Date: 20090602
Dockets: T-1979-08
T-155-09
Citation: 2009
FC 568
Docket:
T-1979-08
BETWEEN:
ALEX JAMES ROBINSON
Applicant
and
BETTY LOU HALCROW,
EVA MUSWAGON,
ROSEANN MUSWAGON,
MARILYN MILES,
GERALDINE MCLEOD,
PIMICIKAMAK CREE NATION WOMEN'S COUNCIL
Respondents
Docket: T-155-09
AND
BETWEEN:
ALEX JAMES ROBINSON
Applicant
and
CHRISTIE SCOTT, CHIEF ELECTORAL
OFFICER OF PIMICIKAMAK CREE NATION,
PIMICIKAMAK CREE NATION EXECUTIVE
COUNCIL,
CROSS LAKE BAND OF INDIANS BAND COUNCIL,
AND RONNIE BEARDY, DONALD MCKAY,
EUGENNIE MERCREDI, SHIRLEY ROBINSON,
ALLAN ROSS, GRACE ROSS, GARRISON SETTEE
AND
ZACHEUS TROUT, ELECTED MEMBERS OF COUNCIL
Respondents
HARRINGTON
J.
REASONS FOR ORDERS
[1]
To
understand the motions by the Pimicikamak Cree Nation (“PCN”) Executive Council
and Cross Lake Band of Indians Band Council to intervene in T-1979-08, and for
leave to file a late appearance in T-155-09, it is necessary to set out the
background in some detail.
[2]
Last
August, Alex James Robinson, in accordance with Band Custom, was elected Chief
of the Executive Council of the PCN. Although the record is not yet fully
developed, as I understand it, the PCN, situated in Northern Manitoba, is governed by a traditional
form, comprising four councils, the Council of Elders, Women’s Council, Youth
Council and the Executive Council. The First Written Law and Election
Law have both been reduced to writing.
[3]
According
to Pimicikamak Law, the Executive Council fulfils the role of “Chief and Council”
for the purposes of the Indian Act, and dealings with Indian and
Northern Affairs Canada (INAC). The Band is known to INAC as the Cross Lake
Band of Indians. As Chief of the Executive Council of the PCN, Mr. Robinson is
also Chief of the Cross Lake Band of Indians Band Council.
[4]
Shortly
after his election, Chief Robinson was charged with the criminal offence of
obstruction of justice. Under section 109 of the Election Law, the Chief
or Councillor shall vacate office by, among other things, “…permanent incapacity
as determined by the Women’s Council…”. The Women’s Council determined Chief
Robinson to be permanently incapacitated because of the charge against him, and
declared the office of Chief vacant.
[5]
Chief
Robinson filed an application for judicial review of that decision in docket
T-1979-08. The respondents are the PCN Women’s Council and its five councillors,
Betty Lou Halcrow, Eva Muswagon, Roseann Muswagon, Marilyn Miles and Geraldine
McLeod.
[6]
The
respondents had ten days to file a notice of appearance. They failed to do so
and apparently have no intention of ever appearing. Furthermore, the Women’s
Council, as the federal board or tribunal whose decision is under review,
failed to produce the record on which it based its decision, although duly called
upon to do so under Rule 317 of the Federal Courts Rules.
[7]
Chief
Robinson sought and obtained an expedited hearing of his judicial review, which
was set down for hearing in Winnipeg on May 25, 2009.
[8]
Turning
now to docket T-155-09, following the decision of the Women’s Council, Christie
Scott, Chief Electoral Officer, declared Garrison Settee as Acting Chief. He
had run second to Chief Robinson in the August 2008 election. Chief Robinson
filed an application for judicial review of that decision. The relief sought
included a declaration that the decision was invalid, a declaration that
Garrison Settee was not the Acting Chief, and an injunction prohibiting Ms.
Scott from conducting a by-election until a final decision was issued in
T-1979-08. In addition to Ms. Scott, the other named respondents are the PCN
Executive Council, the Cross Lake Band of Indians Band Council, and their
councillors (apart, of course, from Mr. Robinson himself).
[9]
Again, no
appearance was filed and Ms. Scott did not produce the tribunal record on which
her decision was based, notwithstanding that she was duly called upon to do so.
[10]
Ms. Scott
pressed on and scheduled a by-election for Chief of the Executive Council for
April 2, 2009. It bears mentioning that, by this time, the criminal
charges against Chief Robinson were permanently stayed.
[11]
Chief
Robinson sought an interlocutory injunction to forestall that election. Despite
the fact that the respondents had not appeared, I ordered that they be personally
served. This caused Mr. Tapper to file a Notice of Appearance on behalf of the
“Respondent”. I gave Mr. Tapper leave to appear for the purposes of contesting
the injunction, adding that if there was an intention to contest the merits of
the applications for judicial review, the respondents would have to move to be
relieved of their default to appear within time.
