Buffalo v. Samson First Nation

Buffalo v. Samson First Nation
Court (s) Database
Federal Court Decisions
Date
2008-11-24
Neutral citation
2008 FC 1308
File numbers
T-880-06
Notes
Reported Decision
Decision Content
Date: 20081124
Docket: T-880-06
Citation: 2008 FC 1308
Ottawa, Ontario, November 24, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ANDREW MARK BUFFALO also known as
ANDREW MARK FREEMAN suing on his own behalf
and on behalf of all persons who became members of the
SAMSON CREE NATION on or after June 29, 1987
Plaintiffs
and
CHIEF and COUNCIL of the SAMSON CREE NATION
and the SAMSON CREE NATION
Defendants
(Third Party Plaintiffs)
and
HER MAJESTY THE QUEEN as represented by the
MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendant
(Third Party Defendant)
REASONS FOR ORDER AND ORDER
[1] Andrew Buffalo commenced an action against the Chief and Council of the Samson Cree Nation and the Samson Cree Nation itself (collectively the “Samson defendants”), and against Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development. Mr. Buffalo’s action was commenced “on his own behalf and on behalf of all persons who became members of the Samson Cree Nation on or after June 29, 1987”.
[2] Mr. Buffalo now seeks to have the action certified as a class proceeding. For the reasons that follow, I find that Mr. Buffalo has not satisfied several components of the test for certification. As a consequence, the motion will be dismissed.
Background to the Action
[3] In order to appreciate the issues raised by the parties in relation to the motion for certification, it is necessary to have an understanding of the complex history of the relations between the parties leading up to the commencement of this action.
[4] This case has its genesis in the differential treatment accorded to Aboriginal men and women who married non-Aboriginals under the provisions of the pre-1985 Indian Act. With the passage of the Bill C-31 amendments to the Act in 1985, (the Act to Amend the Indian Act, R.S.C. 1985, c. 32 (1st Supp.), s. 4), this legislative differential treatment was eliminated.
[5] In accordance with the provisions of the amended Indian Act, a Band list was to be maintained by the Department of Indian Affairs and Northern Development (“DIAND” or the “Crown”), on which every person who was entitled to be a member of the Band in question would be listed.
[6] Commencing on April 17, 1985, certain persons who had not previously been members of the Samson Cree Nation became entitled to have their names entered on to the Band list. As of June 28, 1987, additional persons who had not been members of the Band prior to April 17, 1985 became entitled to be members of the Samson Cree Nation. This latter group included people who were first generation descendants of persons who had previously been excluded from Band membership by virtue of the pre-1985 Indian Act.
[7] In accordance with section 10 of the post-1985 Indian Act, Bands could assume control over their membership with the consent of a majority of the electors of the Band, as long as proper notice was provided, and the majority of the electors consented to the membership rules established by the Band, amongst other requirements.
[8] After the Bill C-31 amendments came into force, the Samson Cree Nation attempted to regain control of its membership. However, the Band’s Membership Code was refused by the Crown in late 1987, because it did not satisfy the requirements of the Indian Act. An application for Judicial Review of this decision was dismissed, and a subsequent appeal was later abandoned.
[9] Further amendments to the Indian Act were enacted in 1988 which made Band membership available to descendants of the dead. These were known as the “death rule amendments”.
[10] Implementation of the new Band membership legislation was fraught with difficulties. Some Bands, including the Samson Cree Nation, were of the view that the 1985 amendments to the Indian Act interfered with their Aboriginal and treaty rights of self-determination and self-government, as well as their right to control their own membership. As a consequence, there were delays within the Samson Cree Nation in recognizing the membership of certain individuals granted status through Bill C-31. Included amongst these individuals was the Plaintiff, Andrew Buffalo.
[11] The Samson Cree Nation occupies Reserves No. 137 and 137A in Alberta, and has an undivided interest with three other Bands in Reserve No. 138 (also referred to as the Pigeon Lake Reserve).
