T-1754-84
Manitoba Teachers' Society on behalf of the Fort
Alexander Teachers' Association (Local 65 of the
Manitoba Teachers' Society), Samuel Klippen-
stein, Jon Mills, Patricia Morrisseau and John A.
Courchene (Applicants) (Complainants)
v.
The Chief and/or Council of the Fort Alexander
Indian Band and/or the Fort Alexander School
Board of the Sagkeeng Education Authority, Fort
Alexander Reserve, Kenneth Courchene, Paul
Guimond, Nelly Abraham, Rene Spence, Henry
Courchene, Carl Fontaine, Mary Starr, Wayne
Fontaine, Josephine Swampy, Martha Prince,
David Courchene, Jr., Pat Bruyere, their succes
sors and assigns, any person or group of persons
acting on behalf of anyone noted above (Respond-
ents)
Trial Division, Rouleau J.—Winnipeg, October
29; Ottawa, November 15, 1984.
Practice — Contempt of court — Non-compliance with
order of Canada Labour Relations Board (CLRB) — Indian
Band Council and School Board refusing to negotiate with
Teachers' Society and to reinstate applicant teachers — Not
appearing at show cause hearing — Challenging jurisdiction
of CLRB and Court on Indian matters — Good order,
administration of justice, dignity of Court and other legally-
constituted bodies not to be interfered with — Disobedience
not tolerated when protection of individual teachers, collective
bargaining and freedom of association at stake — R. 355(2)
providing for imposition of fines and, in default, terms of
imprisonment — Federal Court Rules, C.R.C., c. 663, RR.
354, 355.
Labour relations — Bargaining dispute — Terms of first
collective agreement settled pursuant to s. 171.1 of Code —
Refusal of respondent Indian Band Council and School Board
to negotiate — Interference in representation of employees,
intimidation and coercion — Applicant teachers employment
terminated without cause — CLRB order to abide by collective
agreement and reinstate teachers — Non-compliance based on
non-recognition of jurisdiction of CLRB and Court over
Indian matters — Authorities establishing CLRB's jurisdic
tion over matter at issue — Disobedience resulting in fines or
terms of imprisonment — Canada Labour Code, R.S.C. 1970,
c. L- I, ss. 123(1) (as am. by S.C. 1977-78, c. 27, s. 43), 171.1
(as added idem, s. 62), 184(1)(a) (as added by S.C. 1972, c. 18,
s. 1), 184(3)(a) (as am. by S.C. 1977-78, c. 27, s. 65), 186 (as
added by S.C. 1972, c. 18, s. I).
Indians — Labour dispute — Canada Labour Relations
Board (CLRB) settling terms of first collective agreement
between provincial teachers' union and Band Council — Non
compliance with CLRB order to negotiate with union
Refusal by respondents to attorn to jurisdiction of CLRB and
Federal Court over Indian reserves and activities — Respond
ents relying on First Nations Declaration as to self-determina
tion — Respondents refusal to abide by CLRB order resulting
in contempt of court — Neither Court nor CLRB proper forum
for political remedy.
Following an inquiry into the collective bargaining dispute
between the Manitoba Teachers' Society and the Fort Alexan-
der Indian Band and School Board, the Canada Labour Rela
tions Board (CLRB), pursuant to section 171.1 of the Code,
issued an order settling the terms and conditions of the first
collective agreement between the parties. The CLRB found
that the Band Council and the School Board had refused to
negotiate with the Teachers' Society, had terminated the
employment of the applicant teachers, thus interfering in the
representation of employees in contravention of paragraph
184(1)(a) of the Code and had violated section 186 by commit
ting certain acts of intimidation and coercion. The CLRB's
order was filed with the Federal Court pursuant to subsection
123(1) of the Code. Upon the Band and School Board's con
tinued refusal to negotiate and reinstate the teachers, a show
cause order was issued. The respondents, though properly
served, did not appear at the show cause hearing, on the ground
they would not attorn to the jurisdiction of the CLRB nor that
of the Court. Their position, which they announced at a press
conference, was based on the Declaration of First Nations
concerning self-determination.
Held, the respondents are guilty of contempt of court.
Nothing should be allowed to interfere with the good order
and administration of justice or impair the dignity of the Court
or other legally-constituted bodies. The Supreme Court of
Canada in the Francis case and the Saskatchewan Court of
Appeal in the Whitebear Band Council case have clearly
established the jurisdiction of the CLRB to act in this matter.
The CLRB has the responsibility to recognize freedom of
association and free collective bargaining, and Canada has
assumed international responsibility in this regard. As a long-
standing matter of public policy in this country, it should not be
the subject of provocative confrontations. Disobedience cannot
be tolerated, particularly when the protection of the individual
teachers, collective bargaining and freedom of association are
at stake. Neither the CLRB nor the Court is the proper forum
for seeking a political solution.
