Date: 19990920
Docket: T-4178-78
BETWEEN:
JOSEPH APSASSIN, Chief of the Blueberry River Indian Band,
and JERRY ATTACHIE, Chief of the Doig River Indian Band,
on behalf of themselves and all other members of the
Doig River Indian Band, the Blueberry Indian Band
and all present descendants of the Beaver Band of Indians,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by the Department of Indian Affairs and
Northern Development and the Director of the Veterans Land Act,
Defendant.
REASONS FOR ORDER
RICHARD, A.C.J.
[1] Counsel for the applicant on this motion who represents one of the descendants of the Beaver Band, has brought a motion for an Order or directions that:
| 1. The motion set for hearing before Mr. Justice Hugessen on September 23, 1999 be adjourned; |
| 2. Mr. Justice Hugessen not take any further part in these proceedings. |
[2] Essentially counsel for the present applicant seeks to have Mr. Justice Hugessen disqualified from hearing two motions which are scheduled to be heard by him on September 23, 1999. The first is a motion brought by the solicitors of record for the plaintiffs requesting the release of the of the remaining $12,000,000 of judgment proceeds from trust to the Blueberry River and Doig River Indian Bands. The second is a motion brought by counsel for the applicant herein to set aside the decision of Mr. Justice Hugessen dated March 2, 1998, pursuant to Rules 399(1)(a) and 399(2)(b). The order of March 2, 1998 has not been appealed.
[3] I note that the Federal Court of Appeal in Indian Manufacturing Ltd. et al. v. Lo et al. (1997), 215 N.R. 76 at 79 in paragraph 8, stated that, save in exceptional circumstances, an ex parte order is to be reviewed, varied or rescinded by the judge who makes it.
[4] Flowing from this motion, counsel for the applicant requests that a different judge be assigned to hear the motions for disqualification and for the release of the remaining funds and that the hearing of these motions be adjourned accordingly.
[5] The ground for seeking the disqualification of Mr. Justice Hugessen is an alleged reasonable apprehension of bias. It is alleged that as the judge who gave the original order of March 2, 1998, fixing the amount of compensation to be paid by the defendant, is ill-placed to review it.
[6] Mr. Justice Hugessen has presided over these proceedings since June 30, 1997; any errors made by a judge can be appealed.
[7] The present applicant has already raised as a ground of appeal, in respect of an order dated April 7, 1999, made by Mr. Justice Hugessen, the failure of Mr. Justice Hugessen to remove himself from the proceedings. That application was made by counsel for the present applicant at the commencement of the hearing of the motion leading to that Order. That appeal has yet to be heard by the Federal Court of Appeal.
[8] Accordingly, I dismiss the motion to order that Mr. Justice Hugessen not take any further part in these proceedings. Any motion seeking to disqualify him from hearing the motion to set aside the order of March 2, 1998, and the motion to distribute the balance of the proceeds should be addressed to Mr. Justice Hugessen, as should any motion for adjournment.
[9] Accordingly the motion is dismissed without costs.
(Sgd.) "John D. Richard"
A.C.J.
September 20, 1999
Vancouver, British Columbia
[10]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-4178-78
STYLE OF CAUSE: Joseph Apsassin, et al.
v.
Her Majesty the Queen in Right of Canada et al.
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: September 20, 1999
REASONS FOR ORDER OF RICHARD, A.C.J.
DATED: September 20, 1999
APPEARANCES:
Mr. Gary Nelson
| Ms. Margaret D. Vanderkruyk for the Plaintiff |
| Mr. Mitchell Taylor for the Defendant |
| Mr. Robert Easton for the Paul Claimants |
| Mr. William Ferguson for the Claimants, Valerie Askoty, Keith Chipesia |
| Mr. R. Janes for Present Descendants of the Beaver Indian Band |
SOLICITORS OF RECORD:
Berger & Nelson
| Vancouver, BC for the Plaintiff |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Defendant |
Rosenberg & Rosenberg
| Vancouver, BC for Present Descendants of the Beaver Indian Band |
| Shapiro Hankinson & Knutson |
| Vancouver, BC for Claimants, Valerie Askoty and Keith Chipesia |
Swinton & Co.
| Vancouver, BC for the Paul Claimants |