Supreme Court

North Slave Metis Alliance v. Paul et al, 2003 NWTSC 17
Date: 20030401
Docket: S-000l-CV-2003000078

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


NORTH SLAVE METIS ALLIANCE

     Plaintiff


- vs. -


CLEM PAUL, KATHY PAUL-DROVER, DARLENE KOYCZAN, LEE MANDEVILLE, ERNIE CAMSELL, LEROY BLOOMSTRAND, BERNIE MANDEVILLE, DAVE WILLIAMS AND ROYAL CANADIAN LEGION, LOCAL 164

     Defendants


Date: 20030401
Docket: S-0001-CV-2003000113

THE GENERAL BODY OF THE MEMBERSHIP OF THE NORTH SLAVE
METIS ALLIANCE and CLEM PAUL

    Applicants


- and -


NORTH SLAVE METIS ALLIANCE, IRENE LEMOUEL,
CHANTELLE BURKE, EDDIE MERCREDI and ROBERT TURNER

    Respondents


Transcript of the Oral Reasons for Judgment by The Honourable Justice J.P. Foisy, at Yellowknife, in the Northwest Territories, on March 14th, A.D. 2003.


APPEARANCES:

Mr. A. Marshall:  Counsel for the Plaintiff/Respondents

Mr. R. Payne:   Counsel for the Defendants/Applicants


THE COURT:   Thank you both. Indeed, you know, for the Alliance, this is a sad situation, because it basically, if it is allowed to continue, is going to be the basis of the destruction of the Alliance, and that is not to the benefit of the Metis people, which the society is supposed to serve.

Speaking as a Judge, it would be an interesting case to reserve and maybe six months or a year from now come down with a very learned judgment on the points which have been made by both counsel here. I am not going to do that, because I don't want to contribute to the mischief -- by mischief I mean the damage which has already been caused by the sad history here. So while what I have to say, I think, in the end result will be clear, it's not going to be a beautiful judgment.

I also have some hesitation in deciding the case, because all the evidence is affidavit evidence, and a lot of the affidavit evidence is conflicting. Generally, a Judge would want to hear oral evidence so that matters of credibility can be decided before making a decision of this importance. Nonetheless, having read all the material, I think that the main history of what has occurred here is sufficiently clear to allow me to make a decision today.

I will deal firstly with the point made by Mr. Payne, that somehow the procedures set forth in the Business Corporations Act should be made to apply to

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this situation. At the end of the day, while it may well be obiter, because the resolution which I have arrived at may not necessitate the comments that I am going to make about section 4(2) of the Societies Act and the application of the Business Corporations Act, it seems to me that that section, section 4(2), was not meant to allow the Business Corporations Act to supercede the procedures set forth in the Societies Act and the procedures set forth by by-laws which are properly passed under that act.

Generally speaking, it seems to me that that section is there to guarantee a certain autonomy, a certain power to a society which is described and guaranteed under the Business Corporations Act. I don't see it as going any further than that. However, whatever remedies may exist, if the board had refused to act under the by-laws or had acted wrongfully under the by-laws, then, undoubtedly, the Court would have some curative powers, be they statutory or common law, to remedy the situation.

I do not read in this case and I do not conclude that the board has acted in a manner which is contrary to the by-laws at least to the point where its decisions are of no effect. Quite to the contrary, I have come to the conclusion that for whatever reason the dissident group, and I use that phrase with some caution, that held the March 1st meeting, in my view,

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resulted in a nullity. The meeting is of no force and effect. Nonetheless, it has had the effect indirectly, if certainly not legally, of bringing the matter forward so that there can be an election, and the sooner the better.

In the meantime, in my view, the board here remains properly constituted. If I had to go further, I would say, in any event, that I would order that the board continue to manage the affairs of the Alliance on an interim basis. The board which is now in place would continue to be in place until the election, which has been called, is held.

It is my hope that a democratic election will help solve the problems that this Alliance has encountered and that some resolution can be made so that the Alliance can move forward together as a united society. I know these are nice words and that in real life things often don't go that way, but I certainly hope that once there is an election, that these matters can be put behind the Alliance, because there are important things that the Alliance is doing for the betterment of the Metis people and its members, and that is what the society is all about. It's not to destroy, it's not to hurt, it's not to damage, but to help.

