2003 CPCMotionF 8600
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2003 CPCMotionF 8600
View Motion Document Collection - 2003 CarsMotionW 8884
Motion Factum
Subject: Civil Practice and Procedure
Court of Queen's Bench Rules Rule 12, Rule 23, Rules 23.01(1)(c)(ii), 23.02
Date: November 28, 2002
© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved.
Court document related to:
Manitoba Metis Federation Inc. v. Canada (Attorney General), 2003 CarswellMan 62, 29 C.P.C. (5th) 148
Document appears as reproduced from court files, including any omissions or deficiencies arising from the reproduction process.
*****START OF COURT DOCUMENT*****
Court File No. CI 81-01-01010
THE QUEEN'S BENCH Winnipeg Centre
BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, ROY CHARTRAND, RON ERICKSON, CLAIRE
RIDDLE, BILLYJO DE LA RONDE, JACK FLEMING, JACK MCPHERSON, DON ROULETTE, EDGAR
BRUCE JR., FREDA LUNDMARK, MILES ALLARIE, CELIA KLASSEN, ALMA BELHUMEUR, STAN
GUIBOCHE, JEANNE PERRAULT, MARIE BANKS DUCHARME, EARL HENDERSON, SUING ON THEIR
OWN BEHALF AND ON BEHALF OF ALL OTHER DESCENDANTS OF METIS PERSONS ENTITLED TO
LAND AND OTHER RIGHTS UNDER SECTION 31 AND 32 OF THE MANITOBA ACT, 1870, AND CONGRESS
OF ABORIGINAL PEOPLES,
Plaintiffs,
and
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2003 CPCMotionF 8600
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ATTORNEY GENERAL OF CANADA AND ATTORNEY GENERAL OF MANITOBA,
Defendants.
Terry McAuley, Regional Director
Department of Justice Canada, Winnipeg Regional Office
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
R. A. Dewar Q.C.
Paul R. Anderson
Telephone: (204) 943-6740
Fax: (204) 943-3934
MOTIONS BRIEF OF THE DEFENDANT CANADA
Hearing Date: Monday, December 9, 2002 at 10:00 a.m.
Before Oliphant, A.C.J.Q.B.
Terry McAuley, Regional Director
Department of Justice Canada
Winnipeg Regional Office
301 - 310 Broadway
Winnipeg, Manitoba R3C 0S6
R. A. Dewar, Q.C./Paul R. Anderson
Telephone: (204) 943-6740
Fax: (204) 943-3934
Court File No. CI 81-01-01010
THE QUEEN'S BENCH
Winnipeg Centre
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2003 CPCMotionF 8600
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BETWEEN:
MANITOBA METIS FEDERATION INC., YVON DUMONT, ROY CHARTRAND, RON ERICKSON, CLAIRE RIDDLE, BILLYJO DE LA RONDE, JACK FLEMING, JACK MCPHERSON, DON ROULETTE, EDGAR BRUCE JR.,
FREDA LUNDMARK, MILES ALLARIE, CELIA KLASSEN, ALMA BELHUMEUR, STAN GUIBOCHE, JEANNE
PERRAULT, MARIE BANKS DUCHARME, EARL HENDERSON, SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHER DESCENDANTS OF METIS PERSONS ENTITLED TO LAND AND OTHER RIGHTS UNDER
SECTION 31 AND 32 OF THE MANITOBA ACT, 1870, AND CONGRESS OF ABORIGINAL PEOPLES,
Plaintiffs
and
ATTORNEY GENERAL OF CANADA AND ATTORNEY GENERAL
OF MANITOBA
Defendants
MOTIONS BRIEF OF THE DEFENDANT CANADA
INDEX
Page Nos.
PART I
LIST OF DOCUMENTS TO BE RELIED ON
1
PART II
LIST OF AUTHORITIES
2
PART III
POSITION OF THIS DEFENDANT IN REGARDS TO THE MOTIONS OF MMF
AND CAP
3
1) Deletion of Class Action
3
2) Discontinuance
5
3) Addition of Leonard Chartrand
9
Part I LIST OF DOCUMENTS TO BE RELIED ON BY THE MOVING PARTY
1. Affidavit of Paul Anderson, sworn November 28, 2002.
2. The Pleadings in the within action.
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2003 CPCMotionF 8600
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Part II LIST OF AUTHORITIES
TAB
A Court of Queen's Bench Rule 12
B The Class Proceedings Act, S.M. 2002, c. 14
C Western Canadian Shopping Centre Inc. v. Dutton, [2000] S.C.J. No. 63
D Court of Queen's Bench Rule 23
E Silverman v. May, 1979 CarswellOnt 488 (S.C.)
