[1]         The applicant Thecannie Koe First Nation c/o William Capot-Blanc (Hereditary Chief) pursuant to a Notice of Application filed on July 7, 2023 seeks an order staying or setting aside the order pronounced by Mr. Justice Giaschi on March 9, 2023 on Supreme Court of British Columbia File No. FJ S25957 (the “Order”) as well as other relief related to an action started in the Supreme Court of British Columbia Court File No. FN S4366, Fort Nelson Registry (the “Action”)

[2]         The respondent Fort Nelson First Nation (“FNFN”) is opposed to the relief sought by the applicant.

[3]         The respondent His Majesty the King in Right of Canada (“Canada”) is opposed to setting aside the Order as well as any costs sought by the applicant. Canada takes no position with regard to the remainder of the relief claimed by the applicant.

[4]         On December 27, 2018 the applicant, William Capot-Blanc and others commenced the Action seeking remedies for historic wrongs claimed in the formation of the FNFN.

[5]         FNFN is a “band” as defined in the Indian Act, R.S.C, 1985, c. I-5.

[6]         The FNFN administers land that is held by Canada for its use and benefit including Fort Nelson First Nation Reserve No. 2 (“Fort Nelson 2”).

[7]         On June 29, 2022, FNFN filed a Petition to the Court in the Supreme Court of British Columbia File No. FJ S25957, Fort St. John Registry (the “Petition”) against certain named persons and entities including William Capot-Blanc in relation to the use or occupancy of property located at 1010 Sikanni Road and 1003 Sikanni Road on Fort Nelson 2.

[8]         The Order granted FNFN vacant possession of lands on Fort Nelson 2 particularly 1010 Sikanni Road and 1003 Sikanni Road and that the respondents including William Capot-Blanc immediately vacate and remove all personal property from Fort Nelson 2.

[9]         None of the respondents to the Petition including William Capot- Blanc attended the hearing of the Petition and the Order has not been appealed.

[10]      On July 7, 2023 the applicant filed the within Notice of Application.

[11]      On July 24, 2023 Madam Justice Shergill adjourned the applicant’s Notice of Application until October 4, 2023 on the following conditions:

[12]      The applicant argues that the Petition is part of a pattern by the FNFN in targeting William Capot-Blanc and other members of the Thecannie Koe First Nation.

[13]      The applicant are indigenous people with constitutional rights.

[14]      William Capot-Blanc in his affidavit filed on June 29, 2023 after denying the allegations made against him in the Petition deposed to the following at para. 28:

[15]      William Capot-Blanc in response to his failure to attend at the Petition Hearing deposed in his affidavit filed on June 29, 2023 to the following at para. 29:

[16]      The applicant argues that the FNFN threatened and targeted William Capot-Blanc and other litigation representatives.

[17]      The applicant argues that William Capot-Blanc did not have a lawyer at the time that the Petition was adjudicated and while he should have done things differently it is understandable why he did not.

[18]      The applicant argues that Justice Giaschi only had the evidence of Chief Gale when the Order was made. The applicant says that FNFN had a duty to give a full accounting of the evidence to the court.

[19]      The applicant argues that the FNFN should have included Canada as a party to the Petition because Canada would have had to tell the court about the Action.

[20]      The applicant acknowledges that the Order could have been appealed but William Capot-Blanc’s particular health circumstances and his beliefs regarding the Action and the Petition led him to try to address the Order by way of this application.

[21]      The applicant denies that the Notice of Application is a collateral attack on the Order. The applicant’s actions have not been made in bad faith.

[22]      The applicant argues that the best solution to the within proceedings is to negotiate in good faith and Canada needs to be involved in this process.

[23]      The applicant argues that it would be a grave and manifest injustice if the Order was not set aside or stayed.

[24]      FNFN is opposed to the relief sought by the applicant.

[25]      FNFN sees the applicant’s Notice of Application as a collateral attack on the Order.

[26]      FNFN argues that the applicant cannot split their case and supply new evidence on this application.

[27]      FNFN notes that the applicant concedes that they had notice of the Petition. There is no evidence before this court by way of a transcript as to what facts were before Justice Giaschi and adjudicated upon at the hearing of the Petition.

[28]      FNFN argues that on March 9, 2023 the applicant did not respond to the Petition and the Order was made.

[29]      FNFN argues that the applicant relies on Rule 13-1 (17) of the Supreme Court Civil Rules. FNFN argues that in general an entered order is final and cannot be changed including “because of new arguments or because the judge pronouncing the order may have second thoughts about what he has ordered, or where the parties merely advanced fresh details of matters which were already before the court”: Hunter Dickinson Inc. v. Butler 2011 BCSC 1504 (CanLII), 2011 BC SC 1504 at para. 25.

[30]      FNFN argues that Rule 13-1 (17) does not allow the court to hear what is essentially an appeal of the same issue.

[31]      FNFN argues that the hearing of the Petition was not brought on an ex parte basis and it is not appropriate for the applicant to make arguments now that it could have made at the hearing of the Petition.

