Digests

Miles v. Whitefish River First Nation

T-747-97

2001 FCT 610, Blais J.

8/6/01

19 pp.

Motion by Crown for order setting aside, varying order of Jerome A.C.J. prohibiting Crown from taking further steps to terminate lease, evict plaintiff--Plaintiff's father entering into 21-year lease with Crown in 1978 for lease of lot in Whitefish River Indian Reserve--In 1991 lease assigned to Whitefish River First Nation by means of addendum to lease--In 1994 Minister advising plaintiff Whitefish River First Nation assuming delegated authority of Minister to manage lands on reserve--Plaintiff commencing action in 1997 for interim injunction prohibiting Crown from taking any further steps to terminate lease, evict plaintiff--Jerome A.C.J. dismissing Crown's motion for summary judgment, staying action pending final determination of action in T-234-92; issuing interim injunction prohibiting defendant from taking any further steps to terminate lease--Lease expired in 1998--Crown, First Nation neither renewing nor extending term of lease--But plaintiff stating gave notice pursuant to term of lease giving lessee right to renew lease upon giving lessor twelve months' notice prior to expiration of term--Crown relying on terms of lease giving Minister power to declare lease terminated if lessee failing to pay rent due or if lessee filing petition in bankruptcy; alleging rent in arrears, plaintiff making assignment in bankruptcy without ever advising either Department of Indian Affairs and Northern Development or Band--Minister agreeing lease should be terminated but Jerome A.C.J.'s order prohibiting such action--Judgment rendered in T-234-92 on July 16, 1998; appeal therefrom heard in April 4, 2001 but no judgment rendered as of June 8, 2001--Federal Court Rules, 1998, r. 399(2)(a) permitting Court to set aside, vary order by reason of matter arising or discovered subsequent to making of order--Plaintiff's failure to pay rent owing, assignment in bankruptcy new matters discovered subsequent to Jerome A.C.J.'s order and applicant could not with reasonable diligence have discovered them sooner--Issue whether new matters sufficient to vary or set aside Jerome A.C.J.'s order--Chappell v. Times Newspapers Ltd., [1975] W.L.R. 482 (C.A.) holding if one party seeking relief, must be ready and willing to do part in contract--Court not convinced plaintiff intended to pay rent: although lease indicating $2,078 due annually, plaintiff deciding had to pay $1,265--Addendum to lease providing for referral to Federal Court where lessee disagreeing with determination of rent i.e. must pay rent, grieve later--Also plaintiff always late in sending cheques, and always sending cheques to Department of Indian Affairs, even though clearly notified since 1994 that had to pay it to Band, and never sending returned cheques to Band--Plaintiff not complying with terms of lease--Clearly plaintiff relying on Jerome A.C.J.'s decision, deciding not to fulfill obligations pursuant to lease--New matters raised sufficient to set aside Jerome A.C.J.'s order and to decide in favour of Crown--Federal Court Rules, 1998, SOR/98-106, r. 399(2)(a).