Fox v Blood Tribe, 2013 ABQB 653

Court of Queen ’ s Bench of Alberta Citation: Fox v Blood Tribe, 2013 ABQB 653 Date: 20131101 Docket: 0701 11789 Registry: Calgary Between: Roy Fox Plaintiff - and - The Blood Tribe Defendant _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice C.S. Anderson _________________________________________ ______________ I.

Introduction [ 1 ] The Plaintiff commenced an action against his former employer, the Blood Tribe, seeking damages for unpaid pension payments together with future pension benefits as contemplated by a Band Council Resolution dated November 4, 1996 (the “1996 Resolution”). The pleadings erroneously refer to the 1996 Resolution being passed on April 11, 1996, but nothing turns on that error. II.

Issues [ 2 ] The Plaintiff maintains that the Blood Tribe is contractually bound to continue pension payments to him in accordance with the 1996 Resolution and is estopped from denying the irrevocability of the 1996 Resolution. [ 3 ] The Defendant denies that it is contractually bound to make these pension payments, asserting that previous payments were made ex gratia and could be varied or terminated at any time.

These payments, the Defendant argues, were never a term of the Plaintiff’s employment contract nor a custom of the Blood Tribe. [ 4 ] Further, the Defendant maintains that this action is, in form and substance, an application for judicial review of a federal board and therefore within the exclusive jurisdiction of the Federal Court of Canada. III. Facts [ 5 ] The Plaintiff was born in 1949 in Cardston, Alberta.

He was a member of the Blood Tribe, geographically the largest Indian Reserve in Canada, with a population of approximately 11,000 people (although many don’t live on the reserve). [ 6 ] The Blood Tribe is governed by a Chief and twelve Councillors. At one time, Chiefs were hereditary and served for life. Chief Shot Both Sides served from 1913 to 1956. His son, Jim Shot Both Sides, served as Chief from 1956 to 1964. Elections for Chief were first held in 1964 and Chief Rufus Good Striker won that election. In 1966, Chief Jim Shot Both Sides returned to office and served

until he was required to retire in 1980 for health reasons. By that time, he was in his mid-sixties, required brain surgery and was unable to carry out his duties as Chief. [ 7 ] In preparation for his retirement, Chief Jim Shot Both Sides asked the Plaintiff to run for Chief. The Plaintiff was a young man at that time and being asked to run by Chief Jim Shot Both Sides was an honour. Chief Jim Shot Both Sides was the Plaintiff’s uncle. [ 8 ] The Plaintiff was elected Chief in 1980 and continued as Chief until he lost an election in 1992 to Harley Frank. Subsequently, Mr.

Frank was removed from office by the Band Council and in June 1993, a new election was held. The matter of Mr. Frank’s removal as Chief and the subsequent election were before the Federal Court several times. In any event, the Plaintiff ran again and was successful. He resumed the office of Chief of the Blood Tribe from June 1993 until 1996. [ 9 ] At the relevant times, the Blood Tribe Chief and Council were subject to a Code of Ethics that was approved August 27, 1987. That Code of Ethics stipulated that the primary concern of the Chief and Council was the protection of the Blood Tribe’s interests.

Part 4 of the Code addressed impartiality and conflict of interest and directed that the Chief and Councillors should not act or participate in a matter where there is or there is likely to be conflicting interest. [ 10 ] The Code stated that “conflicting interests include the abuse of authority for personal gain or for the gain of relatives or close associates.

Conflicting interests also include personal financial or material gain of the Chief or councillor.” Further, it set out that “the office being held is to advance the interests of the Tribe as a whole and not your personal interests.” [ 11 ] During the time that Mr. Fox was Chief, the Blood Tribe did not have a pension plan for the Chief or Councillors but instead provided a group savings plan in which Mr. Fox participated. The plan allowed for 6% of the Chief’s salary to be set aside and to be matched by the Band. From time to time, Mr. Fox withdrew money from this account or borrowed against it as needed. Mr.

Fox testified that this savings plan was collapsed when the majority of participants wanted it collapsed. By 1990, a savings plan was developed which would allow participants to withdraw their funds at any time. [ 12 ] In 1992, when Mr. Fox lost the election for Chief to Mr. Frank, he stopped receiving a salary and did not receive any pension benefits. He did not expect to receive a pension at this time as there was no plan in place. Neither was there a plan in place in June 1993, when Mr. Fox was re-elected.

Historically, hereditary chiefs did not receive a pension because they were chiefs for life. [ 13 ] In 1996, Mr. Fox was tiring of the responsibilities of being Chief. Elections were scheduled for the end of November 1996. Prior to the last Council meeting before the nominations were to be put forward, Mr. Fox asked the Band Manager, Mr. Wayne Wells, now deceased, to draft a confidential Band Resolution creating a lifetime pension for him. Mr.

