Docket: T-1570-13
Citation:
2014 FC 981
Ottawa, Ontario, October 15, 2014
PRESENT: The
Honourable Madam Justice Gleason
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BETWEEN:
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SALT RIVER FIRST NATION COUNCILLORS, JUDITH GALE AND CONNIE
BENWELL
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Applicants
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and
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FRIEDA MARTSELOS, CHRISTOPHER HUNTER, BETTY PHINNEY AND KEN
LAVIOLETTE
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Respondents
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JUDGMENT AND REASONS
[1]
This file involves an application for judicial
review, originally brought by the above-named applicants and another
individual, Ms. Joline Beaver. The Notice of Application was filed at the end
of September 2013, pursuant to the September 3, 2013 Order of Justice Scott,
extending the time for doing so.
[2]
In their application, the applicants and Ms.
Beaver sought to set aside three April 29, 2013 decisions removing the
applicants and Ms. Beaver as Councillors of the Salt River First Nation [SRFN]
and also requested a declaration to affirm a Band Council Resolution that the
applicants allege was passed on May 13, 2013, purportedly removing the respondent,
Frieda Martselos, as Chief of the SRFN. There is a dispute between the parties
as to whether a meeting was properly called to pass the Resolution. The
Resolution was not given any effect by the SRFN and Ms. Martselos accordingly
remained in the position of Chief.
[3]
The Court now has pending before it three
different matters which are dealt with in these Reasons: first, a motion of the
respondents to permanently stay this application for judicial review for
several reasons, including the fact that it has become moot due to new
elections having taken place for Chief and Councillors of the SRFN, or in the
alternative, to require the applicant, Judith Gale, to provide security for
costs; second, a motion by Ms. Gale to remove counsel for the respondents as counsel
of record due to an alleged conflict of interest and for two other matters;
and, finally, a request by the respondents for an order for costs.
[4]
To understand these issues, it is necessary to
review some of the procedural history in this matter.
I.
Background
[5]
Before the applicants perfected their
application for judicial review, the respondents brought a preliminary motion
to strike portions of the Notice of Application as being outside the
jurisdiction of this Court, to sever the cases of the three applicants, to add
the SRFN as a respondent (or to substitute it as the sole respondent) and to
rename the applicants. The motion was originally returnable on October 29, 2013
in Vancouver.
[6]
During the first case management conference held
in this file, the parties agreed to adjourn the respondents’ motion to the
first available date following November 18, 2013 to allow the applicants to
file responding materials. They also agreed that the deadlines for filings in
respect of the underlying judicial review application would be extended until
after the respondents’ motion was disposed of. These agreements were reflected
in my Order of October 25, 2013, which provided for the rescheduling of the
respondents’ motion to the first available hearing date in Edmonton and extended
the deadlines for serving and filing materials in respect of the judicial
review application until after the decision on the respondents’ motion.
[7]
Ms. Beaver filed a Notice of Discontinuance in
respect of this matter in November of 2013. The respondents have not moved to
assess costs against Ms. Beaver following her discontinuance. Shortly
thereafter, also in November 2013, Ms. Benwell and Ms. Gale filed Notices of
Intention to Act in Person. The applicants filed responding materials in
respect of the respondents’ motion on November 19, 2013.
[8]
A number of case conferences were subsequently
held to schedule the cross-examinations of the affiants who had filed
affidavits in connection with the motion and to set the motion down for
hearing. At the request of the applicants, several extensions in the schedule
were granted, and the applicants were afforded the opportunity to file
additional materials. The cross-examinations were ultimately scheduled to take
place on April 28 and 29, 2014 in Fort Smith, NT.
[9]
Ms. Gale sought to adjourn theses dates due to
difficulties she alleged she was experiencing in her personal life. By Order
dated April 16, 2014, I refused the adjournment request, holding as follows:
Ms. Gale has already been granted several
extensions of time to file materials. If this latest request were granted, the
cross-examinations that are set for April 28th and 29th, 2014 would need to be
rescheduled, and there would be further delay in the pursuit of this
Application. While sympathetic to the difficulties Ms. Gale is facing in
searching for housing, she has had ample time to prepare her affidavit, and any
further extension is not warranted.
Section 18.4 of the Federal Courts Act,
R.S.C., 1985, c.F-7, requires that judicial review applications be heard and
determined without delay. Moreover, litigation such as the present, which puts
in issue the governance of a First Nation, has the potential for destabilizing
effects on the community and therefore needs to proceed expeditiously.
