SANDRA CROWCHILD, SHANE CROWCHILD v. THE ESTATE OF VIOLET CROWCHILD, 2018 FC 888

Date: 20180905 Docket: T-1444-18 Citation: 2018 FC 888 Ottawa, Ontario, September 5, 2018 PRESENT: The Honourable Mr. Justice Pentney BETWEEN: SANDRA CROWCHILD, SHANE CROWCHILD AND THE ESTATE OF VIOLET CROWCHILD Applicants and TSUU T’INA NATION Respondents ORDER AND REASONS [ 1 ] This is the latest

chapter in an ongoing dispute regarding the allocation of a portion of the " “Crowchild lands” " located on the Tsuu T’ina First Nation reserve. This decision concerns a motion brought by the Applicants seeking an interlocutory injunction to prevent the demolition of a house (known as the " “old house” " ) on this parcel of land. [ 2 ] The Applicants argue that the decision of the Tsuu T’ina Chief and Council to allocate the parcel of land to Regina Crowchild amounts to expropriation without compensation, and that the decision was taken in a manner which denied Shane Crowchild procedural fairness.

They have launched an application for judicial review to overturn that decision. In the meantime, they want an injunction to prevent the destruction of the old house. I. Background [ 3 ] The background to this dispute is set out in my decision relating to a previous application for judicial review: Crowchild v Tsuu T'ina Nation , 2017 FC 861 [ Crowchild I ]. Essentially, the underlying dispute relates to the application made by Regina Crowchild (who is a half-sister of Sandra Crowchild) to Tsuu T’ina, for land on the reserve to be allocated to her so that a house can be constructed.

In 2014, Tsuu T’ina decided to allocate funds to build a house for Regina Crowchild, since she wished to return to live on the reserve. The next step was to identify land on which the house would be built. [ 4 ] In September 2015, Tsuu T’ina decided to allocate a portion of the Crowchild lands to Regina Crowchild for the construction of this house. In Crowchild I that decision was overturned on the basis that the decision-making process was unfair to Sandra Crowchild. The matter was sent back to Chief and Council to re-consider.

They did so on May 24, 2018, after having heard from Sandra Crowchild and Regina Crowchild. For the second time, Tsuu T’ina decided to allocate twenty-five acres of the Crowchild lands to Regina Crowchild, so that a house can be constructed for her to reside on the reserve.

The old house sits on this property. [ 5 ] It is important to note that although the precise dimensions of the Crowchild lands are not exactly clear, it appears from the record that this parcel is well over 200 acres, and Sandra Crowchild now lives in a newer house on a separate portion of these lands. [ 6 ] Sandra Crowchild, Shane Crowchild, and the estate of Violet Crowchild have launched an application for judicial review of the most recent decision to allocate the land.

They submit that they have an interest in this parcel of land because the will of the late Violet Crowchild states that she wished the Crowchild lands, including this parcel, to go to Sandra and Shane Crowchild. [ 7 ] The Applicants here seek judicial review of the decision to allocate the land to Regina Crowchild. They claim that this is effectively a wrongful expropriation of the parcel of land, without compensation.

They also argue that the decision was taken in breach of procedural fairness, because it was made without the input or presence of Shane Crowchild, a member of the Tsuu T’ina First Nation who is directly affected by the decision. Finally, the Applicants submit that the decision to reallocate the land to another member is contrary to the common law of unjust enrichment and the law of equity. [ 8 ] Subsequent to the most recent decision to allocate the land, Tsuu T’ina took steps to commence the demolition of the old house so that the construction of a new house for Regina Crowchild could commence.

That has given rise to the present motion for an interlocutory injunction, to prevent the demolition of the house, pending the determination of the application for judicial review. [ 9 ] The application first came before Justice Diner as a motion for an emergency interim injunction. However, at that stage the Applicants had not filed their application for judicial review and the Crowchild I matter was closed, since no appeal was taken from that decision.

