[2001] 1 F.C. 241
T-110-00
Fédération Franco-Ténoise, Éditions franco-ténoises/L’Aquilon, Fernand Denault, Suzanne Houde, Nadia Laquerre, André Légaré and Pierre Ranger (Plaintiffs)
v.
Her Majesty the Queen, Attorney General of Canada, Commissioner of the Northwest Territories, the Speaker of the Legislative Assembly of the Northwest Territories, and the Languages Commissioner of the Northwest Territories (Defendants)
Indexed as: Fédération Franco-Ténoise v. Canada (T.D.)
Trial Division, Rouleau J.—Yellowknife, Northwest Territories, June 13 and 14; Ottawa, September 8, 2000.
Federal Court jurisdiction — Trial Division — Motion to strike statement of claim seeking declarations defendants failed to meet obligations to protect linguistic minorities in N.W.T. as mandated by Charter, federal, Northwest Territories’ Official Languages Acts on ground Federal Court lacking jurisdiction — Motion dismissed — First requirement of test for jurisdiction set out in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al. met — Statutory grant of jurisdiction over Queen by federal Parliament found in Federal Court Act, s. 17(1), conferring concurrent original jurisdiction on F.C.T.D. in all cases where relief claimed against Crown — S. 17 also satisfying statutory grant of jurisdiction over Commissioner of N.W.T., Governor in Council appointee to administer government of N.W.T., and Languages Commissioner, part of federal Crown under N.W.T. Official Languages Act, ss. 18, 19 — Speaker of Legislative Assembly of N.W.T., part of federal Crown as elected pursuant to Legislative Assembly and Executive Council Act, s. 39, and pursuant to s. 47(4) may sue, be sued in civil actions on behalf of Legislative Assembly — Second requirement of existing body of federal law essential to disposition of case and nourishing statutory grant of jurisdiction met as action based on Charter, Official Languages Act — Also directly linked to laws enacted by N.W.T. dealing with official languages — Such ordinances neither provincial nor federal statutes, but could be federal laws — Third requirement, that law on which case based “law of Canada” within Constitution Act, 1867, s. 101, met — Exclusion of N.W.T. by Parliament from ambit of Official Languages Act subject of dispute — Northwest Territories Act federal statute from which legislative powers of N.W.T. Commissioner flowing.
Official Languages — Motion to strike, for want of jurisdiction, action for declarations obligation to ensure equality for linguistic minorities in N.W.T. not met — Federal Official Languages Act not extending to N.W.T. — Canada having agreed to pay for French services there — N.W.T. Official Languages Act not a “law of Canada” within Constitution Act, 1867, s. 101 but can be “federal law” — F.C.T.D. has jurisdiction to entertain claim against Languages Commissioner, appointed by Commissioner of N.W.T., as part of federal Crown within Federal Court Act, s. 17(1).
Practice — Parties — Motion to strike Attorney General as party to action for declarations defendants failed to meet obligations to ensure equality for linguistic minorities in N.W.T. as mandated by Charter, federal, Northwest Territories’ Official Languages Acts — Under Federal Court Act, s. 48, schedule thereto, proceeding against Crown must be brought against Queen in right of Canada — As no allegation against Attorney General, removed as party pursuant to discretion under Federal Court Rules, 1998, r. 104.
Practice — Affidavits — Motion to strike portions of affidavit on ground hearsay, largely historical information — Motion dismissed because case involving constitutional issues, affidavit relatively reliable, necessary.
This was a motion to strike a statement of claim seeking declarations that the defendants have failed to meet their obligations to ensure equality for linguistic minorities as mandated by the Charter, the federal Official Languages Act and the Northwest Territories’ Official Languages Act. The federal Official Languages Act, the mechanism chosen by the Canadian government to promote the language rights established in the Charter, does not apply to the Government of the Northwest Territories. Instead, the Government of Canada entered into an agreement to provide the entire cost of providing services to the public in French and of implementing French as an official language of the Northwest Territories. The defendants argued that the Federal Court lacked jurisdiction to hear the case, moved for a stay of proceedings under Federal Court Act, paragraph 50(1)(b), which gives the Court discretion to stay proceedings in the interest of justice, and moved to remove the Attorney General as a party to the proceedings.
