Conseil de Bande de Abénakis de Wôlinak v. Bernard, docket T-907-98

     Date: 19990302

     Docket: T-907-98

MONTRÉAL, QUEBEC, MARCH 2, 1999

BEFORE:      RICHARD MORNEAU, PROTHONOTARY

Between:

     THE BAND COUNCIL OF THE ABENAKIS OF WÔLINAK

     Plaintiff,

     AND

     JULES BERNARD

     and

     THE REGISTRAR OF THE RESERVE LAND REGISTER

     and

     THE HONOURABLE JANE STEWART

     Defendants.

     REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, PROTHONOTARY

[1]      The defendant, in opposition to this motion by the plaintiff, relies on the fact that as a result of certain circumstances the plaintiff allegedly has no interest or status to bring an action at law against him. This allegation, if it is to be made, must necessarily go back in time and be made against the institution of the proceedings which resulted in an order by this Court in the plaintiff's favour dated November 16, 1998.

[2]      Although the order of November 16, 1998 was appealed, it is not at present subject to any stay of execution order.

[3]      The motion at bar by the plaintiff pursuant to Rule 427(2) of the Federal Court Rules (1998) ("the Rules") must be taken to be a permissible proceeding as the order of November 16, 1998 is still executory in nature.

[4]      Further, I am persuaded that the intention behind s. 20(1) and (4) of the Indian Act, R.S.C. 1985, c. I-5, as amended, still gives the plaintiff all the necessary interest in acting for purposes of the motion at bar. I am further persuaded that the defendant Jules Bernard received sufficient notice within the meaning of s. 427(2) of the Rules for him to be able to seek the remedy to which he may be entitled in this Court.

[5]      Accordingly, the Court must find that:

-      the defendant Jules Bernard, as the person in possession of the house located at 4755, rue Sôlinak and lot No. 582-25 in the Indian reserve of Wôlinak where the said house was built, received sufficient notice within the meaning of s. 427(2) of the Rules to be able to seek the remedy to which he may be entitled in this Court; and

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-      the plaintiff shall be entitled to have a writ of possession issued in respect of the house located at 4755 rue Sôlinak and lot No. 582-25 in the Indian reserve of Wôlinak where the said house was built.

[6]      Costs to follow.

Richard Morneau Prothonotary

Certified true translation

Bernard Olivier, LL. B.

FEDERAL COURT OF CANADA      Court No T-907-98 BETWEEN      THE BAND COUNCIL OF THE ABENAKIS OF WÔLINAK      Plaintiff,      AND JULES BERNARD and THE REGISTRAR OF THE RESERVE LAND REGISTER and THE HONOURABLE JANE STEWART      Defendants.      REASONS FOR ORDER AND ORDER

     FEDERAL COURT OF CANADA

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE No.:      T-907-98

STYLE OF CAUSE:      THE BAND COUNCIL OF THE ABENAKIS OF WÔLINAK

     Plaintiff,

             AND

             JULES BERNARD

             and

THE REGISTRAR OF THE RESERVE LAND REGISTER

             and

             THE HONOURABLE JANE STEWART

     Defendants.

PLACE OF HEARING:      Montréal, Quebec

DATE OF HEARING:      March 1, 1999

REASONS FOR ORDER BY:      RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS FOR ORDER:      March 2, 1999

APPEARANCES:

David Schulze          for the plaintiff

Jean-François Lavallée      for the defendant Jules Bernard

SOLICITORS OF RECORD:

Hutchins, Soroka & Dionne      for the plaintiff

David Schulze

Montréal, Quebec

Legris, Michaud, Lacoursière      for the defendant Jules Bernard

Jean-François Lavallée

Trois-Rivières, Quebec

Morris Rosenberg      for the defendants the Registrar of the Reserve Land

Deputy Attorney General of Canada      Register and the Honourable Jane Stewart