McAdam v. Big River First Nation

McAdam v. Big River First Nation
Collection
Canadian Human Rights Tribunal
Date
2009-01-13
Neutral citation
2009 CHRT 2
File number(s)
T1128/1006
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIAN DES DROITS DE LA PERSONNE
CORRINE MCADAM
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
BIG RIVER FIRST NATION
Respondent
DECISION
2009 CHRT 2 2009/01/13
MEMBER: Athanasios D. Hadjis
I. WHAT FORM OF DISCRIMINATORY PRACTICE IS ALLEGED IN THE COMPLAINT?
II. WHAT IS THE BASIS FOR CORRINE'S DISCRIMINATION CLAIM REGARDING FAMILY STATUS?
III. WHAT IS THE BASIS FOR CORRINE'S DISCRIMINATION CLAIM REGARDING DISABILITY?
IV. WHAT ARE THE LEGAL PRINCIPLES APPLICABLE IN THIS CASE?
V. WHAT INCIDENTS OF DISCRIMINATION HAS CORRINE ALLEGED?
A. Denial of housing
B. Eviction of Corrine's son, Darrell McAdam, from her home
C. Denial of education funding
D. Receiving a reduced graduation allowance from the Band
E. Failure to provide adequate renovations to Corrine's home
F. Denial of emergency funding
G. Denial of holistic healing funding for Corrine's son, Francis
H. Denial of taxi service to Corrine's daughter, Angela
I. Removal of Corrine's sister's (Sylvia's) children from Sylvia's custody
J. Denial of reimbursement of Francis' funeral costs
K. Denial of milk vouchers to Angela
L. Garnishment of Corrine's salary for payment of rent regarding Teacherage #4
M. Disconnection of Corrine's electricity supply in October 2004
VI. CONCLUSION
[1] The Complainant, Corrine McAdam, (Corrine) is a First Nation member of the Big River First Nation, which is situated about 120 km northwest of Prince Albert, near Debden, Saskatchewan. She alleges in her complaint (which she filed with the Canadian Human Rights Commission on May 11, 2004) that the Big River Band Chief and Council and members of their staff discriminated against her on the basis of disability and family status, in the provision of services to her. Given that a good number of the individuals involved in this case share the same family names, I will be referring in this decision to some persons, including the Complainant, by their first names.
[2] At the opening of the hearing into the complaint, Corrine specified that she was making her complaint against the Big River First Nation band (the Band) and not any particular individuals on the Band Council or members of the Band's staff. I accepted this clarification as it was consistent with the context of her complaint's allegations and with the complaint summary that the Commission had prepared and attached to her complaint when it was processed. The complaint summary clearly indicated that the named respondent was Big River First Nation.
[3] Corrine was not represented by counsel at the hearing, and the Commission opted not to participate. The Band was represented by legal counsel. As is sometimes the case with self-represented litigants like Corrine, she was unfamiliar with the Tribunal's process and presenting her evidence proved somewhat challenging for her. At the outset of the hearing, I outlined to her how to present her case and make submissions. Not surprisingly though, there was still a certain lack of continuity in the manner that she led her evidence. It should be noted that no evidence was introduced at the hearing with respect to several of the incidents referred to in Corrine's human rights complaint.
I. WHAT FORM OF DISCRIMINATORY PRACTICE IS ALLEGED IN THE COMPLAINT? [4] Corrine did not identify in her complaint which sections of the Canadian Human Rights Act (CHRA) the Band had allegedly breached. However, as I indicated above, the Commission prepared a complaint summary, which it attached to Corrine's complaint form. It constituted part of the complaint material that was sent to the Tribunal when the Commission referred the complaint over for inquiry. The complaint summary specifies that s. 5 is the provision of the Act applicable to this case. Section 5 addresses discriminatory practices in relation to the provision of goods, services, facilities or accommodation customarily available to the public.