On July 24, 2018, Justice Diner dismissed the application for an injunction. [ 10 ] The Applicants then filed their application for judicial review, and their application for an emergency interim injunction came before Justice Mosley on July 29, 2018. Mosley J. granted the interim order, pending the hearing of the Motion at the next general sittings of the Court in Calgary. [ 11 ] When Justice Mosley heard the emergency interim injunction in this matter, he granted a temporary order pending the full hearing on the merits.

Mosley J. stated that the issue raised in the case " “is whether the deceased Violet Crowchild had any legal interest in the land in dispute and any improvements to the land that could be transferred to her heirs and whether the heirs are entitled to any compensation for the reallocation of the land by the Chief and Council of the Tsuu T’ina Nation pursuant to the customs and traditions

of the First Nation.”" [12] I agree with this characterization of the key issue in dispute in the application for judicial review. It is against this background that Imust consider the application for the interlocutory injunction. II.

Issue [13] The only issue before me is whether the Applicants have met the test for an interlocutory injunction, summarized most recently bythe Supreme Court of Canada in R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12 [CBC]: … At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether theapplicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction isrefused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the partywhich would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on themerits. Citations omitted.] III. Analysis [14] The three elements of the test must be considered together, and they are cumulative; each element must weigh in favour of theapplicant in order for an injunction to be granted. A.

Serious Issue [15] In most interlocutory injunction cases, the "“serious issue to be tried”" threshold is not a high bar – it is often summarized as merelyrequiring a claim which is neither "“frivolous nor vexatious”": RJR – MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311, at 337 [RJR MacDonald]. This is particularly the case where the interlocutory inunction is brought to stopsomething from happening.

There are exceptions, but none apply here. [16] In considering the serious issue element, I am not to delve deeply into the merits of the claim – that is left to the judge who willhear the underlying application for judicial review. [17] The underlying judicial review is focused exclusively on the parcel of land. The old house sits on this parcel, and the Applicantsclaim that it should not be demolished until their challenge to the decision of Chief and Council has been determined. [18] There are two core arguments advanced by the Applicants in the underlying judicial review: (

i) Tsuu T’ina "“wrongfullyexpropriated”" the land without compensation; and (ii) Shane Crowchild’s claim that the decision to allocate the land was procedurallyunfair.

Both arguments must rest on the asserted interest in the land held by the Applicants – otherwise there is no legal basis tochallenge the decision. [19] This asserted interest flows from two sources: the reference in Violet Crowchild’s will to her desire that the land should go toSandra and Shane Crowchild, and the fact that they have lived on, or otherwise occupied and used, this parcel of land for many years,and made improvements to it. [20] Since Violet Crowchild did not hold the land pursuant to a certificate of possession issued under the authority of s. 20 of the IndianAct, RSC 1985, c I-5, it is clear as a matter of law that she had no legal interest in the property which could be passed on by her will:McMillan v Augustine, 2004 NBQB 160. [21] The alternative argument is that the Applicants have an "“equitable”" interest in the property – there are references to the commonlaw of unjust enrichment, and at the hearing counsel drew an analogy to a usufructuary right or interest.

This claim flows fromApplicants’ long-standing occupancy of the parcel of land, plus the improvements they made to the property during that time. It isargued that Tsuu T’ina must pay compensation to them in recognition of the inequity of re-allocating the parcel to Regina Crowchild,since she has never lived there, nor made any improvements to the property. The Applicants argue that Tsuu T’ina is a large reserve, withmany other choices of property to allocate for the construction of a home for Regina Crowchild.

It is unfair to dispossess Sandra andShane Crowchild from this parcel, without compensation. [22] The old house was constructed in 1967, and Violet, Sandra, and Shane Crowchild lived there until sometime in the mid-1980s,when a new home was constructed for them by Tsuu T’ina. While they lived there they made some improvements, and these were paidfor by Violet and Sandra Crowchild. It appears that the old house has been largely unoccupied since the new house was built and it hasbeen used for storage of personal property.

Both Sandra and Shane Crowchild have stated that it was always intended that Shane wouldlive in it. [23] Shane states that he made an application to the Tsuu T’ina Housing Authority to live in the old house in 2015, but he has neverreceived a response to his request. In light of the ongoing dispute over this parcel of land he has not moved into the house. [24] Tsuu T’ina argues that the land is held in trust for the entire membership of the First Nation, and that Chief and Council mustconsider the interests of all members in making land allocation decisions.

