Date: 19991210
Docket: T-1057-96
BETWEEN:
AMBROSE MAURICE, MERVIN MAURICE, and
THE METIS SOCIETY OF SASKATCHEWAN
SAPWAGAMIK LOCAL 176 INC.
Plaintiffs
(Respondents)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,
and THE ATTORNEY GENERAL OF CANADA
Defendants
(Applicants)
REASONS FOR ORDER
REED, J.:
[1] The defendants bring a motion to have the Metis Society of Saskatchewan Sapwagamik Local 176 Inc. ("the Society") removed as a plaintiff.
[2] The Society is a corporation that has the capacity to sue and be sued. Its members reside in or near the community of Sapwagamik in northern Saskatchewan. The plaintiffs Ambrose and Mervin Maurice reside in a near the community of Sapwagamik. They are the president and vice-president, respectively, of the Society.
[3] This action is a claim by Ambrose and Mervin Maurice that arises from the defendants' refusal to pay compensation to them equal to that paid to other aboriginal peoples (i.e., the Indians of Canoe Lake and Cold Lake). The compensation in question was paid as a result of the creation of the Primrose Lake Air Weapons Range, and the consequent displacement of individuals who had previously used the land for hunting and fishing and logging.
[4] The members of the Society see the case as a test case, the results of which could affect their eventual ability to obtain compensation for themselves. If Ambrose and Mervin Maurice are successful, a precedent would exist that may allow others to successfully claim additional compensation.
[5] The Society was named as a plaintiff, together with the individuals Ambrose and Mervin Maurice, at the commencement of the suit. The same counsel represents all three plaintiffs. The individual plaintiffs do not object to the Society being a party. Indeed, they prefer that it be such.
[6] In the Statement of Claim, the Society is described as representing the interests of the Metis persons who reside in or near the community of Sapwagamik in northern Saskatchewan. The relief sought relates to the constitutional, fiduciary, statutory, common law and equitable obligations owed by the defendants to the plaintiffs. As such, the relief sought relates only to the individual plaintiffs. The Society per se, as a corporation, will not be owed those obligations, although its members may.
[7] In response to a request by the defendants for further particulars concerning the identity of the Society's members, it was explained by the plaintiffs that that information was not relevant to the present litigation, because the Society was not suing in a representative capacity. It was stated that the Society had public interest standing.
[8] The requirements for public interest standing are set out in Canadian Council of Churches v. Canada (M.E.I.), [1992] 1 S.C.R. 236. In that case, Mr. Justice Cory identified three criteria: (1) the action raises a serious legal question; (2) the person seeking to commence the litigation has a genuine legal interest in the resolution of the question; (3) the public interest litigant is allowed to litigate because there is no other reasonable and effective manner in which the question may be brought to Court. There is no doubt that the first two requirements are met insofar as the Society is concerned. The third element, however, does not apply in the present situation. An action by private litigants, Ambrose and Mervin Maurice, is in existence.
[9] The concept of public interest standing originated with cases such as Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138, Nova Scotia (Board of Censors) v. McNeil, [1976] 2 S.C.R. 265, Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575 and was further explained in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 and the Canadian Council of Churches decision supra. It originated to allow individuals to sue to prevent illegal government action, or the operation of invalid legislation, even though the litigants could not demonstrate that they had a private right that was being interfered with, or that they were suffering damage peculiar to themselves, different from that of the public generally.
[10] Counsel for the plaintiffs argues that such standing can now also exist where a private litigant has already commenced an action. He refers to the decision by Associate Chief Justice Jerome in Benoit v. Canada (1994), 81 F.T.R. 100, where it is stated that in such cases, instead of asking whether there could be litigation started by a private litigant, the Court asks whether the person's "participation as a co-plaintiff would be of assistance to the Court in making its final determination on a matter already before it."
[11] Counsel for the plaintiffs argues that the test set out in Benoit is met in this case because the Society can be expected to play at least two supporting roles: (1) as a back up plaintiff, to guard against the litigation coming to naught as a result of the death, injury or some other contingency that would prevent Ambrose and Mervin Maurice from continuing the litigation; (2) to ensure that all arguments and points of view considered by affected Society members to be relevant to the issues in question will be advanced. Counsel for the plaintiffs also pointed out that it would be a benefit to the administration of justice to have the community who will be affected by the decision involved in the litigation.
[12] I am reluctant to rely on the Benoit decision as authority for the proposition that public interest standing has been expanded as claimed. That decision is not entirely clear. The decision, first, refers to the three tests required for public interest standing. Then, the statement quoted by counsel as support for the expanded nature of public interest standing is found. However, Associate Chief Justice Jerome follows that statement by quoting paragraph 1716(2)(b) of the Federal Court Rules. That paragraph refers to the adding of necessary parties to litigation. Associate Chief Justice Jerome, then, decided that the addition of the organizations asking to be added as co-plaintiffs, over the objection of the existing plaintiff, was necessary for the case.
[13] Paragraph 1716(2)(b) corresponds to Rule 104(1)(b) of the existing Rules. Rule 104(1) reads:
104. (1) At any time, the Court may
(a) order that a person who is not a proper or necessary party shall cease to be a party; or
(b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order.
104. (1) La Cour peut, à tout moment, ordonner :
a) qu'une personne constituée erronément comme partie ou une partie dont la présence n'est pas nécessaire au règlement des questions en litige soit mise hors de cause;
b) que soit constituée comme partie à l'instance toute personne qui aurait dû l'être ou dont la présence devant la Cour est nécessaire pour assurer une instruction complète et le règlement des questions en litige dans l'instance; toutefois, nul ne peut être constitué codemandeur sans son consentement, lequel est notifié par écrit ou de telle autre manière que la Cour ordonne.
[14] What constitutes a necessary party to litigation was discussed in Parker v. Stevens, [1998] 4 F.C. 125 (F.C.A.) at page 137. The Court quoted from the decision in Amon v. Raphael Truck & Sons Ltd., [1956] 1 Q.B. 357 at 380:
| The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the construction of a clause in a common form contract many parties would claim to be heard, and if there were power to admit any, there is no principle of discretion by which some could be admitted and others refused. The court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. |
[15] The Society cannot be said to be a necessary party to the present litigation. The Society could move to convert its partipation into that of a representative plaintiff, or it could seek intervenor status. The decision in Liebmann v. Canada (Minsiter of National Defence), [1994] F.C.J. No. 1256, is an example of a situation in which intervenor status was granted, where public interest standing was not.
[16] The defendants' motion will be granted, without prejudice to the Society to seek to become involved in representative capacity, at a later date, particularly, if the present
individual plaintiffs become prevented from continuing the litigation, or to seek intervenor status.
Judge
OTTAWA, ONTARIO
December 10, 1999