Date: 20040610
Docket: T-3007-93
Citation: 2004 FC 842
BETWEEN:
CHIEF ABEL BOSUM, Chief of the Oujé-Bougoumou
Cree Nation, acting on his own behalf and on behalf
of all the other members of the Oujé-Bougoumou
Cree Nation, of Oujé-Bougoumou, Québec
- and -
SAM BOSUM, KENNY MIANSCUM, LISA ST-PIERRE,
LOUISE NEEPOSH, FREDDY BOSUM and BELLA MIANSCUM,
Councillors of the Oujé-Bougoumou Cree Nation, all of
Oujé-Bougoumou, Québec
- and -
THE OUJÉ-BOUGOUMOU CREE NATION, the
collectivity of Crees recognized as the Oujé-Bougoumou Cree
Nation and as the Oujé-Bougoumou Traditional
Cree Band, of Oujé-Bougoumou, Québec
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Parliament Buildings, Ottawa, Ontario
Defendant
-and-
THE ATTORNEY-GENERAL OF QUÉBEC, representing Her Majesty the
Queen in Right of Quebec, Hôtel du Gouvernement, Québec, Québec
Intervener
REASONS FOR ORDER
(Delivered from the Bench in Montreal
on Wednesday, June 9, 2004)
HUGESSEN J.:
[1] Although this action has been pending for a very long time, nothing has happened in recent years as a result of a stay Order that I gave in November, 1999. The action was stayed pending the resolution of proceedings which I could only described as parallel in the Quebec Superior Court. Those proceedings have, as I understand it, now been largely settled as between the plaintiffs and the Attorney General of Quebec.
[2] The motion that I have before me today has three purposes directly arising out of the fact of that settlement.
[3] The first purpose is to lift the stay that I granted in 1999. The second is to convert the present action which started life under former Rule 114 as a representative action (a Rule which has now been repealed); the motion seeks by amendment to convert the action into a proposed class action and of course, in due time, will require that there be a further motion to certify it as a class action in the name of the principal plaintiff who has been the same all through the piece. The third purpose is to consolidate and amend the statement of claim in the action as originally framed.
[4] The first and second of those purposes are not disputed. What is now being done in an important part of the proposed amendments is to withdraw the allegations against Quebec and to leave the allegations and the conclusions only against Canada. In connection with the second purpose that I just listed, since the new class action rules are now effect, there can be no dispute that the action, if it is to go forward, must be amended so that it can do so as a class action. Only some of the proposed amendments to the substance of the statement of claim have given rise to controversy and it is with them that I now deal.
[5] The general policy of the Federal Court Rules, 1998 is to favor a party's right to amend its pleadings. Subject only to protecting the rights of other parties, in particular, Rules 75 and 201 allow a statement of claim to be amended even if that amendment introduces a new cause of action provided such cause of action is based on substantially the same facts as were originally pleaded. If the purpose of the amendment is to add new allegations of fact there may be another issue because of the possibility of a plea of limitation being raised with respect to any claim based on the new allegations of fact and that is in part what the Attorney General of Canada bases the objection to the amendments upon. Of course, if a cause of action is prescribed and is added to an existing action by amendment there is a real risk of prejudice being caused to the adverse part, so I have to exercise care not to permit such prejudice. But as I say the rule does allow a new cause of action to be alleged and pleaded if it is clear that the substantial factual matrix upon which the new cause of action is based was already in the pleadings from the beginning.
[6] It is relevant to note that the action, although has been going on for a long time, is still in its rather early stages. The statement of claim has been filed. A motion was made by the defendant, Attorney General of Canada, seeking particulars and those particulars have now been furnished. A statement of defence was filed in response thereto and it was only very shortly after that, in 1999, that the stay Order intervened and the action came to a grinding halt. There have been no discoveries.
[7] With respect to three of the proposed areas of amendment which are objected to by the Attorney General, namely the forced relocation of some of the plaintiff peoples, the failure of the Crown to provide programs and services to them and the pollution and contamination of the waters upon which they rely for their livelihood, those were all made the subject of allegations in the particulars. Those particulars were not objected to at the time and no motion was made by the Crown to strike them out. Today counsel for the Attorney General suggests to me that those particulars go far beyond the original statement of claim. That is as it may be but since no objection was taken to them they remain as part of the pleadings herein. It is not, in my view, a matter of debate that particulars furnished in an action, especially where as in this case they were furnished as a result of a Court order, form part of the pleadings in the action. One simply cannot read a statement of claim and ignore particulars which have been furnished with respect to it. If the Attorney General had reason to dispute the legality or relevance of any particulars which were furnished in 1998, it was his duty at that time to move to strike them out. Since he has not done so, and since they are still there they must be taken as part of the claim and, in my view, the three areas that I have mentioned are all properly the subject of amendment.
[8] It is true that the amended statement of claim, as now proposed, includes more allegations of fact but they all relate to the same general area as that which was mentioned in the original statement of claim and in the particulars thereto and there would be no prejudice caused to the Attorney General if the proposed amendments were allowed. The conditions of Rule 201 have been met.
[9] With regard to the fourth objected area of proposed amendments the situation is a little different but the result is the same. The new consolidated and amended statement of claim introduces as a separate round of claim the failure of the Crown to recognize the plaintiffs as a separate Band and to grant them a reserve. Now although that ground was not specifically pleaded as such in the original statement of claim it, in my view, flows from the original statement of claim and is a necessary consequence thereof. It is impossible to read the original statement of claim without being aware that the plaintiffs are complaining about the fact that they have not been recognized as a separate aboriginal nation and people and have not been given Band status and were left out for that very reason of the James Bay agreement included in 1975.
[10] Accordingly, I propose to allow the motion. There will of course be no order as to costs since amendments are always made at the expense of the party seeking to make them. I do propose however to attach two conditions to the filing of the amended and consolidated statement of claim.
[11] The first has to do with a second action brought in this Court in December of last year by the plaintiffs against the Attorney General of Canada reproducing virtually in toto the allegations which they now seek to incorporate into their amended statement of claim. In my view, to permit those two actions to exist in parallel would be an abuse of the process of the Court. Accordingly, it is a condition of leave to amend that the plaintiffs shall within ten days hereof discontinue the action launched in this Court, in December 2003.
[12] The second condition is that of course the defendant now has the right to file an amended statement of defence; subject to alteration being made at a further case management conference I would direct that the defendant should have until no later than August 3, 2004, to serve and file its statement of defence and that as a condition of their leave to amend, the plaintiffs shall within sixty days of that latter date serve and file a motion for certification as a class action.
[13] The case will continue as a specially managed case and I will be convoking the parties, in due course, to a case management conference.
_________________________________
Judge
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-3007-93
STYLE OF CAUSE: Chief Abel Bosum et al v. Her Majesty the Queen et al
DATE OF HEARING: June 9, 2004
PLACE OF HEARING: Montreal, Quebec
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: June 10, 2004
APPEARANCES:
Nathan Richards FOR PLAINTIFFS
Anick Pelletier FOR DEFENDANT
René Bourassa FOR INTERVENER
SOLICITORS ON THE RECORD:
O=Reilly & Associés
Montreal, Quebec FOR PLAINTIFFS
Morris A. Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT
Bernard Roy & Associés
Montreal, Quebec FOR INTERVENER