Thomas v. Enoch Housing Authority Ltd., 2013 ABQB 341

Court of Queen ’ s Bench of Alberta Citation: Thomas v. Enoch Housing Authority Ltd., 2013 ABQB 341 Date: 20130611 Docket: 1303 07722 Registry: Edmonton Between: Dempsey Thomas and Mandy Thomas Plaintiffs/Applicants - and - Enoch Housing Authority Ltd. Defendant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F.

Macklin _______________________________________________________ Introduction [ 1 ] The Applicants sought to extend a stay of their eviction from the Enoch Reserve until their application for judicial review is heard in Federal Court. I have determined that this Court does not have jurisdiction to consider the application for injunctive relief. Background

[ 2 ] Dempsey Thomas has been charged with drug trafficking but has not yet been tried. He was also allegedly found in possession of seven unregistered firearms. [ 3 ] A letter dated May 14, 2013 from the Enoch Cree Nation (ECN) to Dempsey provided notice that his right to reside on ECN had been revoked under s. 7.1(

b) of the By-Law No. 2003-900(

L) of the Enoch Cree Nation Governing the Residence of Band Members and Other Persons on the Enoch Cree Nation (the By-Law).

Section 7.1(

b) provides that an offender may have his residency revoked immediately should the Chief and Council and/or the sanctioning body determine that the offence was serious enough that it would be detrimental to the best interests of ECN to permit the person to continue to reside on the ECN. The letter also cites a ground set out s. 11.1(

a) of the By-Law: the personal safety of the petitioner or another resident of ECN is in danger. [ 4 ] Attached to a notice bearing the same date is a copy of ss. 16.4 and 16.5 of the Enoch Housing Authority Ltd. Policy Manual.

Those provisions prohibit tenants from doing anything that would be a nuisance or threaten the safety or well-being of other tenants or neighbours, and from performing illegal acts or carrying on illegal trade in or around the premises. [ 5 ] Enoch Housing Authority Ltd. (the Respondent) issued an eviction order dated May 24, 2013 against Dempsey Thomas and Mandy Thomas (the Applicants) requiring them to be out of their house on the Enoch Reserve no later than 12:00 noon on May 31, 2013. The order cites s. 16.5 of the Enoch Housing Authority Ltd.

Policy Manual: “ the tenant shall not perform illegal acts or carry on an illegal trade, business or occupation in or around the premises ” . [ 6 ] Dempsey Thomas appealed the eviction by letter dated May 26, 2013 to the Chief and Council, and requested a stay of the eviction until the appeal was heard. [ 7 ] Mandy Thomas filed an Originating Application and appeared on her own behalf in an emergency application before this Court on May 30, 2013. She referred to s. 11.1(

c) of the By-Law which provides that a person may be evicted where he has, while a resident of ECN, been convicted of an indictable offence under the Criminal Code for which a pardon has not been granted.

Section 11.10 provides that no revocation of a resident ’ s entitlement to reside on the ECN shall affect the entitlement of the spouse and children of that resident to continue to reside on the ECN.

Section 11.11 provides a right of appeal to the Chief and Council. [ 8 ] Mandy Thomas argued before this Court that the Applicants had been served with an improper eviction order, and Enoch was in breach of the By-Law. She sought an injunction staying the eviction until completion of the criminal trial of Dempsey Thomas, and staying the eviction of Mandy Thomas and her children based on s. 11.10 of the By-Law. [ 9 ] On May 30, 2013, this Court ordered a stay of the eviction until June 5, 2013 at 12:00 noon.

The order provided that if the appeal to the Chief and Council, to be heard on May 31, 2013, was unsuccessful, the Applicants would have until June 5, 2013 at 12:00 noon to commence alternate proceedings for a review of the decision of the Chief and Council. [ 10 ] On May 31, 2013, the Chief and Council denied the appeal. On June 4, 2013, the Applicants filed a judicial review application in Federal Court.

The application is scheduled to be heard on June 24, 2013. [ 11 ] On June 4, 2013, the Applicants also applied in this Court for an extension of the stay until disposition of the judicial review in Federal Court.

