Judgments

    2001 FCT 646

     T-2175-99

British Columbia Native Women's Society and Jane Gottfriedson (Plaintiffs)

v.

Her Majesty the Queen (Defendant)

     T-2179-99

Pauktuutit, Inuit Women's Association and Veronica Dewar (Plaintiffs)

v.

Her Majesty the Queen (Defendant)

     T-892-00

British Columbia Native Women's Society and Jane Gottfriedson (Plaintiffs)

v.

Her Majesty the Queen (Defendant)

Indexed as: British Columbia Native Women's Societyv. Canada (T.D.)

Trial Division, Hargrave P.--Vancouver, June 30, 2000 and June 12, 2001.

Practice -- Pleadings -- Motion to strike -- Crown seeking to strike out portions of statements of claim in actions challenging lack of proper funding of Aboriginal women's organizations regarding Government job training program -- Test on motion to strike out: it must be plain, obvious, beyond reasonable doubt claim cannot succeed -- Plaintiffs seeking reading in of equality of funding for Aboriginal women -- Plain, obvious court cannot rewrite contract to benefit third parties by recrafting complex government programs -- No legitimate cause of action allowing amendment -- Serious question of law not to be determined on summary motion to strike out -- Paragraphs seeking damages in relief sections of each action shall remain.

Crown -- Contracts -- Aboriginal women seeking to have read into funding agreements to which not parties provisions allowing members sexual equality in funding, management of such agreements -- Doctrine of privity of contract reviewed -- Reading down, reading in available only where provisions of legislation infringe Charter -- Reading in novel argument, but not ground on which to strike out in summary manner -- Courts reluctant to recraft complex government programs -- Reading provisions into agreement, favouring third party, not forlorn approach.

Constitutional law -- Charter of Rights -- Enforcement -- Plaintiffs challenging lack of proper funding to Aboriginal women's organizations in relation to job training program -- Appropriate approach to issue declaration of invalidity under Constitution Act, 1982, s. 52(1) -- Action for damages under Charter, s. 24(1) not to be coupled with declaratory action for invalidity under Constitution Act, 1982, s. 52 -- Retroactive s. 24 remedy in damages not available if provision struck down as unconstitutional under s. 52 -- Paragraphs seeking damages in relief sections of each action shall remain.

Constitutional law -- Charter of Rights -- Equality Rights -- Plaintiffs alleging Government training program designed to enable Aboriginal people to prepare for, obtain, maintain meaningful employment discriminates against native women on basis of sex, residence -- Charter, s. 15 protecting both individuals, groups vulnerable, disadvantaged -- Not plain, obvious claim under Charter, s. 15 by groups of women, individual plaintiffs must fail so motion to strike denied.

Constitutional law -- Charter of Rights -- Mobility Rights -- Plaintiffs seeking relief under Charter, s. 6 for failure by Crown to provide resources ensuring job mobility of Aboriginal women under new Aboriginal job creation strategy -- S. 6 intended to constrain government action inconsistent with Charter rights, freedoms but not authorization for governmental action -- Paragraph claiming breach of Charter, s. 6 struck out.

Constitutional law -- Charter of Rights -- Life, Liberty and Security -- Plaintiffs pleading Crown's actions in failing to provide funding for Aboriginal women's groups regarding job training program infringed on security of person, right to liberty, violation carried out in manner not in accordance with principles of fundamental justice -- Motion to strike -- Pleas for relief under Charter, s. 7 shall remain as may be successfully filed by individual plaintiffs, groups of Aboriginal women.

This was a motion to strike out portions of statements of claim in three actions brought by individual plaintiffs and native women's associations, alleging that the Aboriginal Human Resources Development Strategy (AHRDS), a training program designed to enable Aboriginal people to prepare for, obtain and maintain meaningful employment, discriminated against Aboriginal women on the basis of sex and residence and that there was a lack of proper funding of women's organizations. More specifically, it was said that Aboriginal women were allowed neither to participate in aspects of job creation nor to consult with government as to various other matters including funding for youth, disability funding and child care funding. All of this was said to breach sections 6, 7, 15 and 28 of the Canadian Charter of Rights and Freedoms. A number of issues were raised on this motion: (1) the test for striking out a pleading and the application of the Charter; (2) reading in contractual provisions; (3) the availability of declaratory relief together with damages; (4) the mobility rights of Aboriginal women under section 6 of the Charter; (5) the security of the person of Aboriginal women under section 7 of the Charter and (6) the lack of justiciable claims by plaintiff associations under subsection 15(1) of the Charter.

Held, the motion should be allowed in part.

(1) The test set out by the Federal Court of Canada for want of a reasonable cause of action is that it be plain, obvious and beyond reasonable doubt that the claim cannot succeed. It is only where a proceeding is bereft of any chance of success that the concern for the preservation of the resources of all concerned should be paramount. A frivolous or vexatious pleading includes one which is an abuse of process. Multiple proceedings may be an abuse of the process of the Court, and when actions duplicate one another, or where relief might be obtained in one action, the superfluous action(s) ought to be stayed or struck out. The test, for striking out without leave to amend, is that there must not be a scintilla of legitimate cause of action. The plaintiffs were not challenging the constitutionality of legislation, but the conduct of the executive branch of government. That the Charter applied was not in dispute.

(2) One of the plaintiff associations sought to have read into funding agreements, to which it was not a party, provisions which would allow its members sexual equality in funding, including the management of such agreements. The Crown relied on the common-law doctrine of privity of contract in opposing such request. The narrow and rigid approach to contract manifested in that doctrine may frustrate the object of a contract or cause practical difficulties. Since the AHRDS agreement did refer to equitable funding for women, there was a serious issue whether that was enough to constitute a trust and an exception to the privity of contract doctrine. But even if it did, that would not justify altering specific contractual terms, substituting "equal" for "equitable", unless the Court has jurisdiction to read terms into contracts between other persons. Reading down and reading in are only available once it has been determined that provisions of legislation infringe the Charter. There is federal contract law which may be applied where a case involves a federal statutory framework. This case is not forlorn since the Court might have a common law jurisdiction in contract that would be of assistance. Reading in, in the sense of rewriting specific terms in the contracts of others, may be a novel argument, but that is not a ground on which to strike out in a summary manner. However, the plaintiffs' case fails due to the reluctance of courts to recraft complex government programs. The Supreme Court of Canada has expressed the view that courts should not fashion alternate schemes in the face of a myriad of options available to the government which might rectify the unconstitutionality of an existing system. Rather, the appropriate approach is to issue a declaration of invalidity under subsection 52(1) of the Constitution Act, 1982, leaving it to the government to restructure such program to comply with the order. It is plain and obvious that a court would not rewrite a contract to benefit third parties if the result would be a complete recrafting of the complex government program. There was not a scintilla of a legitimate cause of action which might allow an amendment.

(3) As a general rule, an action for damages under subsection 24(1) of the Charter cannot be coupled with a declaratory action for invalidity under section 52 of the Constitution Act, 1982. If a provision is struck down as unconstitutional under section 52, that concludes the matter, leaving no room to a retroactive section 24 remedy in damages. Even though no declaration of invalidity was being sought, there was a serious question of law which ought not to be determined on a summary motion to strike out. Thus, the paragraphs seeking damages in the relief sections of each of the three actions shall remain.

(4) The plaintiffs sought relief pursuant to section 6 of the Charter by alleging that the Crown failed to provide resources to ensure job mobility of Aboriginal women under the new Aboriginal job creation strategy. Section 6 is intended to constrain government action which is inconsistent with Charter rights and freedoms but it is not, by itself, an authorization for governmental action. It is neither authorization for or indeed a requirement that there be government action in the form of funding. No government will be required to provide a guarantee of funding, or even a guarantee, specific to or inherent in section 6 of the Charter, that there must be equal funding. The paragraph claiming a breach of section 6 of the Charter on the basis of a failure to provide adequate resources to ensure job mobility was struck out without leave to amend.

(5) As to the security of the person of Aboriginal women under section 7 of the Charter, the Court could not say that the plaintiffs will be unable to show either that the actions of the Crown infringed on their security of the person or their right to liberty or that the violation was carried out in a manner not in accordance with the principles of fundamental justice. Moreover, all of this could result in a deprivation of personal autonomy, or an ongoing threat thereof. Therefore, the pleas for relief, relying upon section 7 of the Charter, shall remain, for the individual plaintiffs might be successful in such an attempt, as may the groups of Aboriginal women.

(6) The Crown argued that the claim made by plaintiff associations under subsection 15(1) of the Charter was ill-founded because this provision is intended to protect individual rights only. The position taken by the Crown overlooked the view of some authorities that section 15 of the Charter also takes into account inequality related to membership in groups. To accept such argument would emasculate section 15. The Supreme Court of Canada has recognized as an important aspect of section 15 the protection of both individuals and groups who may be vulnerable or disadvantaged. It was not plain and obvious that the plaintiffs' claim under subsection 15(1) of the Charter was futile and must fail.

Finally, the Crown alleged that action T-2175-99 ought to be struck out in its entirety, as redundant and as abuse of the Court's process. A plaintiff ought not to bring a second action when he has already brought an action claiming everything to which he is entitled. Actions T-2175-99 and T-892-00 are essentially duplicates of one another. Action T-892-00, even if completely successful, would not give the plaintiffs more than they might gain under the two 1999 actions. Therefore, action T-892-00 was struck out without leave to amend.

statutes and regulations judicially considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 6, 7, 15, 24(1), 28, 32, 35(1).

