Date: 20090601
Docket: T-1267-07
Citation: 2009 FC 562
Ottawa, Ontario, June 1, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ALBERT
ANGUS and WALTER JANVIER
Applicants
and
CHIPEWYAN PRAIRIE FIRST
NATION TRIBAL COUNCIL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
THE MOTION
[1]
This
is a motion by the Applicants, Albert Angus and Walter Janvier, seeking the
following relief:
a.
An
Order pursuant to Rule 467(1) of the Federal Courts Rules, requiring the
Respondent, alleged to be in contempt:
i. to appear
before the Court at a time and place stipulated in the Order;
ii. to be
prepared to hear proof of the act of contempt with which the Respondent is
charged; and
iii. to be
prepared to present any defence that the Respondent might have;
b.
An
Order of Certiorari quashing:
i. the motion
ostensibly passed at a meeting called by the Respondent, including only select
members of the Chipewyan Prairie First Nation, held September 3, 2008,
(Meeting) removing Albert Angus as Electoral Officer;
ii. the motion
ostensibly passed at the Meeting, appointing Shirley Janvier as Electoral
Officer;
iii. the decision
made at the Meeting appointing Jim Carbury, Don Reimer, and Bernice Cree as
members of the Appeal Committee, and appointing Randy Chernipesky as an alternate
Appeal Committee member;
c.
An
Order for Mandamus directing the Respondent to properly hold a Band Meeting
pursuant to my Judgment in this matter, dated August 1, 2008, to appoint an
Appeal Committee;
d.
An
Order pursuant to Rule 384 of the Federal Courts Rules, to have the
proceeding managed as a specially managed proceeding;
e.
An
Order pursuant to Rule 302 of the Federal Courts Rules, to allow more
than one Order; and
f.
An
Order for the costs of this application on a solicitor and his own client
basis, or such other elevated measure as this Court deems just having regard
for the conduct of the Respondent, payable forthwith as penalty.
BACKGROUND
[2]
An
election of one third of the Chipewyan Prairie First Nation Chief and Council
was held on February 21 and 28, 2007 (Election). At the time of the Election,
no other regulations or by-laws were passed pursuant to the Election Code.
[3]
The
Election Code allows an appeal of an election result if made by any five
eligible voters and if made in writing and delivered to the Electoral Officer
within 14 days of the election.
[4]
Subsequent
to the Election, two notices of appeal were filed contesting the Election
results (Notices of Appeal).
[5]
Once
an appeal is filed with the Electoral Officer, the Election Code directs the Electoral
Officer to call a Band meeting of eligible voters to select an Appeal Committee
of three from a list of names of people who are willing to serve on an Appeal Committee.
[6]
The
Electoral Officer prepared an election appeal budget for the Respondent to move
forward with the Notices of Appeal in accordance with the Election Code;
however, the Respondent refused the necessary funding to allow the appeal to be
heard.
[7]
A
Band Council Resolution was passed by the Respondent dated June 11, 2007 which
purported to dismiss the Electoral Officer for the Election and uphold the
result of the Election (BCR).
[8]
On
July 10, 2007 a Notice of Application was filed on behalf of the Applicants in
this Court.
[9]
A
hearing was held in Vancouver, BC in June 19, 2008 (Hearing) where the
Respondents conceded that the appeals should be heard, leaving the only
remaining issue, other than costs, to be whether Albert Angus, as Electoral
Officer, should play a role in the appeals.
[10]
The
Reasons for Judgment were issued by me on August 1, 2008 (Judgment). The Court
ordered that Albert Angus had not been effectively removed as Electoral Officer.
[11]
The
Judgment states that within 14 days of August 1, 2008, the Respondent take all
necessary steps to hold a Band Meeting of eligible voters for the purposes of
selecting an Appeal Committee pursuant to the Election Code.
[12]
On
August 5, 2008, Mr. Dhir, counsel for the Applicants, faxed a letter to
Respondent counsel, Mr. Jeffrey Rath, inquiring as to the proposed date for the
Band Meeting.
[13]
On
August 8, 2008, Mr. Dhir faxed a letter to Mr. Rath, noting no reply had been
received to the August 5, 2008 correspondence and confirming that a Band
Meeting needed to be held no later than August 15, 2008 for the purposes of
selecting an Appeal Committee, pursuant to the Judgment.
