Dockets: T-922-20
T-98-22
T-1564-22
Citation: 2023 FC 739
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 25, 2023
PRESENT: The Associate Chief Justice Gagné
Docket: T-922-20
|
BETWEEN:
|
STEPHAN LANDRY, NATHALIE GROLEAU,
KEVIN GAILLARDETZ-LANDRY,
PIERRE-OLIVIER LANDRY-BERTHIAUME,
SARAH LANDRY, JEAN LANDRY,
DAREN LANDRY-GAGNON, SHAREEN LANDRY,
DANNY LANDRY, LOUISE SAVARD, DENIS LANDRY,
NATHALIE BERNARD, NORMAND CORRIVEAU, NORMAND JUNIOR BERNARD CORRIVEAU,
PASCAL BERNARD CORRIVEAU,
ANDRÉ MONTPLAISIR, DANIEL LANDRY,
DANIEL ROCHELEAU AND EMMANUEL CLOUTIER
|
Applicants
|
and
|
MICHEL R. BERNARD, RENÉ MILETTE,
LUCIEN MILETTE, CHRISTIAN TROTTIER, acting as Chief and Councillors of the ABÉNAKIS OF WÔLINAK BAND COUNCIL
|
Respondents
|
Docket: T-98-22
|
BETWEEN:
|
LYNDA LANDRY, STEPHAN LANDRY AND DENIS LANDRY
|
Applicants
|
and
|
MICHEL R. BERNARD, CHRISTIAN TROTTIER, MARTINE BERGERON MILETTE, DANIEL LANDRY, KAROLANE LANDRY-MENSAH, in their respective capacities as elected Chief and councillors of the Abénakis of Wôlinak Band Council during the elections held on August 29, 2021
and
MICHEL R. BERNARD, RENÉ MILETTE, LUCIEN MILETTE AND CHRISTIAN TROTTIER, in their personal capacities
|
Respondents
|
Docket: T-1564-22
|
BETWEEN:
|
MICHEL R. BERNARD
|
Applicant
|
and
|
STÉPHAN LANDRY,
MARTINE BERGERON-MILETTE,
MANON BERNARD AND
KAROLANE LANDRY-MENSAH
|
Respondents
|
ORDER AND REASONS
I. Overview
[1] The Court has before it a motion to have Sébastien Chartrand and the firm of Larochelle Avocats disqualified from continuing to represent Michel R. Bernard in three of the four dockets consolidated by the Court for management and hearing purposes.
[2] This motion is part of a long, costly and incredibly sad dispute that has been dividing the Abénakis of Wôlinak Frist Nation. In order to fully understand the nature of the proceedings that have pitted the parties against each other for many years, a look back at the history of proceedings that dates back to the Superior Court of Quebec’s decision in Landry c Procureur général du Canada (Registraire du registre des Indiens), 2017 QCCS 433 [Landry QCCS] is in order.
[3] This history helps us understand that the only issue at the heart of all the proceedings instituted by one side or the other is control of the Band Council and, by the same token, control of the First Nation’s destiny, as well as control of its assets and choice of investments. It also makes it clear that it would be unfair and prejudicial, at this stage of the debate, to deprive either party of its choice of counsel.
II. Procedural history
A. Decisions prior to the proceedings currently before the Court
[4] In January 2011, the Registrar of the Indian Register [Registrar and Register respectively] struck from the Register, on the initiative of members of the extended Bernard family, the names of some one hundred people belonging to the extended Landry family (the Court uses this term to illustrate that two distinct clans exist within the Abénakis of Wôlinak First Nation, although within the same clan the individuals are not all related by blood, and have diametrically opposed positions and interests).
[5] The Registrar is of the opinion (i) that the common ancestor of the Landry clan, a man referred to as Joseph Landry, lost his Indian status after the death of his first Abénaki wife and his remarriage to a non-Indigenous person, and (ii) that the children of Antonio Landry (a non-Indigenous person, son of Joseph and his second wife) and Clothilde Metzalabanlette inherited only non-transmissible Indian status, under the law in effect at the time, made possible by the fact that only their mother was Indigenous. It goes without saying that Joseph’s status at the time of Antonio’s birth has an impact on the latter’s status, and that if the Registrar erred in concluding that Joseph lost his status at the time of his first wife’s death, he most likely erred in concluding that Antonio’s children, who would then have Indian status, would only be entitled to non-transmissible status in subsequent generations.
