FILE NO. T-747-97
FEDERAL COURT OF CANADA (TRIAL DIVISION)
B E T W E E N:
ALLAN J. MILES
Plaintiff
- and -
THE WHITEFISH RIVER FIRST NATION, et al
Defendants
This is the transcript of the Reasons of the Motions, held at the Ramada Inn, 85 Sainte Anne Road, Sudbury, Ontario, on the 20th day of January, 1998.
B E F O R E:
THE HONOURABLE ASSOCIATE CHIEF JUSTICE JEROME
A P P E A R A N C E S:
MR. LEO ARSENEAU For the Plaintiff
MS. MICHELLE M. MANN For the Defendant
MR. STEPHEN O'NEILL For the Whitefish
River First Nation
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REASONS FOR JUDGMENT
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REASONS FOR JUDGMENT:
THE COURT: Ms. Mann, I'm going to deny the motion for summary judgment. Here are my reasons.
First, I am, of course, aware of my own precedent that says we should -- well, they go both ways.
First, if we have a summary judgment rule on the books and don't ever use it, and make it so tough and so difficult for parties to get summary judgment, then we might as well take the rule off the books.
The rule has to be used, the way you're doing it now. It has to be available to parties to say: if we think that we can avoid trial because of an interpretation of a law that will finish the Plaintiff's chances, then you should be seeking summary judgment, as you are doing now. That, unfortunately, though, doesn't get you all the way home.
And it's inappropriate, of course, for any party to be shut out of court, to have their rights shut down to have a day in court, especially where one of the parties is the Government of Canada, or the Ministry, or Her Majesty, who, of course, always is expected to be exemplary with respect to fairness.
And you will also see that in all the law in these kinds of cases, it's -- when you see forfeiture of a property because of non-payment of rent, it never ends there. And, indeed, you'd probably be successful with your motion, if it did end there; but it doesn't. And the reason it doesn't end there is because people feel uncomfortable about for ever defining or depriving people of their rights or their justice, on the basis of, perhaps, a momentary slip.
And that's why you see most of these judgments on lease, default of payment of lease, payment of rent, follow the judgment with what are, of course, equitable considerations.
In other words, if the Court says: yes, we find there's non-payment of rent here and therefore that brings about -- that default brings about cancellation or revocation of the lease; they of course have to go on and say: well, now is this a case in which the Court should be looking at relief from forfeiture? Should the Court be looking at the equitable remedies under the common law?
And it is those cases, those parts of the dispute that give me the most difficulty, in this case. The Plaintiff, assuming the facts to be right that you have argued, then has made a non-payment, defaulted on the lease. But, to me, it's fairly recent. It's not one where it was repeated many times, or perhaps, certainly, was so singular as to be unlike any of the other members of the Association that are involved here.
And, therefore, it's one in which I have to conclude that it is entirely possible that this man may not have appreciated the consequences associated with not paying his rent. Particularly since, with the insurance in question, he appears to be the one who would most likely suffer the greatest loss from the fire or from the forfeiture of his lease.
This is not of course an uncommon situation. With every reserve that has cottage property on it, which is, you can imagine, comes in the hundreds and hundreds of numbers, these kinds of disputes have arisen now because, on several fronts, the reserve has updated the rent or increased the rent.
It's not simple for the management of the reserve. It's certainly not simply for the Minister, either. And there have been a number of these situations in which renegotiation of the lease has been prompted by the department, sometimes by the Band, sometimes by a First Nations.
And in every case it's called into play many of these questions, where: were the original mechanics proper; are there any errors on the part of the Minister that foreclose the Minister from taking this action?
And often, as happens here, the cottagers who are, you know, all band together and say: all right, let's at least go to some court. And I understand now that all of them, and including Mr. Miles, if I understand rightly, still say, no, I'm not ---
Well, in any case, that's not my concern. My concern is that, until, until -- for example, in our Court, then, to put it as simply as I possibly can, it isn't simply enough for me to bring down the curtain on his action by saying: yes, on a certain time last year, he defaulted, after the family had been paying the rent, more or less late or on time, or whatever.