[14]
On
August 13, 2008, Mr. Dhir received a faxed letter from Ms. Nathalie Whyte,
student-at-law with Mr. Rath’s office, advising that the Respondent was taking
all necessary steps to hold a Band Meeting in accordance with the Judgment.
[15]
On
August 13, 2008, Mr. Dhir had a telephone conversation with Ms. Whyte wherein
Ms. Whyte advised that a Band Meeting to select the Appeal Committee members
was to be held in the first week of September, 2008, and Mr. Dhir advised Ms.
Whyte that if the Respondent did not proceed according to the Judgment, he
would be seeking to hold the Respondent in contempt of Court.
[16]
On
August 15, 2008, Mr. Dhir faxed a letter to Mr. Rath and Ms. Whyte, advising
that a Band Meeting to select the Appeal Committee had to be held on August 15,
2008 according to the Judgment but that he would grant an extension of time to
August 18, 2008, or else an application would be brought to hold the Respondent
in contempt of Court.
[17]
On
August 15, 2008, Ms. Whyte faxed a letter to Mr. Dhir, advising that a Band
Meeting would be held on August 18 and 19, 2008 for information purposes and a
second Band Meeting was scheduled for September 3, 2008 wherein voting and
selection of an Appeal Committee would be made.
[18]
On
August 18, 2008, Mr. Dhir faxed a letter to the Federal Court to my attention,
advising the Court that the Respondent had failed to take all necessary steps
to hold a Band Meeting to select an Appeal Committee and requesting an
appearance before the Court to address the delay.
[19]
On
September 4, 2008, Mr. Rath faxed a letter to the Federal Court to my attention
with a carbon copy faxed to Mr. Dhir, advising as follows:
a. On August 14, 2008 a
Notice of Band General Meeting was posted at numerous conspicuous places on the
Chipewyan Prairie Dene First Nation;
b. A Band Meeting was
convened at 1:20 p.m. on September 3, 2008 in order to appoint the members of
the Appeal Committee;
c. At the Band meeting a
motion was passed with 35 votes in favor and with no members voting against out
of 52 members in attendance, seeking the removal of Albert Angus as Electoral
Officer on the basis of a lack of confidence of the community membership at
large in his ability to carry out his duties as Electoral Officer;
d. At the Band meeting a
further motion was passed with 35 votes in favor and with no members voting
against out of 52 members in attendance, seeking to appoint Shirley Janvier as
Electoral Officer for the Election;
e. Ms. Janvier put forward
a list of names of individuals who agreed to serve as members of the Appeal
Committee;
f.
The
members in attendance at the Band Meeting participated in a vote to elect an
Appeal Committee;
g. An Appeal Committee
consisting of Mr. Jim Carbury (with 49 votes), Mr. Don Reimer (with 39 votes),
and Ms. Bernice Cree (with 36 votes) was selected.
[20]
On
September 5, 2008, Mr. Dhir faxed a letter to the Federal Court to my attention
with a carbon copy faxed to Mr. Rath, advising that the Band Meeting held on
September 3, 2008 (Meeting) was improperly held as it contravened the Judgment
for several reasons as set out in the correspondence.
[21]
On
September 11, 2008, a teleconference was held between me and counsel for each
of the Applicants and the Respondent to discuss the issues moving forward.
[22]
On
October 7, 2008, the Applicants filed their motion record (Motion Record) for
this motion.
[23]
The
Motion Record contained affidavits sworn by nine Affiants. Save for Mr. Angus
who does not live on the Reserve, each of the remaining eight Affiants swore
the following evidence:
a.
Notices
of Band Meetings held on the Reserve are normally posted in three separate
locations: the health centre, the Band office, and the general store;
b.
Even
though they were regularly checking, they never saw any notice advising of a
Band Meeting on September 3, 2008, posted at the locations;
c.
They
would have attended the Meeting had they had notice of it.
[24]
On
October 17, 2008, the Respondent filed the Respondent’s Motion Record in this
matter, which included an affidavit sworn by Jules Nokohoo.
[25]
On
October 24, 2008, pursuant to requests made by counsel for both parties, this
Court granted an extension of time (to November 24) to allow cross-examinations
on affidavits to be conducted.
