2011 NLCA 36, 2011 NLCA 36

Case Name: Best v. Nunatsiavut Assembly Between Tracey Best, Appellant, and Nunatsiavut Government, on behalf of the Nunatsiavut Assembly, Respondent And between Emily Best, by Her Guardian Ad Litem, Maurice Best, Appellant, and Nunatsiavut Government, on behalf of the Nunatsiavut Assembly, Respondent And between Jillian Mugford, Appellant, and Nunatsiavut Government, on behalf of the Nunatsiavut Assembly, Respondent [2011] N.J. No. 190 2011 NLCA 36 [2011] 4 C.N.L.R. 40 308 Nfld. & P.E.I.R. 72 11 C.P.C. (7th) 346 2011 CarswellNfld 184 Dockets: 09/62, 09/63 and 09/64 Newfoundland and Labrador Supreme Court - Court of Appeal

M. Rowe, L.D. Barry and M.F. Harrington JJ.A. Heard: January 21, 2011. Judgment: June 7, 2011. (40 paras.) Aboriginal law -- Treaties and agreements -- Construction and

interpretation --

Interpretation -- Agreements -- Land claims agreements - - Constitutional issues -- Federal v. provincial jurisdiction -- Practice and procedure -- Courts -- Jurisdiction -- Appeal by plaintiffs in three proposed actions against Nunatsiavut from order setting aside statements of claim allowed -- Plaintiffs alleged that Labrador Inuit Association, predecessor to Nunatsiavut, either wrongfully denied them membership or revoked their memberships, causing damages -- Agreement providing for Federal Court's exclusive jurisdiction over benefits claims did not necessarily preclude claims for damages resulting from denial of membership -- Interests of justice served by permitting plaintiffs to amend pleadings to add Association as defendant in case successorship issue decided against them -- Matter remitted to Trial Division of Supreme Court for determination of jurisdiction, once claims amended.

Civil litigation -- Civil procedure -- Courts -- Jurisdiction -- Federal courts -- Provincial and territorial courts -- Superior courts -- Appeal by plaintiffs in three proposed actions against Nunatsiavut from order setting aside statements of claim allowed -- Plaintiffs alleged that Labrador Inuit Association, predecessor to Nunatsiavut, either wrongfully denied them membership or revoked their memberships, causing damages -- Agreement providing for Federal Court's exclusive jurisdiction over benefits claims did not necessarily preclude claims for damages resulting from denial of membership -- Interests of justice served by permitting plaintiffs to amend pleadings to add Association as defendant in case successorship issue decided against them -- Matter remitted to Trial Division of Supreme Court for determination of jurisdiction, once claims amended -- Rules of the Supreme Court of Newfoundland and Labrador, 1986, Rules 7, 10.

Appeal by the Bests and Mugford from an order setting aside their statements of claim filed in three proceedings against the Nunatsiavut Government. Nunatsiavut came into existence in 2006 as a result of the Labrador Inuit Land Claims Agreement negotiated through the Labrador Inuit Association and the federal and provincial governments. The Bests and Mugford took the position that Nunatsiavut was the successor in all respects to the Association. The Bests' claim arose from the Association's decision to decline their membership requests prior to the formation of Nunatsiavut.

Both sought remedies including enrolment on the Labrador Inuit Enrolment Register as well as damages. Mugford's claim arose from the financial consequences of her loss of Association membership in 1997. Mugford was granted beneficiary status on the Register in 2006. She sought monetary damages for lost medical and other benefits during the period she was excluded from membership. None of the plaintiffs named the Association as a defendant to their actions, relying on the successorship theory.

In setting aside all three statements of claim, the judge found the Agreement provided the Federal Court with virtually full appellate jurisdiction in respect of all benefits matters. He characterized the claims as applications challenging decisions relating to beneficiary status, which had to be made to the Federal Court. He held the Supreme Court of Newfoundland and Labrador had no jurisdiction to hear the claims. HELD: Appeal allowed.

