Paquette v. Totusek, 2002 FCT 132

Date: 20020204

Docket: T-2355-00

Neutral Citation: 2002 FCT 132

BETWEEN:

                          CHIEF ROBIN PAQUETTE and the SAULTEAU INDIAN BAND

                                      (also known as the SAULTEAU FIRST NATIONS)

                                                                                                                                                        Plaintiffs

                                                                              and

                                               COLLEEN TOTUSEK, TAMMY WATSON,

                                     PADDY COURTOREILLE and PATRICIA BLANDIN

                                                                                                                                               Defendants

AND BETWEEN:

                                               COLLEEN TOTUSEK, TAMMY WATSON,

                                     PADDY COURTOREILLE and PATRICIA BLANDIN

                                                                                                                    Plaintiffs by Counterclaim

                                                                              and

                                                 NORMA GAUTHIER, DELLA OWENS,

                                             SANDRA FUCHS, and ROBIN PAQUETTE

and the SAULTEAU INDIAN BAND

                                      (also known as the SAULTEAU FIRST NATIONS)

                                                                                                      Defendants to the Counterclaim

                                                  REASONS FOR ORDER AND ORDER

BLAIS J.

[1]                  This is a motion filed on October 30, 2001 on behalf of the Plaintiffs / Defendants to the Counterclaim, pursuant to the Order of Madam Justice Simpson, Case Management Judge, made on July 6, 2001, for an Order pursuant to Rules 385(1) and 213 for Summary Judgment on behalf of the Plaintiffs, and for:

1.                    a declaration that Chief Robin Paquette is the Chief of the Saulteau First Nations;

2.                    a permanent injunction restraining the Respondents or any of their supporters from interfering in any way with Chief Robin Paquette while performing his duties as Chief for the term of his office;

3.                    an Order that Chief Robin Paquette be reinstated as Chief of the Saulteau First Nations with full pay and reimbursement for all expenses incurred by himself and by his emergency staff on behalf of the Saulteau First Nations from November 12, 2000;

4.                    an Order that Chief Robin Paquette be reimbursed for his legal expenses incurred in these proceedings;

5.                    an Order that Chief Robin Paquette's emergency staff be paid for their services;

6.                    costs;

7.                    such further and other relief as this Court deems just.

[2]                  This hearing arises pursuant to a Motion for Summary Judgment filed by Chief Robin Paquette and the Saulteau Indian Band, also known as the Saulteau First Nations, (collectively, the "Plaintiffs") seeking declaratory and injunctive relief in support of Chief Robin Paquette's continued position as Chief.

[3]                  The Defendants are four Headmen (i.e. councillors) elected at the same time as Chief Robin Paquette, (collectively, the "Defendants") who claim that Chief Paquette was validly removed from office on or about November 13, 2000. The Defendants have also filed a Counterclaim.

FACTS

[4]                  The Saulteau Indian Band, also known as the Saulteau First Nations (hereinafter "Saulteau"), is made up of five (5) Clans: Courtoreille, Davis, Desjarlais, Gauthier and Napoleon.    The Band Council is made up of elected Headmen from each of the five families. The Chief is elected from among these Headmen.

[5]                  Saulteau is a custom band and its laws and procedures govern the election to, and removal from, the offices of Headman and Chief.

[6]                  On July 5, 2000, the following Headmen were elected: Paddy Courtoreille (Courtoreille Clan, resigned December 2000), Colleen Totusek (Davis Clan), Robin Paquette (Desjarlais Clan), Patricia Blandin (Gauthier Clan), and Tammy Lee Watson (Napoleon Clan). On July 8, 2000, Robin Paquette was elected Chief. The remaining Headmen are the Defendants in this case.

[7]                  On or about October 25, 2000, a Band General Meeting was called for the purpose of amending the Band Government Law, or more specifically, replacing it entirely with the Saulteau First Nations Council Operating Procedures & Policies Handbook (the "Handbook"). However, the Plaintiffs allege that this meeting was held with only two (2) days notice, and although the Handbook was discussed at the meeting, the discussion resulted in an argument and the Handbook was not passed into law. This is significant because there is a provision in the Handbook for the removal of a Council member from office.

[8]                  On a date unknown to Chief Paquette, three (3) of the Defendants (Defendants Totusek, Watson and Blandin) organized a meeting of Band Elders. Only seventeen (17) elders (of approximately sixty two (62) elders in the Band) were present at a meeting that resulted in a decision to remove Chief Paquette from office. The Plaintiffs note that most of the elders were close relatives of two (2) of the Defendants.

[9]                  On or about November 13, 2000, a Band Meeting was held, having been called by three (3) members of Council (Defendants Totusek, Watson and Blandin) acting as a "quorum of council". Only thirty-five (35) members (of a total Band membership of approximately four hundred (400)) attended the meeting, and the Plaintiffs allege that notice of the meeting was short (2 days) and selective (only to some Band members). The Plaintiffs also allege that Chief Paquette was given no notice of the meeting or of the basis for the allegations against him.

