Date: 20031031
Docket: T-961-03
Citation: 2003 FC 1273
BETWEEN:
SHIRLEY CHOKEN, MYLES SINCLAIR,
WILFRED MARSDEN and JERRY MARSDEN,
Applicants
and
LAKE ST. MARTIN INDIAN BAND,
Respondent
and
PEACE HILLS TRUST COMPANY
and
CANADIAN IMPERIAL BANK OF COMMERCE
and
ANDREW ALKIER,
Garnishees
and
DEPARTMENT OF INDIAN AFFAIRS AND NORTHER DEVELOPMENT
Intervener
GIBSON J.:
INTRODUCTION
[1] By Order dated the 7th of August, 2003, Prothonotary Tabib granted the following relief in favour of the applicants:
IT IS ORDERED that all debts due or accruing due from Peace Hills Trust Company ... to the Judgement Debtor (Lake St. Martin Indian Band, Respondent) and on deposit or due and payable by Peace Hills Trust Company to the Judgement Debtor, shall be attached to answer the Judgement Debt of $89,897.69 plus costs in the amount of $300.00 owing to the Applicants.
AND IT IS ORDERED that all debts due or accruing due from CIBC (Canadian Imperial Bank of Commerce), ..., P.O. Box 70, Ashern, Manitoba, R0C 0E0 ... to the Judgement Debtor ... and on deposit or due and payable by CIBC to the Judgement Debtor, shall be attached to answer the Judgement Debt of $89,897.69 plus costs in the amount of $300.00 owing to the Applicants.
AND IT IS ORDERED that all debts due or accruing due from CIBC, Box 70, Ashern, Manitoba, R0C 0E0 to Andrew C. Alkier, CMC, ... as third party manager of the Judgement Debtor ... and on deposit or due and payable by CIBC to Andrew C. Alkier, CMC, as third party manager of the Judgement Debtor, shall be attached to answer the Judgement Debt of $89,897.69 plus costs in the amount of $300.00 owing to the Applicants.
AND IT IS ORDERED that the said Garnishees attend before this Court at Winnipeg, Manitoba, on the 22nd day of September, 2003, at 9:30 o'clock in the forenoon or apply to the Court no later than 14 days from the date of service of this order, to appear by telephone conference at such date as shall be fixed by the Registry office. [some contractions, identifications of the judgement debtor and addresses omitted]
[2] By further Order dated the 18th of September, 2003, Prothonotary Tabib added the Department of Indian Affairs and Northern Development as an Intervener herein with full party status for the purpose of opposing a garnishment order against the Garnishee Andrew Alkier. Further, Prothonotary Tabib adjourned the show cause hearing that was originally scheduled for the 22nd of September, to the 20th of October, 2003.
[3] Prothonotary Tabib's Order of the 7th of August, 2003, was made ex parte and without personal appearance. The substantive authority for the Order was a portion of Rule 449(1) of the Federal Court Rules, 1998[1]. The relevant portion of Rule 449(1) reads as follows:
449. (1) Subject to rules 452 and 456, on the ex parte motion of a judgment creditor, the Court may order
(a) that
(i) a debt owing or accruing from a person in Canada to a judgment debtor, or
...
be attached to answer the judgment debt; and
(b) that the person attend, at a specified time and place, to show cause why the person should not pay to the judgment creditor the debt or any lesser amount sufficient to satisfy the judgment.
449. (1) Sous réserve des règles 452 et 456, la Cour peut, sur requête ex parte du créancier judiciaire, ordonner :
a) que toutes les créances suivantes du débiteur judiciaire dont un tiers lui est redevable soient saisies-arrêtées pour le paiement de la dette constatée par le jugement :
(i) les créances échues ou à échoir dont est redevable un tiers se trouvant au Canada,
...
b) que le tiers se présente, aux date, heure et lieu précisés, pour faire valoir les raisons pour lesquelles il ne devrait pas payer au créancier judiciaire la dette dont il est redevable au débiteur judiciaire ou la partie de celle-ci requise pour l'exécution du jugement.
