Federal Court Decisions

     T-1353-95

BETWEEN:

     LORETTA JANET MILLIKEN and

     WILLIAM ALLAN SOLOMON

     Applicants

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA represented by the

     MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

     and THE MINISTER OF INDIAN AND NORTHERN AFFAIRS and

     DONALD PAUL SOLOMON

     Respondents

     REASONS FOR ORDER

JEROME A.C.J.:

     This application by the applicant for judicial review and for an order for costs against the respondent, Donald Paul Solomon came on for hearing at Toronto, Ontario, on January 21, 1997. At the conclusion of argument, I provided oral reasons allowing the application for judicial review and took the matter of costs under reserve indicating that these written reasons would follow.

     The applicants and the respondent, Donald Paul Solomon, are members of the Kettle and Stoney Point First Nation. Loretta J. Milliken, William Allan Solomon, and Donald Paul Solomon are in possession as joint tenants of lands on the Kettle Point Indian Reserve No. 44. The applicants wish to sever the joint tenancy and submitted transfers of land for approval by the Department of Indian Affairs and Northern Development. The applicants were advised by the Department that the transfers would not be approved. The applicants sought judicial review of this decision. At the hearing on January 21, 1997, I rendered oral reasons that the decision denying the request to sever the joint tenancy be quashed and that the Minister reconsider the applicants' requests in accordance with law.

    

     In the past, and at the time this application for judicial review was made, the Department of Indian Affairs and Northern Development took the position that it would not approve a transfer under section 24 of the Indian Act intended to effect the severance of a joint tenancy in the absence of the consent of all of the joint tenants. The Department of Indian Affairs and Northern Development has since revised its position. An application for approval and registration of a transfer effecting a severance of a joint tenancy will now be reviewed, without imposing any standard policy or practice of requiring consent of all joint tenants in lawful possession of the parcel of land. In my opinion, and in light of the Minister's consent and the Department's revised policy, it is appropriate that the decision denying the request to sever the joint tenancy be quashed. However, I am not prepared, nor is it the Court's role, to decide the issue on the merits. The Indian Act affords the Minister the discretion to approve transfers of land and therefore it is appropriate for it to take into account the relevant considerations and decide accordingly.

     Rule 1618 of the Federal Court Rules governs the issue of costs. It provides:

No costs shall be payable in respect of an application for judicial review unless the Court, for special reasons, so orders.

In Ladiwala v. The Minister of Citizenship and Immigration (1995), 31 Imm. L.R. 12 at 13 (F.C.T.D.), Mr. Justice Cullen stated:

The purpose of Rule 1618, in departing from the general principle that costs should follow the event, is to assure to a person who is adversely affected by the decision of a federal decision-maker the right to challenge the decision in this Court without running the risk of being ruined by costs if he or she loses. In cases before this Court in which costs have been awarded for special reasons, the actions either were unfounded or there was conduct warranting the sanction of a cost award.

     In my opinion, there are no special reasons which would justify an award of costs to the applicants in the amount of $2,200.00 against the respondent, Donald Paul Solomon. In this case, the applicants were seeking judicial review of a decision of the Department of Indian Affairs and Northern Development. At the time of the decision, it was the Department's policy that the consent of Donald Paul Solomon was required in order to sever the joint tenancy. That Donald Paul Solomon was not prepared to consent to a severance is not a special reason which would warrant an award of costs against him. Nor does his failure to make submissions on the judicial review application constitute a special reason to award costs against him. As such, I find nothing which would merit an award of costs in these circumstances and a departure from the general principles underlying Rule 1618.

    

     For these reasons, on January 21, 1997, I allowed the application for judicial review. The application for costs is hereby denied.

O T T A W A

April 22, 1997                      "James A. Jerome"

                             A.C.J.