Native Transfer Committee at Mountain Institution v. Canada ( Solicitor General )
T-1940-96
Hargrave P.
6/1/97
13 pp.
Representative action-Native peoples-Motion to dismiss action, referring to Charter, ss. 7, 24(1), seeking implementation of Corrections and Conditional Release Act, s. 81 (permissive legislation allowing Solicitor General to enter into agreements with Aboriginal communities for transfer of offenders into care and custody of communities)-Minister has not yet put s. 81 into practice-Test whether plain and obvious action will not succeed-Standing: general rule unincorporated bodies not legal persons and therefore do not have capacity to sue or be sued-Amendment substituting, for Committee, individual members in own names could remedy this-Fact plaintiff not represented by counsel at this point not fatal-Uncertain whether unincorporated associations may invoke Charter, s. 24(1)-Representative action under R. 1711: parties must have same interest in action; grievance must be common; relief must be beneficial to all-Proceeding defective as Committee ought to have presented material to show it speaks for more than just five members-Court not convinced Committee has ability to fairly and adequately represent some 1,800 aboriginal offenders, particularly in view of fact Committee does not have proper legal assistance-Need for proper identification of persons for whom class or representative action taken and for their interests to be shown-Class herein sufficiently defined-However, interests and grievances of members of proposed class appear not same for all-Too many variables-Act, s. 81 not requiring Minister to place all Aboriginal offenders in communities-Circumstances of each offender must be considered by Minister-Some of class which plaintiff purports to represent may benefit but others will not-Proceeding therefore not suitable as class action-Motion to strike allowed-Legislation herein permissive, not creating duty-Mandamus does not lie in order to compel Minister to put policy in place-Action cannot succeed either as class action or as action by one or more of plaintiffs in own right-Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 81 (as am. by S.C. 1995, c. 42, s. 21).