T-6260-79
Joe Mathias, on his own behalf and on behalf of
the members of the Squamish Indian Band, and
the Squamish Indian Band, Mary Stump, on her
own behalf and on behalf of the members of the
Alexandria Indian Band, and the Alexandria
Indian Band, Arthur Peters, on his own behalf and
on behalf of the members of the Ohiat Indian
Band, and the Ohiat Indian Band, Murray Alexis,
on his own behalf and on behalf of the members of
the Okanagan Indian Band, and the Okanagan
Indian Band, George Leighton, on his own behalf
and on behalf of the members of the Metlakatla
Indian Band, and the Metlakatla Indian Band,
Donald Sankey, on his own behalf and on behalf of
the members of the Port Simpson Indian Band,
and the Port Simpson Indian Band, Ron Derrick-
son, on his own behalf and on behalf of the mem
bers of the Westbank Indian Band, and the West-
bank Indian Band, Stephen Sampson, Jr., on his
own behalf and on behalf of the members of the
Chemainus Indian Band, and the Chemainus
Indian Band, Richard LeBordais, on his own
behalf an on behalf of the members of the Clinton
Indian Band, and the Clinton Indian Band, Larry
Earl Moore, on his own behalf and on behalf of the
members of the Gitwangak Indian Band, and the
Gitwangak Indian Band, Adam Shewish, on his
own behalf and on behalf of the members of the
Sheshaht Indian Band, and the Sheshaht Indian
Band (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Vancouver, April 14
and 23, 1980.
Practice — Motion to strike pleadings — Application to
strike out certain paragraphs of statement of claim as
immaterial, redundant, tending to prejudice, embarrass or
delay fair trial, and as a further abuse of process — Pleadings
in question allege acknowledgement of obligation by defendant
to obtain plaintiffs' consent to cut-offs (of lands) from Indian
reserves, failure to notify plaintiffs of cut-offs and outline a
chronological sequence of events — Whether pleadings should
be struck out — Motion allowed — Federal Court Rules
408(1), 412(1).(2), 419(1)(b),(d),(f),(2), 474(1)(a),(b).
Motion by the defendant to strike out paragraphs of the
plaintiffs' pleadings as immaterial, redundant, tending to preju
dice, embarrass or delay the fair trial, and as an abuse of
process. The paragraphs allege an acknowledgment by the
defendant of her obligation to obtain plaintiffs' consent to
cut-offs of lands from Indian reserves, failure to notify the
plaintiffs of the cut-offs and they outline a chronology of events
relating to attempts to obtain information, meetings between
the parties, provision of information, unfulfilled promises and
undertakings, etc. The plaintiffs submit that the defendant is
guilty of a breach of fiduciary relationship and a breach of
trust. They further argue that certain federal legislation pur
porting to delete the necessity of securing the plaintiffs' consent
to cut-offs is ultra vires. The issue is whether the paragraphs
should be struck out.
Held, the motion is allowed. The jurisprudence is well estab
lished that if there is any doubt, the paragraphs in the plead-
ings should be left in so that evidence establishing them may be
brought before the Trial Judge. This does not mean that
redundant or immaterial paragraphs outlining the evidence on
which the party seeks to rely should be permitted to remain in
the pleadings, provided always that the party as a result of
striking out part of the proceedings is not prevented thereby
from making full proof of any pertinent facts. Any acknowledg
ment of an obligation to obtain the plaintiffs' consent to
cut-offs by or on behalf of defendant cannot affect plaintiffs'
right of action. It is a matter of law whether or not such
obligation, if it existed, survived the adoption of certain federal
legislation, and if it did not, then any admission on behalf of
defendant would not be binding. If no consent was necessary
which is a question of law, then no notice was necessary. The
allegation that no consent was obtained remains. The pleadings
outlining the chain of events appear to be admissible under the
allegations of the other paragraphs, which the defendant has
not sought to strike out. To that extent they would appear to be
redundant and unnecessary to support the secondary arguments
of breach of fiduciary relationship and breach of trust.
APPLICATION.
COUNSEL:
H. Slade for plaintiffs.
E. Bowie for defendant.
SOLICITORS:
Ratcliff & Company, North Vancouver, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
WALSH J.: Upon motion dated the 2nd day of
April 1980 on behalf of the defendant for an order:
(1) Pursuant to Rules 419(b),(d) and (f) striking out paragraph
22, the words "has provided no notice to the respective Plain
tiffs of the cut-off, alienation or forcible taking of the Plaintiffs'
reserve lands and" in lines 5 to 8 of paragraph 32, and
paragraph 33 of the Further Amended Statement of Claim on
the grounds that they are immaterial and redundant and that
may tend to prejudice, embarrass or delay the fair trial of the
action herein; and
(2) Extending to a date thirty days following the disposition of
this motion the time within which the Defendant may deliver a
Statement of Defence to the Plaintiffs.
