Métis Nation of Alberta Association Local Council #, 2023 ABKB 322

Court of King’s Bench of Alberta Citation: Métis Nation of Alberta Association Local Council #1994 of Grande Cache v Métis Nation of Alberta Association, 2023 ABKB 322 Date: 20230530 Docket: 2203 18589 Registry: Edmonton Between: Métis Nation of Alberta Association Local Council #1994 of Grande Cache Plaintiff/Respondent - and - Métis Nation of Alberta Association, Audrey Poitras, Daniel Cardinal, James A. Cardinal, Jason Ekeberg, Duane Zaraska, Andrea Sandmaier, Lawrence R.

Gervais, Judy Gentes, Elmer Guillon, Hilda Lambert, Carol Ridsdale, Barry Dibb and Gary Gagnon Defendants/Applicants / _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________ I. Introduction [ 1 ] The Métis Nation Association of Alberta seeks to strike out a statement of claim filed by the Métis Nation of Alberta Association Local Council #1994 of Grande Cache in

part challenging the authority of the MNAA’s current leadership and certain steps

taken by them. [ 2 ] Per the Local Council, the terms of those MNAA office holders expired in fall 2022 despite an MNAA decision to postpone the election for those positions from fall 2022 to fall 2023. Per the LC, the ostensible officeholders are not, and have not since fall 2022, been in power, undercutting various decisions ostensibly made by them during that period. It also impugns the MNAA’s decision to postpone the election. [ 3 ] The LC anchors its challenges in part on an asserted bylaws-based contract between itself and the MNAA.

It also asserts breaches of fiduciary and consultation duties owed to it by the MNAA. [ 4 ] Per the MNAA, the officeholders’ terms were implicitly extended to fall 2023 when the election was (validly) postponed. In any case, no MNAA-LC contract exists (or at least no bylaws-based contract), and no such duties arise here. [ 5 ] I find no bylaws-based contract here or any other basis for the Court to intervene in the MNAA’s internal affairs i.e. to rule on whether it adhered (or not) to its bylaws in deciding to postpone the 2022 election and in its handling of the term-extension issue.

Or to explore the LC’s procedural fairness or other natural justice concerns. [ 6 ] Those elements of the LC’s statement of claim are struck, along with a handful of other provisions (including the LC’s claims against the individual defendants), as outlined below. [ 7 ] I do not strike its claims anchored in breach of fiduciary duty or an asserted duty to consult owed by the MNAA to the LC. II. Background [ 8 ] The MNAA provided this overview of the governance aspect: A [Métis Nation of Alberta] constitution was ready to be put to [MNAA] members in 2022.

Based on the express authority in the MNAA Bylaws – as set out in

article 3.1 of the MNAA Election Bylaws … -- a special meeting was held in June 2022 to consider a special resolution to move the date of the election back one year, so that if the constitution was ratified by members in the fall of 2022, the next MNAA election would be held under the ratified constitution. At this special meeting, members voted on and passed this special resolution. In November 2022, all members over the age of 16 years were able to vote on the constitution by mail, in-person, or online. 15,241 members voted; 96.89 per cent voted “yes” to the constitution.

The next election is set for the third week of September 2023 ….

A special meeting has been called for May 27, 2023, for members to vote on the adoption of new bylaws to give effect to the constitution. [ 9 ] The LC perceives various problems with those steps, including (as noted) the decision to postpone the election and a failure to extend the terms of the MNAA leadership, creating the asserted leadership vacuum and resulting invalidity of in-vacuum “decisions.” [ 10 ] Per the LC, “this case is about the failure of the [MNAA] and its elected Board of Directors to follow their own bylaws ....” [ 11 ] A threshold issue is whether the Court has any jurisdiction to intervene in the MNAA’s internal affairs i.e. to explore whether it breached its bylaws and, if so, to grant any remedies as a result.

III. Jurisdiction of the Court A. Legal right(

s) necessary [ 12 ] The parties agree that the jurisdictional stage was set by the Supreme Court of Canada’s decisions in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall , 2018 SCC 26 and Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22 . [ 13 ] In Highwood Congregation , the SCC outlined the necessary condition for the court’s jurisdiction to oversee the internal affairs of voluntary organizations: ... [Mr.

Wall’s] mere membership in a religious organization — where no civil or property right is granted by virtue of such membership — should remain free from court intervention. Indeed, there is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations . Jurisdiction cannot be established on the sole basis that there is an alleged breach of natural justice or that the complainant has exhausted the organization’s internal processes. Jurisdiction depends on the presence of a legal right which a party seeks to have vindicated .

Only where this is so can the courts consider an association’s adherence to its own procedures and (in certain circumstances) the fairness of those procedures. ... What is required is that a legal right of sufficient importance — such as a property or contractual right — be at stake .... [paras 24 and 27] [emphasis added] [ 14 ] The SCC elaborated in Ethiopian Orthodox : Courts have jurisdiction to intervene in decisions of voluntary associations only where a legal right is affected. ...

The legal rights which can ground jurisdiction include private rights ⸺ rights in property, contract, tort or unjust enrichment ⸺ and statutory causes of action : Wall , at paras. 13 and 25 . ... [paras 27 and 29] [emphasis added]

[ 15 ] Here the LC effectively raises only contractual rights as the jurisdictional anchor for governance oversight i.e. ensuring the MNAA adheres to its bylaws. (It recently amended its already amended statement of claim (the focus of the current proceedings) to add a claim of unjust enrichment (paras 82.1 and 82.2).

