 8 W.W.R. 442; 365 A.R. 1; 43 Alta. L.R.(4th) 41; [2004] 4 C.N.L.R. 110; 2004 ABQB 655, refd to. [para. 37].

Thomas v. Radvak (1997), 200 A.R. 123; 146 W.A.C. 123; 51 Alta. L.R.(3d) 327 (C.A.), refd to. [para. 41].

Kocur v. Meunier et al. (2003), 345 A.R. 383; 2003 ABQB 539, refd to. [para. 41].

Barry et al. v. Garden River Band of Ojibways (1997), 100 O.A.C. 201; 33 O.R.(3d) 782; 147 D.L.R.(4th) 615 (C.A.), refd to. [para. 49].

James H. Meek Trust et al. v. San Juan Resources Inc. et al. (2005), 376 A.R. 202; 360 W.A.C. 202; 52 Alta. L.R.(4th) 1; 2005 ABCA 448, refd to. [para. 51].

Authors and Works Noticed:

Alberta, Law Reform Institute, Report on Limitations, Report No. 55 (1989), pp. 38 [para. 23]; 52, para. 16 [para. 23]; 53, para. 23 [para. 23].

Zamir, Itzhac, and Woolf, Harry, The Declaratory Judgment (3rd Ed. 2002), paras. 1.02 [para. 36]; 2.01, 2.04, 2.08, 2.09 [para. 25].

Zamir, Itzhac, The Declaratory Judgment (1st Ed. 1962), p. 3 [para. 26].

Counsel:

R.E. Johnson, for the plaintiffs;

M. Poretti, for the defendant, Samson Cree Nation No. 444.

This action was heard on May 24, 2006, by Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on June 14, 2006.