REASONS FOR ORDER
This is an important action and one which will
be strongly contested. The further amended state
ment of claim is very lengthy and to a considerable
extent redundant and repetitive. The basic princi
ples governing pleadings may be found in Rules
408-415 of the Rules of this Court. In particular
Rule 408 (1) reads:
Rule 408. (1) Every pleading must contain a precise statement
of the material facts on which the party pleading relies.
and Rule 412 reads:
Rule 412. (1) A party may by his pleading raise any point of
law.
(2) Raising a question of law or an express assertion of a
conclusion of law—such as an assertion of title to property—
shall not be accepted as a substitute for a statement of material
facts on which the conclusion of law is based.
Motions to strike out pleadings, or certain para
graphs of them, such as the present motion are
dealt with in Rule 419, paragraphs (1) and (2) of
which read as follows:
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out, with
or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as
the case may be,
(b) it is immaterial or redundant,
(c) it is scandalous, frivolous or vexatious,
(d) it may prejudice, embarrass or delay the fair trial of the
action,
(e) it constitutes a departure from a previous pleading, or
(j) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment
to be entered accordingly.
(2) No evidence shall be admissible on an application under
paragraph (1)(a).
For the purposes of paragraph (1)(a) the motion
must be decided on the basis of the assumption
that the facts alleged are true, and, on this basis,
whether they give rise to the relief claimed. The
present motion seeking to strike the paragraphs in
question is based on paragraphs (b), (d) and (f) of
paragraph (1). The jurisprudence is well estab
lished that if there is any doubt, the paragraphs in
the pleadings should be left in so that evidence
establishing them may be brought before the Trial
Judge. This does not mean, however, that redun
dant or immaterial paragraphs outlining the evi
dence on which the party seeks to rely should be
permitted to remain in the pleadings, provided
always that the party as a result of striking out
part of the proceedings is not prevented thereby
from making full proof of any pertinent facts. It is
on this basis that the present motion must be
decided.
Unfortunately a very major, although not the
sole cause of action depends on the decision of a
question of law which should appropriately be
submitted to the Court for preliminary determina
tion pursuant to Rule 474, paragraph (1) of which
reads as follows:
Rule 474. (1) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to the
decision of a matter, or
(b) determine any question as to the admissibility of any
evidence (including any document or other exhibit),
and any such determination shall be final and conclusive for the
purposes of the action subject to being varied upon appeal.
Such a determination if in defendant's favour
would greatly shorten the pleadings. As no such
application has yet been made, however, nor has
defendant pleaded to the action, it is necessary to
decide the motion on the basis of plaintiffs' further
amended statement of claim as it stands.
A brief review of the issues is necessary for an
understanding of the matter. It is necessary to go
back to 1912 when a Commission was appointed to
examine the question of the adjustment of the
acreage of certain Indian reserves in British
Columbia. The report of the Royal Commission,
known as the McKenna-McBride Commission was
accepted by the Canadian and British Columbia
governments and it recommended inter alia that
certain lands be cut off from some of the reserves.
The Indians were allegedly reassured by the Com
mission that such cut-offs would require their con
sent. By the terms of a federal statute known as
The British Columbia Indian Lands Settlement
Act, S.C. 1920, c. 51, Canada authorized the
Governor in Council to carry out the terms of the
McKenna-McBride Agreement, as the British
Columbia statute, the Indian Affairs Settlement
Act, S.B.C. 1919, c. 32, had authorized the Lieu-
tenant-Governor in Council of that Province to do.
Section 3 of the federal statute provided,
however,
3. For the purpose of adjusting, readjusting or confirming the
reductions or cutoffs from reserves in accordance with the
recommendations of the Royal Commission, the Governor in
Council may order such reductions or cutoffs to be effected
without surrenders of the same by the Indians, notwithstanding
any provisions of the Indian Act to the contrary, and may carry
on such further negotiations and enter into such further agree
ments with the Government of the Province of British
Columbia as may be found necessary for a full and final
adjustment of the differences between the said Governments.
[Emphasis mine.]
The Indian Act in effect at the time (R.S.C. 1906,
c. 81) provided in sections 47 and following for
surrender of reserve lands, and in particular sec
tion 49 provided that no such release or surrender
should be binding unless approved by the Indians
as set out therein, and section 51 provided that any
portions of reserves surrendered to His Majesty
should be held for the same purpose as heretofore
and managed, leased, or sold, as the Governor in
Council directs.
Defendant argues that on the principle of specif
ic (and later) legislation overriding the provisions
of earlier general legislation, the provisions of The
British Columbia Indian Lands Settlement Act
override the provisions of the Indian Act so that
the consent of the Indians affected by the cut-offs
was not necessary. Plaintiffs argue that section 3
of the statute (supra) is ultra vires under the
provisions of the Act of Union of British Columbia
with Canada, 1871-34-35 Vict., c. 38 (U.K.),
and the Schedule to the Order in Council of May
16, 1871 setting forth the terms of admission,
section 13 of which reads as follows:
13. The charge of the Indians, and the trusteeship and
management of the lands reserved for their use and benefit,
shall be assumed by the Dominion Government, and a policy as
liberal as that hitherto pursued by the British Columbia Gov
ernment shall be continued by the Dominion Government after
the Union.
