Date: 20010321
Docket: T-1258-00
Neutral citation: 2001 FCT 211
CHIEF LARRY COMMODORE, CHIEF OF THE SOOWAHLIE INDIAN BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE SOOWAHLIE INDIAN BAND, AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF DAVID SEPASS, CHIEF OF THE SKOWKALE INDIAN BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE SKOWKALE INDIAN BAND, AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF JOE HALL, CHIEF OF THE TZEACHTEN INDIAN BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE TZEACHTEN INDIAN BAND, AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF FRANK MALLOWAY, CHIEF OF THE YAKWEAKWIOOSE INDIAN BAND, AND CHIEF DALTON SILVER, ACTING CHIEF OF THE YAKWEAKWIOOSE INDIAN BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE YAKWEAKWIOOSE INDIAN BAND, AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Applicants for:
1. An order that the applicable appeal period for an appeal from the Order made by Mr. Justice Rouleau on January 29, 2001, is 30 days.
2. In the alternative, an Order granting an extension of the time for filing a notice of appeal, such time to be fixed by the Trial Division.
[2] The grounds for the motion are:
1. On July 14, 2000, the Applicants filed a judicial review application in this Court to review the legality of a decision made on June 16, 2000, by the Governor in Council pursuant to the Federal Real Property Act to transfer title to land which had been part of the Canadian Forces Base Chilliwack to the Canada Lands Company Limited.
2. The Respondent ("Canada") brought a motion to convert the judicial review application into an action pursuant to section 18.4 of the Federal Court Act. On November 21, 2000, Madam Prothonotary Aronovitch dismissed Canada's motion.
3. The Order of Prothonotary Aronovitch was appealed to this Honourable Court, Mr. Justice Rouleau allowed the Respondent's appeal in a decision dated January 29, 2001.
4. In Reasons for the Order, Rouleau J. appears to make findings which determine the substantive rights of the Applicants and, if so, the judgment is final in nature.
5. With respect to of the alternative order, granting an extension of time for filing the notice of appeal, the grounds are:
a) the Applicants have an arguable case that this is not an appropriate application to be converted into an action;
b) the Applicants have, since on or about February 6, 2001, had a bona fide intention to appeal;
c) the delay involved has been brief;
d) the Applicants are not aware of any prejudice to Canada as a result of the delay;
e) the Applicants believed that the applicable appeal period was 30 days.
6. The Applicants rely on Sections 2(1), 27(2) and 27(4) of the Federal Court Act, as well as Rule 54 of the Rules of the Court and/or the inherent power of this Court over its own procedure.
Issues
[3] Issue No. 1: Is the appeal period for an appeal or Mr. Justice Rouleau's order 10 days or 30 days?
Issue No. 2: Should an extension of time be granted to the Applicants to file their notice of appeal of Rouleau J.'s order?
Statutory Provisions and Rules
[4] The Federal Court Act ("Act"), R.S.C. 1985, c. F-7, provides that:
"final judgment" means any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;
[5] Section 27(2) of the Act provides:
27(2) An appeal under this section shall be brought by filing a notice of appeal in the Registry of the Court
(a) in the case of an interlocutory judgment, within ten days, and
(b) in any other case, within thirty days, in the calculation of which July and August shall be excluded,
after the pronouncement of the judgment or determination appealed from or within such further time as the Trial Division or the Tax Court of Canada, as the case may be, may, either before or after the expiration of those ten or thirty days, as the case may be, fix or allow.
[6] Section 27(4) of the Act provides:
27(4) For the purposes of this section, a final judgment includes a judgment that determines a substantive right except as to any question to be determined by a referee pursuant to the judgment.
[7] Rule 54 of the Federal Court Rules, 1998 provides:
54. A person may at any time bring a motion for directions concerning the procedure to be followed under these Rules.
[8] I propose to deal with the second issue first. That issue states:
Should an extension of time be granted to the Applicants to file their notice of appeal of Rouleau J.'s order?
[9] The following criteria have been determined to be relevant when considering whether to grant an extension of time in which to file a notice of appeal:
1. Do the appellants have an arguable case?
2. Did the appellant have the intention to appeal before the time in which to appeal ran out?
3. Was the delay excessive?
4. What prejudice is there to the respondent?
5. The special circumstances showing or explaining why the appeal was not brought with in the required time.
6. Whether it is in the interests of justice to grant the time extension?
Arguable Case
[10] I have reviewed the two issues raised by the Applicants in paragraph 25 of their Written Representation and I am satisfied that the Applicants have raised an arguable issue. Thus, the appeal does have merit.
