SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 04-CV-266289CM2

DATE: 20130722

RE: Kevin Greer, Plaintiff

AND:

Monica Homer, Douglas Nootchtai, Rubina Nebenionquit, Sharon Wabegijig, Dennis Wabegijig, Barry Petahtegoose, Teresa Migwans, Elmer Shawbonquit, Andrew Nootchtai, both as Trustees or Former Trustees of the Atikameksheng Trust and personally, and The Whitefish Lake First Nation Band, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Kevin Greer, appearing in person

John Rowinski, Counsel for the Defendant Whitefish

Al Formosa, Counsel for the Defendant Trustees

HEARD: July 18, 2013

ENDORSEMENT

[1] This is a motion brought by the Plaintiff to amend his amended Statement of Claim to add additional parties and allegations. It is opposed by the solicitors for the Defendants.

BACKGROUND

[2] The Plaintiff (“Greer”) is a registered member of the defendant, Whitefish Lake First Nation Band (“Whitefish”). Whitefish has approximately 850 members who reside on the Reserve south-west of Sudbury. Whitefish is governed by a Council which is elected every 2 years.

[3] In the existing Statement of Claim, which was amended in 2007, it is pleaded that in 2002, Greer applied to the Atikameksheng Trust (“Trust”) for funding for his timber business, Makada Lake Lumber Products. The Trust was established in 1999 and the Defendants Nootchtai were elected trustees of the Trust. Part of the Trust Agreement provides that the Trustees pay out, in their discretion, income for the purchase of industrial or manufacturing equipment for Whitefish members, monies for the promotion or establishment of businesses owned by Whitefish or its members, or payment out of funds as loans or grants to members who apply. The Trustees are under a duty to keep information about applicants confidential and to identify any conflicts of interest.

[4] In 2002, Greer decided to expand his business to produce kiln dried wood products such as crafts and furniture. For this, he needed additional funds so in May of 2002, Greer submitted a written proposal to the Trustees for funding to expand his business and to purchase a kiln for drying the wood. A business plan was submitted along with the proposal. It is pleaded that his request was rejected and this constituted an improper exercise of discretion on the part of the Trustees, which was contrary to the provisions of the Trust Agreement.

[5] It is alleged that after Greer submitted his proposal to the Trust, an identical proposal for funding was made and granted and the recipient of these funds was the father of the Defendant Douglas Nootchtai. Greer perceived this as a conflict of interest. It is pleaded that by doing so, the Defendant Band breached a fiduciary duty to him which resulted in damages.

[6] In addition to the allegations of breach of fiduciary duty, improper exercise of discretion and conflict of interest, the Plaintiff claims that the actions of the defendants amounted to a wrongful appropriation of a business opportunity and as a result, Greer has lost an economic opportunity and has suffered damages.

[7] The Defendants deny any breach of fiduciary duty to the Plaintiff and assert that at all times, they acted in his best interests. The Statement of Claim was issued in March of 2004. The Trustees deny any conflict of interest and deny any breach of their duties as trustees. The Statement of Claim was amended twice in 2007 and on one of the amendments, Whitefish was added as a party defendant. A Statement of Defence and Counterclaim was delivered by Whitefish. The Counterclaim consists of a demand for repayment of the sum of $26,181.81 Whitefish has paid in legal fees incurred by Greer in his dispute with the Trust.

[8] The action has had a somewhat protracted course through the Courts. There was a Summary Judgment motion brought by Whitefish in 2008, which was dismissed. The Plaintiff changed counsel a couple of times and now acts on his own behalf.

[9] The action was fixed for trial in Toronto to commence on May 27, 2013 for 10 days. I conducted the pre-trial of the matter in March and the Plaintiff advised that he wished to have the trial in Sudbury as it was more convenient and closer to the reserve where a number of the witnesses reside. He also indicated that he wished to bring a motion to amend his Statement of Claim. I agreed to hear the motion in July and in the interim the Defendants indicated they would seek instructions about moving the venue of the trial.

[10] The Plaintiff put together his motion materials and counsel for the Defendants assisted Mr. Greer with his materials, to ensure the motion would proceed. On consent, I was advised that the parties agreed the trial of the action will take place in Sudbury. I was further informed that counsel had been in contact with the trial office in Sudbury and it was hoped that the trial would take place before the end of the year.

MOTION

[11] At the outset, I must comment that Mr. Greer has done his best to put materials together for his motion and he did so with the assistance of opposing counsel, for which I am grateful. I appreciate that it is difficult for a person without any legal background and without the benefit of counsel to prepare materials that comply with the Rules of Civil Procedure and to argue the motion. Mr. Greer did an admirable job in difficult circumstances. Nonetheless, it was not clear to me the basis for the amendments sought.

