Papaschase First Nation v McLeod, 2021 ABQB 415

Court of Queen’s Bench of Alberta Citation: Papaschase First Nation v McLeod, 2021 ABQB 415 Date: 20210527 Docket: 1903 21547 Registry: Edmonton Between: Chief Calvin Bruneau and Papaschase First Nation Plaintiffs - and - Sandra Larocque McLeod, Shaun Gearing, Delmar Lapratt, Elaine Ashley, Darlene St. Jean, George Quinn Jr., Debbie Lynn Metz and Frances Doreen Wabasca Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Susan L. Bercov _______________________________________________________ I.

Introduction [ 1 ] The Plaintiffs issued a Statement of Claim suing the Defendants in tort. The parties’ dispute centers around who has authority to represent the Papaschase First Nation (PFN). The Amended Statement of Claim alleges negligence, defamation, breach of confidentiality, disclosure of personal information, fraud and conspiracy by the Defendants, described as “Rogue” members, trying to take over control of the PFN.

[ 2 ] The Plaintiffs apply for an injunction preventing the Defendants from taking

part in any meetings, elections, and social media posts directed against the Chief, Council, and the PFN. [ 3 ] The Defendants seek an adjournment of the injunction application to complete the examination of the Plaintiffs. In addition, the Defendants apply to strike the Amended Statement of Claim (Claim) on the grounds that the Plaintiffs lack legal capacity to sue and the Claim discloses no cause of action, is frivolous and an abuse of process. In the alternative, the Defendants apply for

summary dismissal or, in the further alternative, security for costs. [ 4 ] The applications were scheduled for a half-day special chambers application. There was insufficient time to hear all applications. I heard the Defendants application to strike the Claim. I adjourned the Plaintiffs’ application for an injunction and the Defendants’

summary dismissal and security for costs applications sine die pending my decision on the Defendants’ application to strike the Claim. [ 5 ] This is my decision on the Defendants’ application to strike the Claim. [ 6 ] The Defendants apply to strike on two grounds. The first is that the Court has no jurisdiction because the Plaintiffs lack legal capacity to sue. The second is that the Claim discloses no cause of action, is frivolous, or an abuse of process. [ 7 ] The Plaintiffs argue they have legal capacity to sue and that the Claim discloses causes of actin.

If the Claim is deficient, the appropriate course is for the Defendants to demand particulars. [ 8 ] The issues I must decide on this application are: a. Do the Plaintiffs have legal capacity to sue? b. Does the Claim disclose a cause of action? c. If the Plaintiffs lack capacity to sue or the Claim is defective, what is the proper remedy? [ 9 ] For the reasons that follow I find: a. The Plaintiffs lack legal capacity to sue. b. While there are a number of deficiencies in the pleading, I am not satisfied that all alleged causes of action must fail if the proper parties with legal capacity are substituted. c.

The Claim requires significant amendments and must be brought by parties with legal capacity. In these circumstances, I conclude that the proper remedy is to strike the Claim. II. Rule 3.68 of the Alberta Rules of Court [ 10 ] Rule 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 provides: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out;

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(

b) III. Legal Capacity to Sue [ 11 ] The Defendants argue that the Claim should be struck under r 3.68(2)(

a) as the Plaintiffs do not have legal capacity to sue. Accordingly, the Court has no jurisdiction. [ 12 ] At common law, in order to sue or be sued, a party must be a natural person, corporation or a body given capacity to sue or be sued through legislation: Doe v Canada , 2001 ABCA 216 ; Bruderheim Community Church v Board of Elders , 2018 ABQB 90 ; Kwicksutaineuk/Ah-Kwa-Mish First Nation v Canada (Attorney General) , 2012 BCCA 193 (Kwicksutaineuk ) . [ 13 ] Unincorporated Associations do not have capacity to sue or be sued absent legislation providing otherwise: Kwicksutaineuk ,

para 65. [14] An Indian Band, as defined by the Indian Act R.S.C. 1985 c.I-5 (Act) is a juridical person that can sue and be sued in its ownname: Wilson v British Columbia (Attorney General), 2007 BCSC 1324, at para 57; Kwicksutaineuk at para 57; Papaschase IndianBand No. 136 v Canada (Attorney General) (Papaschase) 2004 ABQB 655 at para 166.