The plaintiffs moved to strike out portions of the defendants’ affidavit, which consisted largely of hearsay and detailed historical information about the Northwest Territories.
Held, the motion to remove the Attorney General as a party should be allowed, and the other motions dismissed.
The requirements set out by the Supreme Court of Canada in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al. were applied to each defendant to determine whether the Court had jurisdiction over them. Those requirements are: (1) a statutory grant of jurisdiction by the federal Parliament; (2) an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and (3) the law on which the case is based must be “a law of Canada” as that phrase is used in the Constitution Act, 1867.
The Court had jurisdiction to hear the claim against the Crown. The statutory grant of jurisdiction concerning The Queen is found in Federal Court Act, subsection 17(1), which confers concurrent original jurisdiction on the Trial Division in all cases where relief is claimed against the Crown. While the action is based on the Charter and the Official Languages Act, it is also directly linked to the laws enacted by the Legislative Assembly of the Northwest Territories dealing with official languages. In light of the Territories’ present constitutional status, that is, possessing several characteristics of a province without actually being one, ordinances enacted by the Legislative Assembly of the Territories are not provincial statutes. Clearly, they cannot constitute “territorial” statutes because the Constitution of Canada provides for only two types of statutes — provincial or federal. However, ordinances enacted by the Territories could constitute, at a minimum, federal law. The third condition was also met. The exclusion of the Northwest Territories by Parliament from the ambit of the Official Languages Act was the subject of the current dispute. The Northwest Territories Official Languages Act is not a “law of Canada” within the meaning of Constitution Act, 1867, section 101 but is “territorial law” which can only be “federal law”, which is not necessarily the same as a “federal statute” or a “law of Canada”.
The Commissioner of the Northwest Territories, appointed by the Governor in Council to administer the government of the Territories under instructions from time to time given by the Governor in Council, is ultimately a representative of the federal Crown. The first condition of the Miida Electronics test was met because the Commissioner was part of the Crown within the meaning of subsection 17(1). The existing body of law which formed the basis of the Court’s jurisdiction and which was essential to the disposition of the case was all law enacted by the Legislative Assembly of the Northwest Territories, including the Official Languages Act. The third condition was met by the Northwest Territories Act, the federal statute from which all legislative powers of the Northwest Territories Commissioner flow.
The Court had jurisdiction to hear the claim against the Languages Commissioner, appointed by the Commissioner of the Northwest Territories to ensure recognition of the rights, status and privileges of each of the official languages. It was clear from Official Languages Act of the Northwest Territories, sections 18 and 19 that the Languages Commissioner is part of the federal Crown, within the meaning of Federal Court Act, subsection 17(1). The Speaker of the Legislative Assembly of the Northwest Territories is elected pursuant to Legislative Assembly and Executive Council Act, subsection 39(1), and pursuant to subsection 47(4) thereof, may sue or be sued in civil actions, for and on behalf of the Legislative Assembly of the Northwest Territories. The Speaker is thus part of the federal Crown. The other two branches of the Miida Electronics test had been met as discussed above.
In light of the finding with respect to jurisdiction, the motion to stay proceedings should be dismissed.
Under Federal Court Act, section 48 and the attached schedule, a proceeding against the Crown must be brought against The Queen in right of Canada. As no allegation was made against the Attorney General, her naming as a party was unnecessary. Pursuant to the Court’s discretion to remove parties under rule 104, the Attorney General was removed as a party and the style of cause amended accordingly.
Because the case involves constitutional issues, and the affidavit was relatively reliable and necessary, the defendants’ affidavit was accepted for filing with the Court.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 24(1), 32.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 101.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 17(1) (as am. by S.C. 1990, c. 8, s. 3), 48, 50(1)(b).
Federal Court Rules, 1998, SOR/98-106, r. 104.
Legislative Assembly and Executive Council Act, R.S.N.W.T. 1988, c. L-5, ss. 39(1), 47(4).
Legislative Assembly and Executive Council Act, S.N.W.T. 1999, c. 22.