[32]      FNFN argues that there is no legal basis for a stay of execution of the Order advanced by the applicant.

[33]      FNFN argues that the applicant’s Notice of Application should have been brought under the Petition file or the Action.

[34]      FNFN argues that it would not be appropriate to adjourn the Action generally or have the various matters joined.

[35]      The applicant also seeks an order restraining FNFN Council from any further abuse of the process of this Court. The only evidence offered by the applicant in this regard is vague assertions by the applicant. FNFN argues there is no basis provided in the evidence on this application to in effect grant a de facto injunction.

[36]      Canada argues that that they were not a party to the Petition which Canada says was procedurally correct.

[37]      Canada argues that it is not a necessary party to the Petition because FNFN is the party with the power to make decisions on the use of its land and there is no remedy sought against Canada.

[38]      Canada argues that if it had been a party to the Petition it would not have said what the applicant has suggested it would have.

[39]      Canada argues that the applicant should have brought an appeal of the Order and not a separate Notice of Application. Canada argues that the applicant is improperly using a procedural Rule 13-1(17) to substantially challenge the Order.

[40]      Canada argues that the decision by FNFN to not include Canada is not a slip capable of correction under this Rule. It was not an error in drafting of the Order, it is not an omission of information which could have changed the outcome of the Petition and it does not constitute a grave and manifest injustice.

[41]      Canada argues that the test to amalgamate the proceedings has not been met. There is no underlying action commenced on file number FN S4448 and it appears that the applicant is seeking to amalgamate the Petition with the Action proceedings.

[42]      Canada argues that Rule 22- 5 cannot apply here because the Petition is about the use and occupation of specific parcels of land. The Action is about whether specified name plaintiffs are the correct individuals to speak for the modern day descendants of an Indigenous group and whether those descendants have a separate claim to assets of the FNFN.

[43]      Further Canada argues that the parties in the Petition and the Action as well as the Notice of Application are not all the same.

[44]      Canada as a preliminary objection argues that the reply filed by the applicant on September 14, 2023 was not allowed for in the order of Justice Shergill and had the effect of splitting the applicant’s case. In particular they argue that paras. 7, 12 and 15 be struck from the reply as the applicant raises new arguments that should have been included in the Notice of Application.

[45]      FNFN supported the position of Canada in this regard. They agreed that paras. 7, 12 and 15 should be struck.

[46]      The applicant argues that they had a right to provide a written argument pursuant to the order made by Justice Shergill and it is really just semantics as to the name of the document that they filed on September 14, 2023.

[47]      FNFN also seeks leave to file the 4th affidavit of Adyson Kool and a Notice to Admit that they sent to the applicant.

[48]      None of the parties were requesting an adjournment of this application. I proceeded with the application on the basis that I would consider the concerns of the parties with regard to the applicant’s reply and FNFN’s request with regard to the affidavit and Notice to Admit.

[49]      In my view the applicant’s reply document filed September 14, 2023 is a written argument which was contemplated by the order of Justice Shergill. I do however agree that paras 7, 12 and 15 of that argument should have been raised in the Notice of Application. These paragraphs raise constitutional issues which were not part of the Petition proceedings and should have been part of the Notice of Application. In that regard the applicant is arguing issues related to the Action and the effect of that is to “split” their case. I have not put any weight on the arguments of the applicant found in their reply filed September 14, 2023 at paras. 7, 12 and 15.

[50]      The 4th affidavit of Adyson Kool outlines the steps to serve William Capot-Blanc with the Petition pleadings. The exhibits attached to this affidavit form part of the record of the Petition. The Notice to Admit served by FNFN to the applicant also deals with issues relating to the service of William Capot-Blanc.

[51]      I am satisfied that leave should be granted to FNFN to rely on these documents because this evidence does not prejudice the applicant as it is part of the Petition record and William Capot-Blanc acknowledges that the Petition pleadings were sent to his residence pursuant to an order for substitutional service.

[52]      Canada after this hearing had completed brought to the attention of the court the decision in Squamish Nation v. Baker 2023 BCSC 1637. I had the chance to review this decision and while the respondent Mr. Baker raised similar issues in that case to the case at bar with regard to jurisdictional challenges and discriminatory and retaliatory actions on behalf of the Squamish Nation the facts of that case are significantly different than the case at bar.

[53]      The applicant relies on Rule 13-1 (17) in asking the court to correct the Order which the applicant says did not provide for a matter that should have been but was not adjudicated on.

[54]      Rule 13-1 (17) reads:

[55]      Rule 13-1 (17) is not intended to allow the court to hear what is essentially an appeal: Hunter at para. 23.

[56]      In Newport Sales Co. Ltd. v. Jason Ventures Ltd. in discussing Rule 41 (23) (now Rule 13-1 (17) stated the following at paras. 11 and 12:

[57]      The applicant in their materials has described the Order as being ex parte in nature however this is not accurate. William Capot-Blanc was served with the materials and did not attend the hearing of the Petition. Thecannie Koe First Nation was not a party to the Petition.

