Gauchier v. Cunningham, 2012 ABQB 513

Court of Queen ’ s Bench of Alberta Citation: Gauchier v. Cunningham, 2012 ABQB 513 Date: 20120810 Docket: 1103 12719; 1103 15013 Registry: Edmonton Between: Joseph Iner Gauchier Applicant - and - John Kenneth Cunningham, also known as Kenny Cunningham Jr. Respondent And between: Docket: 1103 15013 Joseph Iner Gauchier Applicant - and - Registrar, Metis Settlements Land Registry, Peavine Metis Settlement and Peavine Metis Settlement Council Respondent

Corrected judgment: A corrigendum was issued on August 13, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction [ 1 ] This is an application brought by the Respondents, Peavine Metis Settlement, Peavine Metis Settlement Council ( “ Peavine ” ); the Registrar, Metis Settlement Land Registry ( “ the Registrar ” ); and John Kenneth Cunningham ( “ Cunningham ” ), to strike certain portions of the Affidavit of the Applicant, Joseph Iner Gauchier ( “ Gauchier ” ), sworn September 21, 2011. [ 2 ] The Respondents seek an order striking portions of paragraphs 5, 8, 22, 23 and 31 of the Affidavit, and requiring Gauchier to file a fresh Affidavit that does not contain the impugned material.

They say that the impugned paragraphs are improper in that they contain legal argument and conclusions. [ 3 ] For the reasons which follow, the Application is allowed in part. Facts [ 4 ] The Applicant commenced this Action by way of Originating Applications filed August 9, 2011, and September 22, 2011, respectively. The August 9 th Application seeks an Order declaring Cunningham disqualified from continuing to serve as a Councillor on the Peavine Metis Settlement Council on the basis that his status as a member of the Peavine Metis Settlement has terminated.

The September 22 nd Application names the Registrar and Peavine and seeks an order in the nature of Mandamus to compel the Registrar to remove the names of 8 persons from the Settlement Membership List of Peavine so as to give effect to the judgment of the Supreme Court of Canada issued July 21, 2011, as well as to ss. 96(3), 75(1), and 90(2) of the Metis Settlement Act . [ 5 ] On September 21, 2011, Gauchier swore an affidavit in these proceedings. The Respondents, challenge the highlighted portions of the following paragraphs in that affidavit: 5. The MSA was proclaimed on November 1, 1990.

Accordingly, any Settlement Member who became voluntarily entered in the Indian Register on or after November 1, 1990, would be subject to the provisions of the MSA pertaining to automatic termination (s. 90 MSA). Becoming registered as an Indian entitles the registrant to services and benefits which are not available to non-registered Indians or to Metis who are not registered or who do not qualify for registration under the Indian Act (Canada) . 8 . The termination of Settlement Membership under

section 90 is automatic as of the date the individual is registered into the

Indian Registry. 22. By rights, the effect of the Supreme Court of Canada ’ s Judgment should have been to place the parties back in the position they were in immediately after the Judgment of Madam Justice D. Shelley. At that time, the 8 persons had been removed as a member of the Peavine Metis Settlement pursuant to the 2001 Order. However, the said 8 persons continue to act and be treated by the Settlement Council and the Settlement Administration as Settlement members, despite being disqualified from any longer being members of the Peavine Metis Settlement.

One of the 8 persons has continued to act as a Settlement Councillor, despite the Judgment of the Supreme Court of Canada, and I have commenced separate proceedings under the MSA seeking removal of that person as a Settlement Councillor. 23.

I do not believe that it is right for the said 8 persons and others who have registered under the Indian Act Registry to continue to act as Settlement Members, including one of them continuing to act as a Settlement Councillor , when it is very well known in the Peavine Metis Settlement that the Supreme Court of Canada has declared sections 75 and 90 of the MSA valid and set aside the Judgment of the Alberta Court of Appeal, which means that those who were previously removed from the Membership List under the 2001 Order should have been removed again. 31.

The failure and refusal of the Respondents to enforce and properly administer the MSA in accordance with its provisions fosters and creates conflict amongst the Settlement Membership based upon the items listed in paragraph 28 above. The Law [ 6 ] The Alberta Rules of Court (Alta. Reg. 124/2010 ) provide in part as follows: 1.5(1) If a person contravenes or does not comply with these rules, or if there is an irregularity in a commencement document, pleading, document, affidavit or prescribed form, a party may apply to the Court (

a) to cure the contravention, non-compliance or irregularity, or (

b) to set aside

an act, application, proceeding or other things because of prejudice to that party arising from the contravention, non- compliance or irregularity.