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4), 50(1)(b).

Federal Court Rules, 1998, SOR/98-106, r. 221.

Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1.

Prairie Grain Advance Payments Act, R.S.C. 1970, c. P-18.

cases judicially considered

applied:

Martel v. Samson Band, [1999] F.C.J. No. 374 (T.D.) (QL); Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347; (1996), 138 D.L.R. (4th) 647; 43 Admin. L.R. (2d) 44; 110 C.C.C. (3d) 223; 3 C.P.C. (4th) 1; 22 M.V.R. (3d) 251; 201 N.R. 380; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; (1999), 170 D.L.R. (4th) 1; 43 C.C.E.L. (2d) 49; 236 N.R. 1.

distinguished:

Schachter v. Canada, [1992] 2 S.C.R. 679; (1992), 93 D.L.R. (4th) 1; 92 CLLC 14,036; 10 C.R.R. (2d) 1; 139 N.R. 1.

considered:

Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.); Poulett (Earl) v. Hill (Viscount), [1893] 1 Ch. 277 (C.A.); Eggum v. Cumberland House Development Corp. (1990), 88 Sask. R. 164 (Q.B.); Dunlop Pneumatic Tyre Company v. Selfridge & Co., [1915] A.C. 847 (H.L.); London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299; (1992), 97 D.L.R. (4th) 261; [1993] 1 W.W.R. 1; 73 B.C.L.R. (2d) 1; 43 C.C.E.L. 1; 13 C.C.L.T. (2d) 1; 143 N.R. 1; 31 W.A.C. 1; Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; [1999] 9 W.W.R. 380; (1999), 67 B.C.L.R. (3d) 213; 127 B.C.A.C. 287; 50 B.L.R. (2d) 169; 11 C.C.L.I. (3d) 1; 47 C.C.L.T. (2d) 1; R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695; (1979), 106 D.L.R. (3d) 193; 12 C.P.C. 248; 30 N.R. 249; Roberts v. Canada, [1989] 1 S.C.R. 322; [1989] 3 W.W.R. 117; (1989), 35 B.C.L.R. (2d) 1; 25 F.T.R. 161; 92 N.R. 241; Rhine v. The Queen; Prytula v. The Queen, [1980] 2 S.C.R. 442; (1980), 116 D.L.R. (3d) 385; 34 N.R. 290; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; (1997), 151 D.L.R. (4th) 577; [1998] 1 W.W.R. 50; 38 B.C.L.R. (3d) 1; 96 B.C.A.C. 81; 218 N.R. 161; Mahe v. Alberta, [1990] 1 S.C.R. 342; (1990), 106 A.R. 321; 68 D.L.R. (4th) 69; [1990] 3 W.W.R. 97; 72 Alta. L.R. (2d) 257; 46 C.R.R. 193; 105 N.R. 321; Harris v. Canada, [1999] 2 F.C. 392; (1998), 161 F.T.R. 288; 99 DTC 5018 (T.D.); Montana Band of Indians v. Canada, [1991] 2 F.C. 30; [1991] 2 C.N.L.R. 88; (1991), 120 N.R. 200 (C.A.); leave to appeal to S.C.C. denied (1991), 136 N.R. 421; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; (1989), 96 A.R. 352; 58 D.L.R. (4th) 317; [1989] 4 W.W.R. 1; 66 Alta. L.R. (2d) 97; 38 C.R.R. 193; 98 N.R. 266; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; (1998), 223 A.R. 201; 166 D.L.R. (4th) 1; 231 N.R. 201; Archibald v. Canada, [1997] 3 F.C. 335; (1997), 146 D.L.R. (4th) 499 (T.D.); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; (1997), 152 D.L.R. (4th) 577; 43 M.P.L.R. (2d) 1; 219 N.R. 1; Longley v. Canada (Minister of National Revenue--M.N.R.) (1999), 176 D.L.R. (4th) 445; [1999] 11 W.W.R. 502; 66 B.C.L.R. (3d) 133; [1999] 4 C.T.C. 108; 99 DTC 5549 (B.C.S.C.); Powderface v. Baptiste (1997), 118 F.T.R. 118 (F.C.T.D.).

referred to:

Vulcan Equipment Co. Ltd. v. The Coats Co., Inc., [1982] 2 F.C. 77; (1981), 58 C.P.R. (2d) 47; 39 N.R. 518 (C.A.); leave to appeal to S.C.C. denied (1982), 63 C.P.R. (2d) 261; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; (1990), 74 D.L.R. (4th) 321; [1990] 6 W.W.R. 385; 49 B.C.L.R. (2d) 273; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 117 N.R. 321; Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Waterside Ocean Navigation Co., Inc. v. International Navigation Ltd., [1977] 2 F.C. 257 (T.D.); Attorney General of the Duchy of Lancaster v. London & North Western Railway Company, [1892] 3 Ch. 274 (C.A.); Willis v. Earl of Beauchamp (1886), 11 P.D. 59 (C.A.); Ashmore v. British Coal Corpn., [1990] 2 Q.B. 338 (C.A.); McMillan v. Canada (Minister of Citizenship and Immigration) (1996), 108 F.T.R. 32 (F.C.T.D.); Kiely v. Canada (1987), 10 F.T.R. 10 (F.C.T.D.); Greenwood Shopping Plaza Ltd. v. Beattie et al., [1980] 2 S.C.R. 228; (1980), N.S.R. (2d) 119; 111 D.L.R. (3d) 257; 10 B.L.R. 234; 32 N.R. 163; Johns-Manville Canada Inc. v. John Carlo Ltd. (1981), 29 O.R. (2d) 592; 113 D.L.R. (3d) 686; 12 B.L.R. 80 (H.C.); Citadel General Assurance Company v. Johns-Manville Canada Inc., [1983] 1 S.C.R. 513; (1983), 147 D.L.R. (3d) 593; 46 C.B.R. (N.S.) 177; 1 C.C.L.I. 55; 1 C.L.R. 169; 47 N.R. 280; Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054; (1976), 9 N.R. 471; McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654; (1977), 75 D.L.R. (3d) 273; 13 N.R. 181; Harris v. Canada, [2000] 4 F.C. 37; (2000), 187 D.L.R. (4th) 419; 2000 DTC 6373; 256 N.R. 221; leave to appeal to S.C.C. denied (2001), 264 N.R. 391; Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279; (1990), 65 Man. R. (2d) 182; 67 D.L.R. (4th) 159; [1990] 4 W.W.R. 127; [1990] 2 C.N.L.R. 19; 105 N.R. 228; Dumont v. Canada (Attorney General) (1987), 48 Man. R. (2d) 4; [1987] 2 C.N.L.R. 85 (Q.B.); Dumont v. Canada (Attorney General) (1988), 52 Man. R. (2d) 291; 52 D.L.R. (4th) 25; [1988] 5 W.W.R. 193; [1988] 3 C.N.L.R. 39 (C.A.); Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; (1984), 9 D.L.R. (4th) 161; 20 Admin. L.R. 1; 11 C.C.C. (3d) 481; 8 C.R.R. 193; 53 N.R. 169; 3 O.A.C. 321; Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; [1993] 7 W.W.R. 641; 56 W.A.C. 1; 82 B.C.L.R. (2d) 273; 34 B.C.A.C. 1; 85 C.C.C. (3d) 15; 24 C.R. (4th) 281; 158 N.R. 1; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; [1990] 4 W.W.R. 481; (1990), 68 Man. R. (2d) 1; 56 C.C.C. (3d) 65; 77 C.R. (3d) 1; 48 C.R.R. 1; 109 N.R. 81; Whitbread v. Walley (1988), 51 D.L.R. (4th) 509; [1988] 5 W.W.R. 313; 26 B.C.L.R. (2d) 203 (B.C.C.A.); R. v. Gamble, [1988] 2 S.C.R. 595; (1988), 31 O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R. 161; Native Women's Assn. of Canada v. Canada, [1992] 3 F.C. 192; (1992), 95 D.L.R. (4th) 106; [1992] 4 C.N.L.R. 71; 10 C.R.R. (2d) 268; 146 N.R. 40 (C.A.); Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; (1997), 142 D.L.R. (4th) 385; 41 C.R.R. (2d) 240; 207 N.R. 171; 97 O.A.C. 161; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 54 C.P.R. (3d) 114; 164 N.R. 1; 60 Q.A.C. 241.

authors cited

Beaudoin, G.-A. and E. Mendes, eds. The Canadian Charter of Rights and Freedoms, 3rd ed. Toronto: Carswell, 1996.

Fridman, G. H. L. The Law of Contract in Canada, 4th ed. Scarborough, Ont.: Carswell, 1999.

Hogg, Peter W. Constitutional Law of Canada, loose-leaf ed., Toronto: Carswell, 1992.

Sgayias, David et al. Federal court Practice, 2001. Toronto, Carswell, 2000.

Waddams, S. M. The Law of Contracts, 4th ed. Toronto: Canada Law Book, 1999.

