Date:
20121206
Docket:
T-1180-11
Citation:
2012 FC 1436
Ottawa, Ontario, December 6, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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MIKE ORR
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Applicant
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and
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FORT MCKAY FIRST NATION CHIEF
AND COUNCIL
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Respondents
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REASONS FOR
ORDER AND ORDER
[1]
Mr.
Mike Orr [“the Applicant”] is seeking by motion an
Order from this Court pursuant to Rule 467 of the Federal Courts Rules,
SOR/98-106, requiring Fort McKay First Nation Chief and Council [“the
Respondents”] to be held in contempt for disobeying an Order of the Court. This
is the first step of the contempt procedure commonly referred to as the “show
cause” stage. In order to be successful at this stage, the Applicant must
submit evidence that shows that a prima facie case of contempt has been
made against the Respondents.
I. A
Brief Summary of the Facts at Play
[2]
The
Applicant, who has been an elected councillor of the Band Council since 1998,
having been re-elected through different elections and who is also a Director
of ten Band-owned companies, was suspended temporarily without pay by the
Respondents by resolution dated July 13, 2011 as a result of “sexual assault
charges” made against him. These criminal charges were withdrawn on November
14, 2012.
[3]
The
Applicant initiated an application for judicial review with this Court of the
Resolution of the Band Council to suspend him temporarily without pay. Justice
Near rendered a decision on November 14, 2011 allowing the application for judicial
review of the resolution, quashing it and ordering that the Applicant resume
his duties as councillor of the Band Council and Director of the Related Band
Companies (Amended Reasons were issued on December 5, 2011).
[4]
On
November 25, 2011, the Respondents filed an appeal of the Judgment and on
January 18, 2012, the Federal Court of Appeal granted a stay of the Federal
Court Judgment until final judgment by the Court.
[5]
On
October 30, 2012, the Federal Court of Appeal dismissed the appeal with costs.
[6]
Counsel
for the Applicant wrote to counsel for the Respondents on November 5, 2012
requesting some information regarding future Council meetings, as well as the
costs awarded and other monetary entitlements. A response asking for
particulars as to costs and other monetary requests was forwarded by counsel
for the Respondents two days after, November 5, 2012.
[7]
On
that same day, the Applicant signed an affidavit in support of this show cause
motion which was served on the Respondents on November 9, 2012 and filed on
November 13, 2012.
[8]
By
letter addressed to the Respondents, dated November 14, 2012, the Applicant
sought all information in relation to the Band, its corporate businesses and
his monetary requests.
[9]
On
November 15, 2012, a representative of the Respondents replied, assuring the
Applicant that the best efforts would be made to supply the information
requested and that the monetary claims should be addressed directly to the Band
Council and the Board of the Group of the Band-owned companies.
[10]
On
November 19, 2012, the day that the show cause motion was presented, counsel
for the Respondents reiterated the Respondents’ intention to comply with the
decision of the Court. To this effect, at my request, Counsel for the
Respondents wrote and signed a letter which summarized the undertakings of her
clients:
“Further to the Court’s request, we confirm that the
Respondents have taken steps to ensure the following and further have made a
commitment, independent of any further Order of the Court, to ensure that the
following is in place no later than one week from today’s date (i.e. Monday,
November 26th):
•
Mr.
Orr will be on the payroll of Fort McKay First Nation and will
receive his regular pay for the month of
November;
•
Mr.
Orr’s Fort McKay e-mail address will be reactivated;
•
Mr.
Orr will be provided with an iPad for use in relation to
Council
business;
•
Mr.
Orr will be provided with an iPhone for use in relation to
Council business (the Blackberry device previously
issued to Mr. Orr was never returned);
•
Mr.
Orr will be provided with the keys to an office at Fort McKay
First Nation; and
•
Mr.
Orr will be provided with a key fob for access to the Council
wing.
In accordance with my prior correspondence with Ms.
Kennedy, I confirm my understanding that the Council anticipates that Mr. Orr
will raise any issues respecting retroactive pay for discussion at a Council
meeting.”
[11]
In
the correspondence between counsel, and between the Applicant and the Band
representative, as well as in the affidavit filed by the Respondents, it was
indicated that the Applicant should deal directly with the Band Council and the
representatives of the band-owned companies. It was suggested that counsel for
the Applicant should not intervene in solving the issues as a result of the
Federal Court of Appeal Judgment.
II. The
Show Cause Rule and the Jurisprudence
[12]
Rule
467 of the Federal Courts Rules, SOR/98-106 reads
as follows:
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Federal
Courts Rules,
SOR/98-106
Right
to a hearing
467. (1) Subject
to rule 468, before a person may be found in contempt of Court, the person
alleged to be in contempt shall be served with an order, made on the motion
of a person who has an interest in the proceeding or at the Court's own
initiative, requiring the person alleged to be in contempt
(a) to
appear before a judge at a time and place stipulated in the order;
(b) to
be prepared to hear proof of the act with which the person is charged, which
shall be described in the order with sufficient particularity to enable the
person to know the nature of the case against the person; and
(c) to
be prepared to present any defence that the person may have.
Ex
parte
motion
(2) A
motion for an order under subsection (1) may be made ex parte.
Burden
of proof
(3) An
order may be made under subsection (1) if the Court is satisfied that there
is a prima
facie
case that contempt has been committed.
Service
of contempt order
(4) An
order under subsection (1) shall be personally served, together with any
supporting documents, unless otherwise ordered by the Court.
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Règles
des Cours fédérales, DORS/98-106
Droit
à une audience
467. (1) Sous réserve de
la règle 468, avant qu’une personne puisse être reconnue coupable d’outrage
au tribunal, une ordonnance, rendue sur requête d’une personne ayant un
intérêt dans l’instance ou sur l’initiative de la Cour, doit lui être
signifiée. Cette ordonnance lui enjoint :
a) de comparaître devant
un juge aux date, heure et lieu précisés;
b) d’être prête à entendre
la preuve de l’acte qui lui est reproché, dont une description suffisamment
détaillée est donnée pour lui permettre de connaître la nature des
accusations portées contre elle;
c) d’être prête à
présenter une défense.
Requête
ex
parte
(2) Une
requête peut être présentée ex
parte
pour obtenir l’ordonnance visée au paragraphe (1).
Fardeau
de preuve
(3) La
Cour peut rendre l’ordonnance visée au paragraphe (1) si elle est d’avis
qu’il existe une preuve prima
facie
de l’outrage reproché.
Signification
de l’ordonnance
(4) Sauf
ordonnance contraire de la Cour, l’ordonnance visée au paragraphe (1) et les
documents à l’appui sont signifiés à personne.
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[13]
A
contempt procedure is very serious. It requires strict compliance with the
different steps that the Rules stipulate. The outcome of this type of procedure
can have great consequences on the person alleged to be in contempt. Indeed, if
found in contempt, the person may be imprisoned for a period of less than five
years or until compliance with the Order. The person may also have to pay a
fine, be obliged to do or refrain from doing any act and pay costs (see Rule
472 of the Federal Courts Rules).
[14]
From
the beginning of the proceedings to the end, the moving party must meet specific
procedural requirements. At the “show cause” stage, the evidence presented must
establish a prima facie case that contempt has been committed. Then, it
is for the Court to be satisfied that a prima facie case of contempt has
been made. In order to establish a prima facie case and satisfy the
Court that such a norm has been met, the party “[m]ust show a prima facie
case of wilful and contumacious conduct on the part of the contemnor.” (See Chaudhry
v Canada, 2008 FCA 173 at para 6, 2008 CarswellNat 1339 (FCA), referring to
Imperial Chemical Industries PLC v Apotex Inc, (1989), 24 CPR (3d) 176,
26 FTR 47).
[15]
In
Mennes v Canada (Correctional Services), 2001 FCT 571 at para 5, 2001
CarswellNat 1230, Justice Pelletier, as he then was, held that a show cause
motion “[…] requires proof of a court order or other court process, proof of the
respondent’s knowledge of the order or process and proof of a deliberate
flouting of the court order or process […]”. In a very elaborate and well-thought
decision, Justice Martineau referred to these cases in order to demonstrate
that even at the show cause stage, the intent must be shown on the part of the
contemnor (see Canadian Private Copying Collective v Fuzion Technology Corp,
2009 FC 800 at paras 54, 60-62, 77 CPR (4th) 1).
[16]
Having
identified what the Federal Courts Rules require as evidence at the show
cause stage and how it has been applied in case law, we will now examine the
facts of this case in light of the applicable law.
