Williams Lake First Nation v Canada (Indian Affairs and Northern Development), 2021 FCA 30

Appeal remitted back to the Specific Claims Tribunal. The Federal Court of Appeal determined that the tribunal was unreasonable in their assessment of the Crown’s fiduciary duty owed towards the appellant First Nation. The tribunal erred by failing to give adequate consideration to applicable common law precedents. This was the result of failing to consider other less invasive and viable options in fulfillment of the Crown’s obligation of minimal impairment, where the taking or expropriation of reserve land is undertaken for a public purpose.

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This claim is rooted in the sale of 4.37 acres of land to the Pacific Great Eastern Railway Company in 1914-1915. It occurred in the grander context of British Columbia’s belated efforts to set aside reserve lands for British Columbia’s Indigenous peoples. Central to this claim is the historical backdrop in which the events unfolded and are imperative to the analysis of this case.

At the Specific Claims Tribunal [“SCT”], Williams Lake First Nation had contended that the lands had been wrongfully transferred, or alternatively, that the Crown had breached their fiduciary duty owed to the Band in respect to this transfer of land. The SCT determined that the Band’s specific claim was unfounded. Williams Lake contended that the determination made by the Supreme Court of Canada in Wewaykum was non-binding obiter, and that the application is limited to its fact, or needs to be revisited to apply to the present decision. The SCT rejected this. The SCT turned to the applicable legislation, determining that while the provisional nature of the land did implicate the application of some legislation, that ultimately, the BC Land Act, 1911 enabled the province to grant Crown land for railway purposes, regardless of whether the lands had been reserved under the Indian Act. Lastly, the SCT considered whether the Crown had discharged of their fiduciary duty, and focused their analysis on the monetary compensation, and not the unheeded wish of land in lieu of monetary compensation.

The Federal Court of Appeal determined that Williams Lake appeal must succeed, insofar that the SCT was unreasonable as they “failed to give adequate consideration to the principles established in the applicable common law precedents governing the scope of the Crown’s fiduciary duties to Indigenous peoples in respect of reserve lands”. All that was required for the construction of a canal over reserve lands was the grant of an easement, and that the Aboriginal interest must be preserved to the greatest extent practicable to preserve the taxation jurisdiction of the band (Osoyoos Indian Band v Oliver (Town), 2001 SCC 85). On this vein of analysis, the Federal Court of Appeal cites extensive precedent in line with this principle of minimal impairment, and the failure of the SCT to reach a similar conclusion to similar circumstances in the past. Moreover, the Court finds that the SCT failed to consider such options as an easement, versus a grant in fee simple. The Court determines that the matter is best remitted back to the expertise of the SCT for redetermination.

R v JC, 2021 MBQB 52

A conditional sentence was considered fit and appropriate for an Indigenous offender that pleaded guilty to assault. He cares for his three children, is not a threat to the community and in keeping with Gladue principles, will keep his family unit together.

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In 2017, the accused pleaded guilty to assaulting a victim. The victim was 17 and the accused was 22 at the time of the event. Both were intoxicated when they got into a vehicle together. The victim, who was in the passenger seat, passed out and awoke to find the accused on top of her. Despite her struggling, he pinned her down and threatened to hit her. He is now being sentenced for this matter.

The accused has some Gladue factors but had a good upbringing, a history of employment, and is the father of three children that are in his care. He does have an unrelated youth conviction, and not expressed remorse. However, the accused, an Indigenous man from Waywayseecappo First Nation, has a connection to his community. He has participated in sweat lodge ceremonies with his father, as well as on his own. The accused has his own children involved in traditional Indigenous ceremonies. The accused also participated in trapping with his father, when his father used to do so. He also has had issues with substance abuse, but when the accused was charged with this offence, he stopped drinking.

While a custodial sentence is needed to denounce the actions of the accused, a period of actual incarceration is not needed. He is sentenced to a period of incarceration of 9 months, to be served in the community, subject to conditions. As well, a term of probation of 2 years following the completion of the sentence is imposed. The accused is not a danger to the community and the safety of the community would not be endangered by the accused serving his sentence in the community. The accused has care of his three children. The breakdown of familial relationships is a recurring consequence of colonialization. In this case, the accused being incarcerated would continue that intergenerational harm. A conditional sentence would keep this family unit together.

