PRACTICE |
Parties |
Tacan v. Canada
T-1756-01
2003 FC 915, Snider J.
24/7/03
8 pp.
In action for damages as consequence of post-war actions of officials of Department of Indian Affairs, Department of Veterans Affairs in respect of Veterans' Land Act, plaintiffs, now very elderly, in frail health, seeking to have their interests in proceeding assigned to Sioux Valley First Nation, Band No. 290, of Manitoba--Issue whether plaintiffs should be permitted to assign their interest in underlying proceedings to Band--Four sub-issues: whether assignment permitted pursuant to Federal Court Rules, 1998, r. 117; whether assignment prohibited as would run afoul of laws pertaining to maintenance of champerty; whether Financial Administra-tion Act, s. 67 expressly restricting assignment of claims herein; whether motion should be considered on its merits despite plaintiffs' failure to comply with r. 117(2), requiring that motion be brought by Band, not plaintiffs--Motion dismissed--Federal Court Rules, 1998, r. 117 not providing for authority to assign interest in litigation; merely addressing procedural requirements for dealing with assignment otherwise legally undertaken--In absence of evidence as to how proceeds of litigation to be dealt with, proposed assignment not violating prohibition against champerty-- However, motion should be dismissed on grounds proposed assignment closely resembling maintenance (giving of assistance or encouragement to one of parties to action by person who has neither interest in action nor any other motive recognized by law as justifying his interference)--Band's interest fact plaintiffs registered members of Band; that interest insufficient--Motive behind transfer advanced age, frail health of plaintiffs, suggesting plaintiffs would no longer be disposed to enforce their rights against Crown without intervention of third party (Band)--This clearly constitutes maintenance--Also, assignment of debt prohibited by Financial Administration Act--While motion should have been brought by Band, not plaintiffs according to r. 117(2), motion decided on merits notwithstanding procedural defect-- Financial Administration Act, R.S.C., 1985, c. F-11, s. 67-- Federal Court Rules, 1998, SOR/98-106, r. 117.