[26]
On
November 19, 2008, this Court issued an Order in accordance with Rule 369(4)
directing that the motion be heard orally at Vancouver, BC on December 1, 2008 at 9:30 a.m..
[27]
On
November 24, 2008, cross-examinations on affidavits were conducted of Mr. Angus
and Mr. Nokohoo.
[28]
On
November 24, 2008, counsel for the Respondent, sent a letter to this Court
suggesting that the hearing set for December 1, 2008 be a case management
conference as opposed to a hearing on the merits.
[29]
On
November 25, 2008, this Court issued a Direction, communicated through the
Federal Court Clerks, that the December 1, 2008 hearing would be converted into
a telephone conference to discuss any anticipated problems and to identify an
appropriate time and location for the hearing.
[30]
On
November 25, 2008, counsel for the Respondent sent a letter to counsel for the
Applicants attaching an additional affidavit sworn by Lester Cardinal
ostensibly “clarifying the affidavit he swore on September 23, 2008.”
[31]
On
December 1, 2008, a teleconference was held with me, where counsel for both
parties were present.
[32]
Further
to the teleconference on December 1, 2008, this Court issued a Direction as
follows:
a.
No
later than ten business days from the date of the Direction, the Respondent
will produce Mr. Cardinal for cross-examination by the Applicants’ counsel in
either Edmonton or Fort McMurray, failing which the said Affidavit will not be
part of the record for the hearing and will be struck;
b.
No
later than five business days following the cross-examination of Mr. Cardinal,
the Applicants will serve and file their supplementary motion record containing
the portions of any transcripts upon which they intend to rely and revised
written representations;
c.
No
later than five business days from the date of service of the Applicants’
supplementary motion record, the Respondent shall serve and file their supplementary
motion record;
d.
No
later than four business days from the date of service of the Respondent’s
supplementary motion record, the Applicants shall serve and file written
representations in reply, if any; and
e.
The
hearing of this matter will take place in Calgary on January 15 and 16, 2009, unless the Court,
on the advice of counsel, should otherwise order a different date.
[33]
The
motion was eventually heard in Edmonton on April 15, 2009, due to family circumstances that
prevented Mr. Rath from appearing at the originally scheduled time.
ANALYSIS
Rule 467
[34]
The jurisprudence
is clear that to satisfy the Court there is a prima facie case of
contempt, the alleging party must show willful and continuous conduct on the
part of the contemnor. See Chaudry v. Canada, 2008 CarswellNat 1339,
2008 FCA 173.
[35]
A
show cause motion requires proof of a Court order, proof of the respondent’s
knowledge of the order, and proof of deliberate flouting of the order. See Mennes
v. Canada (Correctional Services), 2001 CarswellNat 1230,
2001 FCT 571.
[36]
It
is also clear that the Court retains a discretion not to issue a contempt
citation, even where a prima facie case of contempt is evident (see Volkswagen
Can. Inc. v. Access Int. Automotive Ltd. (2004), 2004 CarswellNat
944, 2004 FC 508) and that a show cause order may be refused, for example,
where the alleged failure to comply was beyond the power and control of the
alleged contemnor. See Kun Shoulder Rest Inc. v. Josheph Kun Violin &
Bow Maker Inc. (1997), 74 C.P.R. (3d) 487 (Fed. T.D.).
[37]
The
Applicants say that the Respondent has defied and deliberately flouted my
Judgment of August 1, 2008 and has done precisely what that Judgment said the
Respondent could not do.
[38]
The
Respondent says that all of their actions subsequent to my Judgment of August
1, 2008 have been nothing more than an attempt to comply with the terms of that
Judgment as regards the holding of a band meeting and the selection of an Appeal
Committee to further the appeals process that both sides agreed should go forward.
[39]
Paragraph
2 of my Judgment reads as follows:
The
Appeals will proceed in the following manner as agreed by the parties and
mandated by the Court:
Within
14 days of the date of this Order, the Respondent, Chipewyan Prairie First
Nation Tribal Council shall take all necessary steps to hold a Band Meeting of
eligible voters for the purposes of selecting an Appeal Committee (the “Band
Meeting”), pursuant to the Chipewyan Prairie First Nation Election Code
enforced at the time of the election of February 28, 2007 (the “Election”), and
as attached at Exhibit “B” to the Affidavit of Albert Angus is this matter.
