Cottrell v. Chippewas of Rama Mnjikaning First Nation, (2009) 342 F.T.R. 295 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: January 20, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 342 F.T.R. 295 (FC);2009 FC 261

Cottrell v. Chippewas (2009), 342 F.T.R. 295 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. MR.033

James Edwin Cottrell (applicant) v. Chippewas of Rama Mnjikaning First Nation Band Council (respondent)

(T-1682-07; 2009 FC 261)

Indexed As: Cottrell v. Chippewas of Rama Mnjikaning First Nation

Federal Court

Russell, J.

March 16, 2009.

Summary:

The Chippewas Rama Mnjikaning First Nation Band Council evicted the applicant from his rental accommodations on the Rama First Nation Reserve. The applicant applied for judicial review of the decision.

The Federal Court dismissed the application.

Editor's note: The applicant's motion for an extension of time to file this application was granted at [2007] F.T.R. Uned. 148 (T.D.), affd. (2007), 368 N.R. 283 (F.C.A.).

Administrative Law - Topic 2270

Natural justice - The duty of fairness - Circumstances or powers to which duty does not apply - The Chippewas Rama Mnjikaning First Nation Band Council evicted the applicant from his rental accommodations on the Rama First Nation Reserve - The applicant had a severe and rare neurological condition - He sometimes used alcohol to excess - The Band Council alleged that he used emergency services to provide home support services - The applicant acknowledged using emergency services because they were the only other source of support he could access - He was also in substantial arrears of his rent - The eviction notice relied on a clause that permitted termination when the tenant was incapable of independent living - The applicant applied for judicial review - At issue was whether a band council owed a public law duty of procedural fairness where the decision complained of was made in accordance with a private law tenancy agreement between the parties that specifically provided for the band to make the decision in question - The Federal Court dismissed the application - The agreement between the parties was a "private law contract" - As in Gamblin v. Norway House Cree Nation Band Council (2002, FCA), the court had not been referred to any authority which held that there was an obligation on the Band Council to provide a hearing concerning the enforcement of the terms of tenancy agreements into which it entered - In fact, the two Gamblin decisions (TD and FCA) suggested that, in a situation such as the present, no duty of fairness arose over and above the contractual relationship.

Indians, Inuit and Métis - Topic 5516

Lands - Reserves or Métis lands - Band housing - [See Administrative Law - Topic 2270 ].

Indians, Inuit and Métis - Topic 6222.2

Government - Band councils (incl. chief and councillors) - Duty of procedural fairness - [See Administrative Law - Topic 2270 ].

Cases Noticed:

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 26].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 27].

Angus et al. v. Chipewyan Prairie First Nation Tribal Council (2008), 334 F.T.R. 187 (F.C.), refd to. [para. 28].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Pete v. Canada (Attorney General) et al. (2005), 276 F.T.R. 305; 2005 FC 993, refd to. [para. 28].

Vollant v. Sioui et al. (2006), 295 F.T.R. 48 (T.D.), refd to. [para. 28].

Whitebear Band Council v. Carpenters Provincial Council of Saskatchewan and Labour Relations Board (Sask.), [1982] 3 W.W.R. 554; 15 Sask.R. 37 (C.A.), refd to. [para. 30].

R. v. Paul Indian Band and Alberta (Attorney General) and Canada (Attorney General), [1984] 2 W.W.R. 540; 50 A.R. 190 (C.A.), refd to. [para. 30].

Sparvier v. Cowessess Indian Band No. 73, [1993] 3 F.C. 142; 63 F.T.R. 242 (T.D.), refd to. [para. 30].

CHC Casinos Canada Ltd. v. Chippewas of Mnjikaning First Nation Band Council (2005), 265 F.T.R. 240 (F.C.), refd to. [para. 31].

Campbell v. Elliot et al., [1988] 4 C.N.L.R. 45 (F.C.T.D.), refd to. [para. 34].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 36].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 41].

Peace Hills Trust Co. v. Mocassin et al. (2005), 281 F.T.R. 201 (F.C.), refd to. [para. 42].

Peace Hills Trust Co. v. Saulteaux First Nation - see Peace Hills Trust Co. v. Mocassin et al.

Webb v. Ontario Housing Corp. (1978), 93 D.L.R.(3d) 187 (Ont. C.A.), refd to. [para. 43].

Price v. Turnbull's Grove Inc. (2007), 225 O.A.C. 1; 85 O.R.(3d) 641 (C.A.), refd to. [para. 45].

Apartment and Housing Services Queen's University v. Clandfield et al. (2001), 146 O.A.C. 299; 54 O.R.(3d) 475 (C.A.), refd to. [para. 46].

Buffalo v. Canada (Minister of Indian Affairs and Northern Development), [2003] 1 C.N.L.R. 1; 226 F.T.R. 65 (T.D.), refd to. [para. 49].

Gilbert et al. v. Abbey, [1992] B.C.T.C. Uned. 734; [1992] 4 C.N.L.R. 21 (S.C.), refd to. [para. 49].

Obichon v. Heart Lake First Nation No. 176, [1989] 1 C.N.L.R. 100; 21 F.T.R. 1 (T.D.), dist. [para. 52].

Sheard and Weston v. Chippewas of Rama First Nation Band Council (1996), 114 F.T.R. 44 (T.D.), dist. [para. 52].

Gamblin et al. v. Norway House Cree Nation Band Council (2000), 198 F.T.R. 242 (T.D.), affd. (2002), 296 N.R. 232 (F.C.A.), consd. [para. 52].

Counsel:

Linda Rothstein and Erin Burbridge, for the applicant;

Brendan Van Niejenhuis and Owen Rees, for the respondent.

Solicitors of Record:

Paliare Roland Rosenberg Rothstein, LLP, Toronto, Ontario, for the applicant;

Stockwoods, LLP, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on January 20, 2009, by Russell, J., of the Federal Court, who delivered the following reasons for decision on March 16, 2009.