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Case Name:
Buffalo Point Development Corp. v. Alexander
IN THE MATTER OF: Section 47 of the Arbitration Act, C.C.S.M.
C. A120 and Amendments Thereto
AND IN THE MATTER OF: Application Under Court of Queen's Bench
Rule 14.05(2)(C)(Iv) for the Determination of Rights Under a
Series of Lease Agreements
Between
Between Buffalo Point Development Corp. Ltd., Applicant, and
Edward Alexander et al, as Listed in Schedule "A" Attached,
Respondents
[2012] M.J. No. 424
2012 MBQB 341
Docket: CI 12-01-79061
Manitoba Court of Queen's Bench
Winnipeg Centre
C.W. Martin J.
Judgment: December 20, 2012.
(33 paras.)
Counsel:
Grant A. Stefanson and Bradley D. Regehr, for the Applicant.
Paul D. Edwards and Daniel J. Gilson, for the Respondents.
C.W. MARTIN J.:-INTRODUCTION
1 Mr. Alexander and 278 others (the "Cottagers") built cottages on leased land, at the Buffalo Point Indian Reserve in
southeastern Manitoba, in accordance with sub-lease agreements with the Buffalo Point Development Corporation Ltd.
(the "Development Corp."). A dispute has arisen over the imposition and effect of a new realty tax system imposed upon the Cottagers by the Buffalo Point First Nation (the "First Nation").
2 As a result, each cottager filed a Referral to Arbitration to compel the Development Corp., as the counter-party to
the sub-leases, to resolve the dispute through arbitration as provided for in their sub-lease. The Development Corp. ob-
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jects, saying there is no arbitrable dispute between it and the Cottagers. It filed a judicial application seeking an injunction staying the arbitration and a declaration that the Referrals to Arbitration are void ab initio, essentially because the
dispute is outside the ambit of the sub-lease and its terms. The Cottagers responded by motion seeking a number of matters, including an order appointing a nominee to the arbitration panel for the Development Corp., or providing a date by
which the Development Corp. must appoint its nominee.
ISSUE
3 The real issue before me is whether an arbitrator has jurisdiction to hear this dispute and more specifically, whether
the arbitration agreement applies to the dispute. The answer depends on the interplay between the facts, the interpretation of the leases, The Arbitration Act, C.C.S.M. c. A120 (the "Act") and the validity of various potential claims.
4 Other matters were initially raised such as whether an arbitrator was statutorily entitled pursuant to s. 17 of the Act,
in preference to the court, to decide this preliminary question of his jurisdiction and whether the Development Corp.'s
judicial application should be stayed (s. 7 of the Act). During the hearing, counsel jointly agreed that I should determine
the real issue pursuant to s. 47 of the Act and not deal with the other issues.
5 To be clear, it is not my role to determine the potential claims underlying the dispute. As will be seen, that is for
another forum. Therefore, the background facts I rely on for the purposes of this application will not be as fulsome, or
necessarily be those that might be relevant, as in some other future proceeding.
BACKGROUND FACTS
6 The First Nation says it is the sole owner of the Development Corp. through three individuals (Herman Green, John
Thunder and James Thunder), who hold its shares in trust for the First Nation. John Thunder is the Secretary of the Development Corp. while James ("Jim") Thunder is its President. They are the only directors. Jim Thunder is John Thunder's father.
7
John Thunder is the Chief of the First Nation, while Drew Thunder and Herman Green are its councillors.
8
The parties agreed that the First Nation's website accurately sets out its historical governance structure:
The Buffalo Point First Nation members live and abide by their own hereditary system of government. There are no elections for Chief and Council. The Chief remains in power for his entire
lifetime until his successor. The Chief may choose to retire at any age and will select the new
Chief himself at that time.
The passing down of the leadership through the generations has seen Chief Ayashawath handing
the reign to his son "Little Thunder", who then passed it on to his son "Old Jim Thunder". Old
Jim Thunder then passed it on to "Shorty" Warren Thunder. As "Shorty" had no children, the
leadership was passed on to his adopted nephew "Jim Thunder". Jim Thunder has since passed
the leadership on to his son "John Thunder". It is there that we stand presently.
It is unclear when exactly Jim Thunder relinquished his role as Chief to his son, John Thunder.
