Date: 20020610
Docket: A-181-01
Neutral citation: 2002 FCA 249
CORAM: ISAAC J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
SHUBENACADIE INDIAN BAND, On behalf of itself and its members and ALEX MACDONALD, LEON ROBINSON, CHAD ROBINSON, JOHN PAUL, PETER PAUL, VANDORA PAUL, GENEVIEVE JOHNSON, HOLLY MACDONALD, MARK LAWRENCE HOWE, ANDREW ROBINSON, JASON MARR, DOUG MARR, IKE MARR, JOHN MARR, EDWARD PETER-PAUL, BERNARD JOHNSON, CARL SACK, AMY MALONEY, MARIE ROBINSON, GREGORY PAUL, DAVID MACDONALD, DONALD JEANS, FRANK SMITH AND JOHN MARR (No. 2)
Respondents
(Plaintiffs)
and
UNION OF NOVA SCOTIA INDIANS, a body corporate,
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate,
Respondents
(Defendants)
and
ATTORNEY GENERAL OF CANADA, Representing the
Minister of Fisheries and Oceans (Canada)
Appellant
(Defendant)
and
ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY GENERAL
OF NEW BRUNSWICK, LFA DISTRICT 34 LOBSTER
COMMITTEE, ATLANTIC FISHING INDUSTRY ALLIANCE,
NATIVE COUNCIL OF NOVA SCOTIA
Interveners
REASONS FOR JUDGMENT
(Delivered from the Bench at Fredericton, NB, on June 10, 2002)
SEXTON J.A.
[1] In file A-181-01 the Appellants appeal from the Order of Hugessen who dismissed the Motion by the Appellants for an Order striking out the Statement of Claim as failing to disclose a reasonable cause of action. Subsequent to that Order, the Plaintiffs amended their Statement of Claim and the Appellant brought a virtually identical motion to strike the amended Statement of Claim. Hugessen J. also dismissed that appeal. On appeal before us that amended Statement of Claim was attacked as disclosing no cause action. This is appeal A-400-01. The Appellant took the position that his arguments applied equally to both appeals, and these reasons apply equally to both appeals.
[2] The Plaintiffs claim that as Nova Scotia Mi'Kmaqs they are and have always been members of a single aboriginal community that enjoys and has always enjoyed the right to fish unhindered in the waters off the coast of Nova Scotia. They say that those rights were enshrined and confirmed in a series of treaties entered into by the Crown in 1760 and 1761 and that those treaties, although separate, are to be likened in law to a single treaty to which the various Mi'Kmaq communities in Nova Scotia in 1760 and 1761 adhered.
[3] The Appellant argues that the Plaintiffs have failed to plead the necessary material facts to support each essential element required to make out a reasonable cause of action. The Appellants main argument seemed to be that because the Plaintiffs have not pleaded that they had authorization from the Mi'Kmaq Band to exercise fishing rights, that the Statement of Claim is wholly defective. Further, the Appellant argues that the Plaintiffs must specifically plead which treaties they rely upon, the relevant written and oral terms of each treaty, the material facts to make out a sufficient connection to the local community which was a signatory to the specific treaty upon which the Plaintiffs rely, material facts to make out that St. Mary's Bay is within the traditional fishing grounds of the local community which was the signatory to the specific treaty upon which the Plaintiffs rely, and material facts to make out that lobster was traditionally fished by the local community which was a signatory to a treaty upon which the Plaintiffs rely.
[4] We agree with the Motions Judge when he said that:
"This pleading certainly does not lack for broadness and generality. It is very far reaching in its scope and the vagueness of its claims. Those, however, are not fatal defects in a statement of claim so long as the cause of action emerges from a reading
of it."
[5] In essence what the Appellant seeks is particulars, which is what the Motions Judge
suggested. That avenue is still open to the Appellant.