[12] On or about May 30, 1946, the Samson Cree Nation surrendered its rights, title and interest with respect to petroleum, natural gas and certain minerals on Reserves 137 and 138 to the Crown in trust for the benefit of the Nation.
[13] The Crown negotiates leases for oil production, calculates royalties and pays interest in relation to oil and gas resources on Reserve lands, pursuant to the Indian Oil and Gas Act, R.S.C. 1985, c. I-7 and the Indian Oil and Gas Regulations, S.O.R./94-753. Royalties from Reserves No. 137 and 137A are paid to the Band, whereas royalties from Reserve No. 138 are divided between Samson and the three other Bands. The payments are calculated on a per capita basis, based upon the membership lists for each Band kept by DIAND. It is this latter category of royalties that are in issue in this case.
[14] From time to time, the Samson Cree Nation pays out per capita distributions (“PCDs”) to individuals recognized as members by the Band. In addition, benefits relating to matters such as housing, education and social assistance are made available from time to time to Band members who are deemed to be entitled to such benefits.
[15] In accordance with the provisions of the Indian Act, the Samson Cree Nation maintains both a capital and a revenue account. Payments made by the Samson Cree Nation from its capital account require the approval of DIAND, whereas no such approval is require for payments made from the Band’s revenue account.
[16] Until 2005, oil royalties were paid by the Crown into one of the Band’s two accounts. Royalty payments initially went into the Band’s capital account, and PCD payments were originally paid by Samson to Band members out of that account.
[17] However, in 1987, the Samson Cree Nation took issue with the payment of PCDs to some of the individuals identified as Band members on the DIAND membership list. Litigation was commenced in this Court by both the Band and by Andrew Buffalo. Mr. Buffalo was the representative plaintiff for approximately 391 other class members in Federal Court action T-430-01 (the “Suspense Account litigation”).
[18] As a result of interlocutory proceedings, DIAND began transferring the portion of royalty monies which related to the individuals whose membership was contested by the Band into a “Suspense Account”. Payments into this account were made by DIAND between June 29, 1987, and May 1, 1988.
[19] In or around May of 1988, the Samson Cree Nation began making PCD payments out of interest accruing in its revenue account. It is alleged that one of the reasons for this change was to prevent DIAND from paying PCDs to individuals, including Andrew Buffalo, who were not recognized as members by the Samson Cree Nation.
[20] The Suspense Account litigation was ultimately resolved in 2002, through a series of orders issued by Justice Hugessen. On February 12, 2008, Mr. Buffalo signed a Settlement, General Release and Confidentiality Agreement in favour of the Crown. There is a dispute between the parties as to the scope of the release granted by Mr. Buffalo. At a minimum, the document released the Crown from any claims with respect to PCD payments made by the Crown into the suspense account in relation to Mr. Buffalo.
[21] In the meantime, on June 1, 1995, Mr. Buffalo entered an agreement with the Samson Cree Nation, whereby the Band recognized him as a member, and Mr. Buffalo released the Band from any claims that he could have against it “by reason of or in respect of any claim [for] per capita distribution”. Although not specified in the settlement agreement, Mr. Buffalo evidently received the sum of $1,000 from the Samson Cree Nation at that time. Since then, Mr. Buffalo has received PCDs from the Band.
[22] Other individuals whose membership had been contested by the Band also signed similar, although not necessarily identical, settlement agreements and releases with the Samson Cree Nation at various times. The Crown states that these agreements were signed without the knowledge of DIAND.
[23] In his Reasons for Order of December 11, 2002, Justice Hugessen found that the settlement agreement and release between Mr. Buffalo and the Samson Cree Nation could not be set up against Mr. Buffalo in the context of the Suspense Account litigation, because Mr. Buffalo’s claim in that case was against the Crown, and the settlement agreement was made with the Samson Cree Nation.
[24] Justice Hugessen acknowledged that such a release “might properly release the Band”. However, he goes on to note that the agreement was based on the Band’s representation that it controlled its own membership, as otherwise it could not allow Mr. Buffalo to be a member in exchange for the release from liability. Given that this was not in fact the case, Justice Hugessen found that the basic premise of the contract was false, such that the agreement could not be enforced against Mr. Buffalo by the Samson Cree Nation.
