Digests

Federation of Newfoundland Indians v. Canada

T-129-89

2003 FCT 383, Blanchard J.

1/4/03

13 pp.

Plaintiffs bringing three motions: (i) motion for order pursuant to Federal Court Rules, 1998, r. 104(1) to add four plaintiffs to statement of claim, order pursuant to r. 104 (2) for direction with respect to necessary amendments as consequence of addition, and further order to remove name of plaintiff now deceased; (ii) motion for order pursuant to r. 75 (1) to further amend amended statement of claim to effect certain minor revisions, and order adding Federation of Newfoundland Indians (FNI) as public interest litigant; (iii) motion under r. 225 for full disclosure by defendants--Shortly after hearing motions, new Federal Court Rules concerning class actions came into effect, and r. 114 repealed--Plaintiff will file motion for leave amending statement of claim and motion for certification of action pursuant to class action rules--Now determination of motions under reserve to extent determination does not affect impending certification application--Concerning plaintiff's first motion, because of plaintiff's intention to seek certification, no ruling on first motion at present time--Regarding plaintiffs' second motion to amend amended statement of claim, amendments relate to status of plaintiffs, and need not be addressed in view of plaintiffs' impending certification motion--Amendment unrelated to status of plaintiffs will be addressed-- Amendments noted in paragraphs 5(a), 5(c), 5(d), 7(a) and 7(b) granted because relating to minor changes in terminology and because no prejudice will result against defendants-- However, FNI will not be accorded public interest standing as cannot be said that no other way to bring litigation--Second motion dismissed--Plaintiffs' third motion for disclosure arguing that discovery obligation not limited to documents that come into existence before commencement of proceedings but that subsequent documents covered by discovery obligation--Periodic reconsideration of all sources of documents not required but discovery obligation not limited to production of documents pre-dating statement of claim-- Accordingly, defendants shall produce all documents relevant to plaintiffs' claims--Regarding defendants' motion striking FNI as plaintiff and Minister as defendant--Because of plaintiffs' intention to apply for certification as class action and to seek leave to amend statement of claim, Court declining to rule on defendants' motion striking FNI as plaintiff at this time--Defendants also move to strike Minister as defendant--Case law has established, generally, Minister cannot be sued in representative capacity, nor in personal capacity, when acting on behalf of Crown except in particular circumstances not applicable to present case--Minister proper party defendant--In any event, Minister does not have statutory authority to give plaintiffs remedy of registration of new Indian band--Consequently, Minister not necessary party to action--Motion to strike allowed and Minister will be struck as defendant--Federal Court Rules, 1998, SOR/98-106, rr. 75, 104, 114 (as am. by SOR/2002-417, s. 12) 225, 299.17 (as enacted by SOR/2002-417, s. 17), 299.18 (as enacted idem).