Wells drafted the following: WHEREAS THE BLOOD TRIBE AND ITS POLITICAL LEADERSHIP, THE CHIEF AND COUNCIL, HAVE ACHIEVED A HIGH STANDARD OF ACCOMPLISHMENTS AND RECOGNITION AS A RESULT OF THEIR WORK AND COMMITMENT OVER THE PAST FEW DECADES, AND WHEREAS CHIEF ROY FOX OF THE BLOOD TRIBE HAS LED AND CONTRIBUTED TO THE OVERALL PROGRESS AND ADVANCEMENT OF THE TRIBE, AND WHEREAS CHIEF ROY FOX OF THE BLOOD TRIBE HAS RESPECTED, MAINTAINED, PROTECTED AND STRENGTHENED THE SPECIAL AND SACRED RIGHTS THAT THE TRIBE HAS WHETHER THEY WERE ORIGINAL OR ACQUIRED AND INCLUDING OUR SPIRITUAL RIGHTS, INHERENT RIGHTS, ABORIGINAL RIGHTS, TREATY RIGHTS, HUMAN RIGHTS AND SO ON, AND WHEREAS CHIEF ROY FOX HAS BEEN ELECTED AND MANDATED BY THE PEOPLE OF THE BLOOD TRIBE FOR THIRTEEN

(13) ELECTIONS SINCE NINETEEN HUNDRED AND SEVENTY FOUR (1974) - SIX

(6) YEARS AS COUNCILLOR AND SIXTEEN

(16) YEARS AS THE CHIEF OF THE BLOOD TRIBE FOR A TOTAL OF TWENTY-TWO

(22) YEARS IN OFFICE AND; WHEREAS THE RESPONSIBILITY AND STRESS OF THE CHIEF’S OFFICE AND POSITION IS OF THE HIGHEST ORDER AND MAGNITUDE AND; WHEREAS THAT RESPONSIBILITY AND COMMITMENT HAS CREATED AN ENORMOUS AMOUNT OF PERSONAL STRESS AND SACRIFICE ON THE PART OF CHIEF FOX AND HIS FAMILY DURING HIS MANY YEARS IN OFFICE, AND WHEREAS FORMER CHIEF JIM SHOT BOTH SIDES RECEIVED A LIFETIME PENSION IN FULL FOR HIS TENURE AS ELECTED CHIEF OF FOURTEEN

(14) YEARS FROM 1966 TO 1980 AND WHEREAS FORMER CHIEF SHOT BOTH SIDES RECEIVED A NEW HOUSE AS PART OF HIS PENSION FOR HIS ELECTED TENURE OF OFFICE AS CHIEF AS FOURTEEN

(14) YEARS AND WHEREAS FORMER CHIEF SHOT BOTH SIDES RECEIVED OTHER BENEFITS AS PART OF HIS PENSION ARRANGEMENT AND AGREEMENT WITH THE BLOOD TRIBE COUNCIL FOR HIS ELECTED TENURE OF OFFICE FOR FOURTEEN

(14) YEARS, AND WHEREAS FORMER CHIEF RUFUS GOODSTRIKER RECEIVED AN EXISTING HOUSE AND RANCH BUILDINGS AND STRUCTURES AS PART OF HIS COMPENSATION FOR HIS TWO YEARS TENURE AS ELECTED CHIEF OF THE BLOOD TRIBE, AND WHEREAS FORMER CHIEF RUFUS GOODSTRIKER RECEIVED A CONSIDERABLE AMOUNT OF CULTIVATED AND GRAZING LAND AS PART OF HIS COMPENSATION FOR HIS ELECTED TENURE OF OFFICE AS CHIEF OF THE BLOOD

TRIBE, AND WHEREAS A LEGAL AND TRADITIONAL PRECEDENCE HAS BEEN SET IN COMPENSATING THE PAST ELECTED CHIEFS OF THE BLOOD TRIBE THROUGH A FULL LIFE-TIME PENSION AND/OR COMPENSATION OF A HOUSE AND LAND DEPENDING ON THE NUMBER OF YEARS THAT THEY SERVED IN OFFICE AS ELECTED CHIEF OF THE BLOOD TRIBE, AND WHEREAS CHIEF ROY FOX OF THE BLOOD TRIBE HAS SERVED HIS PEOPLE OF THE BLOOD TRIBE TO THE BEST OF HIS ABILITY AND WITH COMPASSION FOR TWENTY-TWO

(22) YEARS – SIX

(6) YEARS AS THE ELECTED COUNCILLOR AND SIXTEEN

(16) YEARS AS THE ELECTED CHIEF OF THE BLOOD TRIBE, NOW THEREFORE BE IT RESOLVED THAT CHIEF ROY FOX RECEIVE A LIFE-TIME PENSION IN FULL WITH AN ANNUAL COST OF LIVING INCREASE UPON HIS RETIREMENT FROM THE OFFICE OF ELECTED CHIEF OF THE BLOOD TRIBE, AND BE IT FURTHER RESOLVED THAT CHIEF ROY FOX RECEIVE A NEW HOUSE FROM THE BLOOD TRIBE OF WHICH THE AMOUNT OF MONEY WILL BE THE SAME AS THAT REQUIRED TO BUILD AND COMPLETE A TWELVE HUNDRED SQUARE FOOT (1200 SQ FT) CONVENTIONAL HOME AND THIS WILL ALSO BE UPON HIS RETIREMENT FROM THE OFFICE OF THE ELECTED CHIEF OF THE BLOOD TRIBE, AND BE IT FURTHER RESOLVED THAT CHIEF ROY FOX MAY REPRESENT THE BLOOD TRIBE AND ANY OF ITS ENTITIES UPON THE MUTUAL CONSENT OF THE BAND COUNCIL OR ITS ENTITIES AND HIMSELF, AND BE IT FURTHER RESOLVED THAT THIS BAND COUNCIL RESOLUTION BE IRREVOCABLE AND RESPECTED BY ANY FUTURE CHIEF IN COUNCIL AND FURTHER THAT THIS ARRANGEMENT THROUGH THIS BAND COUNCIL RESOLUTION BE BINDING ON ALL PARTIES FOR THE LIFE-TIME OF THOSE PARTIES. [ 14 ] Mr.