III. Analysis
[17]
The
Applicant has shown satisfactorily to the Court that a Court Order exists and
that the Respondents are aware of it. However, the evidence relied upon by the
Applicant does not establish a prima facie case of contempt.
[18]
The
Applicant decided to sign an affidavit in support of a show cause motion only
seven days after the Federal Court of Appeal Judgment dismissed the appeal. At
that time, counsel for both parties were exchanging letters in order to take
steps towards compliance with the Federal Court Judgment. The motion was served
and filed in the days following and this Court heard counsel twenty days after
the decision of the Federal Court of Appeal was rendered.
[19]
Such
a short time period does not give the parties the opportunity to discuss and
agree upon how the Court’s Order shall be complied with. Indeed, there are
different approaches to resolve this situation as it is only a matter of
establishing the foundation for the monetary claims and the documentation required.
Such a short time is not indicative at all of evidence supporting a prima
facie case of contempt.
[20]
More
importantly, the evidence presented by the Respondents indicates that they want
to comply with the Judgment. Indeed, they filed an affidavit signed by a
representative, which included an e-mail dated November 15, 2012 by the
Respondents, sent in response to the Applicant’s e-mail dated November 14, 2012
in which he requested “all information pertaining to Band and Corporate
Business of the Band including all minutes, correspondence, financial reports,
etc. from July 2011 to date”. The response was straightforward. The Band
Council indicated that it “will make best efforts to prepare this information
as soon as possible”, that “[r]ebuilding the last 18 months of Council business
will be a substantial undertaking”, that it will be “taking steps to get [the
Applicant] back on the payroll and to reactivate e-mail and other accounts”.
The Band Council added that the Applicant “will have to address the issue of
back pay directly with the Council and the Board of the Group of Companies.”
[21]
In
addition, as stated earlier, counsel for the Respondents made it clear that her
clients would comply with a large part of the Judgment of the Federal Court and
that discussion on this matter should take place between the Applicant and
Council concerning retroactive pay.
[22]
This
is certainly not indicative of “a wilful and contumacious conduct” against a
Judgment or Order of this Court or “deliberate flouting of such Judgment or Order.”
On the contrary, this is straightforward evidence of the Respondents’ desire to
comply with the Judgment. I cannot find any clear indication that the
Respondents do not want to comply. Therefore, the prima facie case
required to show that contempt has been committed is not made out.
[23]
Having
heard both counsel and read the Motion Records, it is my understanding that
there is some uneasiness on the part of the Respondents with regard to communicating
with counsel for the Applicant the valuable, confidential information of the
Band Council and its corporate entities. Without deciding upon these obvious
different points of view, I can say that this should not be a reason not to
comply with a Judgment of the Federal Court.
[24]
The
Applicant has a right to be represented by counsel, he was represented by
counsel during these proceedings but he also must begin to act independently as
his position as councillor so requires. On the other hand, the Respondents must
comply with the Judgment. Their undertakings clearly show this intention and
they must not use the argument of counsel’s intervention to circumvent this
obligation. Surely, there must be a modus vivendi between the parties that will show clear compliance
with the Judgment but there should also be respect of the non-necessity of
having to deal through counsel for the Applicant on all matters. The Applicant
being councillor of the Band Council and Director of the Related Band
Corporations must resume his important responsibilities. As he did so in the
past, the Applicant does not need a counsel to act as Councillor and Director.
[25]
In
such a situation, the motion to find at the show cause stage that there is a prima
facie case that contempt has been committed is dismissed. Because of the
particular situation, whereby the Applicant is trying to recuperate his rights
as a result of a Judgment rendered in his favour, no costs will be allowed
against him.
ORDER
THIS
COURT ORDERS AND ADJUDGES THAT:
1. The
motion pursuant to Rule 477 of the Federal Courts Rules is dismissed
with costs against the Applicant, each party
assuming their respective costs.
“Simon Noël”
____________________________
Judge
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