Date: 20081212
Docket: T-1516-08
Citation: 2008 FC 1369
BETWEEN:
COUNCILLOR ALBERT DEAN LAFOND
and
COUNCILLOR CLIFF TAWPISIN, JR
Applicants
and
CHIEF GILBERT LEDOUX, MCKERCHER LLP,
EMERY JAMIESON LLP and MYERS
NORRIS PENNY LLP
Respondents
REASONS FOR
ORDER
PHELAN J.
I. OVERVIEW
[1]
The
motions before the Court are interrelated proceedings and as such it is more
efficient to issue a single set of reasons with specific orders to follow in
respect of each motion.
[2]
The
motions are as follows:
(a) the
Applicants’ motion to require the Respondents to produce certain records in
accordance with Rules 317 and 318;
(b) the
Respondents’, McKercher LLP, Emery Jamieson LLP and Myers Norris Penny LLP, motion
to strike the application for judicial review as against them for want of
jurisdiction; and
(c) the
Respondent Chief Gilbert Ledoux’s motion to strike on similar grounds.
[3]
Given
the nature of this litigation and the need for it to be managed in an orderly
fashion, the Court will issue an order that this case be “specially managed”
(sometimes referred to as case managed).
[4]
The
hearing of the issues in respect of Rules 317 and 318 was specifically directed
by Order of Justice Campbell to be heard after the Court had an opportunity
to review the documents in issue. These documents were provided to the Court in
confidence and have been so reviewed.
II. BACKGROUND
[5]
The
Applicants, two band councillors of the Muskeg Lake Cree Nation (Band), brought
an application for judicial review of a vote of the Band members and seek relief
in the nature of an order quashing that vote conducted between September 19 and
27, 2008. The subject matter of the vote in question was the proposal to permit
certain businesses (including a Tim Hortons franchise and Royal Bank of Canada financing) to
be established on Band land. The first vote on this proposition had been
defeated.
[6]
The
Applicants allege that the Respondent, Chief Gilbert Ledoux, acting without Council
approval, and in league with consultants, established a voting procedure and
conducted a “re-vote” of the same issue, with the assistance of the other
Respondents. It is this re-vote which apparently supported the business
proposal referred to above, which is the subject of this judicial review.
[7]
The
other Respondents are two law firms, McKercher LLP and Emery Jamieson LLP, and
an accounting firm, Myers Norris Penny LLP. McKercher LLP is described as
counsel to the Band and in that capacity provided legal advice and other
assistance on the votes conducted on behalf of the Muskeg Lake Land Advisory
Committee (Committee). The other law firm was apparently retained to assist
McKercher LLP and the accounting firm was retained by or on behalf of the Band
or Committee by McKercher LLP to tabulate the results of the re-vote.
[8]
There
are allegations that the first vote was fraught with problems and that these
problems resulted in the re-vote. There are further allegations that the
re-vote was also fraught with problems, improper procedures and improper
conduct. The gist of the judicial review is that the re-vote was illegal and
did not reflect the will of the people.
[9]
The
Applicants requested as part of this application for judicial review that the
Respondent advisors (the two law firms and the accounting firm) provide under
Rule 317 the following documents:
(a) all
documents related to each of the votes in Edmonton, Saskatoon, Prince
Albert and Muskeg Lake;
(b) the
record of the voters’ list;
(c) the
record of the times the vote was held;
(d) all
records of voters who were refused;
(e) all
records of voters who were turned away or who waited in line but did not get to
vote; and
(f) such
further and other records related to these votes.
[10]
The
Respondents have objected to the Rule 317 request being directed to them on the
grounds that none of them are “a tribunal”; that they hold the documents
subject to solicitor-client privilege; and that each of them was bound by a
confidentiality, non-disclosure and independence agreement which bars their
release of the documents.
[11]
The
Respondent advisors bring a motion to strike the judicial review as against
them on the basis that none of them is a “federal board, commission or
tribunal” and thus this Court has no jurisdiction over them; that the naming of
these Respondents is an abuse of process designed to interfere with the
client’s choice of counsel; and that they are not persons directed affected by
the matters before the Court.
[12]
The
Respondent, Chief Gilbert Dedoux, also moves to be struck as a respondent on
the grounds that the Court lacks jurisdiction; that he is not a “federal board,
commission or tribunal”; that the challenged procedures and votes were not his
decision; and that the vote is under the jurisdiction of the Band’s land code.
III. ANALYSIS
A. Rule
318 Objection
[13]
Pursuant
to the Order of Justice Campbell, the Court has examined the documents to which
the Respondents object to production. These documents are contained in folders
filed with the Court and the description of those folders is as follows:
Folder No. 1
Copy of the
Muskeg Lake Voters’ List dated September 2008. The list was used for the
purposes of determining eligibility of the voters and for the recording of the
votes.
