ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 3218/05
DATE: 20120213

BETWEEN:

Anna P. McLeod and Thomas McLeod
Plaintiffs

– and –

Nipissing First Nation No. 10 (Nipissing First Nation Indian Bank, Nipissing Band of Ojibways)
Defendant

Plaintiffs, self-represented

Fred J. Bellefeuille, for the Defendant

HEARD: June 27, 28, 29, 30, November 21, 22, 23, 24, 29, December 2, 5, 6 and 7, 2011

Cornell J.:

1The plaintiffs Anna P. McLeod (“Anna”) and Thomas McLeod (“Thomas”) are members of the Nipissing First Nation No. 10 (“NFN”), the defendant in this action.

2The plaintiffs have alleged that they were singled out for mistreatment by NFN and have advanced numerous claims including malicious prosecution, false arrest, intentional infliction of mental suffering and defamation. For the reasons which follow, I find that there is no basis for any of the claims which have been advanced by the plaintiffs and accordingly the action is dismissed for the reasons which follow.

Legal Representation

3The trial was scheduled to begin on June 27, 2011, and continue for two weeks. A few weeks before the trial was to commence, the trial coordinator’s office was advised that the plaintiffs’ lawyer’s wife and children had been very seriously injured in an automobile accident and that a request for an adjournment was being made by the lawyer. I indicated on a preliminary basis that I was amenable to granting an adjournment in those circumstances, but was then advised that the plaintiffs were insisting that the trial proceed as scheduled and that they were prepared to proceed without a lawyer.

4The trial commenced on June 27, 2011, as scheduled without the plaintiffs having the benefit of legal representation. On Wednesday, June 29, 2011, Anna advised me that given the difficulties that the plaintiffs were encountering in presenting their case, they were going to have a lawyer appear on their behalf the next day. On the morning of Thursday, June 30, 2011, Lorieann Whittaker appeared and the following exchange took place:

THE COURT: Are you now counsel of record for the plaintiffs?

MS. WHITTAKER: I have agreed to come back and assist with the trial on my understanding my discussions with Ms. McLeod is there’s a lot of difficulty making it through the evidence and – and a lot of not focusing in on the proper evidence, so we’ve had some discussions and I’ve agreed to come back and assist with the trial and, hopefully, we can get through the evidence quicker for the Court’s convenience.

THE COURT: Okay, So, just to put a fine point on it then, are you counsel of record as of this point in time?

MS. WHITTAKER: Yes, you can note me as counsel of record.

THE COURT: Okay. All right. Are you prepared to proceed and continue?

MS. WHITTAKER: Yes.

5I then discussed with Ms. Whittaker and Mr. Bellefeuille the nature of the claims and evidence which had been advanced by the plaintiffs, the preparation of a joint document brief and factums, as well as canvassing available dates with the result that the trial was scheduled to resume on November 21, 2011, for three weeks, a time convenient to all parties.

6This adjournment was specifically granted to permit the plaintiffs to have the benefit of legal representation and to give their lawyer a reasonable amount of time to prepare for the continuation of the trial.

7The trial resumed on November 21, 2011, as scheduled. At that time, I was advised by the plaintiffs that they wanted a further adjournment to permit them to retain and instruct new legal counsel. When I questioned Anna about Ms. Whittaker’s failure to attend, I was advised that in mid-July of 2011, some two weeks after Ms. Whittaker’s appearance in these proceedings, the plaintiffs were advised by Ms. Whittaker that unless they provided her with a retainer in an amount of $50,000, she was not prepared to represent them in these proceedings. As a result of this, the plaintiffs filed a notice indicating that they would be self-represented in these proceedings.

8In view of this development, I made an order that Ms. Whittaker appear before me the following morning to explain her failure to appear as trial counsel in view of the assurances that she had provided to me on June 30, 2011.

9On November 24, 2011, Pierre Legault appeared on behalf of Ms. Whittaker. He presented a copy of a doctor’s note dated November 23, 2011, indicating that Ms. Whittaker was unable to work at present as she had presented herself for emergency admission to the North Bay Regional Health Centre. Mr. Legault further advised me that Ms. Whittaker’s admission to the hospital was stress-related and he did not know if Ms. Whittaker would ever return to the practice of law.