Rule 452 and 456 are not relevant for the purposes of this matter.
[4] These reasons and a related order issue following the show cause hearing.
THE PARTIES
1) The Applicants
[5] All of the applicants are Indians and members of the Lake St. Martin First Nation. As at the 5th of June, 1998, they all lived on reserve. On that date, it was not in dispute that Myles Sinclair, Wilfred Marsden and Jerry Marsden, all employees of the First Nation, were terminated from their employment with the First Nation. While it was initially alleged on behalf of the First Nation that Shirley Choken had quit her employment with the First Nation on that date, in a subsequent adjudication, it was determined that she, like the other three applicants, had been terminated from employment with the First Nation on the same date. Each of the applicants was determined to have been unjustly dismissed. Each was awarded compensation, that compensation totalling $131,897.69. Each has received a single payment since compensation was ordered to be paid. In the result, $89,897.69 in compensation remains payable to the applicants. That amount has been made a judgement of this Court in favour of the applicants and payable by the First Nation.
2) Lake St. Martin Indian Band
[6] Lake St. Martin First Nation is a "band" within the meaning of paragraph 2(1)(a) of the Indian Act[2] (the "Act"). The Council of the "band", once again as defined in the Act, is selected by election held in accordance with section 74 of the Act. The Council consists of a Chief and eight (8) Councillors. The Lake St. Martin First Nation reserves are located north of the town of Ashern on the shores of Lake St. Martin, in the province of Manitoba. As of August, 2003, the total membership of the Lake St. Martin First Nation was approximately one thousand nine hundred and thirty-nine (1,939) people, with the on-reserve portion of the population amounting to approximately one thousand two hundred and seventy-five (1,275) people. Of the on-reserve membership, approximately one hundred and fifty-three (153) were children attending school as of October, 2002 and approximately two hundred and sixty-one (261) families and two hundred and seventy-nine (279) single persons are currently dependant on social assistance for their basic needs.[3]
[7] On the 11th of July, 2002, the First Nation held an election for its Chief and Council. The applicant Jerry Marsden, the incumbent Chief, was reelected. The July 11, 2002 election was set aside in its entirety, by an Order-in-Council dated the 1st of May, 2003 on the basis of a corrupt practice which "called into question the integrity of the entire election."[4] On the 13th of June, 2003, a new election was held and a new Chief was elected.
[8] On the 1st of April, 2003, the First Nation, as represented by the Chief and Council, and the Minister of Indian Affairs and Northern Development (the "Minister") entered into a Comprehensive Funding Arrangement (the "CFA"). Under the CFA, funds were to be transferred from the Minister to the Council, which, on behalf of the Department of Indian Affairs and Northern Development, (the "Intervener"), and with the assistance of a co-manager, was to provide the Intervener's programs and services to the members of the First Nation. The Chief and Council contracted separately with the co-manager.
[9] Following the successful election appeal, between the 1st of May, 2003 and the 13th of June, 2003, the First Nation had no validly elected Chief and Council. To fill this gap, by letter dated the 7th of May, 2003, the Intervener advised members of the First Nation that a Third Party Manager (the "TPM") would be appointed. Effective the 12th of May, 2003, the Garnishee Andrew Alkier became the TPM pursuant to a Third Party Management Agreement (the "Agreement").
3) The Financial Institutions
[10] Peace Hills Trust Company and the Canadian Imperial Bank of Commerce operate bank accounts at their branches at Ashern, Manitoba in favour of the Lake St. Martin First Nation. At all times relevant to this matter, the balances in those accounts were very modest.
[11] In addition, the Canadian Imperial Bank of Commerce, at its branch in Ashern, Manitoba, operates a bank account on behalf of the TPM in his capacity as Third Party Manager of the Lake St. Martin First Nation. At all times relevant to this matter, the balance in that account exceeded the amount of the judgement debt.
