Blueberry River Indian Band v. Canada ( Department of Indian Affairs and Northern Development )
T-4178-78
Hugessen J.
1/10/99
9 pp.
Motion by claimants to entitlement in proceeds of judgment rendered March 2, 1998 to have judgment set aside pursuant to Federal Court Rules, 1998, r. 399-Action against Crown for breach of fiduciary duty in respect of land set aside for Beaver Band to which Blueberry, Doig Bands successors-Action on behalf of members of two Bands as well as "present descendants" of former Band-Action successful-Parties negotiating settlement of damages in amount of $147 million-Settlement incorporated into March 1998 judgment ordering payment of $147 million to Bands, but directing $12 million be held in trust pending determination of question of entitlement of persons not members of two successor Bands, but "present descendants" of former Beaver Band-490 persons claiming as "present descendants"-April 1999 Court order subsequently declaring "present descendants" not now members of Bands having no entitlement, under appeal-Motion dismissed-Argument March 1998 order made ex parte because claimants not present or represented at hearing leading to order dismissed as nonsense-If not represented throughout by plaintiffs' counsel, not parties to action and cannot claim benefit of judgment-Claimants are parties, represented from outset by plaintiffs-Facts not supporting claim of equitable fraud (plaintiffs not fairly representing interests when realized adverse to, different from those of named plaintiffs)-Doubtful r. 399 intended to cover anything but fraud in traditional sense of dishonest, deceitful dealing committed upon Court or upon adversary-Two answers to assertion "new matter" supervening since March 1998 (number of actual claims filed by "present descendants" far exceeding projected number): nothing to indicate 490 claims valid; mere number of claims only relevant to amount of security ordered to be held in trust and proper remedy to move to vary that amount, not to set aside whole order-Delay of over 14 months in bringing motion wholly unconscionable-Public interest in stability, finality of judicial process lending weight to case law holding motions of this sort must be brought with reasonable diligence-Claimants saying only with release of April 1999 order did they learn March 1998 order would have effect of res judicata on argument entitlement to share of judgment settled by Supreme Court of Canada-Question of res judicata not new fact, but argument for anybody to see from date of March 1998 order-Muir v. Jenks (1913), 82 L.J.K.B. 703 (C.A.) restricted to own particular facts-Costs to plaintiffs-Federal Court Rules, 1998, SOR/98-106, r. 399.