------------------------------------------------------------------------
(161) POITRAS v. A.-G.
ALTA. 143
------------------------------------------------------------------------
POITRAS ET AL. v. ATTORNEY-GENERAL FOR
ALBERTA
(1969), 7 D.L.R. (3d) 161 (also
reported: 68 W.W.R. 224)
Alberta Supreme Court, Riley J., 24
March 1969
------------------------------------------------------------------------
144 POITRAS v. A.-G.
ALTA. (161)
------------------------------------------------------------------------
/Practice -Action
for a declaration that Crown revenues be paid into
Metis Trust Account
-Attorney-General of Alberta named as defendant --
Proper Alberta
practice where proceedings really attacking Minister of
Government
Department -Metis Betterment Act, R.S.A. 1955, c.
202--Judicature Act
(Alta.), s. 14./
/Crown -Actions
against Crown -Action for declaratory judgment
amounting to attack
against Minister of Crown -Propriety of naming
Attorney-General as
defendant -Judicature Act (Alta.), s. 14./
The plaintiffs sought a declaration that
revenues received by the
Crown from any disposal of the mines and
minerals on lands set aside
for the settlement of members of the Metis
Settlement Association
should be paid into the Metis Population
Betterment Trust Account
rather than into the General Revenue Fund
of the Province. The
defendant sought to strike out the
statement of claim on the grounds
that the AttorneyGeneral was improperly
named as defendant, that
the plaintiffs had no capacity to bring
the action and that the
Minister of Public Welfare had never been
called upon to exercise
his discretion regarding the proceedings.
/Held/, the statement of claim should be
struck out. The proceedings
were for a declaratory action and really
constituted an attack
against the Minister of Public Welfare.
The proper practice in
Alberta is to name the Minister as
defendant and to obtain the
permission of the Lieutenant-Governor in
Council pursuant to s. 24
of the /Judicature Act/, R.S.A. 1955, c.
164, which provides that
such permission must be obtained before
any action can be
maintained against any member of the
Executive Council of the
Province, The naming of the
Attorney-General as defendant was
therefore improper. Had the defendant
brought an action under the
/Proceedings Against the Crown Act/, 1959
(Alta.), c. 63, having
first obtained the permission of the
Lieutenant-Governor in Council,
then the defendant would have been Her
Majesty the Queen in the
right of Alberta.
The final control of the Metis Association
was designed to rest with
the Department of Public Welfare and final
discretion in all
important matters lies with the Minister
of the Department. There
was no evidence to show that the
Associations made any
representations to the Minister in respect
to the matters in this
action and had they done so they might
well have received permission
to sue or obtain satisfaction in other
ways.
MOTION by the
defendants to strike out a statement of claim in an action
for a declaratory
judgment.
/T. R. Maccagno/,
for plaintiffs.
/W. F. McLean/, for
defendant.
RILEY, J.:--The
plaintiffs, who seek the authoritative guidance of the
Court, have
commenced a representative action against the
Attorney-General,
as defendant representing the
------------------------------------------------------------------------
(162) POITRAS v. A.-G.
ALTA. 145
------------------------------------------------------------------------
Crown, for a
declaratory judgment that upon a true construction of the
/Metis Population
Betterment Act/ (now the /Metis Betterment Act/,
R.S.A. 1955, c.
202) and the pertinent Regulations thereunder the
revenues received
by the Crown from any disposal of the mines and
minerals located on
the lands set aside and withdrawn for the settlement
of members of the
Metis Settlement Associations should be paid into the
Metis Population
Betterment Trust Account, on behalf of and for the
benefit of the said
associations and their members only, instead of into
the General Revenue
Fund.
Representations in
this regard to the provincial Cabinet have been
unsuccessful. A
request for a Reference to the Courts to determine the
true intent of the
legislation and Regulations in question was rejected.
The present
application by the defendant is to strike out the
plaintiffs'
statement of claim on the following main grounds:
(a) That the
Attorney-General of Alberta is improperly named therein as
defendant.
(b) That the
plaintiffs' named therein have no capacity at law to bring
this action and if any
right to bring action exists in respect to the
matters alleged in
the statement of claim, then such right to bring
action lies with
the Metis Settlement Associations and not with the
individual members
thereof.