[25] Justice Hugessen also observed that the Band owed fiduciary obligations to its members and, as such, had to treat them all fairly and equitably. It was up to the Samson Cree Nation to demonstrate it had not breached its fiduciary obligations to Mr. Buffalo in entering the agreement, which it had failed to do.
[26] Apart from the $1,000 payment referred to above, Mr. Buffalo alleges that he has not received anything from the Samson Cree Nation in relation to PCDs for the period between May 1, 1988, when the Samson Cree Nation began making PCD payments out of its revenue account, and June 1, 1995, when he allegedly settled with the Band. Mr. Buffalo’s proposed class action relates to this period. The nature of the claim will be discussed in greater detail further on in this decision.
[27] Before turning to consider the various elements of the test for certification, it is helpful to start with an overview of the general principles governing class actions.
General Principles Governing Class Proceedings
[28] As the Supreme Court of Canada has observed, class actions allow for improved access to justice for those who might otherwise be unable to seek vindication of their rights through the traditional litigation process. Class actions also enhance judicial economy, allowing a single action to decide large numbers of claims involving similar issues. Finally, class actions encourage behaviour modification on the part of those who cause harm: see Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46, Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68, and Rumley v. British Columbia, [2001] 3 S.C.R. 184, 2001 SCC 69.
[29] In the above trilogy of cases, the Supreme Court also held that an overly restrictive approach to the application of class action certification legislation must be avoided, so that the benefits of class actions can be fully realized.
[30] Moreover, the Supreme Court noted in the Hollick case that:
… the certification stage focuses on the form of the action. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action. [at paragraph 16]
[31] In other words, a certification motion is a procedural matter. Its purpose is not to determine whether the litigation can succeed, but rather, how the litigation should proceed: see Sauer v. Canada (Attorney General), [2008] O.J. No. 3419, (S.C.J.) at paragraph 12.
[32] In a motion such as this, the onus is on the plaintiff to establish an evidentiary basis for certification. That is, the plaintiff must show some basis in fact for each of the certification requirements, apart from the requirement that the pleadings disclose a reasonable cause of action. This latter requirement is governed by the principle that pleadings should not be struck unless it is “plain and obvious” that no claim exists: see Hollick, at paragraph 25.
Applicable Provisions of the Federal Courts Rules
[33] Certification motions are governed by Rule 334.16(1) of the Federal Courts Rules, which states that:
334.16 (1) Subject to subsection (3), a judge shall, by order, certify a proceeding as a class proceeding if
(a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
(e) there is a representative plaintiff or applicant who
(i) would fairly and adequately represent the interests of the class,
(ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing,
(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record.
334.16 (1) Sous réserve du paragraphe (3), le juge autorise une instance comme recours collectif si les conditions suivantes sont réunies :
a) les actes de procédure révèlent une cause d’action valable;
b) il existe un groupe identifiable formé d’au moins deux personnes;
c) les réclamations des membres du groupe soulèvent des points de droit ou de fait communs, que ceux-ci prédominent ou non sur ceux qui ne concernent qu’un membre;
d) le recours collectif est le meilleur moyen de régler, de façon juste et efficace, les points de droit ou de fait communs;
e) il existe un représentant demandeur qui :
(i) représenterait de façon équitable et adéquate les intérêts du groupe,
(ii) a élaboré un plan qui propose une méthode
efficace pour poursuivre l’instance au nom du groupe et tenir les membres du groupe informés de son déroulement,
(iii) n’a pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne les points de droit ou de fait communs,
(iv) communique un sommaire des conventions relatives aux honoraires et débours qui sont intervenues entre lui et l’avocat inscrit au dossier.
[34] It should be noted that Rule 334.16(1) uses mandatory language, providing that a court shall grant certification, where all five elements of the test are satisfied.
