Ward v. Samson Cree Nation No. 444
A-616-97
Isaac C.J., Décary and Rothstein JJ.A.
31/8/99
20 pp.
Appeal from interlocutory order made by Motions Judge on 9/9/97 allowing respondents' motion to amend statement of claim-Grounds of appeal: that amendments not in nature of action but in nature of judicial review and out of time; amendments disclose new cause of action and action brought outside limitation period-Appeal allowed-Per Isaac C.J.: Proceeding commenced in May 1992 claiming entitlement to membership in Samson Cree Nation No. 444 from birth, declarations of entitlement to benefits, accounting and general damages-Facts alleged by respondents in paragraphs 12-16 of statement of claim do not allege new cause of action, but rather additional facts supporting claim to membership in Samson Cree Nation No. 444-Therein, respondents plead amendment to Indian Act, enacted by Bill C-31, providing statutory basis for claim to membership and circumstances surrounding their attempt to assert that claim, and ask for declaration that, in alternative, they were members of Samson Cree Nation No. 444 since July 1987-Amendments to pleadings and addition of prayer for relief done as result of Minister's statement of defence-Additional facts pleaded in amended statement of claim do not create new cause of action, as found by Motions Judge-Motions Judge has properly instructed himself respecting principles laid down by this Court to determine whether amendments should be allowed-Therefore, appellants have failed to demonstrate any error in law or in principle justifying Court interference-Appellants wrongly argue declaration may only be sought by means of judicial review-Actions for declaration of rights recognized in law long before notion of judicial review of administrative action ever conceived-Federal Court Rules, 1998, r. 64 clearly recognizing jurisdiction of Court to grant declaration of right simpliciter-R. 64 successor to former R. 1723 which clearly empowered Court to grant declarations in actions-Ermineskin Indian Band # 942 and Ermineskin Band Council v. Hodgsen et al. (A-635-97, 16/4/98) distinguishable on facts-Per Décary and Rothstein JJ.A.: reasons of Isaac C.J. generally agreed with-Not necessary to decide whether declaratory relief may be sought otherwise than through judicial review proceedings-Reluctance to accept, as Isaac C.J. seems to suggest, that Rules of Court can be invoked to modify statutory requirement prima facie imposed by Federal Court Act, s. 18(3)-Even if Court were to accept that relief sought declaratory in nature and could only be sought through judicial review, Court expressly vested, by Act, s. 18.4(2), with authority to direct that application for judicial review be treated and proceeded with as action-Futile exercise, in case such as present one, to insist that one of reliefs claimed be pursued in judicial review proceedings while others pursued in parallel action-Had Motions Judge been alerted to possibility, would have directed that so-called declaratory relief be treated as action-Part of claim for declaratory relief therefore allowed to continue as action-Appeal to be disposed of in manner proposed by C.J.-Federal Court Act, R.S.C., 1985, c. F-7, ss. 18(3) (as am. by S.C. 1990, c. 8, s. 4), 18.4(2) (as enacted idem, s. 5)-Federal Court Rules, C.R.C., c. 663, R. 1723-Federal Court Rules, 1998, SOR/98-106, r. 64-Indian Act, R.S.C. 1970, c. I-6-Indian Act, R.S.C., 1985, c. I-5-Act to amend Indian Act (Bill C-31), R.S.C., 1985 (1st Supp.), c. 32.