4) Andrew Alkier
[12] Andrew Alkier (the "Manager") is a Certified Management Consultant who, as earlier indicated, entered into a Third Party Management Agreement with the Department of Indian Affairs and Northern Development on the 12th of May, 2003 relative to certain programs and services benefiting the members of the Lake St. Martin First Nation.
5) Department of Indian Affairs and Northern Development
[13] The Department of Indian Affairs and Northern Development is the Department of the Government of Canada charged with the responsibility, under the authority of the Minister, of administering funds voted by Parliament for the purpose of providing a wide variety of programs and services to persons registered as "Indians", as that term is defined in the Act, who resides on reserves such as the reserves of the Lake St. Martin First Nation.
THE COMPREHENSIVE FUNDING ARRANGEMENT
[14] As earlier noted in these reasons, on the 1st of April, 2003, Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development entered into a Comprehensive Funding Arrangement with the Lake St. Martin First Nation, as represented by the Chief and Council of that First Nation, for the purpose of providing funding for the delivery of programs and services for the benefit of members of the First Nation as represented by the Chief and Council. The arrangement continues in effect until the 31st of March, 2004 subject to any earlier termination in accordance with the terms of the CFA itself.
[15] Under the CFA, the Chief and Council undertake the responsibility to deliver the programs and services funded by the Minister under the CFA. The Minister undertakes to make payments in accordance with a schedule of payments to be made monthly. Surplus funds, that is to say amounts by which funds provided by the Minister and from other sources exceed eligible expenditures by the Chief and Council for delivery of funded programs and services are to be returned to the Minister. In the event that the Chief and Council fall into default under the CFA, the Minister is entitled to withhold funds otherwise payable under the CFA and, in addition to other actions that he or she considers reasonably necessary, may terminate the CFA. In circumstances where the Chief and Council are not in default, either party may terminate the CFA on sixty (60) days written notice. On termination, unexpended funding transferred to the Chief and Council by the Minister are to be returned and any monies owed to the Chief and Council by the Minister are to be paid.
THE THIRD PARTY MANAGEMENT AGREEMENT
[16] Once again as earlier noted in these reasons, the Minister entered into a Third Party Management Agreement with the Manager on the 12th of May, 2003. Recitals to the Agreement reflect the existence of the CFA, the fact that there existed from the 1st of May, 2003, a situation in which the First Nation was without a Chief and Council and would remain so until at least the 13th of June, 2003 and that in the result, the Minister had appointed the Manager "...to administer, in whole or in part, the funding otherwise payable to the Council and to fulfil the Council's obligations under the CFA".
[17] Although the term of the Agreement is stated to be from the 12th of May, 2003 to the earlier of the expiry of the election appeal period, with no appeals forthcoming, following the election held on the 13th of June, 2003, and the 31st of March, 2004, the Agreement continues in force. As under the CFA, any surplus arising in the hands of the manager is a debt due and payable by him to the Minister, in this case, unless otherwise directed by the Minister.
[18] The Minister is required to transfer the funding needed to administer the programs and services covered by the CFA to the Manager "...to be held by the Manager in trust for the purposes provided for in this Agreement, and subject to applicable terms and conditions contained herein". The Manager is required to accept the funding provided by the Minister subject to the terms and conditions in the Agreement and to use such funding "...only for the purposes expressly provided for [in the Agreement];". The Manager is further required to "...establish an account with a recognized Canadian financial institution in the Manager's name with the explicit notification that the account is established in trust... into which all funding, advanced by the Minister under [the] Agreement shall be deposited. Finally, in relation to the duties of the Manager, he is required to develop and provide to the Minister, for the Minister's approval:
6.3.1 ....