(c) That the Metis
Settlement Associations have not at any time
indicated to the
Minister of Public Welfare or to any of his
predecessors or to
anyone in his Department or to anyone in the Metis
Rehabilitation
Branch any desire to bring action in respect to the
matters referred to
in the statement of claim and the Minister of Public
Welfare has
therefore never been called upon to exercise his discretion
as to whether or
not he should permit or forbid the commencement and
carrying on of such
proceedings.
The statement of
claim asks for no direct relief against the Crown but
merely for a
declaration to resolve a question of statutory
interpretation
where the revenues of the Crown as well as the rights of
a large number of
people are involved and it is plain that the draftsman
was relying on the
form of the action in the case of /Dyson v.
Att'y-Gen'l/,
[1911] 1 K.B. 410, and cases following it such as: /Tuxedo
Holding Co. et al.
v. University of Manitoba/, [1930] 3 D.L.R. 250, 38
Man. L.R. 506,
[1930] 1 W.W.R. 464; /Smith v. A.-G. Ont./,
------------------------------------------------------------------------
146 POITRAS v. A.-G.
ALTA. (163)
------------------------------------------------------------------------
[1923] 4 D.L.R. 1071, 53 O.L.R. 572 [affd [1924] 3 D.L.R. 189, [1924]
S.C.R. 331, 42
C.C.C. 215]; /Wigg et al. v. A.-G. Irish Free State/
(1927), 96 L.J.P.C.
88, and particularly Viscount Cave, L.C., at p.
102, wherein it was
stated:
Upon the first
point, therefore, their Lordships are of opinion that the
appellants have a
legal right which may be asserted in the Courts of the
Irish Free State;
and they see no objection to the form of the action,
which is brought
against the AttorneyGeneral for a declaration of
rights and is in
accordance with the well known decisions in /Att.-Gen.
v. Dyson/ and other
cases.
/Spooner Oils Ltd.
et al. v. Turner Valley Gas Conservation Bd./, [1932]
4 D.L.R. 750,
[1932] 3 W.W.R. 477 [revd [1933] 4 D.L.R. 545, [1933]
S.C.R. 629]; /A.-G.
Alta. v. Majestic Mines Ltd./, [1942] 4 D.L.R. 593,
[1942] S.C.R. 402; /A.-G. Alta. et al. v. Huggard Assets Ltd./, [1953] 3
D.L.R. 225, 8 W.W.R. (N.S.) 561.
A brief examination
of the statement of claim issued on July 29, 1968,
contains
allegations as follows:
(a) That there are
five of these associations formed pursuant to the
provisions of the
/Metis Population Betterment Act/, 1938 (Alta. 2nd
Sess.), c. 6 (now
the /Metis Betterment Act/, R.S.A. 1955, c. 202) and
that unoccupied
provincial lands were, by certain Orders in Council set
aside for these
associations.
(b) That by various
Orders in Council made under the said Act the
Minister charged
with administering the Act was empowered to make
Regulations or
Orders covering the administration and constitution of
the associations.
(c) That the Metis
Population Betterment Trust Account was first
established on
November 20, 1943, by O.C. 1785-43 and is presently
provided for by
Alta. Reg. 112/60.
(d) That by virtue
of the provisions of the said Act and the pertinent
Regulations
thereunder, all moneys received from the sale or lease of
petroleum and
natural gas rights and fees and royalties therefrom on all
of the said lands
are required to be credited to the said Trust Account.
(e) That to date,
the Government of the Province of Alberta has received
in excess of
$6,000,000 from dealing with the petroleum and natural gas
rights in the said
lands, and these moneys have been paid into the
General Revenue
Fund of the Province and not into the said Metis Popu-
lation Betterment
Trust Account.
(f) That the Metis
Settlement Associations have presented a submission
to the Government
in support of the con-
------------------------------------------------------------------------
(164) POITRAS v. A.-G.
ALTA. 147
------------------------------------------------------------------------
tention that they
are entitled to the said moneys and the benefits
thereof, but this
submission was wholly rejected.
(g) That the
Department of the Attorney-General has since indicated it
is not prepared to
consent to any legal proceedings of any nature or
kind being
commenced in this matter.
In the statement of
claim the plaintiffs seek declarations that mines
and minerals were
included in the provincial lands set aside for the
associations, and
that all moneys accrued or hereafter accruing from the
sale, lease or
rental of the petroleum and natural gas rights in the
said lands should
be held on behalf and for the benefit of the
respective associations.
