Date: 20050121
Docket: T-2020-02
Citation: 2005 FC 99
BETWEEN:
LAURA MORRIS
Plaintiff
- and -
MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT, ROY AMOS DELORMIER,
CHARLES DELORMIER AND
MOHAWK COUNCIL OF AKWESASNE
Defendants
REASONS FOR ORDER
(Delivered from the Bench in Ottawa, Ontario
on January 20, 2005)
HUGESSEN J.
[1] This is a motion brought by the plaintiff seeking to amend her statement of claim. The original statement of claim was filed a little over two years ago in December 2002. It sought only a declaration that the plaintiff was lawfully in possession of a certain piece of property located on the Akwesasne Indian Reserve.
[2] Named as defendants in that action were the Minister of Indian Affairs and Northern Development, the Mohawk Council of Akwesasne and the plaintiff's brother Roy Amos Delormier.
[3] No conclusions were sought against either the Minister or the Mohawk Council and it is not entirely clear to me why they were named. It is quite clear why the plaintiff's brother was named because he has an opposing claim to the same property and indeed has a judgment for possession of the property from the Superior Court of Ontario.
[4] The action proceeded very slowly and was, in due course, placed under Status Review and as a result of a decision of a judge of this Court, was placed under case management.
[5] I was appointed case manager and at the request of the parties conducted a dispute resolution conference in the month of April of last year, and at that conference and at a later case management conference in June of last year, there was a general agreement in principle reached amongst all counsel, plaintiff being then represented by a different counsel than her present solicitor.
[6] There was a general agreement that the action as framed suffered from several serious procedural and substantive informalities and difficulties and, there was general agreement, again I use the word general, that a way of solving it would be to amend the action so as to turn it into an interpleader in which the plaintiff and her brother would both contest and set out their claims to the possession of the land which of course is not owned by either of them.
[7] I say the agreement was general because it was never reduced to writing and I do not think that it is in a form which could ever be executory as it stands. It is, however, an agreement in principle and an important part of the background to this motion.
[8] Shortly after that June meeting the plaintiff changed her lawyer and the present motion now seeks not merely to amend the statement of claim but to replace it in its entirety. It does not seek interpleader. I will append to the written version of these reasons, as Appendix A, the new proposed statement of claim.
[9] It is absolutely breathtaking in its scope. It asserts that the defendants, the Minister and the Mohawk Council of Akwesasne, have acted in breach of the plaintiff's Aboriginal and Treaty rights, that the Minister has usurped the Mohawk traditional land system. It asserts negligence, breach of a fiduciary duty and a good many other things. It also asserts I suspect to the great surprise of both those defendants that the Mohawk Council of Akwesasne acted as servants and agents of Her Majesty. It also makes very substantial claims for various kinds of damages.
[10] I am going to refuse the amendments sought primarily because it is in clear breach of Rule 201. The right to seek an amendment under Rule 75 is, in the case of an amended statement of claim, subject to the limitations imposed upon it by Rule 201, and in my view, the new causes of action being pleaded by the plaintiff do not flow from substantially the facts that were alleged in the original statement of claim. That is my primary reason.
[11] There is a secondary reason which is just as important and is just as compelling namely, that in my view, if permitted, these amendments would cause prejudice to all of the defendants which cannot possibly be compensated by an award of costs. They will certainly lengthen and complicate the action to a degree wholly unforeseen at the time the original action was brought but just by way of example of a particular prejudice I would mention the plaintiff's brother, Roy Amos Delormier, who is, as I say, the only person who really, apart from the plaintiff, claims to have an interest in this land.
[12] It is at bottom a dispute between brother and sister over the family home but the plaintiff's brother, who obtained some considerable time ago, a judgment from the Ontario Superior Court for possession of the property, agreed as a result of the dispute resolution conference and the case management conferences that were held in this Court to withhold executing on that judgment, pending the conversion, by the plaintiff, of the present action into an interpleader. She has now chosen not to do so, that is her choice, so the action remains as it is. It still has, as was pointed out to plaintiff at the time of the original dispute resolution conference and case management conferences, substantive, formal and procedural difficulties before it, but that is the plaintiff's problem.
[13] In the result the motion to amend will be dismissed.
[14] I propose to make an order for costs but I would like first to hear counsel on the matter.