(b) a debt reduction plan, which shall include:
i) an aged listing of accounts receivable and accounts payable and a list of the total debt/liabilities of the Council's total consolidated operations. The total consolidated operations are those that are encompassed in a "government reporting entity" as defined by generally accepted accounting principles; or
ii) where the Manager is unable to receive the information under subsection 6.3.1(b)(i), the Manager shall use its best efforts to provide the aged listing of accounts receivable and accounts payable and a list of the total debt/liabilities of the Council's operations related to the programs and services funded through this Agreement;
including amounts, terms and payment obligations, terms upon which the Manager has tentatively renegotiated (subject to Minister and the Council approval) the debt, or proposes to renegotiate the debt, including a schedule proposed by the Manager for repayment of the debt, proposed use of Surplus funds in respect thereof, and details of meetings arranged by the Manager between the Council, the Manager and the Council's creditors; and
...
It was not suggested before me that the judgement debt here at issue was not incurred in the "total consolidated operations" of the Chief and Council of the day.
[19] The Manager's obligations are limited in the following terms:
The Manager takes on the obligations associated with the funding and administration of programs and services for the benefit of the Council's members as provided in this Agreement, and assumes no liability for any actions of the Council, or any of its employees or staff, arising prior to the date of executing this Agreement, which without limiting the generality of the foregoing will include outstanding debts incurred by any employee of the Council or the Council itself; nor for actions of the Council arising hereafter that have not been authorized or consented to by the Manager.
While it would appear from the foregoing that the Manager assumes no liability for the judgement debt here at issue, I cannot conclude that, on that account alone, particularly in light of his obligations regarding a debt reduction plan, the funds attached are exempt from attachment.
[20] As with the CFA, the Minister retains the right to terminate the Agreement, in the case of the Agreement, upon providing the Manager with ninety (90) days prior written notice.
THE ISSUES
[21] It is, in the predominant part, funds received by the Manager from the Minister under the terms of the Agreement that have been attached by the applicants in the hands of the Canadian Imperial Bank of Commerce in an account in the name of the Manager, albeit "in trust".
[22] The relevant portions of Rule 449(1) of the Federal Court Rules, 1998 are quoted earlier in these reasons. Under that Rule, on ex parte motion of a judgment creditor, the Court may order that a debt owing or accruing from a person in Canada to a judgment debtor be attached to answer to a judgment debt. It was not in dispute before me that the Canadian Imperial Bank of Commerce is a "person in Canada" and that the Chief and Council is a "judgment debtor". Thus, the sole issue before me, as framed on behalf of the Manager, is whether or not amounts paid by the Minister into an account in the name of the Manager "in trust", held by the Canadian Imperial Bank of Commerce, for disbursement by the Manager, for purposes specified in the Agreement, is a debt owing or accruing to the Chief and Council. Counsel for the Manager framed the question differently in the following terms:
Does the Council have the legal right to unconditional payment to it of the funds in the accounts in question.
ANALYSIS
[23] Crown funds cannot be garnisheed. Section 29 of the Crown Liability and Proceedings Act[5] reads as follows:
29. No execution shall issue on a judgment against the Crown.
29. Les jugements rendus contre l'État ne sont pas susceptibles d'exécution forcée.
[24] It follows then that the first question becomes whether or not funds paid by the Minister to the Manager and deposited in the account in question to be expended by the Manager to deliver programs and services on behalf of the Chief and Council, as provided in the CFA as modified by the Agreement, remain Crown funds or have taken on the character of funds to which the First Nation, as represented by its Chief and Council, have a legal and unconditional right to payment.
[25] In Mintuck v. Valley River Band No. 63A et al[6], Justice Darichuk of the Manitoba Court of Queen's Bench was faced with a somewhat similar fact situation, the major distinguishing feature there being that the funds in question were on deposit directly in a general account of a First Nation. At page 327, the learned Justice wrote:
The defendants contend that although the moneys were deposited in a general account, the moneys were not exigible in law as they were trust moneys, appropriated by Parliament for the use and benefit of the Valley River Indian Band. The money so received from the Department of Indian Affairs could only be disbursed in accordance with circularized directives.
Much the same could be said here substituting for "circularized directives" the CFA and the Agreement.
