Boucher v. Métis Nation of Alberta Association et al., (2008) 434 A.R. 139 (QB)

• Judge: Binder, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 13, 2008
• Citations: (2008), 434 A.R. 139 (QB);2008 ABQB 262

Boucher v. Métis Nation (2008), 434 A.R. 139 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.057

Rick Boucher (applicant) v. Métis Nation of Alberta Association, Audrey Poitras, Métis Judiciary Council, Dale Friedel, Toby Racette, Ken Shaw, Bertha Clarke-Jones and Bonnie Bell (respondents)

(0703 15317; 2008 ABQB 262)

Indexed As: Boucher v. Métis Nation of Alberta Association et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Binder, J.

May 1, 2008.

Summary:

Boucher, an elected member of the Métis Nation of Alberta (MNA) Provincial Council, sought to quash a Métis Judiciary Council decision finding that he contravened conflict of interest provisions contained in the MNA Bylaws and acted in a manner gravely detrimental to the MNA.

The Alberta Court of Queen's Bench dismissed the application.

Administrative Law - Topic 526

The hearing and decision - Conduct of hearing - Adjournments - The Métis Nation of Alberta (MNA) was a society incorporated pursuant to the provisions of the Societies Act - Boucher, an elected member of the MNA Provincial Council, sought to quash a Métis Judiciary Council (MJC) decision finding that he contravened conflict of interest provisions contained in the MNA Bylaws and acted in a manner gravely detrimental to the MNA - He argued that the MJC acted unreasonably in refusing his request for an adjournment - He left the hearing after the refusal and the MJC rendered its decision - The Alberta Court of Queen's Bench held that the MJC did not act unreasonably - Alternatively, the refusal to grant the adjournment did not undermine the fairness of the hearing - The MJC had previously granted Boucher adjournments and he was given a fair opportunity to address the complaint - Boucher, in requesting this particular adjournment, expressed an intention to circumvent the proceedings (bring a court challenge to the proceeding) - There was no evidence called at any point when Boucher and his counsel were not present - The MJC was of the view that it had sufficient evidence upon which to make a ruling, and it declined to refer to the contentious documents that lead to the adjournment request and did not hear further submissions on the complaint - There was no breach of fairness in the circumstances - See paragraphs 60 to 64.

Administrative Law - Topic 545.1

The hearing and decision - Decisions of the tribunal - Effect of resignation or death of member - The Métis Nation of Alberta (MNA) was a society incorporated pursuant to the provisions of the Societies Act - Boucher, an elected member of the MNA Provincial Council, sought to quash a Métis Judiciary Council (MJC) decision finding that he contravened conflict of interest provisions contained in the MNA Bylaws and acted in a manner gravely detrimental to the MNA - The Bylaws stated that the MJC "shall consist" of six members (art. 29) - Boucher argued that the MJC made a jurisdictional error in ruling that it could proceed with the hearing with five members after the Vice Chairperson resigned - The Alberta Court of Queen's Bench rejected the argument - There was no specific provision in the Bylaws or the Rules and Procedures dealing with the issue of the quorum for a meeting or hearing of the MJC - It would be unreasonable to conclude that the stipulation that the MJC "shall" consist of six members implied that a decision of five members was invalid - Such an approach would put MJC proceedings at constant risk of being hijacked by one member and would either potentially compromise the integrity of the process or lead to unnecessary inefficiency - The court applied the common law rule as stated in Oxford and Murray to the effect that a majority of the MJC formed a quorum - See paragraphs 55 to 59.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Institutional or systemic bias - The Métis Nation of Alberta (MNA) was a society incorporated pursuant to the provisions of the Societies Act - Boucher, an elected member of the MNA Provincial Council, sought to quash a Métis Judiciary Council (MJC) decision finding that he contravened conflict of interest provisions contained in the MNA Bylaws and acted in a manner gravely detrimental to the MNA - Under the Bylaws, the MJC had the power to, inter alia, review and determine all matters concerning the suspension of rights of any member and the reinstatement thereof and all matters concerning conflict of interest - Boucher argued that an institutional bias existed, as Poitras, President of the MNA, made the complaint, and she had meetings with the members of the MJC - The Alberta Court of Queen's Bench held that there could be no apprehension of bias in the mind of a reasonable person on the facts of this case - It was not unusual for there to be a certain amount of contact among members of a private association - Poitras was entitled, as a lifetime member, to lay a complaint - Poitras had no meetings with the MJC from the time that the complaint was laid until the decision was issued - The threshold for a finding of real or perceived bias was high, and the facts of this case did not reach that threshold - See paragraphs 45 to 54.

