Ontario Civil


Aboriginal Law

Reserves and real property

Leases

Plaintiff and Band entered into private leasing contract regarding hunting grounds

Plaintiff was member of defendant Band and he agreed to lease hunting grounds from Band for purposes of operating hunt club business pursuant to series of lease or land use agreements between plaintiff and Band. Plaintiff sought approval from Band to make capital improvements to buildings and lands of hunt club, and he sought credit for cost of capital improvements against rent he was required to pay. Plaintiff claimed that credit of $532,500 was agreed upon, and plaintiff did not pay rent for five years on the basis that he was drawing down capital improvement credit. There was change in Band council and plaintiff was evicted after 15 years of leasing land, right at start of hunting season, and plaintiff lost money, he was humiliated and his reputation suffered greatly. When council voted to evict plaintiff, they refused to count vote of one council member because they did not want there to be tie. Plaintiff brought action seeking damages, claiming that eviction constituted breach of agreement he had with Band; Band counterclaimed for unpaid rent due and owing. Action allowed; counterclaim allowed. Parties agreed that plaintiff would lease land from Band for $84,000 per year. Plaintiff and Band had agreement that plaintiff could proceed with construction and renovations, Band agreed to reimburse plaintiff for improvements by way of capital improvement credit to his rent, and plaintiff was entitled to capital improvement credit of $532,500. Band allowed and encouraged work to be completed knowing that plaintiff expected to be reimbursed. Band took no steps to collect rent for five years that plaintiff did not pay. Band knew that plaintiff did not keep receipts for cost of improvements, as much of work was done by plaintiff and his men on cash basis and receipts were not available. Procedure followed by Band council at meeting where they voted to evict plaintiff was completely improper. Parties entered into private contract and it could not be said that Band owed duty of fairness to plaintiff, but giving effect to intention of parties, justice required plaintiff to be given capital improvement credit of $532,500 against rent. Taking into account capital improvement credit, rent owing, and deposit plaintiff had paid, plaintiff was entitled to judgment of $142,500.

Sands v. Walpole Island First Nations Band Council (2016), 2016 CarswellOnt 21492, 2016 ONSC 7983, Pamela L. Hebner J. (Ont. S.C.J.).

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