Iskatewizaagegan No 39 Independent First Nation v Winnipeg (City), 2021 ONSC 1209

Ontario’s motion is dismissed. Ontario moved for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim claiming that it is plain and obvious that Iskatewizaagegan pleading disclosed no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. The Court finds that it is not plain and obvious that Iskatewizaagegan does not have a tenable cause of action based on a sui generis fiduciary duty or an ad hoc fiduciary duty.

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The City of Winnipeg, Manitoba [“Winnipeg”] extracts its drinking water from Shoal Lake, which is located predominantly in Ontario, but also Manitoba. Shoal Lake has been extracted for this purpose for over 100 years but has not paid anything to the Plaintiff, the Iskatewizaagegan No. 39 Independent First Nation [“Iskatewizaagegan”]. Winnipeg is being sued by Iskatewizaagegan for compensation for injurious affection, with damages claimed at $500 million. Iskatewizaagegan also sues the Province of Ontario, for breach of fiduciary duty.

Iskatewizaagegan pleads two distinct theories of Crown liability for breach of fiduciary duty: 1) a sui generis fiduciary duty based on the relationship between Aboriginal peoples and the Crown; and 2) an ad hoc fiduciary duty. It relies on a 1913 Order in Council along with antecedent Royal Proclamations and Treaties and sequent legislation enacted by Ontario.

In this matter, Ontario moves for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim without leave to amend and to dismiss the action for failing to disclose a reasonable cause of action. Ontario states that it is plain and obvious that Iskatewizaagegan pleading discloses no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. Ontario’s action is dismissed.

The people of Iskatewizaagegan are Anishinaabe. They are a distinct Aboriginal society, a recognized Band under the Indian Act, and an Aboriginal people within the meaning of s 35 of the Constitution Act, 1982. Shoal Lake is a part of the cultural identity of Iskatewizaagegan and its people. Since time immemorial, the Anishinaabe have used the waters of Shoal Lake and the surrounding land for survival. Iskatewizaagegan’s culture is coextensive with Shoal Lake and the surrounding land. The transmission of Anishinaabe teachings, traditions, and values to future generations takes place and continues to take place at Shoal Lake.

Common law real property concepts do not apply to Aboriginal lands or to reserves. Aboriginal title and interest in reserves are communal sui generis interests in land that are rights of use and occupation that are distinct from common law proprietary interests. An Aboriginal interest in land will generally have an important cultural component that reflects the relationship between an Aboriginal community and the land. The Aboriginal interest in land is a sui generis independent beneficial legal ownership interest that burdens the Crown’s underlying title, which is not a beneficial ownership interest and which may rather give rise to a fiduciary duty on the part of the Crown.

Iskatewizaagegan is a beneficiary of the Royal Proclamation of 1763, and was ratified by assembled Indigenous Nations by the Treaty of Niagara 1764. In the summer of 1764, representatives of the Crown and approximately 24 First Nations, met at Niagara. The lengthy discussions lead to the Treaty of Niagara 1764, which was recorded in wampum. The Crown does not recognize the Treaty of Niagara 1764 as substantively altering the legal effects of the Royal Proclamation of 1763. In contrast, First Nations assert that the Royal Proclamation of 1763 must be understood together with the Treaty of Niagara 1764 and so understood the Royal Proclamation of 1763 constitutes a recognition of Indigenous sovereignty.

In 1873, Iskatewizaagegan entered into Treaty No 3 with the Crown. The reserve of Iskatewizaagegan No. 39 adjacent to Shoal Lake was established pursuant to Treaty No 3. Treaty No 3 is a pre-confederation treaty on behalf of the Dominion of Canada and Chiefs of the Ojibway. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. In return, the Ojibway received annuity payments, goods, and the right to harvest the non-reserve lands surrendered by them until such time as they were taken up for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada. Although Treaty No 3 was negotiated with the Crown in right of Canada, the promises made in Treaty No 3 are promises of the Crown. The federal Government and Ontario are responsible for fulfilling the promises of Treaty No 3 when acting within the division of powers under the Constitution Act, 1867.

