PRACTICE |
Pleadings |
Motion to Strike |
Hodgson v. Ermineskin Indian Band No. 942
T-2553-91
Reed J.
13/3/00
10 pp.
Appeal from Prothonotary's decision refusing to strike out certain parts of plaintiffs' statement of claim--Statement of claim seeking declaration plaintiffs have been members of Ermineskin Indian Band No. 942 since November 1937, or since respective birth dates, and that plaintiffs therefore entitled to all benefits received by band members since and in future--Claim alleging joint and several liability on part of Crown and Ermineskin defendants--Appeal dismissed--Prothonotary did not err in considering whether "plain and obvious" Court without jurisdiction to hear claim by individual against Band council--In Roberts v. Canada, [1989] 1 S.C.R. 322, and Paul v. Kingsclear Indian Band (1997), 132 F.T.R. 145 (F.C.T.D.), where Court held to have jurisdiction arising from Federal Court Act, s. 17(4), facts similar to those herein--Not plain and obvious Court without jurisdiction--Not clearly futile for plaintiffs to allege Ermineskin defendants may owe fiduciary obligation to plaintiffs' parents and three of plaintiffs and descendants arising from resolution to add them as band members--Categories of fiduciary, like those of negligence, should not be considered closed: Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335--Federal Court Act, R.S.C., 1985, c. F-7, s. 17(4) (as am. by S.C. 1990, c. 8, s. 3).