Medeiros v. Ginoogaming First Nation
99-T-12
Sharlow J.
19/5/99
13 pp.
Application for judicial review of two decisions of Council of Ginoogaming First Nation: (1) decision to enter into agreement settling claims relating to Ontario Hydro's past, present activities in, around Long Lake, Ontario; (2) decision proceeds of settlement agreement to benefit only members of Ginoogaming First Nation residing on Ginoogaming Reserve to exclusion of non-resident members, including applicants-Applicants could not proceed without order extending time to file application for judicial review under Federal Court Act-Four questions to be considered in deciding whether to grant extension of time: (1) is delay justified? (2) are decisions reviewable? (3) is there arguable case for relief sought? (4) is extension of time necessary to do justice between parties?-Decision to enter into settlement agreement made on, about August 4, 1998-Various reasons offered as justification for delay in commencing application-No evidence as to whether Ontario Hydro made aware, before commencement of Ontario action, of any controversy of kind subject to proceedings-Delay herein not unreasonable-Both impugned decisions made by Council of Ginoogaming First Nation-Decision of band council exercising, purporting to exercise authority in matters of band governance proper subject of judicial review in Court-Impugned decisions reviewable-Band council having legal obligation to exercise powers fairly, with even hand, not entitled to make arbitrary decisions that benefit one group of members to exclusion of another group-Several clauses in settlement agreement referring to "members"-However, nothing in agreement gives some members more benefits than others, requires some members to give up more than others-Council not improperly preferring one group of members over another-Applicants not demonstrating arguable case with respect to decision to enter into settlement agreement-Clear evidence of decision to treat different members of Ginoogaming First Nation differently depending on residence, membership in Hornepayne First Nation-Applicants having demonstrated arguable case with respect to decision made by Council of Ginoogaming First Nation to use proceeds of settlement agreement to benefit only resident members-Extension of time necessary to do justice between parties only with respect to decision as to use of proceeds of settlement agreement-Court granting leave for extension of time to apply for judicial review of that decision only-Applicants also seeking interim injunction restraining Council from disbursing proceeds of settlement agreement pending determination of application for judicial review-Applicants' interests sufficiently protected, Ginoogaming First Nation not unduly prejudiced, if court orders interim injunction with respect to $300,000 of proceeds of settlement agreement-Amount to be held in trust pending resolution of application for judicial review-Form of application for judicial review submitted in motion record to be amended so that it deals only with decision as to use of proceeds-Application allowed in part-Federal Court Act, R.S.C., 1985, c. F-7.