Date: 20040628
Citation: 2004 FC 931
BETWEEN:
MUSQUEAM INDIAN BAND
Applicant
and
GOVERNOR IN COUNCIL OF CANADA,
TREASURY BOARD OF CANADA, THE HONOURABLE
ROBERT THIBAULT, MINISTER OF FISHERIES AND OCEANS,
CANADA LANDS COMPANY LIMITED, CANADA LANDS
COMPANY CLC LIMITED, CITY OF RICHMOND,
ATTORNEY GENERAL OF BRITISH COLUMBIA and
MINISTER OF INDIAN AND NORTHERN AFFAIRS
Respondents
REASONS FOR ORDER
PHELAN J.
NATURE OF PROCEEDINGS
[1] The applicant is the City of Richmond (the City) (currently a respondent in this file) who seeks to set aside pursuant to Federal Court Rule 399, the interlocutory injunction granted on January 26, 2004. The grounds for the order are that there is evidence which ought to have been disclosed by the Musqueam Indian Band (the Band) at the time of the injunction hearing and that such evidence would have affected the Court's determination.
[2] These are the Reasons for the Court's order of June 11, 2004 dismissing this application to set aside the interlocutory injunction.
[3] The application raised the following issues:
a) in light of a pending appeal, whether the Court has jurisdiction to vary its order or ought to exercise such jurisdiction ("jurisdiction issue");
b) whether the evidence could have been discovered earlier with reasonable diligence ("discoverability issue");
c) whether had the evidence been brought to the Court's attention, it would probably have resulted in a different decision ("materiality issue").
[4] In addition the Attorney General of Canada raised the matter of a decision of the British Columbia Court of Appeal which they argue is to the opposite effect of this Court's injunction decision.
BACKGROUND
[5] On January 26, 2004, the Court issued an interlocutory injunction preventing the transfer of the "Garden City" property until the judicial review application had been heard. (The order is under appeal). One of the terms of the injunction was a provision that any party could apply to "vary or vacate the order on such grounds and terms as the Court may deem appropriate".
[6] It was the Band's position, confirmed in sworn evidence, that any transfer would cause irreparable harm (not compensable in damages) and in particular harm to their right to have the government negotiate and accommodate their claims over and to the lands.
[7] The City brought this motion to set aside the injunction order on the grounds that the Court should have been made aware of and considered, at the injunction hearing, British Columbia Supreme Court Action No. S036645, Chief Ernest Campbell et al v. Her Majesty the Queen et al filed December 9, 2003.
[8] The evidence which the City says should have been considered is a Writ of Summons in the B.C Court between members of the Band, the Band itself and most of the respondents in the judicial review application.
[9] The Writ seeks a declaration of aboriginal title and rights to lands on the Lower Mainland, of which the Garden City property is a small part, a declaration that any transfers of land are invalid. The Writ also seeks damages and compensation for infringement or breach of the title and rights and injunctions preventing any further transfers. The Writ also seeks interlocutory relief by way of injunction until trial.
[10] The allegation is that this Writ seeks damages for alienation of lands, including the Garden City property, and as such is tantamount to an admission that damages are sufficient remedy for breach of title and related rights as it applies inter alia to the Garden City property.
[11] The Writ was never brought to the Court's attention. It in fact had not been served on the defendants in the action.
[12] On March 18, 2004, the City became aware of the existence of this action. As a result it commenced these proceedings to set aside the injunction.
[13] Counsel for the Attorney General of Canada admitted that those respondents had known about the Writ since February 9, 2004 and had taken no action to very or set aside the injunction. It is interesting to note that the injunction operates against the Canada Respondents not against the City. The City's status in these proceedings is unclear.
[14] The City contends that the Court has jurisdiction to set aside the injunction by virtue of Rule 399(2)(a), this Court's Order of January 26, 2004 and the Court's inherent jurisdiction.
[15] The City further contends that the Writ of Summons was fundamental to the issues before this Court and would have altered the judgment rendered because the Writ undermined the Band's claim of irreparable harm.
[16] The Attorney General of Canada largely adopted the submissions of the City but add to it that the British Columbia Supreme Court denied an injunction to the Band in circumstances identical to those before this Court. (See Musqueam v. Minister of Sustainable Resources Management 2004 B.C.S.C. 506).