[10]
On April 25, 2014 Ms. Gale advised the Court and
counsel for the respondents that one of the applicants’ affiants, who was
scheduled to be cross-examined, was no longer available on April 28 or 29,
2014. Counsel for the respondents proposed proceeding with the other cross-examinations
as scheduled since plane tickets had already been purchased and a reporter
booked to travel to Fort Smith. The respondents also proposed proceeding with
the cross-examination of the unavailable witness via video conference at the
first subsequent mutually convenient date.
[11]
On April 28, 2014 Ms. Gale again wrote to the
Court, stating that she had woken that day with a toothache and again requested
an adjournment to enable her to travel to Hay River for a dental appointment.
The respondents objected, noting that the examinations could nonetheless
proceed as only Ms. Benwell had filed an affidavit and accordingly could be
cross-examined as scheduled late in the day on April 28. They also argued that
if Ms. Gale were unable to conduct the cross-examinations of the respondents’
affiants on the following day due to her toothache, Ms. Benwell could do so.
The respondents also noted that the court reporter was leaving for the airport
to travel to Fort Smith when the adjournment request was being considered.
[12]
By Order dated April 28, 2014, I
ordered that the cross-examinations of the witnesses who were available would
proceed as scheduled on April 28 and 29, 2014 in Fort Smith.
[13]
Counsel for the respondents, Ms. Benwell and Ms.
Gale met as scheduled before the reporter on April 28, 2014 in Fort Smith for
Ms. Benwell’s cross-examination. The respondents have filed a transcript of
their on-the-record discussions of April 28, 2014.
[14]
During their discussions, Ms. Benwell indicated
she wished to discontinue her involvement in the application for judicial
review. In addition, both she and Ms. Gale concurred that Ms. Benwell’s
affidavit would be withdrawn. Ms. Benwell’s affidavit was the principal
evidence of the applicants in respect of the respondents’ motion. In light of
the decision to withdraw the affidavit, Ms. Benwell was not cross-examined. Ms.
Gale also advised counsel for the respondents on April 28 that her toothache
would likely prevent her from conducting the cross-examinations of the
respondents’ witnesses, which were scheduled for the following day. Ms. Gale
did not attend on April 29, 2014.
[15]
After canvassing and confirming the parties’
availabilities, the Court scheduled a case conference for May 14, 2014, to be
conducted via telephone. Notice of the conference and a call in number were
provided to the applicants and counsel for the respondents. The applicants
failed to attend and were not reachable at the telephone number they had
provided to the Court. I therefore proceeded to hear submissions from counsel
for the respondents who advised as to what had transpired during the aborted
cross-examinations.
[16]
On May 14, 2014, I issued an Order, which set a
timetable for Ms. Benwell to file a Notice of Discontinuance, if she wished to
file one; for Ms. Gale to indicate her intentions with respect to the
application; for the respondents, if they wished a costs award, to file
submissions in respect of costs; and for replies to be filed in respect of the
respondents’ costs submissions.
[17]
In accordance with the timetable, on May 23,
2014 Ms. Benwell filed a Notice of Discontinuance. On the same date, the Court
received a letter from Ms. Gale, advising that she wished to pursue her
application for judicial review.
[18]
On June 6, 2014, the respondents filed materials
in support of their claim for costs against Ms. Benwell. In their submissions,
they contemplate a costs award also being made against Ms. Beaver and Ms. Gale.
In terms of the award against Ms. Benwell, the respondents seek an award
finding her:
1)
jointly and severally liable with Judith Gale
and Joline Beaver for $1807.50 for costs incurred up to November 8, 2013; and
2)
jointly and severally liable with Judith Gale
for $10,065.10 for costs incurred from November 8, 2013 to May 23, 2014.
