Celeste strikes with a gun v. Canada (Minister of Indian Affairs and Northern Development), 2003 FCA 318

Date: 20030808

Docket: A-524-02

A-615-02

Citation: 2003 FCA 318

Present:           SHARLOW J.A.

BETWEEN:

                                                   CELESTE STRIKES WITH A GUN

                                                                                                                                                       Appellant

                                                                                 and

                MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,

                              PEIGAN INDIAN BAND COUNCIL, AND ALLAN PARD

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

SHARLOW J.A.

[1]                 I have before me a motion by the Appellant to fix the contents of the appeal book in A-615-02, and a written request by the Attorney General of Canada for directions. These matters require a review of a rather complex file history.

[2]                 The Appellant, a member of the Peigan Indian Band, applied for judicial review of the decision of the Peigan Indian Band Council to submit a certain question to a vote by the band members (T-1183-02). The question was whether to ratify a proposed settlement agreement between the Band, the Government of Canada, and the Province of Alberta. On May 15, 2003, S. Noël J. dismissed the application for delay following a status review. The respondents in T-1183-02 were the Peigan Indian Band Council and Allan Pard (the "Peigan Respondents"), and the Minister of Indian Affairs and Northern Development.

[3]                 On April 14, 2003, Lemieux J. also dismissed, without costs, the Appellant's application for judicial review of the decision of the Minister to enter into the settlement agreement: 2003 FCT 431 (T-2087-01). Lemieux J. held that the matter was moot because the vote was held but the agreement was not ratified. That decision is under appeal.

[4]                 The procedural problems in this case relate to two interlocutory appeals arising from orders of Blanchard J. in T-1183-02, relating to the Appellant's motion for an interlocutory injunction to suspend the conduct of the vote. On September 13, 2002, Blanchard J. dismissed the motion for an interlocutory injunction and granted costs to the Minister. I will refer to this as the "First Order". The First Order says nothing about costs for the other respondents. On October 25, 2002, Blanchard J. dealt with a motion by Peigan Respondents to amend the First Order to grant costs to them. He granted the motion on the basis that his previous order was based on the incorrect assumption that the Peigan Respondents had not requested costs. I will refer to this as the "Second Order".

[5]                 On September 22, 2003, the Appellant appealed the First Order (A-524-02), challenging the award of costs to the Minister. All respondents have filed a notice of appearance in A-524-02. On November 4, 2002, the Appellant filed a notice of appeal of the Second Order (A-615-02). The notice of appeal is somewhat ambiguous, but it appears to be an appeal from the order granting costs to the Peigan Respondents. Peigan Respondents filed a notice of appearance in A-615-02, but the Attorney General of Canada has not.

[6]                 Notices of status review were issued in both A-524-02 and A-615-02. On July 7, 2003, Décary J.A. made an order permitting A-615-02 to continue subject to the Appellant filing a motion to fix the contents of the appeal book within ten days (July 17, 2003). On July 17,_2003, Rothstein J.A. made an order permitting A-524-02 to continue subject to the Appellant filing a motion to fix the contents of the appeal book on or before August 22, 2003.

[7]                 The motion to fix the contents of the appeal book in A-615-02 was filed made by the Appellant on July 17, 2003. She wishes to include in the appeal book:

(a)        documentation showing that the Peigan Respondents retained Kenneth R. McLeod, of the law firm Walsh Wilkins Creighton LLP, to represent their colleague, Brian Jackson, in the legal proceeding in the Provincial Court of Alberta;

(b)        documentation showing the legal fees and disbursements for Kenneth R. McLeod for representing Brian Jackson;

(c)        documentation showing the source of payment for representing Brian Jackson;

(d)        the Appellant's letter to Peter Hutchins dated May 8, 2003 and his written reply (apparently Mr. Hutchins is also a lawyer, although it is not clear whether he is a member of the same firm as Mr. McLeod);

(e)        documentation to show the relationship between the law firm of Walsh Wilkins Creighton LLP, the Long Time Trail Historical Society (said to be a corporation created by Allan Pard), and Allan Pard.

