Date: 20061123
Docket: T-2007-02
Citation: 2006 FC 1420
Ottawa, Ontario, November 23,
2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MELVIN WANDERINGSPIRIT,
DELPHINE BEAULIEU, TONI HERON,
RAYMOND BEAVER AND SONNY MCDONALD in
their capacity as
COUNCILLORS OF THE SALT RIVER FIRST NATION 195,
elected August 30, 2002
Applicants
and
VICTOR MARIE uncontested Chief and NORMAN
STARR,
uncontested duly elected BAND COUNCIL
MEMBER,
NORA BEAVER, DAVID GOWANS, CONNIE
BENWELL,
MICHEL BJORNSON, HARVEY LEPINE, AND DON
TOURANGEAU,
purportedly elected BAND COUNCILLORS at a
meeting held
November 3, 2002, AND JEANNIE
MARIE-JEWELL,
acting as Interim Band Manager
Respondents
AMENDED REASONS FOR ORDER AND ORDER
[1] In Melvin
Wanderingspirit et al v. Victor Marie et al, 2006 FC 837, this Court
found that contempt had been established against Mr. Victor Marie and Mr.
Norman Starr (collectively referred to as the Contemnors) in respect of a
number of matters.
[2] Mr. Marie was
found guilty of four counts of contempt and Mr. Starr of two counts. The counts
involved the issuance, authorization and acceptance of cheques drawn on
accounts of the Salt River First Nation Band (SRFN), contrary to the terms of a
number of Orders of this Court. The particulars of those findings are set out
in Wanderingspirit et al, above. The question now before the Court is,
in the circumstances of this case, what is the appropriate penalty to be
imposed for the contempt?
Analysis
[3] The penalties
for contempt are set out in Rule 472 of the Federal Courts Rules,
SOR/98-106:
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Where a person is found to be in
contempt, a judge may order that
(a) the person be imprisoned for
a period
of less than five
years or until the
person complies with
the order;
(b) the person be imprisoned for
a period
of less than five
years if the person
fails to comply with
the order;
(c) the person pay a fine;
(d) the person do or refrain
from doing
any act;
(e) in respect of a person
referred to in
rule 429, the person’s
property be
sequestered; and
(f) the person pay costs.
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Lorsqu’une personne est reconnue coupable
d’outrage au tribunal, le juge peut ordonner :
a) qu’elle soit incarcérée pour une période de moins de cinq ans ou
jusqu’à ce qu’elle se conforme à l’ordonnance;
b) qu’elle soit incarcérée pour une période de moins de cinq ans si
elle ne se conforme pas à l’ordonnance;
c) qu’elle paie une amende;
d) qu’elle accomplisse un acte ou s’abstienne de l’accomplir;
e) que les biens de la personne soient mis sous séquestre, dans le
cas visé à la règle 429;
f) qu’elle soit condamnée aux dépens.
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[4] A review of the
jurisprudence establishes a number of relevant factors to consider in assessing
the penalty for contempt. Overall, the penalty should reflect the severity of
the law and yet be sufficiently moderate to show the temperance of justice (Cutter
(Canada) Ltd. v. Baxter Travenol Laboratories of Canada Ltd.,
[1987] 2 F.C. 557, 14 C.P.R. (3d) 449 at 453 (F.C.A.)). Other elements to be
considered are the following:
- the
fine must not be a mere token amount, but must reflect the ability of the
person found in contempt to pay the fine (Desnoes & Geddes Ltd. v.
Hart Breweries Ltd., 19 C.P.R. (4th) 346 at para. 7
(F.C.T.D.));
- whether
the contempt offence is a first offence (R. v. de L’Isle (1994),
56 C.P.R. (3d) 371 at 373 (F.C.A.));
- whether
the contemnor has a prior record of ignoring Court process (Desnoes
& Geddes, above at para. 11);
- the
presence of any mitigating factors such as good faith or apology (Cutter
(Canada) Ltd.,
above at 454);
- any
apology and whether it was timely given (N.M. Paterson & Sons Ltd.
v. St. Lawrence Seaway Management Corp., [2002] F.C.J. No. 1713 at
para. 17 (F.C.T.D.));
- deterrence,
to ensure that subsequent orders will not be breached (Louis Vuitton
S.A. v. Tokyo-Do Enterprises Inc. (1991), 37 C.P.R. (3d) 8 at
13 (F.C.T.D.));
- any
intention to wilfully ignore or disregard the order(s) of the Court (James
Fisher and Sons Plc v. Pegasus Lines Ltd. S.A., [2002] F.C.J. No. 865
at para. 17 (F.C.T.D.)); and
- whether
the order has subsequently been found to be invalid (Coca-Cola Ltd. v.