[58]      There has been no appeal of the Order nor do I have any transcripts of the hearing of the Petition to be able to determine whether or not as the applicant alleges the Court was not made aware of the Action.

[59]      The Action was filed on December 27, 2018 and sought the following relief:

[60]      The Petition sought relief against William Capot-Blanc and others related to Fort Nelson 2. The Petition did not seek relief against the Thecannie Koe First Nation and based on the evidence before the court the Order does not effect the relief sought in the Action by the Thecannie Koe First Nation. Nor does the Order preclude the applicant from proceeding with the Action.

[61]      The Action seeks constitutional relief relating to the status of FNFN and Thecannie Koe First Nation as nations. The Petition sought relief against certain individuals and corporate entities for vacant possession of certain lands. While I acknowledge there is some overlap between the relief sought in the Action and in the Petition the overarching goal of the Action relates to the constitutional status of FNFN and the Thecannie Koe First Nation.

[62]       The Petition and the Action deal with different issues and in my view the Notice of Application is an attempt by the applicant to appeal the Order. Also in my view the status of the Action is not effected by the Order.

[63]      In Auriat v. Auriat 2000 BCSC 183 (CanLII), 2000 BCSC 0183 the court reviewed when a judgment could be re-opened at para. 4:

[64]      In my view there is no basis on the evidence before me to invoke Rule 13-1 (17) on the basis that some matters were not adjudicated upon. William Capot-Blanc did not attend the hearing of the Petition and now seeks to make his arguments in this application.

[65]      This is not a case where the Order is being corrected for an inadvertent slip in the wording of an order.

[66]      The evidence does not disclose a grave or manifest injustice will occur if the Order is not re-opened. The Order does not preclude the applicant from proceeding with the Action.

[67]      There is no evidence of fraud in the making of the Order.

[68]      Finally, the Order was not appealed.

[69]      The Court of Appeal for British Columbia in Krist v. British Columbia 2017 BCCA 78 in discussing the collateral attack doctrine stated the following at para. 47:

[70]      In the case at bar the applicant is seeking by way of the Notice of Application to appeal the Order. In my view that constitutes a collateral attack on the Order.

[71]      In addition the applicant seeks a stay of the Order or to have the Order set aside. In the Notice of Application the applicant referred to Rule 13-1 (31) and (33) of the Rules. These rules do not exist however I am assuming that the applicant meant Rule 13-2 (31) and (33) which read:

[72]      The applicant has not provided the legal basis in the Notice of Application for relying on these subrules to either stay the execution of the Order or grant any other relief. There is not a proper record before the court of the Petition proceedings which would allow for the relief sought by the applicant.

[73]      The proper procedure for the applicant would have been to appeal the Order.

[74]      For all the above noted reasons the relief sought by the applicant in Part 1: at para. 1 of the Notice of Application is dismissed.

[75]      The applicant also sought an order consolidating the Petition with the within file if the Order was stayed. As I have not granted the relief sought by the applicant in that regard the application that the proceedings be consolidated is dismissed

[76]      The applicant also seeks an order that the within application be adjourned generally pending resolution of the Action. The applicant has not pled the legal basis for adjourning the within action generally pending the resolution of the Action.

[77]      As discussed above the Petition and the Action sought different relief. Further the applicant Thecannie Koe First Nation was not a party to the Petition. William Capot-Blanc was a party to the Petition as well as the Action however he did not attend the hearing of the Petition despite being properly served.

[78]      An order adjourning the within proceeding pending resolution of the Action would have the effect of causing a significant delay in the resolution of the issues sought in the Petition. The evidence establishes that no significant steps in advancing the Action have been taken in approximately four years.

[79]      The evidence on this application does not establish that the applicant will suffer prejudice in advancing the Action if the within proceeding is not adjourned pending resolution of the Action.

[80]      It is not in the interests of justice to adjourn the within proceeding pending resolution of the Action. The remedy sought by the applicant in the Notice of Application Part 1: at para. 2 is dismissed.

[81]      The applicant also seeks an order restraining the FNFN council as represented by Chief Gale from any further abuse of the process of this Court as described by the applicant in the Notice of Application.

[82]      There is no legal or factual basis pled and the materials are lacking as to why such an order for injunctive relief should be granted.

[83]      The issues raised by the applicant in regard to the Thecannie Koe First Nation peoples are best dealt with in the Action. There is no evidence of any irreparable harm that the applicant would suffer if an injunction is not granted.

[84]      The remedy sought by the applicant in the Notice of Application Part 1: at para. 3 is dismissed.

[85]      FNFN and Canada have been successful on this application and are entitled to their costs of the application.

[86]      The applicant’s Notice of Application filed July 7, 2023 is dismissed.

[87]      FNFN and Canada are entitled to their costs of this application.