Date: 20010411
Docket: T-1041-99
Neutral Citation: 2001 FCT 318
Between:
THE CHIEF AND COUNCIL OF THE SANDY BAY OJIBWAY FIRST NATION BAND, as represented by Chief JOHN SPENCE, Councillor RAYMOND BEAULIEU, Councillor TOM RICHARD, Councillor KEN RICHARD, and Councillor EDWARD STARR,
Applicants,
- and -
DIANA BEAULIEU, JEANNETTE HOULE, JOHN R. SPENCE SR., MANUEL JOSEPH SPENCE, and CATHERINE MOUSSEAU,
Respondents.
REASONS FOR ORDER
Muldoon, J.
[1]These proceedings began on June 15, 1999, with the applicants moving for:
a) an injunction restraining and prohibiting the respondent, DIANA BEAULIEU, from conducting, holding or causing to be held an election of Chief of the Sandy Bay Ojibway First Nation on Wednesday, June 16, 1999;
b) an order for certiorari quashing and setting aside the purported election by acclamation of Jeannette Houle, Catherine Mousseau, Manuel Spence, John R. Spence Sr., on Thursday, June 10, 1999;
c) such other relief as this Honourable Court may deem just and equitable in the circumstances;
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d) costs of this application.
[2] The grounds for the application are:
a) the holding of an election for Chief of the Sandy Bay Ojibway First Nation on June 16, 1999, is [sic] contrary to Sandy Bay Indian Band-Custom Elections Regulations;
b) in the absence of an injunction, harm will be caused to the applicants which is not compensable by an award of damages;
c) the election of councillors by acclamation on June 10, 1999, was contrary to Sandy Bay Indian Band-Custom Elections Regulations.
[3] The principal parties, and some others were cross-examined on their filed affidavits. The principal parties, Chief John Paul Spence, and Diana Beaulieu, were crossexamined in Winnipeg, respectively on July 14, 1999, and July 15, 1999, by the respective parties' principal counsels, The transcripts of those cross-examinations were filed before the Court and were referred to by counsel at the hearing, on December 18, 2000, in Winnipeg.
[4] As noted, counsel on each side asked for costs to be awarded against the opposite side. This, as the Court noted during the hearing of the case manifested a degree of mutual chutzpah in view of the conduct of each principal counsel on such crossexaminations falling far short of the standards of a learned profession. Counsel conducted themselves toward each other in an impolite and unprofessional manner. Indeed, their respective clients exhibited more equanimity than did the lawyers. So, neither side should expect the Court to reward such conduct with a substantial award of costs. So that counsels' attention may be pointedly focussed, the Court expresses distaste for counsels' conduct on the July 14, 1999 cross-examination recorded on pages 2 to 8, 10 and 11, 16 to 19, 22 and 23, 24, 25 to 28, 29 and 30, 31-2, 35 to 37, 41 and 42, 45, 47, 48, and 49 and 50, and on the July 15, 1999 cross-examination recorded on pages 10, 15, 17, 20 and 21, 28 to 30, 55 to 62, and 64 to 66.
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[5] During the course of the contentious events, the applicants levied contempt of Court accusations against the respondent, Beaulieu The basis of the contempt allegation was the service, on Ms. Beaulieu, of a copy of the interim injunction issued by Honourable Mr. Justice Denault of this Court on June 16, 1999, service having been effected at 2:52 p.m. during polling hours. A copy of the interim injunction order is under tab 2 of the applicants' record, vo1.I. The process server was the same person who had served Court process on Ms. Beaulieu only the day before. She testified on crossexamination on her affidavit as follows:
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Q.
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Were you served with an order of the Federal Court directing you to close down the
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poll and to cease and desist from continuing with the election, I believe it was at
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2:52 p.m. on the 16th of June, 1999?
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I was not aware of what kind of documents were in that envelope. It was a sealed
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envelope and that's all I know.
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That's all I knew at the time.
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And the envelope was addressed to you, was it?
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It had my name on it, yes.
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Yes. And you knew the man that served you with that envelope had served you the
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day before with other documents respecting the motion that was coming before the
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Court relative to this proceeding; correct? You had received other documents from
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him. He had served you with papers?
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I knew somebody came to my house.
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Yes. The same man that served you with this envelope with your name at the Band
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office on the 16th of June at 2:52 o'clock in the afternoon; correct?
