Cooper v. Tsartlip Indian Band
A-617-94
Marceau J.A.
12/6/96
10 pp.
Appeal from Trial Division's decision amending judgment to exclude damages but otherwise refusing to set aside default judgment, to strike statement of claim and to change prothonotary's award of costs-Plaintiff making agreement in 1942 with defendant for purchase of reserve land-Plaintiff paying total of $2200 to defendant and son-Defendant and son transferring land to Band in 1982 and land set aside for building of school-Court cannot grant relief to plaintiff clearly not legally entitled only on basis of allegations of statement of claim taken as proven-Relief cannot be granted only because defendant failed to appear in time-May be possible to bring question of whether allegations may give rise to relief sought under heading of jurisdiction in broad sense but remains preliminary question independent of defendant's behaviour-In dealing with application to set aside default judgment, Court must ensure question properly disposed of-In present case, plaintiff could not claim legal entitlement to land solely on basis of 1942 agreement and interest in land acknowledged by members of Band until 1982-Plaintiff never granted certificate of possession in accordance with Indian Act, s. 20 therefore declaration plaintiff entitled to possession inconsistent with legislation and devoid of basis in law-Allegations therefore cannot support issuance of writ of certiorari quashing Minister of Indian Affairs' decision approving transfer of land to Band in 1982-Further, writ of certiorari quashing Minister's approval could not be sought in action in which Minister not made party-Judgment should not have been rendered and could only be set aside-Appeal granted, default judgment set aside, statement of claim struck and action dismissed-Indian Act, R.S.C., 1985, c. I-5, s. 20.