PRACTICE |
Parties |
Tacan v. Canada
00-T-13
2001 FCT 574, Lafrenière P.
1/6/01
10 pp.
Motion for order under Federal Court Rules, rr. 113, 114, allowing elected Chief of Sioux Valley First Nation to represent estates of approximately 20 deceased veterans in action against Crown--Plaintiffs said to have been wrongfully deprived of veteran benefits to which entitled as result of service in World War I, World War II, Korean War, allegedly by application of racially discriminatory laws, policies, practices--R. 113 allowing Court to appoint person to represent estate of deceased--Onus on moving party to satisfy Court appropriate to grant relief requested--Court having discretion, in appropriate circumstances, to appoint party to defend proceeding on behalf of deceased person, whether action instituted before or after death of party--Right to sue generally dies with person--Principle well recognized in common law--R. 113 of limited application, not changing substantive law--Not authorizing representative (other than trustee, executor, administrator) to commence action on behalf of deceased--First condition of r. 113 not met--Plaintiffs must also establish "estate of deceased not represented"--Affidavits filed on behalf of plaintiffs not adequately establishing knowledge of status of representation of deceased relative's estate--Of no assistance to Court--No evidence Chief Whitecloud had particular knowledge of state of mind of deceased veterans when elected decades ago to receive benefits--Chief Whitecloud having no legitimate concern for supporting litigation in favour of estates of deceased veterans--R. 113 cannot be applied to usurp role of trustees, executors, administrators who ultimately must weigh cost, benefits of litigation--Public policy militates against granting such sweeping relief claimed in motion--Motion dismissed--Federal Court Rules, 1998, SOR/98-106, rr. 113, 114.