F Sampson v. Kingston, [1981] O.J. No. 681 (H.Ct.)
G Angelopoulos v. Angelopoulos, [1986] O.J. No. 792 (H. Ct.)
H McCarthy v. Board of Governors of Acadia University, (1977), 75 D.L.R. (3d) 304 (N.S.S.C.- App. Div.)
I Smith's Field Manor Development Ltd. v. Campbell, 1996 CarswellNS 398 (C.A.)
J Westwind Holdings Ltd. v. Saskatchewan Government Insurance Office, [1973] S.J. No. 22 (Q.B.)
K Stars & Bars v. Brantonia Enterprises Inc., 1992 CarswellBC 1766 (S.C.)
Part III POSITION OF THIS DEFENDANT IN REGARDS TO THE MOTIONS OF MMF AND CAP
1. There are three areas of relief claimed by the Applicants. They are:(a) A request by MMF for leave to amend its Statement
of Claim by deleting the words "suing on their own behalf and on behalf of all other descendants of Métis persons entitled to
land and other rights under Section 31 and 32 of the Manitoba Act, 1870" from the style of cause and to delete paragraph 4
from the Re Re Amended Statement of Claim, [hereinafter "the Amendment Request"](b) A request by MMF to delete individual Plaintiffs except Yvon Dumont from the action, [hereinafter "the Discontinuance Request"](c) A request by Leonard
Chartrand (presumably with the concurrence of CAP) to be added as a party, [hereinafter "the Adding Request"]
Position of Canada in Regards to the Amendment Request:
2. This case is styled as a class action.
3. Currently class actions are governed by Rule 12 of the Court of Queen's Bench Rules. A copy of Rule 12 in its entirety is
found at Tab A to this brief. The Class Proceeding Act has been passed by the Provincial Legislature but at the date hereof,
remains unproclaimed. (Tab B).
4. The succinct language of Rule 12 has been judicially extended by the Supreme Court of Canada in Western Canadian
Shopping Centre Inc. v. Dutton, [2000] S.C.J. No. 63 (Tab C). Were the case at bar to continue as a class action, Dutton
would require it to proceed under the general supervision of this court:
Absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice
and procedure as to disputes brought before them. (para. 34)
One of the procedural issues which would arise would involve notice of the proceeding to the class.
5. There are strong arguments that could be raised that either this case does not qualify as a class action, or that significant
compartmentalizing of the classes would be necessary before it could proceed. Canada therefore agrees that the continuation
of this action as a class action would require extensive further proceedings akin to the certification proceedings that exist under traditional class action legislation.
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6. A class action is simply a series of individual actions. As said in Dutton at para. 45:
Denial of class status...does not defeat the claim. It merely places the plaintiffs in the position of any litigant who comes
before the court in his or her individual capacity.
Because one of the positions advanced by Canada in the litigation is that the court will need to conduct an examination of
individual choices made by individual ancestors of individual Plaintiffs, Canada does not oppose the deletion of the class
action language requested by MMF.
7. Once a class action has been instituted, can it be discontinued without notice to the class? In the usual case, it is submitted
that notice would not be necessary especially where the discontinuance arises early in the process. Indeed, if a defendant
moved to strike out a class action, it is submitted that the defendant would not need to give notice to anyone but the listed
plaintiffs. Canada takes no position on the issue of notice, but simply raises the fact that the within case has received such
notoriety in the media and the communications of MMF that some individual Metis may have believed that it was not necessary to take their own action. Whether such a view was prevalent is unknown to Canada, and Canada makes no submission in
regards to whether notice is required. However, Canada brings the subject to the attention of the court to ensure that it is addressed.
8. Canada does, however, say that any new proceeding by another party could well be affected by The Limitation of Actions
Act or laches. Although those defences have been pleaded in the subject action, they would have even more strength in response to actions commenced now. Canada simply wishes to bring this potential position to the attention of this court at this
time.