Mandy Thomas stated her understanding that it would take some time to obtain an injunction hearing in Federal Court. [ 12 ] The Court adjourned and extended the stay until June 10, 2013 to allow the parties to prepare argument with respect to the Court ’ s jurisdiction, given the nature of the matter and the Federal Court proceedings, and to provide information regarding the availability and timing of injunctive relief in the Federal Court and the judicial review hearing. [ 13 ] On June 10, 2013, the parties advised the Court that the Federal Court heard an emergency application by the Applicants on

June 9 for a stay of the eviction order. I was advised that the Federal Court had confirmed its jurisdiction to hear the application and then dismissed it on the basis that no irreparable harm would be suffered by the Applicants (as the financial consequences are not irreparable) and the balance of convenience favoured the Respondent (possession of marijuana and firearms impacted on the safety of the community). [ 14 ] I advised the parties that this Court had no jurisdiction to hear any further applications in this matter and that my reasons would be provided to them. These are those reasons. Legislation [ 15 ] The Federal Courts Act , RSC 1985, c F-7 provides: 18.

(1) Subject to

section 28, the Federal Court has exclusive original jurisdiction (

a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (

b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. [ 16 ]

Section 2 defines "federal board, commission or other tribunal" as: any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under

an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under

section 96 of the Constitution Act, 1867 ; [ 17 ] Sections 18.1 to 18.3 set out the procedure by which parties may obtain the relief sought under s.

Section 18.2 provides: 18.2 On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application. Case Law [ 18 ] In Horseman v Horse Lake First Nation , 2005 ABCA 15 , 361 AR 287 , the majority stated: 63 It is well settled that a First Nation Council is a "federal board, commission or other tribunal" within the meaning of s. 2 of the Federal Courts Act . ...

In determining whether the Federal Court has exclusive as opposed to concurrent original jurisdiction, it is essential to assess the substance of the Respondent's claim. It is the substance of that claim and its essential nature and not the form of legal drafting that must govern the analysis. [citations omitted] [ 19 ] In Felix v Sturgeon Lake First Nation , 2011 FC 1139 , 398 FTR 88 , B é dard J. noted: 15 It is widely accepted that a band council is a "federal board, commission or other tribunal" for the purposes of subsection 2(1) of the FCA.

This Court ... decided that even a band council elected pursuant to band custom, as opposed to the provisions of the Indian Act ,

is a federal board for the purposes of subsection 2(1) of the FCA ... In Sparvier v. Cowessess Indian Band #73 ...

Justice MarshallRothstein reasoned that because a band council elected pursuant to customary aboriginal law is a federal board, an election AppealTribunal elected pursuant to customary aboriginal law is also, logically, a federal board for the purposes of the FCA. [citations omitted] [20] It has also been held that a motion for interim injunction against a band council is within the exclusive jurisdiction of theFederal Court: Rider v Ear, (AB KB), [1979] 6 WWR 226 (Alta SC TD). [21] In Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 Binnie J. noted: 34 The genesis of the Federal Courts Act lies in Parliament's decision in 1971 to remove from the superior courts of the provinces thejurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunals. [22] The scope of the Federal Court’s exclusive jurisdiction in relation to injunctions against federal boards and commissions wasdiscussed by the Supreme Court in Canada (Attorney General) v TeleZone Inc, 2010 SCC 62, [2010] 3 SCR 585.

In that case, TeleZonewas not attempting to set aside the Minister's order; rather it claimed that the Minister had breached his contractual and equitable duties,or a duty of care. In holding that the superior court had jurisdiction to proceed, the Court noted that the grant of exclusive jurisdiction tojudicially review federal decision makers in s. 18 of the Federal Courts Act was expressed in terms of particular remedies, which did notinclude an award of damages: 52 All of the remedies listed in s. 18(1)(

a) are traditional administrative law remedies, including the four prerogative writs - certiorari,prohibition, mandamus and quo warranto - and declaratory and injunctive relief in the administrative law context.

Section 18 does notinclude an award of damages. If a claimant seeks compensation, he or she cannot get it on judicial review. By the same token, theplaintiff in a damages action is not entitled to add a supplementary claim for a declaration or injunction to prevent the government fromacting on a decision said to be tainted by illegality. That is the domain of the Federal Court. [23] The Applicants rely on Kwikwetlem Indian Band v Cunningham, 2009 BCSC 1032, [2009] 4 CNLR 137 as supporting theCourt’s authority to issue injunctive relief in a residential tenancy matter in relation to a reserve.

In that case, the band alleged trespassand applied for an order for vacant possession. It took the position that it was seeking to enforce a simple tenancy agreement under itshousing policy, which was outside the Indian Act and did not transfer ownership or possession away from the band to the individual. TheCourt held that it had jurisdiction to address issues pertaining to reserve lands: 21 In my view, the jurisdiction issue has been settled against that argument in Lower Nicola Indian Band v.

