Hagwilget Band Council v. Canada ( Minister of Indian Affairs and Northern Development )
T-1154-89
Hargrave P.
24/6/96
11 pp.
In 1958 Government of Canada contributing to cost of land acquisition, construction of St. Mary's School, in return for which Church agreeing to accept Roman Catholic children of Indian status-Government later contributing 50% of cost of additions in return for which more Indian students accepted-In 1983 plaintiffs commencing action in B.C. Supreme Court for unrestricted access to school property-In 1989 B.C. Court of Appeal holding B.C. Supreme Court without jurisdiction in action against federal Crown-Present action commenced in 1989-Examinations for discovery between Crown, plaintiff taking place in 1991, although still outstanding answers due-No proceedings as against Church since 1989-School no longer required and needing repairs-Parish wanting to demolish classrooms-Hall costing $20,000 per year to heat, needing new roof-Substantial portion of evidence recollections of those involved with School project 38 years ago-Crown's principal witness no longer able to be witness due to medical problems-Church's principal witness now 87, memory failing-Allen v. McAlpine (Sir Alfred) & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.) setting out test to be applied in determining motion to dismiss for want of prosecution: (1) whether inordinate delay; (2) whether delay inexcusable; (3) whether defendants likely to be seriously prejudiced by delay-Whether delay inordinate depending upon all surrounding circumstances-Plaintiffs, by action and lis pendens lodged against title, not only preventing Church from dealing with, maintaining hall, but also forcing Church to spend money on heating hall-In interest of all concerned to have matter dealt with expeditiously-Loss of Crown's principal witness, also resulting, should action proceed, in further costs-From perspectives of Church, Crown, delay undue-Seven years since Federal Court action commenced inordinate-That two witnesses no longer available prejudicial as preventing Crown, Church from being able to put forward best defences-No explanation for delay between summer of 1993 and bringing of this motion-In two months between notice of impending motion to dismiss and hearing, Band only passing resolution to reaffirm decision to proceed vigorously with case through Courts-Application allowed-Federal Court Rules, C.R.C., c. 663, R. 440.