Date: 20070411
Docket: A-45-07
Citation: 2007 FCA 146
Present: PELLETIER J.A.
BETWEEN:
ERMINESKIN
CREE NATION and ERMINESKIN TRIBAL COUNCIL
Appellants
and
GEORGE
LESLIE MINDE
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa,
Ontario,
on April 11, 2007.
REASONS
FOR ORDER BY: PELLETIER
J.A.
Date: 20070411
Docket: A-45-07
Citation: 2007 FCA 146
Present: PELLETIER
J.A.
BETWEEN:
ERMINESKIN CREE NATION and
ERMINESKIN TRIBAL COUNCIL
Appellants
and
GEORGE LESLIE MINDE
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
This is an
application for a stay of the order of Mr. Justice Lemieux of the Federal Court
dated December 20, 2006, in which he quashed the Tribal Council resolution in
which it was declared that the respondent George Leslie Minde had vacated his
position as Chief of the Ermineskin Cree Nation.
[2]
While the
proceedings which led to Mr. Justice Lemieux's order were pending in Federal
Court, other proceedings were launched in the Court of Queen's Bench of Alberta in which the Ermineskin
Tribal Council sought to recover certain amounts which the respondent allegedly
spent without authority. In the course of those proceedings, Mr. Justice R.
Paul Belzil granted an interlocutory injunction prohibiting the respondent from
entering the Ermineskin Cree Nation Band offices and from conducting any
financial transactions on behalf of the Ermineskin Cree Nation or the
Ermineskin Tribal Council.
[3]
Both
parties have cited the leading case on interlocutory injunctions, namely RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The
factors to be considered are a serious issue to be tried, irreparable harm, and
the balance of convenience. I am satisfied that there is a serious issue to be
tried. The appellants' argument as to irreparable harm is based upon the
allegations of financial irregularities which they have made against the
respondent. One of those allegations, the Al Wright transaction, underlies the
respondent's removal from office. Another involves allegations of unauthorized
withdrawals from the Social Service Department account. Both of these are the
subject of proceedings in the Court of Queen's Bench for Alberta.
[4]
In my
view, neither of these would support a conclusion of irreparable harm in the
event that the stay is not granted. The third allegation is more substantial. The
appellants applied to the Alberta Court of Queen's Bench for an injunction
restraining the respondent from entering the Band office. The respondent
obtained an adjournment of that application upon giving the Court an
undertaking to stay away from the Band office pending the disposition of the
injunction application. The respondent breached his undertaking, entered the
Band office and arranged for the payment to Band members of approximately $1.8
million, an expenditure which was not authorized and for which no budget
existed. There were serious financial repercussions for Band operations. Largely
on the strength of this incident, Mr. Justice Belzil decided that the appellants
would suffer irreparable harm if an injunction was not granted. I am of the
same view with respect to the motion for a stay of execution which is before
me.
[5]
To the
extent that the past is an indication of the future, I am satisfied that there
is a sufficient possibility of financial mismanagement on such a scale as to
constitute irreparable harm.
[6]
As for the
balance of convenience, I conclude that it favours the granting of a stay,
notwithstanding the fact that it will involve yet another change in control of
the Ermineskin First Nation's affairs. The Court of Queen's Bench for Alberta continues to exercise a
degree of supervision of the respondent so that the change will be less than it
would otherwise have been.
[7]
Therefore,
there will be an order staying the execution of the order of Mr. Justice
Lemieux of the Federal Court dated December 20, 2006, until such time as the
appeal of that order is heard and decided. If the appellants do not prosecute
their appeal with diligence, the respondent will be given leave to move for the
dissolution of the stay of execution.
"J.D.
Denis Pelletier"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-45-07
STYLE OF CAUSE: ERMINESKIN
CREE NATION and ERMINESKIN TRIBAL COUNCIL and GEORGE LESLIE MINDE
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: PELLETIER J.A.
DATED: April 11, 2007
WRITTEN
REPRESENTATIONS BY:
David F. Holt
|
FOR
THE APPELLANTS
|
James L. Dixon, Q.C.
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
Hladun & Company
Edmonton,
Alberta
|
FOR
THE APPELLANTS
|
Dixon & Associates
Red
Deer, Alberta
|
FOR
THE RESPONDENT
|