II. WHAT IS THE BASIS FOR CORRINE'S DISCRIMINATION CLAIM REGARDING FAMILY STATUS? [5] As mentioned above, Corrine invokes two grounds of discrimination, family status and disability, each of which requires some preliminary discussion. According to s. 3 of the CHRA, family status is a prohibited ground of discrimination. Corrine claims that she and her relatives were discriminated against by the Band merely because they are members of a particular family. She is the daughter of Francis McAdam (Francis Sr.) and Juliette McAdam, née Whitefish or SeSeWaHum (Juliette). Corrine's great-grandfather, Chief SeSeWaHum, was the hereditary chief of the Band (also known as the Kenemotayo Band) when it adhered to Treaty No. 6 in 1878. The treaty resulted in the establishment of the Big River First Nation Reserve. Both Francis and Juliette are descendents of Chief SeSeWaHum.
[6] Juliette testified that a number of families living on the reserve today can trace their hereditary lines back to the original signatories of Treaty No. 6, including the McAdams, the Whitefishes, the Smallboys, the Netmakers, and a few others. She also testified that at some point following the treaty, Chief SeSeWaHum agreed to allow a number of other families from nearby communities into the clan, out of compassion. These people were, in Juliette's words, destitute. The names of these families include Morin, Dreaver and Lachance.
[7] The leadership of the Band was handed over from Chief SeSeWaHum to other clan members along the same blood lines for a couple of generations, in keeping with band custom. However, at some point (which was not specified in the evidence), the Band's administration passed to an elected band council made up of a chief and councillors, in accordance with the Indian Act, R.S.C., 1985, c. I-5. Corrine and Juliette McAdam claim that non-hereditary Band members within the entire population outnumber those from the hereditary line, and that as a result, council is controlled by this other group. Bruce Morin has been Chief since October 1999. Juliette testified that she considers the Chief and all of the current councillors to be destitute immigrants as they are the descendents of the families that her grandfather, Chief SeSeWaHum, allowed to join the clan several generations ago.
[8] It is against this backdrop that Corrine filed her present complaint. She claims that she has been denied services by the Band due to her family status as a McAdam/Whitefish (i.e. due to her being the daughter of Francis Sr. and Juliette). Corrine conceded, however, that the animosity shown towards her and her family also relates to the fact that she, her mother, and her father are outspoken members of the community. All three of them have frequently opposed actions and decisions taken by the Band Council over the years.
III. WHAT IS THE BASIS FOR CORRINE'S DISCRIMINATION CLAIM REGARDING DISABILITY? [9] On the first page of her complaint form, Corrine wrote the words family status and disability on an otherwise blank portion of the sheet, without any further explanation. I surmise that she was alleging discrimination based on both of these enumerated grounds of discrimination under s. 3 of the Act. I note, however, that on the Commission's complaint summary, which I referred to earlier, the only relevant prohibited ground listed is family status. There is no mention of disability.
[10] In her final submissions, Corrine seemed to argue that disability was a factor in the alleged denial of funding assistance to her, to accompany her son when he was hospitalized in Saskatoon. This incident, however, does not relate to any disability linked to her. She made no other submissions regarding her claim of discrimination based on disability. In any event, I will examine her claim of discrimination on the basis of disability solely with respect to the incident relating to this alleged denial of funding assistance.
IV. WHAT ARE THE LEGAL PRINCIPLES APPLICABLE IN THIS CASE? [11] Section 5 of the Act makes it a discriminatory practice to deny goods, services, facilities or accommodation to any individual, or to differentiate adversely in this regard, on the basis of a prohibited ground:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
5. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d'installations ou de moyens d'hébergement destinés au public :
d'en priver un individu; de le défavoriser à l'occasion de leur fourniture.
As I indicated earlier, family status and disability are prohibited grounds of discrimination (s. 3).
[12] The initial onus is on a complainant to establish a prima facie case of discrimination (Ont. Human Rights Comm. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley)). A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent. Once the prima facie case is established, it is incumbent upon the respondent to provide a reasonable explanation for the otherwise discriminatory practice. If the respondent does provide a reasonable explanation, the complainant has the burden of demonstrating that the explanation was pretextual and that the true motivation behind the respondent's actions was, in fact, discriminatory.
V. WHAT INCIDENTS OF DISCRIMINATION HAS CORRINE ALLEGED? [13] Corrine adduced a significant amount of evidence in this case. In the interest of providing a coherent decision, I have separately outlined and analyzed the evidence relating to each of the issues or incidents of alleged discrimination referred to in her complaint. However, I have also considered each of the allegations in the context of the totality of the evidence, in order to determine if an inference of discrimination may be drawn.