Fox testified that the Band Council had established a precedent to give pensions or other consideration to former Chiefs. The late Chief Jim Shot Both Sides received a full lifetime pension upon his retirement. The late Chief Rufus Good Striker did not receive a pension or salary continuance; however, he received a ranch house and some land, which provided income to his family. [ 15 ] At the November 4, 1996 Council meeting, Mr. Fox advised the Council that he would not seek re-election and intended to retire. He read to the Band Council the 1996 Resolution that he had had prepared.

He testified that he invited the Band Council to discuss and sign it. He testified that to his knowledge, there was no debate about the proposed Band Council Resolution and no one opposed it, but that he left the room when the Council voted on it. Mr. Fox testified that he knew the Band Council would agree with his request and that he thought that he was out of the meeting for approximately one half hour to 40 minutes. Mr. Fox confirmed that the Resolution had not been referred to committee nor tabled to the next committee.

He believed his request for a pension was handled in the same manner as the late Chief Shot Both Sides’ pension. [ 16 ] Mr. Fox also testified that he wanted the Resolution to be irrevocable and binding on future Councils. Band Council Resolutions are rarely irrevocable. The only examples of irrevocable resolutions were ones that dealt with bank loans to band members. [ 17 ] Minutes from the meeting of Band Council that day indicate that each Council member expressed appreciation and respect for Chief Fox.

NCS: MOVED TO ACCEPT AND APPROVE THE PROPOSED BCR #FY96-97-7665 REGARDING COMPENSATION TO CHIEF FOX FOR HIS 22 YEARS OF SERVICE TO THE BLOOD TRIBE. THAT LEGAL AND TRADITIONAL PRECEDENCE BE FOLLOWED IN COMPENSATION FOR OUR CHIEF AND FURTHER THAT THIS BCR BE IRREVOCABLE AND RESPECTED BY ANY FUTURE CHIEF AND COUNCIL AND FURTHER THAT THIS ARRANGEMENT THROUGH THIS BCR BE BINDING ON ALL PARTIES FOR THE LIFETIME OF THOSE PARTIES. BE IT FURTHER RESOLVED THAT THIS DECISION BE BASED ON POLICY IN DEALING WITH PAST CHIEFS AND TO UTLIZE FOR FUTURE CHIEFS. ALL IN FAVOUR.

CARRIED UNANIMOUSLY. [ 18 ] Thus, the Plaintiff’s proposed Band Council Resolution was passed and became the 1996 Resolution. [ 19 ] Mr. Fox and others testified that once a campaign was underway, and nominations are put forward, the Band Council leaves any major decisions for the next council. [ 20 ] Mr. Fox testified that he would have run again if Council had not agreed to the 1996 Resolution. By retiring, Mr. Fox argued, he allowed new members to be Chief. For example, his successor, Chief Chris Shade, had previously run against Mr. Fox but was unsuccessful. The implication was that, had Mr.

Fox run again, he would again have defeated Mr. Shade. [ 21 ] In addition, the current Chief at the time of trial in May 2013 was Charlie Weaselhead, who had previously unsuccessfully run against Mr. Fox. [ 22 ] Mr. Fox testified that there were conditions attached to him receiving a pension, conditions that he proposed: that he could represent the Blood Tribe upon mutual consent and that he not run again for office. Payments to him commenced in January 1997, the amount being similar to the salary he had previously received as Chief. Initially, Mr. Fox received $1,726.40 per month from the Blood Tribe.

In July 2007, this was increased and adjusted for cost of living to $1,831.54 per month. [ 23 ] Mr. Fox was 47 years old at the time of his retirement from the Blood Tribe. [ 24 ] After retirement, Mr. Fox moved to Calgary. There was a disagreement surrounding whether Mr. Fox was allowed to build his home off the Blood Tribe Reserve. This was resolved in September 2001, when the Blood Tribe released $155,000 (inclusive of

interest) to Walsh Wilkins, counsel for Mr. Fox, to allow Mr. Fox to purchase a home in Redwood Meadows. An undertaking was signed by Mr. Fox on October 11, 2002, in which he undertook to build a house on the Blood Tribe Reserve once the health of his family had improved and he decided to move back to the Blood Tribe Reserve. [ 25 ] After his retirement, Mr. Fox worked with some organizations on a contractual basis. He then became the President and CEO of the Indian Resource Council (“IRC”), a representative organization of oil and gas producing tribes of Canada.

