Date: 20010125
Docket: T-132-01
BETWEEN:
| RODNEY McALLISTER, ROGER STONEY, CAROL FERGUSON, CHARLES J. McALLISTER, KEN WHITFORD, GARY GORDON GRANGER, DWAYNE McALLISTER, REGINALD ALAN McALLISTER, SANDRA SIDOR, MYRTLE BERNICE GRANGER, EILEEN HAZEL McALLISTER, BARRY ALLAN FERGUSON, JUANITA ANNETTE DEI, WILLIAM DARREN GRANGER, BERYL THARP, ALVIN THARP, LLOYD SINCLAIR, DONNA ROSE CUMMINGS, VIOLET JEAN RUSSELL, TOMMY McALLISTER, GWEN MARIE CUMMINGS, FREDRICK DAVID CUMMINGS, MARILYN FERGUSON, REBECCA J. FERGUSON, BOBBI-JO HELLE-REBER, KATHLEEN EVANS, BRUCE WAYNE McALLISTER, DAWN WALKER, MARY SUSAN DEBOLT, HENRY McALLISTER, JOHN WAYNE GRANGER, SUSAN GRANGER, JOSEPHINE HELLE, THELMA LOU BOYD, MELVIN MERVIN McALLISTER, MARTY SHANNON GRANGER, ROSE MARIE HELLE, MIKE WALKER, EUGENE McALLISTER AND NORMA CUMMINGS |
Plaintiffs
| - and - |
| HORSE LAKE FIRST NATION, CHIEF ROBERT HORSEMAN, COUNCIL OF THE HORSE LAKE FIRST NATION AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA AND THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT |
Defendants
REASONS FOR ORDER
DAWSON, J.:
[1] These are my reasons given orally from the bench, edited for grammar, in Edmonton, on Thursday, January 25th, 2001.
[2] At the outset I would like to thank counsel for their helpful submissions and their cogent written materials prepared on such short notice. I know how difficult that can be.
[3] Injunctive relief is extraordinary relief which is granted by the Court in limited cases to maintain the existing state of affairs so as to allow a plaintiff time to have his or her or their assertion to some right adjudicated upon.
[4] Because it is a serious matter to prevent some otherwise lawful action from occurring before the merits of a case can be finally ruled upon, a plaintiff is required to convince the Court of three things:
i) That they raise a serious question to be tried;
ii) That they will suffer irreparable harm if no injunction is granted;
iii) That the balance of convenience favours granting the injunction.
[5] Each element must be established and the failure to establish one is generally fatal to the claim to injunctive relief.
[6] Often the most troubling aspect is the balance of convenience.
[7] Here the Court is required to determine which of the two sides will suffer the greatest harm if the injunction is granted or is refused. The question is does the benefit the plaintiff will receive if the injunction is granted outweigh the convenience to the defendant of refusing the injunction? Put the other way, is the inconvenience to the defendant if the injunction is granted more substantial than the inconvenience to the plaintiff if the injunction is not granted?
[8] I have looked carefully at all of the evidence before me.
[9] The plaintiffs say that they have an entitlement to be informed about the proposed settlement and a right to vote on whether it is accepted or rejected. That right will be lost if the vote is not postponed.
[10] But the defendants say, and Mr. Glabb has sworn that: in the event the Court halts the referendum vote until the voting status of the plaintiffs is determined there is a serious likelihood that the Horse Lake First Nation will risk the loss of a right to interest payments under the agreement which may amount to at least a few million dollars and that it risks the loss of the agreement altogether by a government termination.
[11] Counsel for the plaintiffs fairly conceded that the plaintiffs are unable to provide any meaningful undertaking as to damages that would restore the Horse Lake First Nation to the position it would have been in if the settlement agreement is lost by government termination or if the Horse Lake First Nation loses substantial money on account of lost interest.
[12] There is no evidence before me and indeed no allegation that the proposed settlement is inprovident, or that the negotiation of it was in any way tainted with inpropriety. The plaintiffs have not shown that if accepted the actual terms of the settlement are prejudicial to them.
[13] Therefore the plaintiffs have not satisfied me that the balance of convenience favours the granting of the injunction.
[14] As a result:
1. The motion for interim or interlocutory injunctive relief is dismissed on the following terms:
(i) forthwith upon the counting of the ballots counsel for the plaintiffs are to be advised by telephone and by facsimile as to the result of the vote;
(ii) if the plurality of the vote is 37 votes or less the plaintiffs are at liberty to apply for further injunctive relief on additional evidence;
(iii) all ballots cast are to be provided, immediately after their counting, to counsel for the defendant First Nation to be maintained in a secure place until further order of the Court; and
(iv) any party is at liberty to apply to the Court for further directions.
2. The balance of the relief sought in the plaintiffs' notice of motion is adjourned to the Court's next general sitting in Edmonton on February 22nd, 2001.
3. The costs of this motion are to be in the cause.
"Eleanor R. Dawson"
Judge
| EDMONTON, Alberta |
January 25th, 2001.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-132-01
| STYLE OF CAUSE: Rodney McAllister and Others v. |
Horse Lake First Nation, and Others
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 25th, 2001
REASONS FOR ORDER OF DAWSON, J.
| DATED: January 25th, 2001 |
APPEARANCES:
Thomas D. Marriott and Kevin W. Fedorakfor the Plaintiffs
| H. Derek Lloyd and Heather L. Treacy for the Defendants |
| William P. Glabb Horse Lake First Nation |
| Barbara S. Ritzen and Shaun Mellen for the Defendants |
Department of Justice Her Majesty the Queen
SOLICITORS OF RECORD:
| Brownlee Fryett for the Plaintiffs |
Edmonton, Alberta
| Fraser Milner for the Defendants |
| Edmonton, Alberta Horse Lake First Nation |
| Morris Rosenberg for the Defendants |
| Deputy Attorney General of Canada Her Majesty the Queen |