MOTION to strike out portions of statements of claim in actions alleging that a Government of Canada training program designed to enable Aboriginal people to prepare for, obtain and maintain meaningful employment discriminated against Aboriginal women. Motion allowed in part.

appearances:

Teressa Nahanee for plaintiffs.

Richard A. Kramer for defendant.

solicitors of record:

McIver Nahanee Law Corp., Merritt, British Columbia, for plaintiffs.

Deputy Attorney General of Canada for defendant.

The following are the reasons for order rendered in English by

[1]Hargrave P.: These three actions arise out of the plaintiffs' perception that the Aboriginal Human Resources Development Strategy (the AHRDS), a training program put in place 29 April 1999, designed to enable Aboriginal people to prepare for, obtain and maintain meaningful employment, discriminates against Aboriginal women.

[2]By the present motion the defendant, the Crown, seeks to strike out portions of the fresh as amended statements of claim in actions T-892-00, in which the British Columbia Native Women's Society is a plaintiff, and T-2179-99, in which the Pauktuutit, Inuit Women's Association is a plaintiff, the striking out motion setting out various grounds, and to strike out the whole of the fresh as amended statement of claim in T-2175-99, again with the British Columbia Native Women's Society as a plaintiff, for the defendant says that it is an unnecessary duplication of action T-892-00 and therefore is frivolous and vexatious, amounting to an abuse of process. I first turn to some of the background in a little more detail.

FACTS

[3]The facts that follow are, for the most part and with the exception of some general background, taken from the three statements of claim. Here I would note that, for the purposes of striking out a pleading, under Rule 221 [Federal Court Rules, 1998, SOR/98-106], I must take the facts as set out here in the statements of claim, so long as they are not outlandish, as if proven.

[4]The AHRDS program, announced 29 April 1999 by the Minister of Human Resources Development Canada, proposed a $1.6 billion strategy "to enable Aboriginal groups a wider spectrum of human resource programming that will enable Aboriginal people to prepare for, obtain and maintain meaningful employment." The funding was allocated to various programs including child care for First Nations and Inuit communities, programs for Aboriginal and Inuit people living in urban areas, youth programs and programs for persons with disabilities.

[5]Pursuant to AHRDS, a five-year funding agreement was signed with representative Aboriginal organizations. The plaintiffs, in each of these present three actions, challenge the lack of proper funding to women's organizations.

[6]The Associations which are plaintiffs represent, as their names indicate, all Inuit women and all Aboriginal women in British Columbia, both on and off reserve. I will refer to the former organization, representing Inuit women, as Pauktuutit and to the latter, representing British Columbia Aboriginal Women, as BCNWS.

[7]Pauktuutit, which represents Inuit women nationally in Canada, has the mandate to "encourage the participation in community, regional and national concerns". BCNWS, which is a regional branch of the Native Women's Association of Canada, is a representative organization for Aboriginal women on and off reserve in British Columbia. The individual plaintiff in the Pauktuutit action, Ms. Dewar, is a business women from Rankin Inlet, Nunavut, and, as set out in the statement of claim, is President of Pauktuutit. Ms. Gottfriedson, the individual plaintiff in actions T-2175-99 and T-802-00, a member of the lower Similkameen Okanagan Band, is President of BCNWS and past President of the Native Women's Association of Canada. She has served Aboriginal women in various official capacities and thus has personal knowledge of the federal job creation programs.

[8]The focus of the actions is an alleged failure of the Crown to consult either Pauktuutit or BCNWS as to the effect, on Aboriginal women, of the AHRDS program. Their complaint is that various accords under the AHRDS program were signed, but only with Aboriginal men's organizations: as a result Aboriginal women are perceived to be discriminated against on the basis of sex and residence. More specifically the discrimination includes allegations that Aboriginal women were allowed neither to participate in aspects of job creation nor to consult with government as to various other matters including funding for youth, disability funding and child care funding. The plaintiffs refer to the prevalence of violence against Aboriginal women and note that the urban component of AHRDS, compared with the on reserve component, is minimal and that this is particularly discriminatory in that while two-thirds of Aboriginal people live off reserve, a majority of that population consists of women and their children.

[9]The plaintiffs say that not only has the Crown failed to consult with them, but also they have not been allowed to manage, co-manage or administer the AHRDS program, the National Accords entered into with various First Nation groups, or the funds thereby transferred.

[10]All of this is said, in one way or another, to breach sections 6, 7, 15 and 28 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. A little more specifically, AHRDS is said to directly affect the rights of Aboriginal women to move off-reserve in order to take up employment or training opportunities, contrary to section 6 of the Charter. Again, the plaintiffs say that AHRDS directly affects the rights of Aboriginal women to gain a livelihood, through the defendant's job creation program, contrary to section 7 of the Charter. Finally, AHRDS is said to directly affect the rights of Aboriginal women to sexual and residential equality, contrary to subsections 15(1) and section 28 of the Charter.

[11]All of this gives rise to issues which may be put into eight categories:

(1) The test for striking out a pleading.

(2) The application of the Charter.

(3) Reading in contractual provisions.

(4) Availability of declaratory relief together with damages.

(5) Mobility rights of Aboriginal women under section 6 of the Charter.

(6) Security of the person of Aboriginal women under section 7 of the Charter.

(7) Lack of justiciable claims by plaintiff associations under subsection 15(1) of the Charter.

(8) Redundancy by reason of similarity of claims.

Before turning to an analysis I would note that these reasons have been delayed for an unacceptable length of time.

ANALYSIS

The Test on a Motion to Strike Out

[12]The law bearing on striking out a pleading in the Federal Court has been characterized as trite law. That may well be the case so far as counsel practising in the Federal Court are concerned. However, parties and interested members of the public also, from time to time, read legal decisions: for them the basic legal underpinnings of the striking out process may not be so banal and common place. Thus I will briefly set out the law.

[13]A good starting point is Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.), at page 419, a passage in which Lord Justice Fletcher Moulton, of the Court of Appeal, stated that a plaintiff should not be "driven from the judgment seat" unless that person's action was "obviously and almost incontestably bad". In Dyson the Court was of the view that the jurisdiction to strike out a pleading for want of reasonable cause of action was not intended to be used where a pleading raised a question of general importance or a serious question of law. In formulating the obviously and almost incontestably bad test, Lord Justice Fletcher Moulton said:

To my mind it is evident that our judicial system would never permit a plaintiff to be "driven from the judgment seat" in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad.

The test in the Federal Court, while phrased in different terms, places at least as heavy a burden on a party seeking to strike out a pleading. Returning for a moment to the Court of Appeal's view that the striking out procedure was not intended to be used where a pleading raises a serious question of law, the Federal Court has voiced similar concerns. Serious issues of law should not be determined on a summary motion to strike out a plea or a pleading unless it is so futile as to warrant such a drastic stroke: Vulcan Equipment Co. Ltd. v. The Coats Co., Inc., [1982] 2 F.C. 77 (C.A.), at page 78 leave to appeal refused (1982), 63 C.P.R. (2d) 261 (S.C.C.).

[14]In considering a pleading, which is subject to a motion to strike out, I must look at the whole of the pleading, read it in context with a generous eye and only strike it out if it is plain and obvious that it must fail at trial (Martel v. Samson Band, [1999] F.C.J. No. 374 (T.D.) (QL), at paragraph 2):

Equally elementary is the principal that on a motion to strike such as this one, the Court must have regard to the whole of the impugned pleading, must read that pleading in context and with what I may call a generous eye and should only strike it if it is plain and obvious that the pleading must fail at trial.

[15]The Federal Court test for want of a reasonable cause of action, a heavy burden which the moving party must establish, is that it be plain, obvious, and beyond reasonable doubt that the claim cannot succeed: this test has been set out in many cases, including Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at page 979; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, at pages 486-487; and Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735, at page 740. The standard is set high: the concern of avoiding unnecessary litigation and for the preservation of the Court's resources must not deprive a party of the proper and deserved day in Court. It is only where a proceeding is bereft of any chance of success that the concern for the preservation of the resources of all concerned should be paramount.

[16]Where, as in this instance, the party moving to strike out relies upon paragraphs 221(1)(c) and (f), of the Rules which rules include vexatious and abusive proceedings, the test for striking out is as stringent as, or even more stringent, than that which applies under paragraph 221(1)(a): Waterside Ocean Navigation Co., Inc. v. International Navigation Ltd., [1977] 2 F.C. 257 (T.D.), at page 259, a decision of Associate Chief Justice Thurlow. The frivolous and vexatious action includes one which will not lead to a practical result. The words frivolous and vexatious define a claim which is obviously unsustainable: Attorney General of the Duchy of Lancaster v. London & North Western Railway Company, [1892] 3 Ch. 274 (C.A.), at page 277. An abusive action is one which misuses or perverts the procedure of the Court. It is an action which can lead to no possible good, one in which defendants are dragged through long and expensive litigation for no possible benefit: see for example Lord Justice Bowen's judgment in Willis v. Earl of Beauchamp (1886), 11 P.D. 59 (C.A.), at page 63. All of these subsidiary heads of striking out for immateriality or redundancy, or for frivolous or vexatious pleading, and as an abuse of process are in a sense intertwined for a frivolous or vexatious pleading includes one which is an abuse of process: Ashmore v. British Coal Corpn., [1990] 2 Q.B. 338 (C.A.), at page 347.

