Polhill v. Keeseekoowenin First Nation

Polhill v. Keeseekoowenin First Nation
Collection
Canadian Human Rights Tribunal
Date
2019-10-09
Neutral citation
2019 CHRT 42
File number(s)
T2101/1715
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Decision status
Final
Grounds
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
42
Date:
October 9, 2019
File No.:
T2101/1715
Between:
Tracy Polhill
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Keeseekoowenin First Nation
Respondent
Decision
Member:
Gabriel Gaudreault
TABLE OF CONTENTS
I. BACKGROUND 1
II. ISSUES 2
III. PRELIMINARY REMARKS 3
A. Wes’s communications with Robyn and Myrna, witnesses for the Nation 3
(i) Reasons for my order 3
(ii) The impact of Wes’s communications on his credibility and the reliability of his testimony 6
B. Credibility of witnesses 8
C. Tracy’s addition of certain elements in her final arguments 8
IV. ANALYSIS 9
A. Does Tracy have one or more prohibited grounds of discrimination under the CHRA? 12
B. Did Tracy suffer one or more adverse impacts? Were any of the prohibited grounds a factor in the adverse impacts? 13
(i) Denial of services and adverse differential treatment (section 5 CHRA) 13
(a) Income assistance: service customarily available to the public 21
(b) The creation of the band council resolution 22
(c) Karen’s interventions with the Nation regarding the provision of services and filing of the complaint 28
(d) Filing of the complaint and reinstatement of benefits 35
(e) Differences in amounts provided in July and August 2013 versus May 2014 36
(ii) Adverse differential treatment in the provision of residential accommodation (paragraph 6(b) of the CHRA) 37
(iii) Harassment (section 14 of the CHRA) 38
(a) Creation of a hate group 38
(b) Comments by Karen on Facebook 39
(iv) Retaliation 41
(a) Comments by Jen Bone 41
(b) Fake Facebook account created in Wesley Bone’s name 42
(c) The incident involving errant horses 44
(d) Anonymous call to the BC Employment and Assistance Office in British Columbia 45
(e) Fake emails from Brian Sharpe 46
(f) Incidents involving Wes Bone’s home 47
(g) Incidents concerning the hay cutting contract 51
(v) Other allegation: funeral expenses 55
C. Justifications provided by the Nation or limitation of its liability 57
V. DECISION 57
I. BACKGROUND
[1] Before summarizing the complaint, I am taking the time to clarify that several individuals named in the Tribunal record have the same family names. In the interest of making it easy for the parties and other readers to understand clearly, I will respectfully use the first names of these individuals in order to facilitate the reading of this decision.
[2] The complainant, Tracy Polhill (Tracy), filed a complaint with the Canadian Human Rights Commission (the Commission) in April 2014, alleging that she had been discriminated against and harassed by the Keeseekoowenin First Nation (the Nation), because of her race or her national or ethnic origin.
[3] Tracy identifies as Indigenous: she traces these Indigenous origins back to her mother’s ancestral heritage. Despite this fact, she is not eligible to be registered under the Indian Act, R.S.C. 1985, c. I-5 [the Indian Act]. Tracy is in a relationship with Wes Bone (Wes), who is also of Indigenous descent. Wes is a member of the Keeseekoowenin First Nation and is registered under the Indian Act.
[4] In her complaint, Tracy alleges that she was denied income assistance benefits by the Nation. She also claims that she was treated differently in the provision of this service (paragraphs 5(a) and (b) of the Canadian Human Rights Act (CHRA). She further alleges that she was retaliated against after she filed her complaint in April 2014. She alleges different acts of retaliation, including comments made by Jen Bone (Jen), a fake Facebook account created in Wes’s name, an incident involving errant horses, an anonymous call to the BC Employment and Assistance Office in British Columbia, fake emails from Brian Sharpe, incidents concerning Wes’s home and incidents concerning hay cutting.