[6] In a judgment rendered in February 2017 in Landry QCCS, Justice Chantal Masse of the Quebec Superior Court allowed the appeal against the Registrar’s decision. After a rigorous exercise of interpreting the various statutes that have applied to First Nations since the 19th century (including the 1951 version of the Indian Act, establishing the Register, and its 1985 version), the judge concluded that Joseph Landry was an Indian member of the Abénakis of Wôlinak First Nation, regardless of his marriage to his second wife, and that Antonio’s status as an Indian born to an Indian father gave the applicants the legal right to be registered in the Indian Register. She overturned the Registrar’s decision and ordered him to reinstate the Landry family members in the Register. That decision was appealed, but the appeal was eventually abandoned.
[7] It should be understood at this point that the Landry QCCS decision tilted the balance of power slightly in Landry’s favour.
[8] However, between the Registrar’s decision and that of the Quebec Superior Court, the Band Council, the Chief of which is Michel R. Bernard, adopted a series of resolutions aimed at amending the Membership Code of the Council of the Abénakis of Wôlinak and removing non-registered members from the First Nation’s membership list and voters list.
[9] In April 2017, Stéphane Landry (the Court will use this spelling, although the parties sometimes use Stephan instead) and seven other members of the Landry family therefore filed an application for judicial review against the Band Council, its Chief Michel R Bernard, and two of its four councillors, René Milette and Lucien Milette, concerning decisions made to their detriment (T-502-17). However, that application ended in a consent judgment (see the decision on costs, reported in Landry v Council of the Abénakis of Wôlinak, 2018 FC 1270). The applicants were represented by Paul-Yvan Martin and the respondents were represented by Sébastien Chartrand.
[10] In May 2018, the same applicants, to whom an eighth member of the Landry family was added, filed a new application for judicial review against the same respondents, which essentially targeted the same Council resolutions (T-990-18). This new application was, however, accompanied by a motion for an interim injunction to prevent the holding of the election scheduled for June 10, 2018. This motion was granted by Justice William Pentney and the holding of the election was suspended until the Court decided the underlying judicial review application (Landry v Abénaki Council of Wôlinak, 2018 FC 601). Again, the applicants were represented by Mr. Martin, and the respondents were represented by Mr. Chartrand.
[11] On December 4, 2018, I granted the application for judicial review, set aside a series of resolutions including those to amend the Membership Code and to strike the applicants’ names from the membership list and the voters list, and set aside the election of the Band Registrar. The Court finally ordered that the applicants be reinstated on the First Nation’s membership list (Landry v Council of the Abénakis of Wôlinak, 2018 FC 1211). A notice of appeal was filed by the Band Council, followed by a discontinuance.
[12] In July 2019, the same nine members of the Landry family filed a new application for judicial review against the Band Council, Chief Michel R. Bernard, and the same two councillors. The application sought a declaration that associate members of the Band were legally entitled to vote in elections to fill the positions of Chief and councillors (T-1139-19). The applicants alleged that the provisions of the 1987 Membership Code—recall that its subsequent amendment was declared invalid by the Court in December 2018—which provide that associate members are not entitled to vote, were illegal and discriminatory; an associate member is defined therein as the non-Indigenous spouse of an ordinary member or the non-Indigenous child legally adopted by an ordinary member. The applicants were represented by Mr. Martin and the respondents were represented by Mr. Chartrand.
[13] At the same time as the Landrys were undertaking this latest proceeding, the Council of the Abénakis of Wôlinak filed an application for judicial review against the newly-elected Registrar of the Abénakis of Wôlinak First Nation, Lynda Landry (T-1227-19). That application sought to compel the Registrar to provide the Electoral Officer with an up-to-date and compliant list of Band Members, i.e. a list containing, among other things, information enabling her to identify associate members in order to exclude them from the electoral process.
[14] Since those last two applications dealt with the same issue—that is, the voting rights of associate members—I consolidated and heard them together in June 2020.
[15] The Court opens a parenthesis here to clarify that although the suspension of the election pronounced by Justice Pentney ended in December 2018, no election was held until August 29, 2021. I will come back to that later.
[16] In August 2020, while the Court was deliberating, Stéphane Landry and 18 other applicants filed a new application for judicial review against Michel R. Bernard, René Milette, Lucien Milette and Christian Trottier, in their capacities as Chief and councillors of the Council of the Abénakis of Wôlinak (T-922-20), accompanied by an application for an interlocutory injunction. Since the application for judicial review was still pending before the Court, it will be dealt with in the following section. However, the Court did decide the interlocutory injunction application. It sought a declaration that the respondents were improperly occupying their office, an order that elections be held as soon as possible, and the appointment of a judicial receiver to see to the administration of the First Nation until a new, validly constituted Council took office. The applicants also requested that any contracts entered into with third parties since June 10, 2018, be declared null and void, and that all work undertaken for the purpose of conducting certain projects be ordered to stop; in this case, they were referring to the construction of a casino, a greenhouse for the cultivation of cannabis, a boxing arena and a new garage [the Disputed Investments]. By unreported order dated September 15, 2020, Justice Pentney dismissed the interlocutory injunction application [Pentney Judgment].
