Date: 20011204
Docket: T-1258-00
Neutral citation: 2001 FCT 1334
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, and Chief Dalton Silver, Acting Chief of the Yakweakwioose Indian Band, on behalf of themselves and all other members of the Yakweakwioose Indian Band, and on behalf of themselves and all other members of the Sto:lo Aboriginal Nation
Applicants
- and -
Attorney General of Canada
Respondent
[1] On November 5, 2001, I dismissed the applicants' motion for an interim order pursuant to section 18.2 of the Federal Court Act. Specifically, the applicants were seeking an interim injunction preventing the transfer of a portion of the former Canadian Forces Base Chilliwack, a military facility located along the Vedder River in the Fraser Valley, British Columbia. I dismissed the applicants' motion on the grounds that they had not convinced me that they would suffer irreparable harm if the injunction was not granted.
[2] Nine parcels of land comprise the base lands. The land at issue in these proceedings is a parcel of 62 hectares. The other parcels of land, which are not at issue in these proceedings, are the following:
(a) 5 parcels, covering an area of approximately 180 hectares, will be retained by the Government of Canada until June 2002, to allow the Government's Chief Negotiator sufficient time to negotiate with the applicants;
(b) 1 parcel will be protected as a public nature conservancy;
(c) 1 parcel will be retained by the Government of Canada for use by the Royal Canadian Mounted Police for training purposes;
(d) 1 parcel will be retained by the Government of Canada for military purposes.
[3] With respect to the parcel of land which is the subject matter of this litigation, the Government of Canada intends to transfer this land to the Canada Lands Company Ltd. (the "CLC"), a non-agent Crown corporation, for value enhancement and subsequent resale. The applicants were informed of the Government's decision with respect to the base lands in June 2000. On June 16, 2000, the Privy Council issued Order-in-Council PC 2000-925, authorizing the Minister of Defence to transfer title to the land at issue to the CLC, pursuant to paragraph 16(1)(a) of the Federal Real Property Act, S.C. 1991, c. 50.
[4] It is this decision which led the applicants to commence judicial review proceedings on July 14, 2000, on the grounds that in issuing Order-in-Council PC 2000-925, the Government of Canada breached a fiduciary duty owed to the applicants under section 35 of the Constitution Act, 1982. The applicants' judicial review application, following an Order made by Rouleau J. on January 29, 2001, was converted to an action pursuant to subsection 18.4(2) of the Federal Court Act. Rouleau J.'s Order is presently under appeal.
[5] The issue for determination was whether I should grant an injunction to the applicants, preventing the transfer of the land at issue, pending final determination of their action. In order to succeed on their motion, the applicants had to satisfy me that the merits of their case raised a serious question, that they would suffer irreparable harm if I did not grant their injunction, and finally, that the balance of convenience weighed in their favour.
[6] With respect to the serious question, it was not disputed by the respondent that the applicants' action did raise a serious issue. I therefore turned to the second branch of the test, irreparable harm.
[7] In RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, the Supreme Court of Canada explained, at page 341, the notion of "irreparable" harm in the following terms:
At this stage, the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), 48 D.L.R. (4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid, supra); or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined. (MacMillan Bloedel Ltd. v. Mullin, [1985] 3 W.W.R. 577 (B.C.C.A.)). The fact that one party may be impecunious does not automatically determine the application in favour of another party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)).
[8] The Federal Court of Appeal in Centre Ice Ltd. v. National Hockey League et al. (1994), 53 C.P.R. (3d) 34 (F.C.A.), held that an applicant for an injunction had to adduce evidence that was "clear and not speculative".
[9] The evidence adduced by the applicants did not satisfy me that the refusal of the injunction which they sought would cause them irreparable harm. In my view, damages are an adequate remedy, in the circumstances of this case, should the applicants succeed in proving that the Government of Canada breached a fiduciary duty owed to them. In coming to that conclusion, I considered as relevant the fact that the land at issue was only a portion of the base lands. As I indicated earlier, approximately 180 hectares are being kept by the Government of Canada, at least until June 2002, for the purpose of treaty negotiations with the applicants. Nothing in the evidence convinced me that an award in damages in regard to the 62 hectares would not adequately compensate the applicants, should they succeed on their action. I agree entirely with counsel for the respondent that no "special factors" were identified in relation to the land at issue that would support a conclusion that the applicants would suffer irreparable harm if their injunction was not granted.
[10] For these reasons, I dismissed the applicant's motion for an interim order under section 18.2 of the Federal Court Act.
Marc Nadon
JUDGE
O T T A W A, Ontario
December 4, 2001