Federal Court of Appeal Decisions

Date: 20060309

Docket: A-112-05

Citation: 2006 FCA 104

CORAM:        DÉCARY J.A.

                        EVANS J.A.

                        MALONE J.A.

BETWEEN:

CHC CASINOS CANADA LTD.

Appellant

(Applicant)

and

THE CHIPPEWAS OF MNJIKANING FIRST NATION BAND COUNCIL

Respondent

and

ONTARIO FIRST NATIONS LIMITED PARTNERSHIP

Intervener

Heard at Toronto, Ontario, on March 9, 2006.

Judgment delivered from the Bench at Toronto, Ontario, on March 9, 2006.

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

Date: 20060309

Docket: A-112-05

Citation: 2006 FCA 104

CORAM:        DÉCARY J.A.

                        EVANS J.A.

                        MALONE J.A.

BETWEEN:

CHC CASINOS CANADA LTD.

Appellant

(Applicant)

and

THE CHIPPEWAS OF MNJIKANING FIRST NATION BAND COUNCIL

Respondent

and

ONTARIO FIRST NATIONS LIMITED PARTNERSHIP

Intervener

APPLICATION UNDER Section 18.1 of the Federal Courts Act, R.S.C. 1985,

c. F-7, as amended

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on March 9, 2006)

EVANS J.A.

[1]                This is a motion by the respondent to strike for mootness an appeal from a decision of Heneghan J. of the Federal Court refusing an order of mandamus to require the respondent to issue the building permits for which the appellant had applied: CHC Casinos Canada Ltd. v. The Chippewas of Mnjikaning First Nation Band Council, 2005 FC 233. Since the respondent has subsequently issued building permits to the appellants, the appeal is moot.

[2]                We are not satisfied that the circumstances of this case warrant the exercise of the Court's discretion to hear the appeal despite the fact that is moot. Whatever other issues are still in dispute between the parties are better addressed in the related proceedings, including the appellant's application for judicial review in the Federal Court to challenge the validity of the amended by-law under which the permits were purportedly issued.

[3]                For these reasons, the respondent's motion is allowed and the appeal is struck for mootness. Costs will not be awarded.

"John M. Evans"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               A-112-05        

STYLE OF CAUSE:                                                               CHC CASINOS CANADA LTD. v. THE CHIPPEWAS OF MNJIKANING FIRST NATION BAND COUNCIL ET AL.

PLACE OF HEARING:                                                         TORONTO, ONTARIO         

DATE OF HEARING:                                                           MARCH 9, 2006

REASONS FOR JUDGMENT OF THE COURT BY:        DÉCARY, EVANS and MALONE JJ.A.

DELIVERED FROM THE BENCH BY:                             EVANS J.A.    

APPEARANCES:

Kathryn Podrebarac	FOR THE APPELLANT
M. Philip Tunley	FOR THE RESPONDENT
Tycho Manson	FOR THE INTERVENER

SOLICITORS OF RECORD:

Tough & Podrebarac LLP Toronto, Ontario	FOR THE APPELLANT
McCarthy Tétrault LLP Toronto, Ontario	FOR THE RESPONDENT
Torys LLP Toronto, Ontario	FOR THE INTERVENER