Canada v. Yellowhead

Canada v. Yellowhead
Court (s) Database
Federal Court of Appeal Decisions
Date
2012-06-06
Neutral citation
2012 FCA 168
File numbers
A-312-11
Decision Content
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.
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
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 for delay.
[2] An order granting or denying a motion to dismiss an action for delay is a discretionary decision that must stand in the absence of an error of law or principle, or a failure to exercise the discretion judicially: see, for example, Elders Grain Co. v. Ralph Misener (The), [2005] 3 F.C.R. 367 (F.C.A.), at paragraph 13. The issue is not whether this Court would have allowed the Crown’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 did not give written reasons, but recited some facts in the order itself. The factual statements are cryptic, in some cases to the point of inaccuracy. However, having reviewed the material filed in the Federal Court on the motion to dismiss, we are not persuaded that the factual 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