In his said
affidavit, Tilley Maurice Johnston deposes to the effect
that he is the
Director of the Metis Rehabilitation Branch of the
Department of
Public Welfare and as such is responsible for the
supervision of the
said Metis Settlement Associations. He states that
Alta. Reg. 56/66
provides that the affairs and business of each
association shall
be transacted by a board consisting of three members
of the association
and that it shall be the duty of the board to
submit to the
Minister of Public Welfare proposals for the purpose of
the betterment of
the members of the association. He states further that
no representations
have been made by any of the associations or by any
member or members
thereof to the said Minister or to himself or to any
member of the Metis
Rehabilitation Branch respecting the bringing of
this action or
respecting the claims therein contained.
Aside entirely from
the Rules of Court there is, I think, inherent
jurisdiction vested
in the Court to strike out a statement of claim as
being plainly an
abuse of the process of the Court: /Hollinger Bus Lines
Ltd. v. Ontario
Labour Relations Bd./, [1951] 4 D.L.R. 47, [1951] O.R.
562, where Spence,
J., at p. 52 D.L.R., p. 568 O.R., states:
I am of the opinion
that Riddell, J. (as he was then) when he stated in
/Orpen v. A.-G.
Ont./, [1925] 2 D.L.R. 366 at p. 369, 56 O.L.R. 327
[affd [1925] 3
D.L.R. 301, 56 O.L.R. 530]: "The power left in the Court
by the Judicature
Act, R.S.O. 1914, c. 56, s. 16(/f/), and asserted by
C.R. 124 (Ont.), of
staying or dismissing any action which is plainly
frivolous or
vexatious or which discloses no reasonable cause of
action, is simply
that inherently possessed by the Court to prevent
abuse of its
process", cannot be taken as having decided that R. 124 had
the effect of
excluding any part of the inherent jurisdiction exercised
by the Court up to
the time of the enactment of the Rules and not
included in the
wording of the said Rule 124.
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148 POITRAS v. A.-G.
ALTA. (165)
------------------------------------------------------------------------
It does appear that
the Attorney-General is improperly named as the
defendant -that the
Alberta practice is to name as defendant the
Minister of the
Department concerned and before such proceedings can be
launched,
permission of the Lieutenant-Governor in Council must be obtained.
Reference is made
to /Great West Life Ass'ce Co. v. Baptiste/; /Canada
Life Ass'ce Co. v.
Mills/, [1924] 3 D.L.R. 1061, 20 Alta. L.R. 513,
[1924] 2 W.W.R.
920, which was an appeal from the judgment of Ives, J.,
wherein he had
directed that certain seed-grain liens filed under the
/Seed Grain Act/,
1921 (Alta.), c. 44, be foreclosed out in favour of
the mortgages held
by the plaintiffs. Relevant to this application are
the following
remarks of Beck, J.A., at pp. 1064-5:
Then comes the
question of the "foreclosure" of the liens on the land.
Counsel for the
Crown contends that the claims under the seed grain
liens are debts
owing to the Crown . . . and that sale or foreclosure
cannot be taken
against the Crown.
The older cases
apparently held that where the legal estate was in the
Crown this was so.
That is not at all events the case here. And the
recent cases of
/Dyson v. Attorney-General/, [1911] 1 K.B. 410 . . . and
/Burghes v.
Attorney-General/, [1911] 2 Ch. 139, make it quite clear
that the Court has
power to make a declaration of right with consequent
relief in an action
against the AttorneyGeneral although the immediate
and sole object of
the action is to effect the rights of the Crown in
favour of the
plaintiff.
In England the
Attorney-General always represents the Crown, /but under
our system of
Government/, where by statute, both Dominion and
Provincial, the
several Departments of Government are constituted under
different Ministers
of the Crown and the authority and duties of the
designated
Ministers are defined, /the Crown is represented by such
designated
Minister/, although the Attorney-General has a general
authority over
proceedings by or against the Crown or by or against a
Minister as
representing the Crown.
Here the particular
Minister who represented the Crown in the right of
the Province was
notified in accordance with the practice of the Court
of the jeopardy in
which the lien of the Crown would be placed, unless
the provincial
treasurer should see fit to redeem the plaintiff and the
provincial
treasurer appears by the AttorneyGeneral. . . .
The above case was
referred to in /Royal Trust Co. v. A.-G. Alta./,
[1936] 4 D.L.R. 98,
[1936] 2 W.W.R. 337, where Ford, J., stated at p. 106:
The case of /G. W.
