HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE DEPARTMENT OF INDIAN AFFAIRS v. NORTHERN DEVELOPMENT, 2012 FCA 168

Federal Court of Appeal CANADA Cour d’appel fédérale Federal Court of Appeal CANADA Cour d’appel fédérale Date: 20120606 Docket: A-312-11 Citation: 2012 FCA 168 CORAM: EVANS J.A. SHARLOW J.A. GAUTHIER J.A. BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Appellant and RUDY BIRD YELLOWHEAD, member of the Paul Band and member of the Sharphead Committee of the Paul Band, and a descendant of the Sharphead Band, on behalf of himself and all other descendants of the Sharphead Band Respondents Heard at Edmonton, Alberta , on June 06, 2012.

Judgment delivered from the Bench at Edmonton , Alberta , on June 06, 2012. REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A. Date: 20120606 Docket: A-312-11 Citation: 2012 FCA 168 CORAM: EVANS J.A. SHARLOW J.A. GAUTHIER J.A. BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by

THE DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Appellant and RUDY BIRD YELLOWHEAD, member of the Paul Band and member of the Sharphead Committee of the Paul Band, and a descendant of the Sharphead Band, on behalf of himself and all other descendants of the Sharphead Band Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Edmonton, Alberta, on June 6, 2012) SHARLOW J.A. [1] The Crown is appealing the order of a case management judge of the Federal Court dismissing its motion to dismiss an action fordelay. [2] An order granting or denying a motion to dismiss an action for delay is a discretionary decision that must stand in the absence ofan error of law or principle, or a failure to exercise the discretion judicially: see, for example, Elders Grain Co. v.

Ralph Misener (The),2005 FCA 139 , [2005] 3 F.C.R. 367 (F.C.A.), at paragraph 13. The issue is not whether this Court would have allowed theCrown’s motion, but whether it was unreasonable for the judge to have dismissed it. [3] The Crown argues that the order under appeal should be set aside because it is based on a number of factual errors. The judge didnot give written reasons, but recited some facts in the order itself. The factual statements are cryptic, in some cases to the point ofinaccuracy.

However, having reviewed the material filed in the Federal Court on the motion to dismiss, we are not persuaded that thefactual errors are sufficiently serious to warrant appellate intervention. Nor are we persuaded that the judge’s decision was wrong in law,or that he failed to exercise his discretion judicially. [4] For these reasons, the appeal will be dismissed, in the circumstances without costs. "K. Sharlow" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-312-11 STYLE OF CAUSE: HER MAJESTY THE QUEEN IN RIGHT OF THE CANADA AS REPRESENTED BY THE DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT v. RUDY BIRD YELLOWHEAD ET AL PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: June 6, 2012 REASONS FOR JUDGMENT EVANS J.A. OF THE COURT BY: SHARLOW J.A. GAUTHIER J.A. DELIVERED FROM THE BENCH BY: SHARLOW J.A. APPEARANCES : Mr. Kevin Kimmis FOR THE APPELLANT Mr. Zachary Davis Ms. Julie Corry FOR THE RESPONDENT SOLICITORS OF RECORD : Myles J. Kirvan Deputy Attorney General of Canada FOR THE APPELLANT Hutchin Legal Inc. Montreal, Quebec FOR THE RESPONDENT