Intention to Appeal Within the Relevant Appeal Period
[11] A notice of appeal of an interlocutory judgment must be filed within 10 days after the pronouncement of the judgment. This would have been February 8, 2001. The affidavit of Leslie J. Pinder states that counsel were instructed by the Applicants to appeal on February 6, 2001. The Appellant had the intention to appeal within the relevant period whether the decision is interlocutory or final.
Was the Delay Excessive?
[12] The delay, if the appeal was due to have been filed on February 8, 2001, is not excessive as this motion for an extension of time was filed on February 27, 2001.
What Prejudice Is There to the Respondent?
[13] In my view, there is no prejudice to the Respondent. The Respondent was made aware of the Applicants' intention to appeal the decision by letter dated February 15, 2001 and were notified by letter dated February 16, 2001 of the Applicants' intention to file this motion.
The Special Circumstances Showing or Explaining Why the Appeal Was Not Brought Within the Required Time.
[14] The Applicants have explained that they believed the decision of Mr. Justice Rouleau to be a final judgment and consequently, the appeal period would be 30 days.
Is it in the Interests of Justice to Grant the Extension?
[15] I am of the opinion that it is in the interests of justice that this appeal be allowed to proceed, as arguable issues have been raised and there has been no excessive delay by the Applicants.
[16] It will therefore be ordered that the Applicants' motion be granted and the time for filing the appeal be extended to 5 days after the issue of this judgment.
Issue One
[17] Because of the disposition I have made on issue no. 2, it is not necessary that I deal with issue no. 1. However, I will add that it appears that the judgment of Mr. Justice Rouleau appears to me to be an interlocutory judgment.
[18] There shall be no order as to costs on the motion.
ORDER
[19] IT IS HEREBY ORDERED THAT:
1. The Applicants' motion for an extension of time to file the appeal is allowed and the time for filing the appeal is extended to 5 days after the issue of this judgment.
2. There shall be no order as to costs.
"John A. O'Keefe"
Toronto, Ontario
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1258-00
STYLE OF CAUSE: CHIEF LARRY COMMODORE, CHIEF OF THE SOOWAHLIE INDIAN BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE SOOWAHLIE INDIAN BAND, AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF DAVID SEPASS, CHIEF OF THE SKOWKALE INDIAN BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE SKOWKALE INDIAN BAND, AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF JOE HALL, CHIEF OF THE TZEACHTEN INDIAN BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE TZEACHTEN INDIAN BAND, AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF FRANK MALLOWAY, CHIEF OF THE YAKWEAKWIOOSE INDIAN BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE YAKWEAKWIOOSE INDIAN BAND, AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
DATE OF HEARING: MONDAY, MARCH 5, 2001
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: WEDNESDAY, MARCH 21, 2001
APPEARANCES BY: Ms. Clarine Ostrove and
Ms. Louise Mandell, Q.C.
For the Applicants
Mr. John Hunter and
Mr. K. Michael Stephens
For the Respondent
SOLICITORS OF RECORD: Mandell Pinder
Barrister & Solicitor
500-1080 Mainland Street
Vancouver, B.C.
V6B 2T4
For the Applicants
Davis & Company
Barristers & Solicitors
2800-666 Burrard Street
Vancouver, B.C.
V6C 2Z7
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010321
Docket: T-1258-00
BETWEEN:
Chief Larry Commodore, Chief of the Soowahlie Indian Band, on behalf of himself and all other members of the Soowahlie Indian Band, and on behalf of himself and all other members of the sto:lo Aboriginal Nation
Chief David Sepass, Chief of the Skowkale Indian Band, on behalf of himself and all other members of the Skowkale Indian Band, and on behalf of himself and all other members of the sto:lo Aboriginal Nation
Chief Joe Hall, Chief of the Tzeachten Indian Band, on behalf of himself and all other members of the Tzeachten Indian Band, and on behalf of himself and all other members of the sto:lo Aboriginal Nation
Chief Frank Malloway, Chief of the Yakweakwioose Indian Band, on behalf of himself and all other members of the Yakweakwioose Indian Band, and on behalf of himself and all other members of the sto:lo Aboriginal Nation
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
AND ORDER