The matter was remitted to the Trial Division to permit applications by the Bests and Mugford to amend their pleadings, to have the court determine the effect of the successorship provision in the Agreement and whether the Association needed to be added as a defendant, and to seek a decision as to whether the amended pleadings raised a valid cause of action within the jurisdiction of the Supreme Court. It was not clear that the damage claims fell outside the jurisdiction of the Supreme Court. The Agreement only provided for the Federal Court's exclusive jurisdiction over benefits claims.

It was in the interests of justice to permit the Bests and Mugford to amend their pleadings to join the Association as a defendant, should the court find the successorship provision of the Agreement did not impose liability on Nunatsiavut for the alleged acts and omissions of the Association. Statutes, Regulations and Rules Cited: Class Proceedings Act, SNL2001

CHAPTER C-18.1 , Corporations Act, RSNL1990

CHAPTER C-36 , Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 21 Federal Court Act, R.S.C. 1985, c. F-7, s. 17 Rules of the Supreme Court of Newfoundland and Labrador, 1986, Rule 7.04(1), Rule 7.04(2)(b), Rule 10.05

Appeal From: (General), 200708T0077, 200708T0075, 200708T0076. Counsel: Counsel for the Appellants: Frank Layte. Counsel for the Respondent: Randell Earle, Q.C. Reasons for judgment were delivered by L.D. Barry and M.F. Harrington JJ.A. Concurred in by M. Rowe J.A. 1 L.D. BARRY and M.F. HARRINGTON JJ.A. :-- Three appeals come before this Court as a result of the setting aside of three statements of claim commenced in the Trial Division under the Class Actions Act, S.N.L. 2001, c. C-18.1.

The applications judge granted the respondent's application on the grounds that the Trial Division lacked jurisdiction to hear the matters arising under the statements of claim. The appellants seek to reverse the order of the applications judge or in the alternative request to have the statements of claim stayed pending certain determinations by the Federal Court of Canada.

BACKGROUND 2 The respondent came into existence in 2006 as a result of the Labrador Inuit Land Claims Agreement ("the Agreement") negotiated and ratified between the Inuit of Labrador through the Labrador Inuit Association ("the LIA") and the federal and provincial governments. The appellants assert that the respondent is the successor in all respects to the LIA. In the cases of Tracey and Emily Best, the LIA declined to grant membership prior to the formation of the respondent. Jillian Mugford's claim arises from the financial consequences of her loss of LIA membership in 1997.

She was granted beneficiary status on the Labrador Inuit Enrolment Register ("the Register") in 2006. 3 The applications judge made reference in his reasons to paras. 4 to 7 of the statement of claim of Emily Best as being representative of all three claims. Those paragraphs read as follows: 4. The LIA was formed in or about A.D. 1973 to represent the rights and interest of the Inuit of Labrador, specifically to pursue a Land Claim as against the Federal Government of Canada and the Provincial Government of Newfoundland and Labrador relating to traditional Inuit lands located in Labrador.

In or about 1977 the LIA filed a Land Claim with the Federal and Provincial Government aforesaid. In or about the year 1999 the LIA ratified an Agreement in Principle with respect to this Land Claim. In or about 2004 the Labrador Inuit Land Claims Agreement Act , S.N.L. 2004, c. L-31, was passed in the Newfoundland and Labrador House of Assembly. And on or about the 22nd day of January, A.D. 2005, the Governments of Canada, Newfoundland and Labrador and the LIA signed the Land Transfer Agreement. The LIA held its last annual General Assembly on or about May 23-27, A.D. 2005.

