British Columbia Native Women'S Society and Jane Gottfriedson v. Canada

British Columbia Native Women'S Society and Jane Gottfriedson v. Canada
Court (s) Database
Federal Court Decisions
Date
2001-06-12
Neutral citation
2001 FCT 646
File numbers
T-2175-99
Notes
Reported Decision
Decision Content
Federal Court Reports British Columbia Native Women's Society v. Canada (T.D.) [2001] 4 F.C. 191
Date: 20010612
Docket: T-2175-99
Citation: 2001 FCT 646
BETWEEN:
BRITISH COLUMBIA NATIVE WOMEN'S SOCIETY and
JANE GOTTFRIEDSON
Plaintiff,
- and -
HER MAJESTY THE QUEEN
Defendant.
Court File No.: T-2179-99
BETWEEN:
PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION and
VERONICA DEWAR
Plaintiff,
- and -
HER MAJESTY THE QUEEN
Defendant.
Court File No.: T-892-00
BETWEEN:
BRITISH COLUMBIA NATIVE WOMEN'S SOCIETY and
JANE GOTTFRIEDSON
Plaintiff,
- and -
HER MAJESTY THE QUEEN
Defendant.
REASONS FOR ORDER
Mr. John A. Hargrave, Prothonotary
[1] 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, 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 Charter of Rights and Freedoms. 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 Sections 15(1) and 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 Section 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 at 419, a passage in which Lord Justice Fletcher Moulton, of the Court of Appeal, stated that a Plaintiff should not be "driven from the Judgement 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 judgement seat in this way without any Court having considered his right to be heard, except in cases where the cause of action was obviously and almost incontestably bad. (page 419)
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. v. Coats Co. Inc. (1982) 39 N.R. 518 at 519 (F.C.A.), leave to appeal refused (1982) 63 C.R.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:
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. (Martel v. Samson Band, an unreported 17 March 1999 decision of Mr. Justice Hugessen in action T-2391-88).
[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 979, Operation Dismantle Inc. (et al) v. The Queen [1985] 1 S.C.R. 441 at 486-487, and Attorney General of Canada v. Inuit Tapirisat of Canada [1980] 2 S.C.R. 735 at 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 Rule 221(1)(c) and (f), which rules include vexations and abusive proceedings, the test for striking out is as stringent as, or even more stringent, than that which applies under Rule 221(1)(a): Waterside Ocean Navigation Co. v. International Navigation Ltd. [1977] 2 FC 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 & NorthWestern Railway Co. [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 judgement 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 Corp. [1990] 2 QB 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 Earl Poulett v. Viscount Hill [1893] 1 Ch. 277, 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." (Page 282). In Eggum v. Cumberland House Development Corp. (1990) 88 Sask. R. 164, Mr. Justice Harbinsky, 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 (1996) 108 F.T.R. 32 at 39, there referring to Kiely v. Canada (1987) 10 F.T.R. 10.
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:
...I have no doubt that the executive branch of the government is duty bound to act in accordance of the dictates of the Charter. (Operation Dismantle v. the Queen, supra at 455).
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 sexually 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 re-crafting 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 Fridman on Contract, 4th edition, 1994, 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." (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 or 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:
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 the inconsistency may be to included 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. [Page 698, 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 of 1982 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 Ltd. v. Selfridge & Co. Ltd. [1915] A.C. 847 at 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 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 [1980] 2 S.C.R. 228 at 238-41. 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 Ltd. v. Beattie (supra at 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) 113 D.L.R. (3d) 686 (Ont. H.C.), in which the trial judge found, at page 692, 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 Co. v. Johns-Manville Inc. (1983) 147 D.L.R. (3d) 593. The Johns-Manville case leads to a passage dealing with third party beneficiaries in Waddams on Contracts, 1998 4th edition, Canada Law Book Inc., 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 Drug (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] 9 W.W.R. 380. 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 page 396 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 of 1992. 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 Section 52(1) of the Constitution Act, or an individual remedy pursuant to Section 24(1) of the Charter.
[39] Section 52(1) of the Constitution Act provides that any law inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect.
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.
Section 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:
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:
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 [page696] court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration. [Pages 695-696 - 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 Section 52(1) of the Constitution Act and, most important, only in context of legislation found to be unconstitutional. Further, reading in is not a remedy under Section 24(1) of the Charter:
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. [Schachter at pages 719-720 - 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 Section 52(1) of the Constitution Act 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 (1958) Ltd. [1980] 1 S.C.R. 695 at 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 looseleaf 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" (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. v. Canadian Pacific [1977] 2 F.C.R. 1054 and in McNamara Construction v. The Queen [1977] 2 F.C.R. 655. 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. 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 (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 [1980] 2 S.C.R. 442, which involved the Prairie Grain Advance Payments Act, 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:
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. (Page 447)
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's may under Section 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 v. Minister of Employment & Immigration [1985] 1 S.C.R. 178, in which the Supreme Court of Canada delivered two judgements, each allowing the appeal. Counsel refers me to the reasons of Madam Justice Wilson at page 222 for the proposition that Section 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 contractions between two parties.
[45] Reading in, in the sense of re-writing 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 re-craft 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 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 Section 52(1) of the Constitution Act, leaving it to the government to restructure such program to comply with the order. The Crown here refers to Eldridge v. Attorney General of British Columbia [1997] 3 S.C.R. 624 at 691, where, at paragraph 96, Mr. 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 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 re-write a contract to benefit third parties if the result would be a complete re-crafting 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 re-fashion 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 four 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 Section 2 of the Federal Court Act. Thus the Crown cannot be named in a judicial review proceeding under Section 18 of the Act. This is made clear by Mr. Justice Muldoon in Harris v. Canada [1999] 2 F.C. 392. In that action Mr. Ha