Date: 19990317
Docket: T-2655-89
BETWEEN:
ELIZABETH BERNADETTE POITRAS
Plaintiff
- and -
WALTER PATRICK TWINN, THE COUNCIL OF THE SAWRIDGE BAND,
THE SAWRIDGE BAND and HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Defendants
REASONS FOR ORDER
(Delivered from the Bench at Edmonton, Alberta,
Wednesday, March 17, 1999)
HUGESSEN J.
[1] The defendant Crown moves in this action for a partial stay. The co-defendant, the Sawridge Band, while opposing that motion, moves itself for a complete stay of the action.
[2] It is common ground amongst all the parties hereto, that what may be compendiously called the aboriginal rights issues raised by the third party claim herein, as well as by the bands" defence, are virtually identical to those same issues raised in the Band"s own action against the Crown in the case of the L"hirondelle v. Canada (Court File T-66-86).
[3] I am satisfied that this is a case in which it is proper to order a stay. I shall come in a moment to the question of the extent of that stay. The classic test is the three part test recently laid down by the Supreme Court of Canada in the case of RJR MacDonald v. Canada (A.G.)1 and applied many times both before and since that time.
[4] First, there can be no question that there is a serious issue to be tried.
[5] Second, as to the matter of irreparable harm, I am satisfied that the Crown is exposed to irreparable harm, not only by the substantial possibility of there being conflicting final judgments in the two actions2but also by the very fact of being obliged to engage in long, expensive and complex constitutional litigation on an identical question with the same party in two different actions. Duplicity in itself causes a serious harm.
[6] Finally, with regard to the third branch of the test, it is not seriously contested that, there being harm, the balance of convenience favours the Crown.
[7] This brings me to the other issue before me this morning mainly the extent of the stay which should be granted. I am persuaded that the plaintiff in this action raises issues which are entirely separate and apart from and independent of any issues relating to aboriginal rights or to the alleged invalidity of the 1985 amendments to the Indian Act commonly known as Bill C-31. In particular, the plaintiff makes a claim to be entitled to membership in the defendant Band in accordance with the terms of the Band"s own membership code. If that claim is sustained, issues of aboriginal rights and constitutional validity of Bill C-31 fall by the wayside and do not need to be determined, I simply cannot accept the Band"s contention that, in some way, it will be entitled to resile from its own membership rules if it is successful in its attack upon Bill C-31. In my view, it cannot do so. Accordingly, I shall give an order that the issues relating to aboriginal rights and the constitutional validity of Bill C-31, will be stayed herein pending the final judgment in the case of L"hirondelle v. Canada. The plaintiff is at liberty to bring the present action on for trial on the remaining issues. I invite submissions from counsel as to the question of costs.
[8] Having now heard counsel on the question of costs, I am satisfied that, as between the two co-defendants there should be no order as to costs. However, I am satisfied, on the other hand, that, as between the unsuccessful defendant Band and the plaintiff, there should be an order for costs going in the plaintiff"s favour in the amount of $750.00 payable forthwith and in any event of the cause.
"James K. Hugessen"
Judge
__________________2 See the decision of Mr. Justice Heald in the Powderface et al v. Baptiste et al (1996), 118 F.T.R. at 118.