At this meeting the LIA approved a compensation payment of $5,000.00, payable out of the Inuit Capital Trust provided by the Federal Government, to each Inuit registered on the LIA voter list as of May 26, 2004. The Defendant is the successor in title to the LIA. 5. Pursuant to

Part 3.2 of the Labrador Inuit Land Claims Agreement (hereinafter the "Land Claims Agreement"), the Defendant, or its predecessor in title the LIA, was made responsible for compiling a list of the eligible beneficiaries who were "Inuit" or "Kablunangajuk" as defined by the Land Claims Agreement (Part 3.1.1). These beneficiaries would, inter alia , be eligible for participation in the Nunatsiavut Government, have voting rights and also would be eligible to receive compensation and other benefits as members. 6.

The Plaintiff states that, prior to the ratification of the Land Claims Agreement, the LIA, which is now represented by the Defendant, undertook to compile a Voters List of all eligible Labrador Inuit and Kablunangajuk (hereinafter "members"). The Plaintiff further states that all eligible members would receive, inter alia , monetary compensation in the amount of $5,000.00 per member (hereinafter referred to as the "monetary compensation") as outlined in paragraph 4 above.

Pursuant to the Land Claims Agreement, the Defendant and/or the LIA prepared and maintained The Labrador Inuit Enrolment Register containing the names of each individual determined to be a beneficiary of the Land Claims Agreement. 7.

The Plaintiff further states that the Defendant's actions are in violation of the fiduciary duties the Defendant owes to the members, including the Plaintiff herein. 4 The plaintiffs allege that those Inuit who had been recognized for inclusion on the voters' list for the vote to ratify the Agreement were automatically recognized by the regional membership committees for beneficiary status under the Agreement. 5 The relief claimed in the two class action statements of claim filed on behalf of Tracey and Emily Best include orders for enrolment on the Register as well as monetary damages arising from the denial of membership during the period from the incorporation of LIA to the legislative creation of the respondent.

In the statement of claim seeking certification of a class action in the name of Jillian Mugford, the relief claimed does not seek enrolment on the Register (this has already occurred) but rather seeks monetary compensation during the

alleged period of deprivation of membership in the LIA prior to 2006 and any monetary losses arising from delay in the grant of membership. 6 The applications judge had before him the submission of the respondent that the LIA is a subsisting body corporate under the Corporations Act , R.S.N.L. 1990, c. C-36. It appears that its raison d'etre ceased with the ratification of the Agreement in 2005.

The provisions of the Agreement called for the establishment of five regional enrolment committees, an Enrolment Appeal Commission, membership committees and a review board called the Labrador Inuit Membership Appeal Board, all ostensibly designed to deal with eligibility and membership issues with regard to status and benefits. 7

Part 3.12.1 of the Agreement provides that no order, decision or ruling of the Commission or the Board may be appealed and that every such order, decision or ruling is final and may not be reviewed by any court except as permitted by that part of the Agreement. However,

Part 3.12.2 provides that an application for judicial review from an order, decision or ruling of the Commission or the Board may be made to the Federal Court by an individual directly affected by the order, decision or ruling, within 30 clear days from the date of such determination being received by the affected individual. 8 All three of the claims in this matter at least partially arise out of a denial of enrolment and beneficiary status on the Register established under the Agreement. 9 Tracey Best's class of claimants previously held LIA membership, which was subsequently revoked and never reinstated.

She had not been enrolled prior to the date of the hearing before the applications judge in order to be eligible for benefits under the Agreement. In her statement of claim she requests that the court: (

a) Certify the proceeding as a class proceeding; (

b) Order the Nunatsiavut Government to immediately enroll the Plaintiff and all members of the class on the Labrador Inuit Enrolment Register ("LIER"); (

c) Order the Nunatsiavut Government to pay the monetary compensation owed to the plaintiff and the class; (

d) Order the Nunatsiavut Government to reimburse the plaintiff and the class for all benefits owed to the plaintiff and the class for the period of time during which they had been arbitrarily removed from the LIA voters list and/or the LIER; 10 Emily Best, an infant plaintiff, represents claimants who never held LIA membership since birth. Membership was allegedly sought and rejected. In her statement of claim, she requests the same relief sought by the Tracey Best class.