Northwest Territories Act, R.S.C., 1985, c. N-27, ss. 3, 5, 6, 16, 21.
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31.
Official Languages Act, R.S.N.W.T. 1988, c. O-1, ss. 18 (as am. by R.S.N.W.T. 1988 (Supp.), c. 56, s. 15), 19 (as am. idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Bradasch v. Warren et al., [1990] 3 F.C. 32 (1990), 111 N.R. 149 (C.A.).
CONSIDERED:
Northwest Territories v. Public Service Alliance of Canada, [1999] F.C.J. No. 1970 (T.D.) (QL).
MOTION by defendants to strike the statement of claim, for a stay of proceedings under Federal Court Act, paragraph 50(1)(b), and to remove the Attorney General as a party to the action for declarations that the defendants have failed to meet their obligations to ensure equality for linguistic minorities in the Northwest Territories as mandated by the Charter, the federal Official Languages Act; and motion by plaintiffs to strike portions of the defendants’ affidavit, which consisted largely of hearsay and detailed historic information about the Northwest Territories. Motion to remove the Attorney General as a party was allowed, and the other motions were dismissed.
APPEARANCES:
Roger J. F. Lepage and Peter T. Bergbusch for plaintiffs.
Roger Tassé, Q.C. and Earl D. Johnson, Q.C. for defendant Commissioner of the Northwest Territories.
Alain Préfontaine and Cynthia C. Myslicki for defendants Her Majesty the Queen and the Attorney General of Canada.
Sheila M. MacPherson for defendant Speaker of the Legislative Assembly of the Northwest Territories.
Shannon Gullberg for defendant The Languages Commissioner of the Northwest Territories.
SOLICITORS OF RECORD:
Balfour Moss, Regina, for plaintiffs.
Gowling Lafleur Henderson LLP, Ottawa, and Earl D. Johnson, Q.C., Department of Justice (Northwest Territories) for defendant Commissioner of the Northwest Territories.
Deputy Attorney General of Canada, for defendants Her Majesty the Queen and the Attorney General of Canada.
Shannon Gullberg, Yellowknife, Northwest Territories for defendant The Languages Commissioner of the Northwest Territories.
Gullberg, Wiest, MacPherson & Kay, Yellowknife, Northwest Territories for defendant Speaker of the Legislative Assembly of the Northwest Territories.
The following are the reasons for order rendered in English by
[1] Rouleau J.: As a result of an action launched by the plaintiffs, all the respondents filed motions contesting the jurisdiction of this Court.
[2] Before giving my ruling on the defendants’ motions, I consider it advisable to provide a brief summary of the main action between the parties.
[3] The plaintiff, La Fédération Franco-Ténoise (the FFT), a corporation duly constituted under the laws of the Northwest Territories (the N.W.T.), is the leading organization of the Francophone community in the N.W.T. Its goal is to foster a sense of belonging within that community and to enhance the vitality and development of French culture.
[4] The plaintiff, Les Éditions franco-ténoises/ L’Aquilon (the Aquilon), a corporation duly constituted under the laws of the N.W.T., is a weekly newspaper that strives to keep the N.W.T. Francophone community informed and, in so doing, to enhance its continued vitality. The other plaintiffs are individual Francophones residing in the N.W.T.
[5] The defendant, the Speaker of the Legislative Assembly of the N.W.T. (the Speaker), is elected pursuant to subsection 39(1) of the Legislative Assembly and Executive Council Act, R.S.N.W.T.1988, c. L-5 (the Legislative assembly Act) and, pursuant to subsection 47(4) thereof, may sue or be sued in civil actions, for and on behalf of the Legislative Assembly of the N.W.T. (The 1988 Act is now repealed and replaced by S.N.W.T. 1999, c. 22.)
[6] The defendant, the Languages Commissioner of the N.W.T., is an officer of the Legislative Assembly and is appointed by the Commissioner of the N.W.T. Pursuant to the Official Languages Act, R.S.N.W.T. 1988, c. O-1 (the OLA), it is the duty of the Languages Commissioner to take all actions and measures within his or her authority with a view to ensuring recognition of the rights, status and privileges of each of the official languages.