[6] Although the pleading is very broad and encompassed in general terms, these are not such defects as to permit the Statement of Claim to be struck out so long as a cause of action, however tenuous, can be gleaned from a perusal of the Statement of Claim. We agree with the Motions Judge that a party bringing a motion of this sort has a heavy burden and must show that it is beyond doubt that the case cannot possibly succeed at trial. Only if there is no chance of success, or to put it another way, if the action is certain to fail, can the Statement of Claim be struck out. Hunt vs. Carey Canada Inc. (1990) 2 S.C.R. 959.
[7] Both the Appellant and the Plaintiffs rely on the Supreme Court of Canada decisions in R. v. Marshall (D.J.) (1999) 2. S.C.R. 456 (Marshall No. 1) and R. v. Marshall(1999)179 D.L.R. 193 (S.C.C.) (Marshall No. 2) but they interpreted the decisions differently. The Motions Judge found that it was difficult to reconcile the two decisions in some respects. We do not feel that the appropriate time to adjudicate such an issue is on a motion to strike the Statement of Claim.
[8] These appeals will therefore be dismissed with one set of costs.
"Edgar J. Sexton" J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-181-01
STYLE F CAUSE: SHUBENACADIE INDIAN BAND, on behalf of
itself and its members and ALEX MACDONALD,
LEON ROBINSON, CHAD ROBINSON, JOHN
PAUL, PETER PAUL, VANDORA PAUL,
GENEVIEVE JOHNSON, HOLLY MACDONALD,
MARK LAWRENCE HOWE, ANDREW
ROBINSON, JASON MARR, DOUG MARR, IKE
MARR, JOHN MARR, EDWARD PETER-PAUL,
BERNARD JOHNSON, CARL SACK, AMY
MALONEY, MARIE ROBINSON, GREGORY
PAUL, DAVID MACDONALD, DONALD JEANS,
FRANK SMITH AND JOHN MARR (No. 2)
(Respondents), and UNION OF NOVA SCOTIA
INDIANS, a body corporate, CONFEDERACY OF
MAINLAND MI'KMAQ, a body corporate (Respondents);
and ATTORNEY GENERAL OF CANADA, Representing
The Minister of Fisheries and Oceans (Canada), Appellant,
and ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK, LFA
DISTRICT 34 LOBSTER COMMITTEE, ATLANTIC
FISHING INDUSTRY ALLIANCE, NATIVE COUNCIL
OF NOVA SCOTIA, Interveners.
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: June 10, 2002
REASONS FOR JUDGMENT: Sexton, J.A.
DATED: June 10, 2002
APPEARANCES:
Bruce H. Wildsmith FOR SHUBENACADIE BAND ET AL
Eric A. Zscheile FOR CONFEDERACY OF MAINLAND MI'KMAQ
Harry J. Wruck, Q.C. FOR ATTORNEY GENERAL OF CANADA
Douglas E. Brown FOR UNION OF NOVA SCOTIA INDIANS
SOLICITORS OF RECORD:
Bruce H. Wildsmith, Q.C. FOR SHUBENACADIE INDIAN BAND ET AL
Barrister and Solicitor
4172 Cornwall Road
Barss Corner, NS
BOR 1A0
Eric A. Zscheile FOR CONFEDERACY OF MAINLAND MI'KMAQ
57 Martin Crescent
Millbrook First Nation
P. O. Box 1590
Truro, NS
B2N 5V3
Burchell Green Hayman Parrish FOR NATIVE COUNCIL OF NOVA SCOTIA
1800-1801 Hollis Street
Halifax, NS
B3J 2L4
Department of Justice Canada FOR ATTORNEY GENERAL OF CANADA
900-840 Howe Street
Vancouver, BC
V6Z 2X9
McInnes Cooper FOR ATLANTIC FISHING INDUSTRY ALLIANCE
1601 Lower Water Street AND LFA DISTRICT 34 LOBSTER COMMITTEE
Halifax, NS
B3J 2L4