Within 14 days of the Band Meeting the newly elected Appeal Committee shall
meet for the first time and thereafter establish the process which it will
follow in hearing the appeal of the election. The Appeal Committee shall be
comprised of 3 members as selected at the above referred Band Meeting by
eligible votes pursuant to the order of this Honourable Court.
[40]
In
this motion, the Court is dealing with an allegation of contempt under Rule
466(b) to the effect that the Respondent has disobeyed an order of the Court.
Rule 466 is subject to Rule 467 which requires the Applicants to satisfy the
Court that there is a prima facie case of contempt before an order to
appear is issued.
[41]
As
the Applicants agreed at the hearing of this motion in Edmonton on April 15, 2009, it
is not the few weeks delay in holding the band meeting to select an Appeal Committee
that is the principal concern. Strictly speaking, the Respondent did not hold a
band meeting of eligible voters within the 14-day period as stipulated in my
Judgment and as agreed to by the Respondent. However, I can see that there
might well have been practical difficulties that prevented strict compliance
and I am not prepared to issue a show cause order on that basis alone. A few
weeks delay in holding the meeting did not really prejudice the Applicants and
does not suggest to me that the Respondent did not do their best to comply with
my Judgment. The real issue is whether the September 3, 2008 meeting was a
genuine meeting of the band membership that addressed the issues in my Judgment,
or whether it was a sham meeting orchestrated by the Respondent to flout my Judgment
and proceed as they wished.
[42]
The
fact that Mr. Angus was relieved of his duties as Electoral officer at the
September 3, 2008 meeting is not a breach of my Judgment and is not evidence of
bad faith on the part of the Respondent. The Judgment specifically provides for
the Respondent to raise any concerns about Mr. Angus before the band membership
and to let the members decide whether Mr. Angus should be replaced as Electoral
Officer for the appeals process. All that was required was procedural fairness
and due process.
[43]
On
the facts of this case, it is obvious from my August 1, 2008 Judgment that,
although Mr. Angus had not been removed by the band council, he certainly could
be removed by the band members. In addition, Mr. Angus has been made well aware,
as a result of these proceedings, what the complaints against him were, and he
had been made fully aware that he might have to answer those complaints before
a duly convened meeting of band members. He was also aware that he could be
removed.
[44]
Mr.
Angus made a decision not to attend the meeting of September 3, 2008 at which
he knew he might have to answer to complaints before the band membership, and at
which he might be removed as Electoral Officer for the appeal process.
[45]
Mr.
Angus was given notice of the September 3, 2008 band meeting and its purpose
through his lawyer, Mr. Dhir, who has represented him in these proceedings; yet
he chose not to attend.
[46]
When
he was cross-examined on his affidavit, Mr. Angus says that he did not attend
the meeting because he was not invited and was not informed by the CPFN
administration that the meeting was going to take place. In fact, he seems to
have been guided by Mr. Walter Janvier on this issue:
I
was constantly in contact with Walter Janvier in pretty much daily and more
with respect to this purported September 3rd meeting which was to
take place in satisfaction of the order. However, I was advised by Walter
Janvier who had – there were no notices posted that there was not likely to be
a meeting on that date.
[47]
Mr.
Angus’ solicitor, Mr. Dhir, was informed by a letter of August 15, 2008 from
the Respondent’s lawyers that a band meeting was scheduled “for September 3,
2008 where, at that time, voting and selection of an Appeal Committee will be
made.”
[48]
Admittedly,
this is not a direct invitation to Mr. Angus form the CPFN administration but,
bearing in mind the way this dispute has proceeded and the fact that Mr. Angus
was represented by Mr. Dhir, I do not think Mr. Angus can say he did not know
that a meeting had been called to deal with the selection of an Appeal Committee.
And he must be taken to have known that, in accordance with my Judgment and
reasons of August 1, 2008, he was still the Electoral Officer who was to handle
the process unless and until he was legitimately replaced. My Judgment directs
what was to happen and there was no reason for the Respondent’s lawyer to spell
this out in his letter of August 15, 2008.
[49]
Whether
or not the September 3, 2008 meeting had been appropriately called was not
known at the time. Any doubts about Mr. Angus’ role and the expectations of the
Respondent and the band could easily have been clarified by, or through, Mr.