[5] Tracy also claims that she was subjected to adverse differential treatment in the provision of residential accommodation (paragraph 6(b) of the CHRA) by being forced to leave the community and consequently, the home of her partner, Wes. Lastly, she alleges that she was harassed by the Nation after crude comments were posted by Karen Bone (Karen) on Facebook and following the creation of a hate group, both of which, according to her, were attributable to the Nation’s action or inaction.
[6] Tracy also added certain discriminatory practices that were not included in the initial complaint or the amended complaint. I will address some of these practices in my preliminary remarks (Part III) as well as in the section entitled “Other Allegations: funeral expenses” (Part IV, title B, sub-title [v]).
[7] Tracy claims that, in her opinion, all these discriminatory acts were based on her race (the perception that she is white, to use her own words) and her national or ethnic origin (the fact that she is not a member of the Nation).
[8] The Nation, for its part, is a band within the meaning of the Indian Act. It is located in the province of Manitoba and is made up of three parcels of land, i.e., Keeseekoowenin 61, Clear Lake 61A and Bottle Lake 61B. The Nation does not assume control of its band list. Consequently, it is Indigenous Services Canada that ensures the administration thereof, and the eligibility rules are set out in the Indian Act.
[9] The Nation is administered by a band council, elected by the members of the Nation under the Indian Act. The council is made up of a chief and four or five councillors. Elections are held every two years, and the terms of office held by the chief and the councillors expire at the end of April of odd-numbered years.
[10] Between April 2013 and April 2015, James Plewak (Chief James) was the band chief. At all other times relevant to the complaint, excluding the period from April 2013 to April 2015, the band chief was Norman Bone (Chief Norman), the band chief at that time.
[11] For the following reasons, and based on a balance of probabilities that was presented to me at the hearing, I find that Tracy’s complaint, in its entirety, is unfounded.
II. ISSUES
[12] The issues are as follows:
(1) Did Tracy meet the burden of proof for her case, meaning, was she able to demonstrate the following three elements based on a balance of probabilities?
a. Tracy had one or more prohibited grounds of discrimination under the CHRA (race, national or ethnic origin);
b. Tracy suffered one or more adverse impacts (denied in the provision of services or subjected to adverse differential treatment in the provision of services and residential accommodation; harassed and retaliated against (section 5, paragraph 6(b), section 14 and subsection 14.1 of the CHRA);
c. One or more prohibited grounds of discrimination were a factor (or factors) in the manifestation of the adverse impact;
(2) If Tracy met the burden of proof for her case, was the Nation able to present a defence or justification (section 15 of the CHRA) or was it able to limit its liability? (section 65 of the CHRA);
(3) If not, what remedies should the Tribunal order (subsection 53(2) of the CHRA)?
III. PRELIMINARY REMARKS
A. Wes’s communications with Robyn and Myrna, witnesses for the Nation
(i) Reasons for my order
[13] Mr. Boudreau, counsel for the Nation, was supposed to start Wes’s cross examination on the second day of the hearing. When Mr. Boudreau appeared before the Tribunal to start the cross-examination, he addressed the Tribunal in order to share what he described as “troubling facts”. He explained that he had just learned that Wes had asked his sister, Myrna Seaton (Myrna), to reach out to a witness for the Nation in order to dissuade her from testifying.
[14] According to Mr. Boudreau, Wes had allegedly called Myrna the evening before and had asked her to contact Robyn Nabess (Robyn), a band councillor, to tell her that if she testified, Wes would make sure that her husband, the principal of Sioux Valley High School, would lose his job.
[15] Myrna allegedly refused to comply with her brother’s request and, frightened, had decided to call Chief Norman and Mr. Boudreau in order to inform them of the conversation that she had had with her brother.
[16] Mr. Boudreau therefore suggested that I hear from Myrna immediately, who could be reached via telephone. According to him, Wes’s actions were not only punishable under the regime set out in sections 59 and 60 of the CHRA, but could also lead to a charge of contempt of court. Mr. Boudreau further added that this incident should also have major consequences for Wes’s testimony and that Wes should be excluded altogether by the presiding member.
[17] In light of these new facts, I asked the parties to offer suggestions in order to resolve the situation.