[8]                 The Appellant argues that these documents are relevant to the question of whether or not the Peigan Respondents should be entitled to the costs award in the Second Order because, in her view, they disclose that those parties have used band funds for personal matters.

[9]                 The Peigan Respondents have responded to the motion to fix the contents of the appeal book. They object to the inclusion of the documents described above on a number of grounds.

[10]            First, they argue that the documents are irrelevant to the issue on appeal in A-615-02 because the only issue is the matter of costs granted to the Minister. This argument must be rejected. As indicated above, there is a certain ambiguity in the notice of appeal in A-615-02, but on balance I am satisfied that the Appellant is challenging the award of costs to the Peigan Respondents.

[11]            Second, the Peigan Respondents argue that the documents are not sufficiently described. It is true that they are not sufficiently described, but for reasons that will become apparent, I do not propose to deal with the Appellant's motion on that ground.

[12]            Third, the Peigan Respondents argue that the documents were not before Blanchard J. when the Second Order was made, and the Appellant has not made a motion under Rule 351 to present new evidence on the appeal. There is merit in this objection. However, the Appellant clearly wishes to bring to the Court's attention certain matters which she believes are relevant to the question of costs. I am not prepared to preclude her argument on that point because of her procedural error. Rather, it seems to be more appropriate to permit the Appellant to make a motion under Rule 351 before she is required to complete the appeal book. A motion under Rule 351 would require evidence from the Appellant (1) that the documents she wishes to have this Court consider are credible evidence of the facts she wishes to prove, and are practically determinative of the issue of whether or not the Peigan Respondents should be entitled to costs, and (2) that the failure to present the documents to Blanchard J. cannot be attributed to a lack of due diligence on the part of the Appellant.

[13]            I now turn to the matter of the directions sought by the Attorney General of Canada. The request for directions is apparently rooted in the ambiguity in the notice of appeal in A-615-02, which counsel for the Attorney General initially believed related only to the costs awarded to the Peigan Respondents. Having failed to file a notice of appearance in that matter, counsel for the Attorney General is now concerned about whether remedial action should be taken to ensure that the Attorney General is represented in both appeals. She suggests that consolidation of the two appeals could resolve these procedural problems.

[14]            In my view, that suggestion is a sound one. There is no doubt that the Appellant wishes to challenge both awards of costs, and that there will be many factual questions common to both appeals.

[15]            Therefore, I will make an order on my own motion consolidating the two appeals. The order will also fix the contents of the appeal book in A-615-02 except for the disputed documents, and set deadlines for a Rule 351 motion if the Appellant wishes to make such a motion.

[16]            Costs of the Appellant's motion to settle the contents of the appeal book will be costs in the cause. A copy of these reasons and the resulting order should be included in both A-524-02 and A-615-02.

                                                                                                                                           (s) "K. Sharlow"          

J.A.

                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              A-524-02 and A-615-02

STYLE OF CAUSE:     CELESTE STRIKES WITH A GUN and MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, PEIGAN INDIAN BAND COUNCIL and ALLAN PARD

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE SHARLOW

DATED:          August 8, 2003

WRITTEN REPRESENTATIONS:

Mrs. Celeste Strikes With A Gun                                                                       ON HER OWN BEHALF

Brocket, Alberta

Ms. Jolaine Antonio                                                                      FOR THE RESPONDENT MINISTER

Department of Justice

Mr. Kenneth R. McLeod                                               FOR THE RESPONDENTS PEIGAN INDIAN

                                                                                                   BAND COUNCIL AND ALLAN PARD

SOLICITORS OF RECORD:

Mrs. Celeste Strikes With A Gun                                                                       ON HER OWN BEHALF

Brocket, Alberta

Mr. Morris Rosenberg                                                                 FOR THE RESPONDENT MINISTER

Attorney General of Canada

Walsh Wilkins Creighton LLP                                       FOR THE RESPONDENTS PEIGAN INDIAN

Calgary, Alberta                                                                            BAND COUNCIL and ALLAN PARD