He was paid for this position but did not receive a pension. The IRC instead had a savings plan for its employees. Mr. Fox worked for the IRC for approximately 15 years, until June 2012, when the board of the IRC wanted to go in a different direction. He testified that he and the board agreed on terms of his departure. [ 26 ] Mr. Fox testified that after retirement, he continued to represent the Blood Tribe as a trustee for the Akers Claim, in an effort to secure land for the Blood Tribe, although he acknowledged that he received an honorarium for this.

He also assisted the Blood Tribe with an agricultural project involving the Japanese, although he was paid an honorarium for this as well. He assisted the Blood Tribe with Kainai Resources, though he testified that much of this work was through the IRC. At one time, as President and CEO of the IRC, he was accused of spending too much of his time on Blood Tribe issues. [ 27 ] After Mr. Fox retired, Chief Shade served as Chief of the Blood Tribe for two terms totalling eight years, until 2004. Chief Shade requested a pension because Mr. Fox had received one, but this was refused. Mr.

Fox testified that the difference between his situation and Chief Shade’s was that Mr. Fox retired whereas Chief Shade was defeated electorally. [ 28 ] In December 2006, Chief Charles Weaselhead wrote to Mr. Fox advising him that, after much deliberation and consideration, the Council had made the decision to rescind the 1996 Resolution and any ongoing payments. Mr. Fox was given a 6 month transition period with payments continuing until June 1, 2007. Mr.

Fox was advised that the “decision has been made with regard to all of the historical, current and future considerations and was considered to be in the best interests of the Blood Tribe members as a whole. We respect the contributions that you’ve made to the Blood Tribe and trust that transitional payments will allow you to make any necessary personal financial arrangements.” [ 29 ] Mr.

Fox wrote to the Chief Charles Weaselhead on March 16, 2007, advising that the 1996 Resolution was, in his opinion, irrevocable and binding on all parties and requesting a meeting with the Chief and Council to discuss the matter. [ 30 ] A meeting took place but the payments ceased as of June 1, 2007. The Plaintiff commenced this action in November 2007. [ 31 ] Several of the Councillors who were present at the November 4, 1996 Band Council Meeting testified at trial. They stated that they were surprised or shocked by Mr.

Fox’s decision to retire although they knew that being Chief had been stressful for him and his family. [ 32 ] Dorothy First Rider testified that she signed the 1996 Resolution as a member of Council and understood that it would last in perpetuity, just as it had for Chief Jim Shot Both Sides. She testified that Mr. Fox was a good Chief and that she was surprised at his announcement that he was going to retire. She confirmed that the Blood Tribe Council did not ask Mr. Fox to retire. She recalled that Mr. Fox left the room after he presented the 1996 Resolution.

She further confirmed that once a campaign starts, any significant matters or decisions are suspended or left for the next Council. Ms. First Rider testified that Mr. Fox would have received a new house sometime in the future regardless of the 1996 Resolution, because his house then was old and situated on a flood plain. [ 33 ] Narcisse Blood was also on Council in 1996 and signed the 1996 Resolution. He testified that Mr. Fox had been a very capable Chief and had left the room when discussions about the pension were held. He also testified that he was disappointed that Mr.

Fox had decided to retire. [ 34 ] Kirby Many Fingers was also on Council in 1996 and signed the 1996 Resolution. He didn’t learn that Mr. Fox was going to retire until the November 4, 1996 meeting when Mr. Fox made his he announcement. He testified that the Council members were surprised at Mr. Fox’s announcement and that all Council members spoke highly of Mr. Fox. The 1996 Resolution was agreed to very quickly. Although Mr. Many Fingers agreed to the 1996 Resolution, as time went on and demands changed, he started to question why the Council agreed to continue Mr. Fox’s pay. Mr.

Many Fingers agreed that the 1996 Resolution did not follow the typical decision making process, as normally the matter would be referred back to the finance committee or department for further discussion. [ 35 ] Subsequent to the 1996 Resolution, the Band started receiving a number of other requests for pensions or payments for past services. Chief Shade, who had served as Chief for eight years, wanted a pension or retiring allowance as well. At least four individuals made requests and became vocal in demanding a pension, using Mr. Fox’s arrangement as a precedent.

In 2003, the Band’s Human Resources Committee met to discuss a policy on lifetime/long term compensation. There were financial documents prepared that set out the cost to the Council if members were paid a retiring allowance. The Band became concerned that as the requests got larger, the financial implications would become significant. Mr. Many Fingers stated that the Band Council developed a sense that Mr. Fox had received a very generous package. [ 36 ] Leslie Healey also signed the 1996 Resolution. As he recalled, Mr. Fox read out the 1996 Resolution at the Council meeting.

Prior to that meeting, he had not known that Mr. Fox was going to retire. He confirmed that Mr. Fox was a good Chief, that he deserved praise for all of his good work, and that he was well respected. He also testified that he thought at the time it was premature to give Mr. Fox a pension because he was young and he didn’t think that Mr. Fox would have a problem getting another job in Canada. [ 37 ] Marcel Weaselhead testified that Mr. Fox was not called upon in his ceremonial capacity after he retired.