[17] The Band takes the position that, while the Court has jurisdiction to consider the motion, the Court ought not to do so given that the injunction order is under appeal.
[18] The Band further submitted that the B.C. action did not meet the materiality criterion for the Court to vary or vacate its order. The Band further explained that the action was commenced to preserve any limitation period arising from Delgamuukw v. The Queen [1997] 3 S.C.R. 1010 while other proceedings, including this one, are dealt with.
ANALYSIS
Jurisdiction Issue
[19] With respect to the Court's jurisdiction to vary or set aside its injunction order, all parties seem to be in agreement that the Court has that jurisdiction. The issue is essentially whether it ought to exercise that jurisdiction.
[20] I concur with the parties that the Court has such jurisdiction even where the order is under appeal. Rule 399 provides the clear jurisdiction to vary or set aside and there is no rule to the contrary where an appeal has been filed.
[21] A further source of jurisdiction is the term of the order itself. Interlocutory injunctions are an extraordinary remedy premised on specific facts and law in place at that particular time. It is in the nature of this type of relief that it be susceptible to vacation or termination if changes to critical facts or law arise prior to the hearing on the merits.
[22] I do not read Etienne v. Canada [1993] F.C.J. No. 1388 as holding that a trial judge does not have jurisdiction to vary or set aside his/her own order when that order is under appeal. In Etienne the trial judge held that he did not have that jurisdiction. However, the Court of Appeal specifically rejected the notion that the issue is one of "jurisdiction" or of "functus officio".
[23] The Federal Court of Appeal did, however, conclude that it would have been inappropriate in those circumstances for the trial judge to do so. Therefore it is a matter of discretion based in part on the efficacy and efficiency of a trial judge dealing with the order under appeal. Rule 399 cannot be used as a form of backdoor appeal as to permit counsel to rectify their record of the proceedings particularly where the order is a final one.
[24] In this instance, none of those factors arise. Most importantly, the underlying premise of the application to set aside is that this Court was mislead, either advertently or inadvertently, as to the true facts and that one party had consciously concealed material evidence from both the parties and the Court. This is not a case of fraud or, in reality, intentional misleading, it is simply an allegation that the Court was mislead.
[25] In my view, when that type of situation is alleged to have occurred in an interlocutory proceeding, it is an appropriate circumstance for the trial judge to exercise the discretion to consider the matter.
DISCOVERABILITY
[26] The Band had chosen not to serve the Writ of Summons on any of the defendants in the B.C. action. That is its right and there is nothing in itself untoward in not doing so.
[27] Despite the Band's argument that the City and others knew that the Band could commence a separate action for aboriginal title in the British Columbia Supreme Court, it is unreasonable to expect potential defendants to continually check court registries to determine if they had been sued.
[28] There is one slight twist to the consideration of this issue. Justice Harrington in establishing a schedule for the injunction hearing had set dates for cross-examination on affidavits. Those dates were after the filing of the Writ. No party took advantage of that right.
[29] While it is purely speculative to conclude that this fact would have come out, in the course of cross-examination, there was an opportunity available for discovery of this fact. The Band admitted that the relief southt included an interlocutory injunction, that such an injunction could affect the transfer of the Garden City property (amongst many of the transfers) and that they were also seeking damages in respect of any such transfers. Therefore the existence of the claim would be a relevant area of inquiry in a cross-examination.
[30] However given the state of the Federal Court pleadings at that time, the need to expedite the injunction hearing, it is asking too much of the respondents in the judicial review to have anticipated that cross-examination might have disclosed this type of information.
[31] Therefore I find that the existence of the Writ was not a matter which was discoverable with reasonable diligence by any of the respondents in the Federal Court judicial review proceeding.
MATERIALITY
[32] The Band has argued that it had no obligation or reason to disclose the existence of the Writ at the time of the injunction hearing. I accept counsel's assurance that there was no attempt to deceive or mislead the Court or the other parties. The decision not to disclose was based on a judgment call. But, in a situation of requesting extraordinary equitable relief, not everyone would have agreed with the appropriateness of this tactical decision.
[33] As to the legal criterion of materiality, the question is whether this information could have or should have affected the Court's determination.
[34] The City contends that since the Band seeks damages and compensation as a main relief and not as secondary relief to its claim for injunction, the Writ constitutes an admission that damages are sufficient and therefore irreparable harm does not arise in respect of the various past and future land transfers, particularly that of the Garden City property.