[19]
In June 2014, the respondents attempted to serve
the applicants with their motion to stay this application but were unable to
effect service. A case conference was subsequently held on July 7, 2014, in
which Ms. Gale and counsel for the respondents participated. Counsel for the
respondents outlined the basis for their motion to stay, submitting that the
application for judicial review had become moot as it could not be determined
before the upcoming election at the SRFN, which was scheduled for the last week
of September. Although confirming that this was in effect the scheduled
election date, Ms. Gale was not prepared to concede that her application had
become moot and counsel for the respondents therefore requested her address for
service, which Ms. Gale provided. During this case conference, Ms. Gale advised
that she intended to file a motion to remove counsel for the respondents as
solicitors of record. During the case conference, I directed counsel for the
respondents to canvass with their clients their willingness to participate in a
mediation session. By letter dated July 10, 2014, the respondents indicated
they were unwilling to participate in mediation. On July 18, 2014, I issued an
Order that provided in operative part as follows:
1. Although the Court does possess
jurisdiction under Rules 386, 387 and 389 to require parties to participate in
mediation, given the steadfast refusal of the respondent to voluntarily engage
in mediation, there is little likelihood of its leading to resolution of the
issues that have arisen in this application. Therefore, no mediation is
ordered;
2. The respondent shall bring its
motion for a stay under Rule 369 of the Federal Courts Rules and shall
file its motion record by August 18, 2014;
3. Ms. Gale shall likewise bring her
motion to remove counsel as solicitors of record in writing under Rule 369 of
the Federal Courts Rules by August 18, 2014;
4. Responding materials shall be filed
in respect of the two motions by August 31, 2014; and
5. I shall dispose of these motions and
the respondents’ request for costs based on the written representations that
have been and will be filed.
[20]
The Court thus has pending before it three
matters: first, the respondents’ motion to stay the application, in respect of
which it seeks a costs award of $1000.00, payable by Ms. Gale, or
alternatively, an order requiring Ms. Gale to provide security for costs in the
amount of $12,000.00; second, the respondents’ request for cost orders against
Ms. Benwell, finding her to be jointly and severally liable with Judith Gale
and Joline Beaver for $1807.50 for costs incurred up to November 8, 2013, and
jointly and severally liable with Judith Gale for $10,065.10 for costs incurred
from November 8, 2013 to May 23, 2014; and, finally, Ms. Gale’s motion.
[21]
In her motion Ms. Gale seeks:
1)
an order removing SRFN counsel Mr. David Rolf of
Parlee McLaws LLP and Ms. Colleen Verville of Dentons Canada LLP as solicitors
of record for the respondents due to an alleged conflict of interest between
their duties to the SRFN and to Chief Martselos personally;
2)
an order finding Chief Martselos and SRFN
solicitors in contempt of the Federal Court and Federal Court of Appeal
Judgments in Salt River Indian Band #759 v Martselos, 2008 FC 8 and 2008
FCA 221, in which they were not awarded costs;
3)
an order requiring Chief Martselos to reimburse
the SRFN for monies disbursed to her lawyers in this matter; and
4)
in the alternative, an order requiring the SRFN
fund Ms. Gale’s legal fees as she claims her situation “constitutes
a SLAPP scenario” .By this, Ms. Gale may be referring to the American
constitutional law concept “Strategic Lawsuit Against Public Participation”,
which denotes lawsuits brought strategically with the intention of intimidating
or silencing those who speak out on issues of public interest or controversy.
[22]
I assess these various requests below.
II.
Is this application for judicial review moot?
[23]
Turning, first, to the respondents’ motion for a
stay, the doctrine of mootness was described by Justice Sopinka in the
following terms in Borowski v Canada (AG), [1989] 1 S.C.R. 342,
[1989] SCJ No 14 at para 15:
The doctrine of mootness is an aspect of a
general policy or practice that a court may decline to decide a case which
raises merely a hypothetical or abstract question. The general principle
applies when the decision of the court will not have the effect of resolving
some controversy which affects or may affect the rights of the parties. If the
decision of the court will have no practical effect on such rights, the court
will decline to decide the case.
[24]
In this application for judicial review, the
applicants sought reinstatement on the SRFN Council for the remainder of the
2012-2014 term and the removal of Chief Martselos for the rest of that term.
These claims are now moot as new elections were held in the SRFN during the
last week of September of 2014, during which Council and Chief were elected for
the upcoming 2014-2016 term. I therefore agree with the respondents that this
application for judicial review has become moot as the remedies requested can
no longer be awarded. I moreover note that the passage of time in this file has
been largely, if not solely, attributable to the conduct of the applicants, who
failed to file materials and to proceed with cross-examinations in an
expeditious fashion.
[25]
As opposed to permanently staying this
application, as the respondents request, I believe the more appropriate remedy
is to dismiss the application by reason of mootness and have accordingly so
ordered.
