Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279

Yvon Dumont, Roy Chartrand, Ron Erikson, Claire Riddle, Billyjo de la Ronde, Jack Fleming, Jack McPherson, Don Roulette, Edgar Bruce Jr., Freda Lundmark, Miles Allarie, Celia Klassen, Alma Belhumeur, Stan Guiboche, Jeanne Perrault, Marie Banks Ducharme, Earl Henderson, Manitoba Metis Federation Inc., suing on their behalf and on behalf of all other descendants of Metis persons entitled to land and other rights under Sections 31 and 32 of the Manitoba Act, 1870, and the Native Council of Canada Inc. Appellants

v.

The Attorney General of Canada Respondent

and

The Attorney General of Manitoba Defendant

Indexed as: Dumont v. Canada (Attorney General)

File No.: 21063.

1990: March 2.

Present: Dickson C.J. and Wilson, La Forest, Sopinka, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for manitoba

Practice ‑‑ Pleadings ‑‑ Striking out ‑‑ Statement of claim seeking declaration that various federal and provincial statutes unconstitutional ‑‑ Whether statement of claim properly struck out.

Cases Cited

Referred to: Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735.

Statutes and Regulations Cited

Constitution Act, 1871, 34 & 35 Vict., c. 28 (U.K.) [reprinted in R.S.C., 1985, App. II, No. 11].

Manitoba Act, 1870, S.C. 1870, c. 3 [reprinted in R.S.C., 1985, App. II, No. 8].

APPEAL from a judgment of the Manitoba Court of Appeal (1988), 1988 CanLII 1372 (MB CA), 52 Man. R. (2d) 291, 52 D.L.R. (4th) 25, [1988] 5 W.W.R. 193, [1988] 3 C.N.L.R. 39, setting aside a judgment of Barkman J. (1987), 1987 CanLII 992 (MB KB), 48 Man. R. (2d) 4, [1987] 2 C.N.L.R. 85, dismissing respondent's application to strike appellants' statement of claim. Appeal allowed.

Thomas R. Berger and James R. Aldridge, for the appellants Dumont et al.

Victor S. Savino, for the appellant the Native Council of Canada Inc.

I. G. Whitehall, Q.C., and W. Burnham, for the respondent.

Robert Houston, Q.C., for the Attorney General of Manitoba.

The judgment of the Court was delivered orally by

The Chief Justice ‑‑ We are all of the view that this appeal succeeds. The judgment of the Court will be delivered by Justice Wilson.

Wilson J. ‑‑ The members of the Court are all of the view that the test laid down in Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735, for striking out a statement of claim is not met in this case. It cannot be said that the outcome of the case is "plain and obvious" or "beyond doubt".

Issues as to the proper interpretation of the relevant provisions of the Manitoba Act, 1870 and the Constitution Act, 1871 and the effect of the impugned ancillary legislation upon them would appear to be better determined at trial where a proper factual base can be laid.

The Court is of the view also that the subject matter of the dispute, inasmuch as it involves the constitutionality of legislation ancillary to the Manitoba Act, 1870 is justiciable in the courts and that declaratory relief may be granted in the discretion of the court in aid of extra‑judicial claims in an appropriate case.

We see no reason, therefore, why the action should not proceed to trial. The appeal is accordingly allowed and the order of the Court of Appeal striking out the appellants' claim against the Attorney General of Canada is set aside.

Judgment accordingly.

Solicitor for the appellants Dumont et al.: Thomas R. Burger, Vancouver.

Solicitors for the appellant the Native Council of Canada Inc.: Savino & Company, Winnipeg.

Solicitor for the respondent: John C. Tait, Ottawa.