Date: 19980917
Docket: T-2391-88
BETWEEN:
| LOUISE MARTEL, MARY GROSS, DORA THOMSON, MONICA GLADEAU, MILDRED BARIL, CORA ARNOLD, EMILY STOYKA, FLORA ANDERSON, PATRICIA JONES, HAZEL FREEMAN, JOYCE P. COOK, SARA SCHUG, ELIZABETH PERROTT, NORA ORR, MARY MIERAU, MARLENE COUTOREILLE, and JANICE WANDA LIGHTNING |
Plaintiffs
- and -
| CHIEF JIM OMEASOO, THE COUNCIL OF THE SAMSON BAND and THE SAMSON BAND OF INDIANS, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT |
Defendants
REASONS FOR ORDER
(Delivered from the Bench, at Edmonton, Alberta,
on Thursday, the 17th day of September, 1998.)
HUGESSEN, J.:
[1] This is a motion to amend the Statement of Defence filed by the Defendant, the Samson Band which is hereafter referred to as "the Band".
[2] The action was started in 1988. At that time the seventeen Plaintiffs sought to assert against the Band the rights which flowed to them from the amendments to the Indian Act which are popularly referred to as Bill C-31.
[3] As of this day only two of the original seventeen Plaintiffs remain in the action asserting a claim against the Band. The others have either died or have discontinued the action as against the Band.
[4] The proposed amendments to the Statement of Defence are far reaching. In their most important aspect they appear to assert a claim of nationhood on the part of the Band, nationhood in the international sense of that term. In a somewhat subsidiary aspect they also seek to amend the prayer for relief and to claim a declaration of invalidity of the legislation in question.
[5] When considering whether or not to allow an amendment the most important test, in my opinion, is that of the possible prejudice to the parties in either allowing or not allowing the amendment. Rule 75(1) puts it the other way around but comes to the same thing when it talks of protecting the rights of the parties. The rule gives to the Court a very wide discretion to provide for the protection of the rights of the parties by the imposition of terms upon a party who proposes to amend. Such terms may include but are by no means limited to the imposition of an order for the payment of costs by the amending party.
[6] When the motion to amend first came on for hearing here in Edmonton last month, counsel for the Plaintiffs made powerful submissions with respect to the possible prejudice that would be suffered by the two remaining Plaintiffs who assert claims against the Band. Those are the Plaintiffs, Stoyka and Schug. I was, however, of the view that there was no material in the Record before me to support that claim of prejudice. I accordingly directed, on the authority of Rule 60, that such material should be filed both by the Plaintiffs and as well by the Defendant Band. That has now been done.
[7] I am satisfied that the proposed amendments if granted will add substantially to the time required not only to make this case ready for trial but also to the time of trial itself.
[8] While the Plaintiffs have not pursued their action with remarkable vigour until fairly recently, I am satisfied that they are now doing so and wish to bring the matter on for an early resolution. I may also add that their reason for not proceeding with vigour earlier was the wholly understandable one that the issues respecting the validity of Bill C-31 were thought to be on the point of resolution in another case. That has not happened.
[9] It is in my view clear that the additional time that I have indicated is likely to be required by the proposed amendments will substantially increase the danger of the Plaintiffs never realizing the fruits of their action. Experience in this very case itself is enough to show us that mortality and attrition by other means is a serious risk.
[10] The Plaintiffs as I have said are registered members of the Band. Notwithstanding that fact the Band has taken the law into its own hands and has refused to recognize that status to the Plaintiffs and in particular has refused since May of 1988 to pay to them the per capita payments which it has paid on a regular basis to all of its members.
[11] While the Band contests the constitutional validity of Bill C-31, unless and until judgment is rendered in the Band's favour the Plaintiffs enjoy the presumption of validity and the presumptive status which they have as registered members of the Band.
[12] The Plaintiffs, Stoyka and Schug, are elderly women who are in indifferent health and of modest means. To deprive them of the per capita payments which are their due as members of the Band is in my view likely to cause to them irreparable harm. What renders that harm irreparable is, of course, the serious danger that these two Plaintiffs, like all the others, may never survive to reap the fruits of their action.
The Band, on the other hand, in my view, will suffer no prejudice if it recognizes to the Plaintiffs from this time forward at least some of the rights to which their status entitles them.
[13] Accordingly, I propose to allow the proposed amendments, with the exception of the amendment to the prayer for relief which is paragraph 9 of the Statement of Defence, on terms which will require the Band to pay to the Plaintiffs, Stoyka and Schug, from and after the 30th of September, 1998, all per capita payments whether capital or revenue which from time to time will be paid or payable to Band members. The Plaintiffs will be accountable for such payments and in the event that final judgment goes against them they will be required to return them.
[14] As to the proposed amendment to the prayer for relief in paragraph 9 it will be refused, without prejudice, however, to the Band's right to move for leave to bring a third party claim for a declaration against the Crown.
[15] The Defendant Band will pay the Plaintiffs' costs of this motion which costs are fixed in an amount of $1,500 payable forthwith and in any event of the cause.
"James K. Hugessen"
Judge
Edmonton, Alberta,
September 17th, 1998.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2391-88
STYLE OF CAUSE: Louise Martel and Others
v. Chief Jim Omeasoo and Others
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: September 17th, 1998
REASONS FOR ORDER: Hugessen, J.
APPEARANCES:
SOLICITORS OF RECORD:
Edmonton, Alberta for the Plaintiffs
Morris Rosenberg for the Defendant,
Deputy Attorney General of Canada Her Majesty the Queen in
Right of Canada