However, the new claim does not allege bylaw contraventions or other governance shortcomings, instead freestanding financial claims.) [ 16 ] The questions are whether the MNAA and the LC entered into a contract and, if so, whether the MNAA breached its terms by (per the LC) breaching the MNAA’s bylaws in pushing back the fall 2022 election and taking various steps in the asserted no-authority vacuum. B. Existence of contractual right(s) 1.

LC’s position [ 17 ] The LC contends it has a contract with the MNAA (excerpt from its written brief): This Court has inherent jurisdiction to enforce the MNAA’s by-laws through the law of contract. ... ... while the Supreme Court found in [ Ethiopian Orthodox ] that a contract does not automatically arise out of a society’s by-laws, [its analysis] to determine whether there was an objective intention to create [a contract] is a “fact-driven” analysis. Even applying this analysis, many cases have found by-laws (and even election rules) to be a binding and enforceable contract.

Applying these cases , there is an enforceable contract between the [LC] and the defendants: the MNAA by-laws. This argument is supported by the cases finding that an association’s by-laws do constitute a contract. This Court recently explained what was required: “for there to be a contract [in the by-laws of a society], there must be an offer by one party that is accepted by the other with the intention of creating a legal relationship.” [ Ali v Pakistan Canada Association of Edmonton, Alberta , 2022 ABKB 812 at para 11] .

Similarly, it can be argued that the contract, as pleaded, is more in the nature of a unilateral contract – like an online contract of adhesion . The promise of the offeree [the LC] to the offeror (the MNAA) is to conduct its business in accordance with the MNAA by-laws explicitly governing Locals and to ensure its Local by-laws remain compliant with the MNAA . In this respect, the [LC] notes that the McCargar [v Metis Nation of Alberta Association , 2019 ABCA 172 ] case, to the extent it says the MNAA by-laws are not a contract, is distinguishable .

There, McCarter attempted to advance a judicial review of the MNAA’s actions. McCargar did not advance a breach of the by-laws or contract case. The Court, however, found that the by-laws did not create a contract without an analysis of any evidence in that regard. And apparently without fulsome argument. This finding is distinguishable and not binding. [footnotes omitted] [emphasis added] [ 18 ] The LC offered these submissions somewhat under protest.

It contended that the MNAA’s no-contract submissions in its written brief took the LC by surprise and I should consider granting the LC more time to respond. [ 19 ] I decline to provide more time for further submissions. First, the LC has (as far as I can tell, having reviewed the MNAA’s submissions and the governing case law) mounted the arguments available to it here.

Second, and more important, the MNAA’s application (filed February 14, 2023) expressly raised a jurisdictional concern: In the further alternative, this Court has no jurisdiction over the portions of the action relating to the MNAA Bylaws, procedural fairness, and natural justice as they engage disputes internal to the affairs of the MNAA in its capacity as a voluntary association . [para 26] [emphasis added] [ 20 ] Per that segment, the MNAA engaged the Highwood Congregation and Ethiopian Orthodox legal-right-required framework, putting the LC on notice that the existence or non-existence of a legal-right anchor, including contractual, would be an issue. [ 21 ] I return to the LC’s contract arguments, finding them unconvincing, for these reasons. 2.

LC not an MMNA member [ 22 ] First, the LC, a society incorporated under the Societies Act , is not a member of the MNAA. The latter’s members are individual persons.

The fact that the LC’s members, or some of them, are or may be members of the MNAA, does not make the LC itself an MNAA member. [ 23 ] Accordingly, the cases examining whether members of a voluntary organization contract with it by joining and, if so, whether the contract comprises its bylaws or other constating documents, are inapplicable. [ 24 ] The LC’s arguments based on membership, express or implied, are accordingly off-target. [ 25 ] On “no contract with non-member”, see Chinese Benevolent Association of Edmonton v Chinatown Multilevel Care Foundation , 2019 ABCA 339 (paras 18-20 ), Sedgwick v Edmonton Real Estate Board Co-Operative Listing Bureau Ltd , 2021 ABQB 59 (Mandziuk J.) (para 133 ) (appeal dismissed 2022 ABCA 264 ), and Warren v Football Canada , 2020 NSSC 29 (Coady J.) (para 55 ). 3.

Possible MNAA-LC contract on affiliation [ 26 ] Beyond that, the LC argues that, on becoming affiliated with the MNAA at the LC’s inception (i.e. being approved by the MNAA to become a Local of the MNAA) and on coming to have the same bylaws or effectively the same bylaws as the MNAA itself (process not explained in the LC’s pleadings), the MNAA and the LC entered into a contract, with its terms being those bylaws.

[ 27 ] I will accept for sake of argument that the MNAA and the LC entered into a contract on affiliating. The question becomes: what are the terms of that contract? 4. Terms of contract do not include MNAA’s entire bylaws [ 28 ] Here is where the LC overreaches with its argument that the entire set of (shared or effectively shared) bylaws form those terms. The premise of the LC’s contractually-linked-by-bylaws argument is flawed. The MNAA and the LC do not share bylaws or even have any materially overlapping bylaws, in the sense of a given bylaw governing the powers and duties of more than one entity.