[17] On October 1, 2020, I delivered a judgment in favour of the Band Council in dockets T-1139-19 and T-1227-19, and confirmed that associate members were not entitled to vote in the elections to fill the positions of Chief and councillors of the Council of the Abénakis of Wôlinak (Landry v Abénakis of Wôlinak First Nation, 2020 FC 945) [Gagné Judgment].
[18] The Pentney and Gagné judgments were appealed and consolidated by the Federal Court of Appeal for hearing. In a judgment issued on October 6, 2021, the Court dismissed both appeals and confirmed (i) that it was not in the interests of justice to grant the motion for an injunction and (ii) that the 1987 Membership Code took precedence over the Election Code and over the custom alleged by the Appellants, and that it did not violate section 15 of the Charter. The Electoral Officer could thus exclude associate members from the electoral process (Landry c Première Nation des Abénakis de Wôlinak, 2021 FCA 197) [Landry FCA]. Once again, Mr. Martin represented the Appellants (the Landry family) and Mr. Chartrand represented the Respondents (the Band Council, its Chief Michel R. Bernard and councillors René Milette, Lucien Milette and Christian Trottier).
[19] It should now be understood that the decision in Landry FCA slightly changed the direction of the wind and appeared to give an advantage to the Bernard clan.
B. Dockets currently before the Court
[20] We return to docket T-922-20, filed in August 2020 and recall that this is the docket by which Stéphane Landry and 18 other applicants sought to have the Court declare that Michel R. Bernard, René Milette, Lucien Milette and Christian Trottier, had usurped the offices of Chief and councillors of the Band since June 10, 2018, and to cancel the Disputed Investments.
[21] Elections were finally held on August 29, 2021. Michel R. Bernard and Christian Trottier were re-elected. However, Daniel Landry, Martine Bergeron-Milette and Karolane Landry-Mensah were newly elected as councillors and completed the Band Council. From the incidents that followed those elections, we understand that the Bernard clan maintained control of the Band Council.
[22] In January 2022, three months after the Landry FCA decision, Lynda Landry, Stéphane Landry and Denis Landry filed a new application for judicial review against the members of the Appeal Committee appointed for the general election of August 29, 2021, against the members of the Band Council elected during that election, in their capacities as Chief and councillors, and against Michel R. Bernard, René Milette, Lucien Milette and Christian Trottier personally (T-98-22). The applicants, in this case the Registrar and two defeated candidates, were represented by Mr. Martin and all of the respondents were represented by Mr. Chartrand. The application sought to set aside the decision of the Appeal Committee rejecting the Registrar’s appeal and validating the election outcome, and to order a new election in compliance with the Band’s Electoral Code.
[23] In February 2022, I ordered that dockets T-922-20 and T-98-22 be consolidated and managed jointly. The Court also followed up on the parties’ expressed willingness to attempt mediation, and a session was set for March 9, 2022, before Justice Sébastien Grammond. This was the first time the parties had failed to reach an agreement.
[24] At a case management conference held on May 6, 2022, the Court authorized the applicants to amend their application for judicial review in anticipation of the by-election to be held on June 12, 2022, to fill the positions of 3 Council members; the applicants filed their amended application for judicial review on May 13, 2022, alleging that the coming election would be invalid regardless of the outcome, and asking that the outcome be set aside.
[25] Contrary to all expectations, Applicant Stéphane Landry was elected as a councillor to replace Christian Trottier. The Court understands from the following that this was sufficient to give control of the Band Council to the Landry clan, despite the fact that Michel R. Bernard was still Chief.
[26] In July 2022, Michel R. Bernard filed an application for judicial review against Stéphane Landry, Martine Bergeron-Milette, Manon Bernard and Karolane Landry-Mensah, which sought to have the Court set aside the Council ’s resolution withdrawing Mr. Chartrand’s mandate to represent the Council , as well as the resolution suspending the work of the Appeal Committee appointed for the June 12, 2022, election (T-1564-22). Mr. Chartrand represented the Applicant, while a new player, Robillard Avocats Inc., appeared on behalf of all of the respondents with the exception of Stéphane Landry, who had yet to appear. This docket was consolidated with the other two.
