Ermineskin Cree Nation v. Minde, 2007 FCA 146

Date: 20070411

Docket: A-45-07

Citation: 2007 FCA 146

Present:          PELLETIER J.A.

BETWEEN:

ERMINESKIN CREE NATION and ERMINESKIN TRIBAL COUNCIL

Appellants

and

GEORGE LESLIE MINDE

Respondent

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on April 11, 2007.

REASONS FOR ORDER BY:                                                                                  PELLETIER J.A.

Date: 20070411

Docket: A-45-07

Citation: 2007 FCA 146

Present:          PELLETIER J.A.

BETWEEN:

ERMINESKIN CREE NATION and ERMINESKIN TRIBAL COUNCIL

Appellants

and

GEORGE LESLIE MINDE

Respondent

REASONS FOR ORDER

PELLETIER J.A.

[1]               This is an application for a stay of the order of Mr. Justice Lemieux of the Federal Court dated December 20, 2006, in which he quashed the Tribal Council resolution in which it was declared that the respondent George Leslie Minde had vacated his position as Chief of the Ermineskin Cree Nation.

[2]               While the proceedings which led to Mr. Justice Lemieux's order were pending in Federal Court, other proceedings were launched in the Court of Queen's Bench of Alberta in which the Ermineskin Tribal Council sought to recover certain amounts which the respondent allegedly spent without authority. In the course of those proceedings, Mr. Justice R. Paul Belzil granted an interlocutory injunction prohibiting the respondent from entering the Ermineskin Cree Nation Band offices and from conducting any financial transactions on behalf of the Ermineskin Cree Nation or the Ermineskin Tribal Council.

[3]               Both parties have cited the leading case on interlocutory injunctions, namely RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The factors to be considered are a serious issue to be tried, irreparable harm, and the balance of convenience. I am satisfied that there is a serious issue to be tried. The appellants' argument as to irreparable harm is based upon the allegations of financial irregularities which they have made against the respondent. One of those allegations, the Al Wright transaction, underlies the respondent's removal from office. Another involves allegations of unauthorized withdrawals from the Social Service Department account. Both of these are the subject of proceedings in the Court of Queen's Bench for Alberta.

[4]               In my view, neither of these would support a conclusion of irreparable harm in the event that the stay is not granted. The third allegation is more substantial. The appellants applied to the Alberta Court of Queen's Bench for an injunction restraining the respondent from entering the Band office. The respondent obtained an adjournment of that application upon giving the Court an undertaking to stay away from the Band office pending the disposition of the injunction application. The respondent breached his undertaking, entered the Band office and arranged for the payment to Band members of approximately $1.8 million, an expenditure which was not authorized and for which no budget existed. There were serious financial repercussions for Band operations.  Largely on the strength of this incident, Mr. Justice Belzil decided that the appellants would suffer irreparable harm if an injunction was not granted. I am of the same view with respect to the motion for a stay of execution which is before me.

[5]               To the extent that the past is an indication of the future, I am satisfied that there is a sufficient possibility of financial mismanagement on such a scale as to constitute irreparable harm.

[6]               As for the balance of convenience, I conclude that it favours the granting of a stay, notwithstanding the fact that it will involve yet another change in control of the Ermineskin First Nation's affairs. The Court of Queen's Bench for Alberta continues to exercise a degree of supervision of the respondent so that the change will be less than it would otherwise have been.

[7]               Therefore, there will be an order staying the execution of the order of Mr. Justice Lemieux of the Federal Court dated December 20, 2006, until such time as the appeal of that order is heard and decided. If the appellants do not prosecute their appeal with diligence, the respondent will be given leave to move for the dissolution of the stay of execution.

"J.D. Denis Pelletier"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-45-07

STYLE OF CAUSE:                                                              ERMINESKIN CREE NATION and ERMINESKIN TRIBAL COUNCIL and GEORGE LESLIE MINDE

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                             PELLETIER J.A.

DATED:                                                                                 April 11, 2007

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: