Bruneau v Quinn, 2023 ABKB 719

Court of King’s Bench of Alberta Citation: Bruneau v Quinn, 2023 ABKB 719 Date: 20231215 Docket: 2303 04169 Registry: Edmonton Between: Calvin Bruneau, Sheila Desjarlais, Murray Mackinnon, Ezra Bergsma, Daniel Deschamps, Papaschase Cree Nation Society, and Papaschase Employment and Training Centre Plaintiffs - and - George Frank Quinn, Darlene Misik, Bonnie Gravel, Mark Nixdorf, Clifford Gladue, Len Steinhauer, Holly Teed, Papaschase First Nation #136 Association, Papaschase First Nation Group of Companies Inc., Papaschase First Nation #136 Inc., Beaver Hills House 136 Inc., Robert Stanley Ghostkeeper, Dellmar LaPratt, Deborah (Debbie) Lynn Metz, and Papastew First Nations Corporation Defendants _______________________________________________________ Memorandum of Decision of the Honourable Justice Kent J.

Teskey _______________________________________________________ I. Introduction [ 1 ] This case raises the right of competing parties to represent the Papaschase descendants (Descendants). The two competing

parties assert their legitimate right to govern this group, and both refer to themselves as Chief and Council of the Descendants. The Plaintiffs seek an interlocutory injunction against the Defendants, injoining them from representing themselves to external parties as the Chief and Council and preventing them from acting on behalf of the Descendants to the external world. [ 2 ] I deny the Plaintiffs’ application for an injunction. II.

Background [ 3 ] The Supreme Court of Canada (SCC) concisely summarized the long and complex history of the Papaschase in Canada (Attorney General) v Lameman , 2008 SCC 14 at para 3 : In 1877, the Papaschase Indians adhered to Treaty No 6 and were allotted a reserve in what is now southeast Edmonton. In 1886, Chief Papaschase and a number of other members of his Band – the Band’s core leadership group – “took scrip”. This meant that in exchange for a cash payment they surrendered their treaty rights and rights connected with the Reserve. These members left the Reserve.

A few years later in 1889, the people whom government officials found to be remaining members of the Band – three men and their families – entered into an agreement to surrender their interest in the Reserve to the government with a view to its sale or lease, on condition that the proceeds be held in trust and paid to Band members and their descendants. It appears that these people ended up joining the Enoch Band.

Over the years, the government paid monies from the sale of the Papaschase Reserve to the members of the Enoch Band, in accordance with an agreement signed in 1894 between the government and the two surviving Band members who had agreed to the Reserve’s surrender. [ 4 ] In 1999, descendants of Chief Papaschase organized together and elected a Chief and Council to represent their interests externally and to commence litigation against Canada for recognition and compensation.

At that time, the Election Code and Membership Code were created, which contain membership structure and rules, but are primarily directed at managing the claim against Canada. The Plaintiffs rely on the Election Code and Membership Code as a substantial basis for their authority. [ 5 ] This litigation ultimately concluded in 2008 when the SCC dismissed the action on limitation grounds. After that, the parties agree that the cause of the Descendants wavered, but elections continued to the present day.

The Plaintiffs, led by Calvin Bruneau argue that as a result of the 2019 Election that they are the legitimate and sole leaders of the Descendants. [ 6 ] In 2021, the Defendants, led by Darlene Misik, asserted their leadership over the Descendants. They object to the leadership of Calvin Bruneau but also have fundamental concerns about the definition and proof required to claim lineage to Chief Papaschase. They argue that the Election Code was expressly and solely to conduct the unsuccessful Lameman litigation, and the legitimacy of the Plaintiffs is disputed and of doubtful provenance. III.

Legal Status of the Parties [ 7 ] It is appropriate to frame my analysis by reviewing these parties' status and legal rights. At the hearing, both parties asserted their authority to lead the Papaschase First Nation and their legal entitlement to act on behalf of the Descendants. There is a disconnect between these asserted rights and their legal foundation. [ 8 ] The Papaschase First Nation is not a “band” as defined by s 2 of the Indian Act , RSC 1985, c 1-5 ( Indian Act ).

The uncertain legal status of the Papaschase First Nation was first discussed in Papaschase Indian Band (Descendants of) v Canada (Attorney General) , 2004 ABQB 655 at para 225 where the Court concluded: Most of the Plaintiffs’ ancestors joined other Bands, and moved off to other places. A number of those ancestors joined the Enoch Band, and have benefitted from that membership.

It appears that no one alive today can claim entitlement to belong to the Papaschase Band, and the Papaschase Band no longer exists in fact or in law. [ 9 ] In Papaschase First Nation v McLeod , 2021 ABQB 415 [ McLeod ], the Court dealt with the same underlying complaint that the Defendants had not recognized the validity of the 2019 election. The Court held that Calvin Bruneau was not entitled to sue in his capacity as Chief (paras 20-21) and that the Papaschase First Nation had no legal capacity to sue (paras 16, 22-23). McLeod was not appealed.

It appears that the Plaintiffs have deferred to the Court’s decision in McLeod by having each member of the Chief and Council sue individually rather than as a collective body. [ 10 ] The Plaintiffs and Defendants both appear to be members of voluntary associations, although both parties have established societies or corporations to formalize some level of collective intention. I see little evidence from either party that these incorporations substantially affect the concerns that Courts have previously raised.

These corporate claims are no better than those of the individual Plaintiffs. [ 11 ] Beyond that, it is essential to assess the activities in which each group has engaged on behalf of its members. The activities are restricted mainly to advocacy and advancement on behalf of the Descendants. There is no evidence in the record before me of a governing or contractual relationship between either party and the Descendants. There is little evidence of the Descendants submitting to governance that would be consistent with the types of powers exercised by Councils under Indian Act s 81 .

While some of these powers are practically unavailable to either party, it is a helpful guide to assess the relationship between the Descendants and either party. [ 12 ] The Plaintiffs rely heavily on the Election Code to establish their legitimacy and exclusive right to govern and act on behalf of the Descendants. However, there is little evidence in the record before me to support the proposition that the Plaintiffs are undertaking any acts consistent with day-to-day governance and no evidence to suggest that the day-to-day governance is exclusively possessed.

Many of the Descendants also appear to be members of other nations, and to the extent that their conduct or day-to-day affairs are regulated, it is not by the Plaintiffs.

[13] I find little evidence in the record that the Election Code and the Membership Code conferred much more to the Plaintiffsother than to bring the litigation that was ultimately dismissed in 2008. These Codes do not appear to contain anything that would createa contractual right of advocacy to the exclusion of other Papaschase descendants. For example, in a labour context, a union certificationwould be sufficient to create a legal right to collective bargaining on behalf of a group of employees.

There is no evidence in the recordbefore me that would create this same exclusive ongoing right in favour of the Plaintiffs, nor is there evidence that would prevent otherindividuals from exercising their own legal rights outside of the Membership Code. [14] The rights that the Plaintiffs claim appear to be largely implied. Beyond that, these rights are claimed over a group ofPapaschase descendants whose lineage is the subject of significant internal controversy.

For an injunction application, it is unnecessaryto resolve this ambiguity, but it is certainly relevant to my consideration of the appropriateness of injunctive relief grounded in equity. [15] My comments should not be taken as diminishing the efforts of the Descendants to self-govern or to continue to seek statuswith Canada. However, there is a disconnect between the asserted authority of the Plaintiffs’ claim and its legal foundations. At thehearing, it was suggested by both parties that their authority could be grounded in Indigenous law.

However, both sides provided littlemore than their bare assertion of that authority. There is no way for this Court to settle this fundamental issue at an interlocutory phase. [16] Within this framework, I consider the Plaintiffs’ request for an interlocutory injunction. IV. Analysis A. The Law [17] An injunction is an equitable remedy within the inherent jurisdiction of this Court. To grant the Plaintiffs’ application, I mustfirst find that there is a serious issue to be tried. Second, I must find that there would be irreparable harm to the Plaintiffs.

