Date: 20031117
Docket: A-524-03
Present: Richard C.J.
BETWEEN:
DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Appellant
and
SHIRLEY CHOKEN, MYLES SINCLAIR, WILFRED MARSDEN AND JERRY
MARSDEN
Respondent
and
LAKE ST. MARTIN INDIAN BAND
Respondent
and
PEACE HILLS TRUST COMPANY and CANADIAN IMPERIAL BANK OF COMMERCE, and ANDREW ALKIER
Garnishees
Heard at Ottawa, Ontario, on November 13, 2003 via teleconference
Order delivered at Ottawa, Ontario, on November 17 , 2003.
REASONS FOR ORDER BY: RICHARD C.J.
Date: 20031117
Docket: A-524-03
Present: Richard C.J.
BETWEEN:
DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Appellant
and
SHIRLEY CHOKEN, MYLES SINCLAIR, WILFRED MARSDEN AND JERRY
MARSDEN
Respondent
and
LAKE ST. MARTIN INDIAN BAND
Respondent
and
PEACE HILLS TRUST COMPANY and CANADIAN IMPERIAL BANK OF COMMERCE, and ANDREW ALKIER
Garnishees
REASONS FOR ORDER
RICHARD C.J.
[1] On October 31, 2003, Gibson J. issued an order allowing funds provided by the Department of Indian Affairs and Northern Development ("DIAND") to the appointed Third Party Manager ("the Manager") of Lake St. Martin Indian Reserve ("Lake St. Martin") to be garnished in satisfaction of a judgment debt to Shirley Choken, Myles Sinclair, Wilfred Marsden, Jerry Marsden and Lake St. Martin Indian Bank ("respondents"). The funds made subject to the garnishment had been provided to deliver essential programs and services to members of Lake St. Martin.
[2] The decision of Justice Gibson has been appealed and DIAND seeks a stay of his order pending the determination of the appeal.
[3] The initial notice of appeal was filed by DIAND. Subsequently, the garnishee Andrew Alkier commenced a different appeal, under court file number A-540-03. Both DIAND and the Manager have sought to stay the order of Gibson J. At the outset of the hearing of their motion, it was agreed by counsel for the parties that the outcome would apply to both appeals. As a result, these reasons will apply to both court files.
Background
[4] The funds that were the subject of Justice Gibson's order were provided pursuant to a Third Party Management Agreement ("the TPMA") entered into by Andrew Alkier, the appointed Manager, and the Minister of Indian Affairs and Northern Development. Under the TPMA, the Manager is responsible for delivering essential services and programs to the members of Lake St. Martin. The TPMA remained in effect on the date this motion was heard.
[5] Pursuant to the terms of the TPMA, the Manager is contractually obligated to deliver such services as education, social services and employer pension and employment insurance contributions.
[6] The garnishment proceedings resulted in a freeze of the Manager's Education account. These funds were deposited in an account in the Ashern, Manitoba branch of the Canadian Imperial Bank of Commerce, pursuant to the terms of the TPMA.
The Test for a Stay
[7] The issue to be determined in this motion is whether the appellants are entitled to a stay of Justice Gibson's order pending the determination of the appeal.
[8] As set out in RJR-Macdonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 ("RJR"), in order to be granted a stay, an applicant must satisfy this Court that:
i. there is a serious question to be tried;
ii. it will suffer irreparable harm if the relief sought is not granted; and
iii. the balance of inconvenience favours the applicant.
[9] All parties are in agreement that there is a serious question to be tried. What remains to
be assessed are the second and third stages of the three-stage test in RJR, irreparable harm and the balance of inconvenience.
[10] As a general rule, the principles governing stays apply equally when a government
authority is the applicant. However, when the government authority is the applicant, the public interest will be considered as an aspect of both irreparable harm and of the balance of inconvenience analysis. (RJR, supra at page 349.)
[11] I begin by addressing the notion of irreparable harm. According to the Supreme Court of
Canada, this concept refers to the nature of the harm and not its magnitude. (RJR, supra at page 341.)
[12] An examination of the present circumstances makes it clear that the applicants have satisfied the second stage of the RJR test.
[13] In his supporting affidavit, the Manager has affirmed that if the funds are not fully released to him he will not be able to provide the essential education services to children attending Lake St. Martin First Nation School and attending off Reserve Schools and post secondary institutions.
[14] At issue in this motion are programs and services, specifically education programs, provided to Lake St. Martin pursuant to the federal government's commitment to First Nations peoples. It is beyond dispute that this education service is essential, and denying the relief sought could place the funds required to finance this service in jeopardy.
[15] Additionally, in considering the concept of irreparable harm, I note that the application of section 89 of the Indian Act could prevent the collection of any funds distributed pursuant to Justice Gibson's order if the trial decision is ultimately overturned on appeal. While one of the respondents apparently resides off-reserve, it appears that the remaining respondents do reside in Lake St. Martin. This, of course, is relevant to the application of section 89.
[16] Regarding the balance of inconvenience, denying the interim relief sought in this motion could deprive DIAND and the Manager of required program funding, which in turn would deprive the members of Lake St. Martin of vital programs and services. I have already mentioned how this raises a public interest concern in my analysis of irreparable harm.
[17] If Justice Gibson's order is ultimately upheld, the respondents will suffer no more than a
delay in receiving their compensation. Three years have elapsed since the judgment debt arose, and the respondents have not been prompt in collecting on it. Apart from claiming that they are entitled to satisfaction of their judgment against the Lake St. Martin Indian Band, it is not immediately apparent to me why the respondents cannot wait for the disposition of the appeal. I note further that the appellant indicated an intent to expedite the appeal for a speedy resolution of this matter.
[18] Reiterating that the public interest forms part of the balance of inconvenience analysis in
this instance, it is clear that the balance of inconvenience weighs in favour of the applicants.
[19] Given the weight I attach to the issue of the public interest, as both an aspect of
irreparable harm to DIAND's interest and as part of the balance of inconvenience, I have reached the conclusion that the applications for a stay should be granted.
[20] Accordingly, the order of Mr. Justice Gibson in Court File No. T-961-03 will be stayed pending the determination of this appeal and of the appeal in Court File No. A-540-03.
[21] These reasons are to be deposited in Court File No. A-540-03.
"J. Richard"
Chief Justice
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-524-03
HEARING OF A MOTION TO STAY THE ORDER OF THE FEDERAL COURT DATED OCTOBER 31, 2003. NO. T-961-03
STYLE OF CAUSE: DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT v. SHIRLEY CHOKEN et al.
PLACE OF HEARING: Ottawa & Winnipeg
(Via teleconference)
DATE OF HEARING: November 13, 2003
REASONS FOR ORDER BY: The Chief Justice Richard
DATED: November 17, 2003
APPEARANCES:
|
Mr. Darrin Davis |
FOR THE APPELLANT
|
|
|
FOR THE GARNISHEE (Andrew Alkier) |
Mr. Wayne P. Forbes FOR THE RESPONDENT
(Shirley Choken)
SOLICITORS OF RECORD:
|
Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE APPELLANT |
|
|
FOR THE GARNISHEE |
Winnipeg, Manitoba (Andrew Alkier)
Pollock & Company FOR THE RESPONDENT
Winnipeg, Manitoba (Shirley Choken)