Oregon Jack Creek Indian Band v. Canadian National Railway Co., [1989] 2 S.C.R. 1069

Canadian National Railway Company and the

Attorney General of Canada Appellants

v.

Robert Pasco, Chief of the Oregon Jack

Creek Indian Band, on behalf of himself and

all other members of the Oregon Jack Creek

Indian Band, and others Respondents

and between

Her Majesty The Queen in right of the

province of British Columbia and the

Attorney General of Canada Appellants

v.

Robert Pasco, Chief of the Oregon Jack

Creek Indian Band, on behalf of himself and

all other members of the Oregon Jack Creek

Indian Band*, and others Respondents

and

Nuu‑Chah‑Nulth Tribal Council Intervener

Indexed as: Oregon Jack Creek Indian Band v. Canadian National Railway Co.

File Nos.: 21420, 21452.

1989: November 7.

Present: Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.

on appeal from the court of appeal for british colombia

Civil procedure ‑‑ Pleadings ‑‑ Amendments ‑‑ Whether Court of Appeal erred in permitting pleadings to be amended.

APPEAL from a judgment of the British Columbia Court of Appeal (1989), 1989 249 (BC CA), 34 B.C.L.R. (2d) 344, 56 D.L.R. (4th) 404, setting aside a judgment of Meredith J.[^1], dismissing respondents' application to amend their statement of claim. Appeal dismissed[^2].

E. C. Chiasson, Q.C., and P. G. Foy, for the appellant Canadian National Railway Co.

B. Rendell, for the appellant Her Majesty the Queen in right of British Columbia.

M. Marvyn Koenigsberg, for the appellant the Attorney General of Canada.

A. Pape and Leslie J. Pender, for the respondents.

Paul Rosenberg, David Rosenberg and Jack Woodward, for the intervener.

The judgment of the Court was delivered orally by

The Chief Justice ‑‑ It will not be necessary to call upon you, Mr. Pape. We are unanimous in our view that the appeal should be dismissed, and Justice McLachlin will deliver the judgment of the Court.

McLachlin J. ‑‑ The issue on this appeal is whether the plaintiffs (respondents) should be permitted to make certain amendments to their pleadings.

The plaintiffs' claim is for declarations, an injunction, and for damages based upon both aboriginal rights and more specific rights arising from the application of the Indian Act.

Thirty‑six Indian chiefs commenced an action against the C.N.R., alleging that the construction proposed by the C.N.R. in connection with a second track would involve rock fill encroaching on several areas of the Thompson River bed and the dumping of rocks and gravel, adversely affecting the habitat of the fish in both the Thompson and Fraser Rivers. Each chief commenced an action on behalf of himself and all other members of his Band. The application to the chambers judge was for leave to amend the style of cause and the statement of claim to advance a claim, not only on behalf of the members of each Band but also on behalf of the members of three Indian Nations. The action is framed as a personal one.

The defendants (appellants) sought particulars as to the authority of the chiefs to bring claims on behalf of the Nations. The plaintiffs responded that the actions were personal in nature and that hence no authority was required.

The appellants maintain that the proposed amended pleadings are bad. They assert that the claims are communal in nature, and that the proposed personal actions as members of the Nations cannot be maintained.

In our opinion, the issue of authority to bring the claims, like the issue of the personal entitlement, if any, of the members of the Band or Nations is a question of fact or mixed fact and law which is best determined by the trial judge. For these reasons, we are of the view that the Court of Appeal was correct in permitting the pleadings to be amended.

Having said that, it appears to us that the possible conflict between the rights alleged on behalf of the Band and the rights alleged on behalf of the Nations may cause problems at the trial and the plaintiffs might be well advised to reconsider its pleadings. However, in our view, this is a matter for the trial judge.

The appeal is dismissed. There will be costs to the plaintiffs, in the cause, in this Court and in the courts below.

Judgment accordingly.

Solicitors for the appellant Canadian National Railway Co.: Ladner Downs, Vancouver.

Solicitor for the appellant Her Majesty the Queen in right of British Columbia: The Ministry of the Attorney General, Victoria.

Solicitor for the appellant the Attorney General of Canada: John C. Tait, Ottawa.

Solicitors for the respondents: Mandell Pinder, Vancouver.

Solicitors for the intervener: Rosenberg & Rosenberg, Vancouver.

• See Erratum, [1989] 2 S.C.R. iv

[^1]: (1988), 10 A.C.W.S. (3d) 263 and supplementary reasons dated June 29, 1988 (unreported).

[^2]: Motion for a re-hearing dismissed, January 25, 1990, [1990] S.C.R., Vol. 1.