[12]
I granted
the injunction. Among other things, in my order of March 13, 2009 I said: “It
is neither frivolous nor vexatious to submit that a criminal charge does not
constitute permanent incapacity within the meaning of the Pimicikamak Cree
Nation Law.”
[13]
Since then
Mr. Tapper has clarified his mandate. He acts only for the PCN Executive
Council and the Cross Lake Band of Indians Band Council. Pursuant to Rule 109
of the Federal Courts Rules, they seek leave to intervene in T-1979-08.
In T-155-09 they move for an extension of time pursuant to Rule 8, in order to
appear to contest the merits of the application.
[14]
The two
motions were heard by videoconference on Friday, May 22, 2009 and were taken
under advisement. Thus, in any event, the hearing of the judicial review in
T-1979-08 was adjourned sine die.
THE ISSUES
[15]
The first
issue is whether Mr. Tapper truly represents the two Councils for which he
purports to act. Mr. Trachtenberg, on behalf of Chief Robinson, submits that
Mr. Tapper’s mandate was given to him by a sub-group, and there is no evidence
that appropriate meetings were called and proper resolutions passed.
[16]
The second
issue is whether leave to intervene should be granted in T-1979-08. Was the
application made in a timely manner and will the intervention assist the Court
in deciding the merits of the dispute?
[17]
In
T-155-09 the issue is whether the Councils should be relieved of their default
to file a timely appearance. Did they have an intention to contest the
application for judicial review and is there some merit to their position?
[18]
Finally,
procedural issues arise such as production of the tribunals’ records, and
whether the two applications should be joined, or at least heard on the merits,
one immediately after the other, by the same judge.
SOLICITOR/CLIENT MANDATE
[19]
Chief Robinson’s
point is that the Indian Act requires considerable formality, and
without evidence of duly called meetings and duly executed resolutions, Mr.
Tapper has no mandate to appear on behalf of the PCN Executive Council and the Cross Lake
Band of Indians Band Council. If he is correct, the result is that both
applications would proceed on an ex parte basis, unless a further delay were
granted to allow the Councils to cross every “T” and dot every “I”.
[20]
The most
relevant evidence is the affidavit of Ryan Castel, a member of the PCN and
Assistant Executive Director of the Cross Lake Band. Following several meetings
of the PCN’s Executive Council, he was instructed to contact Mr. Tapper for the
purposes of opposing the proceedings taken by Chief Robinson. According to his
affidavit, there were several meetings involving six of the nine members of the
Council. Excluded were Chief Robinson and his sister Shirley (who has filed an
affidavit on his behalf). No mention is made of the ninth Council member.
According to his evidence, Band Council Resolutions are not required in order to
put into action the decisions made as those decisions are made by consensus.
[21]
Mr. Castel
was not cross-examined. I find the situation analogous to the rule established by
the House of Lords in Browne v. Dunn (1893), 6 R. 67. The barrister who
intends to put in doubt a person’s testimony must give that person an
opportunity to offer an explanation. Mr. Castel was not cross-examined with
respect to notices, if any, given of the meetings, and the practice with
respect to resolutions. Even if Chief Robinson and his sister had been called
to the meetings, they would have found themselves in a conflict and would have
had to excuse themselves when it came to appointing counsel to contest his
applications for judicial review. At this stage I accept that Mr. Tapper has
been properly retained.
LEAVE TO INTERVENE IN T-1979-08
[22]
Chief Robinson
finds himself somewhat in a Catch-22 situation. He named the Women’s Council as
respondent, but objected to certain affidavits filed by their members. His
position is that the role of the decision-maker, except on issues of
jurisdiction, should simply be limited to filing the tribunal record. Who, then,
is to take up their cause?
[23]
It is
obvious that there is a division among Band Members as to the role of Chief Robinson.
The Women’s Council opposes him, the Council of Elders supports him. The broad
position taken by those opposed to Chief Robinson is that a criminal charge
brings dishonour upon the Band. The Women’s Council also claims there were
other reasons to declare him permanently incapacitated, but it is difficult to
comment thereon as the full record is not before the Court. For instance, the
nature of his obstruction of justice charge has never been set out. The Women’s
Council’s resolution refers to an RCMP report which they apparently have, but
have not yet produced.
[24]
Since
Chief Robinson takes the position that the Women’s Council should not be the
one to defend its position, it seems appropriate that the motion for
intervention be granted. The authorities are set out by the Federal Court of
Appeal in Boutique Jacob Inc. v. Paintainer Ltd., 2006 FCA 426, 357 N.R.
