Date: 19980515
Docket: A-893-97
A-895-97
A-70-98
A-71-98
CORAM: THE CHIEF JUSTICE
LÉTOURNEAU, J.A.
McDONALD, J.A. A-893-97
(T-2022-89)
BETWEEN:
| |
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario |
AND BETWEEN:
| |
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, the Minister of Indian Affairs and Northern Development and the Minister of Finance |
BETWEEN:
| |
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, the Minister of Indian Affairs and Northern Development and the Minister of Finance |
BETWEEN:
| |
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE |
AND BETWEEN:
| |
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE |
A-71-98
(T-2022-89)
BETWEEN:
| |
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario |
AND BETWEEN:
| |
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, and the Minister of Indian Affairs and Northern Development and the Minister of Finance |
REASONS FOR JUDGMENT
THE CHIEF JUSTICE
[1] These are appeals from orders made in the Trial Division by Teitelbaum J. and Dubé, acting Associate Chief Justice.
[2] In appeal A-893-97 the appellants Chief Victor Buffalo acting on his own behalf and on behalf of all other members of the Samson Indian Band and Nation and the Samson Indian Band and Nation appeal from an order made by Teitelbaum J. on 8 December, 1997. That order dismissed a motion by the appellants for an order, among others, that Teitelbaum J. should recuse himself as Trial Judge in an action (T-2022-89) commenced by these appellants against the respondents.
[3] In appeal A-70-98, these appellants also appeal from the order made by Dubé, acting Associate Chief Justice on 4 February, 1998, that the trial of action T-2022-89 should commence on 15 April, 1998 at 10:00 a.m. in Calgary before Teitelbaum J. for purposes of addressing arrangements for trial.
[4] In appeals A-895-97 and A-71-98, the appellants Chief John Ermineskin as elected Chief of the Ermineskin Indian Band and Nation and certain named elected Councillors of the Ermineskin Indian Band and Nation, suing on their own behalf and on behalf of all other members of that Band and Nation also appeal from both orders. These appellants are the plaintiffs in action T-1254-92 against the same respondents, which raise similar issues. On March 6, 1998, Stone J.A. ordered that all appeals should be heard together.
[5] In argument, I brought to the attention of counsel the fact that since April 15, 1998 had passed and the trial had not been commenced as Dubé acting Associate Chief Justice had ordered, that order was spent and the appeal moot. As a result, no serious argument was made in support of the objections taken in respect of this order. We would, therefore, dismiss this appeal for mootness.
[6] The order of Teitelbaum J. was attacked on essentially two grounds: first that the appointment of Teitelbaum J. was invalid because it was not made in accordance with section 15 of the Federal Court Act; and secondly that his conduct and statements made both in this and other cases and his past associations with politicians, government officials and other persons gave rise to a reasonable apprehension of bias.
[7] We did not find it necessary to call upon counsel for the Crown to respond to any of the submissions made by counsel for the appellants.
[8] Despite the unduly and unnecessarily prolix, repetitive and ingenious submissions made by counsel for the appellants, we are all of the view that the appeals are devoid of any merit whatsoever and we will dismiss them summarily.
[9] It is our view that the record does support the conclusion that Teitelbaum J. was validly appointed and that he made no error in concluding that he had been.
[10] Secondly, we conclude that there is no clear or concrete evidence of a reasonable apprehension of bias on the part of Teitelbaum J. We are of the view that the appellants' contentions on this issue amount, at best, to mere speculations based on innuendos, surmises, suppositions and unfair characterizations of statements and events.
[11] In our view, what the appellants seek in these appeals is the removal of Teitelbaum J. as Trial Judge and his replacement by a judge of their own preference to preside over what are admittedly two important trials. This approach to the selection of a Trial Judge is foreign to the practice of this Court. We do not wish to encourage it in any way.
[12] We will therefore dismiss all appeals without costs since counsel for the Crown informed us that he was not seeking any.
[13] A copy of these reasons shall be filed in each of files A-893-97, A-895-97,
A-70-98 and A-71-98. When so filed they shall constitute the reasons for disposition of the appeals commenced in each.
"Julius A. Isaac"
WINNIPEG, MANITOBA
MAY 15, 1998 C.J.
Date: 19980515
Docket: A-893-97
A-895-97
A-70-98
A-71-98
CORAM: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
| CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION |
Appellants
(Plaintiffs)
- and -
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario |
Respondents
(Defendants)
AND BETWEEN:
| |
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, the Minister of Indian Affairs and Northern Development and the Minister of Finance |
A-895-97
(T-1254-92)
BETWEEN:
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, the Minister of Indian Affairs and Northern Development and the Minister of Finance
Respondents
A-70-98
(T-1254-92)
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Respondents
(Defendants)
AND BETWEEN:
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Appellants
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Respondents
(Defendants)
A-71-98
(T-2022-89)
BETWEEN:
| |
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario |
AND BETWEEN:
| |
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, and the Minister of Indian Affairs and Northern Development and the Minister of Finance |
| |
Heard at Calgary, Alberta, on Monday, May 11 and Tuesday, May 12, 1998 |
| |
Judgment delivered from the Bench at Calgary, Alberta on Tuesday, May 12, 1998. |
| |
REASONS FOR JUDGMENT BY: THE CHIEF JUSTICE |
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-893-97 A-895-97 A-70-98 A-71-98
Appeals from Orders of the Trial Division dated December 8, 1997 and February 4, 1998,
Trial Division File Nos. T-2022-89, T-1254-92.
STYLE OF CAUSE: CHIEF VICTOR BUFFALO ET AL v. THE QUEEN ET AL
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 11 - 12, 1998
REASONS FOR JUDGMENT THE CHIEF JUSTICE
OF THE COURT: LÉTOURNEAU J.A.
McDONALD J.A.
DELIVERED BY: THE CHIEF JUSTICE
DATED: May 15, 1998
APPEARANCES:
James O'Reilly for the Appellant
Ed Molstad, Q.C. Samson Indian Band
Marco Poretti
Marvin Storrow, Q.C. for the Respondent
Joni Paulus Ermineskin Indian Band
Alan MacLeod, Q.C. for the Respondent
Clark Hunter Her Majesty the Queen
SOLICITORS OF RECORD:
O'Reilly & Associates
Barristers & Solicitors
Suite 1007, 1155 University Street for the Appellant
Montréal, Québec, H3B 3A7 Samson Indian Band
Blake Cassels & Graydon
Barristers & Solicitors
P.O. Box 49314
Suite 2600 - 595 Burrard Street
Vancouver, British Columbia for the Appellant
V7X 1L3 Ermineskin Indian Band
Mr. George Thomson, Q.C. for the Respondent
Deputy Attorney General of Canada Her Majesty the Queen
FEDERAL COURT OF APPEAL
Date: 19980515
Docket: A-893-97
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION
Appellants
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario
Respondents
(Defendants)
| CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation |
|
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA, the Minister of Indian Affairs and Northern Development and the Minister of Finance |
|
A-895-97
(T-1254-92)
BETWEEN:
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, the Minister of Indian Affairs and Northern Development and the Minister of Finance
Respondents
A-70-98
(T-1254-92)
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Respondents
(Defendants)
AND BETWEEN:
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Appellants
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Respondents
(Defendants)
A-71-98
(T-2022-89)
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION
Appellants
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, Parliament Buildings, Ottawa, Ontario and THE MINISTER OF FINANCE, Parliament Buildings, Ottawa, Ontario
Respondents
(Defendants)
AND BETWEEN:
| |
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation |
| |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, and the Minister of Indian Affairs and Northern Development and the Minister of Finance |
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