[35] The parties agree that the list contained in Rule 334.16(1) is conjunctive. As a consequence, if an applicant fails to meet any one of the five listed criteria, the certification motion must fail: see Sander Holdings Ltd. v. Canada (Minister of Agriculture), 2006 FC 327, at paragraph 38.
[36] Also relevant is Rule 334.18, which states that:
334.18 A judge shall not refuse to certify a proceeding as a class proceeding solely on one or more of the following grounds:
(a) the relief claimed includes a claim for damages that would require an individual assessment after a determination of the common questions of law or fact;
(b) the relief claimed relates to separate contracts involving different class members;
(c) different remedies are sought for different class members;
(d) the precise number of class members or the identity of each class member is not known; or
(e) the class includes a subclass whose members have claims that raise common questions of law or fact not shared by all of the class members. [emphasis added]
334.18 Le juge ne peut invoquer uniquement un ou plusieurs des motifs ci-après pour refuser d’autoriser une instance comme recours collectif :
a) les réparations demandées comprennent une réclamation de dommages-intérêts qui exigerait, une fois les points de droit ou de fait communs tranchés, une évaluation individuelle;
b) les réparations demandées portent sur des contrats distincts concernant différents membres du groupe;
c) les réparations demandées ne sont pas les mêmes pour tous les membres du groupe;
d) le nombre exact de membres du groupe ou l’identité de chacun est inconnu;
e) il existe au sein du groupe un sous-groupe dont les réclamations soulèvent des points de droit ou de fait communs que ne partagent pas tous les membres du groupe.
[Je souligne]
[37] The use of the word “solely” or “uniquement” in Rule 334.18 suggests that while the enumerated factors may indeed be relevant considerations on a motion for certification, none of these factors, either singly, or combined with other factors listed in the provision, will, by themselves, provide a sufficient basis to decline certification: see Tihomirovs v. Canada (Minister of Citizenship and Immigration), 2006 FC 197, at paragraph 41.
[38] With this understanding of the relevant Rules, I turn next to consider whether Mr. Buffalo has satisfied each of the elements of the test for certification, such that the matter should be certified as a class proceeding.
Should This Matter be Certified as a Class Proceeding?
[39] The Federal Courts Rules were amended in 2002 to provide for class proceedings. Given the fairly recent introduction of class proceedings in this Court, there is relatively little Federal Court jurisprudence governing the certification process.
[40] The Federal Courts Rules regarding the certification of class actions are, however, very similar to the corresponding British Columbia rules: Sylvain v. Canada (Agriculture and Agri-Food), 2004 FC 1610, at paragraph 26, and Rasolzadeh v. Her Majesty the Queen and Minister of Citizenship and Immigration, 2005 FC 919, at paragraph 23.
[41] The Rules are also very similar to those provided for in the Ontario class action legislation: see Le Corre v. Canada (Attorney General), 2004 FC 155, at paragraph 17. As a consequence, the jurisprudence that has developed in those jurisdictions is of considerable assistance in determining whether or not certification is appropriate in this case.
[42] With this in mind, I turn now to examine each of the factors enumerated in Rule 334.16(1), starting with a consideration of whether the pleadings disclose a reasonable cause of action.
a) Is There a Reasonable Cause of Action?
[43] The parties are in agreement that the test to be imposed at this stage is similar to that used in connection with motions to strike pleadings. That is, the question is whether it is “plain and obvious” that the pleadings do not disclose a reasonable cause of action: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at paragraphs 32-33. The parties also agree that this is a low threshold: see, for example, Manuge v. Canada, 2008 F.C. 624, at paragraph 38, Peppiatt et al. v. Nicol et al., [1993] O.J. No. 2722, (1993), 16 O.R. (3d) 133, at pp. 140-1, and Denis v. Bertrand & Frère Construction Co., [2000] O.J. No. 5783.
[44] The parties also agree that unlike a motion to strike under Rule 221(1) of the Federal Courts Rules, in this case, the onus is on the plaintiff to demonstrate that his pleadings do in fact disclose a reasonable cause of action.