[10]            At this meeting, Robin Paquette was purportedly removed from office by either Band Council Resolution or a Band General Meeting. The Band Council Resolution, dated November 13, 2000 and signed by three (3) members of Council (Defendants Totusek, Watson and Blandin), lists the grounds for removal as breach of public trust and breach of the Saulteau First Nations Chief and Council Code of Ethics.

[11]            It is from this action that the Plaintiffs seek relief.

PRELIMINARY OBJECTIONS

[12]            The Plaintiff raised an objection regarding the thirteen (13) affidavits filed by the Defendants on August 17, 2001 on the basis that he was not allowed to cross-examine four (4) of the affiants.

[13]            Given the decision on the motion for Summary Judgment, it will not be necessary to respond to this objection, and I suggest that the parties address this question at the next Case Management Conference.

[14]            The Defendants raised an additional objection in regards to the filing of two (2) letters, exhibit A and B attached to the Affidavit of Robin Paquette sworn on August 31, 2001 (filed at pages 221 to 225 of the Plaintiffs' Motion Record), on the basis that the letters are signed by many different people on different, separate pages and are not sworn; and on the basis that in another document, the Plaintiff Robin Paquette has admitted that names were added to an existing list (ref. Defendants' Motion Record, p. 281 and Cross-examination on Affidavits of Robin Roy Paquette, Questions 162 to 171).

[15]            The objection is sustained, and the two (2) letters attached to the affidavit of Robin Paquette filed at pages 221 to 225 of the Plaintiff's Motion Record should be removed.

LAW APPLICABLE TO MOTIONS FOR Summary Judgment

[16]            The motion for Summary Judgment is brought under Rules 213-218 of the Federal Court Rules, 1998, SOR/98-106, which read as follows:

[17]            In interpreting these Rules, there are certain judicial decisions that may be pertinent.

[18]            Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853 (F.C.T.D.), is a case where Tremblay-Lamer J. provides a complete canvass of the caselaw on the subject to that date and sets out the general principles applicable to a motion for Summary Judgment:

[para 8] I have considered all of the case law pertaining to Summary Judgment and I summarize the general principles accordingly:

1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al., [1994] F.C.J. No. 1631, 58 C.P.R. (3d) 221 (T.D.));

2. there is no determinative test ... but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie [(1990), 75 O.R. (2d) 225 (Gen. Div.)]. It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;

3. each case should be interpreted in reference to its own contextual framework...;

4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation;

5. this Court may determine questions of fact and law on the motion for Summary Judgment if this can be done on the material before the Court ...;

6. on the whole of the evidence, Summary Judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so ... ;

7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge ... The mere existence of apparent conflict in the evidence does not preclude Summary Judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved.

[19]            While this is a trial-level decision, the test was recently affirmed in the Federal Court of Appeal's decision in ITV Technologies Inc. v. WIC Television Ltd., 2001 FCA 11, [2001] F.C.J. No. 400 (F.C.A.).

[20]            In Kanematsu GmbH v. Acadia Shipbrokers Ltd., [2000] F.C.J. No. 978 (F.C.A.), the Court reaffirms a previous Court of Appeal decision in Feoso Oil Ltd. v. The Sarla, [1995] 3 F.C. 68 :

[para 13] The decision of this Court in Feoso Oil Ltd. v. The Sarla [See Note 1 below], interpreting the Federal Court Rules, is a leading authority on the subject of Summary Judgment. It has mandated that on a motion for Summary Judgment both sides must file such evidence as is reasonably available to them on the issues pleaded and which could assist the Court to determine if there is a genuine issue for trial. The responding party cannot rest on its pleadings and must give specific facts showing there is a genuine issue for trial.

[21]            This decision also stands for the proposition that Summary Judgment should not be granted if there are serious factual and legal issues that must be resolved in a trial.

[22]            The following caselaw under Rule 216 may also prove useful, particularly with regard to evidentiary issues.

[23]            In Jim Scharf Holdings Ltd. v. Sulco Industries Limited, [2000] F.C.J. No. 1103 (F.C.A.), in which the Court affirmed the trial judge's (Muldoon J.) decision ([1997] F.C.J. No. 1488) that, where affidavit evidence is conflicting, the evidence must undergo the scrutiny of a trial, and thus Summary Judgment is not appropriate.

[24]            In Wetzel v.Canada (A.G.), [2000] F.C.J. No. 155 (F.C.T.D.), Hugessen J. stated that:

[para 9] [...]I do not think that on a motion for Summary Judgment I should decide a contested issue of fact one way or the other on a matter which should only be settled by the drawing of inferences.

[25]            Also in F. Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology, Inc., [1999] F.C.J. No. 526 (F.C.T.D.), in which Evans J. (as he then was) held:

[para 10] However, a motion for Summary Judgment is not appropriate for deciding questions of fact that turn on credibility, or that require the kind of weighing and assessing of conflicting evidence that is properly the province of the trial judge. The applicable principles are usefully set out in Granville Shipping Co. v. Pegasus Lines Ltd. S.A. (1996) 111 F.T.R. 189, 192-193 (F.C.T.D.).