Under Rule 355(2) of the Federal Court, a maximum fine of
$5,000, or a term of imprisonment not exceeding one year may
be imposed in cases of contempt of court. Corporations are not
subject to such limits. The Band Council is fined $15,000; the
Chief, $5,000, and each member of the Band, $1,000. The
Court orders the School Board, its members and the Superin
tendents of Education to pay a lesser fine, on the ground they
had no alternative but to obey the instructions of the Chief and
Band Council. In default of payment, all individual respondents
are liable to a term of imprisonment.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Public Service Alliance of Canada v. Francis et al.,
[1982] 2 S.C.R. 72; Whitebear Band Council v. Carpen
ters Provincial Council of Saskatchewan et al., [1982] 3
W.W.R. 554 (Sask. C.A.).
COUNSEL:
Mel Myers, Q.C. for applicants (com-
plainants).
Robert Watson for respondents.
SOLICITORS:
Skwark, Myers, Kussin, Weinstein, Win-
nipeg, for applicants (complainants).
Robert Watson, Winnipeg, for respondents.
The following are the reasons for order ren
dered in English by
ROULEAU J.: This matter arises because of non
compliance with an order of the Canada Labour
Relations Board issued the 23rd day of August
1984 and amended by further order of the same
date. A show cause order of this Court, dated the
17th day of October 1984 summoned all the
respondents to appear before the Federal Court at
Winnipeg on the 29th of October 1984, at the hour
of 2:00 o'clock. I attended at the appointed hour
and was satisfied as to the service of the order on
all parties. None of the respondents appeared.
The Canada Labour Relations Board was
directed by the Minister of Labour, pursuant to
section 171.1 of the Canada Labour Code [R.S.C.
1970, c. L-1 (as added by S.C. 1977-78, c. 27, s.
62)], to inquire into the collective bargaining dis
pute between the parties; and, if the Board con
sidered it advisable, to settle the terms and condi
tions of a first collective agreement between them.
As a result, hearings were conducted at the City of
Winnipeg, in the Province of Manitoba, on the
21st and 22nd days of August 1984.
It was determined by the Board that the
respondents, the Fort Alexander Indian Band and
the Fort Alexander School Board of the Sagkeeng
Education Authority, Fort Alexander Reserve,
refused to negotiate with the Manitoba Teachers'
Society, Local 65; secondly, that the respondent
Indian Band and School Board terminated the
employment of school teachers Samuel Klippen-
stein, Jon Mills, Patricia Morrisseau and John A.
Courchene, effective August 31, 1984, and thus
had violated paragraph 184(1)(a) [as added by
S.C. 1972, c. 18, s. 1] of the Code by interfering in
the representation of employees by the Manitoba
Teachers' Society and its Local; thirdly, they had
violated section 186 [as added by S.C. 1972, c. 18,
s. 1 ] of the Code by intimidation and coercion,
attempting to compel employees to refrain from
becoming or cease to be members of the Manitoba
Teachers' Society.
As a result of the findings, by an order dated the
23rd day of August 1984 and pursuant to section
171.1 of the Canada Labour Code, the Canada
Labour Relations Board settled the terms and
conditions of the first collective agreement be
tween the Teachers' Association, Local 65, the
Band Council and the Board of Education. They
found that the four teachers, employed by the
Board, were responsible teachers and their con
tracts had not been renewed; that the Band Coun
cil had interfered in the representation of
employees and the Manitoba Teachers' Society;
that by certain acts of intimidation and coercion,
attempted to compel employees from refraining
from becoming or cease to be members of the
Manitoba Teachers' Society.
The Board also made the following findings: the
Chief of the Fort Alexander Indian Band was
Kenneth Courchene; the councillors of the Band
were Paul Guimond, Nelly Abraham, Rene
Spence and Henry Courchene; that the Chairman
of the Fort Alexander School Board of the Sag-
keeng Education Authority was Carl Fontaine;
that the Board was made up of the following
members: Mary Starr, Wayne Fontaine, Josephine
Swampy, Martha Prince; that the Superintendent
of Education was David Courchene, Jr. and the
Assistant Superintendent was Pat Bruyere.
Those respondents were ordered to desist from
violating paragraphs 184(1)(a) and 184(3)(a) [as
am. by S.C. 1977-78, c. 27, s. 65] and section 186
of the Canada Labour Code; the Board further
ordered the notices of termination dated April 25,
1984 which were to become effective August 31,
1984, given to the four teachers be nullified and
they be reinstated as teachers; that the named
individuals could not be banned or otherwise pre
vented from entering on the Fort Alexander Indian
Reserve for the purpose of carrying out their
duties as employees of the Fort Alexander Indian
Reserve Schools.