[18] Mr. Smith, counsel for the Commission, agreed that this was a very serious matter. However, in his view, the Tribunal did not have the jurisdiction to use sections 59 and 60 of the CHRA because these sections create a criminal offence and only the Attorney General of Canada is able to bring such charges. He also invited the Tribunal to consult the decision rendered in Temple v. Horizon International Distributors, 2017 CHRT 30, where the Tribunal completely rejected the testimony of a witness who had allegedly been paid by the complainant.
[19] Tracy and her representative, Wappo Piesew, were opposed to Myrna being called to testify as a witness. They suggested that the hearing should simply continue with Wes’s cross-examination, and that he should be asked questions regarding the new allegations of intimidation.
[20] In order to obtain more detailed answers, I ordered a break of about ten minutes to allow the parties to consider their position regarding these admittedly extraordinary facts.
[21] After the break, I recognized that the Tribunal did not have the jurisdiction to use the mechanisms provided in sections 59 and 60 of the CHRA for the purpose of ending or sanctioning intimidation. I also took the time to read the decision rendered in Temple and once again, I asked the parties to give me their opinion on how to proceed.
[22] The parties both took a position regarding the issue of contempt of court. According to Mr. Boudreau, the Tribunal had the jurisdiction to issue such an order, while Mr. Smith believed that the authority to do so fell within the scope of influence of the Federal Court. Despite this disagreement, the parties agreed on how to proceed and allowed Mr. Boudreau to question Wes about the allegations of intimidation.
[23] The cross-examination therefore resumed briefly and during this cross-examination, Wes admitted he had called his sister the evening before but denied asking her to intimidate Robyn. The cross-examination was then suspended again.
[24] According to Mr. Boudreau, it was imperative that Myrna be questioned by telephone as soon as possible, and for this to be done before Wes’s cross-examination continued. Mr. Smith and Tracy were opposed to this suggestion. Instead, they suggested that Wes’s cross-examination be completed the next day and that Myrna be summoned to appear at a later time, like any other witness. In light of this deadlock, I decided to take another break.
[25] After the break, I rendered a decision and I read the following order:
I decide that we will continue with the Respondent’s cross-examination of Mr. Bone tomorrow morning, 9h00;
If the Respondent wants to challenge the credibility of the witness, he has the opportunity to do so;
The Complainant will have a chance to address that new issue in her redirect, should she chose to do so;
I will authorized the Commission to address that new issues as well in their redirect, should they chose to conduct one;
I authorize the Respondent to call Ms. Myrna as a witness as part of the Respondent’s case;
In the circumstances, I exempt the Respondent from filing a summary of the anticipated testimony of Ms. Myrna;
Any concerns of the Respondent about the preservation of the evidence could be address by an affidavit of Ms. Myrna to be sworn such time and place as convenient for her and counsel;
The reasons for these directions and orders will be included in my final decision in this case;
[26] The reading of this order put an end to the second day of the hearing. The next morning, I addressed the parties in order to clarify the next steps. I concluded that it was not necessary, given the context, and at this stage, to determine whether the Tribunal had jurisdiction to issue an order for contempt.
[27] However, I made it clear that this would not in any way prevent me from assessing Wes’s credibility, in light of what I would hear about the allegations of intimidation.
[28] Nevertheless, I authorized the parties to file a motion concerning the issue of contempt if they wished to do so. I informed them that they would need to address the following questions. (1) What jurisdiction does the Tribunal have to issue a contempt of court order; (2) what arguments support their position; and (3) what remedies are being sought? I also suggested that they address the decision rendered in Tipple v. Canada (AG), 2012 FCA 158 in their written submissions, if applicable.
[29] Ultimately, the Tribunal did not receive a motion concerning the issue of contempt. Consequently, it was not necessary to dispose of this issue.
(ii) The impact of Wes’s communications on his credibility and the reliability of his testimony
[30] Lastly, I must determine whether Wes’s communications with Myrna and Robyn affect his credibility and the reliability of his testimony overall. The Nation requested that his entire testimony be excluded as a result of his communications.