Trans-Canada DisplaysLtd., 2000 BCSC 1209, [2000] 4 C.L.N.R. 185 [Lower Nicola], at para. 111: [111] In a number of earlier decisions, this Court has assumed jurisdiction to address claims for declaratory relief involving adetermination of when a member of a band is lawfully in possession of land on a reserve. I am also of the view that the jurisdiction toaddress issues involving reserve lands is not limited to the Federal Court. I am satisfied this Court may determine such an issue in thiscase.

Furthermore, to decline to assume jurisdiction, in my view, effectively would deny a whole group of citizens reasonable access,including geographical convenience, to the Canadian justice system which exists for the resolution of disputes for all of its citizens. See also Joe v. Findlay (1978), (BC SC), 87 D.L.R. (3d) 239 at 242 (B.C.S.C.), aff'd (1981), (BCCA), 122 D.L.R. (3d) 377 (B.C.C.A.) ("Joe v. Findlay"). [24] In Lower Nicola Band, the band had also sued in trespass. [25] Similarly, in Joe v Findlay, the band sued in trespass and sought damages and to restrain possession.

The Court held thatthere was no provision in the Indian Act which ousted the jurisdiction of the Court to hear an action for trespass brought by a bandagainst an Indian. Berger J. (in chambers) held:

16 If the band can allot possession to an Indian, then the band must have possession in the first instance. The defendant has no allotment from the Council. Thus he is not in lawful possession of the land that he is occupying. Possession is in the band and not in the Crown, the band can sue in this Court, and the provisions of the Federal Court Act do not apply. The scheme of the Act for the management of reserve lands by Indian bands would be impeded if such a fundamental legal remedy as ejectment were not available to the band suing in its own behalf before the ordinary Courts of the Province.

In affirming the decision, the Court of Appeal did not comment on jurisdiction. Analysis [ 26 ] In the case before this Court, the Applicants have applied in Federal Court for judicial review of the decision of the Council and Chief.

That application can only be characterized as an application for relief against a federal board or commission under s. 18 of the Federal Courts Act . [ 27 ] This case is distinguishable from the applications in Kwikwetlem , Nicola and Joe in that those were trespass actions brought by bands seeking relief against individuals and corporations; no relief was sought in those actions against a federal board or commission. [ 28 ] Further, the nature of the relief which the Applicants are seeking in Federal Court falls squarely within the parameters of s. 18 .

The Applicants seek to quash, through judicial review, an appeal decision rendered by the Chief and Council. The Applicants properly chose to institute those proceedings in the Federal Court. [ 29 ] The Federal Court, a creature of statute, has no inherent jurisdiction. However, s. 18.2 of the Federal Courts Act empowers the Federal Court to make any interim orders on an application for judicial review that it considers appropriate pending the final disposition of the application.

In my view, even if this Court had concurrent jurisdiction, it would be appropriate to decline jurisdiction to avoid potentially conflicting decisions. Further, for reasons of efficiency, it makes sense for the Federal Court to deal with interim orders in matters pending before it where it has statutory authority to do so. [ 30 ] The Applicants initially raised concerns regarding timely access to the Federal Court for interim relief. Roberts v Roseau River Anishinabe First Nation , 2010 FC 377 , [2010] FCJ No 425 was an eviction matter arising in Ginew, Manitoba, but heard by video conference in Ottawa.

Mactavish J. recounted the procedural history of the matter, including that counsel filed a motion for injunctive relief on April 1, 2010, seeking to have the matter heard on an ex parte basis. Tremblay-Lamer J. directed that the respondents be provided with notice of the motion, and the motion was heard by Mactavish J. on an urgent basis on April 7, 2010. [ 31 ] Further, as evidenced in this case, the Federal Court has the ability to hear emergency matters in a timely fashion.

The parties here applied for an emergency hearing before the Federal Court on June 7 and were heard on Sunday, June 9, 2013. [ 32 ] It appears from the history recounted in Roberts and the events in this case that the Federal Court has the capacity to address injunction and stay applications on an urgent basis without great inconvenience to the parties. Therefore, I need not decide whether extenuating circumstances might create jurisdiction in this Court.

Conclusion [ 33 ] I conclude, based on the foregoing case law and legislation, that this Court does not have jurisdiction to consider the Applicants ’ request for injunctive relief pending the hearing of their judicial review application in Federal Court. [ 34 ] Therefore, the application is dismissed.

Heard on May 31, June 4 and June 10, 2013. Dated at the City of Edmonton, Alberta this 11 th day of June 2013. Eric F. Macklin J.C.Q.B.A. Appearances: The Applicants appeared on their own behalf. W. Willier for the Respondent