2012 QCCA 636, 2012 QCCA 636

Saikaley c. Long Point First Nation (LPFN) 2012 QCCA 636 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-09-007621-128 (610-17-000094-086) DATE: April 3 rd 2012 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. PAUL VÉZINA, J.A. JACQUES R. FOURNIER, J.A. ALEXANDER SAIKALEY APPELLANT – Plaintiff v.

LONG POINT FIRST NATION (LPFN) and MARIELLE RANNOU RESPONDENTS – Defendants JUDGMENT [ 1 ] The respondents ask for the dismissal of the appeal of a judgment rendered by the Superior Court of Quebec, district of Témiscamingue, (honourable Laurent Guertin) which dismissed the action of the appellant, with costs. [ 2 ] The appellant filed an action claiming a sum of $184 307.85 for wrongful dismissal.

The trial judge concluded, after having assessed the testimonies of several witnesses, that the appellant, as the director of the school, failed to provide the teachers and the students with a safe environment and therefore did not fulfill his role and responsibilities with respect to his job description : [111] The defendant has to have complete confidence that the school principal will take the right decision to insure the safety and well being of the students and the staff. Here, the plaintiff made many judgment calls that lead the defendant to lose all his confidence in the plaintiff.

He did not take the possibility of a rampage seriously and from that that moment on, he has put the safety of the student in jeopardy. He did not want the police officers in the school and he did not recommend the closure of the school when the danger was imminent. [112] The plaintiff was not dismissed before an investigation took place after the events of October 31. The members of the committee gave a report dated November 21, 2007 which was filed as Exhibit D-2.

The results of that investigation appear on page 6 of that report where we can read: Many staff members have confirmed that the Director of Education/Principal did not implement proper disciplinary measures at the school to correct the behavior of students, and parents were not informed about any incident, absences and lateness, etc... The discipline at the school was not handled properly. The Director of Education/Principal did not show respect toward teachers, students, immediate supervisor, and council members as displayed via his communication skills.

Many staff members are very upset with his attitude and prefer not to engage in a conversation with him. Others fear him because of his unpredicability since they don't know how he will react towards them in any given situation. This individual tends to blame other people and refuses to acknowledge his responsabilities to ensure the proper operation of the school. The Director of Education/Principal used the term pieces of crap when talking about staff, and totally showed disrespect toward the council by stating `` if the coucil would move their fat ass we would have an adult education program running``.

The Director of Education/Principal was not fulfilling his role and responsabilities according to his job description; he did not ensure that rules are respected and did not show cooperation with the teaching staff in dealing with appropriate disciplinary measures. His lack of respect and empathy for teachers, his attitude and poor professionnal relationship has only lowered the morale of our educational institution. [ 3 ] In his inscription in appeal, the appellant submits that : 11.

Errors in the October 25, 2011 judgment to dismiss the Plaintiff's motion in part are due and complicated by the perjurious statements, claims and testimonies of the witnesses Gregory Miller and Briar Giroux (referring paragraphs 47-64 of the judgment) at

their appearance on Wednesday May 11, 2011 before the Superior Court of Quebec. 12. Errors in the

interpretations of the information and testimonies are furthered by the Defence's Exhibit D-2 (the Investigation Report as dated November 21, 2007). The emphasis of the report being a product of the Defendants based upon a complaint letter against the Plaintiff and authored by the witness Briar Giroux for the Defendants in the first instance. The testimonies of the defendants show that the early morning meetings of the Defendants and their witnesses existed only that day of October 31, 2007 in this complaint matter (and absence from their school duties) prior to the afternoon of October 31, 2007. 13.

Errors arise due to the issue of the credibility of persons and witnesses for the Defence, and as referred to in the October 25, 2011 judgment 'des histoires', and although testimonies elude to the character and practices of the witnesses for the Defence, the judgment did not reflect or give appropriate merit to the testimony. 14.

The court was denied the right of making an accurate assessment of the information due to the combined complicity and contempt of the judicial process by the defendants and the perjurious testimony of their witnesses at trial, and with respect to the theft of weapons and any future threats until made to change by action of the Plaintiff's immediate inquiries with the police and on location efforts at the school. [ 4 ] The inscription in appeal is essentially based on the assessment of the credibility of the witnesses.

On this matter, the first instance judge has a privileged role and the Court must not intervene unless the appellant demonstrates a palpable and overriding error, which he failed to do. [ 5 ] Furthermore, concerning the respondent Marielle Rannou, the trial judge has dismissed the action on the ground that she acted in her capacity of the correspondent's representative and that there is no «lien de droit» between her and the appellant. This finding by the trial judge is not even challenged. [ 6 ] The Court is of the opinion that the appeal has no reasonable chance of success.

FOR THESE REASONS, THE COURT : [ 7 ] GRANTS the motion to dismiss the appeal with costs; [ 8 ] DISMISSES the appeal with costs. FRANCE THIBAULT, J.A. PAUL VÉZINA, J.A. JACQUES R. FOURNIER, J.A. Mr Alexander Saikaley Personally M e Luc Lachance Astell, Lachance For the respondents Date of hearing: April 2 nd 2012