[7] The defendant, the Commissioner of the N.W.T., administers the Government of the N.W.T. in accordance with the Northwest Territories Act, R.S.C., 1985, c. N-27 (the N.W.T.A.).
[8] The plaintiffs contend that the Government of Canada, the Commissioner of the N.W.T., the Speaker of the Legislative Assembly of the N.W.T. and the Languages Commissioner of the N.W.T. have failed to meet their obligations to protect linguistic minorities as mandated by the Charter, the federal Official Languages Act and the OLA. Accordingly, they commenced an action in the Federal Court of Canada, seeking declarations to that effect as well as damages.
[9] The Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985 Appendix II, No. 44] (the Charter) applies to the Parliament and Government of Canada, by virtue of section 32 thereof. The Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31 (the federal Official Languages Act), is the mechanism chosen by the Canadian government to promote the language rights established in the Charter. However, the federal Official Languages Act does not apply to any institution of the Council or Government of the N.W.T. To close this gap, the Government of Canada tabled a draft amendment to the N.W.T.A. in May 1984 which would have established a bilingual legislative and judicial system in the N.W.T. Faced with opposition from the N.W.T., the Government of Canada entered into an agreement with Territorial officials, whereby it assumed the entire cost of providing services to the public in French and of implementing French as an official language of the N.W.T.
[10] The defendants have raised an objection to jurisdiction, arguing that the Federal Court has jurisdiction over Her Majesty the Queen only and, therefore, cannot hear this case. The defendants have filed two other motions. I propose to deal first with the issue of jurisdiction.
[11] The Supreme Court of Canada reviewed the requirements necessary to establish jurisdiction in the Federal Court in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752 and stated at page 766:
The general extent of the jurisdiction of the Federal Court has been the subject of much judicial consideration in recent years. In Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and in McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential requirements to support a finding of jurisdiction in the Federal Court were established. They are:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act, 1867.
[12] In light of the above, the defendants’ status must be analysed individually to determine whether the Court has jurisdiction over each of them.
[13] The statutory grant of jurisdiction concerning the defendant Her Majesty the Queen is found in subsection 17(1) of the Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 3):
17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown.
[14] With respect to “the existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction”, the Court has reviewed the constitutional status of the Northwest Territories to determine whether this body of law exists. In my view, while the plaintiffs’ action is based on the Charter and the federal Official Languages Act, it is also directly linked to the laws enacted by the Legislative Assembly of the Northwest Territories dealing with official languages.
[15] The Federal Court of Appeal considered the constitutional status of the Yukon in Bradasch v. Warren et al., [1990] 3 F.C. 32 At pages 35-36, Hugessen J.A. said:
In the dichotomy of a federal system, in which all state authority must ultimately be either federal or provincial, all law in the Yukon is federal law ….
…
Thus the law of tort in the Yukon is, in constitutional terms, federal law and that law is made applicable here by the operation of the Yukon Act, a law of Canada.
[16] In a footnote, he added:
We are, of course, aware that the de facto status of the Yukon is rapidly evolving and that institutions of democratic government are now in place here which make the Territory very closely resemble a province. The fact remains, though, that, however extensive may be the powers conferred on the Territorial Legislature, they are, in law, powers which have to date only been delegated by Parliament; Parliament has not finally divested itself of them and has specifically retained its paramountcy over them.
[17] More recently, in Northwest Territories v. Public Service Alliance of Canada, [1999] F.C.J. No. 1970 (T.D.) (QL), Dubé J. wrote [at paragraphs 31-33]:
I cannot accept the argument of the GNWT [Government of the Northwest Territories] that there was an evolution to a separate Crown in the NWT and that this evolution towards responsible government would give rise to a separate entity placing the NWT on the same footing as the ten Canadian provinces ….
Undoubtedly, the powers and authority of the GNWT have increased over the years, but the source of its increased powers and authority remains the Federal Crown …. The Northwest Territories Act is purely a federal statute providing for a local government headed by a federal appointee. The NWT has not become a province by evolution but it is still a territory under simple delegation of power.
… the rule must be that the three territories are part of the Crown.