The order of the Canada Labour Relations
Board was filed with the Federal Court of Canada
on the 28th day of August, 1984, pursuant to
subsection 123(1) [as am. by S.C. 1977-78, c. 27,
s. 43] of the Canada Labour Code.
At the show cause hearing on the 29th of Octo-
ber, 1984, a representative of the Manitoba Teach
ers' Society gave evidence along with the teachers
Samuel Klippenstein, Jon Mills, Patricia Morriss-
eau and John A. Courchene. It was obvious from
the testimony that the Band Council and the
School Board had refused to negotiate with the
Manitoba Teachers' Society since the date of the
order. It was also evident that the four teachers,
though they had made efforts to return to work
and to be rehired by the Board, had been refused
their employment which was to commence on Sep-
tember 1, 1984. The respondents had failed to
nullify the notices of termination and reinstate the
teachers. They refused to abide by the first collec
tive agreement as determined by the Canada
Labour Relations Board in the order dated
August 23.
None of the named respondents appeared at the
show cause hearing nor any authorized representa
tive from the Council of the Fort Alexander Indian
Band or the Fort Alexander School Board. Legal
counsel retained by the respondents did attend and
addressed the Court. In his opening remarks he
advised that he was instructed to tell the Court
that no one would attend, though properly served;
that none of the respondents would attorn to the
jurisdiction of the Canada Labour Relations Board
or the Federal Court of Canada.
Following the issuance of the orders of the
Canada Labour Relations Board, the Chief of the
Band Council held a press conference; CBC-TV
was in attendance and a video tape or the press
conference was played to the Court. The Chief in
his opening remarks at this press conference stated
as follows:
The Fort Alexander Indian Band, together with the Sagkeeng
Education Authority, have chosen to challenge the Canadian
Labour Board as it relates to Indian activities and Indian
reserves. The rationale for this decision is not based on anti-
labour receptions but rather the declaration of First Nations
Indian Government for self-determination.
He further went on to say:
The community met two days ago and steadfast in its position
that there will be no reinstatement of the teachers in question,
and the community has taken the position that we will not
appeal but rather stick with our original and steadfast position
of these teachers being released.
One of the witnesses, John A. Courchene, a
suspended teacher and a member of the Fort Alex-
ander Indian Band, testified that the School Board
as it is presently made up was appointed by the
Chief some eighteen months ago; that the previous
members of the School Board had been elected at
the same time as the Band Council; that the Chief
and his Council were unhappy and took it upon
themselves to demand their resignations and
replace them without due electoral process.
I have made a brief review of the authorities
dealing with Indian bands and the jurisdiction of
labour boards, both provincial and federal; in
reviewing their jurisdiction on an Indian reserve
the following cases were considered: Public Service
Alliance of Canada v. Francis et al., [1982] 2
S.C.R. 72; Whitebear Band Council v., Carpenters
Provincial Council of Saskatchewan et al., [1982]
3 W.W.R. 554 (a decision of the Saskatchewan
Court of Appeal). These authorities have satisfied
me that the Canada Labour Relations Board had
jurisdiction to act in this matter and was well
within its authority to issue the order of August
23, 1984.
It is now incumbent upon me to determine how I
should dispose of this refusal to obey an order of
this Court. Rules 354 and 355 of this Court [Fed-
eral Court Rules, C.R.C., c. 663] state as follows:
Rule 354. (1) Every person present at a sittings of the Court or
a prothonotary must maintain a respectful attitude, remain
silent and refrain from showing approval or disapproval of the
proceedings.
(2) Paragraph (1) must be observed wherever a judge carries
out his official functions.
(3) Any person who contravenes paragraph (1) or who does
not obey at once an order of a judge or a prothonotary or an
officer under his authority is guilty of contempt of court and, if
he is an officer of the Court, the Court may suspend him from
his functions.
Rule 355. (1) Anyone is guilty of contempt of court who
disobeys any process or order of the Court or a judge thereof,
or who acts in such a way as to interfere with the orderly
administration of justice, or to impair the authority or dignity
of the Court. In particular, any officer of justice who fails to do
his duty, and any sheriff or bailiff who does not execute a writ
forthwith or does not make a return thereof or, in executing it,
infringes any rule the violation whereof renders him liable to a
penalty, is guilty of contempt of court.
(2) Except where otherwise provided, anyone who is guilty of
contempt of court is liable to a fine, which in the case of an
individual shall not exceed $5,000, or to imprisonment for a
period not exceeding one year. Imprisonment, and in the case of
a corporation a fine, for refusal to obey any process or order
may be repeatedly inflicted until the person condemned obeys.
(3) Anyone who is guilty of contempt of court in the presence
of the judge in the exercise of his functions may be condemned
at once, provided that he has been called upon to justify his
behaviour.
