Oregon Jack Creek Indian Band v. Canadian National Railway Co.

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] 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), 25 B.C.L.R. (2d) 17 (C.A.); Minnes v. Minnes (1962), 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), 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.