Accordingly, they cannot be regarded as having contracted via asserted shared or partially shared bylaws. [ 29 ] Instead, each has its own set of comprehensive bylaws, exhausting defining the powers and governing the internal affairs of each. [ 30 ] Nothing in the common source of their bylaws – i.e. the MNAA bylaws document containing the separate sets of bylaws for the MNAA and its provincial council, for regional councils, and for local councils – supports the existence of any kind of contract between any of those independent actors e.g. between the MNAA and the LC here. [ 31 ] For one thing, no provision in the bylaws document expressly says that. [ 32 ] Beyond that, while the LC’s bylaws are ostensibly the “full set”, the only way to make sense of its bylaws is to regard the MNAA-focused and regional-council-focused elements as surplusage i.e. for a given local council. [ 33 ] For instance, the fact that the LC’s bylaws ostensibly address such matters as the objectives of the MNAA (Art 1), the boundaries of the six provincial regions (Art 11.2), the powers of the provincial and regional councils (Arts 13 and 14), and the election of the provincial council (Art 16), for example, among dozens of other non-local matters, confirms that the LC’s actual bylaws are a subset of the overall bylaws, and same for each of the MNAA and its provincial council, on the one hand, and regional councils, on the other. [ 34 ] Notably, the LC’s original (1994) bylaws were “customized”, as in limited to local matters i.e. did not contain MNAA- focused or region-focused (surplusage) dimensions, as discussed further below. [ 35 ] I conclude that the shift in 2006 to ostensibly-mirroring bylaws (i.e. as between the MNAA overall and a given local council) was simply a shorthand way of providing for the bylaws of each i.e. with the “master set” of bylaws necessarily read down i.e. as applying, to each constituent element (MNAA and provincial council, regional councils, and local councils), only to the extent reflected by the wording of a given bylaw. [ 36 ] For instance, out of the master set of MNAA bylaws, only the following articles apply to local councils: Articles 4.3 (“Annual Local Meeting”), 4.8 (“Local Community”), 12.1 (Métis Nation government consisting of provincial, regional and local councils), 12.4 (executives of local councils), 15 (powers of local councils), and 61 to 79 (Election and term of local council, its executive officers and their duties, vacancies in those offices, salaries for those offices, local-council meetings, conflict-of-interest guidelines for local councillors and the role of the Métis Judiciary Council in same, removal and vacancy of such councillors, annual local meetings and voting at such, special meetings and voting at such, rules of order, and other local matters). [ 37 ] Dozens of other bylaws in the master set only apply and exclusively to the MNAA and the provincial council, and same thing for regional councils. [ 38 ] The MNAA’s choice to provide bylaws for each unit in this overlay fashion does not mean, on its own, that a given unit’s bylaws are functionally the bylaws of any other unit or otherwise that a contractual link exists between given units via any particular set of bylaws. [ 39 ] In the end, each unit ends up with its own distinct bylaws, with none shared or even overlapping in the sense of a given bylaw providing powers or duties to more than one unit. (A possible (and immaterial) exception is

Article 12.1, which simply defines the three orders of government.) 5. Separate bylaws reflect separate operational spheres [ 40 ] Per the bylaws’ explicit provisions, each component part operates in its own sphere and with its own distinct set of bylaws. [ 41 ] Nothing in any of the noted local-council bylaws gives the MNAA, its provincial council or any of its regional councils any veto over or say in any decision-making by a local council. The propriety (or otherwise) of a local council’s decision is governed strictly by its own bylaws. [ 42 ] And vice versa.

The bylaws governing the MNAA itself and its provincial council similarly provide no role of any kind for a local council in MNAA or provincial-council decision-making. [ 43 ] The LC’s assertion of an entire-bylaws contract between the MNAA and itself is inconsistent with this express division of powers and responsibilities. 6. Existence of express channels undercut implicit-contract position [ 44 ] The LC’s entire-bylaws-contract position is incompatible with Art 12 of the MNAA’s and the LC’s bylaws (“Government of the Métis Nation”).

[ 45 ] It establishes the “three orders” of government (provincial council, regional councils, and local councils). [ 46 ] It also outlines the following “chain of representation”: local-council presidents sit on their applicable regional councils.

In turn, regional council presidents and vice-presidents sit on the provincial council. [ 47 ] In this fashion, the bylaws provide an express channel for local-council concerns to be addressed at its regional council and, in turn, for those concerns to be aired, by the president and vice-president of that council, at provincial council. [ 48 ] Beyond that, individual members of the LC (i.e. not the LC itself) are able to raise their concerns in their capacities as members of the MNAA i.e. to pursue whatever rights and privileges come with MNAA membership i.e. as provided in the MNAA bylaws. [ 49 ] The assertion of an implicit contractual right in favour of the LC (e.g. that the MNAA will conduct its internal affairs in line with its bylaws) is inconsistent with these express modes of local concerns reaching the MNAA. 7.

Limited terms of any MNAA-LC contract [ 50 ] Per the bylaws, the only direct interaction between the MNAA and its provincial council, on the one hand, and a local council, on the other, is that the provincial council must approve a local community’s use of the name “Métis Nation” i.e. before a local council becomes such (Article 4.8(a) – definition of “Local Community”). [ 51 ] Here is where the very limited contractual connection (if any) between the MNAA and the LC emerges.