Position of the Parties [15] Both parties agree that in order to sue or be sued a party must be a natural person, corporation or a body given legal capacityto sue through legislation. [16] Both parties acknowledge that PFN is not registered under the Act and there is no legislation providing PFN with legalcapacity to sue. [17] The Defendants argue it is clear from Papaschase that the Papaschase Band is not registered under the Act. It is a collectiveentity without enabling legislation. Suing as PFN, rather than the Papaschase Band, is just another “kick at the can” to gain legalrecognition in an indirect way.

While the Defendants concede that the other Plaintiff, Calvin Bruneau, is a natural person with legalcapacity to sue, they argue that Calvin Bruneau has not sued as an individual. He sues, allegedly as the Chief of PFN. Neither Plaintiff isa natural person, corporation or body given legal capacity to sue through legislation. As the Plaintiffs lack legal capacity this Court hasno jurisdiction and the Claim should be struck. [18] The Claim is not styled as a representative action.

The Plaintiffs do not argue that the intent is to bring a representative action.The Plaintiffs’ position is that this is an action brought by an individual, Calvin Bruneau, and a society, operating as the PFN. ThePlaintiffs argue that both entities have legal capacity to sue. Calvin Bruneau is a natural person and suing as Chief Calvin Bruneau is thesame as suing in the name of Calvin Bruneau. Chief is just a title, similar to Dr. Calvin Bruneau registered the Papaschase Cree NationSociety (“Society”). PFN is an operating name for the Society.

Relying on Stacey v Choose Life Canada, 2001 BCHRT 44 (Stacey), thePlaintiffs argue that a plaintiff can sue using an operating name. [19] The Plaintiffs also rely on R v Big River First Nation, 2019 SKCA 117 (Big River) and Telecom Leasing Canada (TLC) Ltdv Enoch Indian Band of Stony Plain Indian Reserves No. 135, (AB KB), 133 AR 355 (ABQB) (Telecom) in supportof their argument that both the Chief and the PFN have legal capacity to sue. The Plaintiffs argue that they have a right to self-determination, including the right to elect their people under election codes.

The Assembly of First Nations and other governmentagencies have recognized the PFN. Analysis [20] Calvin Bruneau is a natural person and has legal capacity to sue for wrongs committed against him. The Claim allegesdefamation against Calvin Bruneau. I find that Calvin Bruneau has legal capacity to advance an action to recover damages for anydefamatory statements or other wrongdoings against him. Calvin Bruneau has chosen to sue as Chief Calvin Bruneau, arguing there is nodifference between the two. [21] I disagree that Calvin Bruneau is the same individual as Chief Calvin Bruneau.

In argument counsel indicated that if the claimis amended to leave the Chief part out, “... it becomes a free for all”. This reinforces my view that Calvin Bruneau and Chief CalvinBruneau are not the same. Chief is an elected position. An action by the Chief implies a representative action. [22] The Society is an entity with legal capacity to sue. The Plaintiffs have chosen not to include the Society as a named Plaintiff.They argue that PFN is an operating name of the Society and that the Plaintiff is the Society, operating as PFN.

The Plaintiffs rely onStacey that it is permissible to use an operating name of a legal entity as a plaintiff. [23] I conclude that Stacey is distinguishable. The facts of that case are unique. In my view, Stacey is not authority supporting ageneral rule that a plaintiff is not required to use their legal name when suing. While it is not unusual to see a plaintiff described by theirlegal name followed by the operating name, the authorities do not support suing only using an operating name. [24] The cases the Plaintiffs rely on, Big River and Telecom, are distinguishable.

In those cases, the Bands were recognized underthe Act and there was legislative authority for the Bands or the Chiefs and Council to act. I agree with the Defendants that the right toself-determination is not relevant to the issue of legal capacity to sue. The issue in this case is whether Chief Calvin Bruneau and thePFN have legislative authority to sue. I conclude they do not. PFN is a collective entity without enabling legislation to sue.