So, having said that, what I would like to do now is discuss with counsel a time limit within which the

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election, which has already been called, will be held. So did you want to take, perhaps, 15 minutes and discuss this with your respective clients and see if you can come up with something that I can endorse? And, if not, well then you're going to have to accept time limits from the Bench.

MR. PAYNE:   Yes, Your Honour.

THE COURT:   We will take a 15-minute break.

(ADJOURNMENT)

THE COURT:   Gentlemen.

MR. PAYNE:   Regrettably, Your Honour, and

perhaps predictably, we have not been able to agree on dates. My Friend and I differ by approximately a month or two months on dates. I will go through mine, perhaps, first.

THE COURT:   Okay. Go ahead.

MR. PAYNE:   The proposal of my client, sir, is that the standard in the by-laws for calling a General Assembly is 10 days' notice. They're suggesting that a notice can be sent out by the board this afternoon and that we have a meeting of the general -- for a General Assembly on Tuesday, March 25th; that the report of Mr. Leratta (ph) which he says he expects to have finished by the 24th, but which he says is already done in draft and says that he will have finished next week, we're of the view that if he can have it done by the 24th, he can probably have it done by next Wednesday, March

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19th, if it's already in draft form. So we would like to see the draft-- or the final report by March 19th; thereafter, the general assembly on the 25th, the advanced polls on March 29th, that's Saturday, March 29, and then the election for Saturday, April 5th, 2003.

We would also like to see -- if the draft is already available, we would like to have that draft produced --

THE COURT:   I'm sorry. That was April 5th?

MR. PAYNE:   Yes. I'm sorry, Your Honour. Have the draft report produced to Mr. Paul today. The glitch between My Friend and I appears to be, again, related to this notion of the election, whether it needs to be duly called again or, because it's been called already, whether you need to wait another 45 days and give 45 days' notice.

My Friend's clients also want to, perhaps, poll for nominations for new candidates. The position of my clients is that the election has already been called and has been by resolution postponed. The slate of candidates has already been set and the election --everyone is notified that there's going to be an election. It's simply of a matter of now setting a date.

My client also says to me, for what it's worth, that Mr. Turner, who is his antagonist in these

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proceedings, is running as president, or running for president, and he would like to be able to run against him, and he doesn't want him to be able to at this point resile from the slate of nominations and perhaps not run after everything that's gone on. So those are the dates that my clients are suggesting, sir.

THE COURT:   Okay.

MR. MARSHALL:  I will give you the dates I'm suggesting and then I will explain it. An election on May 17th; and so what would happen in the meantime is this: The report will be available March 24th. The board is going to meet immediately to look at the report, and then it will go out, then, to the membership, and the Special General Assembly will be end of April. There will be 10 days' notice minimum about that, anyhow, but end of April, and then that will give people two weeks to think about how they're going to vote on May 17th.

Now, the board is proposing to not only give notice, and it's 45 days' notice under the by-law, but reopen nominations. And the board's view is that with everything that's happened, it's only fair to the membership that nominations be reopened. So if people want to run who didn't run before, they will have that opportunity.

THE COURT:   We don't need the 45 days, though. There's been an election called. It's been postponed.

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So we don't need to have another election called.

MR. MARSHALL:  Well, the --

THE COURT:   Or do we? I mean, I don't have the by-laws before me. I'm not -- if there's going to be a problem, I'm going to err on the side of caution, because I don't want this matter coming back.

MR. MARSHALL:  Right. Well, article 5(4), and it's in -- it's Exhibit A to Mr. Turner's affidavit, says:

Notice for election shall be advertised at least 45 days prior to the election date determined by the board of directors.

So if we're going to err on the side of caution, then as soon as a new date is set, it needs to have the 45 days' notice; and if you look at the history of this, that's what happened. That's how we got to March 22nd, the date that the Respondents proposed. That was triggered to be 45 days from that -- from those petitions that were dated February the 5th. So it seems as though the 45 days' notice has been accepted by people as appropriate, and it will give time to reopen the nominations.