He also testified that Chief Jim Shot Both Sides was different from Chief Fox, because Chief Jim Shot Both Sides was recognized as a hereditary Chief and had received his pension because of his age and deteriorating health. [ 38 ] Based on the testimony of these witnesses, I find that in November 1996 the Council was taken by surprise and disappointed by Mr. Fox’s decision to retire. He was highly regarded. The Council agreed to the 1996 Resolution put forward by Mr. Fox after very little discussion because they wanted to recognize his past service to the Blood Tribe.

IV. Arguments [39] The Plaintiff pleads his case in contract. His position is that the Plaintiff and Defendant entered into a contract whereby thePlaintiff would retire as Chief and not stand for further election and that, in consideration of his promise to take early retirement, theBlood Tribe agreed to pay Mr. Fox a lifetime pension. [40] The Plaintiff argues that his pension is in accordance with previous pensions paid to former Chiefs. [41] Finally, in his Amended Statement of Claim, the Plaintiff pleads the doctrine of estoppel.

He alleges that as he has materiallychanged his position, including not running for political office from 1996 forward and being effectively removed from political life at theBlood Tribe, the Blood Tribe is now estopped from “denying the irrevocability of the pension contract”. [42] The Defendant’s position is that the payments were gratuitous and that the Plaintiff gave no consideration for them. Thepayments were not earned by the Plaintiff and were not an integral part of his salary structure. The Defendant pleads that the Plaintiff’sdecision to retire was his own, based on a number of factors personal to him.

The Defendant did not seek his retirement nor did thePlaintiff change his position in any way in reliance upon the Defendant’s promise. [43] Further, the Defendant takes the position that the doctrine of estoppel is not available to Mr. Fox because estoppel can be usedonly as a shield, not a sword. The Defendant asserts that, had it been seeking to recover any of the money paid to Mr. Fox, it might havebeen estopped from doing so.

But, the Defendant argues, the doctrine of estoppel cannot be employed by the Plaintiff to compel theDefendant to continue the payments. [44] Further, the Defendant also argues that any claim for cost of living increase is barred by the Limitations Act, RSA 2000, c L-12. [45] Finally, the Defendant argues that the Statement of Claim as a whole is, in form and substance, an application for judicialreview of the Blood Tribe’s resolution to revoke the 1996 Resolution. As a Federal board, any review of the Blood Tribe’s decision issubject to the exclusive jurisdiction of the Federal Court of Canada. V.

Analysis A Do the Payments to the Plaintiff Constitute a Pension? [46] The Plaintiff argues that the payments were not gratuitous, but a pension in the ordinary sense of the word: a string ofpayments, uninterrupted by the employer, in consideration of past performance. The Plaintiff relies upon Calgary (City) v InternationalAssociation of Firefighters (Local 255), 2006 ABQB 133, 398 AR 26, in which Justice Phillips stated at para. 63: I do not need to find, and I decline to do so, that there might be instances where a “pension” refers to payments other than in relation topast services.

Any such instances are an exception. [47] Justice Phillips noted at para. 62 of that decision that the arbitration panel in that case had stated that the ordinary meaning ofthe word “pension” is that a pension comprises payments in consideration for past services.

Justice Phillips’ decision was upheld by theAlberta Court of Appeal, 2008 ABCA 77, 429 AR 235. [48] The Plaintiff also relies on an excerpt from Clarke v Clarke, (SCC), [1990] 2 SCR 795, in which the Courtstated at para. 31 that “pension” is a colloquial term rather than a term of art. [49] The issue before the Supreme Court of Canada in Clarke was whether periodic pension benefits paid pursuant to theCanadian Forces Superannuation Act, RSC 1970, c.

C-9 were exempt as matrimonial property under the Matrimonial Property Act, SNS1980, c 9. [50] I do not find either of these cases particularly helpful to the Plaintiff. Both involved established plans that the partiesparticipated in during their employment.

For example, at para. 155 of Firefighters, Justice Phillips states: The normal operation of pensions is as follows: (1) contributions to the pension plan are made by the employer or member, or both,while a member is employed and receiving remuneration from the employer, and then (2) payments are made to the member out of thepension fund when the member becomes eligible to receive such payments under the term of the plan. [51] Here, a pension plan did not exist while the Plaintiff was employed with the Defendant and therefore contributions were notmade to a pension plan by either the employer or member while the member was employed.

Nor did the Plaintiff accrue any pensionbenefits or entitlement during his years of service. The payments made to the Plaintiff cannot be said to have been a pension in theordinary sense. B. Formation of Contract [52] The Plaintiff maintains that the Defendant cannot deny the formation of a contract, having paid the Plaintiff his pension for anumber of years. At the time the 1996 Resolution was signed, it was understood by all that a contract or obligation had been entered into. [53] The Plaintiff argues that a contract is formed when there is consensus ad idem or a “meeting of the minds”.