[17]Multiple proceedings may be an abuse of the process of the Court. Lord Justice Kay of the Court of Appeal in Poulett (Earl) v. Hill (Viscount), [1893] 1 Ch. 277 (C.A.), at page 282 took the view that. "When an action has been brought by which the plaintiff can recover everything to which he is entitled, he ought not to bring another. . . . The second action is wrong in every way." In Eggum v. Cumberland House Development Corp. (1990), 88 Sask. R. 164 (Q.B.), Mr. Justice Hrabinsky, of the Saskatchewan Queen's Bench, adopted this passage from Earl Poulett, as the basis for striking out one of a pair of duplicate actions involving the same facts and similar relief which arose out of the same circumstances. This does not mean that multiple actions are, in themselves, abusive, but when actions either duplicate one another, or where all recovery or relief might be obtained in one action, the superfluous action or actions ought to be either stayed or struck out, depending upon the circumstances.

[18]Finally, there is a question of whether an amendment might save a pleading which would otherwise be struck out. The test, for striking out without leave to amend, is that there must not be a scintilla of legitimate cause of action. This was the view of Associate Chief Justice Jerome in McMillan v. Canada (Minister of Citizenship and Immigration) (1996), 108 F.T.R. 32 (F.C.T.D.), at page 39, there referring to Kiely v. Canada (1987), 10 F.T.R. 10 (F.C.T.D.).

Application of the Charter

[19]To begin, it is necessary to characterize the precise nature of the Charter claim of the plaintiffs, in order to determine some of the legal principals which govern. Here the plaintiffs are not challenging the constitutionally of legislation. Rather the plaintiffs challenge the conduct of the executive branch of government. It is clear that the executive branch of government has a duty to act in accordance with the dictates of the Charter. The decisions of that branch of government are subject to judicial scrutiny by virtue of section 32 of the Charter (Operation Dismantle, supra, at page 455):

I have no doubt that the executive branch of the government is duty bound to act in accordance of the dictates of the Charter.

That the Charter applies is not in dispute. However, the fact that the plaintiffs are challenging conduct and not legislation may be a consequential distinction in light of some of the remedies sought.

Reading in Contractual Provisions

[20]In file T-892-00 the BCNWS seeks, among other things, to have read into funding agreements to which they are not parties, provisions which would allow its members sexual equality in funding, including the management of such agreements; not merely equitable funding. This request for a reading in of sexual equality is set out at section E of the relief claimed in that action by the plaintiffs:

E. A reading in of sexual equality of Aboriginal national and regional funding agreements on job creation signed thereunder to provide job programs and services equally to men and women on and off reserve, including management of those agreements.

The Crown, in seeking to have this paragraph struck out, makes three points: first, the doctrine of privity of contract applies against the plaintiffs; second, the Court's remedial jurisdiction does not extend to reading provisions into contractual agreements; and third, the Court should decline to insert provisions into the agreements where, to do so, would engage the Court in recrafting complex government programs.

Privity of Contract

[21]The narrow and rigid approach to contract manifested in the common-law doctrine of privity of contract, distinguishing, on the one hand, between those involved in a contract as signatories or as assenting to an oral contact and, on the other hand, those who claim rights or upon whom the contract seeks to impose liabilities, may frustrate the object of a contract or cause practical difficulties. From time to time the courts have avoided the practical difficulties and indeed absurdities brought about by privity of contract, through qualifications and equitable development of the law. I would refer generally to an excellent consideration of the doctrine of privity of contract and of modification of the doctrine, including specific qualifications on the doctrine, such as that of a trust, set out in The Law of Contract in Canada (by G. H. L. Fridman), 4th ed., 1999, Carswell, at page 187 and following.

[22]The plaintiffs are faced with the doctrine of privity of contract when they try to find a way in which to participate in contracts between the Crown and the various First Nations and here I would refer back to the AHRDS funding agreements. The principal argument made by the plaintiffs is that provisions ought to be read into these contracts.

[23]The plaintiffs' case for reading in provisions in contracts between the Crown and First Nations entities, whereby Canada provides money for Aboriginal job creation, is the proposition that the Crown "cannot hide its sex and race discriminatory policies behind the privity of contracts, and leave Indian, Inuit and Aboriginal women without job creation programs" (at page 20 of written representations). This proposition, while attractive, is not directly supported by any authority referred to by the plaintiffs.

[24]From this initial position BCNWS points out that language was added to AHRDS to ensure that disabled persons would be equally funded, but that women are to receive equitable, not equal, funding. The plaintiffs therefore seek a reading in of equality of funding for women, in line with the equality provision in the Charter. BCNWS goes on to submit that the government of Canada, as represented by the Crown in this action, cannot evade the Charter by contracting only with Indian, Inuit and Aboriginal men's groups, but not with women's groups.

[25]From this initial position counsel for BCNWS then goes to Schachter v. Canada, [1992] 2 S.C.R. 679, beginning with the proposition that [at page 698]:

In the case of reading in the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes. Where the inconsistency is defined as what the statute excludes, the logical result of declaring inoperative that inconsistency may be to include the excluded group within the statutory scheme. This has the effect of extending the reach of the statute by way of reading in rather than reading down. [Emphasis in the original reasons.]

Counsel here submits that Aboriginal women have been deliberately excluded from benefiting from the law, namely by exclusion from the HRDC Aboriginal job creation program under AHRDS and that reading in of sexual equality would provide a remedy.

[26]Counsel for BCNWS concludes this portion of her submission by submitting that reading in is a legitimate remedy, utilizing the following quotation from page 702 of Schachter:

Reading in should therefore be recognized as a legitimate remedy akin to severance and should be available under s. 52 in cases where it is an appropriate technique to fulfil the purposes of the Charter and at the same time minimize the interference of the court with the parts of legislation that do not themselves violate the Charter.

[27]The difficulty with this approach is that the Schachter case does not deal either with contractual obligation or with privity of contract, but rather sets out principles which are applicable in the context of legislation. Indeed, the Schachter case involved sections of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and the Charter.

[28]The defendant, in seeking to deal with the notion of reading into contracts provisions which do not exist, begins with the narrow common law view of privity of contract: "Only those parties to a contract may obtain remedies under it." This reflects a passage in Dunlop Pneumatic Tyre Company v. Selfridge & Co., [1915] A.C. 847 (H.L.), at page 853:

My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.

[29]The doctrine of privity of contract was more recently defined by Mr. Justice Iacobucci in London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299, at pages 415-416:

The doctrine of privity of contract has been stated by many different authorities sometimes with varying effect. Broadly speaking, it stands for the proposition that a contract cannot, as a general rule, confer rights or impose obligations arising under it on any person except the parties to it. . . . It is now widely recognized that this doctrine has two very distinct components or aspects. On the one hand, it precludes parties to a contract from imposing liabilities or obligations on third parties. On the other, it prevents third parties from obtaining rights or benefits under a contract; . . . . [Emphasis added.]

[30]Counsel for the Crown properly points out that there are exceptions by which a contract may confer rights upon a third party, exceptions involving agency, trust and a clear intention to receive a benefit, here referring to London Drugs Ltd., supra, at page 417, and Greenwood Shopping Plaza Ltd. v. Beattie et al., [1980] 2 S.C.R. 228, at pages 238-241. The Crown submits that it is clear that BCNWS does not fall into the category of an entity entitled to rely upon any of the exceptions to the doctrine of privity of contract.

[31]The concept of a trust, to break through the barrier of privity of contract, was accepted by the Supreme Court of Canada in Greenwood Shopping Plaza, supra, at page 240. The argument foundered on a lack of evidence, for the point had not been argued in the courts below. Certainly the use of the term "trust" in an agreement would be sufficient to create third party rights. And here I would refer to Johns-Manville Canada Inc. v. John Carlo Ltd. (1981), 29 O.R. (2d) 592 (H.C.), in which the trial judge found, at page 598, that a trust was specifically contemplated in the contract, a view upheld by the Supreme Court of Canada, the case there reported as Citadel General Insurance Company v. Johns-Manville Canada Inc., [1983] 1 S.C.R. 513. The Johns-Manville case leads to a passage dealing with third party beneficiaries in S. M. Waddams, The Law of Contracts, 1999, 4th ed., Canada Law Book, at page 196, in which the author, after referring to the Johns-Manville case, considers whether there need be a specific reference to a trust, in an agreement, in order to give third party rights:

It is not clear, however, what conduct short of express use of the word "trust" sufficiently manifest an intention to create a trust. Equity has never insisted on the use of particular words to create trusts, so in principle it should be sufficient for the parties to manifest an intention to create an equivalent interest. Yet the courts have drawn back from holding that an intention to benefit a third party is sufficient to create a trust, for this would amount to an abrogation of doctrine of privity. It remains unclear, therefore, what conduct (short of express use of the word "trust") sufficiently manifests the requisite intention.

[32]Mr. Justice Iacobucci, who delivered the judgment of the Court in London Drugs, supra, again delivered the judgment of the Supreme Court of Canada, when it revisited privity of contract and exceptions to the doctrine, in Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108. He pointed out that in London Drugs the Court decided to adopt a direct approach as a matter of principal, rather than add further ad hoc exceptions to the doctrine of privity of contract. At paragraph 32 of Can-Dive Services the Court set out what it referred to as "two critical and cumulative factors", being an intent to extend the benefit at issue to parties seeking to rely on a contractual provision and whether the activities of the third party were the very activities contemplated as coming within the scope of a contract in general, or a provision in particular, as determined by reference to the intention of the parties.

