Choken v. Lake St.Martin Indian Band

Choken v. Lake St.Martin Indian Band

Funds advanced by the Minister to the Third Party Manager and deposited in the Manager's account ceased to be Crown funds and were monies to which the First Nation had the legal right to unconditional payment absent the Minister's exercise of call-back rights; the mere 'in trust' notation did not render them immune from attachment; the Manager failed to discharge the onus to show cause and the garnishee (CIBC) must pay sufficient funds to satisfy the judgment; costs of $1,500 awarded to applicants.

Citation
2003 FC 1273
Parties
Applicants / Judgment Creditors: Shirley Choken; Myles Sinclair; Wilfred Marsden; Jerry Marsden; Respondent / Judgment Debtor: Lake St. Martin Indian Band; Garnishee: Peace Hills Trust Company; Garnishee: Canadian Imperial Bank of Commerce; Garnishee / Third Party Manager: Andrew Alkier; Intervener: Department of Indian Affairs and Northern Development
Court
Federal Court
Jurisdiction
Canada
Judgment Date
31 October 2003
Procedural Posture
Attachment of Debts / Garnishment (enforcement of Judgment) / Show Cause Hearing / Order Following Show Cause Hearing
Outcome
Manager failed to show cause; attached funds in the Manager's bank account are payable to applicants to satisfy judgment; applicants awarded costs.
Legal Topics
Garnishment and Attachment, Crown Immunity, Trust Characterization of Funds, Third Party Management/comprehensive Funding Arrangement, Enforcement of Judgment
Source Language
English
Civil Procedure Aboriginal Law Administrative Law Public Law Garnishment and Attachment Crown Immunity Trust Characterization of Funds Third Party Management/comprehensive Funding Arrangement +1 more

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Parties

Shirley Choken; Myles Sinclair; Wilfred Marsden; Jerry Marsden

Applicants / Judgment Creditors

Lake St. Martin Indian Band

Respondent / Judgment Debtor

Peace Hills Trust Company

Garnishee

Canadian Imperial Bank of Commerce

Garnishee

Andrew Alkier

Garnishee / Third Party Manager

Department of Indian Affairs and Northern Development

Intervener

Procedural Posture

Attachment of Debts / Garnishment (enforcement of Judgment) / Show Cause Hearing / Order Following Show Cause Hearing

Legal Issues

  1. 1 Whether funds advanced by the Minister and deposited in an account in the name of the Third Party Manager are a debt owing or accruing to the judgment debtor and therefore attachable
  2. 2 Whether funds advanced by the Crown retain Crown immunity from execution or become attachable when deposited for the First Nation's use
  3. 3 Whether the label or designation of an account as 'in trust' prevents garnishment

Ratio Decidendi

Funds advanced by the Minister to the Third Party Manager and deposited in the Manager's account ceased to be Crown funds and were monies to which the First Nation had the legal right to unconditional payment absent the Minister's exercise of call-back rights; the mere 'in trust' notation did not render them immune from attachment; the Manager failed to discharge the onus to show cause and the garnishee (CIBC) must pay sufficient funds to satisfy the judgment; costs of $1,500 awarded to applicants.

Court Disposition

Manager failed to show cause; attached funds in the Manager's bank account are payable to applicants to satisfy judgment; applicants awarded costs.

Orders

  • Garnishee (Canadian Imperial Bank of Commerce) ordered to pay from funds standing to the credit of the Manager sufficient amounts to satisfy the judgment debt of $89,897.69 plus costs
  • Costs of the show cause hearing fixed in favour of the applicants at $1,500 inclusive of disbursements and GST, to be added to amount payable out of the attached funds