Summary [25] I conclude that the Plaintiffs have no legal capacity to sue for the allegations in the Claim. As such, this Court lacksjurisdiction. Calvin Bruneau and the Society are entities with legal capacity to sue. Although the Plaintiffs argue there is no differencebetween Chief Bruneau and Calvin Bruneau, and no difference between the Society and the PFN, the Plaintiff were unwilling during oralargument to consider amending the named Plaintiffs to Calvin Bruneau and the Society. In my view there is a difference. IV.

Does the Amended Statement of Claim Disclose aCause of Action? [26] Given my conclusion that the Plaintiffs lack capacity to sue it is not necessary for me to consider whether the claim should

also be struck on the basis that it discloses no reasonable cause of action, is frivolous, or constitutes an abuse of process. However, if I am wrong in this conclusion or the Plaintiffs or others choose to file a new claim brought by entities with legal capacity to sue, I will consider whether the Claim should be struck on the basis that it discloses no cause of action, is frivolous, or constitutes an abuse of process.

Law [ 27 ] The test for determining whether an action should be struck for disclosing no reasonable claim (or cause of action) is described in R v Imperial Tobacco Canada Ltd , 2011 SCC 42 ( Imperial Tobacco ) at para 17 : A claim will only be struck if it is plain and obvious , assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: ... Another way of putting the test is that the claim has no reasonable prospect of success .

Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial ... [emphasis added] [ 28 ] When applying the test under subrule 3.68(2)(b), the Court must “accept the allegations of fact as true except to the extent the allegations are based on assumptions or speculation or where they are patently ridiculous or incapable of proof” and “the Court must err on the side of generosity in applying the test and permit novel, but arguable, actions to proceed”: Grenon v Canada Revenue Agency , 2017 ABCA 96 at para 6 , leave to appeal to SCC refused, 37584 (21 September 2017). [ 29 ] In Imperial Tobacco , at para 21 , the Supreme Court of Canada emphasized the importance of permitting claims to proceed where the law is evolving: Valuable as it is, the motion to strike is a tool that must be used with care.

The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. ... The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions ...Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed.

The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. [ 30 ] Striking statements of claim that do not disclose a cause of action weeds out hopeless claims and promotes litigation efficiency, reducing time and cost: Imperial Tobacco at paras 19 and 20 . [ 31 ] The party applying to strike carries the burden of demonstrating that it is plain and obvious the pleadings disclose no reasonable cause of action: Carbone v Burnett , 2019 ABQB 98 at para 10 . [ 32 ] The Defendants rely on the decision in Arabi v Alberta , 2014 ABQB 295 ( Arabi ) .

In Arabi Justice Gill articulates the following principles to apply in determining whether to strike a pleading: • An action may be struck under Rule 3.68 where it is plain and obvious, or beyond reasonable doubt, that the action cannot succeed.

Pleadings should be considered in a broad and liberal manner: para 37 • A pleading is frivolous if its substance indicates bad faith or is factually hopeless: para 37 • Litigation that is commonly referred to as “vexatious” may be struct as that term is synonymous with abuse of process: para 37 • The operation of Rule 3.68 is guided by the Alberta Rules of Court general principles which aim to structure litigation in an efficient manner to obtain a timely and cost-effective result: para 38 • In evaluating a Rule 3.68(2)(

a) application I must presume that the alleged facts are true.

However, a fact is different from a bald allegation: “...that recite[s] the basic elements of the tort in very general terms but fails to provide material facts sufficient to demonstrate an intentional wrongdoing...”: para 72 • A court may strike a proceeding based on incomprehensible arguments and allegations, where the defendant is left both embarrassed and unable to defend itself and the court is unable to discern an argument: para 84 Analysis [ 33 ] The Claim allege several different wrongs: negligence, breach of confidentiality, theft of information, breaches of FOIP, fraud, defamation, and conspiracy.