9 In the 1970's, the First Nation entered into a process with the Government of Canada to develop its lands for cottage
leases. It surrendered its lands to Canada to facilitate a head lease, entered in 1976, between Canada and the Development Corp., which was amended a number of times subsequently, most recently in 1991. The head lease contemplated
the Development Corp. sub-letting to others. The 1991 amending agreement was executed by Jim Thunder and John
Thunder on behalf of the Development Corp. and concurrently by them, as Chief and councillor respectively, on behalf
of the First Nation.
10 The cottage development was facilitated by standard form sub-leases between prospective cottage owners and the
Development Corp. The 2006 sub-lease of one cottager is in evidence as a representative sub-lease the Cottagers entered with the Development Corp. As to its key terms, it:
-
refers to and incorporates the terms of the head lease;
grants the lessee use of a described parcel of land for 75 years in exchange for $35,000;
requires a lessee to pay, subject to mandatory binding arbitration,
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1(b) ... as they become due all rates, levies, charges, duties and assessments that
may be charged by the Lessor or other authority against or in respect of the demise
premises ... and if any dispute should arise between the parties as to rates, levies,
charges, duties and assessments that are charged by the Lessor, either party may
notify the other party in writing of its desire to submit the dispute to arbitration ...;
-
allows the lessor to terminate the sub-lease if such rates, levies, etc. are not paid within 60
days of becoming due; and
binds every covenant, proviso and agreement in the sub-lease to the benefit of the parties
and more particularly to the successors and assigns of the lessor, and to the heirs, executors, administrators, successors and assigns of a lessee.
John Thunder and Jim Thunder executed the sub-lease on behalf of the Development Corp. and executed a Consent to
Sub-lease, as Chief and councillor respectively, on behalf of Canada.
11 The Development Corp. says a new standard sub-lease is now used. It is materially the same as the 2006 sub-lease
except it includes the word "taxes" in s. 1(b) so that that term reads:
... as they become due all taxes, rates, levies, charges, duties and assessments that may be charged
by the Lessor or other authority against or in respect of the demise premises ... and if any dispute
should arise between the parties as to taxes, rates, levies, charges, duties and assessments that are
charged by the Lessor, either party may notify the other party in writing of its desire to submit the
dispute to arbitration ...
(underlining added)
12 Ultimately a cottage owners' association (the "Cottagers' Association") came to be, representing the interests of
about 300 individual cottage owner lessees at the First Nation. The Cottagers' Association negotiated and entered into
agreements with the Development Corp. and a local business association to set cost sharing and annual maintenance
budgets for the area. The 1999/2000 agreement stipulated:
The costs of providing the above activities is to be cost shared on a 50-50 basis between the Buffalo Point Development Corporation and the Buffalo Point Cottage Owners Association Inc.
Fifty percent of the above budget is to be covered by annual maintenance fees to be billed to the
individual cottage owners in the spring of each year. The remaining 50% is to be covered by existing Businesses and the Buffalo Point First Nation.
The annual maintenance fees charged to cottage owners is presently set at $575.00 per year and
will remain at this level until the actual operating costs exceeds $575.00. Any increase in fees are
to be agreed to by consensus by the Buffalo Point Joint Planning Committee.
(underlining added)
This agreement was executed by Jim Thunder and John Thunder on behalf of the Development Corp. As underlined
above, it references a commitment of the First Nation even though it is not, formally, a signatory to the agreement.
13 On April 16, 2008 the First Nation, the Development Corp. and the Cottagers' Association agreed to by-laws and
rules for the Buffalo Point Cottage Development Community Committee. John Thunder executed the agreement on behalf of both the First Nation and the Development Corp. The preamble to the by-law and rules states in part:
Whereas Buffalo Point First Nation (the "First Nation"), as represented by the Buffalo Point Development Corporation Ltd. (the "Development Corporation"), beneficially owns and is responsible to the leasing, administration, management and control of the Buffalo Point Cottage Development ...
...
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Whereas the First Nation, the Development Corporation and the Association agree that the Rules,
Bylaws and community committee are established in order to clarify, implement, facilitate and
support the terms and provisions of the Leases and do not supersede any articles in the Leases.
(underlining added)
14 By late 2010, the First Nation was moving toward implementing a property tax system pursuant to the First Nations Fiscal and Statistical Management Act, S.C. 2005, c. 9 (the "Taxation Act"). Discussions took place between all
the parties, but the representations, understandings, and anticipated outcomes became contentious. In his affidavit, First
Nation Councillor Green deposed:
8.
9.
Prior to 2012, BPDC charged the Cottagers an assessment for services, including services for
road maintenance, dust control, road surfacing, grass and small brush maintenance, snow plowing
and clean-up, maintenance of recreational facilities, maintenance of a sanitary land fill site, fire
department services, policing and security, supervision and overhead (the "Service Charges"). Attached hereto and marked as Exhibit "E" to this my Affidavit is a copy of an estimate of the Service Charges for 2011/2012 and 2012/2013.
A decision was made by BPFN in 2011 to replace the Service Charges with taxation laws. BPFN
is entitled to pass taxation laws and collect taxes pursuant to the provisions of the First Nations
Fiscal and Statistical Management Act ....
[to be clear: in this quote, BPDC means the Development Corp. and BPFN means the First Nation]
(underlining added)
Thus, taxation by the First Nation would take the place of the service charges referenced in the sub-lease by the Development Corp., effectively for the same services.
15 The Cottagers and the Cottagers' Association objected to the process and outcomes of such a change. Discussions
between the parties failed to resolve the issue. As a result, the Cottagers want to address this matter through the binding
arbitration mandated in their sub-leases. The Referral(s) to Arbitration is addressed to the Development Corp. and sets
out the issue as follows:
The Tenant(s) hereby submits to arbitration under the terms of the Lease the following dispute:
Taxes purported to be levied by Buffalo Point First Nation as evidenced by recently received 2012 Real Property Assessment Notices and 2012 Tax Notices in respect of property which is the subject of the Lease.
16 While not explicitly set out in the materials, the flashpoint seemed to be that the tax levied is significantly more
than the service charge it replaced. For example, the estimate of services charges for 2011/2012 and 2012/2013, (paragraph 8, Ex. E, Green Affidavit), concludes in bold print:
As outlined by the above noted information, the Schedule A costs resulted in an individual cottage assessment of $620. This compares quite favourably to our 2010/2011 assessment of
$876.50, therefore, it was proposed and, it was subsequently accepted, that the annual assessment
should be frozen for the next two fiscal years ....
(underlining added)
While not naming the individual cottager, Councillor Green also deposed to a sample 2012 First Nation cottage tax assessment showing taxes charged of $2,239.60 (reduced to $1,186.99 "balance owing" after an unexplained credit was
applied). Thus, assuming this evidence is an apples-to-apples comparison, as appears from Councillor Green's affidavit,
the anticipated Development Corp. service charge of $620.00 translated into an actual First Nation total tax of $2,239.60
for this cottager, for essentially the same services.
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17 There is also a second, yet material, point of contention. The sub-leases provide for binding arbitration to resolve
disputes about service charges. Thus the Development Corp. could not run roughshod over the Cottagers once they had
committed to the sub-leases and spent thousands of dollars developing their cottages. The new tax scheme effectively
eliminates this contractual safeguard.
POSITIONS OF THE PARTIES
18 The Development Corp. relies on s. 47(1)(d) of the Act for a declaration of invalidity of the proposed arbitration.
They say the arbitration provisions in the sub-leases do not apply to the matter in dispute, the new tax scheme purported
to be imposed upon the Cottagers, because the tax laws were not passed by the Development Corp. but rather the First
Nation - the arbitration provisions only apply to taxes "charged by" the Development Corp., not those charged by the
First Nation. In effect, the Development Corp. and the First Nation must be viewed as two distinct legal entities where
the actions of one cannot impact the liability of the other. The Development Corp. also says the Cottagers' remedy is
against the First Nation and properly lies in s. 33 of the Taxation Act. Finally, they complain about the multiplicity of
arbitrations and further that the Cottagers' Association has brought concurrent proceedings in Federal Court.
19 The Cottagers' argument runs along two main lines. First, they say the First Nation is the sole owner and beneficiary of the Development Corp. and its Chief and councillors are the directors and officers of the Development Corp. In
effect, despite the legal mechanism employed to develop cottages on the reserve lands, the operating mind of the two
entities is identical and the evidence demonstrates, or will demonstrate, they use either entity, as convenient, to advance
the First Nation's interests. Thus, despite the Cottagers' sub-leases being entered into by the Development Corp., and as
such, strictly speaking it is the counter-party to the sub-lease, it is clear that it is one and the same with the First Nation.