[45] Mr. Buffalo’s current action was commenced by statement of claim issued on May 24, 2006. The claim alleges that Mr. Buffalo did not receive PCDs from either the Crown or the Samson Cree Nation for the period between May 1, 1988 and June 1, 1995, and that others amongst the plaintiffs did not receive PCDs for the same or greater or lesser periods.
[46] Briefly stated, Mr. Buffalo’s statement of claim asserts that the Samson Cree Nation received royalty payments from the Crown in relation to the Pigeon Lake Reserve Samson lands, calculated using DIAND membership numbers that included the members of the proposed class.
[47] The statement of claim further alleges that the Samson defendants then excluded the plaintiffs from distribution of PCDs and other payments, as well as from access to benefits. According to the statement of claim, in so doing, the Samson defendants breached the fiduciary duty that they owed to the plaintiffs.
[48] The statement of claim identifies the particulars of the breach of fiduciary duty as using the plaintiffs’ names for the purposes of obtaining a greater per capita share of oil royalties from its Reserve lands, while denying the plaintiffs the financial benefits associated with Band membership, thereby unjustly enriching the Band. The statement of claim further asserts that the Samson defendants committed equitable fraud.
[49] It is also alleged that the Band failed to account to the plaintiffs “for the excess royalties received on a per capita basis in the Agreement signed by some or all of the Plaintiffs and in doing so fraudulently concealing and continuing to fraudulently conceal the extent of their equitable entitlement”.
[50] Finally, the statement of claim alleges that the Samson defendants treated the plaintiffs inequitably in relation to other members of the Band in the distribution of PCDs and other benefits from June 29, 1987 onward, and in fraudulently concealing and continuing to fraudulently conceal the enrichment.
[51] Insofar as the claim against the Crown is concerned, Mr. Buffalo pleads that the Crown has received oil and gas royalty payments from oil and gas companies, in trust, for the benefit of the relevant Bands, including the Samson Cree Nation. The claim further asserts that the Crown has the ability to trace these royalties, together with interest paid thereon.
[52] The claim further asserts that the Crown owes a fiduciary duty to the Samson Cree Nation, including its members, and that the Crown breached this duty by failing to disclose to the plaintiffs that oil royalties were being calculated based upon their membership in the Samson Cree Nation.
[53] It is also alleged that the Crown breached the fiduciary duty owed to the plaintiffs by crediting royalties and interest to Samson, when the Crown knew that Samson was acting dishonestly and fraudulently in not treating its Band members equitably. The Crown further breached its fiduciary duty, the plaintiffs say, by failing to take any steps to protect the financial interests of the plaintiffs from the inequitable treatment by Samson, thereby fraudulently concealing from the plaintiffs the extent of their equitable entitlement.
[54] Each of the defendants provided substantial submissions as to the alleged deficiencies in the statement of claim, in support of their position that it does not disclose a reasonable cause of action. As it is not determinative of the outcome, I am prepared to assume for the purposes of this motion that the statement of claim does in fact disclose a reasonable cause of action.
b) Is There an Identifiable Class of Two or More Persons?
[55] The Supreme Court of Canada has observed that the definition of the class “is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment”: Western Canadian Shopping Centres Inc., previously cited, at paragraph 38.
[56] As the Supreme Court also noted at paragraph 21 of the Hollick case, this requirement is not an onerous one. However, while Mr. Buffalo need not show that everyone in the class shares the same interest in the resolution of the asserted common issue, there must be some showing that the class is not unnecessarily broad.
[57] That is, Mr. Buffalo must demonstrate that the class could not be defined more narrowly, without arbitrarily excluding some people who share the same interest in the resolution of the common issues: Hollick, at paragraph 21.
[58] In order to satisfy this criterion, what Mr. Buffalo must show is that there is an identifiable class of two or more persons, which class is not unlimited, and which is defined by reference to objective criteria: Hollick, at paragraph 17.
[59] The parameters of class definition suggested by Mr. Buffalo have varied throughout these proceedings. The statement of claim identifies the putative class as Mr. Buffalo “on his own behalf and on behalf of all persons who became members of the Samson Cree Nation on or after June 29, 1987”.
