Gauchier v. Cunningham, 2013 ABQB 713

• Judge: Gates, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 20, 2013
• Citations: 2013 ABQB 713;(2013), 578 A.R. 142 (QB)

Gauchier v. Cunningham (2013), 578 A.R. 142 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.055

Joseph Iner Gauchier (applicant) v. John Kenneth Cunningham, also known as Kenny Cunningham Jr. (respondent)

(1103 12719)

Joseph Iner Gauchier (applicant) v. Registrar, Métis Settlements Land Registry, Peavine Métis Settlement, Peavine Métis Settlement Council, Barbara Cunningham, John Kenneth Cunningham, Lawrent Cunningham, Gordon Cunningham (respondents)

(1103 15013; 2013 ABQB 713)

Indexed As: Gauchier v. Cunningham

Alberta Court of Queen's Bench

Judicial District of Edmonton

Gates, J.

December 3, 2013.

Summary:

Gauchier applied for a declaration that K. Cunningham was disqualified from serving as a member of the Peavine Métis Settlement Council because he voluntarily registered as an Indian under the Indian Act after November 1, 1990 (the Council Application). Gauchier also filed a second application seeking mandamus against the Registrar of the Métis Settlements Land Registry and the Peavine Métis Settlement Council regarding removal of certain names (i.e., the affected parties) from the Peavine membership list (Mandamus Application). The affected parties applied for summary judgment in both the Council and Mandamus Applications. They also sought an order extending the time for filing affidavits in response to Gauchier's applications.

The Alberta Court of Queen's Bench, in a decision reported [2013] A.R. Uned. 550, granted the affected parties an extension of the time in which to file affidavits and denied them summary judgment.

The Alberta Court of Queen's Bench allowed the Council Application, holding that K. Cunningham was precluded from voting or running as a councillor in Peavine's elections. The court also allowed the mandamus application to the extent of ordering that the Registrar strike the names of the affected parties from the Peavine list.

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - [See Administrative Law - Topic 3551 and Indians, Inuit and Metis - Topic 2107 ].

Administrative Law - Topic 3551

Judicial review - Mandamus - Conditions precedent - The Alberta Court of Queen's Bench referred to a list of the principal requirements which had to be met before mandamus would issue - See paragraph 103.

Indians, Inuit and Metis - Topic 2107

Nations, tribes and bands - Bands - Membership - Gauchier applied for mandamus to compel the Registrar of the Métis Settlements Land to remove the names of certain individuals (i.e., the affected parties) from the Peavine Métis Settlement membership list - The Alberta Court of Queen's Bench held that the test for mandamus was met and ordered that the Registrar strike the names of the affected parties from the Peavine list - See paragraphs 102 to 128.

Indians, Inuit and Metis - Topic 6240.6

Government - Métis Nation - Métis Settlement Councils - [See Indians, Inuit and Métis - Topic 6245 ].

Indians, Inuit and Métis - Topic 6245

Government - Elections - Qualifications or right to vote (incl. residency) - In 1989, Cunningham applied to be registered as an Indian under the Indian Act - In 1993, he was advised that he was registered as an Indian - On March 23, 2001, the Registrar of the Métis Settlements Land Registry struck Cunningham's name from the Peavine Métis Settlement membership list because he voluntarily registered as an Indian after November 1, 1990 - Pursuant to a court order, Cunningham's name was added back to the list in 2009 - Gauchier applied for a declaration that Cunningham was disqualified from serving as a member of the Peavine Métis Settlement Council because he had voluntarily registered as an Indian - The Alberta Court of Queen's Bench allowed the application - His name was only on the list because of a court ruling which had been since overturned - The combined effect of the Registrar's 2001 decision and the provisions of the Métis Settlements Act was that Cunningham was no longer a member of Peavine and, as such, was precluded from voting or running as a councillor in Peavine's elections - See paragraphs 73 to 101.

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing - Gauchier applied for a declaration that K. Cunningham was disqualified from serving as a member of the Peavine Métis Settlement Council because he voluntarily registered as an Indian under the Indian Act after November 1, 1990 (Council application) - He also sought mandamus against the Registrar of the Métis Settlements Land Registry and the Peavine Métis Settlement Council to have a number of individuals (affected parties) removed from the Peavine membership list (Mandamus application) - A standing issue arose - The Alberta Court of Queen's Bench held that Gauchier had standing - He had an interest in seeing the list properly maintained - He was a member of Peavine and the Registrar refused to act - It was the only reasonable and effective way for the matter to get before the court - See paragraphs 73 to 77.

Cases Noticed:

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177; 1993 CanLII 3004 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1; 1994 CanLII 47, refd to. [para. 51].

Swain Estate v. Lake of the Woods District Hospital (1992), 56 O.A.C. 327; 1992 CarswellOnt 465 (C.A.), refd to. [para. 61].

R. v. Abell (1979), 3 Sask.R. 181; 49 C.C.C.(2d) 193 (C.A.), refd to. [para. 65].

Danyluk v. Ainsworth Technologies Inc. et al. (2001), 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 67].

Noyes v. Morris (David) Fine Cars Ltd. (2011), 527 A.R. 363; 2011 ABQB 648, refd to. [para. 69].

Distribution Canada Inc. v. Minister of National Revenue, [1993] 2 F.C. 26; 149 N.R. 152 (F.C.A.), refd to. [para. 75].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 75].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 75].

MacNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 75].

Borowski v. Minister of Justice and Minister of Finance of Canada, [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 75].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 91].

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, refd to. [para. 97].

Statutes Noticed:

Métis Settlements Act, R.S.A. 2000, c. M-14, sect. 75 [para. 7]; sect. 90 [para. 8]; sect. 96(3) [para. 9]; sect. 97(3) [para. 10].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 711 to 715 [para. 65].

Counsel:

Shawn Beaver (Beaver Leebody Frank & Associates), for the applicant;

Sandeep K. Dhir and Lindsey E. Miller, for Peavine and Peavine Council;

Robert Normey (Alberta Department of Justice), for the Registrar;

Ryan Martin (McLennan Ross LLP), for Kenneth Cunningham on the Council Application and for the Four Cunninghams on the Mandamus Application.

This application was heard on September 20, 2013, before Gates, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 3, 2013.