[31] I believe that Wes did in fact interfere with Myrna and Robyn, witnesses for the Nation. I find, based on a balance of probabilities, there was consistency in Wes’s actions, seeking to discourage Robyn from testifying.
[32] First, on the first day of the hearing, the Nation announced that it would like to call on a new witness to testify, that is, Robyn, Wes’s niece. After hearing the parties on this point, I agreed to add her to the list of witnesses for the respondent.
[33] In her testimony, Robyn explained that Wes had tried to contact her on that very same day, through Jeremy Bone (Jeremy), Wes’s son. Jeremy had come to her with a piece of paper with a telephone number on it that she could use to contact Wes and Tracy. Robyn had refused to call them.
[34] Since this attempt to make contact was unsuccessful, it seems consistent in my view that Wes subsequently decided to find an indirect way of contacting Robyn. During his cross examination, Wes in fact admitted that he had contacted Myrna in order to discuss the fact that Robyn was going to be called as a witness for the Nation.
[35] However, Wes denied trying to intimidate the two women. As I indicated earlier, I cannot address the issue of intimidation under sections 59 and 60 of the CHRA. This prerogative clearly falls within the scope of influence of the Attorney General of Canada (see subsection 60(4) of the CHRA). Nevertheless, it seems clear to me that Wes seriously interfered with these witnesses, thereby disrupting the conduct of the hearing. I also recognize that Wes’s actions made both Myrna and Robyn apprehensive about testifying at the hearing.
[36] The Honourable Sébastien Grammond of the Federal Court recently noted that the credibility of a witness is comprised of two principal components, (1) veracity; and (2) reliability. Veracity refers to the witness’s ability to be honest while reliability refers to the witness’s ability to provide an accurate account of facts material to the litigation (see Magonza v. Canada (Citizenship and Immigration), 2019 FC 14, at para. 17).
[37] In our case, despite Wes’s deplorable communications with Myrna and Robyn, should I conclude that this affected all of his testimony? No, I do not believe so.
[38] I do not believe that Wes thought that his communications would result in him being questioned thereon before the Tribunal. Given that, based on the balance of probabilities, I believe Myrna’s and Robin’s testimony that they were pressured in this way, I cannot accept the full version of the facts given by Wes. He appears to have lacked judgment in contacting Myrna and trying to influence Robyn’s testimony. Nevertheless, this was an isolated incident.
[39] Even though it disrupted the Tribunal’s process, nothing else in the evidence suggests that Wes was not honest in the other portions of his testimony.
B. Credibility of witnesses
[40] I must address the issue of the credibility of the witnesses, because I must admit to having heard direct and indirect attacks on the character of practically every individual named in these proceedings, in both the Nation’s and Tracy’s evidence.
[41] Both Tracy and the Nation tried to discredit the other party’s witnesses by making references to their character or their actions outside the Tribunal’s proceedings. With regard to this conduct, I cannot list in this decision all the outrageous remarks that I heard. These remarks include allegations about mental health issues and accusations of corruption.
[42] I believe that the witnesses who testified before me were credible. However, I also believe that certain testimony was not always reliable, as we will see later.
[43] That said, I will address the issue of witness reliability in my decision when necessary.
C. Tracy’s addition of certain elements in her final arguments
[44] I do not intend to dwell on this aspect at any length. The Nation rightly pointed out that in her final arguments, Tracy added evidence and arguments that had not been raised in the initial complaint, in the amended complaint nor in the statement of particulars. The Nation further added that I had also not heard evidence concerning these elements.
[45] I hear the Nation and, when I read Tracy’s final arguments, I in fact agree that additions were made.
[46] In my opening remarks at the beginning of the hearing, I set out the various aspects that are at stake in Tracy’s original complaint, as well as in her amended complaint. I state that I have already allowed the complaint to be expanded in my decision in Polhill v. Keeseekoowenin First Nation, 2017 CHRT 34.
[47] I again informed the parties of the discriminatory practices alleged by Tracy and the Commission. The parties were therefore able to focus their evidence on these very specific aspects, thereby making it possible to facilitate and accelerate the hearing.