[60] During his oral submissions, counsel for Mr. Buffalo acknowledged that this definition was somewhat open-ended, suggesting that the proposed class definition be modified to add the words “and who are not recognized as members by the Samson Cree Nation”. According to Mr. Buffalo, there would be approximately 400 people who would come within this class.
[61] When the Court pointed out that this amended class definition would exclude Mr. Buffalo, who has himself been recognized as a member of the Samson Cree Nation since 1995, counsel then proposed a further modification to the definition, namely that it include Mr. Buffalo “on his own behalf and on behalf of all persons who became members of the Samson Cree Nation on or after June 29, 1987, and who were from time to time not recognized as members of the Samson Cree Nation”. The motion was then argued on the basis of this proposed class definition.
[62] In his reply submissions, counsel for Mr. Buffalo proposed a further modification to the class definition, suggesting that it be further amended to include Mr. Buffalo “on his own behalf and on behalf of all persons who became members of the Samson Cree Nation on or after June 29, 1987, and who were from time to time not recognized as members of the Samson Cree Nation between June 29, 1987 and June 1, 1995, inclusive”.
[63] Counsel then suggested that there should also be a subclass created of those members of the class who had never signed settlement agreements with the Samson Cree Nation. When the Court asked counsel whether there would not have to be a separate representative plaintiff for the subclass, given that Mr. Buffalo would not be a member of the subclass, counsel stated that the Court would have to decide whether this was appropriate. No individual was proposed as an appropriate representative for the subclass.
[64] Given the evolving nature of the proposed class definition, counsel for the defendants were then permitted to make additional submissions by way of sur-reply.
[65] In the course of the hearing, the Court queried whether it was the intention of the plaintiff that individual class members would be able to maintain a claim for damages arising in the period after June 1, 1995. Counsel for Mr. Buffalo stated that it was his understanding that claims for damages would be capped as of June 1, 1995 for all of the members of the class, apart from claims for pre-judgment interest.
[66] However, in a letter provided to the Court after the hearing was completed, counsel indicated instead that “individual class members will have suffered different damages (corresponding losses) either before or after June 1, 1995, particularly those who have not signed agreements with Samson and therefore have never received PCDs, should she find them to be members of the class” [sic].
[67] While I will return to this issue when examining the suitability of Mr. Buffalo as a representative plaintiff, I should preface my analysis regarding the existence of an identifiable class by expressing my very real concern with respect to the lack of thought that appears to have been given to the question of class definition by the plaintiff.
[68] As I observed at the outset, the definition of the class is critical in a class action for a number of different reasons. The proposed class definition in this case has been a moving target, with the plaintiff continually modifying the proposed class definition in an attempt to address concerns raised with respect to the proposed definition by the opposing parties and by the Court.
[69] I have a second concern in approaching this issue, which arises out of the failure of Mr. Buffalo to identify any issues of fact or law common to all of the class members. This concern will be addressed in greater detail in the next section of this decision. However, it should be noted at this juncture that there must be some rational relationship between the identifiable class and the common issues. This is because the definition of the identifiable class will often depend in part upon the identification of common issues, and vice versa: see Cloud v. Canada (Attorney General), [2004] O.J. No. 4924, (Ont. C.A.) at paragraph 48, leave to appeal refused, [2005] S.C.C.A. No. 50.
[70] As a result, the failure on the part of Mr. Buffalo to identify any common issues for resolution through a class proceeding makes the proper identification of the class more difficult.
[71] I am also concerned that the class definition ultimately proposed by Mr. Buffalo does not relate to essential facts giving rise to the claim, as it has been framed by the plaintiff. As I understand it, central to the plaintiffs’ claim is the inclusion of certain Band members’ names on the Band list maintained by DIAND, which was used in the calculation of royalties payable to the Band in relation to the Pigeon Lake Reserve. This in turn gave rise to an enhanced per capita share of oil royalties having been paid to the Samson Cree Nation, allegedly resulting in the unjust enrichment of the Band.