That default, if the Minister is right, if you're right in your Argument today, then he loses a substantial piece of property and not only he loses his right to a lease in the future of vacant land, but he suffers a substantial financial loss, as I understand it, with respect to the parts of the building that are remaining, or the ones that were lost in the fire. I'm not sure of that.
But as I understand the facts, from Mr. Arseneau, his argument, that a substantial portion of the building is still in place.
Now, therefore, what I think you would see, in every one of these cases is, assuming your argument is right, that sometime last year and several times over the five or six years he's been late with his rent, that the equities would come in play.
And the only person in our Court who could properly judge all these difficult equity problems, or fairness problems, would be the trial judge. Did he -- was it just once, was it a momentary slip? Was he indeed induced to believe, by representation from a member of the family, that as long as his mother wrote him, her mother, whatever. Did that conversation take place? And, if so, did it have any legal effect?
But more than that, in fairness, in equity, is this a case where he ought to be shut down from any claim for damages here, or relief, or recovery of his substantial property, if in fact it's still in place?
Now, and therefore, the fact that these are discretionary matters, it is the discretion of the trial judge that comes into play here. What are the real facts? Did those conversations take place?
And if Mr. Miles, by his failure, has in fact cut himself out from the Association, gone it alone, suffers a loss that the ethers don't suffer, then that's fine, as long as the law is crystal clear. But if there is any doubt, then -- and that doubt, in my opinion, could only be resolved in our Court, in the Federal Court of canada -- never mind the other courts -- by trial, and by the trial judge making these kinds of pronouncements.
That's why your motion is unsuccessful, although I think it should have been brought.
Now, there are other provisions, but there is no application before me to stay this action until the other action goes ahead; is that alternative relief?
MS. MANN: Yes, it is, My Lord.
THE COURT: Well, then, I think that should be done, to hold this in abeyance.
MR. ARSENEAU: I don't think we have any difficulty with that proposition, My Lord.
THE COURT: You don't -- you do?
MR. ARSENEAU: We do not. That this action be stayed until the other action is completed?
THE COURT: Yes. Well, until at least until trial.
MR. ARSENEAU: Yes, that's fine My Lord, we have no difficulty with that.
THE COURT: Yes. So that order will be made.
MR. ARSENEAU: Until trial, and even if there is an appeal, it doesn't make any sense to go ahead with it.
THE COURT: Right.
MR. ARSENEAU: Until it's gone through the whole process.
THE COURT: Yes.
MR. ARSENEAU: We're content with that.
THE COURT: Thank you.
MS. MANN: Okay.
MR. ARSENEAU: Providing, of course -- I say that, providing of course that the Order which we have in place now, which is an interim injunction prohibiting the Defendant from taking any further steps to terminate the lease, in accordance with our ruling prior to trial, stays in place.
THE COURT: Yes, that's sensible, until that trial. Until the trial in the General Division?
MR. ARSENEAU: Yes. That's Paragraph 1 of the Motion Record.
THE COURT: Thank you. What I want you to do then is to -- that's my decision: it includes dismissal of the application for summary judgment, a stay of the action in our court until trial in the General Division, and further, that no steps are to be taken with respect to ---
Mr. Arseneau, your language was?
MR. ARSENEAU: It's, "...terminate the lease, evict the Plaintiff, or otherwise regain possession of the lease property."
THE COURT: Until the trial.
MR. ARSENEAU: Right.
THE COURT: Now, I would like you to stay here, please, and collaborate on that Order and approve it, as to form, so that I can sign it before I leave the room, well, before I leave Sudbury.
MR. ARSENEAU: My Lord, may I -- now I'm not sure whether it's appropriate to have your ruling as to whether Mr. O'Neill is involved or not. We've made our argument, I don't really have much more to say. I don't have anything further to say, but you had held that in abeyance pending ---
THE COURT: Does the Minister care, one way or another?
MS. MANN: Yes, My Lord, I have submissions to make on the addition of The Whitefish River First Nation, as a party.