(later)
[15] I have had considerable difficulty in setting a proper award of costs. The circumstances which I have already recounted of the agreement in principle reached at the dispute resolution conference and case management conferences, and of the plaintiff's subsequent resiling from that agreement, are such that would, in my view, justify an award of solicitor and client costs against her.
[16] However, I am very conscious of the fact that as I said, this dispute is at bottom a fight between brother and sister for the possession of the family home and on such evidence as is available to me, the property as to which they are disputing only has a value of somewhere in the range of $10,000.00 perhaps $20,000.00.
[17] The solicitor and client costs on this motion which has taken all day and which has used up considerable amount of paper in written submissions would easily exceed that amount. I am also conscious of the fact that the plaintiff is likely of limited means and that if an Order for costs goes unpaid, she is likely to be required to post security for costs and to be unable to proceed with her action if she is not in a position to do that.
[18] Taking those matters into consideration and conscious that the costs Order that I am going to make is not full indemnification for any of the defendants, I am going to order that the plaintiff pay costs to each defendant in the amount of $4,000.00, those amounts to be payable forthwith and in any event of the cause.
"James K. Hugessen"
Judge
Ottawa, Ontario
January 21, 2005
APPENDIX A
AMENDED STATEMENT OF CLAIM
Amended further to Rule 75 of the Federal Court Rules
CLAIM
1. The plaintiff claims for:
i. An order quashing and setting aside any allotment of the subject property by the Mohawk Council of Akwesasne ("MCA"), including but not limited to any allotment issued in favour of any of the Defendants including Roy Amos Delormier;
ii. An order quashing and setting aside any approval by the Minister of any allotment of the subject property including but not limited to any allotment approval in favour of any of the Defendants;
iii. An order quashing and setting aside any Certificates of Possession ("CP") granted for the subject property including but not limited to any CP granted in favour of Roy Amos Delormier;
iv. An order compelling the MCA to allot to the Plaintiff the subject property in accordance with section 20(1) of the Indian Act, R.S.C. 1985, c. I-5 ("Indian Act");
v. An order compelling the Minister (as defined by the Indian Act) to approve the allotment of the subject property to the Plaintiff; and
vi. An order compelling the Minister to issue a CP in favour of the Plaintiff for the subject property;
vii. General damages for loss of use and possession in the amount of $100,000;
viii. General damages for mental distress and anguish in the amount of $100,000;
ix. Pre-judgment and post-judgment interest;
x. Costs of this action on a substantial indemnity basis; and
xi. Such further and other relief as this Honourable Court deems just.
IN THE ALTERNATIVE:
2. The plaintiff claims for the following against the Defendants, the MCA, the Ministry of Indian Affairs and Northern Development, and the Attorney General of Canada:
i. General damages in the amount of $250,000 for breach of trust, negligence, breach of Aboriginal and Treaty rights, breach of fiduciary duties, and breach of statutory duties;
ii. Special damages in the amount of $100,000;
iii. Punitive and exemplary damages in the amount of $50,000;
iv. Pre-judgment and post-judgment interest;
v. Costs of this action on a substantial indemnity basis; and
vi. Such further and other relief as this Honourable Court deems just.
THE PARTIES
3. The Plaintiff is a Band Member of the MCA within the meaning of the Indian Act and is an aboriginal within the meaning of the Constitution Act, 1982.
4. The MCA is a Band within the meaning of the Indian Act and at all material times was jointly and severally responsible with the Defendant Canada for the administration of the Land Registry System established and set out by way of section 20 of the Indian Act.
5. The Plaintiff pleads that at all material times that the employees, servants and/or agents of the MCA were the employees, servants and/or agents of the Defendants, The Attorney General of Canada and the Ministry of Indian
Affairs and Northern Development.
6. The Defendants Roy Amos Delormier and Charles Delormier are Band Members of the Defendant, MCA.
7. The Defendant, The Attorney General of Canada represents Her Majesty the Queen in right of Canada ("Canada"), pursuant to section 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended. Canada has, inter alia, the following authority and owes the following obligations with respect to the Indians and aboriginal peoples of Canada:
(a) legislative authority in Canada by and with the advice of Parliament of Canada, with respect to Indians and lands reserved for the Indians, pursuant to section 91(24) of the Constitution Act, 1867; and
(b) Canada is the successor in Canada and is subject to all the obligations, duties and liabilities which His Majesty the King or Her Majesty the Queen had or owed to the Plaintiff.
