Cardinal v. Sucker Creek Indian Band No. 150a, docket T-2195-98

Date: 19991108

Docket: T-2195-98

BETWEEN:

     CHIEF ALVIN CARDINAL

                                     Applicant

     - and -

     NORMAN CALLIOU, JOHN WILLIER, RODERICK WILLIER

     RONALD WILLIER, and RUSSELL WILLIER

     PURPORTING TO ACT AS THE COUNCIL OF

     THE SUCKER CREEK INDIAN BAND NO. 150A

                                     Respondents

     REASONS FOR ORDER

GIBSON J.:

[1]      These reasons arise out of a hearing on a show cause order, issued by the Court on the 20^th of July, 1999, requiring the respondents and Raymond Willier to show cause why they should not be held in contempt of court for failing to recognize and abide by the order of Mr. Justice Rouleau in this matter dated the 12^th of July, 1999. Justice Rouleau concluded at paragraphs 19 of reasons in support of his order:

...Chief Alvin Cardinal, has been and remains, the Chief of the Sucker Creek First Nation at all times since his election on November 28, 1997.

[2]      The background to the order of Mr. Justice Rouleau may be briefly summarized as follows. Alvin Cardinal was elected Chief of the Sucker Creek First Nation, Band No. 150A on the 28^th of November, 1997. As a result of differences that occurred between the respondents, on the one hand, all councillors of the Band and Chief Alvin Cardinal on the other, the council passed a resolution on the 11^th of November, 1998, removing Chief Alvin Cardinal from office. It was then determined that a by-election was required and, by resolution dated the 16^th of November, 1998, Allen Willier was appointed as Electoral Officer, for the purpose of the by-election. Allen Willier, in his capacity as Electoral Officer wrote the applicant advising him that if he intended to appeal the resolution of the 11^th of November, 1998, he was required to do so no later than the 24^th of November, 1998. No appeal was filed pursuant to the Customary Election Regulations¹; rather, the applicant sought judicial review of the resolution of the 11^th of November, 1998 in this Court. That application for judicial review resulted in the order of Mr. Justice Rouleau.

[3]      Very shortly after the issuance of Mr. Justice Rouleau"s order, Chief Alvin Cardinal sought an order pursuant to Rule 467 at seq. of the Federal Court Rules, 1998² requiring the respondents and Raymond Willier, the alleged successor Chief to Chief Alvin Cardinal elected in the by-election following the events of November, 1998, to show cause why they should not be held in contempt of Court for failing to recognize and abide by the order of Mr. Justice Rouleau. The allegations of contempt made by Chief Alvin Cardinal were to the effect that, despite the order of Mr. Justice Rouleau, Raymond Willier continued to hold himself out as Chief of the Sucker Creek Indian Band and that he and the respondents did not "recognize" the order of Mr. Justice Rouleau. Further, Chief Alvin Cardinal attested that he was prevented by the actions of Raymond Willier and the respondents from performing his duties as Chief of the Sucker Creek Indian Band. Chief Alvin Cardinal"s allegations were supported by affidavit evidence from other members of the Band. In the result, a "show cause" order was issued.

[4]      Before me, counsel for Raymond Willier and the respondents urged that his clients simply could not be found to be in contempt of the order of Mr. Justice Rouleau because that order was declaratory in nature and did nothing more than simply state the existing legal position of the parties to the litigation and Raymond Willier without imposing any specific obligations on the respondents and Raymond Willier. In support of this position, counsel cited Canadian Union of Public Employees, Local 4004 v. Air Canada³. In that decision, Mr. Justice Joyal wrote at paragraphs 29 to 31:

...If the purpose of contempt proceedings is to enforce compliance with an order or decision, there must be something to enforce. It is now well established that this Court will refuse to enforce a judgment which is purely declaratory. (See Syndicat des Postiers du Canada c. Société canadienne des postes (1987), 16 F.T.R. 4; Letter Carriers Union of Canada v. Canada Post Corporation (1986), 8 F.T.R. 93; C.A.L.P.A. v. Canadian Airlines International (1989), 27 F.T.R. 61).

On the face of the arbitral award at issue, it appears to be a pronouncement which simply declares what the agreement is. Addy J., in Letter Carriers Union of Canada (supra), dealt with an arbitral award in response to the following question being put to the arbitrator; Does management at Canada Post Corporation have the right to order a letter carrier out for p.m. portion of his walk, if that letter carrier still has some mail to process at the postal station? In dismissing a show cause application, Addy J. commented that "the very fundamental question is whether the award, having regard to its very nature and substance, was actually capable of supporting any contempt of court proceedings". He then went on to quote from Wade"s Administrative Law, Oxford: Clarendon Press, 1977, p. 500, as follows:

...A declaratory judgment by itself merely states some existing legal situation. It requires no one to do anything and to disregard it will not be contempt of court. But by enabling a party to discover what his legal position is it opens the way to the use of other remedies for giving effect to it.

In a similar vein, Rouleau J., in Syndicat des Postiers, supra, at pp. 9-10, observes as follows:

The arbitrator ruled on events between January and June 1985, without specifying action to correct the violations alleged. He found that the respondent had not complied with the collective agreement at that time but he did not order corrective action that could be given effect. In my opinion, an order which only sets forth a general line of conduct is not sufficient.

The order must compel the person in question to perform actions or impose a specific constraint on him. General statements, as in the case at bar, are therefore to be regarded as more declaratory than enforceable; and a declaratory arbitral award is not capable of enforcement... .

[5]      Counsel for Chief Alvin Cardinal urged that the C.U.P.E. decision, and authorities cited by Mr. Justice Joyal in that decision, were distinguishable in that they dealt with declarations regarding arbitral awards that had been made orders of this Court and not, as here, with an order declaring the status as Chief of a particular individual. I cannot conclude that the C.U.P.E. decision and other decisions relied on therein are distinguishable. By reference to the passage from Wade"s Administrative Law cited in the foregoing quotation, Mr. Justice Rouleau"s decision here at issue was a "...declaratory judgment by itself merely [stating] some existing legal situation. It requires no one to do anything...". By reference to the words of Mr. Justice Rouleau in Syndicat des Postiers , which were relied upon by Mr. Justice Joyal, Mr. Justice Rouleau"s decision ruled on a state of affairs "...without specifying action to correct..." the situation resulting from the events of November, 1998 and the ensuing by-election. Mr. Justice Rouleau "...did not order corrective action that could be given effect", nor did his order compel the respondents and Raymond Willier to perform actions or impose on them a specific constraint. It was, in the words from Syndicat des Postiers , a general statement to be regarded as "...more declaratory then enforceable".

[6]      In the result, after hearing counsel at the show cause hearing in this matter, and without hearing viva voce evidence as to the alleged contempt and in response to the allegations of contempt, I issued an order in the following form:

The respondents and Raymond Willier are released from the requirement that they show cause as herein recited, [why they should not be held in contempt of Court for failing to recognize and abide by the Order of Mr. Justice Rouleau in this matter dated the 12th of July, 1999] and the Court"s Order of the 20th of July, 1999 [the "show cause" Order] is discharged.

The respondents and Raymond Willier are entitled to their costs against the applicant related to the show cause hearing and the preparations therefor, and of related motions disposed of by Order of the Court herein dated the 22nd of September, 1999, such costs to be calculated in accordance with Tariff B at the mid-range of Column V.

                         ___________________

    

                         Judge

Ottawa, Ontario

November 8, 1999

__________________

¹      Approved by Ministerial Order on 28 January, 1997.

²      SOR/98-106.

³      [1998] F.C.J. No. 1716 (Q.L.), (F.C.T.D.).