Lastly, I mustbalance convenience between the harm I seek to prevent against the Plaintiffs and the harm that could befall the Defendants and thirdparties with an injunction. RJR-MacDonald Inc v Canada (Attorney General), , [1994] 1 SCR 311 at 332-33 [RJR-MacDonald] (SCC). [18] To be successful, the Plaintiffs must satisfy all three parts of the test. B. Is there a serious issue to be tried? [19] At this stage of the test, a prolonged examination of the merits is not necessary or desirable. I am not to apply a rigorousassessment of the merits of the action.

I need only be satisfied that the application is neither vexatious nor frivolous before moving on tothe second and third stages, even if I am of the opinion that the Plaintiffs are unlikely to succeed at trial: RJR-MacDonald at 337-38. [20] The Plaintiffs argue that serious issues should be tried under various causes of actions, including breaches of the ElectionCode, breaches of Indigenous law, and interference with economic relations.

The thrust of the Plaintiffs’ position is that the Defendantshave failed to submit to the Election Code and the will of the Descendants to be governed by the Plaintiffs, who were elected in 2019. Byholding themselves out as Chief and Council, the Defendants have created confusion in government and industry and have interferedwith these relationships. [21] I find that the Plaintiff has met the first branch of the test. The claims identified by the Plaintiffs are arguable.

I pause to notethat each of the claims identified by the Plaintiffs rest on the assumption that they maintain an exclusive right to act in the name of theDescendants as the Chief and Council of the Papaschase First Nation. The evidentiary record raises questions about this mandate and itsintended and practical scope that will have to be resolved at trial. C.

Irreparable Harm [22] At this stage, the only issue to be decided is whether a refusal to grant relief could so adversely affect the Plaintiffs’ owninterests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutoryapplication. Irreparable harm refers to the nature of the harm suffered rather than its magnitude.

It is harm which either cannot bequantified in monetary terms or which cannot be cured: RJR-MacDonald at 341. [23] While I am satisfied that some of the damages that the Plaintiffs allege may be subject to irreparable harm, I am not convincedthat these claims are owed to the Plaintiffs individually. [24] The Plaintiffs argue that the Papaschase First Nation as a collective group will suffer damages, which can be owed to theindividual Plaintiffs who were elected. I disagree.

The question at this stage is whether the Plaintiffs will suffer harm, not whether anunincorporated association to which they are all members will suffer harm. It is the individual Plaintiffs who seek an equitable remedy,and therefore it is the individual Plaintiffs that must demonstrate the harm that will accrue to them. [25] Every claim within the statement of claim is an assertion of damage to the collective group described as the Papaschase FirstNation. There is no suggestion of harm to the Plaintiffs individually.

The claim transparently rests on the assumption that individualparties can individually bring an action for exclusively collective damages. There is no such right at law. [26] After the imposition of the initial without notice injunction imposed by Renke J (2023 ABKB 177), the Defendants sought theposition of various stakeholders, including the Government of Canada and the Confederacy of Treaty Six First Nations. [27] In correspondence filed as evidence by the Defendants, Canada objected to the initial interim injunction on the basis that the

Crown Liability and Proceedings Act , RSC 1985, c C-50 prohibits injunctions from being granted against the Crown. As a result, Canada was exempted from the initial without notice injunction by an amended order. The implication is that if I were to grant this injunction, the Defendants’ contact with Canada would not be impacted.

This is a significant change from the interim order and one that lessens the argument of irreparable harm made by the Plaintiffs. [ 28 ] Moreover, Canada disagreed with suggestions in the interim decision that the injunction was required to prevent harm to Canada’s relationship with the Plaintiffs acting on behalf of the Descendants.