9. In short, Canada supports the request for the amendment by MMF, but brings to the Court's attention some of the considerations involved in its supervisory responsibility over class actions.
The Position of Canada in regards to the Discontinuance Request
10. Canada opposes this request. For several years, Canada has asserted its position that this case is about individual claims
as distinct from the claim of a group. It is for that reason that Canada has telegraphed its desire to receive information from
each individual Plaintiff which would demonstrate to a court that the case against Canada is not well founded. This has been
pleaded in the Statement of Defence at paragraphs 28 and 29.
11. The Affidavit of Paul Anderson demonstrates that Canada has consistently indicated its desire to obtain information concerning individuals in order to defend these claims. Now that discoveries are underway, Canada is met with the position that
the individuals no longer wish to carry on. It is respectfully submitted that in the unique circumstances of this case, that
should not be allowed to occur, at least until after the discovery process. To do so is to allow MMF to circumvent one of the
positions of Canada, namely that at the heart of this case, individual persons of Metis origin received individual benefits under the Manitoba Act and made individual choices in dealing with those benefits.
12. Furthermore, the examination of Yvon Dumont conducted this past November 19th illustrates that there may be significant variation in the relevant historical experience of different Metis persons in the Province concerning their land grants under ss. 31 and 32 of the Manitoba Act. This is apparent from a perusal of the extracts from the transcripts of the examination
of Yvon Dumont marked as Exhibit "M" to the Affidavit of Paul Anderson.
13. The various Plaintiffs made the decision to make available their individual stories to the Court when they became Plaintiffs in this action. To allow them to discontinue at this stage would be to permit an end run around the court process.
14. Absent consent of all parties, Rule 23.01(1)(c)(ii) (Tab D) provides that a plaintiff must obtain leave of the Court in order
to discontinue its action in Queen's Bench after pleadings are closed. The rule gives the Court discretion in granting leave and
further allows the Court to impose terms on the discontinuance.
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15. The jurisprudence in this area emphasises that a court should consider not only whether the plaintiff has a good reason for
discontinuing, but also whether by doing so, the defendant would be deprived of an advantage obtained throughout the proceedings to date.
See:
Silverman v. May, 1979 CarswellOnt 488 (S.C.)—Tab E
Sampson v. Kingston, [1981] O.J. No. 681 (H.Ct.)—Tab F
Angelopoulos v. Angelopoulos, [1986] O.J. No. 792 (H. Ct.)—Tab G
McCarthy v. Board of Governors of Acadia University, (1977), 75 D.L.R. (3d) 304 (N.S.S.C.- App. Div.)—Tab H
Smith's Field Manor Development Ltd. v. Campbell, 1996 CarswellNS 398 (C.A.)—Tab I
Westwind Holdings Ltd. v. Saskatchewan Government Insurance Office, [1973] S.J. No. 22 (Q.B.)—Tab J
Stars & Bars v. Brantonia Enterprises Inc., 1992 CarswellBC 1766 (S.C.)—Tab K
16. In Silverman v. May (Tab E), a numbered company sought to discontinue, leaving the remaining individuals to prosecute
the action in its absence. In light of the need to protect the defendant's right to discovery where the majority of the documents
and information were in the possession of the numbered company, and considering the facts of that case, the Court, per Master Davidson, dismissed the application for leave to discontinue, without prejudice to the plaintiff's ability to bring the application again post-discovery.
17. Similarly, the Court could do so here, or at the very least, defer the issue of the discontinuance until after the examinations for discovery.
18. Furthermore, MMF purports to request that it be allowed to discontinue the action without the authority of some Plaintiffs. In the supporting Affidavits filed herein, it becomes apparent that the following people, at the very least, have not consented to the discontinuance of this action on their behalf and, under such circumstances, a motion by MMF to delete their
names as party Plaintiffs, absent the existence of some authorization such as a general Power of Attorney, ought not to be
permitted. These people are:
(a) Marie Banks Ducharme (deceased)
(b) Earl Henderson
(c) Ron Erickson
(d) Miles Allarie
(e) Roy Chartrand
(f) Jack Fleming
(g) Billy Jo De La Ronde
(h) Edgar Bruce.