[48] I gave the parties an opportunity to make submissions on the alleged practices I had mentioned. No one made submissions or requested the addition or removal of certain alleged practices. The parties were also invited, once again, to make submissions in their final arguments. In my opinion, the parties addressed each of the aspects I had listed at the beginning of the hearing.
[49] However, the objective of final arguments is not to add new evidence that was not presented during the hearing. Instead, it provides the parties with a last opportunity to explain the facts which, in their view, were proven during the hearing and the reasons why they had been proven. The facts presented must support each party’s theory of the case. More specifically, they must demonstrate whether or not discrimination occurred and address the remedies being sought or challenged. The parties may also cite various pieces of legislation or case law in support of their submissions.
[50] In my view, the parties had an opportunity to present all their evidence at the hearing. For these reasons, I shall disregard the arguments and additional elements submitted by Tracy, which were not included in the original complaint, the amended complaint or the statements of particulars, and for which no evidence was submitted at the hearing.
IV. ANALYSIS
[51] The purpose of the CHRA is to guarantee that all individuals have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so on the basis of any of the prohibited grounds of discrimination (section 2 CHRA).
[52] It is well established that in discrimination matters, the burden is on the complainant to present evidence that is sufficiently complete to meet the burden of proof for their case (traditionally referred to as establishing a prima facie case of discrimination; see my comments in Brunskill v. Canada Post Corporation, 2019 CHRT 22, at paras. 56 to 58 [Brunskill]).
[53] Tracy must therefore present evidence that is sufficiently complete to establish a prima facie case of discrimination, based on a balance of probabilities.
… A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent‑employer.
(Ontario Human Rights Commission v. Simpson-Sears, [1985] 2 SCR 536, at para. 28 [Simpson-Sears])
[54] Three elements must be proven:
(1) Tracy has one or more prohibited grounds of discrimination under the CHRA;
(2) Tracy was adversely affected;
(3) The prohibited ground or grounds of discrimination was or were a factor in the adverse effect.
(Moore v. British Columbia (Education), [2012] SCR 61, at para. 33; Quebec (Commission des droits de la personne et de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), [2015] SCR 789 [Bombardier]; see Simpsons-Sears, above, at para. 28).
[55] The evidence presented must be analyzed based on a balance of probabilities. The prohibited ground of discrimination does not need to be the sole factor in the adverse impacts suffered by the complainant. Direct proof of discrimination is not necessary, nor is it necessary to demonstrate an intention to discriminate (Bombardier, at paras. 40 and 41).
[56] The Tribunal has repeatedly stated that discrimination is not usually open or intentional. It is therefore necessary for the Tribunal to analyze all of the circumstances of the complaint to determine whether there is a subtle scent of discrimination (see Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT) [Basi]).
[57] Circumstantial evidence may help the Tribunal draw inferences; it is the case when the evidence presented in support of the allegations of discrimination makes such inferences more probable than other possible inferences or hypotheses (see Basi, above). However, the circumstantial evidence presented must nevertheless be tangibly linked to the respondent’s impugned decision or conduct (see Bombardier, above, at para. 88).
[58] In the past, I have repeatedly expressed the opinion that when the Tribunal analyzes evidence to determine whether a complainant has met the burden of proof, it must consider the evidence in its entirety, which may include evidence filed by the respondent (Brunskill, above, at para. 64).
[59] In other words, to meet its burden of proof, the Complainant must prove, on a balance of probabilities, that (1) they have a prohibited ground of discrimination, (2) they suffered an adverse differential treatment and (3) there exists a link between the prohibited ground of discrimination and the adverse differential treatment. The Respondent, in turn, may present its evidence to refute those 3 criteria.
[60] The Tribunal may therefore conclude, on a balance of probabilities, that the evidence presented by the complainant was, or was not, complete and sufficient in regards to those 3 criteria. The complaint is dismissed if the evidence is not complete and sufficient.