The MNAA’s approval here is reflected in its July 1994 Certificate of Approval: THIS IS TO CERTIFY that THE [MNAA] hereby consents to the use of the name LOCAL #1994 Grande Cache of the [MNAA] for the purpose of incorporating a society under that name pursuant to the Societies Act of Alberta. In consideration for this approval, [the LC] shall restrict its operation to the community of Grande Cache, Alberta and such surrounding areas as may be designated by the [MNAA].

THE [MNAA] shall not be responsible for any debts or legal obligations of [the LC] and the [LC] shall indemnify and save harmless THE [MNAA] from any and all losses or expenses incurred by THE [MNAA] as a result of the approval and consent of the use of the name . CONDITIONS OF APPROVAL ARE HEREBY ACKNOWLEGED BY THE INCORPORATORS OF THE [LC]. [ 52 ] The contract here, if any, is expressly limited to the MNAA approving the LC’s Métis-Nation-connection name in exchange for the LC agreeing to focus its operations and activities on local matters, plus the following related provisions from

Article XV of the 1994 bylaws: The [LC] recognizes and acknowledges the [MNAA] as the proper representative of the Métis people of Alberta and shall not encroach upon their [i.e. the MNAA’s] field of endeavor , but the [LC] shall restrict its affairs to Local community efforts. All representatives [representation?] beyond the community level must be through the [MNAA] or with its written consent.

The [LC] acknowledges that the use of the name of the [MNAA] and its affiliation with [it] is at the sole discretion of the [MNAA] and if for any reason irreconcilable differences arise between the [MNAA] and the [LC], the [MNAA] shall be entitled to demand of the [LC] that it withdraw any reference to the [MNAA] from its name. Upon withdrawal of consent to the use of any such reference, the [LC] shall change its name in accordance with the Societies Act and release the [MNAA] from any rights, obligations, or privileges it formerly held. [paras 1 and 2 of

Article XV] [emphasis added] [ 53 ] Those passages confirm the separate spheres of concern of the MNAA and the LC here.

And that the LC’s “upward reach” – i.e. into the MNAA’s affairs – is limited to the “representation chain” noted above, plus the individual members of the LC pursuing their rights as MNAA members. [ 54 ] The LC did not plead or argue that any “written consent” (noted above) was provided here for different or in any case broader representation of LC concerns at the MNAA level. [ 55 ] As expressly stated in the first passage above, the LC “shall not encroach upon [the MNAA’s] field of endeavor.” That limitation further negates the existence of any LC contractual or other private-law rights in the administration of the MNAA’s internal affairs. [ 56 ] As do the “un-affiliation” provisions.

The notion of the LC having a contractual interest in, for instance, the running of MNAA meetings or in the decisions taken (or not taken) at such meetings is incompatible with the MNAA’s “sole discretion” right, where “irreconcilable differences” arise, to unaffiliate with the LC i.e. to respond to any perceived concerns from the LC by removing the LC from the MNAA’s orbit. That may be an extreme reaction. But its potential illustrates the unreality of the LC having a contractual stake in the MNAA’s internal affairs and its theoretical right to insist on the MNAA adhering to its bylaws.

If push came to shove, the MNAA could solve an impasse by invoking the noted power. The existence of that power does not square with the LC’s contract theory. [ 57 ] I recognize here that the April-2006-era bylaws of the LC, shown as registered with Corporate Registry in that month, do not reproduce those

Article XV provisions of the 1994 bylaws. But, equally, the 2006 bylaws do not expressly repeal the 1994 bylaws. I conclude here that the 2006 bylaws replace and augment the 1994 bylaws where they are inconsistent with or add to those bylaws. But with nothing in the 2006 bylaws expressly or even implicitly ousting

Article XV, I find that the latter continues as part of the LC’s overall bylaws.

[ 58 ] I also recognize that, per the LC, its current bylaws date from November 2013. However, nothing in its Corporate Registry search (dated November 23, 2022) shows any registration of new bylaws or any change to its circa-2006 bylaws. Such registration is necessary for any such changes to take effect: ss 15(2) of the Societies Act . 8.

No link in LC’s original bylaws between LC and MNAA’s internal affairs [ 59 ] The LC’s original (1994) bylaws were self-contained i.e. did not include the MNAA-only or region-only bylaws seen in the 2006 bylaws. [ 60 ] By definition, those original bylaws did not create a contract between the LC and MNAA concerning the latter’s internal administration i.e. with the 1994 bylaws focusing exclusively on the LC’s own internal administration (i.e. aside from the noted, and limited, provisions concerning affiliation and un-affiliation between the MNAA and the LC). [ 61 ] Viewed differently, the MNAA’s own internal-administration bylaws were not included with or in any way part of the LC’s own bylaws.

Preventing any argument that the LC was somehow party to or otherwise connected to the MNAA’s own bylaws. [ 62 ] As noted, the LC’s 2006 bylaws came in “overlay” fashion i.e. containing the LC’s own bylaws plus what I have found to be surplusage elements (at least for the LC) i.e. the MNAA’s and its provincial council’s bylaws and the regional bylaws. [ 63 ] Despite that approach, nothing in the newer bylaws compels or signals a conclusion that the MNAA intended any different relationship, bylaws-wise, between itself and a given local. As before, each continued with its own distinct set of bylaws.

