PRACTICE |
Parties |
Kainaiwa/Blood Tribe v. Canada
T-343-99
2001 FCT 1031, Lafrenière P.
18/9/01
9 pp.
Motion to appoint Stephen Mistaken Chief to represent Blood Tribe Veterans of World War I, World War II, Korean War, their dependants, descendants pursuant to Federal Court Rules, 1998, r. 114--Action instituted by Chief, Councillors of Blood Band on behalf of Blood Band war veterans, dependants, descendants--Alleges plaintiffs wrongfully deprived of benefits to which entitled as result of service by application of racially discriminatory laws, policies, practices--Plaintiffs submitting Stephen Mistaken Chief, by virtue of status as Blood Tribe Veteran of World War II, and because "clearly a member of the class" should be appointed to represent class which chose him for that purpose--R. 114 setting out basic rule that proceeding may be brought by or against two or more persons having same interest in proceeding by naming any one or more of persons as representing them all--R. 114 suffering from deficiencies in that not providing procedure for determining whether class action properly brought or procedure for giving notice to members of class; no way class members can elect not to be part of action; no provisions for discovery or other pre-hearing procedures to address procedural rights, responsibilities of members of class; no special provision for costs particularly with regard to rights, responsibilities of members of class; no provision for determining issues relating to members of class, should class be successful on common questions--But such gaps should not prevent party from obtaining relief--In Western Canadian Shopping Centres Inc. v. Dutton (2001), 201 D.L.R. (4th) 385 (S.C.C.), McLachlin C.J. stating in absence of detailed class action practice, lower courts required to fill procedural vacuum--Listed four conditions to be met before allowing matter to proceed as class (or representative) action: (1) class must be capable of clear definition; (2) must be issues of fact or law common to all class members; (3) with regard to common issues, success for one class member must mean success for all; (4) class representative must adequately represent class--Plaintiffs not addressing any of these conditions in motion materials--Not attempting to identify with any degree of precision class to be represented or its size--Neither reference to claims of class members purportedly giving rise to common issues, nor any definition of common issues--No evidence establishing Stephen Mistaken Chief would fairly, adequately represent interests of class--No plan of proceeding produced setting out workable method of advancing proceeding on behalf of class--Nor has proposed representative satisfied Court not having interest in conflict with interests of other class members--Plaintiffs' motion raising such questions as: whether Stephen Mistaken Chief to be added as representative or intended to replace Chief, Councillors as representative; whether liable for costs of litigation, and if so, whether he can afford such costs; can representative appointed under r. 114 represent deceased individuals; is representative proceeding most effective mechanism for resolution of action--Representation order cannot be made based on material filed--Motion dismissed with leave granted to re-apply with further, better evidence addressing four conditions above--Federal Court Rules, SOR/98-106, r. 114.