There is no use of certificate of possession, and no formalprocess or Land Code that governs the process by which these decisions are taken. Tsuu T’ina relies on its informal customs and

traditions in allocating the limited usable land still available on the reserve. [ 25 ] Tsuu T’ina submits that Shane Crowchild was fully aware of the legal proceedings that resulted in the Crowchild I decision, and of the most recent meetings of Chief and Council to re-consider this matter. He has never once indicated a desire to be heard, nor has he expressed any active interest in living in the old house. He has never followed up on his 2015 application to the housing authority.

Tsuu T’ina argues that Shane’s most recent efforts to remediate the house only started after the decision to demolish the old house was taken. [ 26 ] The Applicants were not able to point to any authority in support of their claim for an equitable interest. They say that long-standing occupation, plus the investment of personal funds in improvements to the old house, should entitle them to some equitable relief.

There is serious doubt whether such a claim is compatible with the statutory scheme governing reserve land held communally, where there are no certificates of possession issued and approved: Bradfield v Canada (Indian Affairs and Northern Development), 2018 FC 682 . [ 27 ] I share the hesitation expressed by Mosley J. when he considered this matter, in particular in view of the case-law cited above. However, at this very preliminary stage of the proceedings, I do not find that this aspect of the case is so clearly devoid of any hope of success that I should dismiss the claim under the first element of the test.

In light of my findings on the other elements, I will not say more on the serious issue question. B. Irreparable Harm [ 28 ] The term irreparable harm refers to the nature of the harm rather than its scope or reach; it is generally described as a harm which cannot adequately be compensated in damages, or cured ( RJR MacDonald , p 341).

It has often been stated that this harm cannot be based on mere speculation, it must be established through clear and compelling evidence: see Glooscap Heritage Society v Canada (National Revenue) , 2012 FCA 255 at para 31 ; Gateway City Church v Canada (National Revenue) , 2013 FCA 126 at paras 15-16 ; Newbould v Canada (Attorney General) , 2017 FCA 106 at paras 28-29 . [ 29 ] However, equitable relief must retain its necessary flexibility, and it must be admitted that some forms of harm do not readily admit of proof, especially in interlocutory proceedings where speed is of the essence and the ability to prepare a complete evidentiary record is necessarily somewhat limited.

What is required, at the end of the day, is a " “sound evidentiary foundation” " for the assessment of the harm; mere assertions or speculation on the part of the applicant will never be sufficient: see, for example Vancouver Aquarium Marine Science Centre v Charbonneau , 2017 BCCA 395 at para 60 . [ 30 ] Here the Applicants focused entirely upon the harm that would occur to Shane Crowchild by the demolition of the old house pending the determination of the application for judicial review.

He argues that if the old house is demolished it cannot be replaced by money, especially given his life-long attachment to it. Furthermore, he asserts that he has wanted to live in that house for many years, and only the intervening legal conflict over the land allocation has prevented him from moving in. [ 31 ] Tsuu T’ina notes that the old house has been vacant for many years, and that it appears that Shane Crowchild lived with his mother and grandmother in the " “new house” " since the mid-1980s.

They note that in the four years since Violet Crowchild passed away, Shane Crowchild has not made any effort to indicate his ongoing interest in the property, nor to participate in the legal proceedings. He now lives off of the reserve. They say he only acted once the decision was made to demolish the house.

The fact that he " “sat on his rights” " stands in contradiction to his asserted attachment to the house. [ 32 ] The irreparable harm asserted in this case is rooted in Shane Crowchild’s emotional attachment to the old house, and his desire to live there again – and this is, by its very nature, not a harm which is easily quantified. However, the underlying judicial review is based in part on a claim that the allocation decision amounts to expropriation without compensation, and this would indicate that if appropriate monetary relief was provided the claim would be satisfied.

