Gamblin v. Norway House Cree Nation Band Council, 2002 FCA 385

Date: 20021010

Docket: A-23-01

Neutral citation: 2002 FCA 385

CORAM:        ROTHSTEIN J.A.

NOËL J.A.

SEXTON J.A.

BETWEEN:

                          TRON GREGORY GAMBLIN and ANGELA FAYE MONIAS

                                                                                                                                                     Appellants

                                                                                 and

                                  NORWAY HOUSE CREE NATION BAND COUNCIL

                                                                                                                                                   Respondent

                                       Heard at Winnipeg, Manitoba, on October 10, 2002

                 Judgment delivered from the Bench at Winnipeg, Manitoba, on October 10, 2002.

REASONS FOR JUDGMENT BY:                                                                                     SEXTON J.A.

Date: 20021010

Docket: A-23-01

Neutral citation: 2002 FCA 385

CORAM:        ROTHSTEIN J.A.

NOËL J.A.

SEXTON J.A.

BETWEEN:

                          TRON GREGORY GAMBLIN and ANGELA FAYE MONIAS

                                                                                                                                                     Appellants

                                                                                 and

                                  NORWAY HOUSE CREE NATION BAND COUNCIL

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

SEXTON J.A.

[1]                 The appellants appeal against the Order of the Trial Division which dismissed an application for an Order to quash a decision of the Respondent Band Council to evict the Appellants from a trailer allocated to them by the Band Council in which they were living on Norway House Indian Reserve.

[2]                 The Trial Judge held that the decision of the Band Council to evict the Appellants was reasonable in light of the Appellant Gamblin's breach of the condition of his tenancy agreement with the Band which prohibited the use and trafficking of illegal drugs in the dwelling.

[3]                 The Trial Judge held that the Band Council did not hold the property on the reserve in trust but rather the property was held directly by the Band.

[4]                 The Appellant argued before us that:

firstly the Trial Judge was wrong in declining to find a trust;

secondly the Trial Judge was wrong in finding there was breach of any tenancy agreement, and

thirdly the Trial Judge erred in concluding there was no duty of fairness owed by the Band Council to the Appellants in the sense of providing them with a hearing before being evicted.

[5]                 It is our view that whether or not the Band Council held the property outright or in trust does not affect the right of the Band Council to make agreements with respect to tenancy and to enforce their terms.

[6]                 There was evidence upon which the Trial Judge could conclude there was a tenancy agreement between the Band Council and Gamblin and that a term of this agreement was that Gamblin would not use or traffic in illegal drugs on the premises.

[7]                 There was also evidence which would allow him to conclude that Gamblin had breached this condition.

[8]                 As to the duty of fairness, we have not been referred to any authority which holds that there is an obligation on the Band Council to provide a hearing concerning the enforcement of the terms of tenancy agreements into which it enters.

[9]                 The appeal will therefore be dismissed with costs fixed at $5000 inclusive of disbursements.

                                                                                                                                          "J. Edgar Sexton"             

                                                                                                                                                                  J.A.

                                                    FEDERAL COURT OF CANADA

                                                                 APPEAL DIVISION

                      NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

An appeal from a decision dated December 18, 2000 in Docket T-640-99 of the Trial Division.

DOCKET:                                A-23-01

STYLE OF CAUSE:    Tron Gregory Gamblin and Angela Faye Monias v. Norway House Cree Nation Band Council

PLACE OF HEARING:      Winnipeg, Manitoba

DATE OF HEARING:October 10, 2002

                          REASONS FOR JUDGMENT OF

                   THE HONOURABLE MR. JUSTICE SEXTON

                         DATED OCTOBER 10, 2002

APPEARANCES:

Mr. Michael Paluk                                               for the Appellants

Mr. Norman Boudreau                                             for the Respondent

SOLICITORS OF RECORD:

Aboriginal Centre Law Office

409 - 181 Higgins Avenue

Winnipeg, Manitoba    R3B 3G1                                   for the Appellants

Booth Dennehy

387 Broadway

Winnipeg, Manitoba    R3C 0V5                                   for the Respondent