In exercising its jurisdiction over Treaty No 3 lands, Ontario is bound by the duties attendant on the Crown and it must exercise its powers in conformity with the honour of the Crown and the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. The honour of the Crown has been a principle animating Crown conduct since at least the Royal Proclamation of 1763, through which the British asserted sovereignty over what is now Canada and assumed de facto control over land and resources previously in the control of Aboriginal peoples. The categorical fiduciary duty owed by the Crown in the Aboriginal context is sui generis. From the honour of the Crown and the Federal Government’s exclusive jurisdiction in respect of Indians under s 91(24) of the Constitution Act, 1867, the Crown has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples.

R v RS, 2021 ONSC 2263

A jury acquitted an Indigenous man of one count of sexual assault, but found him guilty of another count of sexual assault and the offence of choking with intent to overcome resistance to facilitate the sexual assault. A 90-day intermittent sentence for the choking concurrent to a 2-year less a day conditional sentence for the sexual assault are the fit and proportional sentences which will allow the accused to keep his job, while seeking rehabilitation. The sentence is to be followed by probation for 2 years.

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The accused and victim initially met at work, where they struck up a friendship. However, in 2018, they both became intoxicated on a social night out. Eventually they reached her residence, but cannot recall all the events that led to it, but became aware of a sexual assault occurring on her in her home. She struggled and repeatedly told the accused ‘no’, and tried getting away. Her throat was grabbed and she was overpowered when he forced himself on her. A neighbor who thought she heard distress, attempted to intervene but both the accused and the victim made it appear that there was nothing wrong. After texting the accused after he left, the victim realized how upset she was and reported her state to a friend, then subsequently called the police.

The accused is 38 years old, and has substantial Gladue factors. He is connected to the Michipicoten First Nation on the shores of Lake Superior. There was domestic violence and substance abuse in his home. There are a number of aggravating factors to consider, however, mitigating factors are present, such as the employability of the accused, he is a first time offender, and has post-secondary education as well as shown insight into his actions, including remorse.

The sentencing in this matter is for two offences, sexual assault and choking. Indigenous women experience disproportionate rates of violent victimization in comparison to their non-Indigenous counterparts. Section 742.1 of the Criminal Code provides for a conditional sentence. The test has several elements: 1) the term of imprisonment must be less than two years; 2) service of the sentence in the community must not endanger the safety of the community; and 3) it must be consistent with the fundamental purpose and principles of sentencing set out in ss 718 to 718.2.

Determining a conditional sentence in this matter will not endanger the community in this matter. The decision whether to impose a conditional sentence must be consistent with s 782.1(e). The Gladue imperative relates to the outcome of the sentencing process, not just the methodology. The Court, however, is troubled by the choking to facilitate an offence, as it is inherently dangerous conduct. Real jail time is necessary to reflect the additional gravity of this act. In this case, the sentence for the choking should be concurrent to the sexual assault sentence. The offences are so closely factually and temporally linked to each other that they constitute a single criminal transaction. It is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s 742.1 have been met in respect of one or more but not all of the offences.

R v Alfred, 2021 BCCA 71

Appeal dismissed. The appellant was convicted of sexual interference and sought to appeal his nine month custodial sentence. The Court found that the sentencing judge clearly considered a number of mitigating factors, including the appellant’s history as an Indigenous person in order to arrive at a sentence that reflected significant restraint. The Court notes that a victim’s willing participation is not an indication that sexual violence has not occurred as sexual offences against children are inherently violent.

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The 27-year-old Indigenous appellant, Mr. Alfred, was convicted of sexual interference and sentenced to nine months imprisonment followed by 24 months of probation. Mr. Alfred attempted to appeal his conviction, but it was dismissed. He now comes before the Court to appeal his sentence. In doing this, the appellant argues that the sentencing judge failed to give effect to section 718.2 of the Criminal Code which sets out the principles of restraint and the need to consider the least restrictive sentence, particularly in the case of an Indigenous offender. The appellant held that the appropriate sentence here would be a suspended sentence, as opposed to the custodial sentence he was given.