[61] On the other hand, if the Tribunal concludes that the evidence presented is complete and sufficient, the burden is now upon the Respondent. The Respondent has an opportunity to avail itself of a defence provided under section 15 of the CHRA to justify its impugned decision or conduct. The Complainant, in turn, may try to demonstrate that the Respondent’s justification is nothing more than a pretext. Again, these elements will be analysed by the Tribunal on a balance of probabilities. After analysing the elements all together, the Tribunal can then determine if discrimination did or did not occur.
[62] Finally, the respondent could limit its liability under section 65 of the CHRA, if applicable.
[63] It is in the context of this analysis that I will address the evidence presented at the hearing.
A. Does Tracy have one or more prohibited grounds of discrimination under the CHRA?
[64] I do not intend to dwell at length on the prohibited grounds, which, in my opinion are particularly clear. The prohibited grounds of discrimination raised by Tracy are national or ethnic origin (non-member of the Nation) and race (perception of being white) (section 3 of the CHRA).
[65] Without restating all of the Nation’s submissions, the Nation asserted, in its final arguments, that whether or not an individual is a member of an Indigenous community and whether or not an individual is a Status Indian within the meaning of the Indian Act is unrelated to the prohibited ground of discrimination of national origin. That said, this argument addresses the issue of national origin only; it does not address the issue of ethnic origin in any way whatsoever.
[66] Even though the Nation’s arguments are interesting, I nevertheless believe that it is not necessary to further complicate the case. Tracy identifies herself as Indigenous, because she has Anishnaabe ancestors. Despite this fact, she is not a Status Indian under the Indian Act. Furthermore, she is not a native of the Keeseekoowenin community. This means that Tracy cannot be and is not a member of the Nation. That is why I believe that ethnic origin is at issue in the case at bar.
[67] With respect to the ground of race, Tracy explained that it is the perception that other individuals within the community have of her that is relevant in this case. They are not aware of her Anishnaabe ancestry and view her as being white, to use her own words.
[68] It is recognized that the CHRA prohibits discrimination based on perceived belongingness in a protected group (see Warman v. Kyburz, 2003 CHRT 18, at para. 52. See also Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665; Via Rail Canada Inc. v. Canada (Human Rights Commission) (No. 2) (1999), 33 C.H.R.R. D/127 (CHRT).
[69] Therefore, not only does Tracy believe that she is perceived as being white, but she is also not a member of the Nation: These two elements mean that she is perceived as being an outsider within the Nation. She therefore successfully demonstrated having these two prohibited grounds of discrimination, protected under the CHRA.
B. Did Tracy suffer one or more adverse impacts? Were any of the prohibited grounds a factor in the adverse impacts?
[70] Tracy alleges that she suffered numerous adverse effects at the hands of the Nation, because she was perceived as being white or as being a non-member of the Nation within that community. I will analyze her five allegations in order to determine whether she met the burden of proof for her case.
(i) Denial of services and adverse differential treatment (section 5 CHRA)
[71] Tracy’s first allegation concerns the problems that she faced when she tried to obtain income assistance benefits from the community. Like the Commission maintained throughout its involvement in Tracy’s complaint, I also believe that this aspect lies at the heart of the case before the Tribunal. This is a complex allegation, which brings numerous facts into play. Tracy believes that the denial of services resulted from different incidents of adverse differential treatment by the Nation. Before analyzing each of these incidents, I believe that it is important to provide context and that is why I will provide a brief summary of the facts before me at this particular point in time.
[72] Tracy decided to settle in Manitoba in 2004. She already had a relationship with the community and its members before her relationship with Wes started in 2012. She had established ties with various people living within the community, including Linda, Wes’s sister, and their mother, Rachel.
[73] Around 2009, Tracy’s daughter and her brother-in-law decided to buy a farm adjacent to the Keeseekoowenin community. This is where Tracy lives when she is not in the Keeseekoowenin community.