Life Ass'ce Co. v. Baptiste/, [1924] 3 D.L.R. 1061,
20 A.L.R. 513, is
another interesting example of the application of
the rule laid down
in /Dyson v. Attorney General/ to the effect that
where the interests
of the Crown are only indirectly concerned the
Crown's rights may
be affected in favour of a plaintiff in an
------------------------------------------------------------------------
(166) POITRAS v. A.-G.
ALTA. 149
------------------------------------------------------------------------
action against the Attorney-General
or /in this Province against a
specified minister
of the Crown/....
[Italics added.]
Previously, Ford,
J., had dealt with the situation where the Crown's
interest was
directly concerned. At p. 101 he observed:
Whatever
jurisdiction the Court might have to make the declarations
asked if there was
non-existent in this Province any provision for a
proceeding by way
of petition of right, I am clearly of the opinion that
there is no remedy
available to the plaintiff herein except by petition
of right which
cannot be tried by the Court unless and until the
Lieutenant-Governor
in Council grants a /fiat/ that right be done. (The
Alberta Petition of
Right Act, R.S.A. 1922, c. 94, s. 4 ( 1 ) ) . Except
in cases specially
provided for by Statute, as for instance is provided
in England under
the Finance Act, 1894 (Imp.), c. 30, s. 10 for the
recovery back of
estate duty . . . the only way by which subjects of His
Majesty are enabled
to obtain back out of the hands of the Crown either
land, money or
goods, upon which the Crown has, rightfully or
wrongfully, laid
its hands, is by the proceeding known as a petition of
right, and where,
as in the present instance, the declarations are
sought as
foundations upon which to base a claim that the Crown is
wrongfully holding
money which of right belongs to the plaintiff the
Court has no
jurisdiction to make the declarations asked or any of them....
This 1936 decision
served in part to clarify the law in Alberta at that
time in that it
dealt with two different types of proceedings. One was
under the /Alberta
Petition of Right Act/ where it was necessary to
obtain a fiat to
sue Her Majesty. Proceedings were by way of petition in
a form set out in a
schedule to the Act. In that type of proceeding the
petition was
addressed to Her Majesty and not to the Minister of the
Department
involved. The other kind of proceedings were of the nature
contemplated by
/Dyson v. Atty'-Gen'l, supra/, where an action could be
brought seeking
declarations. In this latter type the Minister of the
Department
concerned was to be named as defendant and it was not
necessary to obtain
permission before commencing action.
With great haste
and indeed later in the same year, the Legislature
acted. In an
amendment to the /Judicature Act/, R.S.A. 1922, c. 72, it
provided that in
certain circumstances permission of the
Lieutenant-Governor
in Council would be necessary before any action
could be commenced
against a Minister. It seems obvious that, since the
/Alberta Petition
of Right Act/ was still in effect with its protection
of the Crown, the
Legislature was, at least in part, aiming at the
aforesaid second
type of proceedings. By 1936 (Alta. 2nd Sess.), c. 16,
the following new
section was added:
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150 POITRAS v. A.-G.
ALTA. (167)
------------------------------------------------------------------------
27/a/. No action
shall be brought or maintained against any member of
the Executive
Council of the Province whereby relief of any kind is
claimed on account
of anything done or omitted to be done by him in the
execution of his
office unless permission to bring or maintain such
action has first
been given by the Lieutenant Governor in Council.
Proceedings by way
of petition of right have of course been abolished by
the /Proceedings
Against the Crown Act/, 1959 (Alta.), c. 63.
Nevertheless, the
Act provides as follows:
3(1) This Act is
subject to /The Workmen's Compensation Act/, . . .
section 24 of /The
Judicature Act/ and such other enactments as may be
designated by the
Lieutenant Governor in Council.
Section 24 of the
/Judicature Act/, R.S.A. 1955, c. 164, is in
substantially the
same form and has the same meaning as s. 27/a/ in the
1936 amendment,
/supra/.
The /Proceedings
Against the Crown Act/ has been made subject to s. 24
of the /Judicature
Act/ to prevent proceedings of the nature of the
present action
being brought. In the statement of claim the plaintiff's
really are
attacking the Minister of Public Welfare.
In paras. 10 and 11
the plaintiffs are alleging that the Government of
Alberta has paid
money into the General Revenue Fund instead of the
Metis Population
Betterment Trust Fund. The declaration asked for in
para. (b), the
prayer, really is the means by which these and
subsequently
acquired moneys are to be placed in the said trust account.