They wrote, “Canada's [sic] willing to engage on a policy basis with all groups who purport to represent the descendants of the members of the former Papaschase Band, regardless of any governance dispute.” [ 29 ] After the interim injunction, the Grand Chief of the Confederacy of Treaty Six First Nations wrote that they were not taking a position in this matter, stating “[t]he Confederacy of Treaty Six supports the inherent right of self-determination for each of its member First Nations.

It is up to the citizens of each First Nation, including Papaschase, to decide, according to its own laws, who is authorized to lead and speak for the First Nation.” As a result, they asked both parties to refrain from attending their meetings until the resolution of this dispute. [ 30 ] The fact that external stakeholders may deal with both groups or, alternately decide to deal with neither is not evidence of irreparable harm.

Moreover, the evidence suggests that the interim order may have created confusion in and of itself. [ 31 ] The evidence before me on irreparable harm is less compelling than it was at the interim hearing without the benefit of response evidence. There may be harm, but it is unclear to me that it would be irreparable and more importantly, I have doubts about whether that harm would befall the Plaintiffs individually. D.

Balance of Convenience [ 32 ] Many factors may bear on the balancing that a Court must conduct at this stage, and those factors will often be fact-specific to the circumstances of the discrete matter: RJR-MacDonald at 342. I must balance the need of the Plaintiffs to be protected from harm against the harm that could be occasioned against the Defendants if they were prevented from exercising their legal rights if the trial ultimately was resolved in their favour. [ 33 ] The core of the Plaintiffs' argument is that the balance favours the Plaintiffs because it aligns with the status quo .

The Plaintiffs submit that the only impact of an injunction on the Defendants is a limited restraint on any rights to hold themselves out as the representatives of the Papaschase First Nation and/or the Descendants until the Plaintiffs’ claim is heard and determined, or a new election is held in accordance with the Election Code . [ 34 ] Preserving the status quo has limited applicability in the weighing of convenience (see RJR-MacDonald at 347), but it is particularly challenging in the facts of this case. [ 35 ] First, can the Court be satisfied as to the actual status quo ?

Second, can the Court identify the point in time where equity would require restoration of that status quo ? Thirdly, in attempting to restore the status quo by injunctive relief, could the Court be confident that more significant harm would not be created to the Defendants or third parties? On each of these points, I am substantially in doubt. [ 36 ] The Plaintiffs argue that the leadership status of the Plaintiffs is decisive and without doubt. I disagree. On the record before me, I do not find certainty in the status quo to the extent urged by the Plaintiffs.

It may be said that the Plaintiffs’ entitlement is superior to that of the Defendants, but it is not without dispute, nor is it exclusive. The best that could be said of the status quo is that there are competing positions about the representation of the Descendants. These disputes go to the definition and legitimacy of the Descendants membership and governance structures. [ 37 ] Further, this situation has evolved since 2019, when a rift arose from the election process. The Plaintiffs argue that the evolving and continuing conduct of the Defendants required resort to this Court’s inherent jurisdiction in 2023.

Suppose that is the case, the substantial length of time between the injury and the timing of this claim does not assist the Plaintiff in the balancing process. There is nothing in the record before me that shows a point in the Defendants’ conduct between 2019 and 2023 that resolves the balance of convenience in favour of the Plaintiffs. [ 38 ] Lastly, I am concerned that the effect of injunctive relief would cause significant and foreseeable harm to the Defendants if some or all of these claims were resolved in their favour.

Granting the Plaintiffs’ injunction would likely resolve the issues sufficiently to make the Defendants’ ability to defend the claim irrelevant or fruitless. [ 39 ] The injunction sought would have to be so expansive as to remove any claim of legitimacy that the Defendants might have: see RJR-MacDonald at 338. It would effectively remove their right to advocate on behalf of the Descendants and potentially limit their own right of personal advocacy. In this scenario, it is difficult to conceive what benefit would be available for them at the end of the trial.

