T-1244-92
BETWEEN:
PERCY RICHARD WARD and BERT WARD
Plaintiffs
- and -
SAMSON CREE NATION NO. 444 and CHIEF AND COUNCIL
OF SAMSON CREE NATION NO. 444 and
HER MAJESTY THE QUEEN AS REPRESENTED BY
THE MINISTER OF INDIAN AND INUIT AFFAIRS
Defendants
REASONS FOR ORDER
JEROME A.C.J.:
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.
BACKGROUND
The plaintiffs' action revolves around their membership in the Samson Cree Nation No. 444 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.
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 Samson Cree Nation No. 444.
The defendants, Samson Cree Nation No. 444 and the Chief and Council of Samson Cree Nation No. 444, 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 Samson Cree 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.
ANALYSIS
Rules 420 and 427 of the Federal Court Rules are relevant to this motion. They state in part:
| 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. |
| 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. |
The proposed amendments to the Statement of Claim are as follows:
| 1. The Plaintiffs have registered status as Indians and reside in the Province of Alberta. |
| . . . |
| 12. Further, or in the alternative, on July 29, 1985, the Plaintiff Percy Ward and on June 23, 1986, the Plaintiff, Bert Ward, applied, pursuant to Section 6(1) and (2) of the Indian Act, for registration as status Indians. |
| 13. On April 29, 1986 in respect to Percy Ward, and on August 25, 1987, in respect to Bert, the defendant Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs informed each respective Plaintiff that their applications were approved and that their respective names were added to the Indian Register. On the same dates they were also informed that they were registered as members of Samson Cree Nation No. 444 in accordance with Section 11(2)(b) of the Indian Act. |
| 14. The Defendants, Samson Cree Nation No. 444 and Chief and Council of Samson Cree Nation No. 444, did on or about June 23, 1987, give notice to the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, that pursuant to Section 10(6) of the Indian Act, that Samson Cree Nation No. 444 wish to assume control of Band Membership, however, the Defendant, Her Majesty the Queen as Represented by the Minister of Indian and Inuit Affairs, did not and has not given notice to the Defendants, Samson Cree Nation No. 444 and Chief and Council of Samson Cree Nation No. 444 that control of the membership had been transferred to the Band as required by Section 10(7) of the Indian Act. |
| 15. The Defendants, Samson Cree Nation No. 444 and Chief and Council of Samson Cree Nation No. 444 have not protested, pursuant to the Indian Act the addition of the Plaintiff's [sic] names to the Samson Cree Nation membership list. |
| 16. Despite their names being properly added to the membership list of the Samson Cree Nation No. 444, the Defendants, Samson Cree Nation No. 444 and Chief and Council of Samson Cree Nation No. 444 have refused and continue to refuse to acknowledge that the Plaintiffs have been and are members of Samson Cree Nation No. 444, from at least July 28, 1987. |
| . . . |
| WHEREFORE THE PLAINTIFFS CLAIM: |
| ... |
| (c) In the alternative, a declaration that the Plaintiffs have been members of Samson Cree Nation No. 444 since July 28, 1987, and continue to be members of Samson Cree Nation No. 444. |
In Francoeur v. Canada, [1992] 2 F.C. 333 at 337-338 (C.A.) the Court of Appeal stated:
| 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. |
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.
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 Samson Cree Nation No. 444, 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.
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.
O T T A W A
March 18, 1997 _______________________________
A.C.J.