Although the
plaintiffs make reference to the Government of the Province
of Alberta in these
paragraphs the Minister of Public Welfare is
responsible for the
administration of the Metis Population Betterment
Trust Account. This
is clearly provided in Alberta Reg. 112/60 which
reads in part as
follows:
The Lieutenant Governor
in Council, upon the recommendation of the
Minister of Public
Welfare, pursuant to section 8 of The Metis
Betterment Act, is
pleased to approve regulations relating to the
Administration of
the Funds of the Metis Settlement Associations in
accordance with the
Schedule hereto.
3. The Minister
shall provide for the general management and
administration of
such trust funds and may direct and authorize
expenditure
therefrom for any purpose which has for its objective the
advancement and
betterment of the members of Settlement Associations.
Since the Minister
of Public Welfare is responsible for the
administration of
the said trust fund it is his obligation to see that
moneys are properly
allocated thereto. Any failure on his part to
properly allocate
the moneys would come within
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(168) POITRAS v. A.-G.
ALTA. 151
------------------------------------------------------------------------
the meaning of the
words "/on account of anything . . . omitted to be
done by him/"
in s. 24 of the /Judicature Act/. The plaintiffs in
seeking the
declarations asked for should first have obtained the
consent referred to
in s. 24 and, provided that this consent was given,
should have named
the Minister of Public Welfare and not the
Attorney-General as
defendant. The plaintiffs might well, subject to
their first
obtaining the permission of the Minister of Public Welfare,
have brought action
under the /Proceedings Against the Crown Act/ and in
that event the
defendant would, I think, have been Her Majesty the Queen
in the right of
Alberta. (Note: All italics in this judgment are mine.)
Grounds (b) and (c)
of the defendant's notice of motion can, I think, be
conveniently,
judgment wise, treated together and on discussing the said
two grounds it is
necessary to examine the /Metis Betterment Act/ and
certain of the
Regulations, ministerial orders, etc., passed
thereunder and it
is noted in passing that the plaintiff's are relying
on it and in no
sense attacking it.
The earliest
predecessors of the /Metis Betterment Act/ was the /Metis
Population
Betterment Act/, 1938 (Alta. 2nd Sess.), c. 6. The preamble
to this Act reads
as follows:
WHEREAS by the
report, dated the 15th day of February, 1936, of a
commission
appointed pursuant to /The Public Inquiries Act/, on the 27th
day of February,
1933, certain recommendations were made for the
betterment of the
general welfare of the metis population of the Province;
And whereas it is
convenient and in the public interest that the ways
and means of giving
effect to such recommendations should be arrived at
by means of
conferences and negotiations between the Government of the
Province and
representatives of the metis population of the Province;
In the /Metis
Population Betterment Act/, 1940 (Alta.), c. 6, provision
was first made
under s. 4 for the formation of what were to be known as
the Metis
Settlement Associations. This section is very similar in
wording to s. 4 of
the /Metis Betterment Act/, which provides in part
as follows:
(2) The
constitution and by-laws of a settlement association shall
prescribe:
(/a/) the
qualifications for membership in the settlement association, and
(/b/) the
conditions of membership in the settlement association.
(3) A settlement
association shall have a local board consisting of a
chairman who shall
be the local supervisor of the area appointed by
the Metis
Rehabilitation Branch of the Department of Public Welfare . . .
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152 POITRAS v. A.-G.
ALTA. (169)
------------------------------------------------------------------------
(4) The Minister
shall appoint two members of the local board. . .
(5) The aims and
objects of a settlement association are to cooperate
with the Minister
in preparing and formulating schemes:
(/a/) for the
betterment of the members of the settlement association, and
(/b/) for the
settlement of members of the settlement association on
lands of the
Province set aside for that purpose.
(6) The
constitution of a settlement association is subject to the
approval of the
Minister, and when the constitution is approved it is
binding on all the
members of the settlement association.
(7) A board of a
settlement association may alter or amend the
constitution of the
settlement association only with the approval of the
Minister
To be noted is s-s.
(6) which is very similar to s. 28 of the /Companies
Act/, R.S.A. 1955,
c. 53.
The constitution of
these Settlement Associations was approved by
ministerial order
upon the advice of the LieutenantGovernor in
Council. This order
appears under O.C. 285-40 (36 Alta. Gaz., p. 186).