[26] The learned Justice concluded at paragraph 332:
Unless and until the moneys were advanced by the Department of Indian Affairs and were deposited to the credit of the account of the defendant band, they were not subject to garnishment by the plaintiff or anyone else. To this point in time lies the inability of the Court to make an order against the Crown. However, once deposited to the credit of their account, such moneys lost their identity and characteristic of being public funds or of "The Royal Purse" and were subject to attachment. The anticipated use or contemplated disbursal of such funds by the Parliament of Canada and/or the Band Council, for the benefit and use of the members of the defendant band as a whole did not preclude the issuing of [the] garnishment order and the attachment of such moneys.
[27] As to the terms of the Agreement indicating some form of trust arrangement with respect to the bank account in question, in Federal Distributors Ltd. v. Low, Sinosky and Polar Service Centre[7] where the issue was garnishment of a trust account, Justice Walker wrote at paragraph 5:
... Just because the funds may have been placed in a trust account does not make them unattachable. Just because the funds were received in trust does not make them unattachable. Just because the funds are held in trust does not make them unattachable. All of this, without more, does not make the funds unattachable.
[28] One of the two cases cited before me that are perhaps most directly on point is Johnson v. West Regional Tribal Council[8]. There, an employee of the West Regional Tribal Council Inc. sought to enforce a judgment debt against her former employer arising, as here, out of a finding of unjust dismissal from employment. Justice Muldoon of this Court wrote at paragraph [11] of his reasons:
Mr. Nepinak [a deponent for the West Region Tribal Council Inc.] also expresses concern for the West Region Tribal Council Inc., the judgment debtor, of which he is a board member, that the impact of the garnishment of the $129.011.68 will have on its "programming. . . in the health education and community development fields". When that consideration is raised, the usual reply is that the board ought to have thought of that matter before it dismissed the judgment creditor unjustly. Like all other corporations, this corporation must bear the usual responsibility for its board's misdeeds. Unfortunately, according to Mr. Nepinak's paragraph 6 [of his affidavit], it is ultimately the taxpayers of Canada who will pay for the board's misdeeds. Paragraphs 7, 8 and 9 [of the same affidavit] deserve the same response. Now the judgment debtor is "crying the blues" about its budgeted programs, but of course, it deserves no more sympathy than any other judgment debtor in the same sort of self-inflicted plight.
[29] On the facts of this matter, it is not the First Nation that is "crying the blues" about the impact of the proposed garnishment on its programs and services for the members of the First Nation, the First Nation was not directly represented before the Court, but rather the Crown whose funds have been provided to support those programs and services and the Manager appointed to disburse those funds for the benefit of the members of the First Nation. While their interest is laudable, it is subject to comments similar to those directed by Justice Muldoon at the West Region Tribal Council Inc., particularly in light of the Manager's duty under the Agreement to bring forward for the approval of the Minister a debt reduction plan which would, I am satisfied, extend to the debt of the Chief and Council that underlies the attachment under consideration.
[30] Standing in stark contrast to the Johnson decision from this Court is the very recent decision of Judge Baynton of the Saskatchewan Court of Queen's Bench in Osland v. James Smith Cree First Nation[9]. On the facts that were before Justice Baynton, First Nations Management Services Inc. was a Third Party Manager with responsibilities in relation to the James Smith Cree First Nation substantially similar to those of the Manager in this matter. As here, First Nations Management Inc. sought to defend against an attachment of funds standing to its credit. The Attorney General of Canada claimed for recovery of the funds sought to be attached by the garnishee summons.
[31] At paragraph 28 of his reasons, Justice Baynton wrote:
The answer to the question of whether the funds in the hands of the garnishee constitute a debt due or accruing due, is usually readily apparent. The fundamental issue is whether the judgment debtor has the legal right to unconditional payment of the monies that are sought to be attached. The only case cited to me on this issue was one relied upon by the applicant. In Brandt v. Burrows..., Mr. Justice Tucker of this court stated:
The question to be decided is whether at the time of service on the garnishee of the garnishee summons, there was a debt due or accruing due to the defendant. When money has been received by one person which in justice and equity belongs to another under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff, the latter may recover as for money had and received to his use: ...
