Date: 20000420
Docket: T-132-99
Ottawa, Ontario, April 20, 2000.
Present: THE HONOURABLE MR. JUSTICE DENAULT
Between:
JULES BERNARD,
Applicant,
- and -
BAND COUNCIL OF THE
ABÉNAKIS DE WÔLINAK
and
BERNARD ROSS,
Respondents,
- and -
REGISTRAR OF THE RESERVE LAND REGISTER
and
THE HONOURABLE ROBERT NEAULT,
Third parties.
ORDER
The Court orders as follows:
| 1. The applicant is given leave to file exhibits P-1 to P-13 in support of the initial application for declaratory relief and the application for an interlocutory injunction; |
| 2. The applicant is given leave to discontinue any application contained in the motion for an interlocutory injunction against the third parties the Registrar of the Reserve Land Register and the Honourable Robert Neault, without costs; |
| 3. The name of the respondent Bernard Ross, which does not appear in the originating process, shall no longer appear in the style of cause other than with leave of the Court upon an application to that effect; |
| 4. The style of cause shall now be the following: |
JULES BERNARD,
Applicant,
- and -
BAND COUNCIL OF THE
ABÉNAKIS DE WÔLINAK,
Respondent.
| 5. The applicant shall, within fifteen (15) days of this order, file a Record pursuant to Rule 309 of the Federal Court Rules, 1998, and the respondent may reply thereto within the time and in the form set out in Rule 310; |
| 6. The application for an interlocutory injunction is allowed and accordingly the Court prohibits the Band Council of the Abénakis de Wôlinak from selling or attempting to sell the immovable located at 10125 Kolipaïo Street in the Wôlinak reserve until final judgment is rendered in the main proceeding, the application for declaratory relief; and |
| 7. Costs in the cause. |
Pierre Denault
| J. |
Certified true translation
Martine Brunet, LL.B.
Date: 20000420
Docket: T-132-99
Between:
JULES BERNARD,
Applicant,
- and -
ABÉNAKIS DE WÔLINAK
BAND COUNCIL
and
BERNARD ROSS,
Respondents,
- and -
REGISTRAR OF THE RESERVE LAND REGISTER
and
THE HONOURABLE ROBERT NEAULT,
Third parties.
REASONS FOR ORDER
DENAULT J.
[1] The applicant has filed two motions with the Court. The first seeks the Court"s leave to file out of time an affidavit in support of his application for declaratory relief, the applicant"s record and exhibits P-1 to P-13. The second motion requests that an interlocutory injunction be issued prohibiting the respondent from proceeding with the sale of an immovable property.
[2] The parties are bitterly fighting over a property to which each claims ownership. This property is located at 10125 Kolipaïo Street in Wôlinak. This saga is unfolding in the context of a power struggle within the Band Council of the Abénakis de Wôlinak.
[3] To situate this application in its context, a brief outline of the background is in order. It appears from the facts as alleged in the record that on February 19, 1996 the applicant purchased from the Abénakis de Wôlinak Council a house at number 10125 Koliapïo [sic] Street, erected on part lot 582-6-1 in the Wôlinak Indian Reserve. Appended to the conditional agreement of sale is a resolution of the Band Council1 authorizing this sale. In July 1997, after informing the Band Council that he no longer intended to occupy this house, the applicant leased it to Murielle Lefebvre; he left to live in another house located at 4755 Sôlinak Street. At the time, a conflict within the Band Council prevented it from meeting, and no action was taken on the applicant"s notice concerning this transfer. When the Band Council resumed its regular meetings in October 1997, it decided to send default notices to the applicant and to other persons who, in the Council"s opinion, were unlawfully occupying houses and lands in the Wôlinak Indian Reserve. The applicant refused to comply with this notice and was then the subject of a proceeding in this Court.2 A decision by Blais J. of this Court, rendered on November 16, 1998, ordered Jules Bernard to vacate the house located at 4755 Solinak Street so that the respondent could recover
possession thereof. The applicant therefore had to vacate the premises but without being able to re-enter his residence at 10125 Kolipaïo Street, which the Council was now saying it owned. In short, the applicant found himself without a home. It should be explained that meanwhile the applicant had been an employee of the Band, but was dismissed on June 13, 1998.
