Date: 20040107
Docket: A-495-03
Citation: 2004 FCA 3
Present: LÉTOURNEAU J.A.
BETWEEN:
SAMSON CREE NATION
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the
Minister of Indian Affairs and Northern Development
Respondent
and
ANDREW MARK BUFFALO also known as ANDREW MARK FREEMAN on his
own behalf and on behalf of all other members of the Samson Cree Nation on whose
behalf Her Majesty the Queen holds unpaid per capita distribution in the
Samson Band Suspense Account
Respondents
Dealt with in writing without appearance of parties.
Orders delivered at Ottawa, Ontario, on January 7, 2004.
REASONS FOR ORDERS BY: LÉTOURNEAU J.A.
Date: 20040107
Docket: A-495-03
Citation: 2004 FCA 3
Present: LÉTOURNEAU J.A.
BETWEEN:
SAMSON CREE NATION
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the
Minister of Indian Affairs and Northern Development
Respondent
and
ANDREW MARK BUFFALO also known as ANDREW MARK FREEMAN on his
own behalf and on behalf of all other members of the Samson Cree Nation on whose
behalf Her Majesty the Queen holds unpaid per capita distribution in the
Samson Band Suspense Account
Respondents
ORDERS and REASONS FOR ORDERS
[1] The appellants seek by motion to consolidate appeals A-715-02 and A-495-03. Actually, the first appeal file number is A-714-02 rather than A-715-02. There is no objection from the respondents to consolidate, except that Her Majesty the Queen pointed out that the appeal in file A-714-02 has been perfected and is awaiting assignment of a hearing date. An order will be issued that will take that fact into account.
[2] More problematic, however, is the second part of the appellants' motion which seeks a stay of two orders issued by Hugessen J. on October 9 and 24, 2003. A word as to the background of this request is in order.
[3] The appellants brought a motion on October 29, 2003 to stay both aforementioned orders (it also sought consolidation of the two appeals). However, they filed no affidavit evidence in support of the stay. They did not even make any reference to the legal principles applicable to the determination of the issue. Furthermore, the respondent, Her Majesty the Queen, argued in Her motion record that our Court had no jurisdiction to stay the October 24, 2003 order by virtue of Rule 398(1)(a) of the Federal Court Rules, 1998 because there had been no appeal against that order.
[4] Pursuant to the respondents' motion records, the appellants filed a Reply record containing an affidavit and citing the test for a stay. The least I can say is that it is quite an unusual way of proceeding. Not surprisingly, the respondents objected with success to the filing of the reply. On December 3, 2003, the appellants abandoned this first stay application.
[5] The following day, the appellants brought this application that is before me. It is, in essence, a reiteration of the Reply record that was previously rejected by Nadon J.A. It contains the same affidavit of Mr. Potts sworn on November 12, 2003. I shall come back to its contents later in these reasons. It is worth mentioning that the appellants do not address in their material the jurisdictional issue raised with respect to the order of October 24, 2003. I shall discuss this order first.
The October 24, 2003 Order
[6] Rule 398(1)(b) of the Federal Court Rules, 1998 upon which the stay application is based states:
|
398. (1) Stay of order - On the motion of a person against whom an order has been made, [...] (b) where a notice of appeal of the order has been issued, a judge of the division of the Court that is to hear the appeal may order that it be stayed. |
398. (1) Sursis d'exécution - Sur requête d'une personne contre laquelle une ordonnance a été rendue : [...] b) dans le cas où un avis d'appel a été délivré, seul un juge de la section de la Cour saisie de l'appel peut surseoir à l'ordonnance.
|
Since there has been no appeal against that order, the jurisdiction to stay lays with the Division of the Court that issued the order:
|
398. (1) Stay of order - On the motion of a person against whom an order has been made, (a) where the order has not been appealed, the division of the Court that made the order may order that it be stayed; or |
398. (1) Sursis d'exécution - Sur requête d'une personne contre laquelle une ordonnance a été rendue : a) dans le cas où l'ordonnance n'a pas été portée en appel, la section de la Cour qui a rendu l'ordonnance peut surseoir à l'ordonnance;
|
[7] That is sufficient to dismiss the application for stay with respect to that order. I am also of the view, as will become evident from the discussion of the October 9, 2003 order, that no evidence of irreparable harm has been made out by the appellants with respect to this order too. Finally, it would appear that the October 24, 2003 order has already been implemented, if not entirely, at least very substantially: see the motion record of respondents AM Buffalo et al., paragraph 4 a).
