Wahta Mohawks Council v. Commandant, 2006 CanLII 38654 (ON SCDC)

COURT FILE NO.: DC-06-078980-00

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MEEHAN, CHAPNIK and DONOHUE, JJ.

B E T W E E N:

WAHTA MOHAWKS WAHTA MOHAWKS COUNCIL BLAINE COMMANDANT

Applicant Respondent on the Appeal

• AND -

KAREN COMMANDANT

Appellant on the Appeal

Counsel: Patrick Schindler for the Respondent Albert Formosa for the Appellant

Heard at Newmarket: September 13, 2006

ENDORSEMENT

1There is nothing in the material which would lead us to question what has been agreed to today. I think that it is fair to say that on a hasty review of this matter, it was not uncomplicated, but I must say that the resulting litigation from people who are obviously in close relationship with each other is most unfortunate.

2It may well be, with a new fresh Statement of Claim, that the issues may be better crystallized and dealt with as a normal unjust dismissal with the addition of the lawless grain growers aspect to it. I would hope that if that is the case, that it could be settled, because really these matters are not that difficult to settle.

3Now in relation to the item remaining, which is whether one could sue oneself, and whether the nature of a Band Council is identical with that of a partnership, we respectfully decline to decide that today.

4If the issue continues to trouble you after the issuance of the new pleading, then the Appellants have the opportunity to move against that pleading. If the issue fails to be reconciled, it would seem to me that that would be a live issue arising from that pleading.

5What I am saying to you is I am not sure that that stands, and it was not at the start of this, argued as a separate issue. I know you and I disagree with that, but that is my view in the circumstances because of the way we have proceeded.

6If that is not sufficient for you, I suppose some other panel of the Divisional Court could be seized to decide that question. But once again that will be a new Statement of Claim again, and you will probably have to put new material in, so I don't know where you are going. I will leave that for you. I cannot foreclose the matter coming on before another Panel who may have a different view than we do.

7Now in regard to costs, I think it is fair to say, as I indicated earlier, there is a substantial amount of hard feeling arising as a result of this litigation, which comes from the close relationship on the Reserve, and the relationship between the various parties in any case. Whether the accession of the Plaintiff to the Band Council has helped or hindered that, I suspect I know. But in any case, she was democratically elected.

8We are advised that she currently suffers from a serious debilitating disease, and that in the long run it is presumed that she will not have the opportunity to obtain this type of employment again.

9On the other hand, it is my view at least, that the addition of the words "declaration" and the references to injunction and so on, left the matter open to the challenge which was brought to the jurisdiction of the Superior Court.

Counsel, at our suggestion, have reconciled most of their difficulties except for the issue that I have mentioned and the issue of costs.

10The original motions judge fixed no costs. The leave judge got agreement from counsel that the proper amount was $3,000.00. The submissions today on behalf of the Respondent/Plaintiff are that there should be no costs. The Appellant's counsel submits that he should receive costs through the whole event, because his position in regard to the issue of declaratory relief and Band Councils is implicitly found to be correct.

11It was the feeling of myself and my confreres that it was unfortunate this matter ever reached us. We felt that in the circumstances that if counsel had have been a little more co-operative that this matter would have never come here. It is certainly a novel issue and we are glad that it's gone.

12Keeping in mind the onus of the Plaintiff, the nature of institutional Defendants, and the circumstances of life by and large on the Reserve, we feel that since an honest attempt has been made to reconcile most of the issues by the parties, that there should be no costs. That is our Order to date.