If money is received for the use of another, then it becomes a debt and by implied contract is payable from the receiver to the one for whom he is trustee: ...
[citations omitted]
[32] At paragraph 32, Justice Baynton continued:
But a judgment debtor cannot set up an artificial scheme to put funds held by a third party beyond attachment.
The parties before me were in agreement that the arrangements at issue did not constitute an artificial scheme on the part of the First Nation, as represented by its Chief and Council, to put funds held by or on behalf of the Manager beyond attachment.
[33] Justice Baynton then went on to describe at some length the funding by parliamentary appropriation of programs and services for the benefit of the James Smith Cree First Nation's members and the Third Party Management Arrangement that was before him. He then concluded in the following terms at paragraph 45:
On the basis of the provisions I have outlined, I conclude that the scheme under which funds are provided by Parliament through the Minister/claimant and the recipient/garnishee [the First Nation that was there the defendant] for the benefit of the members of the First Nation judgment debtor, constitute trust funds in the hands of the recipient/garnishee. Neither the Band nor the members of the First Nation judgment debtor have a legal claim to the funds, even those that are "ear-marked" for a specific program. As such, the funds are not a "debt due or accruing due" within the meaning of s. 5 of the [Attachment of Debts] Act and are not attachable by a garnishee summons.
[34] Counsel for the applicant urged that I should distinguish the Osland decision on a number of grounds and follow, by analogy, the Johnson decision earlier referred to. The grounds on which I was urged to distinguish Osland are the following: first, Mr. Osland was not an Indian and the applicants here are Indians, members of the First Nation and, in three cases out of four, currently residents on the reserves of the First Nation; secondly, in Osland, the Court did not consider whether the attached monies were First Nation monies but rather focussed on the issue of whether they were monies impressed by a trust; thirdly, the Court failed to consider the impact of the Comprehensive Funding Arrangement that underlay the Third Party Management Agreement that was before it; fourthly, in finding that the garnisheed monies were trust funds, the Court relied on rigid trust principles applied to the facts before it; fifthly, the Court did not fully take into account the special relationship between the Crown and the First Nation; sixthly, the Court made no reference to the Third Party Manager's contractual obligation to formulate and present a debt reduction plan which would take into account, as on the facts before me, all debts, presumably including the debt owed to Mr. Osland; and finally, the reality that the statutory scheme there at issue was the Attachment of Debts Act of the province of Saskatchewan which, of course, is not applicable on the facts before me. Finally, counsel noted that the Osland decision was not binding on me.
[35] With great respect, I reach a different conclusion from that arrived at in Osland and prefer the succinct analysis of Justice Muldoon in Jonhson.
[36] The Agreement, as earlier noted, requires that the Manager establish an account with a recognized Canadian financial institution, in his name, "...with the explicit notation that the account is established in trust..." into which all funding advanced by the Minister under the Agreement, with the exception of Surplus funds, is to be deposited. In all other respects, the Agreement is silent as to the nature of any trust relationship. Counsel for the applicants urged that the designation "in trust" for the bank account must be assumed to be, in the absence of elaboration of the nature of the trust, for the sole purpose of protecting the funds advanced by the Minister from any personal creditors of the Manager. Certainly, it is not at all evident on the face of the Agreement who the beneficiary or beneficiaries of the trust might be, the Crown itself, the Chief and Council, the Members at large of the First Nation or some other person or persons. I conclude that no trust arrangement is established by the Agreement. Rather, that Agreement simply provides for independent and accountable management of monies that would otherwise have been provided directly to the Chief and Council pursuant to the CFA, to ensure that, during a period of both political turmoil in the First Nation and financial difficulty, the funds would be appropriately managed and that, further, an effective debt reduction plan would be developed for the approval of the Minister.