This would tend to demonstrate that the harm is not " “irreparable” " as that term is understood in interlocutory injunction proceedings. [ 33 ] The onus rests on the Applicants to establish the harm through evidence. Here we have the assertions by Shane Crowchild in his affidavit, and his answers to questions when he was cross-examined. The essence of this evidence is that he grew up in the old house, and he states that he always intended to live there.

He wishes to be close to his mother, and she lives on the reserve in the new house. [ 34 ] In assessing this element, I must consider the limited evidence before me. For example, it appears that Shane Crowchild has not lived in the old house since the mid-1980s, and it is not clear whether the house has been inhabited since then.

His attachment to the property relates to his memories of growing up there, and his expressed desire to return to live in the house. [ 35 ] I accept the argument of Tsuu T’ina that Shane Crowchild has not expressed his strong attachment to the old house and his desire to return to live there despite the many opportunities to do so during the previous or current decision-making process related to the land allocation decision.

He has not been an active participant in this process until recently, leaving it to his mother, Sandra Crowchild, to advocate on behalf of herself and her family members. [ 36 ] This would tend to call into question the nature and extent of harm that will occur if the old house is demolished, given that it has sat vacant for many years, that Shane Crowchild has not lived there for many years, and that he has only recently expressed his strong desire to return to live there.

I am not persuaded that Shane Crowchild has demonstrated that he will suffer irreparable harm by the demolition of the old house. [ 37 ] This leads to the third and final element of the test. C. Balance of Convenience [ 38 ] The third stage of the test " “requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits” " ( CBC , para 12 ). The

expression often used is " “balance of inconvenience” " . The factors which must be considered in assessing this element of the test are numerous and will vary with the circumstances of each case: RJR MacDonald , p 342. [ 39 ] The harm to be assessed is that which will occur between the date of the interlocutory injunction grant (or refusal) and the decision on the underlying application.

In the case of an application for judicial review in this Court that delay is normally a matter of months, assuming the court process follows its normal course. [ 40 ] In this case, the harm to Shane Crowchild that would flow from the demolition of the old house is the loss of the house in which he grew up, and which he hoped to live in again.

He says that this cannot be compensated by money. [ 41 ] On the other hand, Tsuu T’ina argues that the old house has been vacant for many years and is in very poor condition (there is some debate in the evidence about just how bad the condition of the house actually is, but I do not need to resolve this question). They also assert that Shane Crowchild sat on his rights and has not expressed his desire to participate in the decision-making process relating to the land allocation, although he was very familiar with the ongoing dispute because he has such a close relationship with his mother.

His asserted interest in the home was only recently expressed, after the Chief and Council announced their decision to demolish the old house. [ 42 ] Further, Tsuu T’ina submits that there must be some finality to their governance decisions. They say that the continuing uncertainty about whether the land will be allocated to Regina Crowchild so that a house can be constructed for her on this parcel is imposing additional costs on them, and having an impact on Regina Crowchild as well as other members who are awaiting housing.

A delay at this stage will mean, among other things, that the work cannot proceed during the construction season for this year – it will be delayed until next spring. [ 43 ] The decision to build Regina Crowchild a house on the First Nation was taken in 2014, and the original decision to allocate a parcel of the Crowchild lands to her for this purpose was taken in 2015. Since then, the First Nation has had to expend time and money to defend its decision. Other members who are on a waiting list for new houses are also harmed by the continuing uncertainty.

If Tsuu T’ina uses the money it has set aside for the construction of Regina Crowchild’s house to build a house for another member, it may not have sufficient resources to carry out its decision to build her a home on the First Nation whenever the legal proceedings come to an end. Tsuu T’ina argues that the interests of other members must also be taken into consideration in weighing the balance of convenience. [ 44 ] I accept the arguments of Tsuu T’ina on this element of the test.

Shane Crowchild is seeking to prevent the destruction of a house in which he has not lived for many years, and which is part of an ongoing dispute which has been going on for several years – yet he has not asserted his strong attachment to the house until very recently. On the other side, Tsuu T’ina would be prevented from carrying out the decision they made to construct a home for Regina Crowchild, and the delay has an impact on their capacity to build other homes for other members. On balance, I find that the balance weighs in favour of Tsuu T’ina on this element of the test. IV.

