Boucher v. Métis Nation of Alberta Association et al., 2009 ABCA 5

• Judge: Côté, Hunt and Paperny, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 26, 2008
• Citations: 2009 ABCA 5;(2009), 448 A.R. 185 (CA)

Boucher v. Métis Nation (2009), 448 A.R. 185 (CA);

      447 W.A.C. 185

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.119

Rick Boucher (appellant/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/respondents)

(0803-0133-AC; 2009 ABCA 5)

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

Alberta Court of Appeal

Côté, Hunt and Paperny, JJ.A.

January 7, 2009.

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, in a decision reported at 434 A.R. 139, dismissed the application. Boucher sought a stay of execution pending appeal.

The Alberta Court of Appeal, per Côté, J.A., in a decision reported at 433 A.R. 155; 429 W.A.C. 155, granted the stay. The appeal proceeded.

The Alberta Court of Appeal dismissed the appeal.

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 before any evidence was heard - The chambers judge rejected the argument - The Alberta Court of Appeal dismissed Boucher's appeal - There were no express rules or bylaws governing the number of members needed to hold an MJC hearing - Initially all the MJC were summoned and began to sit on the hearing before there was a resignation - If the governing document was silent, then full attendance was not necessary and a quorum sufficed - That quorum was presumed to be a majority - A majority of six people was four - Therefore, the resignation of one member would not break the necessary quorum - Five members could decide - Any contrary rule of law would be extremely inconvenient - Loss of one or more members partway through did not force the body to stop its hearing, so long as the quorum was never broken - See paragraphs 31 to 43.

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 chambers judge concluded that the MJC was a private consensual tribunal and agreed that any review had to focus primarily on procedure - The Alberta Court of Appeal agreed with the chambers judge that the usual standard of review and grounds for judicial review of public tribunals did not apply to the MJC - If quashing a decision by court order was possible, it might be limited to breach of internal rules, lack of procedural fairness, or bad faith - See paragraphs 3 to 12.

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 - It was alleged that he 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 chambers judge held that the MJC did not exceed its jurisdiction in concluding that Boucher's conduct was gravely detrimental to the MNA - Boucher appealed - He argued, inter alia, that the MJC's decision was unreasonable because the MNA's policy respecting the administration and distribution of government funding was already doomed to fail at the time that he promoted and signed a competing contract with someone else - The Alberta Court of Appeal held that the chambers judge was not bound to say that it was unreasonable or patently unreasonable for the MJC to view Boucher's alternate contract as disloyal - It was reasonable for the MJC to conclude that Boucher still owed the MNA duties of loyalty and adherence to its established policy (set by a previous resolution of the Provincial Council) and so he owed it duties not to pursue inconsistent policies, still less a course of action which would frustrate the declared policy of the MNA - See paragraphs 24 to 28.

Cases Noticed:

Knox et al. v. Conservative Party of Canada et al. (2007), 422 A.R. 29; 415 W.A.C. 29; 286 D.L.R.(4th) 129; 85 Alta. L.R.(4th) 34; 2007 ABCA 295, leave to appeal denied [2008] 1 S.C.R. ix; 385 N.R. 390, refd to. [para. 4].

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. 12].

Air Canada et al. v. Canadian Transportation Agency et al. (2008), 378 N.R. 217; 2008 FCA 168, refd to. [para. 15].

Harris v. Law Society of Alberta, [1936] S.C.R. 88; [1936] 1 D.L.R. 401, refd to. [para. 34].

Fife v. Chatham (City) (1979), 26 O.R.(2d) 605 (Div. Ct.), refd to. [para. 34].

Murray et al. v. Rockyview No. 44 (Municipal District) and Flintstone Fun Park Ltd. (1980), 21 A.R. 512; 12 Alta. L.R.(2d) 342 (C.A.), refd to. [para. 36].

Strathcona No. 20 (County) v. Maclab Enterprises Ltd. (1970), 75 W.W.R.(N.S.) 629 (Alta. T.D.), revd. [1971] 3 W.W.R. 461 (C.A.), leave to appeal denied [1971] S.C.R. xii, refd to. [para. 36].

Parlee v. College of Psychologists (N.B.) (2004), 270 N.B.R.(2d) 375; 710 A.P.R. 375; 2004 NBCA 42, refd to. [para. 42].

Authors and Works Noticed:

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (4th Ed. 2004), pp. 190 to 192 [para. 15]; 452, 462, 463 [para. 16].

Counsel:

S.M. Tarrabain, Q.C., and M.A. Moughel, for the appellant/applicant, Rick Boucher;

H.J. Sniderman, for the respondents/respondents, Métis Nation of Alberta Association and Audrey Poitras;

D.N. Jardine, for the respondent/respondent, Métis Judiciary Council.

This appeal was heard on November 26, 2008, by Côté, Hunt and Paperny, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment reserved were delivered for the Court of Appeal by Côté, J.A., on January 7, 2009.