Oregon Jack Creek Indian Band v. Canadian National Railway Co. (Motion), [1990] 1 S.C.R. 117

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 Bank, 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.

1990: January 25.

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

motion for a rehearing of appeal

Courts -- Practice -- Motion for a rehearing of appeal -- Motion dismissed.

Cases Cited

Referred to: McNaughton v. Baker (1988), 1988 CanLII 3036 (BC CA), 25 B.C.L.R. (2d) 17; Minnes v. Minnes (1962), 1962 CanLII 350 (BC CA), 34 D.L.R. (2d) 497; Hubbuck & Sons, Ltd. v. Wilkinson, Heywood & Clark, Ltd., [1899] 1 Q.B. 86.

Statutes and Regulations Cited

British Columbia Supreme Court Rules, 1976, rr. 33, 34.

MOTION FOR A REHEARING of Oregon Jack Creek Indian Band v. Canadian National Railway Co., 1989 CanLII 4 (SCC), [1989] 2 S.C.R. 1069. Motion dismissed.

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.

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

//The Court//

The following is the judgment delivered by

THE COURT -- The plaintiffs (respondents on the appeal) apply for a rehearing of the appeal. We are of the view that the application should be dismissed.

The only issue before us on the appeal was whether the amendments sought to be made to the pleadings should be refused on the ground that the amended pleadings disclosed no cause of action. We decided that issue, holding that the amendments should be allowed: 1989 CanLII 4 (SCC), [1989] 2 S.C.R. 1069. On the record before us, in the absence of evidence and given the fledgling character of actions based on aboriginal claims, we were not prepared to say that any of the defects alleged would necessarily be fatal to the claim. Since we could not conclude that the pleadings disclosed no cause of action at this stage, we dismissed the appeal and allowed the pleadings to stand. It is a settled principle that pleadings should not be rejected unless they are clearly and obviously invalid: McNaughton v. Baker (1988), 1988 CanLII 3036 (BC CA), 25 B.C.L.R. (2d) 17 (C.A.); Minnes v. Minnes (1962), 1962 CanLII 350 (BC CA), 34 D.L.R. (2d) 497 (B.C.C.A.); Hubbuck & Sons, Ltd. v. Wilkinson, Heywood & Clark, Ltd., [1899] 1 Q.B. 86 (C.A.) A refusal to allow an amendment must meet the same standard.

The plaintiffs now seek to have this Court pronounce on further issues considered by the Court of Appeal (1989), 1989 CanLII 249 (BC CA), 34 B.C.L.R. (2d) 344, namely that the action was personal in nature rather than derivative and the plaintiffs need not establish either the continued existence of the Indian nations nor authority to bring the action. In pronouncing on these issues, the Court of Appeal went beyond the narrow issue before them -- whether the pleadings were clearly invalid. In our opinion, it is premature to pronounce on these questions in the absence of evidence at this early stage of the action. As the conclusions of the Court of Appeal on these issues were obiter dicta and as we are not holding that the Court of Appeal erred in arriving at these conclusions but merely that they should not be decided at this time, the plaintiffs cannot complain that a decision in their favour was reversed without their having been heard. Had the matter been brought as a preliminary point of law under British Columbia Rule 33 or 34 with questions of law or mixed law and fact stated for decision, the result might have been otherwise.

The application is dismissed with costs.

Motion dismissed with costs.

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.

Solicitors for the respondents: Mandell Pinder, Vancouver.