There are several difficulties with the Claim: a. Some of the alleged wrongdoings are recognized torts in law (example negligence and defamation) while others are not recognized torts (breaches of FOIP); b. Where the alleged wrongdoings are recognized torts in law, for several alleged wrongdoings, the Claim does not plead the essential elements of the tort; and c.

In cases where the alleged wrongdoing might amount to a recognized tort in law, the party who has been wronged is not the party suing. [ 34 ] With the exception of some allegations of defamation against Calvin Bruneau, accepting that the allegations in the Claim are true and considering the Claim in a broad and liberal manner, I conclude that the proceeding as currently plead has no reasonable prospect of success.

[ 35 ] I will analyze the Claim to illustrate the difficulties identified above by using the headings in the document. Gross Negligence Claim [ 36 ] The Claim alleges the Defendants “neglected to undertake diligent care in relaying information to the public and in doing so committed libel”. Particulars of the gross negligence are then provided. When asked whether the paragraphs under the heading “Gross Negligence Claim” were intended to advance the tort of negligence, Counsel indicated that it was the gross negligence that led to the libel. [ 37 ] Negligence and defamation are different causes of action.

The Defendants are entitled to know whether the Plaintiffs are advancing a negligence action separate and apart from an action in defamation. If so, the Defendants are entitled to know who the Plaintiffs allege the Defendants owe a duty of care to, the nature of the duty of care, and who suffered damages. This is not clear in the Claim. Confidentiality [ 38 ] The Claim alleges that the Defendants published contents of a meeting the Defendants held, through social media platforms, in breach of an implied agreement of confidentiality.

The Defendants knew or ought to have known that third parties would react on the information. The Plaintiffs claim damages for those breaches. [ 39 ] The Plaintiffs do not refer to any case law establishing that a breach of confidentiality is actionable in tort. Even if so, it is actionable only by those individuals who sustained damages. The Claim fails to identify who was damaged or how. Based on the allegations in the Claim, the meeting was a meeting attended by the Defendants. Presumably the implied agreement of confidentiality was an agreement reached amongst the Defendants.

Thus, a breach of the implied agreement of confidentiality is actionable, if at all, by one or more Defendants and not the Plaintiffs. Breach of Confidentiality/Theft of Information/FOIP Violation [ 40 ] The Plaintiffs also allege that the Defendant, George Quinn Jr., publicly posted on Facebook names, dates of birth, social security numbers, addresses and telephone numbers of current PFN members. [ 41 ] Whether privacy interests are actionable in tort is not yet settled. The Ontario Court of Appeal has recognized the tort of intrusion upon seclusion: Jones v Tsige 2012 ONCA 32 .

Assuming, without deciding, that Alberta recognizes this tort, the breach of privacy is actionable by the individuals whose privacy interests were invaded. In this case, that would be the individuals whose personal information was posted and not the Plaintiffs. Defamatory Statements and Damage to Reputation [ 42 ] The Plaintiffs allege that the Defendants published defamatory statements that damaged the Plaintiffs’ reputation. [ 43 ] The alleged defamatory statements are a mixture of: a.

Statements that are potentially capable of grounding an action in defamation by Calvin Bruneau (examples include paras 38 – 41, and 48); b. Statements that are more properly characterized as allegations of misrepresentation where the elements of the tort of misrepresentation are not properly plead (examples include paras 32, 33, 55); and c. Other statements that are difficult to understand what tort they relate to (examples include paras 51, 53, and 57).

Fraud/Confusion/Uncertainty [ 44 ] Under this heading are allegations that the Defendants, characterized as ‘Rouge’ members are attempting to take over the PFN. [ 45 ] In Bruno Appliance and Furniture, Inc v Hryniak, 2014 SCC 8 , at para 21 the Supreme Court of Canada set out the following necessary four elements to establish the tort of civil fraud: a. A false representation made by the defendant; b. Some level of knowledge of the falsehood of the representation on the part of the defendant c. The false representation caused the plaintiff to act; and d.