10The trial then proceeded at a glacial pace with the result that on November 24, 2011, I encouraged the parties to meet with another judge on Friday, November 25, in an effort to put an agreed statement of facts in place in order to shorten the trial. This process continued unsuccessfully on Monday, November 28, 2011. When court reconvened on November 29, Anna opened court by demanding that I appoint a lawyer for the plaintiffs failing which the defendant should be obligated to arrange for the plaintiffs to have legal representation in view of the fact that the plaintiffs were Band members. I carefully explained to the plaintiffs that neither of these options were available to them and that the trial would proceed in the absence of an agreed statement of facts. The plaintiffs then advised that in view of my ruling, they were not prepared to continue to proceed with the action and that they would leave the court room and not participate further in the action until such time as they were able to find legal representation. I warned the plaintiffs that if they were not present in court following the morning recess, that the action would continue in their absence and in all likelihood, would result in the action being dismissed with costs.

11After returning from the morning recess, the plaintiffs were absent from the court room. The plaintiffs were paged but did not reappear. In view of this development, Mr. Bellefeuille asked for an adjournment to consider his client’s options. The matter was then adjourned to December 2 to allow the defendant an opportunity to arrange for their witnesses to travel to North Bay. When asked if Anna’s re-attendance would be required to permit cross-examination, counsel for the defendant indicated that such a step was not necessary. The defendant then proceeded to call evidence in the absence of the plaintiffs.

Background

12Thomas is a Status Indian. The plaintiffs married in 1972 with the result that Anna obtained Indian Status at that time. They lived on the reserve from 1972 until 1998 in relative harmony with the other inhabitants. The same cannot be said thereafter.

13In 1997 or 1998, Anna decided to become an activist. She was firmly of the view that the Band leadership was corrupt and that large amounts of money had been improperly taken. She was convinced that nepotism was the order of the day and that unless you were a relative or friend of those people who were in positions of power, you would not share in the largesse and be otherwise at a disadvantage when it came to Band affairs. Anna joined the Indian Action Coalition. At one time or another, submissions or complaints were filed with the Federal Department of Justice, Indian Affairs, federal politicians, provincial politicians, the R.C.M.P., the O.P.P., the North Bay Police Force, as well as the Human Rights Tribunal. Apart from this, the plaintiffs, and Anna in particular, became confrontational when dealing with NFN officials in all capacities. On March 5 of 1998, the NFN issued a trespass notice to Anna which prevented Anna from attending at NFN offices and requiring her to deal with the NFN in writing. Anna referred to this first trespass notice as her “prohibition order”. In accordance with its terms, the initial trespass notice expired on March 4 of 1999.

14On June 17, 1999, the NFN issued a further trespass notice which stated that she was not to attend NFN offices on an indefinite basis. This second trespass notice was lifted in September of 2003. This is the basic factual framework upon which Anna relies for her various claims made against the NFN which for ease of reference were referred to as the “abuse claims”.

15The plaintiffs’ second set of claims focussed on allegations that Thomas had been the victim of false arrest and malicious prosecution at the hands of the NFN. The plaintiffs allege that the NFN was responsible for having the Anishinabek Police Force lay those criminal charges against Thomas.

16The third set of claims contained in the statement of claim alleged libel and slander claims due to comments made by Bob Goulais in connection with Anna’s “Many Moons” newspaper. The plaintiffs did not name Bob Goulais as a defendant. When it became clear during the course of Anna’s testimony that the NFN had nothing to do with the actions of Bob Goulais, the plaintiffs abandoned the libel and slander claims.

17The plaintiffs assert that they had been singled out for mistreatment at the hands of the NFN and its’ officials due to the fact that Anna was a white woman and due to Anna’s involvement with activist groups in an effort to obtain greater accountability from Band leaders. The plaintiffs go on to say that the criminal charges which were laid against Thomas had no basis and were simply further evidence of the abuse and mistreatment that the plaintiffs had been singled out for by the Band leadership.

18Not surprisingly, the NFN takes a very different view of the matter. They take the position that Anna was demanding and abusive when she interacted with Band officials who were doing nothing more than trying to simply do their jobs. NFN alleges that Anna’s conduct got to the point that Band officials became concerned for their very safety and that the trespass notices constituted measured and reasonable steps to protect Band officials and employees from Anna’s rude and abusive conduct. They say the plaintiffs’ conduct had reached the point where it had become a workplace safety issue. NFN goes on to say that they had no involvement in the decision to lay charges against Thomas, a decision that was made solely by the Anishinabek Police Force which is not a party to this action.

Conclusion

44All of the plaintiffs’ claims are dismissed.

Costs

45The defendant shall have its costs of the action. If the parties are unable to agree on the amount of such costs, they may contact the trial coordinator to make arrangements for further submissions on this subject. If further submissions are required, arrangements must be made with the trial coordinator’s office within 30 days failing which it will be assumed that the parties resolved the issue of costs.

Cornell J.