Dhir. Everyone knew what needed to be done because of my Judgment.
[50]
Mr.
Angus’ reliance upon advice from Mr. Janvier was his choice, but it was at this
point that the interests of Mr. Janvier and the duties of Mr. Angus diverge.
Mr. Angus’ obligations as Electoral Officer were owed to the CPFN band members,
and not specifically to Mr. Janvier. Mr. Janvier may well have had good reason
why he did not want to recognize the September 3, 2008 meeting as legitimate,
but Mr. Angus’ duty was not to throw his lot in with Mr. Janvier but to ensure
that the appeals process went ahead in accordance with my Judgment and the
Election Code. As Electoral Officer his duty was to attend the meeting and deal
with the appeals process. He had full knowledge from my Judgment of August 1,
2008 that he was still running the appeals process until replaced. It was not
his job to support or be guided by Mr. Janvier. As my Judgment points out, Mr.
Angus as Electoral Officer answered to the band members of CPFN whose interests
he had been appointed to protect.
[51]
Mr.
Janvier may well have not wanted Mr. Angus to show up at the September 3, 2008
meeting because his presence would have legitimized that meeting, and that may
well have been contrary to Mr. Janvier’s interests. I do not say this was the
case; I am simply suggesting that Mr. Angus’ role was not to act in concert
with Mr. Janvier’s interests or views on what was appropriate. Mr. Angus was
required to be independent in these matters.
[52]
Having
decided not to show up at the September 3, 2008 meeting but, rather, to follow
Mr. Janvier’s advice about the legitimacy of the meeting, I can see why the CPFN
members would seek to remove Mr. Angus as Electoral Officer. They were under a
Court-ordered obligation to select an Appeal Committee and get the appeals
process underway. Mr. Angus had been given notice of the meeting through his
lawyer and my Judgment laid out what role Mr. Angus should play. Mr. Angus’
decision not to attend the meeting thwarted the appeals process and, quite
apart from any other complaints that might have been brought against him before
the membership, it would be reasonable for the CPFN membership to lose faith in
someone who did not show up and who had the appearance of having thrown his lot
in with Mr. Janvier.
[53]
Nor
do I think there was any procedural unfairness or lack of due process in his
removal. Mr. Angus had full notice of the meeting and what was to take place
there. Because of the application he has brought in this Court and my Judgment
of August 1, 2008, he also had full notice that complaints could be raised
against him and that he could be removed as Electoral Officer by the band
membership. Instead of facing this process he chose not to attend. He cannot
say, however, that he did not have full knowledge of the complaints or what
might happen at the band meeting. In addition, his failure to attend and his apparent
support for Mr. Janvier slowed the whole process down and placed the
Respondents in a difficult position as regards timely compliance with my
Judgment.
[54]
On
the facts of this case then, I cannot say that Mr. Angus was removed in breach
of my Judgment or that there was any procedural unfairness in his removal. In
the end, everything depends upon whether the September 3, 2008 meeting was a
legitimate band meeting.
[55]
The
Applicants make much of what they see as discrepancies in the affidavit of Mr.
Jules Nokohoo and, in particular, what they characterize as a formal and
pre-meditated plan by the Respondent to have Mr. Angus removed as Electoral Officer;
a plan they feel was set in motion weeks before the meeting and which shows the
Respondent deliberately flouting my Judgment.
[56]
Mr.
Nokohoo reveals in his affidavit that the Chief in Council instructed Ms.
Shirley Janvier to prepare a list of candidates for the Appeal Committee
“probably three weeks” in advance of the meeting.
[57]
What
this shows, however, is that well in advance of the September 3, 2008 band meeting
the Respondent was preparing to put their complaints about Mr. Angus before the
meeting of band members, and that the Respondent was preparing an alternative
list of candidates for the Appeal Committee.
[58]
This
was not a breach of my Judgment and it was not indicative of a pre-meditated
plan to flout my Judgment. My Judgment specifically contemplates a process
whereby any complaints about Mr. Angus as Electoral Officer could be brought
before the band members when they consider the Appeal Committee. The Chief and Council
prepared themselves to deal with this and there is no reason at all why Ms.