In both claims, punitive damages are sought. 11 Jillian Mugford represents claimants who previously held LIA membership, which was revoked 1 , but subsequently reinstated. In her statement of claim she requests that the Court: (

a) Certify the proceeding as a class proceeding; (

b) Order the Nunatsiavut Government to pay the monetary compensation owed to the plaintiff and the class; (

c) Order the Nunatsiavut Government to reimburse the plaintiff and the class for all benefits owed to the plaintiff and the class for the period of time during which they had been arbitrarily removed from the LIA voters list and/or the LIER. 12 The plaintiffs' claims against the Nunatsiavut Government appear to be based at least in part on the acts or omissions of the LIA, which the plaintiffs claim to be the predecessor of the respondent.

Section 2.2.2 of the Agreement provides: 2.2.2 On the Effective Date, the Nunatsiavut Government becomes the successor of Labrador Inuit Association for purposes of the Agreement. 2 13 The respondent, however, argues that neither this clause nor any other in the Agreement imposes liability on the respondent for acts or omissions of the LIA. The applications judge did not deal with this argument. 14 The respondent's jurisdictional argument is based on its

interpretation of

section 3.12 of the Agreement. This section, which established rights of judicial review from Commission and Board decisions regarding the enrolment of beneficiaries, reads: 3.12.1. No order, decision or ruling of the Commission or the Board may be appealed.

Every order, decision or ruling of the Commission or the Board is final and may not be reviewed in any court except as permitted by this part. 3.12.2 Notwithstanding sections 3.5.8 and 3.10.6, an application for judicial review of an order, decision or ruling of the Commission or Board may be made to the Federal Court by the individual directly affected by the order, decision or ruling within 30 clear days from the date on which the order, decision or ruling was received by that individual, or within any additional time that a judge

of the Federal Court may allow. 3.12.3 After hearing an application under

section 3.12.2 the Federal Court may: (

a) order the Commission or the Board to do anything it has unlawfully failed or refused to do or has unreasonably delayed in doing; (

b) decide a decision, order, act or proceeding of the Commission or the Board to be invalid or unlawful; (

c) quash, set aside or set aside and refer back for determination in accordance with any directions it considers to be appropriate a decision, order, act or proceeding of the Commission or the Board; or (

d) prohibit or restrain a decision, order, act or proceeding of the Commission or the Board. 3.12.4 The Federal Court may grant a remedy referred to in

section 3.12.3 if it is satisfied that the Commission or the Board: (

a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (

b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by Law to observe; (

c) erred in Law in making a decision or an order, whether or not the error appears on the face of the record; (

d) based its decision or order on an error of fact made in a perverse or capricious manner or without regard for the material before it; (

e) acted, or failed to act, as a result of fraud or perjured evidence; or (

f) acted in any other way contrary to Law. 3.12.5 Subject to sections 3.12.2, 3.12.3 and 3.12.4 the Federal Court Act applies to an application for judicial review under this part as if the Commission or the Board were a federal board, commission or other tribunal under the Federal Court Act , except that subsections 18.1(1) , 18.1(2) and 18.3(2) of the Federal Court Act do not apply.

DECISION OF THE APPLICATIONS JUDGE 15 In para. 23 of his reasons, the applications judge noted that "while couched in terms of powers of judicial review, the Agreement grants to the Federal Court of Canada a virtually full appellate jurisdiction in respect of all benefits matters." He further wrote at para. 28 "... [it] provides constitutionally that an application to challenge or change a decision relating to beneficiary status must be made to the Federal Court of Canada". 16 The applications judge also stated: [20] The plaintiffs' claims are for beneficiary status under the Agreement giving rise to a claim for benefits established under it.

The means to attain beneficiary status is clearly set out in the Agreement. [21] In

Chapter 3, the Agreement sets up detailed eligibility criteria in

Part 3.3. In

Part 3.4, the Agreement establishes an enrollment committee for the various regions set up under the Agreement to consider applications for enrollment for benefits.