Associations - Topic 402

Judicial review or statutory appeal - General - Standard of review - The Métis Nation of Alberta (MNA) was a society incorporated pursuant to the provisions of the Societies Act - Boucher, an elected member of the MNA Provincial Council, sought to quash a Métis Judiciary Council (MJC) decision finding that he contravened conflict of interest provisions contained in the MNA Bylaws and acted in a manner gravely detrimental to the MNA - Under the Bylaws, the MJC had the power to, inter alia, review and determine all matters concerning the suspension of rights of any member and all matters concerning conflict of interest - The respondents argued that: the MJC decision was not reviewable on the merits, only an invalid decision or action could be set aside, the merits would be reviewed only in the clearest of cases and the focus of the review was on the procedure rather than the substance of a private tribunal's decision - The Alberta Court of Queen's Bench concluded that the MJC was a private consensual tribunal - The court agreed that any review had to focus primarily on procedure - The case law did not uniformly set out a standard of review of the substance of the decision of a private tribunal - The grounds cited include ultra vires, irrelevant considerations or failure to consider relevant matters, and errors in law - It might be possible to construe certain fundamental and egregious errors as "jurisdictional" - Further, any decision of a private tribunal that was so far off base, that it made no sense (patently unreasonable standard) would be subject to a declaration of invalidity and set aside - There was a general consensus in the case law that review of the substance of private consensual tribunals would occur only in rare cases - See paragraphs 24 to 44.

Associations - Topic 404

Judicial review or statutory appeal - General - When available - [See Associations - Topic 402 ].

Associations - Topic 1543

Discipline of members - Suspension from activities - For misconduct - The Métis Nation of Alberta (MNA) was a society incorporated pursuant to the provisions of the Societies Act - Boucher, an elected member of the MNA Provincial Council, sought to quash a Métis Judiciary Council (MJC) decision finding that he contravened conflict of interest provisions contained in MNA Bylaws (arts. 22.1, 22.2) - Under the Bylaws, the MJC had the power to, inter alia, review and determine all matters concerning the suspension of rights of any member and all matters concerning conflict of interest - It was alleged that Boucher used information that he gained in his position and had his company enter into an agreement with the Métis National Council for the distribution of government funding, contrary to a motion he seconded directing the Provincial Council of the MNA, of which he was a part, to enter into an agreement that would allow the MNA to administer and distribute all of the funds - The MJC also found that Boucher did not disclose his interest in the agreement to the Provincial Council and acted in a manner gravely detrimental to the MNA - The parties agreed that the MJC erred in finding that Boucher had breached articles 22.1 and 22.2 - The Alberta Court of Queen's Bench held that, in considering the MJC's reasons as a whole, the fact that the MJC misconstrued the import of articles 22.1 and 22.2 did not vitiate its conclusion that Boucher's conduct was gravely detrimental to the MNA - Therefore, the MJC did not exceed its jurisdiction in concluding that Boucher's conduct was gravely detrimental to the MNA - See paragraphs 65 to 74.

Cases Noticed:

Penton v. Métis Nation of Alberta Association (1995), 171 A.R. 140 (Q.B.), refd to. [para. 26].

Kaplan v. Canadian Institute of Actuaries (1994), 161 A.R. 321; 25 Alta. L.R.(3d) 108 (Q.B.), affd. (1997), 206 A.R. 268; 156 W.A.C. 268; 151 D.L.R.(4th) 481 (C.A.), leave to appeal dismissed (1998), 227 N.R. 89; 219 A.R. 160; 179 W.A.C. 160 (S.C.C.), refd to. [para. 26].

Knox et al. v. Conservative Party of Canada et al. (2007), 422 A.R. 29; 415 W.A.C. 29; 2007 ABCA 295, leave to appeal dismissed (2008), 385 N.R. 390 (S.C.C.), refd to. [para. 26].