[37] Reverting to a quotation from the Mintuck v. Valley River Band No. 63A et al.[10] decision, I accept that, "[u]nless and until the monies were advanced by the Department of Indian Affairs, and were deposited to the credit of the account of the defendant band, they were not subject to garnishment by the plaintiff[s] or anyone else." Until the funds here at issue were advanced, they were public monies not open to attachment. Here, the funds were not advanced directly to the First Nation but were advanced to the Manager. I am satisfied that that distinction is without a difference. Once again, the Manager, for purposes of administration of the funds advanced by the Minister, simply stands in the place of the Chief and Council of the First Nation. Once the funds were advanced, they ceased to be Crown funds. They were directed to a particular purpose, the funding of programs and services for the First Nation. They ceased to have the character of Crown funds. Subject to the provisions of both the CFA and the Agreement providing for circumstances under which the Minister could call back all or a portion of the funds, and there was not evidence before me that such a right was exercised or could have been exercised at the time of the attachment, there was an absolute right to such funds in the people of the First Nation, through its Chief and Council when such were properly in office as they would appear to have been at the time of the attachment. The monies were, in effect, First Nation monies that were administered by an independent Manager for reasons that are irrelevant for the purposes of this matter.
[38] In the result, and without in any way relying on the facts that the applicants are Indians and members of the First Nation, which question I am satisfied should more appropriately be reserved for a different fact situation, I conclude that the monies here at issue are monies to which the First Nation has, in the absence of the exercise of the authority of the Minister to call back the monies, the legal right to unconditional payment, not simply for the delivery of programs and services to the First Nation, but also for the implementation of a debt reduction plan, which debt reduction plan would extend to the judgment in favour of the applicants. In the absence of such a plan and of any evidence that the Manager has worked with the applicants to develop an appropriate plan in relation to their judgment, I am satisfied the Manager has simply failed to discharge the onus on him to show cause why the Canadian Imperial Bank of Commerce should not pay to the applicants, out of the funds standing to the credit of the Manager, the debt owed to them, in the words of Rule 449(1), or any lesser amounts sufficient to satisfy the judgment registered in this Court.
COSTS
[39] The applicants seek their costs of the show cause hearing. I am satisfied that they are entitled to costs. I fix costs in their favour, inclusive of disbursements and GST, at $1,500., such amount to be added to the amount payable to the applicants out of the attached funds standing to the credit of the Manager and held by the Canadian Imperial Bank of Commerce.
__________________________________
J.F.C.
Ottawa, Ontario
October 31, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-961-03
STYLE OF CAUSE: Shirley Choken et al v. Lake St. Martin Indian Band
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 20, 2003
REASONS FOR ORDER : Gibson J.
DATED: October 31, 2003
APPEARANCES:
Harvey Pollock Q.C. FOR APPLICANT
Wayne Forbes
Harley Schachter FOR GARNISHEE
ANDREW ALKIER
Michelle D. Adrian FOR INTERVENOR
Department of Justice Department of Indian Affairs and
Winnipeg, MB Northern Development
SOLICITORS OF RECORD:
Pollock & Company FOR APPLICANT
Winnipeg, MB
Duboff Edwards Haight & Schachter FOR GARNISHEE
Winnipeg, MB Andrew Alkier
Morris Rosenberg
Attorney General of Canada FOR INTERVENOR
Department of Indian Affairs and
Northern Development
[1] SOR/98-106.
[2] R.S.C. 1985, c. I-5.
[3] Affidavit of Myles Thorsteinson, paragraphs 14 and 16, affirmed the 26th of September, 2003.
[4] Affidavit of Myles Thorsteinson, paragraph 19.
[5] R.S.C. 1985, c. C-50.
[6] (1977), 83 D.L.R. (3d) 324.
[7] [1981] S.J. No. 1001.
[8] (1992), 55 F.T.R. 48.
[9] [2003] S.J. No. 217 (Q.L.).
[10] Supra, note 6.