The MNAA’s bylaws included its own internal-administration bylaws. They also included effectively draft or template bylaws for local councils i.e. provided separate bylaws for them i.e. if and when a given separate society applied to become affiliated with the MNAA and also (apparently) to replace or supplement any pre-existing local-council bylaws (as here).

And local councils received their own separate and distinct set (or subset) of bylaws i.e. those outlined in draft or template form, for them, in the MNAA’s bylaws. [ 64 ] Again, nothing indicates that this different mode (or form) of providing bylaws for each unit (or level of government) was intended to change the core (or substance) of the bylaws: each level continued with its own level of activities, supported by its own bylaws. [ 65 ] The LC has not explained why the 2006 shift would produce an entire-bylaws contract when none was contemplated or possible before then. 9.

ABKB has ruled no contract between MNAA and its members [ 66 ] In McCargar v Métis Nation of Alberta Association , 2018 ABQB 553 (appeal dismissed 2019 ABCA 172 without discussion of this point), Feehan J. (as he then was) found no bylaws-based contract arose between the MNAA and an individual MNAA member: Nowhere in the bylaws of the Association is there any reference to membership in the Association being contractual or commercial in nature. There are no terms of contract set out in the bylaws: there is no formal offer, acceptance or consideration, nor any express intention to create legal relations.

As the Supreme Court of Canada and the Court of Appeal of Alberta have said, membership in and of itself does not constitute a contract ( Highwood at para 24; Zebroski at paras 22-25 ). Further, there is no promise that the bylaws of the Association would not be changed without his consent at any time after Mr. McCargar joined the Association. In fact, provision for amending the bylaws is specifically set out in articles 39.1 and 39.2, and the process of amendment by special resolution is specifically addressed in articles 4.11 and 24-28.

I find, under the particular circumstances before me, none of the indicia of commercial contract apply to Mr. McCargar’s past or continuing membership in the Association. As a result, I find, according to Highwood , there is no private law remedy available to Mr. McCargar. [paras 50, 51 and 53] [emphasis added] [ 67 ] If no MNAA-member bylaws-based contract exists (per McCargar ), it is even less likely that a bylaws-based contract exists here.

Especially when, as explained above, each unit (here, MNAA and LC) has its own distinct set of bylaws i.e. it cannot be fairly said that the LC is somehow a party to or otherwise connected to the MNAA’s own bylaws (i.e. those governing the activities of the MNAA itself). 10.

No contract-based right for the LC [ 68 ] To summarize: • the MNAA and the LC are distinct ( Societies Act ) entities; • the LC is not a member of the MNAA; • the MNAA and LC may have contracted when first affiliating; • the terms of any such contract do not include the MNAA’s own bylaws, with each having its own separate and distinct bylaws; • those separate bylaws reflect distinct spheres of operation for each, including each having responsibility for and control over its own internal administration; • the combined effect of the MNAA’s bylaws and the LC’s bylaws is to create, or recognize, two channels by which local concerns can be raised to the provincial level: via LC individual members exercising their corresponding MMAA membership rights and

privileges, and via the “chain of representation” noted above (LC president on regional council; two regional-council executives on provincial council).

The bylaws do not contemplate an additional (implicit contract) channel; • the terms of any MNAA-LC contract are expressly limited to the noted affiliation / un-affiliation provisions; • those provisions (“no encroachment”) also expressly contradict, and bar, the asserted implicit contract urged by the LC; • the LC’s original bylaws did not create a link between the LC and the MNAA’s own bylaws, and the 2006 bylaws did not change that “separate silos” reality; and • the absence of even an MNAA-members bylaws-based contract makes the asserted bylaws-based contract here even less likely. [ 69 ] If any MNAA-LC contract exists, it is limited, by the bylaws’ express wording, to the noted affiliation / un-affiliation aspects.

It does not extend to the MNAA’s own internal-administration bylaws. [ 70 ] Accordingly, the LC has no contract-based right to MNAA adherence (or otherwise) to the MNAA’s own bylaws. C.

If bylaws-based contract, LC must abide by its provisions [ 71 ] If the terms of any MNAA-LC contract include the MNAA’s internal-administration bylaws, the LC must pursue its complaints over any bylaws breaches via the bylaws-prescribed dispute-resolution process. [ 72 ] That process is outlined in Arts 29-31 of the MNAA’s bylaws, which (in part) create and empower a Metis Judiciary Council and makes its decisions final and binding. [ 73 ] The MJC has the powers to (in part): A .... review and decide all matters respecting the [MNAA] Election By-laws where there is a dispute; [and] g. ... provide to the Provincial, Regional, Local Council or a Metis member in good standing a written opinion on any question put to the Judiciary Council .... [Art 30.1]. [ 74 ]

Article 30.2 says (in part) that “[a]ll decisions of the [MJC] shall be final and without appeal.” [ 75 ] In this case, the LC’s core concerns are the MNAA’s decision to postpone its fall 2022 election to fall 2023 and its claimed failure to have extended the four-year terms of the 2018-2022 provincial council, leaving (per the LC) no provincial council in place since fall 2022. [ 76 ] The decision to postpone the election was made under the noted Election Bylaws, namely,

section 3.1: The date of the election shall be held on the third Tuesday in the month of the September in the year that the election is required [here, 2022] or other date determined by the Provincial Council, Annual Assembly or Special Meeting according to the bylaws of the [MNAA]. [emphasis added] [ 77 ] The controversy over whether the postponement decision was properly made and, in any case, over whether the 2018-22 provincial council has continued in office beyond fall 2022 falls within the scope of Art 30.1(a).