He relies upon thereasoning of Chief Justice Fraser in Ron Ghitter Property Consultants Ltd v Beaver Lumber Co, 2003 ABCA 221, 330 AR 353 at para 8:

Regardless of the theories underlying the enforcement of contracts, mutuality of agreement lies at the root of any legally enforceablecontract. The required degree of mutuality of agreement mandates that the parties reach a consensus ad idem on essential terms. ... Theaccepted test is whether a reasonable observer would infer from the words or conduct of the parties that a contract had been concluded...That is, on an objective basis, have the parties reached consensus ad idem? [54] I do not find Ghitter to be of assistance to the Plaintiff.

The Court in that case dealt with whether a contract was enforceable inthe face of a mutual mistake. Here, the Defendant argues that the alleged contract fails for want of consideration, a point on whichGhitter is silent. While the evidence before me indicates that the Plaintiff and the Band Council were in agreement about the passing ofthe 1996 Resolution, that does not address the issue of consideration, which I will discuss in more detail below. C.

Unilateral Contract [55] The Plaintiff argues that in Canada, termination payments given to employees at termination of employment form a unilateralcontract, obviating the need for mutual consideration. The Plaintiff relies for this proposition upon several cases, including Sloan v UnionOil Company of Canada Ltd. (BC SC), [1955] 4 DLR 664 (BCSC) and the cases cited therein. [56] In Sloan, the plaintiff sued for a termination allowance following his termination of employment.

An employee handbook thatformed part of the terms of the plaintiff’s employment provided that a termination allowance would be paid to any employee who wasterminated without cause. The allowance was not payable where an employee was discharged for cause or voluntarily resigned. Theemployer had told the plaintiff that he would be paid such an allowance if his employment was terminated without cause, even after thecompany was sold.

The Court held at para. 19 that it had no doubt that the statements constituted an offer by the defendant, a promisethat it would, if the employee continued in its employment, short of retirement age, pay him certain sums if he was dismissed withoutcause. [57] The Court further found that the consideration flowing from the plaintiff was performance, the doing of

an act. The plaintiffcontinued to serve his employer until he was dismissed. The plaintiff testified that his knowledge of the termination allowance was oneof the factors that induced him to continue his employment. [58] The Court in Sloan at para. 42 quoted with approval from Scott v JF Duthie & Co (1923), 216 Pac 853 (Wash SC): The offer and its acceptance by compliance with its terms created a unilateral contract, which is binding upon the offerer. The principleof mutuality of obligation, as generally applied in the law of contract, has no place in the consideration of unilateral contracts.

Suchcontracts are not based on mutual promises or obligations. ... Accordingly, where one makes a promise conditioned upon the doing of

an act for another, and the latter does the act, the contract isnot void for want of mutuality, and the promisor is liable...; for upon the performance of the condition by the promisee, the contractbecomes clothed with a valid consideration, which relates back and renders the promise obligatory. [59] In Duthie, the issue before the Court was whether an employer is bound by a promise it made to an employee to give thatemployee a bonus or share of profits in exchange for the employee working continuously for a given period. [60] The Court in Sloan referred at para. 33 to the judgment of Denning L.

J. in Combe v Combe, [1951] 1 All ER 767 in which hestated this at p. 770: There was, however, clearly no promise by the wife, express or implied, to forbear from applying to the court. All that happened is thatshe did, in fact, forbear – that is, she did

an act in return for a promise. Is that sufficient consideration?

Unilateral promises of this kindhave long been enforced so long as the act or forbearance is done on the faith of the promise and at the request of the promisor, expressor implied.[Emphasis added.] [61] The Court in Sloan also referred at para. 34 to the judgment of Asquith L.J. in Combe at p. 774: Finally I do not think an actual forbearance, as opposed to do an agreement to forbear to approach the Court is good consideration unlessit proceeds from a request express or implied on the part of the promisor. [Emphasis added.] [62] Finally, the Court in Sloan referred to Wilson v Rudolph Wurlitzer Co (1934), 194 NE 441, in which the Court of Appeals ofOhio found at p. 443 that “It is plain that the pension plan was an integral part of the program for his employment. ...

This provisionconstituted a continuing

part consideration for the services rendered by the employee.

It was a daily inducement to continuation ofservice and to exertion to satisfy, which was successful for more than twenty-four years.” [63] In Dinney v Great-West Life Assurance Co, 2005 MBCA 36, 192 Man R (2d) 229, the Manitoba Court of Appeal found atpara. 34 that a pension plan is a unilateral contract which creates a vested right in those employees who accept the offer it contains bycontinuing in employment for the requisite number of years. [64] In Dinney at para. 50, the Court referenced Otis Canada Inc v Ontario (Superintendent of Pensions) (1991), (ON SC), 2 OR (3d) 737, in which the Court held at p. 498 that “Not only are pension promises long term in nature butconsideration for them is furnished every day by work.” [65] In Maier v E & B Exploration Ltd, (1986), 1986 ABCA 96 , 69 AR 239, the Alberta Court of Appeal cited theWurlitzer case referred to above, in which an offer to pay a pension dependent upon the years of service was held to be enforceable as anintegral part of employment contract.

