Date: 20001019
Docket: T-794-99
BETWEEN :
ERMINESKIN BAND
Applicant
- and -
AGNES FRAYNN
Respondent
REASONS FOR ORDER
DUBÉ J. :
[1] The applicant ("the Band") seeks an order for a stay of execution of the Award of Adjudicator Andrew C.L. Sims issued April 9, 1999, and the order of Adjudicator Sims issued on July 30, 1999, until such time as the Federal Court renders a decision in the Band's judicial review application.
[2] The Bank seeks the stay on the grounds that the judicial review application scheduled to be heard before the Federal Court on October 26, 2000, was rescheduled to be heard on April 30, 2001, because of the illness of the Presiding Judge.
[3] The respondent ("Mrs. Fraynn") objects to the stay on the grounds that she had to accept the rescheduling ordered by the Court but was no longer willing to postpone the enforcement of the judgment. She therefore provided notice to the Band that enforcement proceedings will be commenced in view of the Band's failure to negotiate a settlement of the judgment over a six month period.
[4] Consequently, on September 22, 2000, counsel for Mrs. Fraynn wrote to counsel for the Band as follows:
| We refer to your letter of March 6, 2000, to our office confirming that we had agreed to take no further steps in execution proceedings against the Band without first providing your office with reasonable prior notice. In view of your clients' recent attempts to settle this matter directly with Mrs. Fraynn and in view of their objection to Mrs. Fraynn having her legal counsel present at any settlement negotiations, please be advised that we intend to commence execution proceedings as against the Ermineskin Band. We will accept payment in full of the Order of Adjudicator Sims and the taxed Bill of Costs plus interest in the amount of $48,786.90. |
| If we do not receive payment in full as outlined above or receive notice of an application for a stay within ten days, we will commence the execution proceedings without further notice to your office. |
[5] It is trite law that a stay of proceedings is governed by the same principles as an interlocutory injunction as they are remedies of the same nature. Those principles consist of three tests: first, assessment of the merits of the case; second, assessment of whether irreparable harm will be suffered; and third, assessment of the balance of convenience1. The Band has not dealt with any of these criteria. The mere fact that a hearing had to be rescheduled by the Court does not constitute a ground for a stay.
[6] Consequently, this application is dismissed with costs.
OTTAWA, Ontario
October 19, 2000
Judge
__________________
1 See Manitoba v. Metropolitan Stores , [1987] 1 S.C.R. 110.
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