Sioux Valley Dakota First Nation v. Henderson, 2007 FCA 232

Date: 20070612

Docket: A-365-06

Citation: 2007 FCA 232

 

CORAM:       DÉCARY J.A.

                        SEXTON J.A.

                        PELLETIER J.A.

 

BETWEEN:

SIOUX VALLEY DAKOTA NATION CHIEF AND COUNCIL, and

SIOUX VALLEY DAKOTA NATION,

 

Appellants,

 

and

 

MATTHEW HENDERSON and JOSEPH ANTOINE,

Respondents.

 

 

 

Heard at Calgary, Alberta, on June 12, 2007.

Judgment delivered from the Bench at Calgary, Alberta, on June 12, 2007.

 

REASONS FOR JUDGMENT OF THE  COURT BY:           PELLETIER J.A.

 

 

Date: 20070612

Docket: A-365-06

Citation: 2007 FCA

 

CORAM:       DÉCARY J.A.

                        SEXTON J.A.

                        PELLETIER J.A.

 

BETWEEN:

SIOUX VALLEY DAKOTA NATION CHIEF AND COUNCIL, and

SIOUX VALLEY DAKOTA NATION,

 

Appellants,

 

and

 

MATTHEW HENDERSON and JOSEPH ANTOINE,

Respondents.

 

 

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Calgary, Alberta, on June 12, 2007)

 

[1]               This is an appeal from the decision of Teitelbaum J. granting the respondents’ motion for an extension of time to file an application for judicial review of a band election.

 

[2]               The appeal is brought on the ground of denial of natural justice in that the appellants’ material opposing the motion was refused for filing by the registry because it was submitted outside the time provided by the Rules.

 

[3]               Unfortunately for the appellants, respondents’ counsel refused his consent to the late filing of their material.  It was respondents’ counsel’s right to do so.

 

[4]               It cannot be a denial of natural justice for a judge to decide a matter on the basis of the material which is before him.  It is unfortunate that the appellants’ material was not before the judge but the only reason that it was not before him was the appellants’ failure to file their material within the time provided by the Rules.

 

[5]               Counsel urged upon us the reasons for which his own motion for an extension of time would be successful.  With respect, those considerations are not relevant at this point.

 

[6]               Finally, counsel argues that the appearance of justice having been served demands that the appeal be allowed.  In our view, justice will best be served if the respondents’application is dealt with on its merits before it becomes moot.

 

[7]               The time and energy, not to mention the money, required to prosecute this appeal would have been better spent in moving the underlying application to a hearing.

 

[8]               For these reasons, this appeal will be dismissed with costs.

 

 

“J. D. Denis Pelletier”

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-365-06

 

 

STYLE OF CAUSE:                                                              Sioux Valley Dakota Chief And

                                                                                                Sioux Valley Dakota Nation,

                                                                                                                        Appellants,

 

                                                                                                and

 

                                                                                                Matthew Henderson and Joseph Antoine,

                                                                                                                        Respondents.

 

 

PLACE OF HEARING:                                                        Heard via Videoconference

                                                                                                Calgary, Alberta

 

 

DATE OF HEARING:                                                          June 12, 2007

 

 

REASONS FOR JUDGMENT OF THE COURT BY:       DÉCARY J.A.

                                                                                                SEXTON J.A.

                                                                                                PELLETIER J.A.

 

DELIVERED FROM THE BENCH BY:                            Pelletier J.A.

 

 

 

APPEARANCES:

 

Mr. D. A. S. Paterson, Q.C.	FOR THE APPELLANTS
Mr. Lawrence W. Donald	FOR THE RESPONDENTS

 

 

 

 

 

SOLICITORS OF RECORD:

 

Paterson Patterson Wyman & Abel Brandon, Manitoba	FOR THE APPELLANTS
Donald Legal Services Brandon, Manitoba	FOR THE RESPONDENTS