In considering Mr. Alfred’s circumstances, the Court had the benefit of referring to a presentence report which also commented on Gladue factors. The report revealed that Mr. Alfred himself was a victim of sexual abuse as a child, was exposed to alcohol abuse, and suffered some dislocation from his family. Having reviewed these circumstances, the Court found that the sentencing judge had adequately considered the appellant’s history as an Indigenous person.

In considering the appellant’s argument that the sentencing judge arrived at a sentence that did not reflect proper restraint, the Court considered the principle of proportionality. Specifically, the Court sought to ensure that the sentence imposed on Mr. Alfred reflected his moral culpability and the gravity of the offence. With regard to this, the appellant submits that the complainant wanted her relationship with the appellant to happen, and that she was not pressured to enter into sexual relations with Mr. Alfred. The appellant submits that the victim’s willingness is a factor differentiating this case from cases of predatory sexual violence against children. The appellant argues that this “willingness” by the victim reduces his moral blame worthiness and is highly relevant to proportionality in this case since indications of predatory sexual violence against children were not present. The appellant holds that this justifies a reduced sentence.

The Court rejects this argument on the basis that it is inconsistent with case law that states that sexual offences against children are inherently exploitative and require higher sentences. (R v Friesen, 2020 SCC 9). The Court concluded that the sentencing judge considered all relevant factors, including the appellant’s history as an Indigenous person, and arrived at a sentence that reflected significant restraint. The Court found that the reasons for the sentence reflect no error in principle nor was the sentence demonstrably unfit.

R v Ireland, 2021 ONCJ 159

An Indigenous first offender was sentenced to a further 100 days over his presentence credit for a jewelry store heist. The value of the stolen jewelry is estimated at over half a million dollars. In lieu of forfeiture, he is fined $162,500.00 to pay in four years, or will have to serve 2 years in custody.

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In 2020, Mr. Ireland, an Indigenous man and first time offender, pleaded guilty to robbery contrary to s 343(a) of the Criminal Code for a jewelry store heist in 2019. Mr. Ireland and his accomplice entered a jewelry store masked and with sledgehammers. After intimidating the staff and smashing cases containing jewelry, they exited into a vehicle driven by a third accomplice. The entire incident was captured on the store’s video surveillance cameras.

At a different location, they changed vehicles driven by a fourth accomplice. That vehicle’s driver was under police surveillance at the time. Police were led to a residence on the Oneida Settlement where arrests were made after a K9 pursuit, and evidence of the robbery was located. The value of the stolen jewellery is estimated to be $530,545. None of it has been recovered.

Mr. Ireland has significant Gladue factors according to a Gladue report and pre-sentence report. He is a member of the Chippewa of the Thames First Nation. The reports, however, have conflicting information regarding his family members’ history in residential schools. What was apparent was substance abuse and domestic violence in his upbringing. He suffers from mental health issues and has limited employment history. Mr. Ireland is a committed father and is nurturing to his family.

Balancing all aggravating and mitigating factors with the sentencing principles, the appropriate sentence imposed on Mr. Ireland was one of four and one-half years in custody. Mr. Ireland is sentenced to an additional 100 days over and above the 385 days of pre-sentence credit he would normally be entitled to, leaving a remainder of 38 months to serve. The Court recommends Mr. Ireland be assessed by Correctional Services under their Indigenous Intervention Centre for possible placement in a Healing Lodge.

Despite Mr. Ireland’s arrest within an hour of a calculated jewelry store robbery, more than half a million dollars of jewelry remains unrecovered. In lieu of forfeiture, there will be a fine of $162,500 pursuant to section 462.37(3). Mr. Ireland has 4 years within which to make payment of the fine. Pursuant to section 462.37(4)(v), in default of payment, he will have the minimum sentence imposed of 2 years custody. The Court waives the application of the victim fine surcharge.

TA v CD, 2021 SKQB 52

An Indigenous mother has been granted custody of her six year old son. She voluntarily placed him with her great aunt when he was a few days old due to her addictions and incapacity to care for him. The aunt will continue to have specified access to the child, as she has bonded with him. The mother has worked hard over the last three years to remain sober and is now in a good position to care for her son along with his two siblings.