384. In that case, a number of ocean carriers sought to intervene in the Court
of Appeal on various points of law relating to combined transport bills of
lading and provisions of the Railway Act. The ocean carrier who was a
defendant at trial was successful and, as the appeal did not pertain to it, did
not intend to participate. In granting leave, Mr. Justice Nadon pointed out
that not all the factors set out in Canadian Union of Public Employees
(Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J.
No. 220 (QL) need be met. However in this case, they are.
[25]
The
proposed interveners are directly affected by the outcome. There is a
justiciable issue and a veritable public interest. There is no other reasonable
or efficient means to submit the question to the Court, particularly as the
position of the proposed interveners would not be adequately defended by the
respondents, who do not intend to appear. In my view, the interests of justice
are better served by the intervention, as Chief Robinson’s case should not be
decided on the merits in a vacuum. Others within the Band do not share his view
of the meaning of permanent incapacity. Natural justice dictates that they have
a right to be heard.
[26]
I will
deal with the timeliness of the intervention within my reasoning with respect
to the late appearance in T-155-09.
EXTENSION OF TIME IN T-155-09
[27]
The two
leading decisions of the Court of Appeal are Grewal v. Canada (Minister of Employment and
Immigration),
[1985] 2 F.C. 263, 63 N.R. 106 and Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399, 167 F.T.R. 158. As
per Grewal, the fundamental consideration is that justice be done
between the parties. Consideration should be given to the reasons for the delay
and whether there is an arguable case on the merits. Hennelly inquires
whether there was a continuing intention to pursue the application, whether it
has some merit, whether prejudice arises by remedying the default, and whether
there is a reasonable explanation for the delay.
[28]
As a
result of the interlocutory injunction, there is no prejudice to Chief
Robinson. Again we need go no further than Mr. Castel’s unchallenged affidavit
for the reasons for the delay. The Council for many years had used another
attorney. He was approached but said he was unable to act by direction of his
firm due to funding issues. A retainer cheque was refused. Furthermore, in an
effort to achieve consensus, there was much discussion as well as disruption,
division and controversy within the Band, which required many meetings of the
various Councils to determine which action to take.
[29]
I am
satisfied on the facts of this case that the Councils should be relieved of
their default to appear. There is clearly a heartfelt difference of opinion as
to the meaning of “permanent incapacity”. The meaning of words cannot be
considered in a vacuum; rather, they should be considered within the fabric of
the Band itself. Since the differences which exist have not been resolved
within the Band, they should be publicly aired in a court of law.
PROCEDURAL ISSUES
[30]
The
Councils are given leave to file a Notice of Intervention in T-1979-08 and a
Notice of Appearance in T-155-09, both by June 16, 2009.
[31]
Hopefully,
the Councils have some influence upon the two decision-makers, the Women’s
Council and Ms. Christie Scott, so that they will provide their respective
tribunal records as requested by Chief Robinson in his two applications, and as
required under Rule 317. If they do not produce certified copies of the requested
material by June 28, 2009 or seek directions pursuant to Rule 318, Chief
Robinson has a choice. He may either seek an order or press on, on a very
limited record. He himself produced the Women’s Council’s Resolution in
T-1979-08. The subsequent affidavit of Gwendolen
Solmundson, Mr. Tapper’s assistant, is hearsay and obviously incomplete.
[32]
Chief
Robinson shall have until July 10, 2009 to serve and file his supporting
affidavits and documentary exhibits. To the extent he wishes to rely upon
affidavits already in the record, it is not necessary to reproduce them as long
as it is clearly stated that he intends that they form part of the record on
the application for judicial review on its merits.
[33]
The affidavits
of the PCN Executive Council and Cross Lake Band of Indians Band Council shall
be served and filed by July 24, 2009. The above paragraph also applies thereto.
Thereafter, cross-examinations on affidavits and the production of the parties’
records shall follow the delays set out in Rules 308 and following.
[34]
The two
applications are clearly related. If the decision of the Women’s Council is set
aside, Chief Electoral Officer Scott’s decision becomes moot. On the other
hand, if that decision is not set aside, it does not necessarily follow that
her decision to call a by-election was inevitably the correct one. It follows
that T-155-09 should not be stayed pending the outcome of T-1979-08. Pursuant
to Rule 105, the two applications shall be heard one immediately after the
other. Nothing herein prevents the parties from requesting that these applications
be specially managed, and that the case manager alter the schedule set out
herein and amend the order with respect to consolidation of proceedings.
“Sean Harrington”
Ottawa, Ontario
June 2,
2009
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