It would amount to this Court making an order that would endorse or legitimize the Plaintiffs before a trial that may very well not come to a similar conclusion. [ 40 ] While the Plaintiffs make reasonable arguments about the potential strength of their position, in the end, the Defendants may well prevail. Inherent in the balancing exercise lies a risk of harming the Defendant by enjoining him from pursuing a course he may ultimately have had every right to follow: see Robert J.

Sharpe, Injunctions and Specific Performance , Aurora, Ont: Canada Law Book (loose-leaf updated 2022) at 135. [ 41 ] The injunction sought will also deprive the Descendants of their voice in resolving this issue internally. This was a concern also expressed by the Confederacy of Treaty Six First Nations. Layered in this dispute are serious debates about the identity and destiny of the Descendants that are fundamental to the Papaschase People. The Court will adjudicate this case if called to resolve the claim at

trial. However, this Court should not influence that debate before trial through the requested interlocutory injunction. [ 42 ] Throughout my reasons, I have expressed concerns about the legal authority of either group to exclusively represent the Descendants. Underlying these questions are concerns about the limits to the justiciable interest in this dispute. Both the Plaintiffs and the Defendants have formed associations to pursue this shared goal. They have rules in the Elections Code and Membership Code .

These are practical measures by which to pursue their shared goals, but they do not in and of themselves give rise to contractual relations among the individuals who join.

The members of the associations do not enter into enforceable legal obligations just because they have joined a group with rules that members are expected to follow: Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga , 2021 SCC 22 [ Ethiopian Orthodox ] at para 23 . [ 43 ] When I consider the relationship between the parties themselves and the Descendants, it is difficult to see a contractual relationship that engages a legal right in property, contract, tort or unjust enrichment: see Ethiopian Orthodox at para 22 .

In order to find such a relationship, an inference would need to be drawn in favour of the Plaintiffs with respect to their legitimacy and exclusive authority. The evidentiary record before me is not strong on this point. While the evidentiary record may become stronger at trial, on the record before me, the balance of convenience favours the Defendants on this point. E. Ineffective Undertaking on Damages. [ 44 ] The Plaintiffs, both individual and corporate societies, cannot provide sufficient security to indemnify the Defendants against damages they might suffer.

There are flaws inherent in the present undertakings sufficient to deny injunctive relief. [ 45 ] It is a requirement for the party seeking an injunction to provide an undertaking to indemnify the opposing party’s damage. This is not a formality, but an equitable requirement to seek injunctive relief and an integral part of the balance of convenience: Lac La Biche v Alberta , 1993 ABCA 104 at para 26 . [ 46 ] While the Plaintiffs individually have provided an undertaking to the Defendants, should a subsequent election occur during the interlocutory phase, the identities of the Plaintiffs might change.

The Defendants can have little comfort that the undertakings they are given today will provide much security. The Plaintiffs submit that subsequent Counsellors could provide future undertakings. This highlights the disconnect between the individual Plaintiffs and the harm they claim on behalf of the collective group. V. Conclusion [ 47 ] I deny the Plaintiff’s application for an interlocutory injunction. The interim injunction is therefore dismissed. [ 48 ] While there may be a serious issue to be tried, the strength of the claim is uncertain.

I do not accept that irreparable harm to the individual Plaintiffs is likely. Even if I was convinced that those two factors favour the Plaintiffs, the balance of convenience conclusively favours the Defendants. Heard on the 25 th day of October, 2023. Dated at the City of Edmonton, Alberta this 15 th day of December, 2023. Kent J. Teskey J.C.K.B.A. Appearances: Alison J. Gray & Caitlin Milne Gowling WLG (Canada) LLP for the Plaintiffs George F. Quinn

Self-Represented Defendant Darlene Misik Self-Represented Defendant Bonnie Gravel Self-Represented Defendant Mark Nixdorf Self-Represented Defendant Clifford Gladue Self-Represented Defendant Len Steinhauer Self-Represented Defendant Holly Teed Self-Represented Defendant Robert Stanley Ghostkeeper Self-Represented Defendant Dellmar LaPratt Self-Represented Defendant Deborah Lynn Metz Self-Represented Defendant