8. The Defendant the Ministry of Indian Affairs and Northern Development was at all times responsible for the administration of the MCA Reserve under the authority of the Indian Act.
9. The Defendants, The Attorney General of Canada and the Ministry of Indian Affairs and Northern Development are hereinafter referred to collectively as "Canada" except where otherwise required.
THE SUBJECT PROPERTY
10. The subject property is described as Parcel B, Lot 162-5, Cornwall Island, St. Regis Akwesasne Indian Reserve No. 5-9. The property is located on the Mohawks of Akwesasne Indian Reserve and is located on the traditional territory of the Plaintiff. The subject property is administered further to the provisions of the Indian Act and in particular section 20.
THE COURSE OF EVENTS
11. In or about 1977, Ernest Benedict, a Band member of MCA was in lawful possession of the subject property.
12. In or about 19777, Ernest Benedict transferred the subject property to the Plaintiff for the use of the Plaintiff and her mother, Minnie Delormier. The Plaintiff pleads that at this time the Plaintiff obtained a legal and equitable interest in the subject property.
13. On or about July 25, 1977 the Plaintiff entered into an agreement with the MCA whereby the Plaintiff borrowed $10,000 from MCA and provided the MCA with a quitclaim to the property which was to be held in trust by the MCA in favour of the Plaintiff pending the settlement of the loan whereby the subject property would be returned to the Plaintiff.
14. On or about October 22, 1980, the transfer of the subject property from Ernest Benedict to the Plaintiff was formalized by way of a Transfer of Land Agreement which was witnessed by Terry Phillips an employee of MCA who was at the time the Head of the Land Department of the MCA.
15. In 1996 Minnie Delormier died. Up to the date of the death of Minnie Delormier the Plaintiff had paid approximately 90 per cent of the loan of $10,000 obtained from the MCA. The plaintiff pleads and relies upon the principle of constructive trust which sets out an equitable entitlement to the subject property and damages in lieu of occupation and possession.
16. On or about April of 1997 the MCA wrongfully and without colour of right applied the proceeds of Minnie Delormier's life insurance to the balance of the loan then outstanding in contravention of the provisions of the Indian Act, the Last Will and Testament of Minnie Delormier, and the Loan Agreement entered into between the Plaintiff and the MCA.
17. On October 20, 1997, MCA wrongfully allotted the subject property to Charles Delormier.
18. On a date unknown to the Plaintiff, Canada approved the allotment to Charles Delormier.
19. On April 14, 1998, the allotment to Charles Delormier was revoked by the MCA. On a date unknown to the Plaintiff, Canada was advised that the allotment in favour of Charles Delormier had been revoked.
THE DEFENDANT CANADA
20. At some point unknown to the Plaintiff but which will be identified prior to trial of this action, the defendant Canada, contrary to domestic and international law occupied the traditional territory of the Plaintiff and attempted to overthrow the traditional government of the Plaintiff by force.
21. As part of the attempted overthrow of the traditional government of the Plaintiff, Canada enforced the operation of the Indian Act on the traditional territory of the Plaintiff despite objection and resistance.
22. Canada has continued to maintain the application of the Indian Act and its provisions dealing with 'Possession of Lands in Reserves' despite the glaring problems in the system which difficulties and problems have been most recently identified in the Royal Commission on Aboriginal Peoples.
23. The Plaintiff pleads that the defendant Canada has been negligent, in breach of statutory duties, in breach of fiduciary duties and in breach of the Aboriginal and Treaty rights of the Plaintiff insofar as it has insisted on the operation of a flawed registry system and has taken no steps to correct the deficits in the system despite knowledge of the deficits and problems.
24. The Plaintiff pleads that the acts and omissions of the defendant, Canada in failing to correct the problems with the registry system set out by the Indian Act have directly resulted in loss to the Plaintiff insofar as she has been denied use, occupation and possession of the subject property and has suffered mental distress and anguish which would not have occurred had Canada taken the reasonable steps of establishing a properly conceived and administered registry system.
25. The Plaintiff pleads that Canada is negligent, in breach of statutory obligations, in breach of trust, in breach of Aboriginal and Treaty rights, and in breach of fiduciary duties with respect to the administration of 'Indian Reserve Land' in that the protections, assurances and safeguards that have been incorporated into land transfer regimes occurring in the 'normal' course off-reserve have not been implemented on-reserve and that the failure to take reasonable steps to implement such systems have caused the Plaintiff loss and damages including the loss of use and occupation of the subject property.