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CD, has been the primary care giver of a six year old child and her home has been his primary residence since he was only a few days old. He was placed with CD by his mother, TA, voluntarily, as she was struggling with addictions and knew she could not care for him. The mother is currently caring for two of her other children now that her addictions have been behind her now for almost three years. During this time that she has remained sober, TA went on to get two degrees from First Nations University in Regina and is confident she is capable to have her six year old son now stay with her.

CD, who is TA’s great aunt, has been cooperative with access to the mother, but feels that the boy should continue to live with her as it would be in his best interests. He is very sensitive to disruptions and requires special care and structured routine. CD has informed the Court that it is common both within their family and in First Nation circles to care for mothers who are struggling with raising their children.

TA acknowledges her previous addictions difficulties that included use of crystal meth and alcohol. However, this was due to unresolved trauma. She has worked very hard and has made long term, meaningful recovery and is prepared to become sole parent of her son. TA has put forth the effort to minimize conflict with her aunt over this custody issue, but remains adamant she can now provide for him with her place being primary residence.

The Court finds that a transition, if properly planned and executed will, in the short, medium and long run, to be in the best interests of TA’s son. The connection a child has to his biological parents is of great significance. It is not in his interests to have only a half time relationship with his mother. He will benefit most from living primarily with his mother and maintaining a relationship with his loving auntie. He needs access to both his Catholic roots and his Aboriginal culture. This is who he is at present and who he needs to continue to be until he makes choices himself as to where that leads. A transition period is important and counselling is recommended for the aunt and mother to repair the conflict this custody battle has inflicted on their relationship.

R v A(M), 2020 NUCJ 04

An Inuk woman received absolute discharge for breaching no-alcohol bail condition when she had called RCMP for help in domestic violence situation. The Justice of the Peace noted systemic issues Inuit women face as victims, including disproportionate rates of victimization, distrust of police and lack of social services; a disturbingly similar case one year prior, and did not want to send a message to Inuit women to “call at your own peril”.

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In 2018, A(M), an Inuk woman, who was placed on no-alcohol bail conditions, called police as she was facing a domestic violence situation. When police arrived, however, she was arrested for breaching her bail condition because she was found intoxicated.

Despite entering a guilty plea to the charge, she was sentenced to an absolute discharge for this offence. This case troubling, especially because it is nearly identical to another case, R v K(M), exactly one year prior, where K, also an Inuk woman who had pleaded guilty to breaching her bail for drinking when she was not supposed to. K called the police because she was being assaulted by her boyfriend, and was severely beaten and then held in custody to appear before the court.

In considering both cases of these women who are victims of violence, A(M)’s significant Gladue factors and the Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the work of Pauktuutit, the Qulliq status of women, among other reports, there cannot be “institutional indifference”. Inuit women should never feel like they must hesitate to call the police for assistance in Nunavut.

R v CZ, 2021 BCPC 25

First time Indigenous young offender sentenced to 24 months’ probation for sexual assault of an inebriated 14-year-old. The Court considered the appropriate principles under the Youth Criminal Justice Act, and determined that a sentence of 24 months’ probation is fitting in light of the circumstance of the offence and the offender.

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C.Z., and Indigenous youth and first time offender, was convicted of sexual assault. He was 16 year’s old in 2018 when he assaulted an inebriated victim, who was then 14 years old. He ignored her pleas to stop and overcame her attempts to resist, forcing sex on her. The victim on the following day of the assault disclosed to her friends, mother, and the police, that the offence occurred in the early hours of the night following a house party.

The Youth Criminal Justice Act [“YCJA”] sets out a sentencing regime which differs from the regime established under the Criminal Code. The YCJA created a separate stream from young persons in recognition of their presumed diminished moral blameworthiness and heightened vulnerability in dealing with the justice system. A Gladue report, and a Psychosocial and Psychological Assessment report were produced to the court by Youth Forensic Psychiatric Services. Among significant Gladue factors, C.Z. had a childhood marred by family violence, poverty, residential instability, parental alcohol misuse, physical and sexual abuse, and transgenerational trauma.