THE COURT:   Well, if the notice was given soon, like, within the next day or two, what does that bring us to, the 45 days?

MR. MARSHALL:  And when we say next day or two, Wednesday's paper is the local paper.

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THE COURT:   Okay. Next Wednesday.

MR. MARSHALL:  So we can add 45 days to March 19th.

THE COURT:   That brings us into early May. Surely we can then set up the remaining steps within that time.

MR. MARSHALL:  If the Court sees it that way, I'm certain the board is going to do whatever is necessary --

THE COURT:   I suppose I'm trying to play Solomon here a little bit, but --

MR. MARSHALL:  I appreciate that.

THE COURT:   -- on the other hand, I -- Mr. Payne, I am not suggesting that what you have said is unreasonable. It's just that I want to be sure that it's --

MR. PAYNE:   Well, I disagree with My Friend's interpretation of the by-law, if I can, maybe, speak to that.

THE COURT:   Yes.

MR. PAYNE:   I think that -- it says:

Notice for election shall be advertised at least 45 days prior to the election date.

The election date was already called. The election date was called for February 8th, 2003. It was then postponed. The election date has been called. It's postponed. All that is needed to be done is a new date

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announced. Everyone is aware -- what is the intent of the by-laws? It's to allow everyone to know that there's an election pending. Everyone knows --

THE COURT:   Let me look at that. That's tab what?

MR. MARSHALL:  It's Exhibit A to Mr. Turner's affidavit.

THE COURT:   Exhibit A.

MR. PAYNE:   His first affidavit.

THE COURT:   I thought I had all this material nicely, neatly stacked so I would find it, but even Judges have trouble. Okay. Is that the affidavit dated the 11th of March or is that -

MR. MARSHALL:  It would be dated February 26th.

MR. PAYNE:   February 26th.

MR. MARSHALL:  Your Honour, I could pass mine up.

THE COURT:   Yes, would you. I'm having trouble finding it in this pile of material here.

MR. PAYNE:   The concern I have, Your Honour, it says:

Notice for election shall be advertised at least 45 days prior to the election date.

The election date was called for February 8th, and that was the date determined by the board of directors. This new date is not a date being determined by the board of directors. It's a date being determined by the Court, and we already know that the election date

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was February 8th; it's been postponed.

The intent of the by-law, surely, is that people have a reasonable amount of notice of an election so that they know an election is coming up, they consider whether they want to run, they can do all of those things, put their names forward. All of those things have been done. The election has been called. The date has been set. That was February 8th. Now it's simply postponed, and we just need to arrive at a new postponement date. Surely, to read 45 days into that, again, I think is stretching it, quite frankly, Your Honour.

THE COURT:   Well, you may be right, but there's something that Mr. Marshall said which I thought was reasonable under the circumstances, and that would be now that we're through what we have been through, that the nominations be reopened. People may want to run that have not declared their intention to run.

MR. PAYNE:   Well, I guess my response to that is the only reason that could be is because my client has had to wait and wait and wait and wait for things. So the only thing that's changed is delay. And so if the slate of candidates has already been set, nothing has changed, other than further delay. So, you know, there's a scrap, there's a dispute, there's no doubt it's come to a head, but the scrap and the dispute has been ongoing, Your Honour.

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THE COURT:   Yes, I know. I know. I just don't want to have this thing resurface again before the election.

MR. PAYNE:   Very well, Your Honour.

THE COURT:   Well, what I am going to do here is -- and basically you are a month apart, as far as I can see. Mr. Marshall wanted more time, but I'm going to whittle it down to 45 days from next Wednesday. So whatever they want to do, if they feel they have to give notice of another election, they can, but at least they are going to have to advertise the date of the election, and that is going to give people 45 days. The report will be out May the 24th. I have that evidence before me. I'm not going to go --

MR. PAYNE:   March, I believe, Your Honour.

THE COURT:   Or March the 24th. What did I say?

MR. PAYNE:   May.

THE COURT:   Oh, sorry. That's not going to help, is it. You know, do I really have to say that Mr. Paul gets to see it on the 25th or, you know, do I have to be that specific?