It was an inducement to the employee to continue in the service of the company and it served thatpurpose. [66] In Maier, the issue before the Court of Appeal was whether an agreement to give the respondents a stock option was merely a

gratuitous promise without legal consideration and consequently unenforceable. The Court of Appeal held that “...an offer to alter thewage structure affecting an employee becomes a unilateral contract when the employee accepts the offer by continuing in theemployment of the company. Continuing in the employment of the company is sufficient consideration flowing to his employer to bindthe employer to keep his offer open.” [67] In contrast to these cases, the Plaintiff did not continue in the employment of the Defendant, knowing that he was receivingpension credit in exchange.

The pension was not an inducement to the Plaintiff to continue in the service of the Blood Tribe andcontinued service could not have been the consideration for the pension payments. [68] The remaining question is whether the offer to not run again and to retire is sufficient consideration flowing to the BloodTribe to bind it. The difficulty for the Plaintiff is that, unlike Combe and the other cases cited above, the offer to retire did not come fromthe Defendant, but from the Plaintiff. [69] The evidence is clear that the Plaintiff was not asked to retire.

Rather, he advised the Council that he was not going to seek re-election and was going to retire. His decision was based upon the fact that he had an ill daughter and that the Office of Chief had takenits toll on him and his family. [70] The Blood Tribe did not seek Mr. Fox’s retirement. The evidence before me was that he was a good Chief and that theCouncil was taken by surprise by his decision. The Plaintiff asks that I find that his decision to retire allowed for new candidates to beelected as Chief and that this is good and sufficient consideration that flowed to the Blood Tribe.

But there was no evidence before methat the new Chief was better for the Blood Tribe than Mr. Fox had been or that the election of a new Chief gave rise to an improvementor benefit for the Blood Tribe. Mr. Fox’s successor, Mr. Shade, had run unsuccessfully against Mr. Fox before, but this does notnecessarily mean that his election was a benefit for the Blood Tribe, as the Plaintiff argued. In fact, without meaning any disrespect toMr. Shade, the opposite conclusion could just as easily be drawn. [71] After the Council meeting at which the 1996 Resolution was passed, little if any Council business was transacted.

Theevidence before me was that once a campaign is underway, any major decisions are left for the incoming Council. New Council tookoffice in January 1997. There was no evidence before me to suggest that Mr. Fox took any steps or actions for the balance of November,when his term ended and after the 1996 Resolution was passed that would suffice as consideration to the Blood Tribe. D. Past Consideration [72] The Defendant relies upon Gilbert Steel Ltd v University Construction Ltd, (1976), (ON CA), 12 OR (2d) 19(CA).

In Gilbert, the issue of past consideration was before the Court and whether the plaintiff, having earlier entered into a contract forthe delivery of steel at one price could rely upon discussions with the defendant in which he had orally agreed to pay a higher price. TheCourt asked at para. 6, “Where then was the quid pro quo for the defendant’s promise to pay more?” The Court concluded that theplaintiff had given no consideration for the higher price and that the increase was unenforceable. The Defendant also relies upon Modular Windows of Canada v.

Command Construction (1984), 11 CLR 131 (Ont HC),aff’d [1986] OJ No 437 (CA), in which the High Court referred at para. 26 to Gilbert Steel and held that “It is trite law that an agreemententered into without consideration is not enforceable...”. [73] The Defendant also cited Re Grosch Estate, (AB CA), [1945] 2 WWR 252, in which the Alberta Court ofAppeal at para. 24 quoted with approval the following passage from 7 Hals (2d ed), p 136, s 195: A so-called past consideration, that is, something done by the promisee before the promise was made, may constitute a motive for thepromise, but is not a real consideration.

There are, however, certain exceptional cases in which a promise is held to be binding althoughthe consideration for it is a benefit which was received by the promisor before the promise was made. [74] As there was no evidence before the Court that the request to render services was made by the beneficiaries, the matter did notfall within the exception and the agreement was not binding or enforceable. [75] Another case cited by the Defendant is Johnson v.

Forbes, (AB CA), [1931] 3 WWR 757, in which theAlberta Court of Appeal held at para. 25 that the plaintiff could not be allowed to maintain a judgment predicated upon pastconsideration. [76] Similarly, the Alberta Court of Appeal in Canadian Imperial Bank of Commerce v. Ohlson, (1997) 1997 ABCA 413 ,209 AR 140 affirmed at para. 38 that “Past consideration is not consideration.” [77] Finally, in Kenroc Building Materials Co v Logan Stevens Construction

(2000) Ltd, 2003 SKQB 278, 237 Sask R 158, theCourt held at para. 10: The essence of a valid, binding contract, is the idea of a “bargain” between the parties. “A contract consists of an exchange of promises,acts, or acts and promises, as a result of which each side receives something from the other … if there is no consideration there is nocontract”: Fridman, The Law of Contracts, 3d ed. (Toronto, Carswell: 1994) p. 81-82. [78] I cannot find that the Blood Tribe received a bargain or benefit in the Plaintiff retiring or deciding not to run for re-election.