19. Discoveries have only just begun and it is the intent of Canada to elicit information concerning the nature of the MMF
and CAP organizations during the course of the discoveries that will enable the Defendants to more fully understand or contest the existence of both organizations in this litigation. Any issue as to standing of MMF and CAP must necessarily await
that time, but Canada simply wishes to make it clear now that the effect of deleting the individual Plaintiffs could have significant effect upon the future course of the litigation.
20. Indeed, the reduction in the number of the individual Plaintiffs may seriously jeopardize the ultimate disposition of the
case on its merits. The existence of a number of individual Plaintiffs leaves the Plaintiffs with a back stop position if the court
ultimately determines that MMF and CAP have no standing to bring this action and if the small number of individuals remaining cannot demonstrate facts linking them to sections 31 and 32 of the Manitoba Act. That of course is a risk that the
Plaintiffs take by proceeding as they now advocate, but it is raised by Canada at this stage to ensure that parties are aware of
the possible consequences of the course sought to be followed. Again, the standing of MMF and CAP is a matter that will be
decided at a subsequent time, at least following discovery and possibly not until trial.
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2003 CPCMotionF 8600
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21. Furthermore, if the Court was prepared to allow some of the Plaintiffs to withdraw, Queen's Bench Rule 23.02 (Tab D)
provides a discretion to the Court to make the discontinuance a defence to any subsequent action by the party seeking to discontinue. At a minimum, no discontinuance should be allowed without ensuring that the discontinuance is a defence to any
subsequent land claim by that party.
Request of Leonard Chartrand (and presumably CAP) to add Chartrand as a Party Plaintiff
22. Canada does not oppose this motion. Canada has maintained that whatever case exists against it, the cause of action is in
the hands of individuals and not corporate bodies such as MMF and CAP. To the extent that Mr. Chartrand appears to have
been put forward by and with the concurrence of CAP (a conclusion drawn from the fact that both use the same counsel), his
presence appears to be a backstop in the event that CAP is ultimately found to lack standing. Therefore Canada does not oppose Mr. Chartrand's request at this time.
23. Canada wishes however to make its position clear that by not opposing the addition of Mr. Chartrand as an individual
Plaintiff:
(a) it does not acknowledge that he has sustained any loss or that he or his ancestors sustained any loss relevant to this litigation. Those matters will be further examined at discovery and Canada reserves its rights to move at some future time for his
extrication from this lawsuit, if on further examination, he cannot establish the appropriate linkage to rights conferred by the
Manitoba Act.
(b) Canada does not waive any rights to any limitation or any other defence, including standing.
Summary:
24. Canada supports the application by MMF to amend.
25. Canada opposes the application by MMF for leave to discontinue the action by individual Plaintiffs except Yvon Dumont.
26. Canada does not oppose the addition of Leonard Chartrand as an individual Plaintiff provided that:
(a) its lack of opposition is not deemed to be an acknowledgement that every individual who claims some kind of deprivation
arising from Sections 31 and 32 of the Manitoba Act will be ultimately entitled to participate in this litigation.
(b) Mr. Chartrand acknowledges that Canada has not waived any rights to defend this action on any basis, including standing
or limitations.
November 28, 2002
ALL OF WHICH IS RESPECTFULLY SUBMITTED
................................... Per: Terry McAuley, Regional DirectorDepartment of Justice Canada
Winnipeg Regional Office
301 - 310 Broadway
Winnipeg, Manitoba R3C 0S6
R. A. Dewar, Q.C./Paul R. Anderson
Telephone: (204) 943-6740
Fax: (204) 943-3934
TO:Thomas R. Berger, Q.C. / Jim Aldridge, Q.C.
Rosenbloom & Aldridge
1300 - 355 Burrard Street
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2003 CPCMotionF 8600
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Vancouver, B.C. V6C 2G8
AND TO:Harley Schachter
Duboff Edwards Haight & Schachter
1900 - 155 Carlton Street
Winnipeg, Manitoba R3C 3H8
AND TO:Professor J. Magnet
Faculty of Law University of Ottawa
57 Louis Pasteur
Ottawa, Ontario K1N 6N5
AND TO:Heather Leonoff, Q.C.
Justice Manitoba
1205 - 405 Broadway Avenue
Winnipeg, Manitoba R3C 3L6
AND TO:Lionel Chartrand
Legal Aid Manitoba
Aboriginal Centre Law Office
490 - 181 Higgins Avenue
Winnipeg, Manitoba R3B 3G1
END OF DOCUMENT
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