[2013] 4 F.C.R. D-7
Practice
Stay of Proceedings
Third party proceedings—Motion by Crown to have underlying action stayed as Crown intending to claim indemnity from religious orders involved in operation of Indian residential schools in issue—Federal Courts Act, R.S.C., 1985, c. F-7, s. 50.1 requiring that principal action be stayed “where the Crown desires to institute a counter-claim or third party proceedings in respect of which the Federal Court lacks jurisdiction”—Crown arguing Federal Court lacking jurisdiction to entertain claim for indemnity against religious orders—Plaintiffs filing suit in Federal Court against Canada for damages allegedly suffered as a result of children being forced to attend Kamloops, Sechelt Indian residential schools—Proposed class action based on alleged breach of Aboriginal rights, breach of constitutional rights of Aboriginal peoples, breach of the fiduciary duties owed by Canada—Court having jurisdiction over action by Crown against religious orders—This conclusion deriving from Court’s overall jurisdiction, including jurisdiction over Crown as litigant—Statutory grant found in Federal Courts Act, s. 17(1) giving Federal Court “concurrent original jurisdiction in all cases in which relief is claimed against the Crown”—Two sources of federal law, within meaning of Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 101 essential to disposition of case, i.e. Indian Act, R.S.C., 1985, c. I-5, sui generis relationship between Crown, Aboriginal peoples—As to jurisdiction over proposed third parties, issue whether existing federal law (statute, regulation or common law) nourishing Court’s jurisdiction, essential to disposition of case—Federal common law of contributory negligence essential to, at pith and substance of third party proceedings—In addition, religious orders herein retained on behalf of Crown—Consequently, tri-partite test summarized in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752 satisfied: Indian Act existing body of federal law, which are laws of Canada, essential to disposition of case, Federal Courts Act, s. 17(5)(a) statutory grant of jurisdiction—Furthermore, third party claim based on common law tort arising from federal law—Religious orders acting on behalf of Crown—Motion denied.
Tk’emlúps te Secwépemc Indian Band v. Canada (Attorney General) (T-1542-12, 2013 FC 546, Harrington J. reasons for order dated May 24, 2013, 19 pp.)