[12] After some discussion, Mr. Greer advised the court that he wished to add as Defendants all trustees or former trustees of the Trust, the Trust itself and the Council of the Band. It seemed that he wished to do so in order to ensure that he was not precluded at trial from making allegations against various individuals who he believes were involved in the making of decisions concerning the Trust and the governance of the Band.

[13] A number of individuals were initially included as Defendants in their capacity as trustees of the Trust. Those persons were removed as Defendants by way of a consent order some time ago so that the only individuals who are currently named are Douglas Nootchtai and Andrew Nootchtai. Mr. Greer advised the court that he wished to add the individuals against whom the claim had previously been dismissed as party Defendants, as well as others who had acted as trustees.

[14] The Defendants opposed the amendments sought. Mr. Formosa submitted that a Trust cannot be properly sued but can only have claims asserted against it through it trustees. Similarly, Mr. Rowinski argued that the Council is not a proper entity to be sued. IN addition, both counsel submitted that the Plaintiff was aware of the identity of the individual trustees and members of the Council years ago and if he wished to include them as Defendants to this claim, he could have. It was submitted by both counsel that to permit the pleadings to be amended years past the limitation period is improper and creates prejudice to the proposed Defendants and ought not to be allowed.

ANALYSIS

[15] Rule 26.01 of the Rules of Civil Procedure governs amendments to pleadings and it provides:

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[16] In Marks v. Ottawa (City), 2011 ONCA 248, the Court of Appeal noted that while the language of Rule 26 is permissive, the right to amend pleadings is not absolute. I agree. The court must consider various factors including the timing of the amendment sought and whether it would result in prejudice to a party which could not be compensated for in costs, and whether the proposed amendment is meritorious.

[17] In my view, the existing Statement of Claim which has been amended at least once clearly sets out the nature of the claims advanced by Mr. Greer in this lawsuit. Rule 25.06 states that pleadings shall contain a concise statement of the material facts on which a party relies for the claim but not the evidence why which those facts are to be proved.

[18] Looking at the paragraphs that Mr. Greer wishes to add to the claim, they constitute evidence for the most part. As well, there are references to matters which are irrelevant to the issues contained in the lawsuit and they are repetitive of the paragraphs which are already included in the Statement of Claim.

[19] With respect to the intention of the Plaintiff to sue both the Council and the Trust, in my opinion, such claims would not be valid in law and as such, they cannot succeed and therefore, ought not to be allowed.

[20] There is no basis upon which to amend the claim to include all individuals who have ever been trustees of the Trust or members of Council. Mr. Greer has had ample time to determine who he believes played a role in the events giving rise to this litigation. The limitation period has long since passed for including others as parties and furthermore, to add parties against whom the claim has already been dismissed on a consent basis cannot be permitted.

[21] As I indicated to Mr. Greer during the hearing of this motion, the fact that a person is not a party to the action does not mean that his or her evidence cannot be heard at the trial. It may be that Mr. Greer has confused pleadings with evidence.

[22] This claim has been moving at a snail’s pace for various reasons. Even if I were persuaded that there were valid claims to be asserted against the proposed Defendants, to add parties at this late stage would delay the trial of this action even further, which is a serious consideration in any case but in the one before me, the delay would be for no valid reason. This claim needs to move forward to trial for a final resolution for all of the parties.

[23] Although it was not argued before me, I have also considered the effect of Rule 48.04(1) which states that a party who has set an action down for trial shall not initiate any motion without leave of the court. This action was set down for trial in May 2011, at a time when Mr. Greer was represented by counsel. In my view, there is no change in circumstances that would justify granting leave to the Plaintiff to bring this motion to amend.

CONCLUSION

[24] The Plaintiff’s motion to amend the claim is dismissed for the reasons set forth. The Defendants were successful and are entitled to their costs, which I fix at $750.00 each, payable at the conclusion of the trial.

[25] I was advised during the motion that on consent, the action is to be dismissed against the Defendant Andrew Nootchtai and an order shall issue to that effect.

[26] On consent, the trial of this action is moved to Sudbury. A full pre-trial/trial management conference shall be held closer to the trial date. Approval of this order by Mr. Greer is dispensed with, if necessary. Counsel can forward the draft order to me for signature.

[27] As I indicated to counsel and Mr. Greer, if I can be of any further assistance in this matter, I can be contacted through Judges’ Administration at 361 University Avenue.

D.A. Wilson J.

Date: July 22, 2013