[18] Parliament delegated some of its legislative powers to the Territories in section 16 of the Northwest Territories Act:
16. The Commissioner in Council may, subject to this Act and any other Act of Parliament, make ordinances for the government of the Territories in relation to the following classes of subjects:
[19] Section 21 provides for the following procedure:
21. (1) A copy of every ordinance made by the Commissioner in Council shall be transmitted to the Governor in Council within thirty days after the passing thereof and shall be laid before both Houses of Parliament as soon as conveniently may be thereafter.
(2) Any ordinance or any provision of any ordinance may be disallowed by the Governor in Council at any time within one year after its passage.
[20] I note that a Territorial ordinance does not require Royal Assent in order to have the force of law, unlike an ordinary federal statute or even a provincial statute. It is, therefore, difficult for me to conclude that territorial ordinances constitute federal statutes. The parties did not argue before me the constitutional validity of a delegation by Parliament of such a legislative power. In light of the Territories’ present constitutional status, that is, possessing several characteristics of a province without actually being one, I cannot find that the ordinances enacted by the Legislative Assembly of the Territories are provincial statutes. Clearly, they cannot constitute “territorial” statutes because the Constitution of Canada provides for only two types of statutes—provincial or federal (leaving aside the power Aboriginals may have to self-govern). I concede, however, that ordinances enacted by the Territories could constitute, at a minimum, federal law. The second condition laid down in Miida Electronics seems, therefore, to be met.
[21] It appears to me that the third condition has also been met. The plaintiffs seek, inter alia, a declaration to the effect that the Government of Canada has breached its linguistic obligations under the Charter and thus reneged on its commitment to enhance the vitality of the Francophone minority in the N.W.T., to support and assist its development and to foster the full recognition and use of French in Canadian society, as mandated by Part VII of the Official Languages Act, which is a federal statute. The plaintiffs claim damages against Her Majesty the Queen for failing to ensure equality for linguistic minorities. The remedy sought by the plaintiffs is set out in subsection 24(1):
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[22] The plaintiffs submit that the statute relied on in this case is the federal Official Languages Act. I do not agree. In this case, the legislative action of Parliament itself is at issue. Parliament expressly excluded the Northwest Territories from the application of the Act, leaving it to N.W.T. officials to establish a system for official languages. Parliament even entered into an agreement with Territorial officials to facilitate the creation of such a system. It is the legislative action itself that is the subject of the current dispute—the exclusion of the N.W.T. by Parliament from the ambit of the federal Official Languages Act.
[23] The parties also argue that the Official Languages Act of the Northwest Territories is itself a federal statute: since the N.W.T. does not constitute a province, territorial law is, of necessity, federal law. In my view, “territorial law” and “territorial statutes” must be distinguished, and the Constitution of Canada does not provide for the existence of “territorial statutes”. On the other hand, “territorial law” can certainly exist, just as “municipal law” can exist in a province. However, municipal by-laws do not constitute “statutes” since they do not receive Royal Assent. Therefore, I am of the view that the Official Languages “Act—of the N.W.T. does not constitute a “law of Canada” within the meaning of section 101 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], but rather constitutes “territorial law”, which can only be “federal law”, which is not necessarily the same as a “federal statute” or a “law of Canada”.
[24] I am of the view that this Court has jurisdiction to hear the claim against the Crown under these circumstances.
[25] The N.W.T.A. confers on government institutions of the N.W.T. the power to legislate and to act in place of the Canadian government in numerous subject areas. It is true, nonetheless, that the Commissioner of the N.W.T., the Government of the N.W.T. and the Legislative Assembly of the N.W.T. are federal government entities. The laws that they enact on behalf of the Government of the N.W.T. are federal laws. It is clear from the following provisions of the N.W.T.A. that the Commissioner of the N.W.T. is, ultimately, a representative of the federal Crown:
3. The Governor in Council may appoint for the Territories a chief executive officer called the Commissioner of the Northwest Territories.
…
5. The Commissioner shall administer the government of the Territories under instructions from time to time given by the Governor in Council or the Minister.
