Date: 20010319
Docket: A-649-99
(TRIAL DIVISION DOCKET NO. T-4178-78)
Neutral citation: 2001 FCA 69
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
ROTHSTEIN J.A.
BETWEEN
JEAN MARY PAUL on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule "A" attached hereto
APPELLANTS
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Department of Indian Affairs and Northern Development and the Director of the Veterans Land Act
RESPONDENTS
AND
JOSEPH APSASSIN, Chief of the Blueberry River Indian Band, and JERRY ATTACHIE, Chief of the Doig River Indian Band, on behalf of themselves and all other members of the Doig River Indian Band, the Blueberry River Indian Band and all other present descendants of the Beaver Band of Indians
RESPONDENTS
AND
PUBLIC GUARDIAN AND TRUSTEE OF BRITISH COLUMBIA
INTERVENER
HEARD at Vancouver, British Columbia, on Thursday and Friday, January 18 and19, 2001
JUDGMENT delivered at Ottawa, Ontario, on Monday, March 19, 2001
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: RICHARD C.J.
LÉTOURNEAU J.A.
Date: 20010319
Docket: A-649-99
(TRIAL DIVISION DOCKET NO. T-4178-78)
Neutral citation: 2001 FCA 69
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
ROTHSTEIN J.A.
BETWEEN
JEAN MARY PAUL on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule "A" attached hereto
APPELLANTS
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Department of Indian Affairs and Northern Development and the Director of the Veterans Land Act
RESPONDENTS
AND
JOSEPH APSASSIN, Chief of the Blueberry River Indian Band, and JERRY ATTACHIE, Chief of the Doig River Indian Band, on behalf of themselves and all other members of the Doig River Indian Band, the Blueberry River Indian Band and all other present descendants of the Beaver Band of Indians
RESPONDENTS
AND
PUBLIC GUARDIAN AND TRUSTEE OF BRITISH COLUMBIA
INTERVENER
REASONS FOR JUDGMENT
ROTHSTEIN J.A.
[1] This is an appeal by named present descendants of members of the Beaver Band of Indians from the order of Hugessen of October 1, 1999 dismissing a motion to set aside his March 2, 1998 order.
[2] The substance of the named present descendants' and intervener Public Trustee's position is that the order of March 2, 1998 should be set aside or varied for the following reasons:
1. The order of March 2, 1998 purported to deprive the present descendants of their right to argue that the judgment of the Supreme Court of December 14, 1995 as revised May 23, 1996 in favour of "the appellants" entitled them to share in the proceeds of the judgment. That issue was, when Hugessen J. purported to open the question for determination by his March 2, 1998 order, res judicata. In his April 7, 1999 order, they say Hugessen J. found that even if the Supreme Court's judgment rendered the matter of the present descendants' entitlement res judicata, his March 2, 1998 order re-opened that matter and it was never appealed. The present descendants and Public Trustee say that they were not represented in the proceedings before Hugessen J. leading to the March 2, 1998 order and they have been prejudiced by proceedings of which they did not have notice and in which they did not have the opportunity to make representations.
2. The order of March 2, 1998 only set aside $12 million in trust for the present descendants pending determination of their entitlement. The amount of $12 million was based on evidence that there might be some 39 present descendants. In fact, some 490 present descendants have filed claims. It was premature for Hugessen J. to have determined the amount of the trust fund before providing for potential claimants to file claims.
[3] In this Court's judgment in the appeal from the order of Hugessen J. of April 7, 1999 (Court Files A-229-99, A-230-99, A-231-99, A-232-99, A-239-99, A-240-99, A-241-99, A-254-99, A-285-99, A-286-99, A-287-99), it was determined that the Supreme Court Judgment of December 14, 1995, as revised May 23, 1996, did not have the effect of determining the entitlement of the present descendants. The issue was therefore not res judicata when the matter came before Hugessen J. The question of whether the March 2, 1998 order of Hugessen J. had the effect the present descendants and Public Trustee say he gave to it is moot.
[4] Similarly, as I have determined that the present descendants have no entitlement to any portion of the damage award of $147 million, the adequacy or timing of the amount set aside in the trust fund is also moot. In any event, if the named present descendants were of the opinion that the trust fund of $12 million was insufficient, their course of action should have been to move in the Trial Division to increase the amount of the fund with supporting affidavit evidence justifying the motion. They took no such steps. To try to obtain such relief on an appeal from a judgment dismissing a motion to set aside the March 2, 1998 order is inappropriate, especially since the respondents Mr. Apsassin and Mr. Attachie have had no opportunity to file evidence in opposition.
[5] The named present descendants argue that in obtaining the March 2, 1998 order, there was equitable fraud on the part of counsel for the appellants appearing before Hugessen J. in raising the disentitlement of present descendants who, up to that time, that counsel had represented. They make this argument to try to bring themselves under rule 399(2) which provides for an order to be set aside or varied if it was obtained by fraud. These issues are fully dealt with in the reasons on the appeal of Hugessen J.'s April 7, 1999 order. Suffice it to say here, that when the issue of the entitlement of the present descendants came to light, counsel brought it to the attention of the Court and no steps were taken thereafter that would prejudice the rights of any of the present descendants. The present descendants were represented on the preliminary question determining their entitlement before Hugessen J. and on appeal before this Court. The argument based on equitable fraud is groundless.
[6] The Public Trustee argued that the proceedings before Hugessen J. were inadequate because account was not taken of the fact that many of the present descendants were infants and persons under disability. On the contrary, the record demonstrates that the Court took several significant steps to recognize and safeguard their interests. In his March 2, 1998 order, allowing the present descendants to make claims regarding their entitlement to the proceeds of the judgment, Hugessen, J provided for wide public notice and opportunity for anyone who considered themselves a present descendant to come forward. As a result of this notice, claims were filed on behalf of 490 people, of which a large proportion were infant children represented by guardians ad litem. In addition, the Court regularly granted extensions of time for infants who had missed the deadlines for filing their claims. It is difficult to conceive of what more the Court could have done. Finally, the issue of the entitlement of the present descendants was common to all the present descendants, whether or not they were infants or persons under disabilities. The arguments on behalf of the present descendants, including infants and others under a disability, were fully made before Hugessen J. and before this Court.
[7] I would dismiss the appeal with costs. I would make no award of costs for or against Her Majesty the Queen in Right of Canada or the Public Guardian and Trustee of British Columbia.
"Marshall Rothstein"
J.A.
"I agree
J. Richard C.J."
"I agree
Gilles Létourneau J.A."