[27] By letter dated August 15, 2022, Mr. Martin sought the Court’s leave to further amend the application for judicial review in docket T-98-22, in order to name the Band Council as Respondent instead of its members at the time, to set aside the decision of the Appeal Committee in connection with the elections of August 29, 2022 (confirming the re-election of Michel R. Bernard) and to declare the election of June 12, 2022, valid. By order dated August 18, 2022, the Court granted the respondents until August 26, 2022, to take a position on this new application for amendment, which the Respondent Michel R. Bernard did by categorically objecting to it. Also on August 18, the Court agreed to adjourn the hearing of the judicial review applications scheduled for September 7 and 8, 2022, to allow the parties to explore various out-of-court settlement options.
[28] It should be noted that on August 30, 2022, while the Court had still not authorized the second amendment in docket T-98-22, Robillard Avocats appeared on behalf of the Band Council—which was not a named party to the proceedings.
[29] At a case management conference held on September 7, 2022, Marie Christine Lebœuf, of the firm Robillard Avocats, notified the Court of her intention to bring a motion in the three dockets previously discussed, in order to have Mr. Chartrand disqualified from acting on behalf of Michel R. Bernard (note that she did not represent any of the parties in docket T-922-20). The motion, now before the Court, was filed on September 29, 2022.
[30] On September 21, 2022, the Band Council, Martine Bergeron-Milette, Manon Bernard and Karolane Landry-Mensah filed a fourth application for judicial review against Marie-Denise Giguère, Manon-Lyne Trottier, Nelson Lefebvre, Christian Trottier and Stéphanie Bernard (the first three being members of the Appeal Committee for the June 12, 2022, election, while the other two were defeated candidates), seeking the annulment of the resolution appointing the Appeal Committee for the June 12, 2022, election and ordering the suspension of its work (T-1926-22). The applicants were represented by Robillard Avocats, and only respondents Christian Trottier and Stéphanie Bernard appeared in person; the others have yet to appear.
[31] Unfortunately, this is only a small part of the numerous disputes that have pitted (and continue to pit) the two clans against each other before this Court and before the Superior Court of Quebec; the rest is not necessary to dispose of the motion before the Court.
[32] Following the filing of the motion for a declaration of disqualification, the parties agreed to make a new attempt at mediation before Justice Grammond before the Court could dispose of the matter. The parties participated in three mediation sessions between October 2022 and April 2023, which were once again unsuccessful.
III. Analysis
[33] A first note should be made regarding the motion for a declaration of disqualification filed in dockets T-922-20, T-98-22 and T-1564-22; it was brought by Robillard Avocats on behalf of the [translation] “Applicants”. The Applicants in these three dockets were represented in some cases by Mr. Martin and in others by Mr. Chartrand. Robillard Avocats was not involved in docket T-922-20, while its appearance on behalf of the Band Council in docket T-98-22 was of dubious validity, since the second amendment proposed by the Landrys has not been authorized by the Court, and the Band Council was not named as a party—much less the Band Council in its current composition. I therefore conclude that this motion has been brought on behalf of three of the five current members of the Council of the Abénakis of Wôlinak, namely Martine Bergeron-Milette, Manon Bernard and Karolane Landry-Mensah [the Moving Parties].
[34] This being said, the motion for a declaration of disqualification is supported by the Code of Professional Conduct of Lawyers, CQLR, B-1, r 3.1, which stipulates in section 71 that “[a] lawyer must avoid any situation of conflict of interest”
. The notion of conflict of interest is defined as follows in section 72:
There is a conflict of interest when there is a substantial risk that the lawyer’s own interests or his duties to another client, a former client, or another person would adversely interfere with his duties to the client and, in particular:
1. when he acts for clients with conflicting interests; or
2. when he acts for clients whose interests are such that he might tend to favour certain among them or that his judgment and loyalty may be unfavourably affected.
When the lawyer engages in his professional activities within a firm, conflict of interest situations must be assessed with regard to all the firm’s clients.
[35] Section 87 of the Code of Professional Conduct of Lawyers deals with the protection of the interests of a lawyer’s former clients:
A lawyer must not act against a former client in the same matter, in a related matter or in any other matter if, when acting for the former client, the lawyer obtained confidential information that may result in prejudice to that client or if knowledge of personal facts regarding the former client or the conduct of his affairs would provide the new client with an undue advantage, unless the lawyer obtains the consent of his former client.
[36] Relying on the Quebec Court of Appeal’s decision in Heafey v Dormani, 2018 QCCA 421, the Moving Parties argue, moreover, that the legal right to be represented by the counsel of one’s choice must give way if keeping counsel in place has the effect of tarnishing the integrity and image of the justice system. Not only must any situation of conflict of interest be avoided, but any appearance of conflict of interest as well (Heafey, at para 35).