[33]The difficulty which I have with accepting the Crown's submission that London Drugs refutes any possibility of third party benefits arising out of the AHRDS agreement is the reference to equitable funding for women. This is a clear reference to an interest in the benefits under the AHRDS program and agreements in favour of Aboriginal and Inuit women. Whether it amounts to a trust and a breach of fiduciary duty, as pleaded, would seem, by itself, to amount to a serious issue of law, which, as the Federal Court of Appeal pointed out in Vulcan Equipment, supra, ought not to be dealt with on a summary motion.

[34]A trust term might well assist the plaintiffs with some of their declaratory relief. However, even if a trust term in the agreement favours the plaintiffs, as third party beneficiaries to the AHRDS agreements, I do not see that the trust term entitles them to a change of a specific contractual term, substituting "equal" for "equitable", unless there is some grant of jurisdiction which allows the Court to read specific terms into contracts between other persons. I now turn to the concept of reading provisions into the agreements.

Jurisdictional Limits on Reading In

[35]The Crown also makes submissions designed to refute the concept, proposed by the plaintiffs, of reading provisions into a contract to which the plaintiffs are not parties. Here the Crown refers to jurisdictional limits on the remedy of reading in.

[36]The Crown's basic proposition, placing jurisdictional limits on the remedy of reading in, is that the Federal Court does not have an applicable remedial jurisdiction, first because reading in is a remedy to correct unconstitutional legislation, not agreements, and second because the Federal Court possesses no independent jurisdiction to alter agreements entered into between the Crown and third parties.

[37]To begin, the Crown submits that courts are empowered to read in provisions only in the case of legislation and that such a remedial power is pursuant to section 52 of the Constitution Act, 1982. The Crown then turns to the Schachter case, supra, noting that the Supreme Court of Canada dealt with the question of the most appropriate remedial option in the face of legislation that was inconclusive and therefore in breach of the Charter.

[38]While there are two separate set of reasons in the Schachter case, both reach the same conclusion. Relevant here are the reasons of Chief Justice Lamer, writing for himself and for four other members of the Court. Chief Justice Lamer began the analysis by observing that there were two remedial streams available, depending upon whether the object was to strike down the legislation pursuant to subsection 52(1) of the Constitution Act, 1982, or an individual remedy pursuant to subsection 24(1) of the Charter.

[39]Subsection 52(1) of the Constitution Act, 1982 provides that any law inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect.

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Subsection 24(1) of the Canadian Charter of Rights and Freedoms deals with relief to individuals whose rights or freedoms under the Charter have been denied, in which case a court may fashion an appropriate remedy:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[40]It is implicit in the following quotation from Schachter that reading down and reading in are only available once there has been a determination that provisions of legislation infringe the Charter (at pages 695-696):

A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only "to the extent of the inconsistency". Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power to grant an "appropriate and just" remedy to "(a)nyone whose (Charter) rights and freedoms . . . have been infringed or denied". In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration. [Emphasis added.]

[41]In Schachter the Court considered the remedies of reading down and of reading in within the context of remedial options available under subsection 52(1) of the Constitution Act, 1982 and, most important, only in context of legislation found to be unconstitutional. Further, reading in is not a remedy under subsection 24(1) of the Charter (at pages 719-720):

Where s. 52 of the Constitution Act, 1982 is not engaged, a remedy under s. 24(1) of the Charter may nonetheless be available. This will be the case where the statute or provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person's Charter rights. Section 24(1) would there provide for an individual remedy for the person whose rights have been so infringed.

This course of action has been described as "reading down as an interpretive technique", but it is not reading down in any real sense and ought not to be confused with the practice of reading down as referred to above. [Emphasis added.]

[42]Taking the statement of claim provisions at face value, they do not allege that any legislative provisions is unconstitutional, but rather that some action taken by the defendant infringes a Charter right. In this instance it is clear that subsection 52(1) of the Constitution Act, 1982 is not engaged because the challenge is not to a law that is inconsistent with the constitution. On this line of reasoning, put forth by the defendant, reading provisions into various agreements, to which the plaintiffs are not parties, is not an available remedy, for there is a lack of jurisdiction to read provisions into the contract. This is so if one also accepts, as the final word, the circumscription placed on federal common law, as a law of Canada, by the Supreme Court in R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695, at page 707:

It is settled that in s. 101 the expression "Laws of Canada" means laws enacted by Parliament.

Hogg on Constitutional Law of Canada, the current Carswell loose-leaf version, points out that "Fuller Construction illustrates the deficiencies of the Supreme Court of Canada's rigid approach to the requirement of `existing and applicable federal law'" (at page 7-21 of ch. 7.2(b)). Hogg is also critical of the concepts of applicable and existing federal law and of laws of Canada as discussed in Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054; and in McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654. The federal common law as a source of jurisdiction of the Federal Court has, however, continued to evolve. Certainly, there is now no doubt that the laws of Canada go well beyond legislation and include some common law. Here I have in mind Roberts v. Canada, [1989] 1 S.C.R. 322 where Madam Justice Wilson, writing for the Court, observed that Chief Justice Laskin, in McNamara Construction, supra, referred to jurisdiction being founded upon "some existing federal law, whether statute or regulation or common law" at page 659 of McNamara Construction. Madam Justice Wilson concluded that federal common law did exist in some areas and therefore, in the case of Roberts, the issue was whether the law of Aboriginal title was federal common law, answered in the affirmative (at pages 339-340 of Roberts). Unfortunately, as Sgayias on the Federal Court Practice points out in the 2001 edition at page 8, Roberts does not assist in identifying federal common law and the areas to which it attaches:

What Roberts does not resolve is a method by which federal common law is to be identified. The concept of a federal common law attaching to areas of exclusive federal legislative competence is neither approved nor disapproved.

Of some assistance here is Rhine v. The Queen; Prytula v. The Queen, [1980] 2 S.C.R. 442, which involved the Prairie Grain Advance Payments Act [R.S.C. 1970, c. P-18], characterized by Chief Justice Laskin as a detailed statutory framework, a part of the overall scheme for marketing grain produced in Canada. The case had made its way through the Federal Court system where at issue had been the jurisdiction of the Court to entertain the claim. By reason of the impact of the legislation the Court held that there was existing valid federal law to govern the transaction when it became the subject of litigation in the Federal Court. Chief Justice Laskin added that (at page 447):

It should hardly be necessary to add that "contract" or other legal institutions, such as "tort" cannot be invariably attributed to sole provincial legislative regulation or be deemed to be, as common law, solely matters of provincial law.

To summarize and to apply this to the present instance, there is federal contract law which may be applied where a case involves a federal statutory framework. Here I have some question as to whether the statutory framework surrounding the AHRDS program is of the same magnitude as that surrounding grain production, delivery and marketing, but I am not prepared to say, categorically, that there may not be federal common law as to contract available to the plaintiffs. Thus the case is clearly not one which is forlorn for the Court might well have a common law jurisdiction in contract that would be of assistance.

[43]Counsel for the Crown goes on to submit that while the Court may under subsection 24(1) of the Charter, fashion an appropriate and just remedy, given the circumstances, that discretion does not provide the Court with the jurisdiction to read language into contractual agreements. Here the submission is based on Singh et al. v. Minister of Employment & Immigration, [1985] 1 S.C.R. 177, in which the Supreme Court of Canada delivered two judgments, each allowing the appeal. Counsel refers me to the reasons of Madam Justice Wilson at page 222 for the proposition that subsection 24(1) of the Charter does not by itself provide a court with jurisdiction to fashion a remedy that it is otherwise not empowered to order:

Section 24(1) of the Charter provides remedial powers to "a court of competent jurisdiction". As I understand this phrase, it premises the existence of jurisdiction from a source external to the Charter itself.

[44]Leaving aside for the moment the third party characteristic of the plaintiffs' case for contractual modification, the common law ability of a court to imply terms into contracts can be a useful tool. However one must use it carefully for it is counter to the values of certainty, stability and predictability in contracts. Waddams on The Law of Contracts, supra, comments on the highly restrictive approach to implying terms into a contract, but does refer to instances in which terms are in fact and indeed frequently implied into a contract: see page 357 and following. Returning to the relief sought by the plaintiffs as outsiders to the AHRDS agreements, in none of the discussion or the case law referred to, either in Waddams or by counsel for the plaintiffs, is there an instance in which terms have been implied into a contact in favour of a third party, thus both ignoring the doctrine of privity of contract and the common law values of certainty, stability and predictability in the interpretation of contracts between two parties.

[45]Reading in, in the sense of rewriting specific terms in the contracts of others, is perhaps a novel argument, but that it be hitherto unknown is not a ground on which to strike out in a summary manner, particularly when the plaintiffs submit that the Crown is avoiding its obligations by way of AHRDS agreements with Aboriginal men's organizations. Where the plaintiffs' case fails is in the reluctance of courts to recraft complex government programs, a topic to which I now turn.