As discussed further below, disputes over the status of an incumbent council where an election is postponed flow directly from and are tied to the postponement decision i.e. form part of a “dispute ... respecting the ...

Election By-laws.” [ 78 ] In any case, the record shows that these questions were put to the MJC, the former by a Lethbridge local council and separately by Region 4 (i.e. the region including the LC here) and the latter by Region 4 (both aspects included in the Region 4 complaint letter dated June 1, 2022). [ 79 ] In my view, if either or both questions fell outside Art 30.1(a) (“all matters respecting the ... Election bylaws”), they squarely fall within Art 30.1(g) (“any question put to the [MJC]”).

That is, the MJC has jurisdiction over all election-bylaw disputes (which includes both the postponement and term-extension issues here) and, in any case, over any question put to it. [ 80 ]

Section 22 of the Societies Act recognizes the potential for internal dispute-resolution processes: a.

The bylaws of a society may provide that a dispute arising out of the affairs of the society and between any members of the society or between a member or a person who is aggrieved and who has not for more than 6 months ceased to be a member, or b. a person claiming through the member or aggrieved person or claiming under the bylaws of the society, and the society or a director or officer of the society, shall be decided by arbitration, which shall be under the Arbitration Act unless the bylaws prescribe some other method.

A decision made pursuant to an arbitration is binding on all parties and may be enforced on application to the Court of King’s Bench, and unless the bylaws otherwise provide there is no appeal from it. [ 81 ] In this case, the MJC process is effectively an alternative form of arbitration and one which (as noted) is final i.e. unappealable, both per the MJC’s own terms and s. 22.

[ 82 ] Here is what the LC says on this point: ... the [LC] has met any purported condition precedent that would bar it seeking relief in this Court. Put another way, the [LC] has exhausted any alternative remedies. As pleaded in the Statement of Claim, the [LC] did go to the MJC, through its role on the Region 4 Council at the time. This complaint included reference to the complaint of Dr Adam Browning [filed] against the June 2022 meeting. The Region 4 complaint was summarily rejected. [Following] the [MNAA’s] argument would require the [LC] to engage in an abuse of the MJC’s process.

The Defendants would wish to see the [LC] advance the exact same MJC complaint (or complaints) in their capacity as a Local on the very same issues that were advanced by an MNAA member Dr Adam Browning and the Regional Council, of which the [LC] is a part. This would be an abuse of process, if not issue estoppel. [LC brief, paras 25 and 26] [footnotes omitted] [ 83 ] I disagree.

The MNAA’s position, which I accept, is that, to the extent the LC has already invoked the LC process, via the Region 4 postponement and term-extension complaints, it has no further recourse i.e. with the MJC’s decision final and unappealable. [ 84 ] To the extent the LC should be viewed as still having complaint rights about the term extension issue (i.e. is somehow not bound by the MJC ruling) or about the election postponement, (is not bound by the result of the Lethbridge-local-brought complaint), it must bring those complaints to the MJC, under Art 30.1(

a) i.e. as election-bylaws dispute matters (as discussed above and further below). [ 85 ] In other words, given the MJC process and s. 22, the LC has no right to bring these complaints to the Court. [ 86 ] Cases recognizing the primacy of an internal-complaints process include Alberta Soccer Associatoin v Charpentier , 2010 ABQB 715 (Tilleman J.) (paras 31-35 ), Morin Dal Col v Métis Nation British Columbia , 2021 BCSC 964 (Mayer J.) (paras 123-125 ) and Gerrard v Cole Harbour Bel Ayr Minor Hockey Association , 2029 NSSM 31 (A Richardson QC) (paras 19-23 and 27 ). D.

In any case, LC’s term-extension complaint bound to fail [ 87 ] The MJC has already ruled the MNAA’s election-postponement decision was valid, in response to the Lethbridge local complaint. [ 88 ] In its complaint letter (as noted), Region 4 raised the same issue. [ 89 ] The MJC’s response to Region 4 was (effectively) that it had already decided the postponement decision was valid and would not revisit the issue.

Effectively, it ruled on the LC’s same complaint here, by telling Region 4 “same answer as to Lethbridge” i.e. postponement was valid. [ 90 ] As I see it, whether the MJC’s decision on Region 4’s postponement complaint should be viewed as “decision valid” or “issue already decided; we will not rule on your mirror-image complaint”, the MJC’s decision on or relating to postponement was final and unappealable, with the LC here bound by virtue of its forming part of Region 4 i.e. as effectively the same, or part of the same, party. [ 91 ] Which raises its term-extension complaint.