Aubichon et al. v. Pelletier et al. (1999), 179 Sask.R. 149 (Q.B.), refd to. [para. 31].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 35].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 39].

Falk v. Calgary Real Estate Board Co-Operative Ltd. (2000), 265 A.R. 60; 82 Alta. L.R.(3d) 201 (Q.B.), refd to. [para. 40].

Lee v. Showmen's Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.), refd to. [para. 40].

Schaer v. Barrie Yacht Club, [2006] O.J. No. 3582 (Sup. Ct.), refd to. [para. 40].

Lakeside Colony of Hutterian Brethren et al. v. Hofer et al., [1992] 3 S.C.R. 165; 142 N.R. 241; 81 Man.R.(2d) 1; 30 W.A.C. 1, refd to. [para. 40].

Street v. B.C. School Sports, [2005] B.C.T.C. 958; 2005 BCSC 958, refd to. [para. 41].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [para. 42].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 43].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 46].

Kane v. Board of Governors of the University of British Columbia, [1980] 3 W.W.R. 125; 31 N.R. 214 (S.C.C.), refd to. [para. 46].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 46].

R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, refd to. [para. 46].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 46].

Bennett et al. v. British Columbia Securities Commission et al. (No. 2) (1993), 37 B.C.A.C. 313; 60 W.A.C. 313 (C.A.), refd to. [para. 46].

Szilard v. Szasz, [1955] S.C.R. 3, refd to. [para. 46].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 46].

Robertson v. Edmonton Chief of Police et al. (2004), 362 A.R. 44; 2004 ABQB 519, refd to. [para. 48].

Communications, Energy and Paperworkers Union of Canada, Local 707 et al. v. Labour Relations Board (Alta.) et al. (2004), 351 A.R. 265; 2004 ABQB 63, refd to. [para. 48].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 52].

Harris v. Law Society of Alberta, [1936] S.C.R. 88, refd to. [para. 55].

Parlee v. College of Psychologists (N.B.) (2004), 270 N.B.R.(2d) 375; 710 A.P.R. 375 (C.A.), refd to. [para. 55].

Montreal Trust Co. v. Oxford Pipe Line Co. et al., [1942] O.R. 260 (H.C.), affd. [1942] O.R. 490 (C.A.), refd to. [para. 56].

Murray et al. v. Rockyview No. 44 (Municipal District) and Flintstone Fun Park Ltd. (1980), 21 A.R. 512 (C.A.), refd to. [para. 56].

Robertson v. Edmonton Chief of Police et al. (2003), 339 A.R. 169; 312 W.A.C. 169; 2003 ABCA 279, refd to. [para. 61].

Workum v. Alberta Securities Commission et al., [2006] A.R. Uned. 875; 2006 ABCA 181, refd to. [para. 61].

Violette v. New Brunswick Dental Society (2004), 267 N.B.R.(2d) 205; 702 A.P.R. 205; 2004 NBCA 1, refd to. [para. 62].

510264 N.B. Inc. v. New Brunswick (2004), 270 N.B.R.(2d) 175; 710 A.P.R. 175; 2004 NBCA 29, refd to. [para. 62].

Windsor Airline Limousine Services Ltd. v. Ontario Taxi Association, Local 1688 et al. (1980), 30 O.R.(2d) 732 (Div. Ct.), refd to. [para. 62].

McGill v. Brantford (City) (1980), 28 O.R.(2d) 721 (Div. Ct.), refd to. [para. 62].

Tomaszewska v. College of Nurses (Ont.) (2007), 226 O.A.C. 177 (Div. Ct.), refd to. [para. 62].

Counsel:

Senia Tarrabain, Sid Tarrabain and M. Ali Moughel, for the applicant;

Howard J. Sniderman and Paul W. Messner, for the respondents, Métis Nation of Alberta Association and Audrey Poitras;

David N. Jardine, for the respondents, Métis Judiciary Council, Dale Freidel, Toby Racette, Ken Shaw, Bertha Clarke-Jones, and Bonnie Bell.

This application was heard on March 13, 2008, by Binder, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on May 1, 2008.