The plaintiff’s actions resulted in a loss [ 46 ] The allegations under this heading do not allege the elements necessary to establish the tort of civil fraud. Conspiracy

[ 47 ] In Alberta v Altria Group, Inc, 2015 ABQB 390 , Strekaf J, as she then was, at para 79, summarized the common law tort of conspiracy as follows: A common law conspiracy exists when two or more entities agree to commit “an unlawful act, or to do a lawful act by unlawful means” provided that damage results to the person against whom the conspiracy is formed...

Prior courts have held that, when claiming conspiracy, the plaintiff’s the statement of claim must describe the parties to the conspiracy, the purpose of the conspiracy, and must give particulars of the agreement, the overt acts committed, and the damage sustained as a result of the conspiracy... [ 48 ] The Plaintiffs argue that the conspiracy alleged is to defeat the duly elected Chief of the PFN and confuse the public, industry, and government. The Claim does not plead the damage sustained as a result of the alleged conspiracy. Paragraph 59 of the Claim, under a different heading, pleads speculative damages. V.

Proper Remedy [ 49 ] The Plaintiffs argue that if there are deficiencies in the Claim, the proper remedy is to order particulars. The Defendants argue that particulars cannot cure the types of deficiencies in this case. [ 50 ] As a general rule, proceedings should not be struck where deficiencies can be cured by amendments. This is particularly so where the limitation period for bringing the claim has not yet expired, which is the situation in this case.

Where deficiencies in the pleadings can be rectified by particulars or amendments to the pleadings, it is more efficient to direct that particulars be provided or pleadings be amended rather than striking the pleadings. [ 51 ] In this case, particulars will not cure the deficiencies. The dispute between the parties centers around who is duly authorized to represent the interests of the PFN members. The Plaintiffs’ position is that there was an election and that Chief Bruneau was elected as the authorized representative.

The Defendants wrongdoing is in not recognizing the authority of Chief Bruneau and in taking actions that dispute or contradict that authority. [ 52 ] I conclude that in this case it is not more efficient to direct that the pleadings be amended rather than striking the pleadings for the following reasons: a. For the action to proceed, parties with legal capacity to sue must be substituted for the current Plaintiffs.

Although the Plaintiffs argue that there is no difference between Chief Bruneau and Calvin Bruneau and that the Society is really the Plaintiff with PFN being the operating name, the Plaintiffs expressed extreme reluctance during oral argument to substitute Calvin Bruneau and the Society as the named Plaintiffs; b. While deficiencies in alleging essential elements of the torts can be rectified by amending the pleadings, some of the alleged wrongdoings, such as breaches of privacy, must be brought by individuals whose privacy rights were violated.

Amending pleadings to provide more particulars will not cure this; and c. The Defendants brought a

summary judgment application that was adjourned sine die . Accordingly, I did not hear arguments about whether the allegations disclose a genuine issue requiring a trial and I make no conclusions on this issue. Given that the core dispute is about the validity of an election, in deciding whether to commence a new action, the Plaintiffs may wish to consider whether the critical alleged wrongdoings are justiciable, and, if so, on what basis: Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga , 2021 SCC 22 .

At para 31 of the decision the Supreme Court states: Of course, many voluntary associations will exercise some legal rights, for example, owning property or contracting for services. The question to be answered in a given case is not whether the voluntary association exercises legal rights in general, but whether the particular relief sought by the plaintiff is the vindication of a legal right.

If not, then there is simply no cause of action ... and no basis for relief. [ 53 ] I conclude for the above reasons that the Amended Statement of Claim should be struck. [ 54 ] If the parties are unable to agree on costs, they may submit a brief, maximum two-page, argument on costs, within 60 days of publication of this decision. Heard on the 24 th day of March, 2021. Dated at the City of Edmonton, Alberta this 27 th day of May, 2021. Susan L. Bercov J.C.Q.B.A.

Appearances: Wilfred Willier of Willier and Company for the Plaintiffs Darlene M St. Jean (now known as Darlene M. Misik) of St. Paul Legal Services for the Respondents Sandra Larocque McLeod, Darlene St. Jean, George Quinn Jr. Delmar Lapratt Self-represented