Part 3.5 establishes an enrollment appeal commission to hear appeals from decisions of an enrollment committee. The appeals are to be by way of rehearing at which an appellant may introduce additional evidence.

Part 3.9 establishes membership committees to consider applications for enrollment on the register relevant to each region.

Part 3.10 establishes a membership appeal board to hear appeals from a decision of a membership committee.

Part 3.12 establishes the rights of judicial review of commission and board decisions. 17 The applications judge held that the Supreme Court of Newfoundland and Labrador had no jurisdiction to hear the three class actions commenced pursuant to the Class Actions Act and set aside the statements of claim pursuant to Rule 10.05 of the Rules of the Supreme Court , 1986 . ISSUES 18 Three issues arise on appeal:

(

i) What is the standard of review applicable to the decision regarding jurisdiction by the applications judge? (ii) Did the applications judge err in determining that all three statements of claim sought remedies directly connected to eligibilityunder the Agreement and were subject to the exclusive jurisdiction of the Federal Court? (iii) Did the applications judge err in failing to stay proceedings rather than setting aside the statements of claim? LAW AND ANALYSIS (

i) Standard of Review 19 In Oppenheim v. Midnight Marine Limited, 2010 NLCA 64, this Court recently reviewed the applicable standards of review inthe context of an appeal arising from a decision affecting jurisdiction. The appeal arose from the denial by an applications judge of arequest for a stay of an action commenced in the Trial Division involving a claim under a marine insurance policy. A vessel owner wasseeking reimbursement from its insurer of a settlement made with a cargo owner while claiming the right to litigate the matter in theTrial Division.

The insurer sought a stay, relying on an arbitration clause in the policy providing for the exclusive jurisdiction of anarbitration process in London. 20 In his reasons, Barry J.A. examined the general law on applicable standards of review: [26] The appropriate standard of review to be applied by an appellate court was set out in Housen v. Nikolaisen, 2002 SCC33 , [2002] 2 S.C.R. 235.

Iacobucci and Major JJ. stated for the majority, at paras. 8 and 10: On a pure question of law, the basic rule with respect to the review of a trial judge's findings is that an appellate court is freeto replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness ... ...

The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that thetrial judge made a 'palpable and overriding error' ... [27] At paras. 19-25, they concluded the same standard of palpable and overriding error should be applied to inferences offact. [28] Finally, at paras. 26-37, they considered the standard of review for questions of mixed fact and law involving theapplication of a legal standard to a set of facts, and concluded the standard of review was "palpable and overriding error unless it is clearthat the trial judge made some extricable error in principle with respect to the characterization of the [legal] standard [being applied] orits application, in which case the error may amount to an error of law" (para. 37). 21 In Oppenheim, Barry J.A. described how a question of law might be extricable from an issue of mixed fact and law: [29] ...

At para. 27, they referred to Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, at para. 39, for an illustration of how an error on a question of mixed fact and law can amount to a pure errorof law subject to the correctness standard: ... if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-makerconsiders only A, B, and C, then the outcome is as if he or she had applied a law that required considerations of only A, B, and C.

If thecorrect test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made anerror of law. [30] The majority in Housen, at para. 28, noted the difficulty of drawing the line.

They pointed out how matters of mixedlaw and facts "fall along a spectrum of particularity" and, as stressed in Southam, whether a purely legal question may be extricatedfrom what appears to be a question of mixed fact and law often comes down to "whether the dispute is over a general proposition thatmight qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges andlawyers in the future". 22 The assessment of jurisdiction in this case involves the application of the law to the facts as pleaded. This requires consideration of

the scope of the respective jurisdictions of the Federal Court and the Supreme Court of Newfoundland and Labrador, as defined in the Agreement and the case law. 23 As noted above, in discussing the scope of the Federal Court's exclusive jurisdiction, the applications judge wrote: "While couched in terms of powers of judicial review, the Agreement grants to the Federal Court of Canada a virtually full appellate jurisdiction in respect of all benefits matters." Binnie J., however, in Canada (Attorney General) v.