(4) The Court must not cure any contravention, non-compliance or irregularity unless (

a) to do so will cause no irreparable harm to any party, (

b) in doing so the Court imposes terms or conditions that will (

i) eliminate or ameliorate any reparable hard, or (ii) prevent the recurrence of the contravention, non-compliance or irregularity, (

c) in doing so the Court imposes a suitable sanction, if any, for the contravention, non-compliance or irregularity, and

(

d) it is in the overall interests of justice to cure the contravention, non-compliance or irregularity. 3.68(4) The Court may (

a) strike out all or part of an affidavit that contains frivolous, irrelevant or improper information; [7] In Alberta Human Rights Commission v.

Alberta Blue Cross Plan (1983) 38 A.R. 192, the Court of Appeal offered thefollowing comments on the content of an affidavit filed by Blue Cross in support of a motion seeking production of certain documents bythe Commission (at para. 6): We might add, as an aside, that mixed with a lengthy recital of facts the affidavit contains a good deal of argument and opinion includingthe conclusion that the demand for documents was “entirely unreasonable” and “completely unreasonable”. We would suggest to thedeponent and to counsel that affidavits ought to be confined to evidence.

Any conclusion based on that evidence is the function of thecourt. [8] In Alberta Treasury Branch v. Leahy (1999), 1999 ABQB 185 , 234 A.R. 201 (Q.B.), Mason J. stated as follows(at para. 84): The purpose of affidavit evidence is to place the necessary facts before the court and should not contain argument, opinions orconclusions: Alberta (Human Rights Commission v. Alberta Blue Cross Plan (1983), 1983 ABCA 207 , 48 A.R. 192 (Alta.C.A.). Affidavits which contain such material have little, if any, probative value and are generally accorded the weight they deserve bythe trier of fact.

However, when a party has brought an application to strike an affidavit on these grounds, the court may go beyondsimple disregard for the objectionable material and strike it out if it agrees that it goes beyond fact...I would emphasize, however, thatassertions of fact may well need to be placed in an explanatory or narrative context in order to assist the court in understanding therelevance of a particular fact and the relationship between facts. This is not improper in my view. [9] Further, Master Funduk held in Central Trust Co. v.

Milchem (1986), (AB KB), 72 A.R. 321, that“interpretation of documents is always a matter of law and a witness views on the

interpretation or effect of a document are irrelevant.” [10] The

interpretation of a document is always a matter of law and is solely within the purview of the Court such that an affiant’sviews on what a document means are irrelevant and inadmissible. (See Imperial Oil Ltd. v. Whissel Enterprises Ltd. (1985), (AB KB), 62 A.R. 321 (Q.B.)) [11] As to the proper forum to determine the admissibility of affidavit evidence, counsel for Gauchier points to the decision of theCourt of Appeal in C.L.M. v. D.G.W., 2004 ABCA 112 , [2004] A.J.

No. 329, in which Paperny J.A. offered the following in anoral decision in a family law matter: The chambers judge struck one affidavit in its entirety and certain portions of the other affidavits because he concluded theat they werescandalous and irrelevant, hearsay, conclusions rather than statements of fact, or highly prejudicial relative to their probative value... Further, it is not appropriate at this stage of these proceedings to exclude the challenged affidavit evidence.

The court deciding thesubstantive issue will have an opportunity to consider that evidence in its proper context and determine whether there is any properfoundation on which to exclude it. Rulings on the admissibility of affidavit evidence are best left to the judge ruling on the substantivemotion for two reasons.

First, that judge is best positioned to know all the facts, balance the competing arguments and rule appropriately.Second, encouraging interlocutory rulings and appeals on admissibility serves to fragment proceedings, increase costs and encouragedelay without appreciably assisting the judge deciding the motion on its merits: 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario)10 Ltd. (1997), (ON SC), 37 O.R. (3d) 70 at 77 (Gen. Div.); Zeitler v. Inmet Mining Corporation, [2001] O.J. No 5022 (S.C.J.); Andersen v. St. Jude Medical Inc. (2002), (ON SC), 29 C.P.C. (5th) 234 at para. 13 (Ont. S.C.J.).

Thisis particularly true in applications for variation of access with allegations of risk of sexual abuse where the court is obliged to consider

and test the whole of the evidence to determine the degree of risk: Leveque v. Leveque (1983), (BC CA), 54 B.C.L.R.164 at para. 13 (C.A.). [12] The Applicant also refers to the decision of Moore C.J. in Chevron Canada Resources v. Canada, [1988] A.J. No. 1202(Q.B.). In that case, the Court found that the impugned affidavit contained conclusions on the very issues before the court. These are all matters for this Court to decide. While they are not entirely proper statements to have in an affidavit, the Court is obviouslynot bound by them any more than it is bound by the opinion of any witnesses or counsel.

Technically, Samson is right, but thisapplication is unnecessary. (at para. 11) Analysis [13] The Respondents contend that the impugned portions of the Affidavit of Gauchier contain legal argument and conclusions.They say that these legal arguments and conclusions as to the effect of the July, 2011 decision of the Supreme Court of Canada and theinterpretation and application of sections 75 and 90 of the Metis Settlement Act are the very issues before the Court.