Of importance are
the following excerpts of this order at p. 187:
The affairs and
business of the Association shall be transacted by a
Board consisting of
not more than five members, who shall be elected in
the manner
hereinafter mentioned, and it shall be the duty of the Board
to submit to the
Minister the proposals for the purpose of the
betterment of the members
of the Settlement Association and for their
settlement on any
lands in the Province set aside for occupation by the
Settlement
Association under The Metis Population Betterment Act, and to
co-operate with the
Minister in the formation of schemes for such purpose.
at p. 189:
The Board may make
rules and regulations for calling meetings, governing
its proceedings for
the conduct of its meetings, and generally for the
transaction of its
business. Any question dealt with by the Board upon
which there is an
equality of votes shall be deemed to be in the
negative, but may
be submitted to the Minister and his decision thereon
shall be final.
at p. 189:
/Duties of the
Chairman of the Board /-He shall be the chief executive
officer of the
Settlement Association and shall
(a) cause the laws,
rules and regulations governing the Settlement
Association to be
duly executed;
(b) cause correct
records to be kept of all proceedings at all meetings
of the Settlement
Association and of the Board;
(e) report and
certify all by-laws and other acts and proceedings of
the Board to the
Minister;
(f) to communicate
from time to time to the Board all such information
and recommend such
measures as may tend to better the welfare of the
Settlement Association;
------------------------------------------------------------------------
(170) POITRAS v. A.-G.
ALTA. 153
------------------------------------------------------------------------
and at p. 190:
The Board of a
Settlement Association may pass by-laws and regulations,
not inconsistent
with the provisions of the constitution of the
Settlement
Association, pertaining to the management and governing of
the Settlement
Association and the reserved area occupied by their
Settlement
Association. Any such by-law and regulation passed by the
Board shall become
effective when approved by the Minister.
The constitution
and by-laws of Settlement Associations and the
qualifications for
membership in such Settlement Association and the
conditions of
membership therein and the regulations set forth in the
foregoing having
been adopted as the constitution of the following Metis
Settlement Associations
at the organization meetings . . .
Various Regulations
since this ministerial order have been passed
respecting the
constitution of the associations and the number of
directors in each
board has been reduced to three, all being elected by
the association
members. The present Regulation appears as Alta. Reg.
56/66. Worthy of
note is the first paragraph of s. 3 at p. 106,
Regulations,
reading in part as follows:
3. The affairs and
business of an association shall be transacted by a
Board consisting of
3 members which shall be formulated in the matter
hereinafter
mentioned. It shall be the duty of the Board to submit to
the Minister
proposals for the purpose of the betterment of the members
of the Settlement
Association . . .
Also worthy of note
is the following, at p. 108:
Such payments shall
be made on the receipt of the signed, original copy
of the minutes of
the meeting by the:
Supervisor of Metis
Rehabilitation,
Department of
Public Welfare . . .
Turning
specifically to the second ground of this application, the
Metis Settlement
Associations have existed since O.C. 285-40. They are
creatures of
statute and their constitution and by-laws are provided
for by s. 4 of the
present Act, /supra/. From their beginning, the
Regulations have
provided that the board of each association should
submit proposals or
by-laws for the betterment of the respective
association to the
Minister. In the case of a by-law, the by-law upon
being approved by
the Minister becomes part of that particular
association's
constitution (O.C. 285-40 at p. 190).
By s. 4 (6) of the
present Act, /supra/, the members of each association
are bound by its
constitution. Surely this must mean that they, through
their board of
directors, should submit a proposal or by-law to the
Minister respecting
the feasibility of bringing action respecting the
matters referred
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154 POITRAS v. A.-G. ALTA. (171)
------------------------------------------------------------------------
to in the statement
of claim. Should the Minister approve of the
proposal or by-law,
the association would have the capacity to sue Her
Majesty in its own name.
It is abundantly
plain that final control of the Metis Association was
designed to rest
with the Department of Public Welfare and final
discretion in all
important matters lies with the Minister of Public
Welfare.
There is no
allegation or evidence to indicate that the associations or
any one of them or
any member thereof has sought or been refused to
bring the present
or any other form of action respecting the matters
referred to in the
statement of claim had they, through their respective
boards, made proper
and adequate presentation to the Minister of Public
Welfare, they might
well have received permission to sue or obtained
satisfaction in
other ways.
In the statement of
claim it is alleged that the Department of the
Attorney-General
has indicated that it is not prepared to consent to any
legal proceedings
of any nature or kind being commenced in this matter.