TeleZone Inc. , 2010 SCC 62 , released after the decision below in the present matter, emphasized that a distinction must be drawn between claims for damages which rely on the decision of a tribunal as the basis for the damages claim and cases which seek to impugn tribunal decisions by seeking a judicial review remedy. The application judge's failure to draw such a distinction would constitute an error of law which would be extricable from the jurisdictional mixed law and fact analysis.

In this context, the standard of review is correctness. (ii) Court Jurisdiction 24 In dealing with the application of Rule 10.05 the court is to accept the facts pleaded in the statement of claim as true. This would include the plea that the respondent is the successor to the LIA. However, the significance of this plea depends upon the meaning given to the qualification in the Agreement that the successorship is for "purposes of the Agreement" (see s. 2.2.2.).

The pleadings in the two Best statements of claim allege that two appellant classes have suffered loss of membership status in the LIA, and ultimately in the respondent, due to the arbitrary actions of the LIA. In the case of the Jillian Mugford class, the plaintiffs allege that the revocation of membership in the mid-1990s and later restoration coincidental with the election of the respondent assembly resulted from actions by the LIA over a ten year period for which the plaintiffs seek lost financial benefits from the respondent as the successor to the LIA. 25 The LIA is not named as a defendant.

Whether s. 2.2.2 of the Agreement makes the respondent liable, as successor to the LIA, for the alleged wrongful acts or omissions of the LIA, or whether the LIA must be named specifically as a defendant and whether the plaintiffs should be permitted to add the LIA as a defendant was not decided by the applications judge.

He granted the application to dismiss on the basis that the plaintiffs' claims are for beneficiary status under the Agreement, the review of which claim he concluded fell exclusively under the jurisdiction of the Agreement review process and the Federal Court. 26 While the claims by the Tracey Best and Emily Best classes seek as a remedy enrolment on the Register in order to be a beneficiary of the Agreement, they also seek damages for the alleged arbitrary actions or omissions of the LIA in failing to register them or to maintain their membership.

The measure of damages may involve losses from a failure to obtain enrolment under the Agreement. The Agreement is explicitly clear that the processes to determine eligibility for membership and benefits before the committees, Commission and Appeal Board are the exclusive routes agreed upon by the LIA and two levels of government. Any final recourse on the issue of eligibility is by way of judicial review which exclusively resides in the Federal Court of Canada.

It does not necessarily follow, however, that the two Best claims for damages and for using the Agreement as a measure of damages falls outside the jurisdiction of the provincial superior court under the TeleZone approach. 27 The Mugford proceeding does not expressly seek enrolment on the Register because it has been obtained. The claim seeks monetary damages for lost medical and other benefits allegedly lost while excluded from membership in the LIA.

The claim also alleges a loss of entitlement to a land compensation payment of $5,000.00 under the Agreement which may have been linked to their omission from the voters' list for the ratification process prescribed under the Agreement.

In light of TeleZone and its companion cases, we do not believe it necessarily follows that the exclusive jurisdiction of the Federal Court set out in the Agreement regarding judicial review ousts the possible consideration by the Trial Division of a monetary claim resulting from alleged arbitrary or discriminatory activities of the LIA in the formulation of the voters' list for the ratification process. 28 In TeleZone and its companion decisions, the Supreme Court focused its analysis of jurisdiction between the Federal Court and the provincial superior courts in the context of access to justice.

At para. 18, it asserted the need to permit people injured by government action to have the right to seek redress from the legal system through procedures that "minimize unnecessary costs and complexity" and stressed that the courts' approach "should be practical and pragmatic with that objective in mind". 29 The Supreme Court held at para. 42 that "any derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language". The Court decided that the language of s. 17 of the Federal Court Act, R.S.C. 1985, c.