Infact, given how well regarded he was, I can more easily find that Mr. Fox’s retirement was a detriment or negative for the Band. Itherefore cannot find any consideration flowing to the Blood Tribe as a result of his decision. They neither sought his retirement norwanted it. [79] Further, I find that the payments to the Plaintiff were not for services rendered subsequent to the 1996 Resolution. Theevidence before me was that, with an exception of some meetings regarding the Blood Tribe police force, Mr. Fox either received an

honorarium or was being paid by the IRC for any later services rendered. [80] I find that the decision to continue the Plaintiff’s salary after his retirement was based upon his past service to the BloodTribe. The minutes from the Band Council Meeting that day state that they were extending compensation to him “for his 22 years ofservice to the Blood Tribe”. This was consistent with the evidence I heard at trial. The consideration for this agreement is based uponpast consideration and as such I find that the Plaintiff cannot maintain an action against the Blood Tribe based upon contract. E.

Estoppel [81] The Statement of Claim was amended to plead estoppel. In paragraph 7A of the Amended Statement of Claim, the Plaintiffpleads that “having caused the Plaintiff to materially alter his position, the Defendant is estopped from denying the irrevocability of thepension contract” [82] The Supreme Court of Canada in Canadian Superior Oil Ltd v Paddon-Hughes Development Co, (SCC),[1970] SCR 932 held at para. 13 that a cause of action cannot be founded upon estoppel. The Court stated at para. 19 that factors givingrise to an estoppel are:

(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person towhom the representation is made.

(2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation ismade.

(3) Detriment to such person as a consequence of the act or omission. [83] The Court of Appeal in Gilbert Steel, also addressed an action based upon estoppel. The plaintiff in that case had asserted thatthe defendant, by not repudiating the invoices with higher prices for the steel, had in effect acquiesced to an increase in price and shouldnot subsequently be permitted to repudiate it. The Court of Appeal at para. 13 referred to “...the maxim that estoppel can never be used asa sword but only as a shield”.

The Court also found that, in order to rely upon estoppel, the plaintiff must show that the defendant’sconduct supported a finding that the defendant had given up its right to insist on the original prices and that the plaintiff relied on thedefendant’s conduct to its detriment. [84] Here, the Plaintiff cannot rely upon estoppel to compel the Defendant to continue to pay his salary. Had the Blood Tribe beenseeking repayment of the monies he had already received (in the approximate amount of $600,000), Mr. Fox could well argue estoppel,but that is not the case here.

The Defendant is not seeking the return of any monies already paid. [85] I have already found that the Defendant did not pass the 1996 Resolution to induce the Plaintiff to retire. As I have stated, theCouncil did not want him to retire and the 1996 Resolution was agreed to because of the Plaintiff’s past service. In addition, I cannot findthat the Plaintiff relied upon the 1996 Resolution to his detriment. He had already decided to retire for other reasons. While he testifiedthat he would have run for Chief again but for the 1996 Resolution, I do not accept his evidence on this.

In any event, he might not havewon that election. While he was well-liked and respected, it cannot be said that the election was guaranteed. Indeed, he had lost anelection as recently as 1992. In any event, after he retired as Chief, the Plaintiff obtained a higher paying position with the IRC. F. Conclusion [86] I find that the Blood Tribe’s decision to enter into the 1996 Resolution was based upon the past years of service given by thePlaintiff. It is noteworthy that when the Plaintiff lost the election in 1992 to Mr. Frank, he did not receive a pension or any otherpayment.

The difference, the Plaintiff argued, was that he retired in 1996, whereas in 1992, he was defeated in an election. I am unable toconclude that this distinction is relevant in terms of establishing an enforceable contract for pension benefits. At no time during Mr.Fox’s terms as Chief did the terms of his employment in that capacity include a pension or retiring allowance. The issue was firstbroached by Mr.

Fox, at the end of his term, when he announced his decision to retire. [87] I am unable to find that the Plaintiff has established a valid binding contract with the Blood Tribe or that the Plaintiff can relyupon the doctrine of estoppel in enforcing his claim. The Plaintiff’s action is therefore dismissed. G. Federal Court Jurisdiction [88] The Defendant maintains that this action is substantially an application for judicial review of the Blood Tribe’s authority torescind or revoke the 1996 Resolution.

The issues in this case relate to whether one Band Council can fetter the discretion of subsequentBand Councils or whether the decision was a true policy decision. In this regard, the Defendant argues that the Blood Tribe is a federalbody, subject to the exclusive jurisdiction of the Federal Court. The Defendant relies upon the case of Twigg v.

Fox, (AB KB), [1989] 1 CNLR 180, in which the Alberta Court of Queen’s Bench held that the Federal Court cannot be avoided by bringingan action in debt against the Band. [89] The Plaintiff maintains that the issues herein arise out of a purely contractual matter and, therefore, that the Federal Court doesnot have exclusive jurisdiction. [90] Given my findings above, I make no finding in this regard. VI. Costs [91] The parties may arrange to make submissions regarding costs, should they choose to do so.

Heard on the 13 th, 14 th , 15 th , 16 th and 17 th days of May, 2013. Dated at the City of Calgary, Alberta this 1st day of November, 2013. C.S. Anderson J.C.Q.B.A. Appearances: Fred Fenwick for the Plaintiff Peter Levesque for the Defendant