MR. ARSENEAU: I thought we had already made our submissions.
MS. MANN: No.
THE COURT: Well, I haven't certainly made a decision with respect to that.
MS. MANN: I began to make my submission.
THE COURT: I'm sorry.
MS. MANN: That's okay, it won't be long.
As My Lord knows, it is the position of both the Attorney-General of Canada and The Whitefish River First Nation, itself, that they should be added as a party in this action.
The Affidavit of Ester Jacko, who is the Band Lands Manager for The Whitefish River First Nation can be found at Tab 2, supporting this motion.
THE COURT: But since this action is going to be stayed pending the action in the other Court, doesn't it make sense to simply keep this issue alive until then, without ---
You may want to think about that. Let's take 15 minutes. But this action is not going anywhere. If there is any question about the status of the Band, ---
MR. ARSENEAU: We can always bring it back.
THE COURT: --- why not just simply include in the Order that their rights with respect to participation will not be prejudiced by this judgment, and in fact can be restored once the trial is over?
MR. ARSENEAU: Very good.
THE COURT: But think of it, if you're not covered -- we're not going anywhere till ---
MR. ARSENEAU: All right. Thank you, My Lord.
--- SHORT RECESS
--- UPON RESUMING
MR. ARSENEAU: My Lord, I propose to provide you with a Draft Order, if you will.
THE COURT: Yes.
MR. ARSENEAU: And you will see that we have resolved, I believe, the wording with respect to the injunction and everything else. And you will also note, I think it's in Paragraphs 4 and 5, that we are adjourning the issue of whether The First Nation should be added as a party.
So the only remaining issue, as noted, is the question of costs, and obviously I would be seeking costs. There have been a number of attendances, including this one, and I see no reason why the normal rule would not follow. The Defendant has not been successful in their motion and part of it is successful in ours.
THE COURT: Counsel, what do you say about costs of this motion, the dismissal of the summary judgment motion?
MS. MANN: Well, My Lord, I would say that, as you yourself noted, that we were right in bringing this motion, that this wasn't a case where the motion for summary judgment was brought without a basis.
I would also submit that we were partially successful, because our alternative grounds of relief was the stay, which you have granted; and, as well, the further grounds of the adding of The First Nation has been put over and wasn't resolved. So I would say there was partial victory in the relief that we were seeking, and in the areas that we didn't obtain relief, we were still with good cause to bring the motion.
THE COURT: Thank you. Costs will follow the event. As I say then, that the motion is dismissed with costs, party/party costs to be taxed. I would normally make those costs payable, in any event of the cause. Let's make them that ---
MR. ARSENEAU: Well, if I understood your ruling, My Lord, it's that costs are being awarded to the Plaintiff on a party/party basis to be assessed?
THE COURT: Yes.
MR. ARSENEAU: Is that your ruling?
THE COURT: Yes.
MR. ARSENEAU: Well in that case, then, the Plaintiff would be entitled to have costs.
THE COURT: Party-and-party plus tax and paid -- yeah. In any event of the cause, that's what I say.
MR. ARSENEAU: Yes.
THE COURT: Thank you. Now, as I have directed, the parties have collaborated on, accurately, my disposition of the these matters. They were not subject to agreement or consent, or that sort of thing. It's my disposition of these matters in this way.
And your handwritten note, with the exception of costs, represents an accurate portrayal of that. And, therefore, it shall become an exhibit to this hearing, filed at this hearing.
--- EXHIBIT NO. 1: Draft Order.
THE COURT: And I will make an endorsement today that the motion for summary judgment is dismissed, as indicated in oral reasons, and that brief written reasons will be filed when I have had an opportunity to examine the transcript of my own reasons, only.
Which, of course, I will edit to a certain extent, but basically I will file that, in accordance with Section 51 of the Federal Court Act. Thank you.
MR. ARSENEAU: Thank you, My Lord.
THIS IS TO CERTIFY that the foregoing is a true and accurate transcript to the best of my skills and ability.
Pascale Kuehnhold
VERBATIM COURT REPORTER