PRACTICE |
Contempt of Court |
Randall v. Caldwell First Nation of Point Pelee
T-850-99, T-1230-99
2002 FCT 31, Simpson J.
14/1/02
15 pp.
Plaintiffs, group of Caldwell First Nation of Point Pelee Band members seeking to replace current Band leadership (defendants)--Action alleging defendants negotiated settlement agreement with Crown without authority, knowledge of Band, refused to call election for Chief since 1990, improperly altered Band's membership, voters' lists --Plaintiffs contending Chief Johnson learning which Band members' credentials being questioned during examinations for discovery, publicized information, contacted individuals to tell them that status being questioned--Alleging Chief Johnson in contempt because used information obtained through discovery process for purpose of currying favour with Band members--Saying this purpose extraneous to litigation, violates implied undertaking--At common law, unwritten litigation rule imposing confidentiality on information obtained during production of documents, oral examinations for discovery, preventing it from being used for purposes outside litigation--(Canada v. ICHI Canada Ltd., [1992] 1 F.C. 571 (T.D.) setting out relevant law on implied undertaking)--Cases holding actual or personal knowledge of court order condition of finding of liability for contempt distinguished--Chief Johnson alleged to be in contempt because breached common law rule--Implied undertaking existed for long time, part of law of Canada governing orderly administration of justice--In such cases, requirement of actual knowledge displaced by fact Chief Johnson presumed to know law--Chief Johnson in contempt of implied undertaking when sent letter to all Band members listing members plaintiffs said should be removed from voting list, and releasing press releases with similar information--Not disputed such information came from examinations for discovery--Took information obtained in action, publicized it broadly in effort to outrage Band members, press, rally them to his support-- But letters sent to Band members whose Band credentials questioned by plaintiff not extraneous to litigation--Action requiring defendants to show non-parties identified for challenge by plaintiffs entitled to Band membership--Not breach of implied undertaking for Chief Johnson to write to those non-parties who were directly affected and then hold meeting to discuss information needed to respond to challenge to Band membership, voting rights--Order issued requiring Chief Johnson to publish statement explaining contempt proceedings, outcome and requiring him to obey implied undertaking until further order--Statement will not include apology because likely acted on incorrect advice provided by counsel--Ordered to pay certain costs, but no fine imposed.