[35] The Writ is nothing more than the early stages of a claim, a procedure not followed in all superior courts. The real substance of the claim is to be found in the statement of claim which is not before this Court.
[36] The rules of the British Columbia Supreme Court state that a statement of claim may be altered, modified or extended without amending the Writ (Rule 20(3)). This indicates the very preliminary and non-binding effect of the Writ.
[37] In my view, the prayer for relief in a writ is not an admission of fact and the applicants on this motion have not provided any authority to the contrary. Picotte Insulation Inc. v. Mansonville Plastics (B.C.) Ltd. (1985) 48 C.P.C. 169 does not hold that damages sought in one proceeding is to be held to be determinative of the adequacy of damages in another.
[38] The existence of the B.C. action was not sufficiently material to cause the Canada Respondents to bring a motion to vary despite the fact that the injunction applies to them and not to the City.
[39] The existence of the B.C. action would not and should not have affected the injunctive relief granted in this case. This Court was not mislead on a material matter.
[40] Further I am not persuaded that the decision of the British Columbia Court of Appeal in Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management) supra has any bearing on this Court's order or on this motion to set aside.
[41] It is, with the greatest of respect, a decision which is not binding on this Court. It is, however, a decision of great persuasive impact but subsequent authority such as this cannot be a basis for this Court to reconsider its own order. It is not a new matter, it is a new authority to be cited in argument elsewhere.
[42] While the facts are somewhat similar and the legal basis for the injunction almost identical, the facts surrounding irreparable harm (the issue on which the Court of Appeal decided) are entirely different from those before this Court.
[43] The British Columbia Court of Appeal held that there was no serious suggestion that the University of British Columbia (UBC) would transfer the lands to a third party pending the appeal and that such a possibility was extremely remote. That Court also found that UBC did not intend to deal with the land in such a way as to preclude a reconveyance to the Crown if the Band were successful. UBC had given written assurances to the Band that nothing would be done to make unwinding the transfer impossible.
[44] It was on this basis that the Court of Appeal concluded:
In light of these letters, and in the absence of any evidence or submissions, which would indicate a real danger to the lands, or to any interest the Musqueam have in the lands, I have difficulty in accepting Musqueam's claim that it would suffer irreparable harm if a stay, or other injunctive relief pending appeal, were not granted.
[45] The facts before this Court had none of these facts, indeed quite the opposite facts were presented by the Canada Respondents on this Court's injunction hearing. The Canada Respondents disputed their obligations to the Band, intended to convey the property to Canada Lands who denied any obligation to the Band, gave no assurances as to the ability to reconvey if the Band was successful. Unlike the B.C. Court of Appeal finding that there was no real danger to the lands or the Band's interests, in this Court there was such danger. Therefore the decisions, to the extent that it is necessary or appropriate to do so, can be readily distinguished.
CONCLUSION
[46] For these reasons, the motion to vacate the January 26, 2004 injunction was dismissed.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2287-03
STYLE OF CAUSE: Musqueam Indian Band v. Governor in Council of Canada, Treasury Board of Canada, the Honourable Robert Thibault, Minister of Fisheries and Oceans, Canada Lands Company Limited, Canada Lands Company CLC Limited, City of Richmond, Attorney General of British Columbia and Minister of Indian and Northern Affairs
PLACE OF HEARING: Ottawa and Vancouver
DATE OF HEARING: April 21, 2004
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PHELAN
DATED: June 28, 2004
APPEARANCES:
Ms. Maria Morellato FOR THE APPLICANT
Mr. Rob Whittaker FOR THE RESPONDENT CANADA
Mr. Sukhbir Manhas FOR THE RESPONDENT CITY OF RICHMOND
SOLICITORS OF RECORD:
Blake Cassels Graydon
Vancouver, B.C. FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT CANADA
Lisdstone Young Anderson
Vancouver, B.C. FOR THE RESPONDENT CITY OF RICHMOND
Bull Housse and Tupper
Vancouver, B.C. FOR THE RESPONDENT CANADA LANDS
Ministry of Attorney General of British
Columbia
Legal Services
Victoria, B.C. FOR THE RESPONDENT ATTORNEY GENERAL OF B.C.