Pardhan (2000), 5 C.P.R. (4th) 333 at para. 6 (F.C.T.D.),
aff’d (2003),
23 C.P.R. (4th) 173 (F.C.A.)).
[5] In
the case before me, there are a number of factors that are relevant to the
assessment of penalty.
- The June 20, 2003
Order was subsequently found to be invalid by the Court of Appeal (Wanderingspirit
et al v. Victor Marie et al, 2003 FCA 384) on the basis that,
once
the motions judge had finally determined who were the rightful members of
the Band Council, he had no jurisdiction to intervene in their exercise of
the Council's powers, including the power to appoint signing officers.
- The orders were
issued in the context of a very confusing and acrimonious time in the
SRFN. Looking at the orders and the actions of the Contemnors, it is
evident (albeit in hindsight) that the orders were difficult to administer
in the context of the situation in the SRFN.
- The wording of the
orders was not always crystal clear.
- There is no
evidence before me that the intent of the Contemnors was to do anything
other than compensate themselves and other band council members and
employees for work carried out by them.
- Mr. Starr, during
oral submissions before me, apologized for his actions.
- Mr. Marie, acting
as chief, bears the main responsibility for the contemptuous acts.
[6] The
Applicants seek a penalty of imprisonment. They point to an alleged inability
of the Contemnors to pay any fine and to the deterrence that such an
imprisonment would have for a repeat of such an offence. I do not accept that
imprisonment would be a just result. This is the first offence by these Contemnors.
Further, given that the order in question was, subsequent to the contempt,
declared invalid, there can be no repetition of this particular contempt.
Immediate imprisonment would be an excessive penalty that would do nothing but
aggravate the acrimonious situation in the SRFN and impose disproportionate
hardship on the Contemnors and their families.
[7] The
Applicants argue that the imposition of a fine would be meaningless since the
Contemnors have no ability to pay the fine. They point to the fact that the
Applicants are having difficulty collecting an earlier award of costs from the
Contemnors.
[8] The
Applicants also argue that if I choose to impose a fine, the fine should equate
to that amount of money allegedly siphoned from the SRFN accounts by the
cheques issued in contravention of the orders. I do not agree that this should
be the measure of any penalty. The purpose of the penalty in contempt cases has been
described as to “repair the depreciation of the authority of the court” (International
Forest Products v. Kern, [2001] B.C.J. No. 135 at para. 20 (B.C.C.A.)). The
issue in this contempt proceeding is whether the Contemnors violated an order
of the court and not whether they stole funds from the SRFN. For this reason,
the penalty should be designed to restore the reputation of the Court and to
deter the Contemnors from any further breaches of orders. The penalty is not a
way for the Applicants to recover funds that they believe were effectively
stolen from the SRFN. In any event, any fine proceeds are paid to the Court and
not to the Applicants.
[9] I
will consider Mr. Starr who was found guilty of two counts. He is currently
paying his share of the earlier costs award through garnishment of his wages. I
accept that Mr. Starr likely does not have the means to pay any large fine
except over a long period of time. However, Mr. Starr has apologized for his
actions over this matter and acknowledges his accountability for this earlier
award of costs. I am satisfied that Mr. Starr’s role in the contempt was not
one of leadership; it appears that Mr. Marie was the prime instigator. I believe
that a fine is the appropriate penalty and will assess such fine at $500. I
expect that Mr. Starr will make the necessary arrangements to pay this amount.
[10] The
situation with Mr. Marie is somewhat different. He has not apologized for his
actions; in fact, he maintains that he was acting on the instructions of his
previous legal counsel. From my earlier review of the evidence before me in the
contempt proceeding, I am satisfied that Mr. Starr was the main protagonist in
the dispute that led to the breach of the orders. Unlike Mr. Starr, it appears
that he is not paying any of the earlier costs award and may even have taken
steps to avoid payment. However, I also take into account that the cheques
issued were to benefit a number of members of the former Band Council who were
not being paid and not just himself. Further, Mr. Marie is unlikely to be able
to pay a large fine. Accordingly, I will assess a fine of $2000. I am concerned
that Mr. Marie may not take the imposition of this fine seriously. In the
circumstances, there must be some contingency imposed by this Court that will
motivate Mr. Marie to respect this Order and to pay the fine. Accordingly, if
the fine is not paid within 90 days of this Order, Mr. Marie will serve a term
of imprisonment of 21 consecutive days.