To carry out such policy, tracts of land of such extent as it
has hitherto been the practice of the British Columbia Govern
ment to appropriate for that purpose, shall from time to time be
conveyed by the Local Government to the Dominion Govern
ment in trust for the use and benefit of the Indians on applica
tion of the Dominion Government; and in case of disagreement
between the two Governments respecting the quantity of such
tracts of land to be so granted, the matter shall be referred for
the decision of the Secretary of State for the Colonies.
Plaintiffs also contend that Order in Council
P.C. 1265 of July 19, 1924 of the federal Crown is
ultra vires so that the reserve lands so cut off
continue to be under the exclusive legislative juris
diction of the Parliament of Canada and should be
held in trust for the benefit of plaintiffs.
Plaintiffs further argue that defendant was and
is a trustee or fiduciary and has a statutory duty
with respect to said reserve lands for the benefit of
plaintiffs (The British North America Act, 1867,
R.S.C. 1970, Appendix II, No. 5, s. 91(24)).
Plaintiffs argue that although the aforemen
tioned The British Columbia Indian Lands Settle
ment Act dispensed with the requirements to
obtain a surrender under the Indian Act it did not
dispose of the requirement under the McKenna-
McBride Agreement to obtain the consent of the
Indians and that the Order in Council giving effect
to it should have followed these undertakings and
first required their consent, and that failure to
obtain it constituted a breach of fiduciary duty
owed to the Indians by defendant, who could not
release herself from this obligation. Furthermore,
plaintiffs contend that the actions of defendant's
representatives in representing to the Indians that
their consent would be obtained or compensation
paid, and then omitting to do this, constitutes an
actionable breach of trust.
It is evident that there is a serious legal issue or
issues to be determined, preferably before trial,
but what must now be decided is whether the
paragraphs of plaintiffs' further amended state
ment of claim are necessary to enable them to
make the proof they wish.
Paragraph 22 reads as follows:
22. Subsequent to the report of the Royal Commission, the
Defendant acknowledged its obligation and its intention to
obtain the consent of the Plaintiffs in cases where lands were to
be cut-off, alienated or otherwise taken pursuant to the recom
mendations of the Royal Commission.
I cannot see that any acknowledgment by or on
behalf of defendant can affect plaintiffs' right of
action. It is a matter of law whether or not such
obligation, if it existed, survived the adoption of
The British Columbia Indian Lands Settlement
Act, and if it did not, then any admission on behalf
of defendant would not be binding. Parliament
cannot be bound by a statement even of a
Minister.
The same reasoning applies to the striking from
paragraph 32 of part of the second sentence
reading:
The Defendant has provided no notice to the respective Plain
tiffs of the cut-off, alienation or forcible taking of the Plaintiffs'
reserve lands.
If no consent was necessary, which is a question
of law, then no notice was necessary. The allega
tion that no consent was obtained, which is an
important part of plaintiffs' case remains.
With respect to paragraph 33 and all of the
subparagraphs thereof, which need not be exam
ined individually, this represents an outline in
chronological order of the many occasions from
1925-1966 when plaintiffs have attempted to
obtain information about the status of the lands in
question, the meetings which have been held be
tween the Indians, British Columbia and federal
authorities, the information which has been pro
vided, promises made and not implemented, pro
posed settlements which never took place, reports
commissioned, and recommendations made, unful
filled undertakings, and so forth. While the narra
tive account presents a most regrettable picture of
the situation and certainly accounts for plaintiffs'
feelings of frustration since much of the problem
seems to have arisen as a result of conflicts be
tween the two governments, and any claims
against the Crown in right of British Columbia
cannot be dealt with in this Court, these allega
tions nevertheless constitute an outline of the evi
dence which plaintiffs propose to present, but
which would appear to me to be admissible under
the general allegations in paragraphs 41 and 42 of
the further amended statement of claim and the
subparagraphs thereof, which defendant has not
sought to strike.
To that extent they would appear to be redun
dant and unnecessary to support the secondary
argument of breach of fiduciary relationship and
breach of trust, making a distinction between two
periods: (a) the period prior to the adoption of The
British Columbia Indian Lands Settlement Act
and Order in Council P.C. 1265 pursuant thereto,
and (b) all the subsequent period of negotiations
without any settlement of plaintiffs' claim or pay
ment of any indemnity to them. In my view, the
allegations of the other paragraphs of the state
ment of claim are ample to permit the introduction
of all the evidence plaintiffs wish to introduce. If
defendant requires particulars to substantiate
these allegations of fault, it may request them, in
which event plaintiffs can then give as particulars
the statements in the subparagraphs of paragraph
33, most of which are however, well known to
defendant. Plaintiffs must clearly be given the
opportunity to submit any relevant evidence.
ORDER
Paragraph 22, the words "has provided no
notice to the respective Plaintiffs of the cut-off,
alienation or forcible taking of the Plaintiffs'
reserve lands and" in paragraph 32, and all of
paragraph 33 and the subparagraphs thereof of
plaintiffs' further amended statement of claim are
struck.
Defendant shall deliver a statement of defence
within 30 days hereof, or such further delay as
may be extended by consent or by the Court.
With costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.