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Same man. So you knew that when he came to see you at -- in the afternoon of the
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16th of June, 1999, at the Band office where the election was taking place, that he
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wasn't just there to be social with you, he was there on business and that he was
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handing you some documents, some legal documents; is that correct?
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Why didn't you open up the envelope when he served you with the papers at 2:52
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'Cause I wasn't told they were important and that I had to read them right away.
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All he did was he put them on the table and he left.
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I suggest to you that he told you that what he was delivering to you was an order
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of the Court of Mr. Justice Denault requiring you to close down the election and to
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close the poll because the Court had ordered you to do that. That is what he said
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Did he say anything to you at all? Did he speak to you?
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He asked me if I was Diana Beaulieu -
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I told him yes. He presented an envelope to me and said these documents are for
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you, put them on the table and he walked out.
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So he said these documents are for you; right? And you did open up the envelope
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What time did you open up the documents?
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Just after you closed the polls; right?
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And did you find a copy of that document, a document like that in the envelope?
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Mr. POLLOCK: Mark that as the next exhibit please.
Exhibit #4: copy of document served on Diana Beaulieu on June 16, 1999 at 2:52 p.m. at the Band office.
(Cross-examination transcript: pp. 52 to 54, applicants' record, vol.1, tab 10)
Ms. Beaulieu started counting the ballots at about 8:15 p.m., and finished at approximately
8:45 p.m.
[6]One would expect that the service of the interim injunction would have been a
memorable and significant event because there was the return of the same man who had
served the Court process on the previous day, and he was accompanied by two members
of the R.C.M.Police. Ms. Beaulieu testified in her filed affidavit as follows:
[29] I was handed a sealed envelope by an elderly man the afternoon of June 16, 1999. He was accompanied by two R.C.M.P. officers. He told me there were documents in the envelope for me and he left.
[30]This man did not tell me it was urgent or that the election should be stopped or that I should
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read the material right away.
[31] As I was conducting an election I put the envelope aside and read it after the votes were counted.
[32] I apologize for having inadvertently violated a court order but I was not aware of the existence of the Court order until the election was over.
(Diana Beaulieu's affidavit: p. 7, respondents' record, vo1.I, tab 2.)
[7] The respondents' counsel vividly repudiated the notion that Ms. Beaulieu's conduct could be characterized as willful blindness. But he also stoutly defended her normal intellect. She is not a stupid person. However, had she but opened the envelope, seen the form of interim injunction contained therein, and obeyed it, this case might not have gone so far. Indeed, she seems never to have been questioned as to how promptly that evening she purported to certify the election results; it might not have been too late to avert this litigation. The Court's rules provide, that notice of an injunction must be personally served, as this was. It was served by a known process server, with a touch of attention-arresting drama: the presence of the two Mounted Police constables. However, Ms. Beaulieu chose to ignore all the help which the Court accorded so that she could have acted promptly and properly to avoid, or reduce, litigation costs.
[8] Ms. Beaulieu and her cohort were allegedly just following the dictates of the Sandy Bay Indian Band-custom Election Regulations. First, there is no specific statement therein about what was attempted here, a "recall" election. Second, the will of the Band's membership expressly provides in section 19, that each of a Chief's and a Councillor's term of office endures for two years, (except out of necessity such as coma unless the regulations so provide.) Section 4 could be troublesome in opening, as in subsection (1): "When an election is to be held", without specifying exactly when that will be, but by implication it is after the Chief s and Councillors' two-year terms respectively expire, making vacancies. It does not provide for aborting 2-year terms.
[9] The Court should - as both opposing counsel agreed - award costs. The applicants shall have a judgment for their costs in these circumstances. The judgment should be sufficient to teach that Court process is not to be ignored or rebuffed with willful blindness, but not so heavy as to be ruinous. In addition to whatever costs have already been earlier awarded, this Court adjudges that the respondents shall jointly and severally pay to the applicants the costs of this litigation which are fixed in the amount of $800. º º , plus necessary disbursements, payable forthwith.
Ottawa, Ontario, April 11, 2001
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1041-99
STYLE OF CAUSE: The Chief and Council of the Sandy Bay Ojibway First Nation Band and others v Diana Beaulieu and others
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 18, 2000
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MULDOON
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