Date: 20010926
Docket: T-1525-00
Neutral citation: 2001 FCT 1049
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members and
ALEX MACDONALD, LEON ROBINSON, CHAD ROBINSON,
JOHN PAUL, PETER PAUL, VANDORA PAUL,
GENEVIEVE JOHNSON, HOLLY MACDONALD,
MARK LAWRENCE HOWE, ANDREW ROBINSON,
JASON MARR, DOUG MARR, IKE MARR, JOHN MARR,
EDWARD PETER-PAUL, BERNARD JOHNSON, CARL SACK,
AMY MALONEY, MARIE ROBINSON, GREGORY PAUL,
DAVID MACDONALD, DONALD JEANS, FRANK SMITH
AND JOHN MARR (No. 2)
and WILLIAM J. NEVIN, STEPHEN M. PETER-PAUL,
BENJAMIN J. BRAKE, GLENDON BROOKS, and
ELLEN ROBINSON
Plaintiffs
- and -
ATTORNEY GENERAL OF CANADA,
representing the Minister of Fisheries and Oceans (Canada)
UNION OF NOVA SCOTIA INDIANS, a body corporate, and
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
Defendants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
LFA DISTRICT 34 LOBSTER COMMITTEE,
ATLANTIC FISHING INDUSTRY ALLIANCE,
NATIVE COUNCIL OF NOVA SCOTIA
Interveners
AND BETWEEN: Docket: T-1250-01
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members
Applicants
- and -
ATTORNEY GENERAL OF CANADA,
representing the Minister of Fisheries and Oceans (Canada),
UNION OF NOVA SCOTIA INDIANS, a body corporate,
and CONFEDERACY OF MAILAND MI'KMAQ,
a body corporate
Respondents
(Delivered from the Bench at Halifax, Nova Scotia
on Wednesday, September 19, 2001)
[1] I had before me this morning 4 motions. The first was a motion by the Crown in file T-1250-01 seeking to have that judicial review application converted into an action and to have it consolidated with file T-1525-00. That motion was not contested and after hearing the parties, I granted it and gave an order converting the action and consolidating it with the action from the year previous. I also at the same time gave leave to the plaintiffs to add other plaintiffs, to add claims for damages and to add Her Majesty the Queen in right of Canada as a party defendant.
[2] The second motion was a cross-motion brought by the plaintiffs in response to the Crown's motion and in the event that the latter was granted. It sought and still seeks to have a question of law severed and stated and determined separately. That motion did not proceed because the plaintiffs had failed to serve all the parties in the T-1525-00 action and they, of course, have an interest in the outcome of the motion once the two matters are consolidated. I have, in consequence, ordered that that motion proceed pursuant to Rule 369 and I shall decide it in due course.
[3] The third motion was brought by the defendant Crown in the T-1525-00 action and sought to strike out the statement of intervention which had been filed by the Native Council of Nova Scotia. I accepted that motion on the grounds urged that the statement of intervention was not in compliance with an earlier order which I had given permitting the filing of the statement of intervention. I accordingly struck out the statement of intervention and granted leave to the Native Council of Nova Scotia within 30 days to serve and file a new statement of intervention.
[4] That brings me to the fourth motion which I heard this morning and which by the present reasons is now disposed of. It is a motion brought by the defendant Crown, seeking to strike out the statements of defence filed by respectively the Union of Nova Scotia Indians and the Confederacy of Mainland Mi'kmaq. Those two bodies were not parties to the application for judicial review which was originally brought in the T-1525-00 proceedings. They were added as parties respondent by an order given by Mr. Justice Pelletier. Manifestly, that order was given because Mr. Justice Pelletier was satisfied that those two bodies were the proper representatives of persons who's interests would be directly affected by the decision which the application for judicial review attacked. That decision of Mr. Justice Pelletier has not itself been appealed or otherwise questioned.
[5] Following the addition of the Union of Nova Scotia Indians and the Confederacy of Mainland Mi'kmaq as parties respondent, the proceedings were converted into an action and those two bodies therefore became defendants. They have now filed statements of defence and it is those statement of defence which the present motion attacks.
[6] There are two serious grounds of attack. The first is that the Court does not have jurisdiction to entertain claims against those defendants and the second is that even assuming jurisdiction, those two bodies are not proper or necessary parties to the action pursuant to Rule 104. I say the grounds are serious. I am nonetheless of the view that they are unfounded.
[7] In the first place, as to jurisdiction, it is beyond doubt that the Court had jurisdiction at the time the parties were added as parties respondent to an application for judicial review. The Court equally had jurisdiction at the time that that application for judicial review was, pursuant to the terms of the Federal Court Act, converted to an action. The operation of converting the application for judicial review into an action does not in my opinion have the effect of automatically depriving the Court of the jurisdiction which it had a milli-second prior to granting the order. In other words, jurisdiction in the Court is vested by section 18 which gives the Court jurisdiction to hear applications for judicial review, and an application for judicial review does not cease to be a matter within the Court's jurisdiction simply because procedurally, it is converted from being an application into being an action.
[8] With regard to Rule 104, much the same considerations apply. Manifestly, the two bodies in question were properly made respondents by the terms of Rule 303 as representing persons having an interest in the outcome. It is argued that by the fact of conversion and through the operation of Rule 300, the rules now applicable to actions take over and that these two bodies would not properly be parties defendant to an action and therefore are not properly parties defendant to this action. I disagree.
[9] They were properly made respondents to the proceedings. When the proceedings were converted they properly became defendants. They, of course, do not have any causes of action stated against them nor do the plaintiffs claim any conclusions as regards them. That is normal because they were brought in to the proceedings when there was simply an application for judicial review. The proceedings have not ceased to be judicial review proceedings simply because they have been converted into an action and because other conclusions and other parties have been added. The two bodies in question, the Union of Nova Scotia Indians and the Confederacy of Mainland Mi'kmaq continue to be defendants but only, of course, in so far as they have an interest in the outcome of the action as it relates to the judicial review of the decisions of the Minister which were thereby attack.
[10] I accordingly decline to strike the statements of defence. Let me conclude by saying this, however: it is quite clear that the Union of Nova Scotia Indians and the Confederacy of Mainland Mi'kmaq have a very limited interest in this action. Nothing very much depends on their being labelled defendants and indeed they might equally well have been labelled interveners or third parties or in some other way. They were labelled defendants, however, because that is how they came into the action. But the Court will be vigilant in seeing to it that their status as defendants is not abused. The Court, in particular, will make sure that those two parties defendant do not use their status as defendant to conduct just by way of example "cream puff" cross-examinations of witnesses or to set up "straw men" for the plaintiffs to knock down. There interest, as I say, is limited to their interest which is an undoubted one in the outcome of the litigation as it relates to the original judicial review and they do not pretend to have any interest in the added causes of action which relate to damages and other things.
[11] The motion will accordingly be dismissed.
[12] With the exception of the costs of the day in the abortive cross-motion brought by the plaintiffs to which I have earlier adverted, I am minded to order that all the costs of this day shall be in the cause.
Judge
Ottawa, Ontario
September 26, 2001