Shirley Janvier should not prepare a list of alternative candidates to place
before the membership in the event that the membership either decides to remove
Mr. Angus as Electoral Officer or, for whatever other reason, the candidates he
puts forward are not acceptable. There was nothing inappropriate about this and
Mr. Angus must have known as a result of these proceedings that his position as
Electoral Officer was in the hands of the band membership, and that the
Respondents would be making strong representations to the membership that he be
removed and that an alternative list of candidates for the Appeal Committee be
considered. Mr. Angus could have attended the meeting, answered the complaints,
and placed his recommendations before the membership. He chose not to do that.
I do not think he can now complain that there was some pre-meditated and
underhand conspiracy to remove him and breach my Judgment. My Judgment
contemplates that he might be removed by the band membership.
[59]
In
the end, then, this motion comes down to the issue of whether the September 3,
2008 meeting was a real meeting of the CPFN membership that legitimately went
about the business of removing Mr. Angus and selecting an Appeal Committee.
[60]
To
begin with, I do not think the Applicants can complain that they did not have
full notice of the meeting and that it would deal with the selection of Appeal Committee
members. They were specifically advised of this fact through their lawyer and
they chose not to attend on September 3, 2008.
[61]
Having
made that choice, they have tried to find ways to question the legitimacy of
the meeting. But the Court is faced with the stark fact that the Applicants and
their lawyer were advised that the meeting was going to take place. They could
have attended and they could have observed. They also knew, because of my
August 1, 2008 Judgment, that Mr. Angus was still the Electoral Officer fixed
with the responsibility of handling the appeals process unless and until he was
removed. Yet they still chose not to attend.
[62]
Instead
of going to the meeting to make sure that it was conducted appropriately, they
chose to stay away and attack the results after the fact.
[63]
It
has to be born in mind that the principal purpose of my Judgment was to ensure
that the appeals process went ahead in a timely manner and that the membership
of CPFN be given the opportunity to assess the fairness of the election
process. It was not to shield Mr. Angus form complaints that the Chief and Council
might wish to bring before the CPFN membership, even though I found that Mr.
Angus had not been removed at the time of my Judgment.
[64]
But
the Applicants now say that adequate notice of the September 3, 2008 meeting was
not given, even though they knew about it, and they also knew what would take
place there.
[65]
The
Court is left to assess evidence by Mr. Jules Nokohoo, who says that he
personally posted notices of the meeting in the usual places and in the usual
way, and by witnesses for the Applicants who say they were looking for notices
of the meeting but did not see any.
[66]
The
Applicants say there are several reasons why the Court should reject Mr.
Nokohoo’s evidence on the notice issue.
[67]
First
of all, they say that Mr. Nokohoo was unable to provide clear evidence as to
the location, time, and content of a band meeting allegedly held on August 18
and 19, 2008 for the purpose of informing band members about the election
appeal. There may well be confusion about such a meeting but no such meeting
was required by my Judgment and Mr. Nokohoo is quite clear about the location,
time and content of the notices he posted for the September 3, 2008 meeting of
which the Applicants were fully aware.
[68]
The
attendance of RCMP officers at the September 3, 2008 meeting has been relied
upon by the Respondent for the adequacy of notice and community awareness of
the meeting. In his affidavit, Mr. Nokohoo swears that neither he nor any other
member of Chief and Council had requested the presence of the RCMP at the
meeting. During cross-examination, Mr. Nokohoo conceded that he did not really
know if this was the case and that a council member “probably could have” made
the request.
[69]
Reading
Mr. Nokohoo’ affidavit, I do not see this as an admission that a council member
did make such a call. He is just conceding that they could have. In any event,
if a council member asked the RCMP to attend I do not see this as evidence of
lack of notice or of any other kind of illegitimacy regarding the calling of
the meeting or conduct at the meeting.
[70]
There
are no formal minutes of the Chief and Council deciding to hold the meeting
but, under the circumstances and in view of my Judgment, there really was not
much choice and it seems clear that the Applicants were informed through legal
counsel that a decision had been made to hold a meeting on September 3, 2008 to
deal with the Appeal Committee meeting. As long as band members were given
notice of the meeting, I do not see much relevance in whether or not the
Respondent passed formal minutes. At that point in the proceedings, matters
were very much in the hands of the lawyers on both sides because of the need to
follow my Judgment.
