Date: 20031020
Docket: A-286-03
Citation: 2003 FCA 384
CORAM: ROTHSTEIN J.A.
BETWEEN:
MELVIN WANDERINGSPIRIT, DELPHINE BEAULIEU, TONI
HERON, RAYMOND BEAVER and SONNY MCDONALD in
their capacity as COUNCILLORS OF THE SALT RIVER FIRST
NATION 195, elected August 30, 2002
APPELLANTS
(Applicants)
and
VICTOR MARIE uncontested Chief and NORMAN STARR
uncontested elected Band Council Member, NORA
BEAVER, DAVID GOWANS, CONNIE BENWELL, MICHEL
BJORNSON, HARVEY LEPINE, and DON TOURANGEAU,
purportedly elected Band Councillors at a meeting held November
3, 2002, and JEANNIE MARIE JEWELL, acting as Interim Band
Manager
RESPONDENTS
(Respondents)
Heard at Edmonton, Alberta, Wednesday, October 1, 2003.
Judgment delivered at Ottawa, Ontario, October 20, 2003.
REASONS FOR JUDGMENT OF: ROTHSTEIN J.A.
CONCURRED IN BY: SEXTON J.A.
SHARLOW J.A.
Date: 20031020
Docket: A-286-03
Citation: 2003 FCA 384
CORAM: ROTHSTEIN J.A.
BETWEEN:
MELVIN WANDERINGSPIRIT, DELPHINE BEAULIEU, TONI
HERON, RAYMOND BEAVER and SONNY MCDONALD in
their capacity as COUNCILLORS OF THE SALT RIVER FIRST
NATION 195, elected August 30, 2002
APPELLANTS
(Applicants)
and
VICTOR MARIE uncontested Chief and NORMAN STARR
uncontested elected Band Council Member, NORA
BEAVER, DAVID GOWANS, CONNIE BENWELL, MICHEL
BJORNSON, HARVEY LEPINE, and DON TOURANGEAU,
purportedly elected Band Councillors at a meeting held November
3, 2002, and JEANNIE MARIE JEWELL, acting as Interim Band
Manager
RESPONDENTS
(Respondents)
REASONS FOR JUDGMENT
[1] This is an appeal from the Federal Court - Trial Division (as it then was) that is related to the appeal in Court file A-244-03. In that appeal, this Court was reviewing an Order of the Trial Division dated May 29, 2003, dealing with a dispute as to which of two groups were the lawful councillors of the Salt River Band. In a decision of even date with this decision, this Court dismissed that appeal, with the result that the Order of the Trial Division dated May 29, 2003, declaring that the appellants in this appeal are the lawful councillors of the Band is upheld. The Order of the Trial Division dated May 29, 2003, was a final Order.
[2] It appears that as a result of a land claim settlement, well in excess of $60 million is being held for the Band by the Royal Trust Company in Winnipeg as trustee. During the judicial review process, various applications were made to the motions judge for interlocutory orders with respect to the funds of the Band. On January 10, 2003, the motions judge ordered that the funds held by the Royal Trust Company as Trustee for the Band be frozen until further order of the Court, that funds in various accounts of the Bank of Montreal in Fort Smith, N.W.T. also be frozen and that payment out of funds in other accounts at the Bank of Montreal be limited.
[3] In the Order of May 29, 2003, in addition to allowing the application for judicial review and determining the lawful Chief and Councillors, the motions judge ordered that the January 10, 2003, Order was to remain in effect, i.e. that the Band funds would remain frozen or be used only for limited purposes until the expiry of the appeal period, thirty days from May 29, 2003. In paragraph 50 of his reasons, he also provided that "should any instructions of [sic] authorizations be required in this regard the parties may apply to the court and conference calls may be arranged in order that good governance of Band affairs can continue".
[4] In view of the large amount of funds belonging to the Band, the acrimony between the two groups wishing to be recognized as Councillors and allegations of mismanagement of funds by each group against the other, the motions judge sought to continue to preserve the Band funds from dissipation or misuse pending appeal, certainly an understandable objective. If no appeal was taken, the January 10, 2003, Order would expire upon expiry of the appeal period; if an appeal were filed, the motions judge obviously assumed that the power to preserve the Band's funds by Court Order would vest in the Federal Court of Appeal.
[5] After the May 29, 2003, Order was issued, the parties made further applications before the motions judge. As a result of a conference call with the judge on June 19, 2003, in which the appellants and respondents raised grievances with each other, the motions judge made the Order now under appeal. This Order was made on June 20, 2003. The Order provided in part:
It is hereby further ordered that from Monday, June 23, 2003, only the following individuals are authorized signing officers of the duly elected Band Council of the Salt River First Nation 195:
Chief Victor Marie
Norman Starr
Melvin Wanderingspirit
Delphine Beaulieu
Tony Heron
Raymond Beaver
Sonny McDonald
All negotiable instruments must be executed before being honoured by at least three of the above named individuals, one of which must always be Chief Victor Marie.
[6] It appears that the majority of Band Councillors are not supporters of the Chief. Presumably in an effort to force the disputing groups to reasonably attend to the payment of proper accounts and salaries, the motions judge decided that the majority group of councillors would have to work with the Chief by obtaining his signature on all negotiable instruments.
[7] The requirement to obtain the Chief's signature on all cheques was not acceptable to the appellants and they appealed the June 20, 2003, Order to this Court.