The October 9, 2003 Order
[8] After having read the affidavit of Mr. Potts in support of the stay application, I am satisfied that there is insufficient evidence to support a finding of irreparable harm.
[9] Mr. Potts is a paralegal of the Samson Cree Nation. His skeleton affidavit contains four meagre paragraphs. The only one that bears mentioning with respect to the alleged harm is the following:
That I am personally aware of actions that have occurred at Hobbema, by persons in the business of selling drugs; car dealerships; and "loan sharks"; contacting these children since their names were advertised on November 3, 2003.
[10] This allegation is made in the context of a list that published the names of persons who, as members of a class, are entitled to claim money from the appellants. Only approximately one third of the claimants are minors.
[11] Nothing is said beyond this assertion. No specific examples and no details are given. No information is provided as to the source of that personal knowledge and the circumstances under which such knowledge would have been acquired by the deponent. What actions have occurred? The deponent is silent on this point. The allegation is supported by no facts, actually none of the facts necessary to give it the credibility needed for a finding of irreparable harm.
[12] Furthermore, this alleged irreparable harm that the stay application seeks to prevent has already occurred since the names of these minors have been publicly released.
[13] In fact, the appellants do not allege that they will suffer irreparable harm if a stay of that order is not granted. Rather, they allege that it is a third party who will suffer such harm. That concern for a third party is, at best, questionable when it is understood that the appellants are adverse in interest to that third party and that that third party is a possible beneficiary of a judgment which found that the appellants had breached their fiduciary obligations to individual Band members, including those who make up the third party. It would need much more substantial and convincing evidence than the one provided to this Court in order that a stay be issued in these circumstances.
[14] Finally, I agree with the respondent, Her Majesty the Queen: the irreparable harm invoked by the appellants does not exist. The monies payable to minors is to be placed in a minor's trust account and will not be released to them until they have reached the age of majority. This fact was known to the appellants, but they never addressed it in their arguments on irreparable harm.
[15] For these reasons, the application for a stay of the October 9, 2003 and October 24, 2003 orders is dismissed with costs according to Column IV of Tariff "B", payable by the appellants forthwith and in any event of the cause.
[16] The application for consolidation is granted.
[17] It is ordered as follows:
1. The appeals in files A-714-02 and A-495-03 are consolidated and shall be heard together.
2. The appeal in file A-714-02 shall be considered as the lead appeal for the purpose of determining the date of the hearing.
3. The appellants in file A-495-03 shall serve and file, within 30 days of the present order, appeal books that do not duplicate any material relied upon and already produced in the appeal books on file A-714-02;
4. Since the appellants have already filed their memorandum of fact and law in file A-495-03, the respondents shall serve and file their respective memorandum of fact and law within 30 days of the date of the filing of the appeal books; and
5. The appellants shall serve and file a requisition for hearing within 10 days of the filing of the last memorandum of fact and law by the respondents.
[18] Copy of the present orders and reasons for orders shall be filed in file A-714-02.
"Gilles Létourneau"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-495-03
STYLE OF CAUSE: SAMSON CREE NATION v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA et al.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
ORDERS and
REASONS FOR ORDERS BY: LÉTOURNEAU J.A.
DATED: January 7, 2004
WRITTEN REPRESENTATIONS BY:
Ms. Priscilla Kennedy FOR THE APPELLANTS
Mr. Kevin Kimmis FOR THE RESPONDENT - HER MAJESTY THE QUEEN
Mr. Terence P. Glancy FOR THE RESPONDENTS - ANDREW MARK BUFFALO et al.
SOLICITORS OF RECORD:
PARLEE McLAWS FOR THE APPELLANTS
Edmonton, Alberta
DEPARTMENT OF JUSTICE FOR THE RESPONDENT - HER
Edmonton Regional Office MAJESTY THE QUEEN
ROYAL, McCRUM, DUCKETT & GLANCY FOR THE RESPONDENTS -
Edmonton, Alberta ANDREW MARK BUFFALO et al.