Costs
[11] The
Applicants seek full indemnity for their legal costs. In subsequent written
submissions, the Applicants submit that the total solicitor-client costs sought
against Mr. Marie and Mr. Starr amount to $50,368.64, inclusive of fees,
disbursements and taxes. I find this amount to be unreasonable.
[12] In
general, an award of costs on a solicitor client basis is appropriate. Those
who assist the Court in the enforcement of its orders should not, generally, be
out of pocket for their efforts (Coca-Cola, above at para. 21). However,
in this case, there are several factors that, in my view, should result in a
lowering of the requested amount.
[13] Firstly,
the Applicants were only partially successful in the contempt proceeding; the
charges were dismissed against a number of alleged contemnors. It is important
that the Contemnors are not required to subsidize the failed efforts of the
Applicants.
[14] The
Applicants submit that 75% of the time spent in this matter related directly to
the proving of contempt against Mr. Marie and Mr. Starr. It appears that they
base this calculation on the conclusion that six of the eight (ie. 75%)
particularized allegations of contempt went directly against Mr. Marie and Mr.
Starr. This is an over-simplified methodology that leads, in my estimation, to
an unfair result. The parties who were found to be in contempt should not have
to bear the entire cost – or even 75% -- of a proceeding that was brought
against all of the Respondents. Thus, I would reduce significantly those costs
claimed for the show cause hearing
(1 day) and the main contempt application
(2 days).
[15] I
also note that, while this was not a complicated matter, two counsel have been
associated with the file. Both counsel attended the two-day contempt
proceeding, incurring not only legal fees but significant travel costs. I
question the use of two counsel in these matters.
[16] It
cannot be ignored that the order that underlies the contempt finding was found
to be invalid. This also indicates to me that I should be cautious in any award
of costs.
[17] As
stated above, in my view, Mr. Marie bears primary responsibility for the
contempt.
[18] Taking
these factors into consideration and exercising my discretion in accordance
with Rule 400 of the Federal Court Rules, I award costs in the amount of
$10,000, inclusive of all fees, disbursements and taxes, to be borne 75% by Mr.
Marie and 25% by Mr. Starr, such amounts to be paid within 12 months of these
reasons for decision and order. There is no need to make an order to address
the possibility that the Contemnors will not pay their respective share of this
cost award. The Applicants have recourse to a number of remedies should that
eventuality arise; no order is required.
[19] The Reasons in the matter of costs was issued November 10, 2006.
Unfortunately, I had mistakenly assumed that Mr. Marie and Mr. Starr had not
made any written submissions on costs. In fact, I had directed that such
submissions were due by November 15, 2006. Both Mr. Marie and Mr. Starr filed
submissions on costs within the allowed time. In circumstances such as this,
Rule 397 of the Federal Court Rules allows the Court to reconsider a
matter. I have, on my own motion, reconsidered the matter of costs. While these
reasons have been amended, I have determined that the result does not change.
Mr. Marie and Mr. Starr both submit that the Applicants should only be entitled
to 22% of the amount claimed given that the Applicants were successful as
against 2 of the originally-named Respondents. This methodology, while not
perfect, has some logic and merit in this case. Such a calculation would result
in an award of approximately $11,000. Thus an award of $10,000 is within range,
particularly considering the other difficulties I have with the amount claimed.
[20] In spite of Mr. Marie’s request that he be required to pay only half
of the costs awarded, I continue to believe that his part in the breaches of
the Court Orders was more significant. Accordingly, Mr. Marie’s share of the
costs will be 75% or $7500.
ORDER
This Court orders that:
- Mr. Norman Starr
is fined in the amount of $500;
- Mr. Victor Marie
is fined in the amount of $2000 to be paid within 90 days of this order;
- Mr. Norman Starr,
as to 25%, and Mr. Victor Marie, as to 75%, are to pay costs to the
Applicants in the amount of $10,000, inclusive of disbursements and
applicable taxes, such costs to be paid with 12 months; and
- In the event that
the fine ordered in paragraph 2 has not been paid to the Applicants as
ordered, Mr. Victor Marie is to be imprisoned for a period of 21 days.
“Judith A. Snider”
______________________________
Judge
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