F-7 did not satisfy the test, particularly in the context of s. 21 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. 30 The provisions of the Agreement differ significantly from s. 17 of the Federal Court Act in the specific language used.

The provision respecting the absence of any right of appeal beyond the Inuit-based enrolment committees, the Enrolment Commission and the Inuit Membership Appeal Board with recourse by way of judicial review only to the Federal Court adopts a careful and detailed set of procedures created to deal exclusively with claims of any particular individual to Inuit status and beneficiary status under the Agreement.

The provision is bound up in a lengthy tri-partite Agreement between the Inuit and federal and provincial governments which has been enshrined in legislation passed by the Parliament of Canada and the legislature of this Province following a ratification vote by Inuit who were declared eligible to vote. We are satisfied that, on matters relating to eligibility and membership issues with regard to status and benefits, the language of the Agreement in

Part 3.12 is sufficiently specific to meet the threshold test prescribed in TeleZone for derogation from the jurisdiction of the superior court of this Province. A question remains, however, whether a claim in damages, which measures monetary loss by reference to the Agreement, falls outside superior court jurisdiction. 31 The plaintiffs obviously rely on the successorship theory for naming the respondent as the sole defendant. The LIA remains in existence as a legal entity.

On the question of who should be named as defendants, Rule 7.04(1) of the Rules of Court, 1986 , provides: No proceeding shall be defeated by reason of the misjoinder or nonjoinder of any party or person ... In addition Rule 7.04(2)(

b) provides that:

At any stage of a proceeding the Court may, ... of its own motion ... order any person, who ought to have been joined as aparty or whose participation in the proceeding is necessary to ensure that all matters in the proceedings may be effectively adjudicatedupon, be added as a party. 32 In Seadane International Inc. v. Morgan International Marketing Co. (1999), (NL CA), 180 Nfld. &P.E.I.R. 97 (Nfld. C.A.) Green J.A. (as he then was) wrote: [29] ...

The court has broad powers under rule 7.04(2) to ensure that proper parties are before the court to enable a justiciableclaim to be properly adjudicated by the right parties, rather than requiring a new and separate action be started from scratch. [30] The court will therefore be reluctant to allow a party to avoid litigating a claim by taking advantage of a misjoinder ofan improper party or the nonjoinder of any proper one, but will, instead, attempt to refashion the litigation by deleting, substituting oradding parties so as to ensure that the real matters in dispute are effectually dealt with ... 33 The present case appears to be one where the interests of justice weigh in favour of permitting the plaintiffs to seek amendment ofthe pleadings to join the LIA as a defendant, should the court conclude the successorship provision of the Agreement does not imposeliability upon the respondent for alleged acts or omissions of the LIA. 34 On the question of jurisdiction, in TeleZone, Binnie J. stated at paras. 75 and 76: [75] The Crown contends that TeleZone's argument would risk putting judicial review of federal decision makers back in theprovincial superior courts dressed up as damage claims.

On this view the "artful pleader" will forum-shop by the way the case is framed.Of course, "artful pleaders" exist and they will formulate a claim in a way that best suits their clients' interests. However, no amount ofartful pleading in a damages case will succeed in setting aside the order said to have harmed the claimant or enjoin its enforcement. Suchrelief is not available in the provincial superior court.

The claimant must, as here, be content to take its money (if successful) and walkaway leaving the order standing. [76] Where a plaintiff's pleading alleges the elements of a private cause of action, I think the provincial superior courtshould not in general decline jurisdiction on the basis that the claim looks like a case that should be pursued on judicial review. If theplaintiff has a valid cause of action for damages, he or she is normally entitled to pursue it. (Emphasis added.) 35 From TeleZone it is clear that three possibilities arise in the present case.

First, to the extent the plaintiffs seek beneficiary statusunder the Agreement, jurisdiction lies with the Federal Court and not this Court. Second, to the extent the plaintiffs can lay a foundationfor a claim against the LIA for acts or omissions occurring before the Agreement, jurisdiction lies with this Court.