[37] The fundamental argument is that Mr. Chartrand represented the Band Council at a time when it was controlled by the Bernard clan, and that he can no longer represent the Bernard clan now that the Council is controlled by the Landry clan. As the history of the proceedings instituted by either side over many years illustrates, the Band Council has always been divided. None of the counsel represented the Council as a whole or a unanimous Council; only its majority members. This is also true of Robillard Avocats, which claims to represent the interests of the Council when in fact it only represents the interests of three of its councillors against its Chief. Martine Bergeron-Milette and Karolane Landry-Mensah have been on the Council since August 29, 2021, while Manon Bernard has only been on it since June 12, 2022. The conflict lies, according to the Moving Parties, in the fact that in docket T-98-22, Mr. Chartrand appeared on behalf of the Council on August 19, 2021 (as it was then composed) and that he represented Michel R. Bernard in docket T-1564-22 against the current members of the Council. However, at the time of Mr. Chartrand’s appearance in docket T-98-22, none of the Moving Parties were sitting on the Council, while the councillors currently sitting on the Council, the Moving Parties, and Stéphane Landry, have never been represented by Mr. Chartrand. It is in this context that the Moving Parties are asking the Court, in a very vague way, to infer from this that Mr. Chartrand necessarily benefited from confidential information. However, the Moving Parties do not state that they communicated any confidential information to Mr. Chartrand.
[38] The Moving Parties add that Mr. Chartrand, who until recently represented the Council, [translation] “inevitably witnessed the differences of opinion that divided (and still divide) the Council”
. This is true enough. But would it also not be true for Mr. Martin, who has represented this differing opinion for many years? Firstly, the deliberations of the Council and its members, and the resolutions passed by them, are a matter of public record. Moreover, both clans had equal access to information emanating from the Band Council that was not in the public domain. The information belonged to the Council and its members, including those of the opposing clan. It should be remembered that, at all relevant times, and right up to the present day, Michel R. Bernard was Chief of the Council of the Abénakis of Wôlinak, and in this capacity, he and his counsel had access to information concerning the Band Council.
[39] In this context, the Court is of the view that the Moving Parties have not realistically demonstrated a possibility that relevant confidential information was obtained by Mr. Chartrand.
[40] Moreover, Robillard Avocats, which claims to represent the interests of the Council, will be accountable to all of its members, including Michel R. Bernard. According to the Moving Parties’ logic, their counsel are therefore equally likely to place themselves in a conflict of interest situation.
[41] Apart from the fact that this position is untenable, depriving one of the parties of the counsel who has represented it for many years is, in the Court’s view, unjust and contrary to the interests of justice.
[42] One need only look at the Landry clan’s about-face after taking control of the Council to be convinced of this.
[43] Barely a month before the June 12, 2022, election, Linda Landry, Stéphane Landry and Denis Landry amended their application for judicial review in docket T-98-22, with the Court’s leave, to request the annulment of the election, regardless of its outcome, the argument being that a flawed election process can only lead to an invalid election outcome. But a month later, not only was Stéphane Landry elected as councillor, but his clan took control of the Council for the first time in many years.
[44] With their second application for amendment, which has not been authorized by the Court, Linda Landry, Stéphane Landry, and Denis Landry are attempting to turn back the clock in order to conserve the outcome of the June 12, 2022, election, or at least the part that favours them. They are attempting to substitute the Band Council for its five members at the time (including the Moving Parties Martine Bergeron-Milette and Karolane Landry-Mensah, who were in the minority at the time), in order to contest the August 29, 2021, election only with regard to Michel R. Bernard. In other words, Michel R. Bernard would no longer be a party to this litigation, the new objective of which would be solely to annul his election as Band Chief. This is also an untenable position for the applicants in docket T-98-22. And with all due respect to the current members of the Council, if the outcome of an election is invalid because of a flawed electoral process (the voters list was inaccurate or incomplete, for example), it is invalid for all elected members.
[45] This, moreover, is what the hearing on the merits of these applications for judicial review will determine.
IV. Conclusion
[46] For these reasons, the Court is of the view that the Moving Parties have not demonstrated that Sébastien Chartrand or any other member of the firm Larochelle Avocats placed themselves in a position of conflict of interest or obtained any confidential information from former client(s). The Court is also of the view that forcing one of the parties to appoint new counsel, at this stage of the process, would be likely to cause it undue prejudice and injustice, which would be contrary to the interests of justice.
[47] In the exercise of its discretion, the Court finds it just to order the Moving Parties to pay the costs of Michel R. Bernard and sets those costs at $1,000.00.
Email this Content