If I be correct
then it is apparent that the Attorney-General has
absolutely no
jurisdiction to grant the necessary consent.
I am not unmindful
of the plaintiffs' further arguments that
(i) the section of
the /Judicature Act/ is inapplicable where the
Attorney-General is
named as representative of the Crown -the action
not being concerned
with the performance or non-performance of his
official duties but
seeks the Court's interpretation of the /Metis
Population
Betterment Act/ (now the /Metis Betterment Act/) and certain
Regulations
thereunder and that the Crown always acts through its
representatives. See
/Great West Life Ass'ce Co. v. Baptiste/, [1924] 3
D.L.R. 1061, 20
Alta. L.R. 513, [1924] 2 W.W.R. 920.
(ii) the members of
the Metis Settlement Associations have a real and
common interest in
the subject-matter of the declaration sought in this
action -and that
the rights of the plaintiffs who are all members of
the various Metis
Settlement Associations are in issue and that the
plaintiffs are
merely applying for the determination of the true
construction of the
pertinent statute and Regulations, and for a
declaration of
their rights thereunder. See /Interlake Tissue Mills
Ltd. v. George
Everall Co. Ltd./ (1921), 64 D.L.R. 206 at p. 207, 50
O.L.R. 165 at pp.
165-6:
------------------------------------------------------------------------
(172) POITRAS v. A.-G.
ALTA. 155
------------------------------------------------------------------------
The case of /Ellis
v. Duke of Bedford/, [1899] 1 Ch. 494, /Duke of
Bedford v. Ellis/,
[1901] A.C. 1, is authority for the general proposi-
tion that where a
statute confers certain rights upon a class an action
will lie by any
member of the class on behalf of all for a declaratory
judgment in
assertion of these rights.
In the /Ellis/
case, a number of market gardeners who were claiming
certain preferential
rights, sued on behalf of themselves and all
other such
gardeners within the meaning of a certain Act for a
declaration as to
the true construction of the Act in question.
(iii) the
permission of the Minister of Public Welfare is not required
to commence and
carry on this action-it being /not a proposal by a
Board "for the
purpose of the betterment of the members of the
Settlement Associations/
and for their settlement on any lands in the
Province set aside
for occupation by a Settlement Association . . ."
that plainer words
would be required if it were necessary for the
members of the
Settlement Associations to obtain ministerial approval
prior to proceeding
with this action. /This action is not concerned
with the internal
management of the Settlement Associations, the
subject-matter of
the aforesaid Regulation relied upon by the defendant./
(iv) the matters of
status which are raised in (b) and (c) of the
defendant's notice
of motion are questions of substance to be raised
in the defendant's
pleadings and cannot be the subject of the summary
application. See
/Sykes v. One Big Union/, [1936] 1 D.L.R. 662, 43 Man.
R. 542, [1936] 1
W.W.R. 237.
(v) striking out a
pleading should be exercised with extreme caution and
only in obvious
cases and where a question of general importance or a
serious question of
law arises on the pleadings, the Court will not
strike out the
pleadings unless it is clear and obvious that the
action will not lie.
The Court must be satisfied beyond a reasonable
doubt that no cause
of action is disclosed: /Security Trust Co. v.
National Trust/,
[1928] 2 D.L.R. 393, 24 Alta. L.R. 11, [1928] 1 W.W.R.
687; /Racine v. C.N.R./, [1923] 2 D.L.R. 572, 19 Alta. L.R. 529, [1923]
1 W.W.R. 1439;
/Minnes v. Minnes/ (1962), 34 D.L.R. (2d) 497 at pp. 503
/et seq/.;
/Electrical Development Co. of Ont. v. A.-G. Ont./, 47 D.L.R.
10 at p. 15, [1919]
A.C. 687; /Smith v. A.-G. Ont./ (1922), 52 O.L.R.
469 at p. 473; /Demers v. Desrosier/, [1928] 3 D.L.R. 100, [1928] 2
W.W.R. 60.
------------------------------------------------------------------------
156 POITRAS v. A.-G.
ALTA. (173)
------------------------------------------------------------------------
(vi) generally
speaking, the Courts have taken a very liberal attitude
in considering
whether a declaratory judgment or order will be granted
in a particular
case. In /Kloepfer Wholesale Hardware & Automotive Co.
v. Roy/, [1952] 3
D.L.R. 705, [1952] 2 S.C.R. 465, Locke, J., stated as
follows at p. 711
D.L.R., pp. 475-6 S.C.R.:
To make such a
declaration of right is expressly authorized by s-s.