[8] In this appeal, the appellants say that the motions judge was without jurisdiction to make the June 20, 2003, Order. They say that once he made his final Order of May 29, 2003, declaring that the appellants in this appeal, together with Victor Marie as Chief and Norman Starr as Councillor, were the lawful Chief and Councillors of the Band, he was functus officio. The power to choose signing officers reverted to the Band Council at that point. It was submitted that the practice of Salt River Band Councils in prior years was not to require three Councillors to sign or to have the Chief as a mandatory signing officer.
[9] The issue before this Court is whether the motions judge had jurisdiction to make the June 20, 2003, Order specifying the signing officers and requiring that the Chief be a mandatory signing officer on all negotiable instruments.
[10] In my respectful opinion, while I understand and sympathize with the objectives of the learned motions judge, I must conclude that his June 20, 2003, Order was made without jurisdiction.
[11] Once a final order of the Federal Court is made, all prior interim orders cease to have effect. That is because section 18.2 of the Federal Court Act provides (emphasis added):
|
On an application for judicial review the trial division may make such interim orders as it considers appropriate pending the final disposition of the application. |
La Section de première instance peut, lorsqu'elle est saisie d'une demande de contrôle judiciaire, prendre les mesures provisoires qu'elle estime indiquées avant de rendre sa décision définitive. |
Interim orders are made pending the final disposition of an application. Once an application is finally disposed of nothing is left pending. At that point, any interim order that may have been made ceases to have continuing effect. That would be the case with the January 10, 2003, Order freezing funds of the Band and limiting the use of other funds. I think the January 10, 2003, Order was quite proper as an interim order pending a determination as to which of the disputing groups were the lawful Chief and Councillors of the Band. But once the final Order of May 29, 2003, determined that issue, the January 10, 2003, Order was spent and could not be extended by paragraph 50 of the motions judge's reasons.
[12] It would follow that after a final order is made there is no jurisdiction in the Federal Court to make further interim orders. Therefore, the Order of June 20, 2003, cannot be considered an interim order.
[13] The jurisdiction of the Federal Court to make orders following a final order is limited. The Court may only do so on a motion to reconsider under rule 397(1); in order to correct clerical mistakes, errors or omissions under Rule 397(2); or on a motion to set aside or vary an order by reason of a matter that arose or was discovered subsequent to the making of the order or when the order was obtained by fraud under rule 399. None of these provisions were invoked by the appellants in this case before the motions judge. Indeed, the Order of June 20, 2003, does not purport to be made upon any of the grounds listed in the Rules. It is clearly not a reconsideration, correction of mistake, error or omission, or a variation on the grounds of matters arising or being discovered subsequently.
[14] Under paragraph 398(1)(a) of the Rules, a final order of the Federal Court may be stayed by the Federal Court. Yet, the June 20, 2003, Order does not purport to stay the May 29, 2003, Order. Even if it did, it would have been made without jurisdiction as the appellants had, on the same date as the May 29, 2003, Order was made, filed a Notice of Appeal of that Order in this Court. Upon the filing of the Notice of Appeal, any power to stay the Order of May 29, 2003, was vested in the Federal Court of Appeal and removed from the Federal Court pursuant to paragraph 398(1)(b) of the Rules.
[15] I acknowledge that a final Order of the Federal Court may provide that the parties may make application to that Court for clarification or directions. However, the clarifications or directions must pertain to the terms of the final order. In this case, the appellants requested a declaration of who were the lawful Councillors. It was that question which the final order determined.
[16] Paragraph 50 purported to extend the interim order of January 10, 2003, until the expiry of the appeal period and allowed the parties to apply to the Court for any necessary instructions or authorizations. However, as discussed above, the motions judge did not have jurisdiction to extend an interim order once he had made a final order. Nor could he specify the signing authorities of the band as part of his final order. Once the motions judge had finally determined who were the rightful members of the Band Council, he had no jurisdiction to intervene in their exercise of the Council's powers, including the power to appoint signing officers.
[17] As I have indicated, I fully appreciate that the motions judge was making a prudent attempt to have both sides in this acrimonious proceeding work together and, thereby, ensure that they only make the payments that should properly be made. However, I regret the motions judge lacked the jurisdiction to do so.
[18] I would allow the appeal with costs. For greater certainty, the interim order of January 10, 2003, and the June 20, 2003, Order under appeal are no longer effective.
"Marshall Rothstein"
J.A.
"I agree
J. Edgar Sexton J.A."
"I agree
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-286-03
STYLE OF CAUSE: MELVIN WANDERINGSPIRIT et al v. VICTOR MARIE et al
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: October 1, 2003
REASONS FOR JUDGMENT: ROTHSTEIN J.A.
CONCURRED IN BY: SEXTON J.A.
SHARLOW J.A.
DATED: October 20, 2003
APPEARANCES:
|
Christopher Harvey |
FOR THE APPELLANTS |
|
Ian Blackstock |
FOR THE APPELLANTS |
|
Jeannie Marie-Jewell, Respondent |
FOR THE RESPONDENTS |
|
Neil J. Duboff |
FOR ROYAL TRUST |
SOLICITORS OF RECORD:
|
Mackenzie Fujisawa, Vancouver BC |
FOR THE APPELLANTS |
|
Fasken Martineau DuMoulin LLP, Yellowknife NT |
FOR THE APPELLANTS |