The Respondents askthe Court to strike the impugned portions of the Gauchier Affidavit as containing improper and irrelevant information and to directGauchier to file a new affidavit. [14] The Applicant, while conceding that certain portions of his affidavit contain his view of the law, argues that these sameportions may be admissible on the issues of standing; whether prerogative relief should issue in the substantive actions; or as part of thenarrative context. Relying on the actual result in both the Alberta Human Rights Commission, supra decision, and the decision ofKenny J. in Matthews v.

Great West Life Assurance Company, 2002 ABQB 297, a decision cited by Cunningham, Gauchier says thatthe proper approach is for the Court to simply disregard the offending paragraphs in the Affidavit.

Gauchier also says that this is anunnecessary step under all of the circumstances and will put him to additional expense in the litigation process. [15] While I acknowledge and accept then Chief Justice Moore’s statement regarding unnecessary steps in the litigation process inChevron, supra, I am of the view that the fact that this application arises in the context of case management is a matter that warrantsconsideration. The purpose of case management is to prepare a matter for trial and to streamline, to the extent possible, the variouslitigation processes leading to trial.

Avoiding unnecessary cross-examination on superfluous opinions, conclusions and legalinterpretations in affidavits is, in my view, a component of effective case management. I do not view my role as the Case ManagementJudge as necessarily being the same as that of a Chambers Judge hearing an interlocutory application. [16] The Court of Appeal’s decision in C.L.M., supra, does not, in my view, have any application here. First of all, the Court wasdealing with a family law matter, a species of litigation which frequently involves very special considerations focused on the bestinterests of a child.

Moreover, the Chambers Judge in that instance struck out evidence on the basis that it was scandalous and irrelevant,and that its prejudicial impact outweighed its probative value. The Court of Appeal over-turned the Chambers Judge on the basis that theevidence was, indeed, relevant and that when dealing with the best interests of a child, the probative value of relevant evidence will bevery high. The Respondents in the within motion do not seek the striking out of evidence, but rather what they describe as conclusorystatements or opinions.

In my view, these distinctions are such as to render the Court of Appeal’s decision of no application to this matter. [17] With respect to paragraph 5 of the Gauchier Affidavit, I am of the view that the statement “Accordingly, any SettlementMember who became voluntarily entered in the Indian Register on or after November 1, 1990, would be subject to the provisions of theMSA pertaining to automatic termination (s. 90 MSA) is both a conclusion and legal argument as to the

interpretation and application ofthe Metis Settlement Act. Moreover, it is, in fact, the very issue before the Court for determination in these applications. Gauchier’sopinion on this point is inadmissible and should not be included in his affidavit. This portion of paragraph 5 should be struck. [18] Paragraph 8 of the Gauchier affidavit should also be struck. Again, the statement “The termination of Settlement Membershipunder

section 90 is automatic as of the date the individual is registered into the Indian Registry” is a conclusion on the very issue that theCourt is being asked to consider in these applications. Whether or not s. 90 operates to exclude an individual from membership in thePeavine Settlement if the individual is registered in the Indian Registry is a matter of statutory

interpretation, not a statement of fact.

[ 19 ] Gauchier ’ s conclusion as to the impact and effect of the decision of the Supreme Court of Canada in paragraph 22 of his Affidavit are, in my view, also problematic. At the beginning of the paragraph he states: “ By rights, the effect of the Supreme Court of Canada ’ s decision should have been to place the parties back in the position they were in immediately after the Judgment of Madam Justice D. Shelley. ” The opening words of the paragraph deal entirely with Gauchier ’ s opinion as to the effect of the Supreme Court ’ s decision.

Again, this is the very issue that is before the Court for determination in these applications. This is legal argument that is best left for the argument phase of these applications once the underlying facts have been properly placed before the Court. [ 20 ] Later in the same paragraph, he states: “ At the time, the 8 persons had been removed as a member of the Peavine Metis Settlement pursuant to the 2001 Order.

However, the said 8 persons continue to act and be treated by the Settlement Council and the Settlement Administration as Settlement members despite being disqualified from any longer being members of the Peavine Metis Settlement . ” (emphasis added) While the Respondents ask the Court to find the portion in bold to be a conclusion based on an

interpretation of the Supreme Court decision, I am of the view that the impugned portion is properly characterized as part of the narrative context. The Respondents do not challenge the opening portion of the sentence which refers to the fact that the 8 persons were removed as members as a result of the 2001 Order. In my view, the subsequent reference to these same 8 members as “ being disqualified from any longer being members of the Peavine Metis Settlement ” simply restates the preceding, unchallenged statement of fact.