Does that complaint have any prospect of success. [ 92 ] The answer is no. [ 93 ] The MJC decided that the election postponement (by one year) carried with it an implicit decision to continue the terms of the existing provincial council i.e. through to that election. Its decision was anchored on the “chaos” otherwise flowing from an election postponement causing a leadership vacuum during the postponement period. [ 94 ] I agree with that conclusion, finding it inconceivable that the necessary result of the election postponement was no provincial council for the 22-23 year.

Even with no express amendment to the four-year terms (per Art 16.2) of the incumbent provincial council members. [ 95 ] The answer is straightforward.

Art 16.1 says: The [members] of the Provincial Council shall be elected in accordance with the [MNAA] Election By-Laws which ... form a part of these Bylaws. [ 96 ] That is, those members are elected, and hold office, in accordance with the election bylaws. [ 97 ] As noted above, s 3.1 of the election bylaws says: The date of the election shall be held on the third Tuesday in the month of the September in the year that the election is required [here, 2022] or other date determined by the Provincial Council, Annual Assembly or Special Meeting according to the bylaws of the [MNAA]. [emphasis added] [ 98 ] In other words, a given election will be held every four years or otherwise as determined. [ 99 ] Art 16.2 says: The [members] of the Provincial Council shall be elected for a term of four (4) years.

This will be effective for the [MNAA] election in September of 2014 [and, by extension, in September of 2018]. [ 100 ] The only correct and reasonable way to interpret these provisions collectively is to treat the four-year term in Art 16.2 as subject to change i.e. where a different election date (i.e. than the four-year anniversary month) is selected.

[101] And this would apply whether the election is moved up or pushed back. [102] For example, if the MNAA had decided (at an appropriate time) to move the 2022 election up by one year, the terms of theprovincial council members would necessarily be shortened by one year.

Given the express possibility under s. 3.1 of election-datechanges, no provincial-council member could correctly or reasonably argue that the four-year term should effectively read asunchangeable. [103] Same for postponements: a decision to push back an election necessarily implies an extension of the existing terms to the newelection date. [104] As the MJC correctly noted, the alternative – no provincial council in place in the interim – would produce uncertainty, evenchaos, sparking the need for some kind of interim solution (i.e. for some persons to be vested with the provincial council’s authority inthe gap period), possibly new (and rushed) elections, just for the gap period, when the express purpose of the postponement wasundoubtedly to continue with the incumbents, without the need for a gap-period administration i.e. to have the next election as thepostponed-to time. [105] Especially where, per the MNAA bylaws, vacancies in the president and VP positions are to be filled from the provincialcouncil and with no council at all, in the LC’s (mistaken) view. [106] In other words, it is inconceivable that the decision to postpone the elections did not implicitly carry with it a decision to extendthe terms of the incumbents to the postponed election date. [107] The MNAA’s “failure” to amend the four-year term in Art 16.2 is not failure at all i.e. when it is correctly and reasonably readas implicitly subject to change where the election date is changed. [108] Art 16.2 will set the default term period at four years once the September 2023 election is held, again subject to change of thefollowing election date under s. 3.1. [109] There is no need to amend Art 16.2 unless the MNAA decides to change the default term period from four years to somethingelse i.e. on a standing basis.

As found by the MJC and as confirmed here, ad hoc changes to an election date can be fully accomplishedvia s. 3.1 of the election bylaws, with the incumbents’ terms necessarily extended to the new date. [110] For a counterexample, where persons improperly elected were found not to continue in office until new elections were held, seeMartselos v Poitras, 2009 FC 470 (Pinard J.) (paras 16-20). [111] In the present case, the LC has not alleged that the provincial council incumbents were not validly in office as of summer or fall2022 i.e. should have been removed during the gap period on account of pre-existing ineligibility for office. [112] Bylaws are to be interpreted to avoid absurd results: Sandhu v Siri Guru Nanak Sihk Gurdwara of Alberta, 2013 ABQB 646(Marceau J.) (paras 76 and 77) (appeal dismissed 2015 ABCA 101) and Rhee v B.C. (Korean Society of), (BCSC)(Oliver J.) (para beginning “The By-Laws of the Society should be interpreted reasonably and in such a way as to avoid an absurd result...”). [113] As explained above, a validly-in-place council’s valid decision (so ruled by the MJC) to postpone an election necessarilyimplies the continuation of the incumbents’ terms to the new election.

The LC’s “power vacuum” position would produce an absurdresult. [114] I note here that the LC did not separately argue that the one-year extension was too long (for whatever reason). Accordingly, Ido not have to examine whether the postponement decision was unreasonable on that basis. E.

Breach of fiduciary duty, unjust enrichment, and damages [115] The LC asserted various breaches of fiduciary duty by the MNAA, centred on alleged misapplication by it of monies earmarkedfor the LC. [116] It also alluded to claims of unjust enrichment (now added to its amended amended statement of claim), apparently aiming at thesame alleged misconduct. [117] The MNAA disputes these allegations, arguing as well that the MNAA owes no fiduciary duty to the LC here in any case. [118] It argues that “the MNAA bylaws preclude [it] from standing in the position of a fiduciary, either in relation to the [LC] or anyMNAA member. [119] That may be true, but I do not understand the LC’s allegations as anchored on any particular bylaw breaches, instead onfreestanding fiduciary duties. [120] It is not obvious that the LC’s fiduciary-duties claims have no reasonable prospect of success.