[74] The evidence also reveals that in 2010, Tracy offered assistance and care services to certain members of the community, including Rachel, Wes’s mother, whom she cared for. She also cared for Marvin Blackbird, another member of the community with serious health problems. In order to offer him more intensive care, she lived with this individual for a certain period of time. The evidence reveals, however, that even though Tracy was interested in providing personal care, she had not yet obtained her diploma in this field; she received this diploma in March 2011.
[75] Tracy’s involvement with Rachel and the care that she provided to the latter caused her to have certain problems with the Nation. Indeed, in July 2010, there was an altercation between Tracy and Ms. Jung, a nurse at the Keeseekoowenin health centre. The disagreement had to do with Ms. Jung’s proposed treatment plan for Rachel and Tracy’s concerns about this plan. Tracy reported the situation to the Nation and filed a complaint against Ms. Jung with the College of Nurses; this complaint was dismissed.
[76] The Nation was informed of the incident and the disruption that it had caused at both the band council office and the health centre. The council had obtained this information from different sources. By all indications, the Nation decided to intervene and to send a letter to Tracy at the end of July 2010, in order to address the incident. The band council was concerned about the health and safety of its personnel and members. The band council informed Tracy that it would be holding a meeting to discuss the situation and that unless it obtained a proper explanation from her, the band would limit her involvement within the community or even remove her from the Nation entirely. The council invited Tracy to provide an explanation, which she did in writing. Following this incident and Tracy’s explanations, the council did not find it necessary to intervene further.
[77] This incident is important because it resurfaced and influenced the passing of a band council resolution against Tracy in January 2013. I will return to this point shortly.
[78] That said, Tracy and Wes started their relationship as friends. Over time, they decided to become romantically involved, and they officially became a couple in spring 2012. Wes is a member of the Nation and owns a home in the Keeseekoowenin community. Tracy started to spend more time within the community, partly to be with Wes. Obviously she lived with him.
[79] In June 2013, Tracy moved into Wes’s home on a permanent basis. She decided to file a claim with the Nation to benefit from the income assistance program. This is when her problems started.
[80] The Nation offers different services to its members. These services are administered by various officers and managers who each have their own portfolio, depending on the tasks assigned to them. Other employees work as senior staff and their functions therefore have more to do with the governance and administration of the Nation.
[81] In the same vein, it is relevant to mention that the province of Manitoba and the Government of Canada offer income assistance programs. I heard a great deal of evidence about these programs and I do not believe that it is relevant to repeat the details of everything presented at the hearing.
[82] It is enough to understand that eligibility for any of the programs depends on different criteria and factors. The Government of Manitoba is responsible for the administration and funding of its own income assistance program. Individuals who live outside an Indigenous community or those who live in an Indigenous community and apply for income assistance as a primary beneficiary, but do not have Indian status within the meaning of the Indian Act, may be eligible to receive income assistance benefits from the province.
[83] The Government of Canada also administers an income assistance program. If an individual is considered to be an Indian within the meaning of the Indian Act and normally lives in an Indigenous community, that individual may be eligible to receive such benefits from the federal government. Moreover, that individual’s dependents, whether or not they have Indian status, are also eligible to receive these benefits.
[84] Of course, income assistance programs are resources that are used as a last resort. Other than the aforementioned criteria, eligibility for these programs is also based on the specific situation of each applicant, who must demonstrate that without these benefits, his or her basic needs would not be met at even a minimum level. When program officers receive an application, they verify the information provided by the applicant, in order to confirm their eligibility. The information may include the applicant’s place of residence, assets and income. Officers may also request additional information when clarifications are required.
[85] That said, Tracy, through her partner Wes, was able to submit an application for the income assistance program administered by the Government of Canada. It is important to remember that this program is managed by the Nation. Since Tracy was the dependent of someone registered as an Indian within the meaning of the Indian Act and who normally resided in the Keeseekoowenin community, she was able to submit an application with the Nation. Indeed, the application was in fact accepted by the program officers and as Wes’s dependent, Tracy was able to benefit from federal income assistance benefits for a certain period of time in 2013.
[86] In September 2013, Tracy’s benefits were suddenly terminated. The program officers had been informed of the existence of the band council’s resolution, which had been passed a few months earlier, on January 23, 2013. The adoption of the resolution by the band council is critical in this file. It is important to consider it.
