Derrickson v. Kennedy, (2006) 229 B.C.A.C. 96 (CA)

• Judge: Ryan, Newbury and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 23, 2006
• Jurisdiction: British Columbia
• Citations: (2006), 229 B.C.A.C. 96 (CA);2006 BCCA 356

Derrickson v. Kennedy (2006), 229 B.C.A.C. 96 (CA);

    379 W.A.C. 96

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. AU.002

Ronald Michael Derrickson (respondent/plaintiff) v. Roberta Lillie Esther Kennedy (appellant/defendant) and Robert Kennedy (defendant)

(CA033732; 2006 BCCA 356)

Indexed As: Derrickson v. Kennedy

British Columbia Court of Appeal

Ryan, Newbury and Lowry, JJ.A.

July 27, 2006.

Summary:

The plaintiff sued for possession of lands situated on a First Nation Reserve.

The British Columbia Supreme Court allowed the action. The defendant appealed.

The British Columbia Court of Appeal dismissed the appeal.

Editor's note: The British Columbia Court of Appeal, per Donald, J.A., in chambers, in a decision reported 224 B.C.A.C. 115; 370 W.A.C. 115, dismissed the defendant's application for stay of execution pending appeal.

Indian, Inuit and Métis - Topic 5510

Lands - Reserves or Métis lands - Certificate of possession - The plaintiff held a certificate of possession for a property subject to a lease between the Westbank First Nation, as lessor, and the defendant, as tenant - Westbank cancelled the lease because the defendant failed to pay the property taxes payable by a tenant or occupier of land to Westbank - The plaintiff sued the defendant for possession - The defendant made a collateral attack on Westbank's authority to levy the taxes - The summary trial judge dismissed the collateral attack and held that the plaintiff was entitled to possession of the property - The judge ruled that any argument that the tenant had respecting taxation was properly taken up with the taxation authority and not the possessor of the land being taxed - The British Columbia Court of Appeal upheld the decision.

Cases Noticed:

Westbank First Nation v. British Columbia Hydro and Power Authority (1997), 100 B.C.A.C. 92; 163 W.A.C. 92; 45 B.C.L.R.(3d) 98 (C.A.), affd. [1999] 3 S.C.R. 134; 246 N.R. 201; 129 B.C.A.C. 1; 210 W.A.C. 1, consd. [para. 12].

Smith v. Vermillion Hills (Rural Municipality) (1916), 30 D.L.R. 83 (P.C.), refd to. [para. 13].

Ontario English Catholic Teachers' Association et al. v. Ontario (Attorney General) et al., [2001] 1 S.C.R. 470; 267 N.R. 10; 144 O.A.C. 1, refd to. [para. 14].

Chapman et al. v. Canada et al. (2003), 190 B.C.A.C. 241; 311 W.A.C. 241; 21 B.C.L.R.(4th) 290; 2003 BCCA 664, dist. [para. 15].

Derrickson v. Kennedy (2006), 224 B.C.A.C. 115; 370 W.A.C. 115; 2006 BCCA 141, consd. [para. 15].

Counsel:

R.V.M. Kennedy, agent for the appellant;

D.L. Polley, for the respondent.

This appeal was heard at Vancouver, B.C., on June 23, 2006, by Ryan, Newbury and Lowry, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., by Newbury, J.A., on July 27, 2006.