Landry v. Beaulieu, 2005 FC 357

Date: 20050311

Docket: T-1721-04

Citation: 2005 FC 357

Ottawa, Ontario, March 11, 2005

Present:          The Honourable Mr. Justice Harrington

BETWEEN:

                                                             NELSON LANDRY

                                                                                                                                            Applicant

                                                                           and

                                                               PAUL BEAULIEU

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]               This Court must consider two motions: (1) one seeking an order of this Court to temporarily halt all banking transactions made in the name of the Malécite de Viger First Nation; and (2) a contempt motion naming Paul Beaulieu, Aubin Jenniss, Jean Genest and Pierre Nicolas.

[2]               I must dismiss both motions, but I feel a more in-depth explanation is in order, given that Mr. Landry was not represented by counsel.

[3]               The case began in September 2004 with an application for judicial review of a referendum concerning the Chief at that time. An urgent application for conditional relief was made to prevent the destruction of referendum ballots and to require that the votes be counted in the presence of Mr. Landry and two other clan chiefs.

[4]               Under subsection 362(1) of the Federal Court Rules, 1998 (the Rules), in most cases, a notice of motion must be served and filed at least two days before the day set out in the notice for the hearing of the motion.

[5]               After obtaining an undertaking from the respondent not to destroy the referendum ballots, Martineau J. issued a direction dated September 24, 2004, dismissing the application to hear the motion on an urgent basis.  It should be noted that this was a direction, not an order in favour of Mr. Landry.

[6]               Shortly thereafter, Mr. Landry ought to have filed a new notice of presentation to pursue the judicial review of the referendum. The Court has yet to hear this application.

[7]               The respondent filed his affidavit and those of Aubin Jenniss, Jean Genest and Pierre Nicolas in a timely manner and in compliance with section 300 et seq. of the Rules. The deponents mentioned in their affidavits that the Chief had resigned, thus rendering the case moot.

[8]               In accordance with his right to cross-examine under section 83 of the Rules, Mr. Landry directed the deponents of the affidavits to appear for cross-examination.

[9]               When the deponents failed to appear, Mr. Landry filed a contempt of court motion naming Paul Beaulieu, Aubin Jenniss, Jean Genest and Pierre Nicolas, fearing that they would use the money of the Malécite de Viger First Nation fraudulently.

[10]           The deponents were under the impression that the case had been resolved, since, on the very same day the cross-examinations were to take place, the parties had reached an agreement to the effect that the votes would be counted that very night in the presence of Mr. Landry.  Mr. Landry confirmed that he was present at the count but claimed that he never agreed not to cross-examine the deponents.

[11]           It would appear that there was a misunderstanding between the parties. I am satisfied that Mr. Landry did not meet the burden of proving beyond a reasonable doubt that the respondent was in contempt of court.  This in no way infringes on Mr. Landry’s right to issue a new direction to attend for cross-examination, or on the respondent’s right to bring a motion to strike the  application for judicial review on the ground of the case being moot.

[12]           With regard to the injunction to temporarily halt all banking transactions made on behalf of the Malécite de Viger First Nation, also known as a Mareva injunction, the Court sees no evidence indicating that Mr. Beaulieu or the Malécite de Viger First Nation would squander the assets in the Malécite de Viger First Nation’s bank account. In fact, counsel for Mr. Beaulieu suggest that the style of cause be amended to name the Malécite de Viger First Nation as the respondent. Mr. Landry refused the amendment.

[13]           Mr. Beaulieu is entitled to costs but has waived that right in this case.

                                                                       ORDER                                  

THE COURT ORDERS that the motion for an injunction and the contempt of court motion be dismissed without costs.

“Sean Harrington”

                                                                                                                                                   Judge                 

Certified true translation

Michael Palles

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                              T-1721-04

STYLE OF CAUSE:                                                              NELSON LANDRY

AND

PAUL BEAULIEU

PLACE OF HEARING:                                                        OTTAWA, ONTARIO

DATE OF HEARING:                                                          MARCH 10, 2005

REASONS FOR ORDER AND ORDER BY:                    THE HONOURABLE MR. JUSTICE HARRINGTON

DATED:                                                                                  MARCH 11, 2005

APPEARANCES:

Nelson Landry                                                                          FOR THE MOVING PARTY

Pierre Méthot                                                                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

Martin, Camirand, Pelletier                                                       FOR THE RESPONDENT

Montréal, Quebec