[87] A band council resolution dated January 23, 2013, prohibited Tracy from entering the reserve or communicating with any member of the Nation. Tracy was not personally summoned by the band council before the creation of the resolution and she was not invited to make submissions. Furthermore, Tracy was not informed of the existence of the resolution after it was created. Between January 2013 and September 2013, this resolution therefore lay dormant within the band council.
[88] It was only in early September 2013, that Tracy got her hands on a copy of the band council resolution concerning her. Wes apparently heard about the resolution while he was in a bar in Sandy Lake. An acquaintance allegedly told him that members of the community, Karen Bone (Karen) and Dianne Blackbird (Dianne), had been brandishing and boasting about the resolution, which banished Tracy from the community.
[89] Did Karen and Dianne actually have a copy of the resolution with them of which they were brandishing and talking about in public spaces? The evidence in this regard is flimsy and generally based on hearsay. In any case, I do not believe that this is determinative. By all indications, Wes was informed of its existence. He therefore went to the band council office with Tracy to obtain a copy. It was at that point that Tracy learned that she was no longer allowed to enter the community or communicate with its members.
[90] Tracy and Wes immediately went to the office of the Royal Canadian Mounted Police (RCMP) in Elphinstone. An officer confirmed that the resolution could not be enforced by the RCMP. He also confirmed that someone from the Nation had come to the RCMP offices a few months earlier to ask the RCMP to serve the resolution to Tracy in person. The RCMP had refused this request.
[91] Tracy described this resolution as the most severe punishment that the Nation could have imposed on her. She therefore decided to leave the community. She went back to living in her daughter’s home, near to the Keeseekoowenin community. She submitted an application for income assistance with the province of Manitoba, and her application was approved. Her benefits were therefore reinstated between September 2013 and February 2014, but this time, through the province.
[92] In February 2014, Tracy wrote a letter to the band council, asking to have the resolution revoked. The evidence shows that Chief James remembers this letter and remembers discussing the situation with the other councillors. At the time, his attention had been drawn to the fact that the existence of the resolution was attributable, in part, to an incident in 2010, during which Tracy had suggested to seniors that they did not need to follow the medical advice of their doctor. He had also been informed that the resolution was not enforceable because it was invalid.
[93] Chief James continued his testimony by explaining that the executive secretary, a position held by Karen at that time, had been tasked with writing back to Tracy to inform her that the resolution was invalid. This letter was in fact written on February 19, 2014. It informed Tracy that her letter had been discussed by the band council; it also indicated that Tracy had not complied with the resolution and that it had not prevented her from entering the community. Lastly, the letter mentioned that the resolution did not prevent her from seeking employment in the Nation if she so desired.
[94] It is undeniable that this letter, written by Karen, is short and offers few details. It does not state that the resolution was unenforceable and even invalid. It does not address the issue of residency or the possibility of applying to the income assistance program. Chief James confirmed that the letter did not reflect his instructions and was poorly written. It is also clear that Tracy did not understand the content of the letter, because a few days later, she sent another letter to the band council to address the existence of the resolution.
[95] In March 2014, Tracy returned to live in the community. A call was apparently made to the province of Manitoba in connection with her income assistance benefits. The information allegedly provided indicated that Tracy was once again officially living in the community. It is impossible for me to identify the person who called the province of Manitoba, based on the evidence provided at the hearing. Ultimately, the evidence reveals that in any case, Tracy informed the province that she had moved, which resulted in her provincial benefits being terminated at the end of February 2014.
[96] After her return, in March and April 2014, she therefore approached Dolores Blackbird (Dolores), the officer responsible for the income assistance program, to re-apply for the federal income assistance program. She also raised the issue of the existence of the band council resolution. Tracy and Dolores tried to resolve the situation. Dolores was direct in telling Tracy that she could not reinstate Tracy’s benefits without obtaining instructions from the band council. Tracy, for her part, wanted to obtain a letter from the Nation stating th