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THEODORE HODGSON, HARLEY HODGSON, DENNIS |
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HODGSON, LARRY HODGSON, AMY PUGH, PEGGY LUNDIE, |
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ALMA DUWAR and CAROL LEEB |
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ERMINESKIN INDIAN BAND # 942 and THE |
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ERMINESKIN BAND COUNCIL and HER MAJESTY |
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THE QUEEN AS REPRESENTED BY |
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THE MINISTER OF INDIAN AND INUIT AFFAIRS |
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This motion by the plaintiffs to file and serve an Amended Statement of Claim came on for hearing on January 9, 1997, at Edmonton, Alberta. At the close of argument, I took the matter under reserve and indicated that these written reasons would follow. |
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The plaintiffs' action revolves around their membership in the Ermineskin Indian Band No. 942 and their entitlement to the benefits which flow from such membership. The plaintiffs allege that the defendants have breached the fiduciary duty which they owe to each of the plaintiffs. |
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The plaintiffs submit that the proposed amendments to the Statement of Claim do not set out one or more new causes of action, but simply provide further particulars in support of the existing pleadings. The plaintiffs submit, in the alternative, that even if the amendments to the Statement of Claim do create one or more new causes of action, the facts supporting the amendments have always been known to all of the defendants. The plaintiffs state that, in substance, the proposed amendments deal with additional facts surrounding the circumstances as to how the plaintiffs achieved status as Indians and the responses of the Minister of Indian and Inuit Affairs and those of the Chief and Council of Ermineskin Indian Band No. 942. |
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The defendants, Ermineskin Indian Band No. 942 and the Ermineskin Band Council, submit that the proposed amendments to the Statement of Claim are inappropriate and should not be granted. The defendants state that the proposed amendments seek judicial review of a decision of the Ermineskin Band Council and that such declaratory relief cannot be requested in the context of amendments to a Statement of Claim. The defendants further state that the amendments are inappropriate because, contrary to Rule 427 of the Federal Court Rules, they disclose a new cause of action which does not arise out of the same facts, or substantially the same facts, as the original cause of action and which is outside the relevant limitation period. The defendants also submit that the amendments have not been sought in a timely fashion and that they would be prejudiced by them. |
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Rules 420 and 427 of the Federal Court Rules are relevant to this motion. They state in part: |
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420. (1) The Court may, on such terms, if any, as seem just, at any stage of an action, allow a party to amend his pleadings, and all such amendments shall be made as may be necessary for the purpose of determining the real question or questions in controversy between the parties. |
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427. An amendment may be allowed under Rule 424 notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment. |
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The proposed amendments to the Statement of Claim are as follows: |
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12. Further, or in the alternative, on December 17, 1985, the Plaintiff Theodore Hodgson and on December 18, 1985, the remaining Plaintiffs applied, pursuant to Section 6(1) and (2) of the Indian Act, for registration as status Indians. |
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13. All of the Plaintiffs [sic] applications were approved by the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, and their respective names were added to the band list, maintained by the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, for Ermineskin Indian Band No. 942. |
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14. Pursuant to Section 10(7)(b) of the Indian Act, the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, provided a band list to the Defendants, Ermineskin Indian Band #942 and the Ermineskin Band Council on or about March 19, 1987. All of the Plaintiffs [sic] names were entered on the band list provided by the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, to the Defendants, Ermineskin Indian Band No. 942 and the Ermineskin Band Council. |
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15. The Defendants, Ermineskin Indian Band No. 942 and the Ermineskin Band Council have never protested, pursuant to the Indian Act, the addition of any or all of the Plaintiff's [sic] names to the Ermineskin band [list] maintained by the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs. |
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16. Despite the fact that all of the Plaintiffs [sic] names were entered as members of the Ermineskin Indian Band No. 942 on the band membership list provided to the Ermineskin Indian Band No. 942 by Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, the Defendant, Ermineskin Band No. 942 has refused and continues to refuse to acknowledge the membership of all of the Plaintiffs in Ermineskin Indian Band No. 942. |
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19. Each and all of the Defendant's [sic] herein have [a] fiduciary duty to each and all of the Plaintiffs herein and that this fiduciary duty has been breached by each and all of the Defendants herein, some particulars of which are as follows: |
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(c) failing to ensure that the membership rules passed and adopted by the Defendant, Ermineskin Indian Band No. 942, complied with the requirements of Section 10(1) of the Indian Act. |
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WHEREFORE THE PLAINTIFFS CLAIM: |
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(d) In the alternative, a declaration that the Plaintiffs are entitled to be members of the Ermineskin Indian Band No. 942, from the date they respectively applied for registration as status Indians or, in the alternative, from the effective date that the Defendant, Ermineskin Indian Band No. 942 assumed control of band membership pursuant to the provisions of the Indian Act. |
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In Francoeur v. Canada, [1992] 2 F.C. 333 at 337-338 (C.A.) the Court of Appeal stated: |
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It is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment. However, the general rule is that an amendment should be allowed 'for the purpose of determining the real questions in controversy between the parties' provided that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs. |
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Thus, as a general rule, the Court will allow amendments on such terms as are just and necessary to determine the real issue in controversy between the parties. |
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In my opinion, the amendments proposed by the plaintiffs are appropriate. I am satisfied that the proposed amendments clarify the issue to be tried and that their inclusion will not cause injustice to the defendants which cannot be compensated by an award of costs. The plaintiffs' assertion that none of the facts contained in the proposed amendments are unknown to the defendants was not contested by the defendants. The substance of the plaintiffs' claim remains unchanged by the proposed amendments. That is, the issue before the Court is the plaintiffs' membership in the Ermineskin Indian Band No. 942, whether there has been a breach of a fiduciary duty, and whether the plaintiffs are entitled to an award of damages. As such, I do not find that the amendments create a new cause of action. |
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For these reasons, the plaintiffs' motion to file an Amended Statement of Claim is allowed. As I indicated at the hearing, once the parties have had an opportunity to examine these reasons, I am available to convene a conference call to ensure expeditious progress in the action and to discuss the appropriate form of the Order which follows from these reasons. |
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March 18, 1997 ________________________________ |
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FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2553-91
STYLE OF CAUSE: THEODORE HODGSON ET AL v. ERMINESKIN INDIAN BAND # 942 ET AL
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: JANUARY 9, 1997
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE JEROME
DATED: MARCH 18, 1997
APPEARANCES
RONALD JOHNSON
FOR THE PLAINTIFFS
SARAH PIKE
FOR DEFENDANTS,
ERMINESKIN BAND COUNCIL
# 942 AND THE ERMINESKIN
BAND COUNCIL
MARY KING
FOR DEFENDANT,
HER MAJESTY THE QUEEN
SOLICITORS OF RECORD:
RODDICK PECK & JOHNSON FOR PLAINTIFFS EDMONTON, ALBERTA
DAVIS & COMPANY FOR DEFENDANTS, VANCOUVER, BRITISH COLUMBIA ERMINESKIN BAND COUNCIL # 942 AND THE ERMINESKIN BAND COUNCIL
GEORGE THOMSON FOR DEFENDANT,
DEPUTY ATTORNEY GENERAL HER MAJESTY THE QUEEN OF CANADA