For simplicity, I will refer to this line of claim as "piercing the corporate veil". Second, they advance other potential
claims against the Development Corp., which do not depend on the piercing of the corporate veil claim. Hence, the exercise of Cottagers' arbitration rights under the sub-lease is proper. Further, the Cottagers say that s. 33 of the Taxation
Act is not designed to deal with this situation. Finally, they say that arbitration rights provided to them under their subleases are substantive and provide them the only effective and expedient way to ensure the fees and charges they are
obligated to pay, as a service charge contribution, are fair and consistent with representations and understandings when
they entered the sub-leases. Effectively, by changing the service charges to a tax, their right to a binding, third party
resolution process has been gutted.
ANALYSIS
20 I pause to make two initial observations. First, generally, it is not for me on this application to assess which is the
best or preferred remedy, process or forum in this factual matrix. For example, the parties disagree as to whether s. 33 of
the Taxation Act is a remedy meant or suitable for these circumstances or whether the Federal Court application is
properly taken by the Cottagers' Association. On this application and on this material, I can offer no opinion on those
matters. My analysis is confined to the narrow issue(s) before me. There may well be multiple forums properly available to these litigants depending on the specific remedy sought. Second, as to the multiplicity of arbitrations, the primary
factual issue between the parties is common between all proposed arbitrations. The parties are free to agree, or one party
can apply, to consolidate the arbitrations and have the result bind all Cottagers (ss. 8(4), (5), (6) of the Act). I understand
the Cottagers are amenable to such a process.
21 It is in the part of the Act dealing with remedies that the power of a court to intervene in an arbitration by issuing a
declaration of invalidity is set out. Only subsection (d) is at play here:
47(1) At any stage during or after an arbitration, on the application of a party who has not participated in the arbitration, the court may grant a declaration that the arbitration is invalid because
...
(d)
the arbitration agreement does not apply to the matter in dispute.
As noted, rather than arguing about the scope of the court's jurisdiction under s. 47, given these circumstances, the parties have pragmatically asked that I resolve the real issue so as to simplify the process and expedite an answer. Further,
s. 8 of the Act allows a court to decide a question of law on consent of the parties, such as here.
22 Before leaving this area, however, it is important to recognize that generally, where parties agree to arbitration,
statutory schemes are designed to promote that forum of dispute resolution rather than reference to a court. To this end,
courts have been loath to interfere in arbitration proceedings except in narrow circumscribed ways. A quick scan of the
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Act and jurisprudence supports this view. Thus, while I need not decide it, but for the parties' agreement here, it is likely
that I would have issued a stay of the Development Corp.'s judicial application (s. 7 of the Act) and remitted the matter
to the arbitration panel for it to determine its jurisdiction (s. 17 of the Act). In this respect I also note that the real issue
here is not the validity of the arbitration agreement but rather the applicability of the agreement.
23 In Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, S.C.J. No. 34 (Q.L.),
the Supreme Court dealt with a challenge to the scope of an arbitration agreement relative to the Civil Code of Québec,
S.Q. 1991, c. 64 (the "Quebec Civil Code"). The majority set out a general rule which I understand applies to all arbitration situations and schemes, not just those falling under the Quebec Civil Code. Specifically, the court said at paragraphs 84-86:
84 First of all, I would lay down a general rule that in any case involving an arbitration clause, a
challenge to the arbitrator's jurisdiction must be resolved first by the arbitrator. A court should
depart from the rule of systematic referral to arbitration only if the challenge to the arbitrator's jurisdiction is based solely on a question of law. This exception is justified by the courts' expertise
in resolving such questions, by the fact that the court is the forum to which the parties apply first
when requesting referral and by the rule that an arbitrator's decision regarding his or her jurisdiction can be reviewed by a court. It allows a legal argument relating to the arbitrator's jurisdiction
to be resolved once and for all, and also allows the parties to avoid duplication of a strictly legal
debate. In addition, the danger that a party will obstruct the process by manipulating procedural
rules will be reduced, since the court must not, in ruling on the arbitrator's jurisdiction, consider
the facts leading to the application of the arbitration clause.
85 If the challenge requires the production and review of factual evidence, the court should normally refer the case to arbitration, as arbitrators have, for this purpose, the same resources and
expertise as courts. Where questions of mixed law and fact are concerned, the court hearing the
referral application must refer the case to arbitration unless the questions of fact require only superficial consideration of the documentary evidence in the record.
86 Before departing from the general rule of referral, the court must be satisfied that the challenge
to the arbitrator's jurisdiction is not a delaying tactic and that it will not unduly impair the conduct
of the arbitration proceeding. This means that even when considering one of the exceptions, the
court might decide that to allow the arbitrator to rule first on his or her competence would be best
for the arbitration process.
The minority set out its views about this concept, in essence the competence-competence principle, at paragraphs 163165:
163 ... First, the competence-competence principle stands for the proposition that the arbitrators
have the power to rule on their own jurisdiction. This principle is well established in our law and
has received legislative recognition in art. 943 C.C.P. More importantly for present purposes, it is
a rule of chronological priority under which the arbitrators must have the first opportunity to rule
on their jurisdiction, subject to subsequent review by the courts. This aspect of the competencecompetence principle is still subject to disagreement and gives rise to different applications.
164 In trying to determine the scope of this principle, one has to keep in mind the difference between the types of challenges that can be brought against an arbitrator's jurisdiction. They fall into two main categories. The first category encompasses the challenges regarding the validity of
the arbitration agreement involving the parties. The second category encompasses the challenges
regarding the applicability of the arbitration agreement to the specific dispute.
165 It is relatively well accepted that the competence-competence principle applies to the jurisdictional challenges regarding the applicability of the arbitration agreement (see e.g., Kingsway
Financial Services Inc. v. 118997 Canada inc., [1999] Q.J. No. 5922 (QL) (C.A.)). In any challenge to arbitral jurisdiction alleging that the dispute does not fall within the scope of the arbitration clause, it has been established that courts ought to send the matter to arbitration and allow the
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arbitrator to decide the question, unless it is obvious that the dispute is not within the arbitrator's
jurisdiction...However, whether courts ought to generally send the matter to arbitration when the
validity of the arbitration agreement itself is challenged, is more controversial.
24 Now, for the substance of this matter. I start by acknowledging that counsel advised that there are no precedents
specifically dealing with s. 47 of the Act, its scope or interpretation. What is the determination I must make?
25 In determining whether the intended arbitration is invalid because the arbitration clause does not apply to the matter in dispute, it follows from Dell that I need not engage in a detailed analysis of all of the evidence that may be available. Rather, as a threshold determination of the applicability of an arbitration agreement, I need only be satisfied on the
record before me that there is an arguable case that may be covered by the arbitration agreement. To require more would
be to, in essence, have the court determine the merit of the complaint that the arbitrator should decide. As noted at paragraph 165 of Dell, the court ought to send the matter to arbitration "unless it is obvious that the dispute is not within the
arbitrator's jurisdiction."
26 Further, as to the threshold determination, an analogous situation is judicial consideration of a stay of court proceedings pursuant to provisions such as s. 7 of the Act. In those situations, the jurisprudence is clear that the reviewing
court must consider, among other matters, whether the dispute is one which falls within the terms of the arbitration
clause (Heyman v. Darwins Ltd., [1942] 1 All E.R. 337 (H.L.); Hopkins v. Ventura Custom Homes Ltd., 2011 MBQB
271, 272 Man.R. (2d) 122). Courts have described the test of whether a dispute falls within the terms of an arbitration
clause, as whether the dispute is "arguable" (see 678400 Ontario Inc. v. Roehampton Apartments Ltd. (2006), R.P.R.
(4th) 152 (Ont. S.C.J.)) or "prima facie" (see Hopkins) within the scope of the arbitration agreement.
27 Here, the Referral to Arbitration frames the dispute respecting taxes purported to be levied by the First Nation in
respect of property which is the subject of the sub-lease. The Development Corp. and the Cottagers disagree whether
there can be any claim or liability upon the Development Corp. respecting the tax scheme. The Cottagers advance a
number of potential claims or bases of liability against the Development Corp. including:
(i)
(ii)
(iii)
(iv)
essentially piercing the corporate veil such that the arbitration remedy negotiated between
the Development Corp. and the Cottagers in the sub-leases remains valid and binding on
the First Nation respecting the tax scheme;
that the head lease is incorporated into the sub-leases and as such no taxes can be levied
under the sub-leases or, if they can be levied, then the Development Corp. is responsible
for them rather than the Cottagers;
promissory estoppel respecting various representations made by then Chief and First Nation representatives who were acting in various capacities; and
the duty of good faith in contractual dealings.
28 On the non-controversial evidence before me as outlined above, from both the Cottagers and the Development
Corp., I have no hesitation in concluding that there is an arbitral dispute(s). In other words, the applicant Development
Corp. has not satisfied me that the arbitration agreement does not apply to the matter in dispute. I come to this conclusion primarily because:
a)
The Development Corp. concedes that the First Nation is its sole owner and beneficiary.
At material times the Chief and councillors of the First Nation were the officers and directors of the Development Corp. In various capacities, they executed numerous agreements
such as the head lease and sub-leases, annual cost sharing maintenance agreements and
the by-laws and rules for the Buffalo Point Cottage Development Community Committee.
In other words, specific people, simultaneously acting in various capacities, were the directing minds of both the Development Corp. and the First Nation acting to advance the
interests of the First Nation.
Critically, the First Nation, through Councillor Green, says that it was the entity that decided to replace service charges under the Cottagers' sub-leases with taxation laws. The
First Nation then caused that to happen. This is a clear example, among others, that the
Development Corp. is not the independent entity it asserts.
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The primary position put forward by the Development Corp. respecting the applicability
of arbitration to the dispute is that it did not charge the taxes, the First Nation did, and it
should be considered independent of the First Nation. Given my findings above and the
evidence on this hearing, I would have to suspend disbelief to accept this as reality, such
that a contractual arbitration process should be voided and thus eliminate a hearing on the
merits of the dispute. That the First Nation and the Development Corp. may have, in law,
colluded together or otherwise acted in concert respecting replacing service charges with
taxes and in so doing deprived the Cottagers of their contractual rights, is an arguable position;
b)
c)
There is an interplay of the head lease and the sub-lease, in that each refers to and incorporates the head lease into the sub-leases the Cottagers were granted by the Development
Corp. The head lease precludes taxation for the occupation, possession or use of the property. Sub-lessees (i.e. the Cottagers) may be entitled to this benefit. Without deciding the
ultimate interpretation of the leases, or the strength or merit of this position, it is nonetheless an arguable position. If the corporate veil of the Development Corp. is pierced vis-avis the First Nation, then it may be found that the taxation laws do not apply to the Cottagers (but service charges would) or alternately, if the veil is not pierced then it may be
arguable that the Development Corp. must indemnify the Cottagers for the tax or take
some other measure to protect its sub-lessees, the Cottagers;
Without going into all the evidence led before me, there is sufficient evidence that representations were made by the individuals, often the same person, either in their role on behalf of the First Nation or the Development Corp. or both concurrently, to the Cottagers
that may provide the legal relief that the Cottagers seek, either by concepts of promissory
estoppel or a duty of good faith, with or without piercing the corporate veil.
29 Thus, ultimately for the limited purposes of this application, the Development Corp. has not satisfied me that the
dispute is not properly brought under the arbitration process the parties contracted to. To the contrary, I am satisfied it
is.
CONCLUSION
30 The Development Corp.'s application for an injunction and for a declaration that the dispute articulated in the Referral to Arbitration is outside the ambit of the arbitration agreement between the Development Corp. and the Cottagers
is denied.
31 The Cottagers' motion that the Development Corp. be ordered to appoint an arbitrator pursuant to the arbitration
agreement is granted. The Development Corp. shall do so by January 17, 2013, failing which the Cottagers may request
an expedited appointment before me at which time I will appoint an arbitrator on behalf of the Development Corp.
32
The Cottagers are entitled to costs, which may be spoken to if they cannot be agreed.
33 One final comment. I could not help but wonder during oral argument and on reading the written submissions,
whether the parties would not benefit by some form of mediation. Specifically, counsel for the Development Corp. was
clear that not only did the Development Corp. and the First Nation believe they were acting within their rights, but more
importantly, they did not intend to disadvantage the Cottagers who they recognize play a significant role in economic
development plans of the First Nation and are also their neighbours. Yet, with equal conviction, the Cottagers believe
they are being unfairly dealt with in a way that violates the letter and spirit of their contractual arrangements, let alone
many representations made by the First Nation. Litigation/arbitration is one way to resolve this dispute, but mediation
may well cut to the heart of the matter in a way that best addresses each party's interests. As the matter remains open in
respect of the appointment of an arbitrator and costs, the parties may avail themselves of judicially assisted dispute resolution through the court if they both agree.
C.W. MARTIN J.
cp/e/qlcct/qlpmg
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Time Of Request: Thursday, January 10, 2013
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