Recrafting of Government Programs

[46]While the concept of reading provisions into an agreement, favouring a third party, may be very difficult it is not a forlorn approach. Thus counsel for the Crown offers yet another analysis. It is that even if the Court might have jurisdiction to read language into a third party contract, the Court should decline to do so, for to read provisions into the agreements would be to substantially recraft complex government programming. This process would involve substantial revision, going well beyond the simple adding of language to an agreement in order to give benefits to the plaintiffs. I agree that this is a task better left to government. There is authority for this proposition.

[47]The Supreme Court of Canada has from time to time expressed the view that it is inadvisable and undesirable that courts fashion alternate schemes in the face of a myriad of options available to the government which might rectify the unconstitutionality of an existing system. Rather, the Supreme Court has made it clear that the appropriate approach is to issue a declaration of invalidity under subsection 52(1) of the Constitution Act, 1982, leaving it to the government to restructure such program to comply with the order. The Crown here refers to Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, where, at paragraph 96, Justice La Forest looked upon a declaration as a remedy of substance and made the assumption that the government would move swiftly to correct the unconstitutionality of the scheme in question. Counsel also refers to Mahe v. Alberta, [1990] 1 S.C.R. 342, at pages 392-393, where Chief Justice Dickson, in delivering the reasons for the Court, felt it best that the Court restrict itself to making a declaration so as to leave the government with the flexibility necessary to fashion a response properly suited to the circumstances.

[48]The application of this principle, which denies the recrafting of government programs, to the present situation, is appropriate. Further, the appropriate remedy would be declaratory relief, as suggested by Chief Justice Dickson. The plaintiffs have sought various declaratory relief and while that might well succeed it is plain and obvious that a court would not rewrite a contract to benefit third parties if the result would be a complete recrafting of the complex government program, when the same result might be obtained by way of a declaration, leaving the way open for the Crown to refashion its program.

Conclusion as to Reading Provisions into Third Party Contracts

[49]To sum up, the concept of writing provisions into a contract, a contract to which the plaintiffs are not parties, is not a forlorn plea. However to seek to have the Federal Court recraft a complex government program constitutes a plea which plainly and obviously cannot succeed. There is not a scintilla of a legitimate cause of action which might allow an amendment. Paragraph 1E of the relief, sought at page 4 of the statement of claim in action T-892-00, is therefore struck out without leave to amend.

Availability of Declaratory Relief Together with Damages

[50]The defendant does not say that declaratory relief is not available in an action against the Crown. This is proper, for here the Crown is not a "federal board, commission or other tribunal" as defined in subsection 2(1) of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 1)]. Thus the Crown cannot be named in a judicial review proceeding under section 18 [as am. idem, s. 4] of the Act. This is made clear by Mr. Justice Muldoon in Harris v. Canada, [1999] 2 F.C. 392 (T.D.). In that action Mr. Harris challenged not legislation, but acts of the government, characterized as blundering in the administration of tax collection and a huge erosion of the national tax base. At paragraph 11 Mr. Justice Muldoon pointed out that judicial review might not be invoked against the Crown by reason of a lack of a federal board, commission or tribunal to trigger judicial review. Mr. Justice Muldoon set aside an order striking out the statement of claim and allowed the action to proceed, thus answering his rhetorical question as to whether the Crown might be immune from an action seeking a declaration. Rather, the defendant takes a position that the plaintiffs may not have both constitutional declarations as well as damages.

[51]The defendant notes that in action T-2179-99 the plaintiffs seek both a variety of constitutional declaratory relief, together with damages. I accept that the plaintiffs seek the same dual relief in actions T-2175-99 and T-892-00, even though the word "declaration" is absent from the catalogue of relief claimed. The defendant's position is that, as a general rule, damages and a constitutional declaration of invalidity ought not be coupled together. Thus paragraph M in the relief portion of T-2179-99, paragraph K in T-892-00 and, to the extent that action T-2175-99 is not struck out in its entirety, at least paragraph K ought, in the defendant's view, to be struck out.

[52]The defendant refers to two cases in support of their basic proposition. The Supreme Court of Canada noted in Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347 that, as a general rule, an action for damages under subsection 24(1) of the Charter can rarely be coupled with a declaratory action for invalidity under section 52 of the Constitution Act, 1982, the Court relying on a passage from Chief Justice Lamer's decision in Schachter, supra, at page 720:

An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available.

In Guimond the claim for damages was under subsection 24(1) of the Charter and was based on a bare allegation of the unconstitutionality of a provision whereby imprisonment might be substituted for a fine.

[53]Mr. Justice Gonthier summed up his understanding of the interplay between subsection 24(1) of the Charter and declaratory relief under section 52 of the Constitution Act, 1982 (at paragraph 19 of Guimond):

Although it cannot be said that damages can never be obtained following a declaration of constitutional invalidity, it is true, as a general rule, that an action for damages under s. 24(1) of the Charter cannot be coupled with a declaratory action for invalidity under s. 52 of the Constitution Act, 1982.

The concept here, as I understand it, is that if a provision is struck down as unconstitutional pursuant to section 52, that concludes the proceeding, leaving no retroactive section 24 remedy in damages available.

[54]The difficulty with the defendant's argument, taking into account Guimond and Schachter, is that the plaintiffs do not seek declarations that legislation is invalid, but rather claim for declaratory relief against discriminatory unconstitutional actions, including such arising by way of breach of fiduciary duty.

[55]The defendant acknowledges that the plaintiffs do not seek declaratory relief pursuant to subsection 52(1) of the Constitution. However the defendant does submit that any declarations obtained by the plaintiffs, pursuant to subsection 24(1) of the Charter, would nevertheless have a broad impact to complex national programming, affecting many individuals and organizations. This submission continues that the relief sought in the present claims is more akin to a subsection 52(1) declaration and thus the rationale in Guimond and in Schachter ought to be applied.

[56]Counsel for the plaintiffs points out that declaratory relief may be particularly appropriate in fashioning remedies for breaches of the Crown's fiduciary obligations to Aboriginal peoples, for such declaratory relief may well have a practical effect where the Crown has refused to recognize its obligations. Counsel for the plaintiffs refers to various cases, including Harris v. Canada, supra, upheld [2000] 4 F.C. 37 (C.A.); leave to appeal to the Supreme Court of Canada denied (2001) 264 N.R. 391, where allegations of maladministration of the Income Tax Act [R.S.C., 1985 (5th Supp.), c. 1] were not struck out. Similarly, the Crown failed in a motion to strike out an action for declaratory relief relating to the aboriginal rights of Métis in Dumont v. Canada (Attorney General) (1987), 48 Man. R. (2nd) 4 (Q.B.), at page 10, reversed (1988), 52 Man. R. (2d) 291 (C.A.) by the Manitoba Court of Appeal and reinstated [1990] 1 S.C.R. 279. Similarly in Montana Band of Indians v. Canada, [1991] 2 F.C. 30 (C.A.), at page 38, leave to appeal to S.C.C. denied [(1991), 136 N.R. 421], the Court held that the general rules regarding declaratory relief applied and not Charter law, at issue being declaratory relief against the Crown for breach of fiduciary obligations.

[57]I think important here is that no declaration of invalidity is being sought. However neither counsel was able to refer to authority directly on point that would be determinative in the present instance to show that declaratory relief and damages could not possibly be awarded in the present instance. Counsel for the defendant could only go so far as submitting that the relief sought was akin to a subsection 52(1) declaration under the Constitution Act, 1982. All of this falls short of the certainty needed in order to strike out a pleading. Indeed, here is a serious question of law which ought not to be determined on a summary motion to strike out, for it is not such a futile plea as to warrant such a drastic stroke and here I refer back to Vulcan Equipment, supra, at page 78. Thus the paragraphs seeking damages in the relief sections of each of the three actions shall remain.

Mobility Right of Aboriginal Women under section 6 of the Charter

[58]In each of the three statements of claim the plaintiffs seek relief pursuant to section 6 of the Charter in the form of declarations as to a failure on the part of the defendant to provide resources to ensure job mobility of Aboriginal women under the new Aboriginal job creation strategy. The plaintiffs do not set out the specific portion of section 6 of the Charter upon which they rely, however it would appear to be paragraph 6(2)(b):

6. . . .

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

    . . .

(b) to pursue the gaining of a livelihood in any province.

[59]The defendant's position is that paragraph 6(2)(b) of the Charter, while guaranteeing a right to pursue a livelihood in any province without obstruction, does not create an entitlement to resources which might help in the pursuit of the gaining of that livelihood. Here the defendant relies upon passages from Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; and Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, which set out both the right of a citizen to move about the country, residing where he or she wishes, without regard to provincial boundaries and that the freedom guaranteed by section 6 is embodied in the concern for the dignity of the individual so that he or she might be free from any discriminatory treatment by the state based on place of residence (Black, at page 620 and Canadian Egg Marketing Agency, at paragraph 60):

What section 6(2) was intended to do was to protect the right of a citizen (and by extension a permanent resident) to move about the country, to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries.

The freedom guaranteed in s. 6 embodies a concern for the dignity of the individual. Sections 6(2)(b) and 6(3)(a) advance this purpose by guaranteeing a measure of autonomy in terms of personal mobility, and by forbidding the state from undermining this mobility and autonomy through discriminatory treatment based on place of residence, past or present. The freedom to pursue a livelihood is essential to self-fulfilment as well as survival. Section 6 is meant to give effect to the basic human right, closely related to equality, that individuals should be able to participate in the economy without being subject to legislation which discriminates primarily on the basis of attributes related to mobility in pursuit of their livelihood.