6. The executive powers that were, immediately before September 1, 1905, vested by any laws of Canada in the Lieutenant Governor of the Northwest Territories or in the Lieutenant Governor of the Northwest Territories in Council shall be exercised by the Commissioner so far as they are applicable to and capable of being exercised in relation to the government of the Territories as it is constituted at the time of the exercise of those powers.
[26] It follows that the three-pronged Miida Electronics test must be applied.
[27] There is no doubt that the Commissioner of the Northwest Territories is part of the Crown within the meaning of subsection 17(1) of the Federal Court Act, and, therefore, the first condition is met.
[28] With respect to the existing body of law which forms the basis of the Court’s jurisdiction and which is essential to the disposition of the case, this case concerns all law enacted by the Legislative Assembly of the N.W.T. including, despite its deceptive name, the Official Languages Act of the N.W.T.
[29] The third condition is met by the Northwest Territories Act. In fact, all legislative powers of the N.W.T. Commissioner flow from this fundamental federal statute.
[30] In my view, the Languages Commissioner holds a sufficiently important position within the Territorial administration as to constitute a representative or agent of the federal Crown. The relevant provisions of the Official Languages Act of the N.W.T. read as follows [sections 18 (as am. by R.S.N.W.T. 1988 (Supp.), c. 56, s. 15), 19 (as am. idem)]:
18. (1) There shall be a Languages Commissioner who shall be appointed by the Commissioner under the Seal of the Territories after approval of the appointment by resolution of the Legislative Assembly.
(2) The Languages Commissioner holds office during good behaviour for a term of four years, but may be removed by the Commissioner at any time on address of the Legislative Assembly.
19. (1) Such officers and employees as are necessary for the proper conduct of the work of the office of the Languages Commissioner shall be appointed in the manner authorized by law.
(2) The officers and employees of the office of the Languages Commissioner appointed under subsection (1) shall be deemed to be persons employed in the public service for the purposes of the Public Service Act.
(3) The Languages Commissioner shall rank as and have all the powers of a Deputy Minister of a department.
[31] It is clear from these provisions that this senior public servant is part of the federal Crown, within the meaning of subsection 17(1) of the Federal Court Act.
[32] The other two branches of the Miida Electronics test have already been discussed above. This Court, therefore, has jurisdiction to hear the claim against this federal official.
[33] The Speaker of the Legislative Assembly of the Northwest Territories is elected pursuant to subsection 39(1) of the Legislative Assembly and Executive Council Act and, pursuant to subsection 47(4) thereof, may sue or be sued in civil actions, for and on behalf of the Legislative Assembly of the N.W.T. In my view, the Speaker is thus part of the federal Crown.
[34] In light of the foregoing, the defendants’ motion challenging jurisdiction is hereby dismissed.
[35] Finally, the defendants, Her Majesty the Queen in right of Canada and the Attorney General of Canada, filed a motion for a stay of proceedings under paragraph 50(1)(b) of the Federal Court Act, which reads:
50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,
…
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
[36] In light of the Court’s finding with respect to jurisdiction, I propose to dismiss this motion. The defendants’ motion also requests an order removing the Attorney General of Canada as a party to the proceedings. Under section 48 of the Federal Court Act and the attached schedule, a proceeding against the Crown must be brought against Her Majesty the Queen in right of Canada. Here, no allegation has been made against the Attorney General of Canada and adding her as a party appears to me completely unnecessary. Rule 104 of the Federal Court Rules, 1998 [SOR/98-106] gives the Court the power to order that a person who is not a necessary party shall cease to be a party. Having heard the submissions of the parties in this case, that part of the motion requesting that the Attorney General of Canada be removed as a party is allowed and the style of cause will be amended accordingly.
[37] The defendants filed an affidavit in support of their motion to strike the claim of the plaintiffs. The affidavit consists largely of hearsay and detailed historic information about the Northwest Territories. The plaintiffs have filed a motion to strike out portions of the affidavit. Because this case involves constitutional issues, and because this document is relatively reliable and necessary, I hereby dismiss the motion and accept the affidavit for filing with the Court.
[38] The defendants shall have until 30 days from the date of the present reasons for order to file and serve their statement of defence.