(4) No one may be condemned for contempt of court com
mitted out of the presence of the judge, unless he has been
served with a show cause order ordering him to appear before
the Court, on the day and at the hour fixed to hear proof of the
acts with which he is charged and to urge any grounds of
defence that he may have. The show cause order issued by the
judge of his own motion or on application must be served
personally, unless for valid reasons another mode of service is
authorized. The application for the issuance of the show cause
order may be presented without its being necessary to have it
served.
(5) The procedure set out in paragraph (4) is without
prejudice to an application for committal under Division I of
Part VII. The two methods of proceeding are alternatives and
when one has been acted on, the other cannot be invoked. The
other provisions in this Rule are without prejudice to the
inherent powers of the Court; and both this Rule and the
inherent powers can be invoked on any appropriate occasion.
Counsel for the respondents filed with the Court
a statement prepared for and on behalf of the
Band Council of the Fort Alexander Reserve as
well as a copy of the Declaration of the First
Nations Joint Council of the National Indian
Brotherhood. In the prepared text submitted to the
Court, it is stated at page 2:
The Creator granted us our laws governing our relationships,
defining our rights and responsibilities and all of our rich
culture, including values which encouraged us to be willing to
consider the sharing of our lands in mutual respect with other
peoples searching for a future free of the social, political,
religious or economic oppression of their own aboriginal
homelands.
It is ironic that they suggest to this Court that
one should have respect for freedom from social,
political, religious and economic oppression, but in
turn have failed to respect the will of the members
of the Band who had previously elected a School
Board; they have refused the free association of
the teachers, a great number of whom are mem
bers of the Band; they will not recognize the
freedom and the right to association and free
collective bargaining.
The statements of the respondent Chief, though
provocative, should not unduly disturb the Canada
Labour Relations Board who has a responsibility
to recognize the freedom of association and free
collective bargaining. The Government of Canada
has ratified Convention No. 87 of the Internation
al Labour Organization concerning freedom of
association and protection of the right to organize;
Canada has assumed international responsibility in
this regard. It has long been a matter of public
policy in this country and it should not be the
subject of provocative confrontations. It is not the
purpose of this Court to provoke, but nothing
should be allowed to interfere with the good order
and administration of justice or impair the dignity
of the Court or other legally-constituted bodies.
If a political solution is being sought by the First
Nations of this land, Parliament is the proper
forum, not the Canada Labour Relations Board
nor this Court. This institution cannot tolerate
disobedience, particularly when it comes to the
protection of the individual teachers, collective
bargaining and freedom of association. It is the
Court's responsibility to maintain that properly-
elected bodies, in this case the School Board,
should not be subjected to the dictates of the Band
Council and forced resignations; all this imposed
by an intolerant Council, who have derived their
authority from their constituents and remain in
office because of respect for the electoral process.
On the evidence, I am satisfied that there is a
clear violation of an order of this Court. Pursuant
to Rule 355(2) of the Rules of the Federal Court
of Canada, anyone who is guilty of contempt of
court is liable to a fine not to exceed $5,000 or to
imprisonment for a period not exceeding one year.
In the case of a corporation or other duly con
stituted legal body, there is no limit as to the
imposition of fine for the refusal to obey any
process or order.
I hereby impose a fine of $15,000 on the Coun
cil of the Fort Alexander Indian Band; I further
impose a fine on Chief Kenneth Courchene of
$5,000 payable within thirty days, in default thirty
days' imprisonment; to each member of the Fort
Alexander Indian Band Council a fine of $1,000.
They shall have thirty days to pay and in default
one-week imprisonment.
In dealing with the Fort Alexander School
Board, the members of the Board and the Superin
tendents of Education, I find that they had no
alternative but to obey the instructions of the
Chief and the Band Council; that each one of them
may have been appointed to that Board involun
tarily and that the School Superintendents may
have had no choice but to accept the directives of
the Chief and Band Council.
I therefore impose a fine of $500 on the Fort
Alexander School Board of the Sagkeeng Educa-
tion Authority and to each member of the School
Board together with the School Superintendents a
fine of $50 payable within thirty days and in
default three days' imprisonment.
Constitutional challenges in this country are by
no means novel. This Court is constantly entertain
ing challenges against the administration of the
federal authority but seldom do we see such fla
grant disregard for our institutions. If the Council
of the Fort Alexander Indian Band wishes to
challenge the constitutionality of the Canada
Labour Relations Board or of this Court, the
proper procedure is to appear, express its views,
bring forth its challenges and use all the legal
means that are available and at its disposal. I
seriously considered a term of imprisonment but I
am hoping that the fines imposed are severe
enough to bring about compliance and respect. It
should be remembered that failure to obey can
bring about further orders. Persistent disregard
could be considered a continuing offence and is
subject to further show cause orders.
There is obviously considerable public interest in
maintaining the authority of justice in this country
and it is my duty and responsibility to impose
appropriate penalties.
Costs to the applicants.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.