Mr. Justice Muldoon, in Archibald v. Canada, [1997] 3 F.C. 335 (T.D.), considered an earlier case, Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, as well as Black, supra, and summed up the reason for the inclusion of section 6 in the Charter by saying that [at paragraph 96] "Section 6 was included in the Charter to provide Canadian citizens the general right to move anywhere in the country to pursue a livelihood of their choosing." Mr. Justice Muldoon then went on to point out that subsection 6(3) of the Charter provided exceptions, which do not apply in the present instance.

[60]From this the defendant concludes that the plaintiffs' section 6 Charter pleas, the crux of which is the failure to provide adequate resources to ensure job mobility, go beyond and do not engage the protection provided by paragraph 6(2)(b) of the Charter and therefore should be struck out as disclosing no justiciable claim.

[61]The plaintiffs admit that Indian, Inuit and Aboriginal women have the right to move to any province and territory to work, subject to the laws of general application, but that this right has been constrained by AHRDS, which focuses more on men than on women. From this it is said to follow that less money being directed to Indian, Inuit and Aboriginal women, they are therefore constrained by government in their ability to move to work. Here the plaintiffs refer generally to the Canadian Egg Marketing Agency case, supra, at paragraphs 55-65. There, at paragraph 55 of the majority decision, Justices Iacobucci and Bastarache, in opening their discussion as to the purpose of the mobility guarantee in section 6 of the Charter referred to Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at page 156, for the proposition that section 6 was intended to constrain government action which was inconsistent with Charter rights and freedoms but that it was not, by itself, an authorization for governmental action:

The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action [Emphasis added by Justices Iacobucci and Bastarache.]

This opening passage, in the discussion of the mobility guarantee, does not particularly assist the plaintiffs, for Justices Iacobucci and Bastarache make it clear that the section does not represent an authorization for governmental action. One might extend this to the concept that section 6 of the Charter is neither authorization for or indeed a requirement that there be government action in the form of funding.

[62]I have read through the complete section in Canadian Egg Marketing Agency, referred to by the plaintiffs. Certainly the tenor of this portion of the Canadian Egg Marketing Agency case is the recognition of mobility rights, which perhaps goes beyond the constraint of government action inconsistent with those rights and freedoms and here I would refer to a passage at paragraph 60:

The mobility guarantee is defined and supported by the notion of equality of treatment, and absence of discrimination on the ground normally related to mobility in the pursuit of a livelihood (i.e. residence).

[63]The plaintiffs focus on the concept of the rights and equality of treatment and upon absence of discrimination. They then make the jump to curtailment of rights through an absence of federal government money to go toward training and employment. However the Court in the Canadian Egg Marketing Agency case, at paragraph 60, emphasized that the guarantee is related to an absence of unfavourable distinction in the context of residence:

Situated in the Charter, and closely mirroring the language of international human rights treaties, it seems clear then that s. 6 responds to a concern to ensure one of the conditions for the preservation of the basic dignity of the person. The specific guarantee described in s. 6(2)(b) and s. 6(3)(a) is mobility in the gaining of a livelihood subject to those law which do not discriminate on the basis of residence. The mobility guarantee is defined and supported by the notion of equality of treatment, and absence of discrimination on the ground normally related to mobility in the pursuit of a livelihood (i.e. residence). La Forest J. articulated the correlative significance of these two concepts in Black, supra, at pp. 617-18 and 620-21:

Section 6(2)(b), in my view, guarantees not simply the right to pursue a livelihood, but more specifically, the right to pursue the livelihood of choice to the extent and subject to the same conditions as residents.

In truth, a purposive approach to the Charter dictates a more comprehensive approach to mobility. What section 6(2) was intended to do was to protect the right of a citizen (and by extension a permanent resident) to move about the country, to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries. The provinces may, of course, regulate these rights (as Skapinker holds). But subject to the exceptions in ss. 1 and 6 of the Charter, they cannot do so in terms of provincial boundaries. That would derogate from the inherent rights of the citizen to be treated equally in his capacity as a citizen throughout Canada.

The emphasis added in this passage is that of Justices Iacobucci and Bastarache. They then, as I have already set out, go on to sum this up to the effect that paragraph 6(2)(b) and indeed subsection 6(3) forbid discrimination based on residence, past or present.

[64]Certainly I must interpret the mobility rights under subsection 6(2) of the Charter generously in order to allow it to achieve its purpose. Mr. Justice La Forest made this point in Black v. Law Society of Alberta, supra, at page 612:

Like other individual rights guaranteed by the Charter, it must be interpreted generously to achieve its purpose to secure to all Canadians and permanent residents the rights that flow from membership or permanent residency in a united country.

Again, the specific emphasis is on residency and flowing from that the concept of equal rights to residents living in different provinces. Counsel for the plaintiffs also refers me to a passage at pages 617-618 of Black which emphasizes that permanent residents, who travel to another province, have the right to pursue a livelihood of their choice, independent upon the type of employment sought, so long as those persons comply with local laws setting out qualifications, all to the same extent and subject to the same conditions as with local residents. From this concept the plaintiffs assume and it is probably correct, that the AHRDS program was designed to allow Aboriginal peoples the ability to pursue job training and job creation of their choosing. From this it is said to follow that the choices are denied by the AHRDS program, so far as Indian, Inuit and Aboriginal women are concerned.

[65]All of the case law and judicial discussion stops short of any concept which might be extended to provide a guarantee of funding, or even a guarantee, specific to or inherent in section 6 of the Charter, that there must be equal funding. Perhaps there ought to be, but that is a different issue, not one to be pursued within the ambit of paragraph 6(2)(b) of the Charter. Having reached this conclusion the paragraph in the relief section in each of the actions, claiming a breach of section 6 of the Charter on the basis of a failure to provide adequate resources to ensure job mobility, is struck out, without leave to amend.

Security of the Person of Aboriginal Women under Section 7 of the Charter

[66]The plaintiffs allege a breach of rights under section 7 of the Charter, being a failure by the defendant to provide adequate resources for job creation programs and services to Aboriginal women under the job creation programs. Section 7 of the Charter provides that:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

To succeed under this section a claimant must show first that the actions of the defendant infringed their life, liberty and security of the person and second, that the impairment has not been effected in accordance with the principles of fundamental justice: see the decision of Madam Justice Wilson in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at page 523.

[67]The defendant goes on to submit that the allegations of the plaintiffs do not give rise to a deprivation of life or liberty, leaving only the right of security of the person to be considered. The defendant's argument continues to the effect that the Charter is engaged only where there has been imprisonment, physical punishment, deprivation of personal autonomy or the threat thereof, referring to Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at page 587.

[68]The defendant also submits that economic rights do not come within the section 7 guarantee, referring to Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at pages 1174-1177 and to Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at page 1003. Yet Chief Justice Dickson, in Irwin Toy, did not go that far, for after commenting that economic rights as generally encompassed in the term "property" did not fall within the section 7 guarantee, then added (at page 1003): "This is not to declare, however, that no right with an economic component can fall within `security of the person'". The defendant's submission continues that even economic claims which may be connected to, or affect or enhance, one's right to life, liberty or security of the person do not fall within the section 7 guarantee, here referring to various cases including the B.C. Court of Appeal decision in Whitbread v. Walley (1988), 51 D.L.R. (4th) 509, at pages 521-522, a decision of Madam Justice McLachlin, as she then was.

[69]Finally, the defendant makes the point, that section 7 does not offer protection to a corporation, referring to Irwin Toy, supra, at page 1004. However, what we have here are not corporations, but rather groups of Aboriginal women who have banded together to seek relief in line with their mutual interests.

[70]The difficulty that I have with the defendant's submissions as to section 7 of the Charter, leaving aside for the moment the validity of the plaintiffs' claim based on security of the person, is that security of the person is only one of the section 7 claims which the plaintiffs appear to make. Here I would comment that the plaintiffs' argument and written representations were, from time to time, unresponsive. On occasion the cases and propositions submitted by the defendant were not dealt with either in written argument or an oral argument. Moreover, the plaintiffs' case authorities were from time to time tangential. On the present topic the plaintiffs do not always meet the arguments of the defendant. However the plaintiffs do make two points.

[71]The plaintiffs submit that security of the person may be found in the fact that violence in Aboriginal communities is disproportionately high compared to that in Canadian communities as a whole, thus motivating Indian, Inuit and Aboriginal women to move elsewhere as a means of escape and as a means of finding a livelihood. Further, the plaintiffs submit that the denial of sexual and racial equality to Indian, Inuit and Aboriginal women, under AHRDS, is also a denial of the security of the person. The plaintiffs here refer to R. v. Gamble, [1988] 2 S.C.R. 595, at page 646:

Section 7 of the Charter protects the appellant's right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[72]The plaintiffs also refer to Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at paragraph 66, where Mr. Justice La Forest noted that the enshrined right to liberty, in section 7 of the Charter, "protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference." He concluded that paragraph by observing that "In my view, choosing where to establish one's home is, likewise, a quintessentially private decision going to the very heart of personal or individual autonomy." The plaintiffs submit that many Indian women and their children live off reserve for economic and educational reasons, because of violence in their home communities and because no housing or land is available to them. Moreover, Indian, Inuit and Aboriginal women are also said to choose, for their own benefit and to benefit their families, to live off reserve or outside of Inuit communities, but expect to benefit from Aboriginal job creation programs in the same manner as if they lived in their communities, all of which is denied by AHRDS.