MR. PAYNE:   The draft? I would simply ask for -- if My Friend is prepared to give me an undertaking that I can see the draft today, I have no difficulty with that.

MR. MARSHALL:  No one --

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MR. PAYNE:   He might want to impose some undertaking on me, and thats fine.

MR. MARSHALL:  No one has seen it yet, Your Honour. That's an undertaking I can't give. What I will give is an undertaking that I will release it as soon as possible, because Mr. Leratta has got it, and I don't even have instructions from the board yet. The board knows that Mr. Leratta is going to share this with me, and they're going to let me and Mr. Leratta see this document right away, and then I need to get instructions about releasing it. Nobody else has seen it. So I couldn't give the undertaking to just turn it over at this point.

THE COURT:   Well, ASAP?

MR. MARSHALL:  Yes, that's fine.

THE COURT:   You can do that?

MR. MARSHALL:  Yes.

THE COURT:   What other steps here would be required?

MR. PAYNE:   If the election is May -- my rough estimate is May 3rd or thereabouts, Your Honour, that is the election date, then there would have to be advanced polls the week before that.

THE COURT:   The week before that. All right. Set that in your timetable. Anything else? If the board wants to -

MR. PAYNE:   Nominations --

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THE COURT:   -- reopen nominations within those time limits, I'm not going to extend this again, so this is it, that is up to the board. I mean, I can't tell the board what to do and what not to do, so long as what they do is in compliance with the authority they have under the by-laws. Anything else here? Any other dates that you want me to set?

MR. PAYNE:   The actual General Assembly itself for the membership should be a reasonable period of time after. If the report is to come in on the 24th of March, I would suggest that a period of time shortly after that the General Assembly will be able to meet.

MR. MARSHALL:  I had suggested a month for the members to see the report and come to a special General Assembly. As long as we have got the election date set, it would seem to me that everything else would fit in that. So the plan here would be to have the meeting so that there is two weeks between the time of the meeting and the election, and that gives lots of time to get the report out.

THE COURT:   Is that okay?

MR. PAYNE:   I have no difficulty with that.

THE COURT:   Okay. So it will be two weeks before the election, then. Anything else? Now is the time. I'm here.

MR. PAYNE:   That's, I think, it, Your Honour.

THE COURT:   That's it? Okay. Mr. Marshall?

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MR. MARSHALL:  That's everything, Your Honour.

THE COURT:   All right.

MR. PAYNE:   I suppose we could address costs. My submission on that, sir, is that this is almost like a familial dispute. It's almost like an estate matter or, perhaps, a business corporation dispute. It is a dispute under the Societies Act. I think that the appropriate course when members are fighting with each other and they're forced to come to court is that the company of which they are members pay or be responsible for all of the costs of the case.

MR. MARSHALL:  Well, costs should follow the event, Your Honour, if we had to decide it today. If you want to leave it to be spoken to, that would be fine, too, but if we were to make an order today, the order should be costs to follow the event.

MR. PAYNE:   On the event I think I have succeeded, as well, Your Honour.

THE COURT:   Well, that's the problem. I think both sides may have some reason to think that there's been some success.

I take it that this finalizes this particular portion of the litigation? In other words, your Statement of Claim now is -- that action is finished. Your Originating Notice, that's finished. So there's some finality here.

MR. PAYNE:   If My Friend will confirm the

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Statement of Claim is finished.

MR. MARSHALL:  Well, there is a damage claim in there, too. This is like the labour cases we see. The first step, the injunction, is often the critical stroke. But we can't say that it's over at this point, but it may very well be over. I just don't know right now.

THE COURT:   Well, I think what I will do is if this is not -- if there's some chance that it isn't over, I will simply order that costs be determined by whoever is going to end up finalizing this matter. Or, if counsel choose to terminate the proceedings and wish to bring the matter forward to Chambers to have a Chambers Judge or myself deal with costs, that is also an alternative. All right?

MR. PAYNE:   Very well. Thank you, Your Honour.

THE COURT:   Thank you both.

(AT WHICH TIME THE PROCEEDINGS CONCLUDED)


Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 of the Supreme Court Rules.

Jill MacDonald,
Court Reporter

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