III.
Should any of Ms. Gale’s requested remedies be
awarded?
[26]
I turn next to consideration of the relief that
Ms. Gale has requested in her motion.
[27]
Given my determination that this application for
judicial review will be dismissed for mootness, the request to remove counsel
for the respondents as solicitors of record is likewise moot and need not be
considered.
[28]
As for the other remedies requested by Ms. Gale
in her motion, Ms. Gale has filed no evidence in support of her claims. This is
a sufficient basis for dismissing them.
[29]
In addition, as the respondents correctly note,
the SRFN Council’s 2008 decision to compensate the Chief and other SRFN members
for the legal expenses incurred in previous litigation does not constitute
contempt of the orders made in Salt River Indian Band #759 v Martselos,
2008 FC 8, 163 ACWS (3d) 331 and 2008 FCA 221, 168 ACWS (3d) 224, declining to
award costs. There is in this regard a distinction between a court order
awarding or refusing costs and the decision of a First Nation to voluntarily
reimburse individuals for their legal fees. Moreover, the SRFN Band Council
Resolutions approving payments to Chief Martselos and other SRFN members to
cover their legal expenses were the subject of a judicial review application
brought by Councillors Bird and Beaver in T-1582-08, which was subsequently
dismissed by consent and without costs. There is accordingly no merit to Ms.
Gale’s request for a contempt order.
[30]
As concerns her “SLAPP” request, the concept is
inapplicable here as Ms. Gale’s right to free speech is not at issue in this
case and, moreover, as the respondents note in their written submissions at
para 27, “this is not the case in which to consider
importing into Canadian … law American constitutional practices” .
[31]
If her request under this rubric is to be
interpreted as a request simply for a costs award in the applicants’ favour,
there is no basis for such an award, and, rather, for the reasons that follow,
I have determined that a costs award against the applicants is appropriate.
IV.
What costs award is appropriate?
[32]
In terms of costs, there may well be situations,
especially in cases involving disputes regarding elections in a First Nation,
where it is appropriate to either make no costs award against an unsuccessful
applicant or, indeed, to provide for interim funding under the principles in British
Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71,
[2003] 3 S.C.R. 371. This is not such a case.
[33]
Here, even though Ms. Gale appears to be
impecunious and Ms. Benwell appears to have very limited means, I believe a
costs award must be made against them as their conduct in this litigation
resulted in substantial unnecessary costs in connection with the aborted
cross-examinations. That said, I do not believe it appropriate to award costs
in respect of the present motions as they might have been avoided had the
respondents been willing to engage in mediation. I also believe there is no
basis for a costs award against Ms. Beaver, who discontinued her application
shortly after delivery of the respondents’ materials, which demonstrated the
possible weaknesses in the applicants’ positions.
[34]
In terms of the quantum of the award, the
presence of two counsel for the respondents was not necessary and I have
accordingly determined that the award of costs and reasonable disbursements
incurred in connection with this application shall be for one counsel for all
steps in this application up to and including attendance at the case conference
of July 7, 2014. I hereby fix this sum in the amount of $7000.00, which roughly
corresponds to the costs and reasonable disbursements assessed at the lower
potion of the range under Column III in Tariff B to the Federal Courts
Rules, SOR/98-106.
[35]
As Ms. Gale was the principal driver behind this
application but appears to be currently impecunious, I do not believe it just
to follow the habitual approach to costs against multiple parties and make Ms.
Benwell and Ms. Gale jointly and severally liable for the costs award. I
accordingly order each to pay the sum of $3500.00 in the exercise of my
discretion under Rule 400 of the Federal Courts Rules. I note that other
courts have likewise awarded costs on a several basis in somewhat similar
circumstances (see e.g. McAteer v Devoncroft Developments Ltd., 2003
ABQB 425, [2004] 4 WWR 667 (Alta QB) at paras 306-307; Baldwin v
Daubney (2006), 21 BLR (4th) 232, [2006] OJ No 3919 (Ont Sup Ct) at paras 59-66).
[36]
I finally determine in the interests of justice
and in exercise of my discretion under Rules 53 and 400 of the Federal
Courts Rules that the costs award in this case should be in favour of the
SRFN, the party the respondents wished to add or substitute as the respondent
in their initial motion, and, in fact, the entity that has borne the
respondents’ costs.
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