2013 NBCA 66, 2013 NBCA 66

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 40-13-CA ROBERT ATWIN APPELLANT ROBERT ATWIN APPELANT - and - - et - KINGSCLEAR FIRST NATION RESPONDENT PREMIÈRE NATION DE KINGSCLEAR INTIMÉE Atwin v. Kingsclear First Nation, 2013 NBCA 66 Atwin c.

Première nation de Kingsclear, 2013 NBCA 66 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Green Appeal from a decision of the Court of Queen's Bench: February 14, 2013 Appel d’une décision de la Cour du Banc de la Reine : Le 14 février 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 70 Décision frappée d’appel : 2013 NBBR 70 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 25, 2013 Appel entendu : Le 25 septembre 2013 Judgment rendered: September 25, 2013 Jugement rendu : Le 25 septembre 2013

Counsel at hearing: For the appellant: David A. Mombourquette For the respondent: Christopher J. Stewart Avocats à l’audience : Pour l’appelant : David A. Mombourquette Pour l’intimée : Christopher J. Stewart THE COURT The appeal is dismissed with costs. LA COUR L’appel est rejeté avec dépens. The following is the judgment delivered by THE COURT (Orally) [ 1 ] The underlying action for damages in lieu of reasonable notice of dismissal failed at trial after the judge found the evidence fell short of establishing the appellant’s disputed claim of an employment contract with the respondent (see Atwin v.

Kingsclear First Nation , 2013 NBQB 70 ). Specifically, the judge found the appellant had not proven he had been hired and worked as Band Manager while holding the elected office of Band Chief.

The trial judge came to this view after: (1) inventorying the pertinent evidence, including the several pieces supportive of the respondent’s denial of any employer/employee relationship; (2) recording her disbelief of the appellant’s testimony in support of the existence of such a relationship; and (3) making the following pithy observations: Atwin says that his testimony with respect to his position as Band Manager is “uncontradicted” and the Court must therefore find that he was.

To say that the evidence on both sides is sparse is an understatement, especially in light of the fact that many people who were on the Band Council in 1994 are still living in the community. That said, the onus of proof is on the Plaintiff and I find the onus has not been met. I do not believe Atwin’s assertion that Kingsclear entered a contract of employment with him with respect to the position of Band Manager. Atwin said the following with respect to this issue: Q. Okay, so who took over – who, if anyone, took over Mr.

Paul’s duties as Band Manager after he was dismissed in September of 2000 – September of 1994?

A. I did. Q. Okay, and how was it decided that you would be taking over those duties? A. It was a decision of Council and it was also a decision of Council that – that I would assume that at no additional renumeration(sic). Q. Okay, so you said there would be no additional remuneration? A. Other than what I was already receiving. Q. Okay. And why – why was it that you were going to take on these additional duties and not receive any additional remuneration? A. Because of the fiscal position of the Band.

Atwin testified that by 2000 the fiscal position of the Band had improved from having a deficit of 1.8 million dollars to having a surplus.As a result everyone was given a raise (J-1, Tab 2). If, as Atwin asserts, he had an employment contract with Kingsclear as BandManager but was not being paid because of the “fiscal position” this would have been addressed by him and Council in 2000. It was not. When Tomer became Chief, he negotiated with the Council, as referred to above, and was paid $1000 a week as Chief. He does notassert that he was also Band Manager.

On cross-examination, Atwin admitted that his remuneration of $1,025 per week was received byhim throughout and was in payment for his role as Chief Executive Officer. Although Atwin was able to point to some documents in which he was described as “Band Manager”, this is insufficient to establish thata contract was entered with Kingsclear. In short, I do not accept his bald statement that “It was a decision of Council” as being sufficient to establish on the balance ofprobabilities that he had a separate employment contract with Kingsclear as Band Manager.

I do not believe him. [paras. 34-40] [2] Despite counsel’s able submission for rejection of the trial judge’s respondent-friendlyassessment of the record, we conclude reversal is unjustified. In our respectful judgment, the credibility finding and evidentialassessment, which undergird the action’s dismissal, must stand since they are untainted by palpable and overriding error (see Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). [3] At bottom, the appeal invites this Court to retry the case, an exercise at odds with ourreviewing role (see LeBlanc v.

LeBlanc, 2013 NBCA 22, 401 N.B.R. (2d) 334, per Larlee, J.A., for the Court, citing Housen v.Nikolaisen). Moreover, we unhesitatingly reject the contention that the trial judge’s reasons are insufficient. In our view, those reasonseasily meet the functionality test described by Bell, J.A., writing for the Court, in R. v. R.D.H., 2009 NBCA 28, 360 N.B.R. (2d) 1: In R. v. R.(D.), (SCC), [1996] 2 S.C.R. 291, [1996] S.C.J.

No. 8 (QL), Major J., for the majority addressed the issue ofsufficiency of reasons of the trial judge: [...] Where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly revealsthe trial judge’s reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere. [...] [para. 55]. More recently, in R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 (QL), 2002 SCC 26, the Court again addresses the issue of

the sufficiency of reasons. Binnie J., writing the judgment of the Court, states that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26). Binnie, J. further states that the duty to give reasons “should be given a functional and purposeful

interpretation” (para. 53) and failure of this duty does not provide a “[...] free- standing right of appeal and [...] entitlement to appellate intervention” (para. 53). Essentially, Sheppard holds that appellate courts should ask whether the reasons respond to the case’s issues, having regard to the evidence as a whole and the submissions of counsel. An appeal based upon insufficient reasons will only be allowed when the trial judge’s reasons are so deficient that they foreclose meaningful appellate review (see also, R. v. Walker , [2008] 2 S.C.R. 245, [2008] S.C.J.

No. 34 (QL), 2008 SCC 34 , where Binnie J. concludes that the duty to give adequate reasons is founded upon the need for trial judges to justify and explain the result; to tell the losing party why he or she lost; to provide for informed consideration of the grounds of appeal; and to satisfy the public that justice has been done). In R. v. R.E.M ., [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52 (QL), 2008 SCC 51 , the court was required to consider the adequacy of reasons of a trial judge in his assessment of the credibility of witnesses.

McLachlin C.J. explains that credibility findings may involve factors that are difficult to verbalize. The Chief Justice goes on to state that an appellate court reviewing reasons for sufficiency should start from a deferential stance toward the trial judge’s findings of fact. Next, the appellate court, proceeding with deference, must determine whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict reached (para. 67) (see also New Brunswick (Minister of Family and Community Services) v.

T.L.M. (Litigation guardian of) , [2009] N.B.J. No. 19 (QL), 2009 NBCA 8 regarding sufficiency of reasons). [paras. 7-8] [ 4 ] In MacWilliams v. AMEC Americas Ltd. (c.o.b. AMEC Earth & Environmental Ltd.) , 2012 NBCA 46 , 388 N.B.R. (2d) 254, the Court made the following observations regarding the sufficiency of reasons for judgment: The sufficiency of reasons for decision must be assessed in the context fleshed out by the pleadings, the submissions, the admissions and the evidence. Quality of judgment writing is not measured by the number of words employed.

Some writers have the uncanny ability to express thoughts concisely while others, unfortunately, are less gifted and tend to fall prey to prolixity. [para. 58] In our judgment, the trial judge’s reasons are beyond reproach. We would add that prolix reasons for judgment constitute an impediment to access to justice on appeal, and must be avoided. [ 5 ] The appeal is therefore dismissed. Accessorily, we order the appellant pay costs, which are fixed at $2,500. ______________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK _______________________________________ M.E.L.

LARLEE, J.A. ________________________________________ BRADLEY V. GREEN, J.A.