Date: 20120208
Docket: A-280-10
Citation: 2012 FCA 47
CORAM: EVANS J.A.
PELLETIER
J.A.
STRATAS J.A.
BETWEEN:
WALTER PATRICK TWINN, THE COUNCIL OF THE
SAWRIDGE BAND and THE SAWRIDGE BAND
Appellants
and
ELIZABETH
BERNADETTE POITRAS
Respondent
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by THE MINISTER OF INDIAN
AFFAIRS
AND NORTHERN DEVELOPMENT
Respondent
Heard at Ottawa,
Ontario, on February 8,
2012.
Judgment delivered from the Bench at Ottawa, Ontario, on February 8, 2012.
REASONS FOR JUDGMENT OF THE COURT BY: STRATAS
J.A.
Date:
20120208
Docket:
A-280-10
Citation:
2012 FCA 47
CORAM: EVANS
J.A.
PELLETIER J.A.
STRATAS
J.A.
BETWEEN:
WALTER PATRICK TWINN, THE COUNCIL OF THE
SAWRIDGE BAND and THE SAWRIDGE BAND
Appellants
and
ELIZABETH
BERNADETTE POITRAS
Respondent
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by THE MINISTER OF INDIAN
AFFAIRS
AND NORTHERN DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on February 8, 2012)
STRATAS J.A.
[1]
This is an
appeal against the Order dated July 27, 2010 made by a case management judge in
the Federal Court (Justice Hugessen). The case management judge ordered that an
issue central to an action (the “main action”) has become moot.
[2]
The circumstances
giving rise to the Order are as follows.
[3]
Some time
ago, the respondent, Ms. Poitras, started the main action against the appellant
Band, claiming membership in it. The Band defended, in part, on the basis that
it had a right under section 35 of the Constitution Act, 1982 to
determine who was a member of the Band.
[4]
The main
action was stayed pending the outcome of another action that the Federal Court
regarded as being closely related (the “closely related action”). In the
closely related action, the Band was challenging amendments to the Indian
Act, advancing the same argument, namely that it had a right under section
35 of the Constitution Act, 1982 to determine who was a member of the
Band. That action had a long history, including a retrial. In the end result,
the closely related action was dismissed: Sawridge Band v. The Queen,
2008 FC 322, aff’d 2009 FCA 123.
[5]
With the
dismissal of the closely related action, what was to become of the main action
and the issue of Ms. Poitras’ membership in the Band? To determine this, the
Federal Court issued a notice of status review concerning the main action.
[6]
As a
result of the status review, a case management conference in the Federal Court
was held. There, the issue of mootness was discussed, having been raised in the
submissions filed.
[7]
The case
management judge’s Order followed. The case management judge ordered that the
issue of Ms. Poitras’ membership in the Band was moot.
[8]
In this
Court, the appellants appeal that Order.
[9]
The
appellate standard of review applies. The appellants must show that the Order
is vitiated either by legal error or by palpable and overriding error on some
issue of fact or fact-based discretion. In reviewing the exercise of discretion
in this case, it must also be borne in mind that this is an Order made by a
case management judge who had managed the main action and the closely related
action for many years and, as a result, possessed great familiarity with the
factual issues and history of the matters: Sawridge Band v. Canada, 2001
FCA 338 at paragraph 11, [2002] 2 F.C. 346.
[10]
In our
view, the appellants have not shown any reversible error on the part of the
case management judge that would warrant permitting the Band to relitigate the
constitutional issues.
[11]
There can
be circumstances which can prompt the Court to exercise its discretion to allow
relitigation, notwithstanding the doctrines of issue estoppel and abuse of
process: Danyluk v.
Ainsworth Technologies Inc.,
2001 SCC 44, [2001] 2 S.C.R. 460; Toronto
(City) v. C.U.P.E., Local 79,
2003 SCC 63, [2003] 3 S.C.R. 77.
[12]
But there is
nothing in the record of this case showing that the appellants offered to the case
management judge any such circumstances. Indeed, the record shows that the appellants
deliberately decided, for reasons known to them, to close their case in the
closely related action knowing they could have called more evidence and made
further submissions. They knew that a dismissal would result after they closed
their case. See Sawridge Band v. Canada, 2008 FC 322 at paragraphs 10-21
and 60.
[13]
For the
foregoing reasons, we shall dismiss the appeal and direct the parties to return
to the current case management judge to bring the pleadings into line with the
issues that remain in light of this Court’s decision.
"David
Stratas"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-280-10
APPEAL
FROM AN ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN DATED JULY 22, 2010,
DOCKET NO. T-2655-89
STYLE OF CAUSE: Walter Patrick Twinn, The
Council Of The Sawridge Band and The Sawridge Band v. Elizabeth Bernadette
Poitras and Her Majesty the Queen in her Right of Canada as Represented by The
Minister of Indian and Northern Development
PLACE OF HEARING: Ottawa,
Ontario
DATE OF HEARING: February 8, 2012
REASONS FOR JUDGMENT OF THE
COURT BY: Evans, Pelletier and Stratas JJ.A.
DELIVERED FROM THE BENCH BY: Stratas J.A.
APPEARANCES:
|
Philip P. Healey
|
FOR
THE APPELLANT
|
|
Kevin Kimmis
|
FOR
THE RESPONDENT, Her
Majesty the Queen in her Right of Canada
as Represented by The Minister of Indian and Northern Development
|
SOLICITORS OF RECORD:
|
Aird & Berlis LLP
Toronto, Ontario
|
FOR THE APPELLANT
|
|
Terrence P. Glancy
Edmonton, Alberta
|
FOR THE RESPONDENT,
Elizabeth Bernadette
Poitras
|
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT, Her
Majesty the Queen in her Right of Canada
as Represented by The Minister of Indian and Northern Development
|
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