Date: 20071015
Docket: T-66-86
Citation: 2007 FC 1054
Edmonton, Alberta, October 15, 2007.
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
-
and -
HER
MAJESTY THE QUEEN
Defendant
-
and -
CONGRESS
OF ABORIGINAL PEOPLES,
NATIVE
COUNCIL OF CANADA (ALBERTA),
NON-STATUS
INDIAN ASSOCIATION OF ALBERTA
and
NATIVE WOMEN’S ASSOCIATION OF CANADA
Interveners
Docket:
T-66-86-B
BETWEEN:
TSUU
T’INA FIRST NATION
Plaintiff
-
and -
HER
MAJESTY THE QUEEN
Defendant
-
and -
CONGRESS
OF ABORIGINAL PEOPLES,
NATIVE
COUNCIL OF CANADA (ALBERTA),
NON-STATUS
INDIAN ASSOCIATION OF ALBERTA
and
NATIVE WOMEN’S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
THE MOTION
[1]
The
Plaintiffs have brought a motion in writing pursuant to Rules 369 and 394 of
the Federal Courts Rules, 1998.
[2]
The
Purpose of the motion is to have the Court settle the terms of, and pronounce
judgment for, the Court’s oral rulings of September 11, 2007.
[3]
The Plaintiffs
say this is necessary because they require a formal judgment in order to appeal
the Court’s September 11, 2007 ruling and “related Orders” to the Federal Court
of Appeal.
[4]
On October
3, 2007 the Court directed that the motion be heard in open Court in Edmonton on October 15, 2007.
THE POSITION OF THE PARTICIPANTS
The Plaintiffs
[5]
In their
notice of motion the Plaintiffs say they “wish to appeal this Court’s ruling of
September 11, 2007, and related orders to the Federal Court of Appeal and
require a formal judgment for this purpose.”
[6]
In their
written representations the Plaintiffs refer to Rules 393 and 394 but there is
inadequate explanation as to how these rules might apply to the present
situation, or why they require that the Court now issue a formal judgment on a
draft order for a motion that the Court has not directed.
[7]
In their Reply
To Interveners at paragraph 7, in referring to the Horii case, the
Plaintiffs say that a formal judgment is necessary because “the Plaintiffs are
attempting to appeal this Court’s decision of September 11, 2007.”
[8]
In their provisional
notice of appeal dated September 18, 2007 (produced by the Interveners and not
the Plaintiffs) it would appear that the Plaintiffs seek to appeal the Court’s rulings
of September 11, 2007 “as well as the preceding and related Reasons for Order
and Order… dated June 19, 2007, and Consequential Reasons for Order and Order
of August 9, 2007 by which inter alia the Appellants’ motion for a mistrial
was dismissed … .”
The Crown
[9]
The Crown takes
no position on whether the Court ought to issue a formal order and leaves it to
the discretion of the Court. However, the Crown does not feel that Rule 394 is
applicable because the Court did not direct one of the parties to prepare a
draft order for endorsement.
[10]
In
addition, the Crown points out that if the Court does issue a formal order, the
draft order submitted by the Plaintiffs needs a few adjustments to better
reflect my oral reasons of September 11, 2007.
The Interveners
[11]
Generally
speaking, the Interveners are in agreement with the position taken by the
Crown, but also raise the following points of concern:
1.
The
Plaintiffs’ motion is moot because they already have what they need to make an
appeal in the form of detailed reasons, and the Plaintiffs have not explained
or established the need for a formal judgment;
2.
Because
the Plaintiffs allege a reasonable apprehension of bias as a ground of appeal,
it is not appropriate for the trial judge to act on matters that are
encompassed by the reasonable apprehension of bias allegations;
3.
The Court
should not now deal with judgment and reasons because a Notice of Appeal has already
been filed;
4.
The Court
should not settle the terms of an order in a manner that may affect a matter that
will be put before the Court of Appeal, namely, the question of whether the
Plaintiffs are out of time to appeal the Court’s June 19 and August 9, 2007
orders.
The Plaintiffs’ Reply
[12]
In their
reply, the Plaintiffs submit, inter alia, that “the Court ought not to
continue to hear and determine matters in these proceedings pending the
determination of the proceedings before the Federal Court of Appeal, with the
exception of the simple task of settling the terms of this Court’s oral
judgment of September 11, 2007.”
REASONS
[13] When this motion came before the Court on October
15, 2007 in Edmonton the Plaintiffs informed the Court that the Federal Court
of Appeal had dismissed their motion for an extension of time to file a notice
of appeal from my judgments of June 19, 2007 and August 9, 2007 and had further
directed that the Plaintiffs’ notice of appeal not be accepted for filing, thus
rendering the present motion moot. As a consequence, the Court heard no
further argument.
ORDER
THIS COURT ORDERS THAT:
1.
The Plaintiffs’
motion is dismissed for mootness.
2.
The costs
of this motion will be dealt with at the same time as the motion that the Court
will hear concerning costs in accordance with the Court’s orders of June 19,
2007 and August 9, 2007, failing which the costs of this motion will be in the
cause.
“James Russell”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86-A
STYLE OF CAUSE: SAWRIDGE
BAND v.
HER
MAJESTY THE QUEEN ET AL
T-66-86-B
TSUU T’INA FIRST NATION (formerly the Sarcee Indian Band) v.
HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: Edmonton,
Alberta
DATE OF HEARING: Motions submitted in writing
REASONS FOR ORDER: RUSSELL
J.
DATED: October 15, 2007
APPEARANCES:
Edward
H. Molstad, Q.C. FOR PLAINTIFFS
Nathan
Whitling
David
Sharko
Marco
Poretti
Catherine
Twinn
Wayne
M. Schafer FOR
DEFENDANT
E.
James Kindrake
Kathleen
Kohlman
Janet
Hutchison FOR
INTERVENER
CONGRESS
OF ABORIGINAL
PEOPLES
Derek A. Cranna FOR
INTERVENER
Jeremy
Taylor NATIVE
COUNCIL OF
P.
Jon Faulds CANADA (ALBERTA)
Mary Eberts
Kasari Govender FOR
INTERVENER
NATIVE
WOMEN’S
ASSOCIATION
OF CANADA
Laura
Snowball
Michael
Donaldson FOR
INTERVENER NON- STATUS INDIAN
ASSOCIATION OF ALBERTA
SOLICITORS OF RECORD:
Parlee
McLaws LLP FOR PLAINTIFFS
Edmonton, Alberta
Twinn
Law Office
Slave
Lake, Alberta FOR
PLAINTIFFS
John
Sims, Q.C. FOR DEFENDANT
Deputy
Attorney General of Canada
Chamberlain
Hutchison FOR INTERVENER,
Edmonton, Alberta CONGRESS OF ABORIGINAL
PEOPLES
Field
LLP FOR INTERVENER,
Edmonton, Alberta
NATIVE COUNCIL
OF
CANADA (ALBERTA)
Law
Office of Mary Eberts FOR
INTERVENER,
Toronto, Ontario NATIVE
WOMEN’S
ASSOCIATION
OF
CANADA
Burnet
Duckworth & Palmer LLP FOR
INTERVENER,
Calgary, Alberta
NON-STATUS INDIAN
ASSOCIATION
OF ALBERTA
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