The Plaintiff sought certification of a Class Action at a previous hearing. The purported class members were individuals added to the Band List of the Defendant First Nation for which the Defendant withheld payment of per capita distributions pursuant to Bill C-31. Associate Chief Justice Rooke determined that this was an appropriate case to proceed by way of a class proceeding.

As a preliminary issue, the Court considered the Plaintiff’s request to file additional materials relating to the law on the availability of a constructive trust. The Court reviewed the case law on Rule 9.13 and concluded that it had broad discretion to re-open the case and permit the filing of additional substantive supplemental submissions. Rooke A.C.J. permitted the materials to be filed for the purpose of assisting with determining the common issues at Trial.

The Court then considered the Plaintiff’s application for Summary Judgment under Rule 7.3. The Plaintiff sought Summary Judgment for several of the common issues. Rooke A.C.J. reviewed the case law on Summary Judgment and examined each common issue. The Court granted Summary Judgment on the first common issue but denied Summary Judgment on the remaining issues. As success was divided, the Court made no ruling on Costs and left it to the parties to make submissions on same by way of Application.