[71]
The
Applicants also refer to the cross-examination of Mr. Lester Cardinal and ask
the Court to draw the following conclusions:
46.
It is submitted that the conduct of Jules Nokohoo (assumedly on behalf of the
Respondent) in obtaining Cardinal Affidavit 11, an Affidavit which can
generously be characterized as “inaccurate” raises grave concerns about the
commitment of the Respondent to provide this Court with truthful and honest
evidence.
47.
Further, the conduct of Mr. Nokohoo in obtaining Cardinal Affidavit 11 leads to
the conclusion that all of the evidence of the Respondent should be viewed with
skepticism by this Court.
[72]
I
have reviewed Mr. Cardinal’s cross-examination and I think the following points
are clear:
a. It was Mr. Cardinal who
approached Mr. Nokohoo and told him “I made a big mistake” and that “You guys
might have had something in between then that I’ve never seen”;
b. It was only after being
approached by Mr. Cardinal that Mr. Nokohoo said Mr. Cardinal would have to do
another affidavit;
c. The money that was
provided to Mr. Cardinal by Mr. Nokohoo was a loan. Mr. Cardinal didn’t even
have enough money for groceries, let alone to get to Fort McMurray to sign another
affidavit;
d. The $200 was a loan to
Mr. Cardinal in the circumstances in which he found himself. He paid Mr.
Nokohoo back $100 the same day. This can hardly be described as some kind of
bribe;
e. Mr. Cardinal had to
borrow $235 to attend the cross-examination, which confirms that there isn’t
much he can do without borrowing money because he doesn’t really have the
resources.
[73]
Mr. Cardinal’s
second affidavit turned out to be as inaccurate as the first one he executed,
and Mr. Nokohoo may well have been overzealous in ensuring that the corrections
were made and that aspersions were cast on Mr. Dhir (which I find entirely
reprehensible), but I cannot say that his entirely undermines the Respondent’s
evidence.
[74]
I
have various reasons for this conclusion:
a. Mr. Dhir and the
Applicants were told in writing that there would be a band meeting to deal with
the appeals committee on September 3, 2008;
b. Because of my Judgment
of August 1, 2008, both sides knew that Mr. Angus was still the Electoral Officer
and could be expected to attend that meeting to deal with the establishment of
an Appeal Committee and/or face complaints and possible removal;
c. It does not seem likely
to me that the Respondent would have given Mr. Dhir and the Applicants notice
of meeting where at least Mr. Angus could be expected to appear if they did not
intend to hold such a meeting;
d. Mr. Angus and Mr.
Janvier chose not to attend the meeting even though they both knew about it;
e. Following the meeting,
Mr. Rath wrote a letter to the Court dated September 4, 2008, which was copied
to Mr. Dhir, providing a full account of what had occurred at the meeting. Mr.
Rath was present at the meeting and, according to some of the witnesses, played
a role in it. As counsel to the band, there is nothing untoward in that. In
addition, Mr. Rath is an officer of this Court and I have no reason to suspect
that his letter of September 4, 2008 does not accurately reflect what occurred
at the meeting. Had the Applicants wanted to, they could have attended the
meeting to ensure that all went well. But they chose not to;
f.
There
is evidence that officers of the RCMP attended the meeting and that 52 members
of the band showed up. There is nothing to suggest that these numbers were low
for attendance at a band meeting, even for a band with 700 members.
[75]
There
is conflicting evidence on whether adequate notice of the meeting was given.
Mr. Nokohoo says that he posted notices in the usual way. Witnesses for the
Applicants say that they were looking for notices in the usual places but did
not see them. But this meeting was no secret to the Applicants, and the fact
that 52 band members showed up for it suggests to me that it was no secret to a
lot of people.
[76]
Hence,
I am not convinced on a balance of probabilities, that the meeting of September
3, 2008 was not a legitimate band meeting, or that Mr. Rath’s reporting letter
of September 4, 2008 is not an accurate account of what happened at the
meeting.
[77]
That
being the case, I see no reason to suspect that the Respondents have breached
my Judgment of August 1, 2008 in any material way, or that the band meeting of
September 3, 2008 was not duly called, or that there are grounds for judicial
review of any of the motions passes at that meeting.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
motion is denied with costs to the Respondent.
“James
Russell”
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