Tribal Wi-Chi-Way-Win Capital Corp. v. Stevenson et al., (2009) 240 Man.R.(2d) 122 (CA)

• Judge: Scott, C.J.M., Chartier and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 18, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 240 Man.R.(2d) 122 (CA);2009 MBCA 72

Wi-Chi-Way-Win v. Stevenson (2009), 240 Man.R.(2d) 122 (CA);

      456 W.A.C. 122

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JL.001

Tribal Wi-Chi-Way-Win Capital Corporation (applicant/respondent) v. Louis John Stevenson, also known as Louis J. Stevenson, also known as Louis Stevenson, carrying on business as LJS Midway (respondent/appellant)

(AI 09-30-07106; 2009 MBCA 72)

Indexed As: Tribal Wi-Chi-Way-Win Capital Corp. v. Stevenson et al.

Manitoba Court of Appeal

Scott, C.J.M., Chartier and MacInnes, JJ.A.

June 18, 2009.

Summary:

A receiver took possession of a gas station located on Peguis First Nation Reserve and sought an order approving the sale of the gas station to the Peguis First Nation. The debtor, who was a member of the band who resided on the reserve, asserted that the receiver lacked the legal authority to seize the gas station by virtue of s. 89 of the Indian Act, which exempted from seizure and execution chattels located on an Indian reserve.

The Manitoba Court of Queen's Bench, in a decision reported at (2009), 237 Man.R.(2d) 94, approved the sale. The debtor appealed.

The Manitoba Court of Appeal dismissed the appeal.

Indians, Inuit and Métis - Topic 825

Personal or legal rights - Property exempt from alienation - Waiver - Section 89 of the Indian Act exempted from seizure and execution chattels located on an Indian reserve - A receiver took possession of a gas station located on the Peguis First Nation Reserve and sought an order approving the sale of the gas station to the Peguis First Nation - The debtor, who was a member of the band who resided on the reserve, asserted that the receiver lacked the legal authority to seize the gas station by virtue of s. 89 - A motions judge held that the debtor had effectively waived his protection under s. 89 - The promissory notes, general security agreement and an authorization and consent executed by the debtor in his personal capacity and in his capacity as Chief and with the support of three band councillors showed a clear intent to ensure that enforcement of the loans and the lender's exercise of its security rights would not be interfered with on the reserve lands - The sale was approved - The debtor appealed - The Manitoba Court of Appeal dismissed the appeal - The motions judge's decision was entirely consistent with the authorities that established that an "Indian" could effectively waive the protection of s. 89 of the Act with respect to a commercial transaction on a reserve.

Cases Noticed:

Brooks (J.E.) and Associates Ltd. v. Kingsclear Indian Band et al. (1991), 118 N.B.R.(2d) 290; 296 A.P.R. 290 (C.A.), refd to. [para. 4].

Martin (L.) (1984) Inc. v. Shubenacadie Indian Band et al. (1995), 144 N.S.R.(2d) 241; 416 A.P.R. 241 (C.A.), refd to. [para. 4].

McDiarmid Lumber Ltd. v. God's Lake First Nation et al., [2006] 2 S.C.R. 846; 356 N.R. 1; 212 Man.R.(2d) 7; 389 W.A.C. 7; 2006 SCC 58, refd to. [para. 5].

Counsel:

L.A.E. Oakes, for the appellant;

G.A. Stefanson and H.D. Cochrane, for the respondent;

A.J. Stacey, for the Receiver, Lazer Grant Inc.;

J.R.N. Boudreau, on a watching brief for Peguis First Nation.

This appeal was heard on June 18, 2009, by Scott, C.J.M., Chartier and MacInnes, JJ.A., of the Manitoba Court of Appeal. On the same date, Chartier, J.A., pronounced the following decision for the court.