That will turn on the evidence(or lack of evidence) of the alleged received-by-MNAA funds, the character in which the MNAA received them (if at all), the resultingduties (or otherwise) of the MNAA in regards to those funds and to whom, the MNAA’s performance (or otherwise) of such duties, andpossibly other legal and evidentiary factors. [121] I decline to strike the fiduciary-duty claims. (And, again, the current (amended) claim does not presently include unjust-enrichment claims.)

[ 122 ] I accordingly decline to strike the LC’s claim for damages against the MNAA under para 83(e)(ii) of its amended statement of claim, which links to its breach-of-fiduciary-duty claim. [ 123 ] However, I strike paras 83(e)(i) (payments to Provincial Council in asserted (and here rejected) overholding period) and 83(e) (iii), which belongs in the LC’s costs claim (i.e. is not a damages element). F.

Duty to consult [ 124 ] The LC says that the MNAA breached a duty to consult with the LC on various matters, including a new constitution for the MNAA. [ 125 ] The MNAA says that the duty to consult is exclusively a Crown duty, flowing from the honour of the Crown. [ 126 ] The LC says that the MNAA has a freestanding duty to consult with it. [ 127 ] That may be a novel argument, but I decline to strike it, finding the LC should at least have an opportunity to map out and defend this claim in tentatively scheduled

summary judgment proceedings. (The MNAA is apparently planning to bring a cross- application for

summary dismissal of all surviving LC claims.) G.

Bad faith and procedural unfairness [ 128 ] The LC makes claims under both aspects, exclusively aimed at MNAA internal administration matters (paras 77 and 78 of its amended statement of claim). [ 129 ] I strike these claims under the authority of Highwood Congregation and Ethiopian Orthodox i.e. with no private-law rights at stake here and no statutory recourse available. [ 130 ] As Rowe J. stated in the latter decision, quoting the former: ... “there is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations” [para 24 from Highwood Congregation ].

In other words, natural justice [itself or alone] is not a source of jurisdiction. [para 30 of Ethiopian Orthodox ] H. Claims against individual defendants [ 131 ] The MNAA argues: The plaintiff names as defendants members of the MNAA board of directors in their personal capacities. All claims against them must be struck. To have a reasonable prospect of success, against board members in their individual capacities, the [LC] must actually plead a cause of action against these individuals. It does not. The causes of action pleaded by the [LC] are aimed exclusively at the MNAA’s adherence to its own bylaws.

Against the MNAA, the [LC] pleads breaches of the MNAA Bylaws, procedural fairness and natural justice, fiduciary duty, and the duty to consult. AT no point does the plaintiff plead the individual board members caused or are responsible for these breaches in their personal capacities. Notwithstanding the causes of action are only pleaded against the MNAA, the plaintiff seeks $500,000 in damages from the individual board members.

This is contrary to s. 21 of the Societies Act , which provides, “[n]o member of a society is, in the member’s individual capacity, liable for a debt or liability of the society.” These claims must be struck. [ 132 ] The LC argued that: ... the MNAA directors owe fiduciary obligations to the [MNAA] and owe the “statutory fiduciary duty” associated with the role of directors and officers, as set out in

section 122 of Alberta’s Business Corporations Act . Courts have found that the fiduciary duties of corporate directors and those of society directors are analogous. The plaintiff is entitled to request a review of the directors’ compliance with their Bylaws as one aspect of that duty. [ 133 ] I agree with the MNAA here. The duties noted by the LC immediately above would be owed to the MNAA itself, not to the LC.

In any case, the LC did not plead any particular “individual” misconduct by any of the individual defendants, with the thrust of all of their complaints being MNAA actions or inactions i.e. not those of any particular individual or set of individuals. [ 134 ] Accordingly, I dismiss the LC’s claims against the individual defendants. I. Conclusion and costs [ 135 ] The LC did not show any reasonable prospect of establishing a contract-based platform to challenge the impugned internal administration of the MNAA i.e. anything to do with adherence or non-adherence with its bylaws.

Or any other private-law right in jeopardy as a result that activity or inactivity. And it did not assert a statutory basis for court involvement here bylaws-wise. [ 136 ] Accordingly, the LC’s claims aimed at or anchored on asserted bylaw breaches by the MNAA are dismissed. [ 137 ] Combined with the other to-be-struck elements noted above, the net result is that paragraphs 54-78 and 83(a), (b)(i), (e)(i), (e) (iii), and (

g) are hereby struck from the LC’s amended statement of claim. And the individual defendants are hereby removed as parties.

[ 138 ] The MNAA was substantially successful here and is entitled to costs of the strike/stay application. [ 139 ] On the scale and precise quantum of costs, I invite the MNAA’s submissions (3-page maximum, exclusive of any attachments e.g. bill of costs (as applicable) and cases) by June 16, 2023 and the LC’s submissions (same rules) by June 30, 2023. [ 140 ] I thank all counsel for their helpful written and oral submissions. Heard on the 16 th day of May, 2023. Dated at Edmonton , Alberta this 30 th day of May, 2023. M. J. Lema J.C.K.B.A.

Appearances: Jason Madden & Alexander DeParde Pape Salter Teillet LLP For the Applicants (Defendants) Orlagh O’Kelly Roberts O’Kelly Law For the Respondent (Plaintiff)