(/b/) of s. 15 of
the /Judicature Act/, [R.S.O. 1950, c. 190; s. 32(/p/)
of our /Judicature
Act/] whether any consequential relief is or could be
claimed or not. The
section of the Ontario Act reproduces verbatim
Rule 5 of Order XXV
of the Rules of the Supreme Court 1883, under which
it has been held
that the making of such a declaration is not confined
to cases where the
plaintiff has a cause of action against the
defendant:
/Guaranty Trust Co. of N.Y. v. Hannay & Co./, [1915] 2 K.B.
536; /Russian
Commercial & Industrial Bk. v. British Bk. for Foreign
Trade/, [1921] 2
A.C. 438 at p. 452, /per/ Lord Sumner. In /Hanson v.
Radcliffe Urban
Dist. Council/, [1922] 2 Ch. 490 at p. 507, Lord
Sterndale M.R.
expressed the opinion that the power of the Court to make
a declaration under
this Rule where it is a question of defining the
rights of two
parties is only limited by its own discretion.
Reluctantly I grant
the motion applied for by the defendant. I say
reluctantly because
I am reminded of the words of Sir George Farwell who
delivered the
judgment of the Judicial Committee of the Privy Council in
the case of
/Eastern Trust Co. v. Mackenzie, Mann & Co. Ltd./, 22 D.L.R.
410 at pp. 417-8,
[1915] A.C. 750 at pp. 759-60:
The non-existence
of any right to bring the Crown into Court, such as
exists in England
by petition of right, and in many of the colonies by
the appointment of
an officer to sue and be sued on behalf of the Crown,
does not give the
Crown immunity from all law, or authorize the
interference by the
Crown with private rights at its own mere will.
There is a
well-established practice in England in certain cases where
no petition of
right will lie, under which the Crown can be sued by the
Attorney-General,
and a declaratory order obtained, as has been recently
explained by the
Court of Appeal in England in /Attorney-General v.
Dyson/ (1911), 1
K.B. 410, and in /Attorney-General v. Burghes/ (1912),
1 Ch. 173. It is
the duty of the Crown and of every branch of the
executive to abide
by and obey the law. If there is any difficulty in
ascertaining it the
Courts are open to the Crown to sue, and it is the
duty of the
executive in cases of doubt to ascertain the law, in order
to obey it, not to
disregard it. The proper course in the present case
would have been
either to apply to the Court to determine the question
of construction of
the contract, and to pay accordingly, or to pay the
whole amount over
to the receiver and to obtain from the Court an order
on the receiver to
pay the sums properly payable for labour and
supplies, as to the
construction of which their Lordships agree with
the Supreme Court
of Nova Scotia.
The duty of the
Crown in such a case is well stated by Lord Abinger in
/Deare v.
Attorney-General/, 1 Y. & C. Exch. at p. 208,
------------------------------------------------------------------------
(174) POITRAS v. A.-G.
ALTA. 157
------------------------------------------------------------------------
160 E.R. 80. After
pointing out that the Crown always appears (in
England) by the
Attorney-General in a Court of justice -especially in
a Court of Equity -where
the interest of the Crown is concerned, even
perhaps in a bill
for discovery, he goes on to say:--
"It has been
the practice, which I hope never will be discontinued, for
the officers of the
Crown to throw no difficulty in the way of any
proceeding for the
purpose of bringing matters before a Court of Justice
where any real
point of difficulty that requires judicial decision has
occurred."
The case at bar
graphically illustrates rule by the executive branch
of Government; the
administrative branch; and the bureaucrats; the
defiance of those
branches of "The rule of law"; all principles of
"equity"
and "fairness" resulting in subjugation of the Courts.
It goes without
saying that if the plaintiffs can find some method of
properly bringing
the matter before the Courts this decision does not
fetter them in any
way and is without prejudice to their rights so to do.
I quite agree that
the procedure laid down by Government somewhat
unilateral and
almost prohibitory by Government denies the prophesy
"that
government should be of the people, for the people and by the people".
I do not think that
Courts are mere interpreters of the law; I quite
agree that the
Courts are in no sense legislators but I do think
judicial
pronouncements may be helpful in shaping the law.
I express my
appreciation of the counsel concerned for very thorough and
able arguments.
Costs if demanded
may be spoken to.
/Motion granted/.