Federal Court Decisions

                    

                            

     T-2031-96

BETWEEN:

     MARY VICKY SCRIMBITT

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN, THE MINISTER

     OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,

     and SAKIMAY INDIAN BAND COUNCIL

     Defendants

     REASONS FOR ORDER

JEROME A.C.J.:

     This motion by the defendant, Sakimay Indian Band Council, to strike the plaintiff's Statement of Claim pursuant to Rule 419 of the Federal Court Rules came on for hearing on January 9, 1997 at Edmonton, Alberta. At the close of argument, I took the matter under reserve and indicated that these written reasons would follow.

BACKGROUND

     The plaintiff is a member of the Sakimay Indian Band, a band recognized under the Indian Act, and resides on the Sakimay Indian Reserve No. 74, situated in the province of Saskatchewan. By Statement of Claim filed September 12, 1996, the plaintiff claims that the defendants have breached their constitutional and fiduciary obligations to her and have engaged in discriminatory acts toward the plaintiff, including denial of the Crow Benefit, denial of services provided to all other Sakimay Indian Band members, and denial of the right to occupy land on the reserve. In her Statement of Claim the plaintiff seeks:

a. an interim and permanent injunction restraining the Sakimay Council, or anyone acting on their behalf, from taking any actions or steps to remove Scrimbitt from her lawful use and occupancy of the Occupied Lands;

b. a declaration that the Defendants' actions in excluding Scrimbitt and other Reinstated Indians, or failing to ensure their inclusion, in the electoral selection process by being eligible to vote and run for Sakimay Council, violates section 15(1) and 7 of the Canadian Charter of Rights and Freedoms;

c. an order of mandamus requiring all of the Defendants to take, forthwith, all steps necessary to re-instate Scrimbitt to the membership and voting lists for the Sakimay Indian Band and to restore her right to vote in, and/or run for election in Band elections; and, in future, to fulfil their lawful obligations in a non-discriminatory manner and to take all necessary steps to ensure that Scrimbitt and other Reinstated Indians can fully participate in the life and governance of the Sakimay Indian Band;

d. damages for pecuniary losses, humiliation, pain and suffering; and damages on an exemplary basis; in amounts to be proven at trial;

e. costs of this action on a solicitor-client basis; and

f. such further and other relief as this Court may deem just.

SUBMISSIONS OF THE PARTIES

     The defendant, Sakimay Indian Band Council, states that the Statement of Claim discloses no reasonable cause of action and, therefore, should be struck. The defendant further submits that the relief sought by the plaintiff is of the type contemplated by section 18 of the Federal Court Act and which can only be obtained by way of an application for judicial review.

     The defendants, Her Majesty the Queen and the Minister of Indian Affairs and Northern Development, submit that it has been clearly established that where a plaintiff is requesting relief which is prerogative in nature, there is only one procedure which can be utilized, that is, an application for judicial review. The defendants state that the only claim which can proceed by way of an action is the claim for damages against the Crown and that the paragraphs pertaining to the prerogative relief sought must be struck.

     The plaintiff submits that the Statement of Claim should not be struck. The plaintiff states that there is a claim for damages with respect to all three defendants, and that this type of relief cannot be properly claimed via an application for judicial review. In oral submissions, counsel for the plaintiff proposed that the Court convert the action into proceedings by way of declaration, which would involve the plaintiff abandoning her claim for damages.

STATUTORY PROVISIONS

     Sections 17, 18, and 18.4 of the Federal Court Act and Rule 419 of the Federal Court Rules are relevant to this motion. The statutory provisions read in part as follows:

17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown.

18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

. . .

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

18.4 (1) Subject to subsection (2), an application or reference to the Trial Division under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.

(2) The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.

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,

. . .

and may order the action to be stayed or dismissed or judgment to be entered accordingly.

ANALYSIS

     In Mobarakizadeh v. Canada (1993), 72 F.T.R. 30 (F.C.T.D.), Nadon J. considered whether the plaintiff's Statement of Claim which sought declaratory relief and an order that a Refugee Travel Document be issued should be struck pursuant to Rule 419(1)(a). Nadon J. stated at 33-34:

Section 18(3) makes it clear that the remedies provided for in subss. 1 and 2 can only be obtained by way of a judicial review application made under s.18.1. Consequently, any application to obtain a declaratory relief or a writ of mandamus against any federal board, commission or other tribunal must be made pursuant to s.18.1. . . . I must therefore conclude that the plaintiff cannot obtain the relief which he seeks by way of a Statement of Claim.

     In Zubi v. Canada (1993), 71 F.T.R. 168 (F.C.T.D.), Cullen J. addressed a motion to strike a Statement of Claim which sought declaratory relief against a decision to transfer the plaintiff to a medium security facility, a declaration that he was a minimum security inmate, and damages in the amount of $5,000.00. Cullen J. concluded at 170:

It is clear from the statement of claim that the relief sought is of the type contemplated by s. 18 and not simply damages against the Crown as counsel alleges. Thus, the proper course of action for the plaintiff would be to bring an application for judicial review pursuant to ss. 18 and 18.1, and then, if successful, bring an action for damages.

     The Federal Court of Appeal addressed section 18.4(2) of the Federal Court Act in Lake Babine Indian Band et al. v. Williams et al. (1996), 194 N.R. 44 at 46:

The appellants' motion under rule 419(1)(a) to strike the respondents' statement of claim, because in the context of an action the court could not grant the relief sought, is well-founded. It is also well-founded in another respect. There appears to be no possibility to convert an action into an application for judicial review in view of s. 18.4(2) of the Federal Court Act, but even if the law were otherwise, the court would be denied jurisdiction to entertain the application. The 30-day limitation period prescribed by s. 18.1(2) of the Act is long past due.

     Prerogative relief can only be obtained by way of an application for judicial review pursuant to sections 18 and 18.1, rather than pursuant to an action commenced under section 17 of the Federal Court Act. I lack the jurisdiction to convert an action into an application for judicial review. As such, those portions of the plaintiff's Statement of Claim which seek prerogative relief, that is paragraphs (a), (b) and (c) of the prayer for relief, as quoted above, are hereby struck. The plaintiff, should she so desire, may commence a judicial review application seeking the prerogative and declaratory relief.

     The motion of the defendant, Sakimay Indian Band Council, is allowed in part. The Statement of Claim as it pertains to the claim for damages shall be maintained. That portion of the Statement of Claim pertaining to the prerogative relief sought shall be struck. No order as to costs.

O T T A W A

March 20, 1997                      _______________________________

                                     A.C.J.