[4] On January 29, 1999, the applicant " this is the present matter " applied for declaratory relief in the form of a declaration that he is the owner of the house situated at 10125 Kolipaïo Street in Wôlinak . . . which he had purchased on February 19, 1996. The Band Council claims, however, that this house has reverted to its ownership and it is now attempting to sell it. Deeply concerned since some calls for tender were issued by the Band Council to the members of the Wôlinak community on March 31, 1999 and August 5, 1999, the applicant is seeking an interlocutory injunction from this Court to prevent the Council from proceeding with the sale of the house, the ownership of which is disputed, until the dispute over it has been settled in this Court.
[5] In the course of the hearing of these motions, I drew attention to the existence in the applicant"s record of certain procedural defects that he will have to correct. These defects concern the parties involved in the litigation and the filing of the applicant"s record; I will dispose of them in the conclusions. Let it suffice, at this point, to note the filing with the consent of counsel for the respondent, of the applicant"s affidavits concerning exhibits P-1 to P-13; some exhibits which in any event had been served on the respondents with the initial application. With the consent of counsel for the respondents, I also allowed, from the bench, the application for discontinuance made by counsel for the applicant in regard to the third parties the Registrar of the Reserve Land Register and the Honourable Robert Neault, and without costs. The parties" names in the style of cause will consequently have to be amended.
[6] Now I must dispose of the interlocutory application sought by the applicant. Under the conditional agreement of sale executed by the parties on February 19, 1996, the purchaser undertook to pay the vendor, for part lot 582-6-1, with the house erected thereon, $30,000 in 120 equal and consecutive instalments of $250 payable on the first of each month until fully paid. The contract contained a resolutive clause drafted in the following words:
| [Translation] Failing payment by the purchaser within fifteen (15) days of its due date of any of the aforementioned instalments, the vendor shall have the option of requesting the resolution of this sale in accordance with the provisions to that effect in the Civil Code of the Province of Quebec, without being bound to repay the purchaser any of the instalments received. |
The terms of the sale include the following:
| [Translation] The vendor undertakes to sign a resolution of the Band Council allocating part of lot 582-6-1 . . . to the purchaser no later than sixty (60) days after the balance of the sale price is paid in full. |
[7] The parties" submissions can be easily summarized. The applicant says he is the owner of this house, and argues that he has met his contractual obligations both through himself and through his tenant Murielle Lefebvre. The respondent, for its part, claims that the applicant elected to give up this property by going to live at 4755 Sôlinak Street, that he has failed to comply with his contractual obligations and, accordingly, that the Band Council has again become the owner of this property.
[8] Does the applicant meet the test for issuing an interlocutory injunction, namely, is there a serious issue to be resolved, an irreparable harm from which he might suffer, and a preponderance of inconvenience in his favour?
[9] In the case at bar, the parties do not even agree on the nature of the contract executed between them or on the scope of the resolutive clause and the term set out above. It seems obvious to me that the judge who will have to decide to whom the house at 10125 Kolipaïo Street in Wôlinak belongs will have to determine at least some of the following issues: Was there a conveyance of ownership upon the sale; in so far as the property is situated on an Indian reserve, is the resolutive clause through which the parties refer, in case of default, to the Civil Code rules, a valid provision; did the respondent adhere to the Civil Code rules in retaking possession of this house? In short, I think the applicant has demonstrated that the case raises a number of serious issues to be resolved.
[10] I am further of the opinion that the applicant has, in the circumstances, demonstrated that if the property that he claims to own were to be sold, he would suffer irreparable harm.
[11] Finally, I think the preponderance of inconvenience operates in favour of the applicant; the respondent is not at present inconvenienced in so far as the house is currently occupied and, according to counsel for the parties, the cost of the dwelling is being duly covered.
[12] For these reasons, the motion for an interlocutory injunction is allowed, costs in the cause.
Pierre Denault
| J. |
Ottawa, Ontario
April 20, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: T-132-99 |
| STYLE: Jules Bernard v. Band Council of the Abénakis de Wôlinak et al. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: April 17, 2000 |
REASONS FOR ORDER OF DENAULT, J.
DATED: April 20, 2000
APPEARANCES:
Stéphan Foisy for the Applicant
David Schulze for the Respondent
SOLICITORS OF RECORD:
Chorel, Pellerin & Turpin
Trois-Rivières, Quebec for the Applicant
Hutchins, Soroka & Dionne
Montréal, Quebec for the Respondent
__________________1 Resolution of the Band Council of the Abénakis de Wôlinak, appended to exhibit P-1 of the Applicant"s Affidavit.
2 T-907-98, The Band Council of the Abénakis de Wôlinak v. Jules Bernard et al., decision of November 16, 1998.