Cottrell v. Chippewas Band Council, (2007) 368 N.R. 283 (FCA)

• Judge: Létourneau, Sharlow and Trudel, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 13, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 368 N.R. 283 (FCA);2007 FCA 288

Cottrell v. Chippewas Band Council (2007), 368 N.R. 283 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. SE.024

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

(A-131-07; 2007 FCA 288)

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

Federal Court of Appeal

Létourneau, Sharlow and Trudel, JJ.A.

September 17, 2007.

Summary:

Cottrell was a status Indian residing on a rental property on the defendant band's reserve. He was entitled to own the property after 15 years. In his 12th year of renting, he was evicted under a lease provision that gave the band the discretionary right of termination where the tenant was unable to live independently. Cottrell sought legal assistance and underwent a capacity assessment. Eighty days after the expiry of the statutory deadline for commencing judicial review of the band's decision, Cottrell sought an extension of time.

The Federal Court, in a decision reported at [2007] F.T.R. Uned. 148, allowed the application. The band appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - Cottrell was a status Indian residing on a rental property on the defendant band's reserve - He was entitled to own the property after 15 years - In his 12th year of renting, he was evicted under a lease provision that gave the band the discretionary right of termination where the tenant was unable to live independently - Cottrell sought legal assistance and underwent a capacity assessment - Eighty days after the statutory deadline for commencing judicial review of the band's decision expired, Cottrell obtained an extension of time - The Federal Court of Appeal dismissed the band's appeal - The court rejected the band's argument that some members might suffer prejudice because there was a waiting list for reserve housing - The loss of an opportunity to challenge the eviction outweighed any temporary prejudice - Cottrell had a continuing intention to pursue the application, a reasonable explanation for the delay and an arguable case - The band's position that the matter was outside of the court's jurisdiction because it involved the private law right of the First Nation to terminate a lease was arguable as well - There was no error in the motion judge's decision.

Courts - Topic 4072

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Limitation periods (incl. extension of) - [See Administrative Law - Topic 3342.1 ].

Indians, Inuit and Métis - Topic 5516

Lands - Reserves - Band housing - [See Administrative Law - Topic 3342.1 ].

Cases Noticed:

Jakutavicius v. Canada (Attorney General) (2004), 327 N.R. 239; 2004 FCA 289, refd to. [para. 12].

Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263; 63 N.R. 106 (F.C.A.), refd to. [para. 12].

Chinese Business Chamber of Canada et al. v. Canada (Minister of Citizenship and Immigration) et al. (2006), 349 N.R. 388; 2006 FCA 178, refd to. [para. 13].

LeBlanc v. National Bank of Canada, [1994] 1 F.C. 81 (T.D.), refd to. [para. 15].

Apv Canada Inc. et al. v. Minister of National Revenue (2001), 208 F.T.R. 81; 2001 FCT 737, refd to. [para. 15].

Gamblin et al. v. Norway House Cree Nation Band Council (2002), 296 N.R. 232; 2002 FCA 385, refd to. [para. 16].

Obichon v. Heart Lake First Nation No. 176 (1988), 21 F.T.R. 1 (T.D.), refd to. [para. 16].

Counsel:

M. Philip Tunley and Brendan Van Niejenhuis, for the appellant;

Chris Paliare and Amanda Dodge, for the respondent.

Solicitors of Record:

Stockwoods LLP, Toronto, Ontario, for the appellant;

Paliare, Roland, Rosenberg, Rothstein LLP, Toronto, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on September 13, 2007, by Létourneau, Sharlow and Trudel, JJ.A., of the Federal Court of Appeal. Trudel, J.A., delivered the following reasons for judgment for the court on September 17, 2007.