[72] Also important to the claim, and thus to the proper identification of the class, is the corresponding non-recognition of class members by the Band after the members were recognized by the Minister, which allegedly resulted in PCD payments and other benefits being denied to these individuals, and the corresponding unjust enrichment of the Samson Cree Nation.
[73] Despite the difficulties identified above, and keeping in mind the teachings of the Supreme Court of Canada that the requirement that there be an identifiable class is not an onerous one, I am nevertheless satisfied that there is an identifiable class of two or more persons in this matter, which class is not unlimited, and which can be defined by reference to objective criteria.
[74] This class can properly be described as:
All persons who became members of the Samson Cree Nation between June 29, 1987 and June 1, 1995, inclusive, whose names were recorded on the membership list maintained by the Minister of Indian Affairs and Northern Development at any time during this period, and who were not recognized as members of the Band by the Samson Cree Nation at any point between the time that the member’s name was added to the membership list maintained by the Minister and June 1, 1995.
[75] As noted above, in his reply submissions, Mr. Buffalo also proposed the creation of a subclass, which, he says, would be confined to the approximately 42 individuals who have never signed settlement agreements with the Samson Cree Nation.
[76] The creation of subclasses is governed by Rule 334.16(3) of the Federal Courts Rules, which permits the creation of subclasses “whose members have claims that raise common issues of law or fact that are not shared by all of the class members so that the protection of the interests of the subclass members requires that they be separately represented”.
[77] There is an issue in this litigation as to the binding effect of the settlement agreements and releases that have been signed by some members of the putative class, including Mr. Buffalo, in favour of the Samson Cree Nation. (Although not referred to by Mr. Buffalo in relation to the question of class definition, there is also an issue with respect to the legal effect of releases signed by members of the proposed class in favour of the Crown in the context of the Suspense Account litigation.)
[78] The difficulty with the subclass proposed by Mr. Buffalo is that it purports to create a subclass of individuals whose claims do not raise the common issue, rather than a subclass whose members’ claims do raise the common issue. He has also not explained why protection of the interests of the proposed subclass members requires that they be separately represented. As a result, Mr. Buffalo has not satisfied me of the existence of a subclass that meets the requirements of Rule 334.16(3).
[79] Before leaving this issue, I should note that because the class definition identified by the Court contains a clear temporal limitation, I do not agree with the defendants that the composition of the class would be forever changing, or that any individuals who are born and added to the DIAND list after June of 1995 would become members of the class. On the basis of the Court’s class definition, no one added to the DIAND membership list after June 1, 1995 would be eligible for inclusion in the class.
c) Do the Claims of the Class Members Raise Common Questions of Law or Fact?
[80] To be appropriate for certification as a class action, a case must raise issues of fact or law common to all class members: see Western Canadian Shopping Centres Inc., at paragraph 39.
[81] Indeed, the question of commonality of issues has been described as lying at the heart of a class proceeding: see Manuge, at paragraph 26, and Campbell v. Flexwatt Corp., [1998] 6 W.W.R. 275, 44 B.C.L.R. (3d) 343 (B.C.C.A.), at paragraph 52, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 13.
[82] In identifying whether a given case raises issues of fact or law common to all class members, the Court should approach the matter purposively. As the Supreme Court of Canada observed at paragraph 39 of the Western Canadian Shopping Centres Inc. case, the question is “whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis.” According to the Supreme Court, an issue will be ‘common’ “only where its resolution is necessary to the resolution of each class member's claim”.
[83] The Supreme Court went on to note that:
It is not essential that the class members be identically situated vis-à-vis the opposing party. Nor is it necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member's claim. However, the class members' claims must share a substantial common ingredient to justify a class action. Determining whether the common issues justify a class action may require the court to examine the significance of the common issues in relation to individual issues. In doing so, the court should remember that it may not always be possible for a representative party to plead the claims of each class member with the same particularity as would be required in an individual suit: paragraph 39.