26. The Plaintiff pleads that Canada, while requiring the operation of the system imposed by the Indian Act, has failed to provide adequate funding for its proper operation, has failed to provide adequate training for its proper operation, and has failed to provide adequate resources for its proper operation all of which constitute negligence, a breach of trust, a breach of fiduciary duty, a breach of Aboriginal and Treaty rights, and a breach of statutory obligations all of which have caused damage to the Plaintiff.
27. The Plaintiff pleads further that Canada failed and continues to fail to act in accordance with the obligations imposed on it by the operation of section 20 of the Indian Act in that Canada breached fiduciary obligations owed to the plaintiff, breached a trust owed to the plaintiff, was negligent and breached statutory obligations to the Plaintiff by failing to take such steps as in all of the circumstances were reasonable to ensure that possession and occupation of the subject property at all material times was lawful and in accordance with the provisions of section 20 of the Indian Act.
28. The Plaintiff pleads and relies upon the legal doctrine of constructive trust insofar as the Plaintiff provided payment for the subject property and has established at a minimum an equitable interest in the property.
THE DEFENDANT MCA
29. The Plaintiff pleads that the MCA has failed and continues to fail to act in accordance with the obligations imposed on it by the operation of section 20 of the Indian Act in that the MCA has breached fiduciary obligations owed to the plaintiff, breached a trust owed to the plaintiff, was negligent and breached statutory obligations to the Plaintiff by failing to take such steps as in all of the circumstances were reasonable and by failing to exercise its discretion as in all of the circumstances was reasonable to ensure that possession and occupation of the subject property was lawful and in accordance with the provisions of section 20 of the Indian Act and the loan agreement between the Plaintiff and MCA.
30. The plaintiff pleads that the defendants knew or ought to have known of the Plaintiff's interest in the subject property.
31. The Plaintiff pleads and relies upon the legal principle of nemo dat qui non habet with respect to any alleged transfer of the subject property from Minnie Delormier to any other individual.
32. The Plaintiff pleads and relies upon the legal doctrine of unjust enrichment insofar as the Defendants, Roy Amos Delormier and Charles Delormier have obtained a financial benefit from the investment of the Plaintiff in the subject property.
33. The Plaintiff pleads that she did not become aware of the Defendants' breach of trust, negligence, breach of statutory obligation, breach of Aboriginal and Treaty rights and breach of fiduciary duty until 2000.
34. The Plaintiff pleads and relies upon the Constitution Act, 1982, the Crown Liability and Proceeding Act, R.S.C. 1985, c. C-50 and the Indian Act R.S.C. 1985, c. I-5, as amended.
The Plaintiff proposes that this action be tried at Ottawa.
October 29, 2004
__________________________
AARON DETLOR
Barrister & Solicitor
16 Rathnelly Avenue
Toronto, ON M4V 2M3
TEL: 416 961-5132
FAX: 416 961-7718
LSUC#: 40420W
adetlor@sympatico.ca
Solicitor for the Plaintiff
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2020-02
STYLE OF CAUSE: LAURA MORRIS V. THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT et al.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 20, 2005
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: JANUARY 21, 2005
APPEARANCES:
MR. AARON DETLOR FOR THE PLAINTIFF
MR. RONALD McCLELLAND FOR THE DEFENDANT
ROY AMOS DELORMIER
MR. JOHN MELIA FOR THE DEFENDANT
MR. MARTIN THOMPSON MOHAWK COUNCIL OF
AKWESASNE
MR. JEFF ANDERSON FOR THE DEFENDANT,
MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
SOLICITORS OF RECORD:
AARON DETLOR
TORONTO, ONTARIO FOR THE PLAINTIFF
RONALD McCLELLAND FOR THE DEFENDANT
CORNWALL, ONTARIO ROY AMOS DELORMIER
JOHN MELIA FOR THE DEFENDANT
LANG MITCHENER MOHAWK COUNCIL OF
OTTAWA, ONTARIO AKWESASNE
JOHN H. SIMS, Q.C. FOR THE DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA MINISTER OF INDIAN AFFAIRS
OTTAWA, ONTARIO AND NORTHERN
DEVELOPMENT