Date: 20000211
Docket: T-1493-99
BETWEEN:
SANDY TERRY MORIN
Plaintiff
- and -
CHIEF CLARK PEACOCK, COUNCILLORS
WILLIAM L. MORIN, ELAINE PAPIN, JEROME
MORIN, RONALD MORIN, LORNE MORIN,
CLARA SIGURDUR, GLEN PEACOCK, and
HOWARD PEACOCK, as representatives of the
ENOCH CREE INDIAN BAND in their capacity
as COUNSELLORS OF THE ENOCH BAND OF THE
STONY PLAIN INDIANS, for and on behalf of THE
INDIANS OF THE ENOCH BAND OF THE STONY
PLAIN INDIAN RESERVE NO. 135; and THE ENOCH
BAND OF THE STONY PLAIN INDIANS RESERVE
NO. 135
Defendants
REASONS FOR JUDGMENT
(Delivered from the Bench, at Edmonton, Alberta on
Monday, February 7th, 2000, as edited)
ARONOVITCH, P.
[1] This is a simplified action wherein the plaintiff, Mr. Morin, pursuant to a statement of claim filed on August 20, 1999, seeks judgment against the defendants for the sum of twenty thousand dollars ($20,000.00) plus accrued interest from October 23, 1998 to the date of judgment.
[2] In the alternative, he seeks an order directing the law firm of Biamonte, Cairo & Shortreed, to pay the sum of $20,000.00 plus accrued interest being held in a trust account for the plaintiff.
[3] The affidavit evidence of Mr. Morin, which is uncontradicted, is to the effect that the defendants, on behalf of the Enoch Cree Nation entered into a contract with him on October 23, 1998, for the transfer of property rights in respect of lands identified in the Certificate of Possession, #125336 in consideration of the payment of $20,000.00. While he effected the transfer of his rights pursuant to the contract, he has not been paid in consideration of the transaction. Instead, the contractual sum was paid to the solicitors of the Enoch Cree Nation who continue to be in possession of the monies owing to the plaintiff under the contract.
[4] The statement of defence is very brief, it states that the defendants, ("the Enoch Band"), has in its possession the sum of $20,000.00 which is the property of either the plaintiff in this action, or fellow Band members who are appellants in Federal Court action T-1458-99.
[5] The facts relating to the latter proceeding (Court file T-1458-99) are not in evidence in this trial but that appeal is a matter of public record. It is an appeal from a decision of the Minister of Indian and Northern Affairs refusing to invalidate a will and redistribute the assets of an individual in favour of his beneficiaries under a second will. The testator"s assets may include the property at issue in the case at bar.
[6] The defendants" position is that the Enoch Band cannot pay the money to either party without paying the wrong party and as a result, must await the Order of the Court as to which party in the above-mentioned proceedings should receive the monies. The Enoch Band feels it must remain neutral in a dispute between competing Band members and accordingly, chooses not to make further representations in this action.
[7] Counsel for the defendants attended at the trial and while not making representations, he confirmed that the funds at issue were being held in trust, in an interest bearing account, by the Band"s above-named solicitors. The Band also requested that it not be assessed costs as it finds itself in a difficult position essentially through no fault of its own.
[8] As a preliminary matter, the plaintiff"s Memorandum of Fact and Law submitted February 4, 2000 seeks not only judgment but a number of heads of declaratory relief including declarations that the various Certificates of Possession, at issue, are the lawful property of the plaintiff.
[9] At the opening of the trial, counsel for the plaintiff was asked whether he wished, on behalf of the plaintiff, to amend the statement of claim to add the claims for declaratory relief. He advised that he had consulted with counsel for the Crown on this matter and wished to confirm that the plaintiff did not wish to amend his statement of claim and continued to assert only a claim for judgment on the contract, in accordance with his pleadings. Accordingly, counsel for the plaintiff was precluded from and did not make the submissions that had been included in the Statement of Fact and Law regarding the validity of the wills at issue in the appeal or the competing claims of Band members thereunder.
[10] The defendants were advised and acknowledged that, notwithstanding the manner in which the defence was cast, the Court in this action was seized exclusively with the plaintiff"s claim for judgment and the determination of the rights of the parties in this action pursuant to their contract and would not, in this proceeding, determine any rights as between Band members relating to the estate. Counsel for the Crown in attendance as an observer, noted the clarification.
[11] At issue in this proceeding is a contract, a quit claim deed entered into between Mr. Morin and the Enoch Cree Nation on October 23, 1998 and the transfer of property rights made to give effect to the contract.
[12] Sandy Morin was in possession of the Certificate of Possession No. 125336 dated June 19, 1998. It is stated to have been issued pursuant to section 20 of the Indian Act1 in respect of property described as follows:
| The Whole of section 16, Township 52, Range 26 |
| West of the Fourth Meridian Southeast 1/4 |
| Stoney Plain Indian Reserve No. 135 |
[13] On September 11, 1998, Mr. Morin executed a document entitled "Transfer of Land in an Indian Reserve" by which he transferred all of his interest in certain property to the Enoch Cree Nation #440 in consideration of the payment of $20,000.00 the receipt of which sum was acknowledged in the transfer document. The property in which Mr. Morin transferred his rights is described as follows:
| Lot 157 within the Southeast 1/4 of Section 16, Township 52, Range 26 West of the 4th meridian as shown on Plan RSA 2722. |
[14] Plan RSA 2722 shows two lots namely; Lots 156 and 157 which together comprise the whole of the property described as section 16 in the above-noted Certificate of Possession.
[15] On October 23, 1998, Mr. Morin as Grantor, and the Enoch Cree Nation as Grantee, entered into an agreement wherein Mr. Morin transferred all of his rights in Lot 157 to the Grantee thereby granting, releasing, and quit claiming of all his rights, claims and title in the parcel of land to the Enoch Cree Nation in consideration of the payment of $20,000.00 . The receipt of the sum is again acknowledged in the document. There is an attached affidavit of execution dated the same 23rd day of October 1998.
[16] The monies were in fact not paid directly to Mr. Morin but placed in trust with the Band"s solicitors who continue to hold the funds. The facts surrounding that transaction are not in evidence but, the defendants have confirmed that the sum of $20,000.00 was being held by their solicitors in an interest bearing account.
[17] The contract is a straightforward quit claim deed, a simple conveyance of all claims and interest in property without more, duly witnessed and executed by the parties. The validity of the contact is not disputed by the defendants and they are bound by its terms.
[18] Mr. Morin has kept his part of the bargain. He ceded and transferred his rights in the property and executed the quit claim deed. Thereafter, he received a new Certificate of Possession No. 127321 on November 20th, 1998 for the remaining Lot 156, net of the parcel in which he had conveyed his rights to the Enoch Cree Nation. In turn, the defendants" obligation under the contract, was to make payment, of a fixed sum, to Mr. Morin upon execution. It failed to do so. Accordingly, I find that Mr. Morin is entitled to receive payment under the contract and will give judgment in favour of the plaintiff in the amount of $20,000 plus interest accrued on that sum from October 23, 1998.
[19] This merely places the defendants in the position they would have been in had they made the payment directly to Mr. Morin, upon execution, as required by the terms of the deed. Having said that, the Enoch Band has done what it could not to incur unnecessary expenses in this proceeding and the costs of the action payable by the defendants will accordingly be fixed at $600.00.
"Roza Aronovitch"
Prothonotary
OTTAWA, ONTARIO
February 11, 2000.
__________________
1 R.S., c. I-6.
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