[84] To be appropriate for certification, the common issues do not have to determine the question of liability for all of the members of the class, or otherwise dispose of the action: see Campbell v. Flexwatt Corp., previously cited.
[85] The determination of the common issue or issues does, however, have to have sufficient significance in relation to the claim being asserted such that its resolution will advance the litigation in a meaningful way: see Carom v. Bre-X Minerals Ltd., [1999] O.J. No. 1662 (Ont. Sup. Ct.), at paragraph 63, and Rosedale Motors Inc. v. Petro-Canada Inc., [2001] O.J. No. 5368 (Ont. Div. Ct.).
[86] In this case, Mr. Buffalo’s memorandum of fact and law identifies what he says are the common issues in the following terms: “on questions of fact, the members of the proposed class are all members of Samson”, and “on questions of law, they are all governed by the same federal statutory regime and they are all owed the same fiduciary obligations”.
[87] In his oral submissions, counsel for Mr. Buffalo identified the common issues of fact as being “on behalf of all these people the Samson Cree Nation received oil royalties” and “until they signed agreements, members of the class did not receive any benefits from the Samson Cree Nation”.
[88] With respect, while the foregoing may relate to common attributes of the putative class, none of the matters identified by counsel for Mr. Buffalo are common issues which require resolution in order to move this litigation forward in a meaningful way. Indeed, I do not understand any of these so-called “common issues” to be seriously in dispute in this case.
[89] To be appropriate for certification in a class action, common issues require precise definition for inclusion in the certifying order, and are usually framed in the form of questions to be answered in the course of the litigation.
[90] By way of example, in Harrington v. Dow Corning Corp., [1996] B.C.J. No. 734, aff’d [2000] B.C.J. No. 2237, one of the questions certified by the British Columbia Supreme Court was “Are silicone breast implants reasonably fit for their intended purpose?”
[91] Similarly, in Manuge, this Court certified a number of questions including, amongst others, “Does the Crown owe fiduciary duties to the Plaintiff and the Class and has the Crown breached the fiduciary duties owed to the Class by implementing section 24(a)(iv) of Part III(B) of SISIP Plan Policy 901102?”, “Has the Crown [been] unjustly enriched and is an Order for restitution appropriate?” and “Is the Crown liable for general damages for discrimination, breach of fiduciary duties and bad faith?”.
[92] No such common issues have been identified by the plaintiff in this case.
[93] As was noted at the outset of this analysis, the onus is on the plaintiff to show some basis for each of the certification requirements, including the existence of common issues of fact or law common to all class members, the resolution of which will advance the litigation in a meaningful way.
[94] Whatever common issues of fact or law may in fact exist in this matter, having failed to identify any such issues on this motion, Mr. Buffalo has clearly failed to satisfy the onus on him in this regard.
[95] As was noted earlier, the test for certification is conjunctive. Mr. Buffalo having failed to satisfy this component of the test, it follows that his motion must be dismissed. However, in the event that a reviewing court may take a different view of the matter, I will proceed to address the remaining components of the test.
d) Is a Class Action the Preferable Procedure for the Fair and Efficient Resolution of the Common Questions of Law or Fact?
[96] The question of preferable procedure was the primary focus of the defendants’ submissions on this motion.
[97] In Caputo v. Imperial Tobacco Ltd.¸ [2005] O.J. No. 842, (Ont. Sup. Ct.), Justice Winkler (as he then was), described the consideration of whether a class proceeding is the preferable procedure as “a matter of broad discretion”: at paragraph 29.
[98] In determining whether a class action is the preferable procedure to be followed in this case, Rule 334.16(2) of the Federal Courts Rules directs that the Court consider:
334.16(2) All relevant matters shall be considered in a determination of whether a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact, including whether
(a) the questions of law or fact common to the class members predominate over any questions affecting only individual members;
(b) a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate proceedings;
(c) the class proceeding would involve claims that are or have been the subject of any other proceeding;
(d) other means of resolving the claims are less practical or less efficient; and
(e) the administration of the class proceeding would create greater difficulties than those likely