[26]            In Milliken & Co. v. Interface Flooring Systems (Canada) Inc., [1996] F.C.J. No. 1571, Tremblay-Lamer J. held:

[para 24] On a motion for Summary Judgment, it is for the moving party to establish that the other party's statement of claim, statement of defence or counterclaim discloses no genuine issue to be tried.

[27]            And lastly, in Pallmann Maschinenfabrik GmbH. Co. KG v. CAE Machinery Ltd., [1995] F.C.J. No. 898 (F.C.T.D.), Teitelbaum J. held:

[para 44] Therefore, Summary Judgment should not be granted on an issue where either on the whole of the evidence the judge cannot find the necessary facts or it would be unjust to do so. I am of the view that Summary Judgment should only be granted in circumstances where the facts are clear.

LAW APPLICABLE TO REMOVAL FROM OFFICE

[28]            As stated, Saulteau is a custom band with control over its own election procedures. As a result of a Band Council Resolution in June 1988, an Order that had been in place pursuant to section 74 of the Indian Act, which governs the election of Chiefs and Band Councils, was repealed. The effect of repealing this Order was to replace the Indian Act system of elections with a system of Band custom elections. This system of elections was codified in the Band Government Law (the "BGL").

[29]            In 1988, the BGL allowed for each Clan to select its own Headman, then the Headmen and Band Elders would elect a Chief. The BGL also contained the following clause to allow for its amendment:

8. This law or parts of this law may be amended after,

a)           Appropriate notice is given to the citizens of the Saulteau Indian Band that an amendment is proposed;

b)           Citizens are consulted on the desirability of the amendment; and

c)            The majority of the citizens consent to the amendment.

[30]            In 1996, the BGL was amended to allow the entire Band to vote for the Headmen and then to vote for one of the Headmen as Chief. These amendments were controversial, but were ultimately upheld as valid by Parrett J. of the British Columbia Supreme Court: [1997] B.C.J. No. 1250. In that decision, Parrett J. interpreted section 8 as requiring the following for an amendment to be valid under the BGL:

(a)           appropriate notice must be given to citizens of the proposed amendment;

(b)           citizens must be consulted on the desirability of the proposed amendments; and

(c)          the majority of the citizens, present at a properly convened meeting called for that purpose, consent to (or vote for) the amendment.

(my emphasis)

[31]            It is the amended procedure that was followed in the 2000 Band elections. While the amended BGL does have a provision for challenging the selection / election of a Chief or Headman (section 6), it does not have any provision for removal from office.

ANALYSIS

[32]            While reviewing the file, I noticed that a Case Management Judge was assigned on May 15, 2001. At the first Case Management teleconference, the Plaintiffs wanted to have the matter decided by Summary Judgment.

[33]            Pursuant to previous Orders of this Court, many outstanding issues remain. For example, a motion for injunctive relief was resolved by Orders of this Court dated March 19, 2000 and April 2, 2000. The following elements of the Order sought were not dealt with in that Order:

1.                    whether the Plaintiff Robin Paquette must return to Saulteau all documents and things which Robin Paquette removed from the Saulteau Band Administration Office on November 12, 2000 or subsequently;

2.                    whether an Order striking out "Saulteau Indian Band (also known as the Saulteau First Nations)" as a party plaintiff in this Action.

[34]            When addressing the serious question of whether Robin Paquette is entitled to file a Statement of Claim on behalf of the Band, and whether the Band should be a defendant, as suggested by Counsel for the Defendants, Counsel for the Plaintiffs could not provide a precise answer.

[35]            In my view, it is clear from the evidence filed by both parties that Robin Paquette has not demonstrated that he is entitled to file an Action on behalf of the Band. The question as to whether the Band should be a defendant or a plaintiff is a serious one and should be resolved either through a Case Management process or through a specific motion.

[36]            Both parties have filed contradictory evidence in regards to the circumstances surrounding the events of October and November 2000.

[37]            So far, I am not impressed by the way both parties have complied with their duty as members of the Band Council; both parties are guilty of wrong doing.

[38]            This case seems to hinge on whether a Custom Law exists that would permit the removal of a Chief from office, and if so, whether the procedure required has been followed. Making this determination, I think, requires a number of important findings of fact. In order to make these findings, a great deal of competing evidence would need to be weighed, and where witnesses and affiants disagree, credibility findings may be necessary.

[39]            It appears from my survey of the materials in the main action that there are a number of factual issues in dispute. The Counterclaim would survive any disposition of this Action by Summary Judgment, and I think that the issues from the Action and the issues that arise in the Counterclaim are inextricably linked.

[40]            The Plaintiffs have put the horse before the cart. I would encourage the parties to work in good faith through the Case Management process to put the file in order.

[41]            The Plaintiffs have failed to satisfy the Court that there is no genuine issue for trial with respect to a claim or defence.

O R D E R

[42]            Therefore, this Court orders that this motion for Summary Judgment is dismissed. Costs in the cause.

Pierre Blais                                          

Judge

OTTAWA, ONTARIO

February 4, 2002