Third, where themeasure of damages may be affected by lost entitlement to benefits under the Agreement the matter is less clear and requiresdetermination pursuant to the TeleZone jurisprudence. 36 The two Best class actions constitute collateral attacks on the key underpinnings of the Agreement to the extent that they seek fromthe Trial Division an order for enrolment on the Register. But on the TeleZone approach it does not necessarily follow that their claimsfor damages should be viewed as collateral attacks merely because the benefits lost by missed enrolment must be determined byreference to the Agreement.

The court must determine the essential nature of the claims and, as noted in TeleZone, decide whether thepleadings set out a valid cause of action for damages. If they do, the case falls within the jurisdiction of the superior court. In the presentcase, some amendment of the pleadings may be needed before the Trial Division adjudicates upon this issue.

The pleadings are vagueregarding the particulars of negligence, arbitrary action, and breach of fiduciary duty. 37 The Mugford class of proposed claimants asserts that they have a potential right to damages for alleged arbitrary actions by the LIAin revoking membership from 1997 to 2005. They allege this deprived them of eligibility to be placed on the ratification voters' list andresulted in certain lost benefits.

It is not clear that pursuit of such a theory of the claim would be at odds with the eligibility regimeestablished by the Agreement, especially at the early stage of this class action proceeding where there is only a statement of claim and nocertification application with accompanying affidavits to flesh out the substance of the plaintiffs' allegations. The Mugford class does notexplicitly or implicitly seek enrolment in the Register. They have achieved this.

They claim compensation for the period from 1997 to2005 when they allege they were improperly refused LIA membership. 38 Although the Mugford class seek monetary benefits that can only arise by virtue of the Agreement itself, such as a land claimsettlement amount, which is tied to enrolment on the Register, their claim appears to be based on alleged improper acts of the LIA inrevoking membership during the ratification process supervised by the LIA. The question of the Trial Division will be whether thepleadings, as amended if necessary, set out a valid cause of action for damages. (iii) A stay of proceedings

39 From the above discussion it should be clear that issues arise from the statements of claim as presently drafted, regarding whether the LIA should be added as a defendant or co-defendant and whether the plaintiffs should be permitted to amend the pleadings to properly flesh out their allegations. There may also be limitation of action issues that will arise. Further particulars may be required in addition to those filed by the plaintiffs' counsel in May, 2008.

These are matters which should be considered by an applications judge before a final decision is made, pursuant to the recent TeleZone jurisprudence, regarding whether the plaintiffs have a valid cause of action in damages which falls within the jurisdiction of the superior court. The applications judge did not have the benefit of the TeleZone decision and his analysis for that reason did not focus on whether the plaintiffs might have such a valid cause of action.

Instead of striking the statement of claim, the appropriate approach now should be to stay the matter for a reasonable time to permit the plaintiffs to apply to amend the pleadings and to have the proper defendants determined.

SUMMARY AND DISPOSITION 40 The order of the applications judge is set aside and the matter remitted to the Trial Division to permit applications by the plaintiffs within a reasonable time for amendment of the pleadings, a determination of the effect of the successorship provision and whether the LIA should be added as a defendant, and a decision as to whether the plaintiffs on the amended pleadings have set out a valid cause of action in damages within the jurisdiction of this superior court. Costs shall be in the cause. L.D. BARRY J.A. M.F. HARRINGTON J.A. M.

ROWE J.A.:-- I concur. cp/e/qlrxg/qljxr/qlced/qlgpr/qlcas 1 In the case of Ms. Mugford it appears that the revocation may have coincided with the negotiation of the agreement in principle between the LIA and the two governments during the period 1997-1999. 2 Under

Part 2.2 of the Agreement the Effective Date is stated to be the date of ratification by all Parties. The Agreement was signed by all Parties on January 22, 2005 and came into effect on December 1, 2005. ---- End of Request ---- Email Request: Current Document: 1 Time Of Request: Friday, June 12, 2015 17:01:31