Under s 42(14) of the YJCA, the maximum combined duration of sentences is two years, unless it is a serious offence for which an adult could receive life imprisonment, in which case the maximum custodial sentence is three years. Under s 2 of the YJCA, sexual assault meets the threshold of a “violent offence”, as it is defined as an offence that causes bodily harm. For young offenders, this is to be a highly individualized process which considers the offence, the circumstances of the offence, and the circumstances of the offender (R v PR, 2018 SKCA 27).

The court notes the aggravating factors at play. Despite admitting guilt, C.Z.’s psychiatric assessments demonstrated concern for his risk of recidivism, stating that as the offender continues to mature into adulthood that reassessment is imperative. Despite the offender’s harsh upbringing and admission of guilt, his offence unequivocally and gravely affected the victim’s life. A sentence of 24 months’ probation is appropriate.

AC and JF v Alberta, 2021 ABCA 24

In an appeal regarding an interim injunction that stayed the implementation of amendments made to the Child Youth and Family Enhancement Act that prevented an Indigenous woman to access financial support to help her transition from government care into adulthood. The appellate court found that the chambers judge failed to consider a number of important factors and failed to give adequate weight to the public interest in weighing the balance of convenience. As a result, the appellate court allowed for the appeal and has set aside the injunction.

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There are two applicants within this case – A.C. and J.F., however the applicant J.F. did not file any evidence, and therefore the application was only advanced by the respondent A.C.. A.C. is a 22 year old Indigenous woman whose traumatic childhood resulted in her being in government care since the age of 12. When she turned 18, she became eligible to participate in Alberta’s Support Financial Assistance program [“SFA”], which provided her with transitional social and financial support that, under prescribed circumstances, and could continue until the age of 24. The purpose of the program was to facilitate the transition from childhood to adulthood for children in long term care who, as a result of those circumstances, lack the emotional and financial support to smooth the transition. In 2019, Alberta announced an amendment to the SFA program, reducing the maximum age for SFA assistance from 24 to 22.

A.C. argues that the effect of this sudden and unexpected withdrawal of social and financial support had an incredibly negative effect on her. She challenged the constitutionality of the legislative amendment and the manner which it was carried out, asserting that it breached her section 7 right to life, liberty and security of the person, and her section 12 right to be free from cruel and unusual treatment. She sought out and obtained an interlocutory injunction, which would stay the implementation of the proposed changes pending the full hearing of her Charter challenge. This case deals with Alberta’s appeal of this injunction.

At issue in this appeal is whether or not the respondent met the test for an interlocutory injunction restraining the implementation of this legislation. The decision to grant an interlocutory injunction is a discretionary exercise, with which a tri-parte test should be applied (RJR-MacDonald Inc v Canada (Attorney General), 1994 1 SCR 311). The first step to consider in the test for an interlocutory injunction is whether the applicant has identified a serious question to be tried. The chambers judge found serious questions justifying the interlocutory injunction on three heads: a) infringement of A.C.’s right to security of the person contrary to s. 7 of the Charter; b) cruel or unusual treatment of A.C. contrary to s.12 of the Charter; and c) breach of a fiduciary duty owed by the government to A.C. as a recipient of public support. The appellate court found that the chambers judge erred in identifying the right or freedom in each of these instances and in finding an arguable case that the state action caused or constituted a breach of the right or freedom in question. As a result, the appellate court concluded that the first part of this test was not met.

Since the respondent was unable to meet the first part of the test, it is not strictly necessary to consider the following steps of the analysis which pertain to irreparable harm and the balance of convivence. However, the appellate court considered these steps regardless. With regard to finding irreparable harm, the Court concluded that it was not clear that the respondent proved any potential harm arising from the amendment, much less irreparable harm. With regard to the balance of convenience, the appellate court found that it weighed in favor of dismissing the application for an interlocutory injunction on the basis that the amendment to the legislation was enacted in the public interest. The appellate court concluded their decision by allowing the appeal and determining that interlocutory relief should not have been granted.