Folder No. 2
Copy of the
Muskeg Lake Voters’ List with results after the September 19, 2008 vote. The
notations under the “comments” section record how an individual voter voted on
the three questions together with the voter’s initials.
Folder No. 3
Copy of the
Muskeg Lake Voters’ List, voter’s signature and copy of Muskeg Lake Voters’
List which contains the cumulative voting results for the September 19 and 27,
2008 votes. This folder contains one list of voters without recording the votes
and one list of voters with votes noted.
Folder No. 4
Copy of the Muskeg
Lake Voters List with accumulated results for the September 19, 20 and 21, 2008
votes.
Folder No. 5
Copy of the Muskeg
Lake Voters List with accumulative results for the September 19, 21 and 27,
2008 votes.
Folder No. 6
Copy of
McKercher LLP attendance notes for September 21 and 27, 2008 listing voters who
were turned away.
[14]
The
Court has been advised that the documents in its hands are the original
versions. It is unknown if copies thereof also exist.
[15]
These
documents have been placed in the hands of McKercher LLP in their role as
counsel. By their own admission, the firm is counsel to the Band, Chief Gilbert
Ledoux and the Committee. The documents themselves are not communications with
the counsel nor are they in themselves solicitor-client documents. As such, the
firm holds them as agents for the client and they are properly producable if
the client is subject to an order for production.
[16]
The
cloak of solicitor-client privilege is not an invitation to play “hide the pea”
with the documents at issue. To the extent that the law firm(s) were concerned
that they had no authority to provide the documents without instructions from
the client or by virtue of a Court order (a legitimate concern that any law
firm would have), this Court’s order will alleviate their concern.
[17]
For
reasons addressed later, Chief Gilbert Ledoux or whoever else may have given
the documents to the advisors in carrying out the impugned vote would be a
tribunal for purposes of Rule 317. In the absence of any evidence to the
contrary, and for purposes of this motion only, I hold Chief Gilbert Ledoux to
be such a tribunal. To the extent that Chief Gilbert Ledoux had control of the
documents, he apparently held them on behalf of the Chief and Council, or on
behalf of the Band, or as an ex officio member of the Committee. Any one
of those other bodies may likewise be a tribunal but at this stage it is
difficult to discern who precisely ordered the re-vote.
[18]
The
existence of the confidentiality agreement is no bar to the production under
Rule 317. A tribunal cannot contract itself or others out of its obligation to
produce documents in accordance with this Court’s Rules. The confidentiality
agreement is a curious document to require advisors, especially counsel, to
execute. It is noteworthy that one party to the agreement is the Band yet the
document is not executed by the Band or any representative thereof. This
agreement raises more questions than it answers except it may assist in
determining who the proper tribunal may be.
[19]
The
Court concludes that the Rule 318 objection is unfounded. The voters’ lists are
clearly producable. There remains the issue of the disclosure of the actual
vote by a particular voter, the requirement for confidentiality and the use of
the information for purposes of this litigation.
[20]
As
this matter will be specifically case managed, in the event that the parties
cannot agree as to the form of disclosure, the Applicants are to seek an order
setting out the disclosure regime for those documents including the possibility
of the use of redacted versions to protect legitimate confidentiality.
[21]
Folders
2, part of 3, 4 and 5 inclusive which record the votes of each voter are to
remain confidential pending further order of this Court. Folders 1, 6 and the
voter list in Folder 3, which does not list how an individual voted, are to be
produced forthwith.
B. Motion
to Strike
[22]
On
these respective motions, the Respondents proceed in part on an incorrect
assumption that to be a respondent in these proceedings, they must be a federal
board, commission or tribunal.
[23]
Rule
303(1)(a) requires an applicant to name as a respondent every person
“directly affected by the order sought in the application, other than a
tribunal in respect of which the application is brought”.
[24]
Given
the circumstances to date, I concur with the Applicants that it is difficult to
determine precisely who is the tribunal, who is the decision maker and who are
the necessary respondents. However, it is clear that neither the law firms nor
the accounting firm are a tribunal or a person directed affectly by the
application. Their role is more likely that of a witness. That fact may impact
their ability to represent one or more of the current or future Respondents.
However, the ability of the firms to act in this matter is an issue for another
day.
[25]
The
Chief is evidently a person affected by the application which seeks to quash a
vote by the Band. The Band and the Committee are also persons clearly affected
by the application and Band Council may also be a party affected. The matter of
proper respondents should be left to the case management judge or prothonotary
upon application by the Applicants to amend the style of cause.
[26]
It
is sufficient for these purposes to strike the Respondent advisors as parties
with leave to the Applicants to amend the style of cause and to add proper
respondents.
[27]
The
Applicants shall have their costs of the Rule 318 objection motion; no costs
will be ordered in respect of the motion to strike as results thereof are
mixed.
“Michael
L. Phelan”
Ottawa,
Ontario
December 12, 2008
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