Written by: Michaela Pomponio and Rielle Gobbett

The William Decision

In the B.C. Supreme Court decision of William v. Lake Babine Indian Band, 1999 CanLII 6121 (“William”), the Court set aside a default judgment against Lake Babine Indian Band on the basis that the Nation was not appropriately informed of legal proceedings against it. The Court found that personal service was not properly effected by the plaintiff since the documents were left with a receptionist at the band office instead of with the Chief or councillors. Despite this ruling – and the vast number of legal proceedings involving First Nations in the decades since – there is no federal or provincial legislation that provides clarity on the matter. So then, what is the appropriate method to personally serve First Nations?

What is “Personal Service”?

Personal Service refers to the process of delivering legal documents to the intended recipient. The purpose of personal service is to ensure that the recipient is notified of proceedings in a legal action and can respond appropriately.

The process for personal service is governed by the B.C. Supreme Court Civil Rules (the “SCCR”). The rules provide procedural guidance for civil litigation actions in British Columbia, and their objective is to secure the just, speedy, and inexpensive determination of a proceeding on its merits. The rules include guidelines on a variety of civil procedures, including claims, counterclaims, and notice requirements.

For most corporate structures, it is sufficient to leave legal documentation with an agent of the corporation, as per SCCR 4-3(2). However, First Nations are unique structures in that they are not corporate bodies and therefore not eligible to be served as “corporations” under SCCR 4-3(2)(b). This leaves parties involved in claims against First Nations in an uncertain position as to how they can successfully serve documents.

What Does the Caselaw Say?

In William, the Court found that merely leaving legal documentation with a receptionist was insufficient because an Indian band[1] is not completely analogous to a “corporation” as defined in the Business Corporations Act [JH1] (the “B.C. BCA”). Instead, the Court found that an Indian band is a juridical person that can sue or be sued and, thus, is not subject to the rules that apply to corporate entities. Accordingly, service cannot be effected upon an Indian band by delivering the record to the delivery address, under section 9 of the B.C. BCA, or by receiving documents through an agent of the corporation, pursuant to SCCR 4 – [RG2] [JH3] [MP4] 3(2)(b).

If the entity constitutes a “band” under section 2 of the Indian Act, RSC 1985, c. I-5, then it is more analogous to an “unincorporated association”.[2] Per SCCR 4-3(2)(c), “unincorporated associations” require personal services to be served to an “officer” of the organization. In Reid v. Kwanlin Dun First Nation, 2003 YKSC 43, the Court contemplated how the term “officer” should be interpreted in relation to the delivery of personal services to First Nations. There, the Court found that First Nations have legislative roles, administrative offices, managers, directors, and organizational structures, and as such, it would be “bizarre” to insist that First Nations only be served by leaving legal documents with a Chief or councillor. Moreover, the Court relied on the definition of “officer” in the former litigation rules of practice[3], which includes the band administrator and favoured a more liberal interpretation.

What is the Impact?

Despite the incalculable number of legal proceedings involving First Nations in the twenty-five years since William, there has been little codification by federal or provincial governments pertaining to personal service on First Nations. The lack of clarity speaks to a broader issue of colonial structures and the associated barriers they create. While the impact of unclear guidelines regarding personal service to First Nations may appear to be minor in the grand scheme of Indigenous issues, the lack of clear guidelines contribute – in varying capacities – to the inability to access justice, especially in rural communities.

In addition to impeding access to justice, the ambiguity surrounding personal service to First Nations creates a legislative gap and forces First Nations to subscribe to a system that does not inherently recognize or benefit them. As a multi-juridical society, we must continue to pursue accessible and inclusive legal systems.

Conclusion

The lack of provincial or federal guidance regarding notifying First Nations of legal proceedings against them stems, in part, from their status as non-corporate bodies. Although the jurisprudence provides some guidance on how to properly serve First Nations, ambiguity persists. This legislative gap creates a multitude of issues, including barriers to justice and the reinforcement of Western legal orders at the expense of First Nations. At MT+Co, we recognize our collective responsibility to work towards decolonizing the justice system and increasing inclusivity and accessibility with respect to legal processes. For more information, please contact our Indigenous Law Group.

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[1] Note: the term “Indian band” is used in the official language of the Indian Act, RSC 1985, c. I-5. We acknowledge that this terminology is outdated and use it only in reference to legislation.

[2]  CED 4^th, Service of Documents (Western) at § 24 “On Unincorporated Associations” (April 2024).

[3] The B.C. Rules of Practice are no longer in effect in British Columbia.

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