Date: 20070917
Docket: A-131-07
Citation: 2007 FCA 288
CORAM: LÉTOURNEAU J.A.
SHARLOW
J.A.
TRUDEL J.A.
BETWEEN:
CHIPPEWAS OF RAMA MNJIKANING
FIRST NATION BAND COUNCIL
Appellant
and
JAMES COTTRELL
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This
is an appeal from the Order of Justice Phelan of the Federal Court, which
granted Mr. Cottrell’s motion to extend the time to commence a judicial review
application against the Band Council.
[2]
The Notice of Motion is dated February 20, 2007, some 80 plus days
after the expiry of the statutory deadline for commencing judicial review of
the impugned Band’s decision.
[3]
Mr. Cottrell is a status Indian who resided in a rental property
on the Band's reserve. His home is a single-family house leased to him, which
he is entitled to own after 15 years of rental payments.
[4]
Mr.
Cottrell and the Band Council entered into a lease effective April 1, 1994. In
section 12, the lease provides the Band with a discretionary right of
termination under certain circumstances, amongst which the incapacity of the
tenant to live independently.
[5]
A simple calculation shows that he was in his 12th year of rental
when evicted on November 1, 2006 without prior notice, although family members
had allegedly been consulted. Since 2005, Mr. Cottrell has suffered from a
severe and rare neurological condition (Chronic Inflammatory Demyelinating
Polyneuropathy) which presents itself as progressive weakness in his arms and
legs.
[6]
Following a 911 call for assistance to recharge his wheelchair and
get back into it, Mr. Cottrell was taken to the hospital against his wishes.
It was at the hospital that Ms. Sawyer, the Band Health Officer, served Mr.
Cottrell with the notice of eviction and told him that he had effectively been
evicted.
[7]
Mr.
Cottrell immediately advised Ms. Sawyer that he intended to seek legal
assistance to contest the eviction.
[8]
Mr.
Cottrell retained counsel at the Community Legal Clinic. What ensued was a
series of communications between lawyers, communications between his counsel
and a clinical psychologist, gathering of documentation, but no legal action.
[9]
As
stated previously, Justice Phelan granted the motion. He was of the opinion
that there was a continuing intention by the applicant to pursue his
application and that there was an arguable case.
[10]
As
well, Justice Phelan agreed with the Band that some specific members might
suffer some prejudice or inconvenience by virtue of this pending judicial
review, as there is a waiting list for housing on the reserve. However, Justice
Phelan stated that this prejudice was premised on the basis that the Band was
entitled to evict Mr. Cottrell and that, in balancing prejudice, the loss of
any opportunity to challenge the Band’s eviction in the Federal Court outweighs
the temporary nature of the Band’s prejudice, “if any”.
[11]
Finally,
Justice Phelan was of the opinion that the applicant had a reasonable explanation
for the delay: the applicant was undergoing a capacity assessment, which would
have made it imprudent for counsel to proceed until Mr. Cottrell’s mental
capacity issue was settled in a final manner.
[12]
It
is most infrequent that this Court will interfere with the discretion exercised
by a motions judge on an application to extend time: Jakutavicious v. Canada (Attorney
General)
2004 FCA 289. In such an application, there are certain factors to be
considered, but the underlying consideration is whether, in the circumstances
at bar, to do justice between the parties calls for the grant or the denial of
the extension: Grewal v. Minister of Employment and Immigration, [1985]
2 F.C. 263 (FCA).
[13]
This
Court may substitute its discretion for that of the Motions Judge if he or she
gave insufficient weight to all the relevant considerations. In addition, the
Court may intervene if the Motions Judge’s conclusion was predicated upon an
incorrect determination with respect to a question of law, or a palpable and
overriding error of fact: Chinese Business Chamber of Canada v. Canada,
2006 FCA 178 at paragraph 4.
[14]
I
am of the opinion that this Court should not interfere with Justice Phelan’s
discretionary decision.
[15]
Given
the record, it was open to Justice Phelan to find (a) that the applicant had a
continuing intention to pursue the application, (b) that there was a reasonable
explanation for the delay and (c) that Mr. Cottrell’s case is arguable meaning
that it has a reasonable chance of success: Leblanc v. National Bank of
Canada,
[1994] 1 F.C. 81; APV Canada Inc. v. Canada (M.N.R.), 2001 FCT
737.
[16]
The
Band’s position that this matter is outside the jurisdiction of the Federal
Court because it involves the private law right of the First Nation to
terminate a lease is an arguable case in view of the facts of this case. The
eviction is made under section 12 of the Lease, which refers to Mr. Cottrell’s
mental and physical capacity to live on his own and the discretion of the First
Nation to relocate him. Whether, in the circumstances of this case, that
clause takes the matter out of the realm of private law is an arguable issue,
given Gamblin v. Norway House Cree Nation (Band Council), 2002 FCA 385
and Obichon
v. Heart Lake First
Nation No. 176, [1988] F.C.J. No. 307.
[17]
Therefore,
I find that the Band failed to demonstrate errors on the part of Justice Phelan
requiring this Court’s intervention.
[18]
I
propose to dismiss the appeal with costs.
“Johanne Trudel”
“I
agree
Gilles Létourneau J.A.”
“I
agree
K. Sharlow J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-131-07
APPEAL FROM
AN ORDER OF JUSTICE PHELAN DATED MARCH 8, 2007
STYLE OF CAUSE: CHIPPEWAS OF RAMA
MNJIKANING
FIRST NATION BAND COUNCIL v. JAMES COTTRELL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2007
REASONS FOR JUDGMENT BY: TRUDEL J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
SHARLOW J.A.
DATED: September 17, 2007
APPEARANCES:
|
M. Philip Tunley
Brendan Van Niejenhuis
|
FOR THE APPELLANT
|
|
Chris
Paliare
Amanda Dodge
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Stockwoods LLP
Toronto, Ontario
|
FOR THE APPELLANT
|
|
Palaire,
Roland, Rosenberg, Rothstein LLP
Toronto, Ontario
|
FOR THE RESPONDENT
|
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