Date: 20010511
Docket: T-1482-91
Neutral Citation : 2001 FCT 470
BETWEEN:
MINNIE NORMA MACNEIL and
ROBERT GARRY MILLER as
representative of the heirs of the late
Minnie Norma MacNeil
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the INDIAN AND NORTHERN AFFAIRS
DEPARTMENT, CHARLOTTE MILDRED MARTIN,
RANDOLF LAWRENCE MARTIN and JOYCE PATRICIA MARTIN
Defendants
(Delivered from the bench in Toronto on
Thursday, May 10, 2001)
[1] This is a motion by plaintiffs in which they seek leave to amend the statement of claim first by adding certain defendants and secondly, by adding a further claim for breach of fiduciary duty.
[2] The first amendment is not opposed and an order will go granting the relief sought.
[3] The second proposed amendment raises a more serious issue, that of an alleged prejudice to the defendant Crown, which could not be compensated by an award of costs. That is, of course, the critical test on any opposed motion to amend.
[4] The action was started in 1991 by the late Minni Norma MacNeil. In it, she alleged essentially that the Crown had improperly treated the will of her grandfather, Mr. David General, as conveying a right of ownership in certain reserve lands to a Mrs. Martin, whereas in truth, as she alleged, all it had really conveyed was a life interest. A Certificate of Possession had been issued to Mrs. Martin by the Crown in the late 1960's and the action sought to have that set aside and to have a declaration that Mrs. MacNeil was in fact the owner of the lands in question.
[5] Neither Mrs. MacNeil nor Mrs. Martin have been examined for discovery or otherwise in the course of this action and both have now died about two years ago.
[6] The proposed amendment, in so far as it is relevant to our purposes here, is found in paragraph 8 aa) and it reads as follows:
The Plaintiffs further state that the actions and inactions of Her Majesty the Queen in Right of Canada, as Represented by the Indian and Northern Affairs Department (the "Defendant HMQ"), constitute a breach of fiduciary duty as against the Plaintiff Minnie Norma MacNeil, particulars of which are as follows:
i) The Defendant HMQ interpreted the Last Will and Testament of David General in such a fashion as to disinherit certain beneficiaries, including the Plaintiff Minnie Norma MacNeil;
ii) The Defendant HMQ failed to advise the Plaintiff Minnie Norma MacNeil that her interests would be affected as a result of the interpretation;
iii) Based upon this interpretation, the Defendant HMQ issued a Certificate of Possession for Lots 18-13-1, 18-13-2 and 18-13-3 to the Defendant Charlotte Mildred Martin without advising or otherwise notifying the Plaintiff Minnie Norma MacNeil;
iv) The Defendant HMQ failed to ensure that the Executrix of David General's Estate, the Defendant Charlotte Mildred Martin, inform the Plaintiff Minnie Norma MacNeil that a Certificate of Possession had been issued to the Defendant Charlotte Mildred Martin for Lots 18-13-1, 18-13-2 and 18-13-3, all of which would seriously affect the residual interest of the Plaintiff Minnie Norma MacNeil; and
v) The Defendant HMQ failed to review and correct their interpretation and decision to issue a Certificate of Possession for Lots 18-13-1, 18-13-2 and 18-13-3 to the Defendant Charlotte Mildred Martin despite the knowledge that their decision was incorrect.
[7] Subparagraphs i) and v) repeat in essence the allegations of the original statement of claim but make them in the context of a claim for breach of fiduciary duty. Subparagraphs ii), iii) and iv) add new allegations of fact which bear directly on the states of mind of either Mrs. MacNeil or Mrs. Martin at various times which are alleged to be relevant.
[8] As I said at the outset, the issue is to know whether these new allegations are of a nature to cause prejudice to the Crown which cannot be compensated by an award of costs.
[9] As regards subparagraphs ii), iii) and iv), I have no doubt that the intervening deaths of both Mrs. MacNeil and Mrs. Martin create a situation in which the Crown is at a distinct disadvantage over where it would have been if those allegations had been included in the original statement of claim. While one cannot be certain, of course, that the Crown would have used its rights to examine for discovery, it clearly had that right and that right now cannot be exercised.
[10] That the plaintiff may also be disadvantaged at trial by the absence of these critical witnesses is nothing to the point. The test for an amendment is whether it will prejudice the opposite party and it is quite clear, in my view, that this amendment will have the effect of prejudicing the Crown simply because it cannot now exercise whatever right of discovery it had with respect to Mrs. MacNeil and Mrs. Martin.
[11] As regards subparagraphs i) and v), however, the situation is arguably different. The allegations of fact are, as I have said, essentially identical to those that were made in the original statement of claim. The only difference is that they are now asserted in support of an argument or a claim for breach of fiduciary duty. Does that make the situation different? After anxious consideration, I have decided that it does not, that there is still prejudice to the Crown caused by the assertion of this new claim arising from the facts simply because the Crown is still deprived of the opportunity which it would have had as a matter of right to examine for discovery and to test the original plaintiff and possibly Mrs. Martin as well on the issue of their possible acquiescence in a situation which was created by the alleged improper action of the Crown. In other words, a plea of acquiescence or laches. That plea would have been available to the Crown and the evidence of certainly Mrs. MacNeil would have been available to it if the claim had been asserted in the original statement of claim. It was not. The Crown cannot now use in support of that defence any admissions that it could have obtained on discovery from Mrs. MacNeil.
[12] Accordingly, I conclude that that part of the amendment too is prejudicial to the Crown. In the result, the motion will be allowed only for that part which I previously indicated is not contested and the balance of the motion will be dismissed. In my view, the Crown is entitled to its costs on this motion, to be taxed.
Judge
Ottawa, Ontario
May 11, 2001