[73]As to the defendant's argument, in Whitbread, supra, that economic interests do not fall under section 7 of the Charter, the B.C. Court of Appeal decision is a strong one, however it is not completely reconcilable with the Godbout decision, which makes it clear that choosing a location for one's home is a quintessentially private decision protected by section 7 of the Charter.

[74]While the case may not be an easy one to make I cannot say, with any certainty, that the plaintiffs will be unable to show either that the actions of the defendant infringe on their security of the person or their right to liberty or that the violation was carried out in a manner not in accordance with the principles of fundamental justice. Moreover, all of this could result in a deprivation of personal autonomy, or an ongoing threat thereof, being the test set out in Rodriguez, supra.

[75]In the result the pleas for relief, relying upon section 7 of the Charter, shall remain, for the individual plaintiffs might be able to succeed upon them, as may the groups of Aboriginal women who make up BCNWS and Pauktuutit.

Lack of Justiciable Claims by Plaintiff Associations under Subsection 15(1) of the Charter

[76]The claim of the plaintiffs here is, in the view of the defendant, an alleged failure of the defendant to allow BCNWS and Pauktuutit, which are associations of Indian, Inuit and Aboriginal women consultation, co-manage and administration of AHRDS programs. This claim, being in the view of the defendant one made by groups in the nature of corporations, is said to be bad because subsection 15(1) of the Charter is intended to protect only individual rights. Here counsel for the defendant refers only to the plain wording of subsection 15(1) of the Charter:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [Emphasis added.]

The position taken by the Crown overlooks the view of some authorities that section 15 of the Charter also takes into account inequality related to membership in groups. For example, there is a discussion of this in Beaudoin and Mendes in The Canadian Charter of Rights and Freedoms, 3rd ed., at pages 14-20 and 14-21. Here I recognize that the Federal Court of Appeal in Native Women's Assn. of Canada v. Canada, [1992] 3 F.C. 192 would, at page 208, deny section 15 relief to "collectives", yet the position, taking into account the views of Beaudoin and Mendes in 1996, is perhaps not settled.

[77]Counsel for the plaintiffs refers to Longley v. Canada (Minister of National Revenue--M.N.R.) (1999), 176 D.L.R. (4th) 445 (B.C.S.C.), at paragraph 117. There Madam Justice Quijano, after referring to Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; and to R. v. Swain, [1991] 1 S.C.R. 933, notes that:

It is apparent from these two decisions that s. 15(1) of the Charter is intended to apply to individuals or groups of individuals having certain personal characteristics and not to companies or, by analogy, political parties.

Counsel for the defendant responds to the effect that organizations may be a part of a section 15 claim, but only where it is a pure Charter claim and not a claim for organizational rights. At this point I would observe that it did not appear to bother the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 that groups representative of Aboriginal and Native peoples, including the Native Women's Association of Canada, claimed section 15 rights. I would also observe that subsection 15(2) of the Charter, dealing with affirmative action programs as an exception to subsection 15(1), refers both to individuals and groups.

[78]The defendant goes on to submit that neither individuals nor groups, such as the plaintiffs, have any claim under section 15 of the Charter. Rather, to accept the defendant's argument that neither individuals nor groups, in situations such as the present, may claim Charter rights because, on the one hand organizational rights to manage and administer government programs are group rights and not available to individuals, but on the other hand section 15 rights are not available to groups, is to emasculate section 15. I prefer the view of Mr. Justice Iacobucci who, in writing for the Supreme Court in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, recognized as an important aspect of section 15 of the Charter the protection of both individuals and groups who may be vulnerable or disadvantaged. Following discussion of various cases, including Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, Mr. Justice Iacobucci observed (at paragraph 68):

Since Andrews, it has been recognized in the jurisprudence of this Court that an important, though not exclusive, purpose of s. 15(1) is the protection of individuals and groups who are vulnerable, disadvantaged, or members of "discrete and insular minorities". The effects of a law as they relate to this purpose should always be a central consideration in the contextual s. 15(1) analysis.

[79]I am not convinced that it is plain and obvious that the claim under subsection 15(1) of the Charter by BCNWS Pauktuutit and by the individual plaintiffs, is plainly and obviously futile and must fail. Those two groups, as well as the individual plaintiffs, may proceed with their claim under subsection 15(1) of the Charter.

Redundancy by Reason of Similarity of Claims

[80]The issue here is whether action T-2175-99 ought to be struck out in its entirety, as redundant and as an abuse of the Court's process. The defendant asserts that the 1999 claim duplicates the claims by the same plaintiffs in action T-892-00, with the claims in the earlier action of 1999 being subsumed in the later action of 2000. The submission is that to allow identical claims to proceed concurrently is an abuse of process, with the duplicate relief being "so clearly frivolous, embarrassing and abusive that it is obviously forlorn and futile".

[81]In the event that I decide that one of the so-called duplicate actions ought not to proceed, counsel for the plaintiffs advises that she would prefer to proceed with the two 1999 actions. As I understand it the reason for that choice is that T-2175-99 is more specific to British Columbia. This is so in that the 2000 action touches upon, in a very peripheral manner, various national events and factors, including the Métis Accord of 1999, to Aboriginal women in other provinces and territories and to other provinces and territories generally. In contrast T-2175-99 omits many of these peripheral references to national events and factors, being specific to British Columbia. This, arguably, makes it a better companion piece to the Pauktuutit action, T-2179-99, which is a vehicle by which Inuit women seek relief parallel to that sought by native women in British Columbia.

[82]I have already referred to the concept that a plaintiff ought not to bring a second action when he or she has already brought an action claiming everything to which he or she is entitled. Now it might be that the present situation is one in which an action ought to be stayed, rather than struck out, and here I will refer to Powderface v. Baptiste (1996), 118 F.T.R. 118 (F.C.T.D.).

[83]In Powderface v. Baptiste, Mr. Justice Heald was faced with an application to strike out one of two actions which the Crown characterized as duplicate proceedings. There the plaintiffs were the same in both actions. Substantially the same causative actions were pleaded, but the relief sought was not identical. For this reason Mr. Justice Heald went on to determine an appropriate remedy in all of the circumstances. He said that (at paragraph 15):

Having found that the pleadings are not identical in the two actions, I am of the view that there are not sufficient grounds to strike out the Powderface action as against the Crown.

I take it, from the tenor of the reasons, that Mr. Justice Heald would have struck out one of the duplicate actions, had it not been for differences in relief that was sought. Instead, he went on to stay one of the actions, exercising the Court's discretion under paragraph 50(1)(b) of the Federal Court Act, which allows a stay in the interests of justice. Mr. Justice Heald analyzed the situation and determined that to allow both actions to proceed, serious issues being tried, could result in irreparable harm and that the balance of convenience favoured the stay, thus meeting the test set out in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Key in Powderface, where striking out and staying were sought as alternatives, was that the two actions, while pleading the same causes of and seeking the same relief, were not identical to the actions not being duplicate actions, there were insufficient grounds to strike out one of them.

[84]I have examined actions T-2175-99 and T-892-00 quite thoroughly. While the latter contains some peripheral factual material, I do not see that it is relevant in pleading the cause of action or in leading to any relief that is different from that sought in T-2175-99. I have reached this conclusion despite some reshuffling of paragraphs in the two actions and some minor differences in which the relief sought is pleaded. Essentially the two actions are duplicates of one another. Here the plaintiff, having brought an action in which they have sought various reliefs, are not entitled to bring another action seeking essentially the same relief. To bring this second action is wrong in the sense pointed to by the Court of Appeal in Earl Poulett, supra.

[85]As I have already observed, counsel for the plaintiff submitted, during argument, that if one of the actions were to be struck out it ought to be T-892-00. As I have already noted, the two 1999 actions are better companions for another. Action T-892-00, even if completely successful, would not gain the plaintiffs more than they might gain under the two 1999 actions. Therefore action T-892-00 is struck out without leave to amend.

[86]Before summing up the result of this motion I would note that in reply counsel for the defendant dealt at length with fiduciary duty and subsection 35(1) of the Charter, dealing with treaty rights. It was not proper reply, nor did it seem particularly relevant and therefore I will not deal with that portion of the argument.

CONCLUSION

[87]The plaintiffs' case, from many aspects, particularly those dealing with equality, is an attractive one. It begs remedies. Unfortunately, there may be more available and practical political remedies than legal remedies. Where there might be legal remedies, they will perhaps not be easily come by. Where I have left the statements of claim intact, that is not necessarily an indication that the plaintiffs ought to succeed, but rather is often an indication that I am unable to determine that the particular cause of action plainly, obviously and beyond doubt cannot succeed.

[88]Despite the ferverant belief of counsel for the plaintiffs in her clients' cause, success has been mixed. I thank counsel for the defendant for his thorough consideration, substantial material and concessions where called for. Indeed, I thank both counsel for their efforts. Costs will be in the cause.