Date: 20050203
Docket: A-360-03
Citation: 2005 FCA 52
CORAM: ROTHSTEIN J.A.
BETWEEN:
JEANNINE MORIN, personally, and on behalf of a class
of persons having the same interest, which class is more particularly
described in Appendix "A", of the Statement of Claim.
Appellants
(Respondents)
and
HER MAJESTY THE QUEEN
Respondent
(Applicant)
Heard at Toronto, Ontario, Ontario, on February 3, 2005.
Judgment delivered from the Bench at Toronto, Ontario, on February 3, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20050203
Docket: A-360-03
Citation: 2005 FCA 52
CORAM: ROTHSTEIN J.A.
BETWEEN:
JEANNINE MORIN, personally, and on behalf of a class
of persons having the same interest, which class is more particularly
described in Appendix "A", of the Statement of Claim.
Appellants
(Respondents)
and
HER MAJESTY THE QUEEN
Respondent
(Applicant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on February 3, 2005)
[1] This is an appeal from the decision of Dawson J. of the Federal Court inMorin v. Canada, [2002] F.C.T. 1312, determining the rent payable by the appellants under the renewal clause of leases for the years 1994-99 and 1999-2004. The lands in question are leased from the Crown and are located within the Nipissing Indian Reserve No. 10, North Bay, Ontario. The leases and the lands are administered by the Nipissing Band.
[2] The appellants made a motion at the start of the hearing of the appeal to introduce new evidence, namely, that the lawyer who had represented them at the trial was under administrative suspension by the Law Society of Upper Canada for approximately a week during the trial and for approximately 6 months in the preparation period leading up to the trial. Counsel said that this evidence established that the appellants had not been represented with propriety and that this undermined the fairness of the trial.
[3] We dismissed the motion on the ground that the evidence did not demonstrate that the trial process had been flawed so as to entitle the appellants to a new trial. In Morin v. Canada, [2003] F.C.A. 486, this Court held in related litigation that the appellants' lawyer's suspension did not constitute incompetent representation. Even if the propriety of the appellants' representation before Dawson J. is different from its competence, the issue is res judicata.
[4] As to the suggestion that justice might have miscarried as a result of incompetent or improper representation of the appellants, we would note that, at the end of the trial, the Judge thanked counsel for both sides and congratulated them on a job well done.
[5] The appellants' principal argument was that Dawson J. had committed a palpable and overriding error in her application of the principles established in Musqueam Indian Band v. Glass, [2000] 2 S.C.R. 633, for the valuation of land situated on an Indian reserve. In particular, he submitted that the Judge had erred in accepting the evidence of the Crown's appraiser respecting the amount by which the value of the freehold of the leased lands should be discounted under the Musqueam factors relevant to the facts of this case.
[6] We do not agree. Having found the appraiser to be a credible and reliable witness, Dawson J. was entitled to accept his evidence as the basis of her findings of fact regarding the appropriate amounts of the discounts applicable. Her factual findings were consistent with the evidence before her which she had accepted.
[7] For these reasons, the appeal will be dismissed with costs to the respondent in the amount of $5,000.00, inclusive of disbursements.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-360-03
STYLE OF CAUSE: JEANNINE MORIN, personally, and on behalf of a class
of persons having the same interest, which class is more
particularly described in Appendix "A", of the Statement of
Claim.
Appellants
(Respondents)
and
HER MAJESTY THE QUEEN
Respondent
(Applicant)
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 3, 2005
REASONS FOR JUDGMENT
OF THE COURT: (ROTHSTEIN, EVANS & MALONE JJ.A)
DELIVERED FROM THE
BENCH BY: EVANS J.A.
APPEARANCES BY:
Mr. Ian N. McLean
FOR THE APPELLANTS
Mr. Gary Penner
Mr. Michael McCulloch
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Ian N. McLean
North Bay, Ontario
FOR THE APPELLANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT