Jurisdiction at issue in Magic Palace lawsuit
After a judge rejected an attempt by the Kahnawake Gaming Commission (KGC) to wrest the Magic Palace lawsuit from provincial courts in November, the KGC has been granted leave to appeal the decision.
“I don’t think they have a leg stand on,” said Pierre L’Ecuyer, a lawyer representing the owners of Magic Palace, Stanley Myiow and Barry Alfred.
The civil firm representing Magic Palace will soon file a motion to quash the Court of Appeal’s decision to grant leave to appeal, according to L’Ecuyer.
The KGC is arguing that the Superior Court does not have the jurisdiction to hear the Magic Palace lawsuit because the gaming commission is a creature of Mohawk laws, not Quebec or Canadian ones.
L’Ecuyer has argued his clients have had no recourse but to pursue the issue in court.
“Basically, in the by-law made by the Council, it should go to the Administrative Tribunal of Kahnawake. The problem is it doesn’t exist,” said L’Ecuyer.
While there are plans to implement this tribunal, it is not yet operational.
Magic Palace is seeking judicial review of the KGC’s revocation of the gaming facility’s authorization to operate on the territory. That decision followed months of pressure after a report in La Presse alleged ties to organized crime.
The KGC responded by commissioning a third-party investigation by Spectrum Gaming Group. After receiving the report from Spectrum, the gaming commission issued an immediate suspension of Magic Palace’s operations pending a hearing.
However, the Mohawk Council of Kahnawake (MCK), an impleaded party in the lawsuit, followed up the next day with a termination of its royalty agreement with Magic Palace. This agreement is a requirement to operate lucrative Electronic Gaming Devices (EGDs) on the territory.
L’Ecuyer has cast these moves as unjust and onerous.
“There’s big financial damage,” said L’Ecuyer. “It’s sad to say, but it’s the Council that’s going to have to pay for it.”
L'Ecuyer pointed out that the leave to appeal has no bearing on the KGC’s likelihood of success overturning the Superior Court’s decision.
“They’re not saying their argument is right. They’re saying we will hear your argument,” L’Ecuyer said.
The judgement issued by the Court of Appeal explicitly states that no opinion is expressed on the chances of an appeal’s success. However, judge Guy Cournoyer writes that the questions raised by the KGC “are important and should be determined by the Court.”
The KGC did not respond to a request by deadline.
The MCK declined to discuss grand chief Cody Diabo’s pre-trial examination in response to a request from The Eastern Door.
However, the MCK provided responses, attributed only to MCK legal counsel, to questions about the leave to appeal judgement itself.
Sign up for email updates from The Eastern Door
Asked how the MCK responds to Magic Palace’s position that there is no other recourse besides external courts given the Administrative Tribunal is not operational, MCK’s lawyers responded, “This issue was not contemplated by the judgment granting leave to appeal. It may eventually be addressed in a final judgment of the Court of Appeal. However, it should be specified that Magic Palace is only referring to a recourse to overturn the decision of the KGC.
“The question of jurisdiction has been posed by the KGC. Whether or not the KGC would submit to the jurisdiction of Kahnawake’s Administrative Tribunal is a question for the KGC.”
Asked what the MCK’s position will be if the Court of Appeal affirms the Superior Court decision, MCK legal counsel responded, “The MCK is an impleaded party in the KGC’s appeal of the Superior Court decision regarding jurisdiction in the stay of execution and judicial review proceedings. The MCK has not contested the jurisdiction of the Superior Court in the interlocutory injunction and declaratory judgement proceedings.”