In my view, this challenged portion of paragraph 22 is properly included in the Gauchier affidavit. [ 21 ] The challenged portions of paragraph 23 are, in my view, also problematic for the same reasons discussed above. The opening portion of the first sentence in the paragraph contains a personal opinion as to what is ‘ right ’ . It reads: “ I do not believe that it is right for the said 8 persons and others who have registered under the Indian Act Registry to continue to act as Settlement Members, including one of them continuing to act as a Settlement Councillor... ” (emphasis added). Mr.

Gauchier ’ s opinion as to whether it is ‘ right ’ for the 8 persons to continue to act as Settlement Members is not a statement of fact that will assist the Court in the resolution of this dispute. It is an opinion and a conclusion that is best left for legal argument. The impugned portion at the beginning of paragraph 23 should be struck from the Affidavit. [ 22 ] I am also of the view that most of the impugned portion contained in the second half of paragraph 23 should also be struck.

Specifically, Gauchier states: “ ... when it is very well known in the Peavine Metis Settlement that the Supreme Court of Canada has declared sections 75 and 90 of the MSA valid and set aside the Judgment of the Alberta Court of Appeal, which means that those who were previously removed from the Membership List under the 2001 Order should have been removed again (emphasis added). The portion “ which means that those who were previously removed from the Membership List under the 2001 Order should have been removed again ” is a conclusion as to the proper

interpretation of the Supreme Court ’ s decision and, as such, not properly included in the Affidavit. However, I take the view that the portion “ ...and set aside the Judgment of the Alberta Court of Appeal ” is a statement of fact linked to the previous statement of fact that is not challenged by the Respondents.

In my view, this part of the sentence should not be struck. [ 23 ] Finally, the Respondents challenge portions of paragraph 31 of the Gauchier Affidavit, specifically: “ The failure and refusal of the Respondents to enforce and properly administer the MSA in accordance with its provisions fosters and creates conflict amongst the Settlement Membership based upon the items listed in paragraph 28 above. ” This particular paragraph contains the Affiant’s opinion as to the effect of the Respondent’s alleged failure to properly enforce and administer the Act . This is a conclusion based on an

interpretation of the Act and not a statement of fact. [ 24 ] In defending this particular paragraph, Gauchier says (at para. 12 of his Brief): “ In other words, ‘ the failure of Peavine to enforce the community ’ s general understanding of Cunningham is causing or has the potential to cause conflict. ” While the existence of anxiety, concern and even conflict within the community may well be relevant to these proceedings, this fact would need to be adduced in a manner which does not offend the well-established legal limitations on what may properly be contained within an affidavit.

Conclusion [ 25 ] The offending portions of the Gauchier Affidavit as more fully described above are struck. The Applicant shall file a new affidavit within 30 days of the release of these Reasons.

Costs [ 26 ] The Respondents Peavine and Cunningham both seek costs relative to this application. The Respondent Registrar makes no mention of costs in her written brief. [ 27 ] In considering the issue of costs, Gauchier asks the Court to take into consideration that his efforts to avoid the necessity of a court application to resolve this issue were rejected by the Respondents.

First, he says that he offered to advise the Court which ultimately hears this application on the merits that the impugned provisions of the Affidavit should not be considered in terms of deciding legal issues, though may be relevant to other matters before the Court. Second, Gauchier indicates that he suggested to the Respondents that all parties could reduce their costs by having the matter decided on the basis of written briefs submitted to the Case Management Judge without the necessity of an oral hearing.

The Applicant seeks costs against the Respondent Peavine on the basis that Peavine was the party who insisted on an oral hearing and the submission of written briefs. [ 28 ] The Respondents were largely successful in this Application and, as such, are entitled to their costs. However, I do take into consideration Gauchier ’ s argument that this issue could have been resolved in another, more expeditious process. As such, I am prepared to reduce the costs which I would otherwise have awarded to the successful parties. Costs are awarded to the Respondents Peavine and Cunningham in the sum of $500 each.

I make no order of costs relative to the Respondent Registrar in view of the fact that her counsel did not ask for costs. If I have mis-interpreted or misunderstood the Registrar ’ s position on this issue, Counsel for the Registrar may address this matter within 15 days of the receipt of these Reasons. Heard on the 3 rd day of May, 2012 Dated at Edmonton, Alberta this 9 th day of August, 2012. M. David Gates J.C.Q.B.A. Appearances: Shawn Beaver Beaver Leebody Franc Simic for the Applicant Ryan Martin McLennan Ross for John Kenneth Cunningham Robert Normey

Alberta Justice for the Registrar Sandeep K. Dhir & Katherine E. Palmer Field LLP for Peavine Metis Settlement Council _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice M. David Gates _______________________________________________________ Katherine E. Palmer has been added in the appearances as an additional representative of Peavine Metis Settlement Council.