Date: 20030905
Docket: A-392-03
Citation: 2003 FCA 328
Present: DÉCARY J.A.
BETWEEN:
SANDY BAY OJIBWAY FIRST NATION, as represented
by CHIEF JOHN SPENCE, and Councillors, RAYMOND BEAULIEU,
HERMAN RICHARD and THOMAS RICHARD,
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN AND NORTHERN AFFAIRS,
Respondent
Heard by teleconference at Ottawa, Ontario, on September 5, 2003.
Order delivered at Ottawa, Ontario, on September 5, 2003.
REASONS FOR ORDER BY: DÉCARY J.A.
Date: 20030905
Docket: A-392-03
Citation: 2003 FCA 328
Present: DÉCARY J.A.
BETWEEN:
SANDY BAY OJIBWAY FIRST NATION, as represented
by CHIEF JOHN SPENCE, and Councillors, RAYMOND BEAULIEU,
HERMAN RICHARD and THOMAS RICHARD,
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN AND NORTHERN AFFAIRS,
Respondent
ORDER AND REASONS FOR ORDER
[1] This is a motion for an Order staying Mr. Justice Rouleau's Order of June 13, 2003 pending the hearing of the appeal and for an Order enjoining the Minister of Indian and Northern Affairs from proceeding, on September 8, 2003, with an election for the Chief and Council of Sandy Bay Ojibway First Nation under subsection 74(1) of the Indian Act pending the outcome of the appeal.
[2] The appellant was at first satisfied with the Order and complied, at least in part, with it. On July 28, 2003, the appellant held the referendum which had been requested by Mr. Justice Rouleau. It is only when the results of the referendum were not those expected that the appellant questioned the Order.
[3] On July 31, 2003, the appellant informed the Minister that as it had held the referendum, whatever its results, it had fulfilled the terms of the Order of Mr. Justice Rouleau and that therefore, the stay against the holding of an election remained.
[4] On August 5, 2003, the Minister informed the Court and the appellant that, in his view, the decision of the Minister to hold an election had not been set aside but had only been stayed by Mr. Justice Rouleau's Order and that the negative results of the referendum entitled him to proceed with an election on September 8, 2003. The Minister then made the necessary arrangements for the holding of the election on September 8, 2003.
[5] On August 20, 2003, Mr. Justice Rouleau answered the August 5, 2003 letter. He issued a directive, which was communicated to counsel on August 25, 2003, indicating that his Order of June 13, 2003 is not ambiguous and that the election should proceed as directed on September 8, 2003.
[6] On August 21, 2003, prior to receiving Mr. Justice Rouleau's directive, the appellant filed a Motion in the Trial Division seeking to enjoin the election that was arranged for September 8. Mr. Justice Lemieux, on August 27, 2003, denied an expedited hearing of the motion.
[7] On August 29, 2003, the appellant filed a Notice of Appeal with respect to Mr. Justice Rouleau's Order dated June 13, 2003, as well as the within motion.
[8] The appellant has obviously moved from an attack on the Minister's decision to hold an election on June 16, 2003, to an attack on the Minister's decision to hold an election on September 8, 2003. Such an attack, as it has itself acknowledged by filing a motion in the Trial Division on August 21, 2002, cannot be made in the Appeal Division. The within motion, in my view, is a disguised attempt to obtain from this Court an expedited hearing of the motion which was filed in the Trial Division and which is yet to be heard. I note in this respect that the affidavit filed in this Court is the very one filed in the Trial Division.
[9] The motion for a stay is dismissed. Counsel for the respondent has informed the Court at the hearing that, should the appeal proceed, the Minister would not argue mootness and that, should the appeal be allowed, the appellant would be restored to the position it was in before the September 8, 2003 election.
"Robert Décary"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-392-03
STYLE OF CAUSE: SANDY BAY OJIBWAY FIRST NATION, as
represented by CHIEF JOHN SPENCE, and
Councillors, RAYMOND BEAULIEU, HERMAN
RICHARD and THOMAS RICHARD,
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF
CANADA, as represented by THE MINISTER OF
INDIAN AND NORTHERN AFFAIRS,
Respondent
PLACE OF HEARING: Ottawa, Ontario by telephone conference
DATE OF HEARING: September 5, 2003
REASONS FOR ORDER: DÉCARY J.A.
DATED: September 5, 2003
APPEARANCES:
Mr. Harvey I. Pollock
Mr. Derek M. Olson
Mr. Wayne Forbes FOR THE APPELLANTS
Mr. Darrin Davis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pollock & Company FOR THE APPELLANTS
Mr. Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
Ottawa, Ontrario