IV Conclusion [ 45 ] The Applicant is seeking equitable relief, and I must consider the three elements of the test for an interlocutory injunction together, based on the totality of the evidence before me. [ 46 ] On the serious issue question, at this very preliminary stage of the proceedings I find that the Applicant appears to have a relatively weak case given the law on land tenure on First Nations reserves absent a certificate of possession. [ 47 ] On irreparable harm, I find that the Applicant’s asserted life-long attachment to the old house is not supported by the evidence.

The fact is that he has not lived there for many years, and he has not taken the many recent opportunities that were available to him to express his attachment to the property or his desire to live there. Instead he has relied on his mother to advance these claims. [ 48 ] Finally, in weighing the balance of convenience, I note that Tsuu T’ina made its decision to build a house for Regina Crowchild in 2014, and it set aside funds from the First Nation for this purpose.

These funds have not been re-allocated to build a house for another member, because doing so may preclude or delay the construction of the house for Regina Crowchild. If I grant the injunction, the demolition and construction work will not go ahead this construction season. So the delay has an impact on Regina Crowchild as well as on other members of the First Nation, together with its impact on Tsuu T’ina itself in relation to its capacity to carry out its decisions. [ 49 ] The evidence shows that Shane Crowchild has not lived in the old house for many years.

The dispute about the allocation of the parcel of land on which the old house sits has been going on for years now. Yet Shane Crowchild’s interest in the property, and his stated desire to live there, has only recently been expressed with any degree of seriousness. He says he filed an application to the Housing Authority in 2015, but on his own evidence he has done nothing to advance that or to find out its status.

The recent activity to improve the state of the house only occurred after the decision to demolish it was made, and the recent application for judicial review and motion for injunctive relief were commenced. The timing is telling. [ 50 ] It bears repeating that the delay has an impact on Tsuu T’ina, Regina Crowchild, and other members of the First Nation. If Tsuu T’ina commences the demolition of the old house and the construction of the new home, and ultimately its decision to allocate this parcel of property is overturned once again, it will have to live with the consequences of having expended these funds.

It would have no argument that it was somehow taken by surprise that the land allocation was in dispute, or that any expenditures relating to the old house or the construction of a new dwelling might not, in the end, be to the benefit of Regina Crowchild. Nevertheless, Tsuu T’ina should be allowed to carry out its decision in this interim period, if that is what it chooses to do. [ 51 ] Weighing all of these elements together, and based on the limited record before me, I have decided that an interlocutory injunction should not be issued. The old house can be demolished.

The application for an interlocutory injunction to prevent the demolition of the old house is dismissed.

[ 52 ] The Applicants did not make any submissions regarding costs; the Respondent sought costs on a solicitor-client basis, but did not press this point. Costs are normally awarded to the successful party, and I see no reason to depart from this approach here. However, there is no basis for an award of costs on a solicitor-client basis. I would order the Applicants to pay costs to the Respondent, in the amount of $500, inclusive of disbursements and taxes. ORDER in T-1444-18 THIS COURT ORDERS that: 1 . The Application for an interlocutory injunction is dismissed. 2 .

The Applicants shall pay costs to the Respondent in the amount of $500, inclusive of disbursements and taxes. “William F. Pentney” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1444-18 STYLE OF CAUSE: SANDRA CROWCHILD, SHANE CROWCHILD AND THE ESTATE OF VIOLET CROWCHILD v TSUU T’INA NATION PLACE OF HEARING: CALAGARY, ALBERTA DATE OF HEARING: AUGUST 22, 2018 JUDGMENT AND REASONS: PENTNEY J. DATED: SEPTEMBER 5, 2018 APPEARANCES : Will Willier For The APPLICANTS Gilbert Eagle Bear and Amanda M.

Goodrunning For The Respondent SOLICITORS OF RECORD : Willier and Company Barrister and Solicitor Calgary, Alberta For The APPLICANTS Tsuu T’ina Nation Barristers and Solicitors Tsuu T'ina (Sarcee), Alberta For The RESPONDENT