[14] I note, in passing, that the Band did not contest the issue of whether each of the alleged instances of discriminatory conduct actually falls within the ambit of s. 5 of the Act (i.e. discriminatory practices in the provision of goods, services, facilities or accommodation customarily available to the general public).
[15] In any case, I have found that Corrine's discrimination complaint has not been substantiated, for the reasons set out below.
A. Denial of housing [16] The principal allegation in Corrine's complaint relates to the alleged denial of housing by the Band to her and her family. Corrine is 43 years old. She was raised on the Big River First Nation Reserve. She is the mother of five children, two of whom unfortunately have passed away. She claims that she began applying to the Band for housing for herself ever since her first child was born in 1982. She was not assigned a house until August 2001. It was an older house in a section of the reserve known as the Teacherages. She has never been allotted a new house.
[17] The allocation of housing on the reserve apparently used to be the responsibility of the Government of Canada (Department of Indian Affairs and Northern Development, also known as Indian and Northern Affairs Canada (INAC)). The decisions were made at INAC's offices in Shelbrook, Saskatchewan. At some point, these duties were handed over to the Band Council, but the government continued to fund the construction of new homes. Tom Bear, a current Band Councillor who has served intermittently on council since 1979, testified that the Band historically used to receive housing funding from INAC that was sufficient to construct eight to twelve homes per year. Today, the funding is only sufficient to build about two to three homes annually. However, in 2007, the Band managed to secure a special bank loan that enabled it to build and allocate 36 new homes.
[18] Corrine alleges that she has never been allocated a new home. She claims that her family status was a factor in this alleged denial of new housing.
[19] Although the Band denies Corrine's allegations regarding discriminatory practices in the allocation of housing, it contends that its decisions regarding housing allotment are immune from the operation of the CHRA anyway, pursuant to s. 67, which provides as follows:
67. Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.
67. La présente loi est sans effet sur la Loi sur les Indiens et sur les dispositions prises en vertu de cette loi.
[20] The Big River First Nation is a band within the meaning of the Indian Act. In order to invoke s. 67, a band must demonstrate that the sections of the CHRA that are engaged by the Tribunal's inquiry into the complaint will affect a provision of the Indian Act, or a provision made under or pursuant to that act. In the present case, the Band claims that s. 20 of the Indian Act would be directly affected by Corrine's claims of discriminatory practices in the allocation of housing, i.e., the Band's alleged denial to her of new or better housing. Section 20(1) provides the following:
20. (1) No Indian is lawfully in possession of land in reserve unless, with the approval of the Minister [of Indian Affairs and Northern Development], possession of the land has been allotted to him by the council of the band.
20. (1) Un Indien n'est légalement en possession d'une terre dans une réserve que si, avec l'approbation du ministre [des Affaires indiennes et du Nord canadien], possession de la terre lui a été accordée par le conseil de la bande.
[21] The same issue was dealt with in Canada (Human Rights Commission) v. Gordon Band Council [2001] 1 F.C. 124 (F.C.A.). The complainant was a status Indian who lived on the Gordon First Nation Band reserve with her non-Indian spouse. Her request for housing from the band was denied, and she filed a complaint alleging discrimination on the basis of sex and family status. The Gordon Band raised a s. 67 defence, similar to the one brought forward by the Band in the present case. The Federal Court of Appeal agreed with the Tribunal's finding that it lacked jurisdiction to hear the case, because the Band's decision was made in the exercise of its authority to make housing decisions, under s. 20 of the Indian Act. This s. 20 authority, ruled the Court, includes by necessary implication a decision not to allot housing. It follows that s. 67 of the CHRA precluded the Tribunal from granting any remedy to the complainant in that case, the Court concluded.
[22] I see no basis to distinguish Gordon from Corrine's case. She pointed out that in Gordon, the band had a housing policy whereas in the present case, the evidence is that no formal housing policy existed. When the Band Councillors met to consider the numerous applications for housing that were submitted annually, they made their assessments based on their own understanding of the applicants' needs and situation. The community is relatively small and the Band argued that the councillors were therefore familiar with every applicant's particular circumstances and would have had no difficulty making such determinations.
[23] I do not think that the absence of a housing policy on the Big River First Nation reserve is sufficient to distinguish this case from Gordon. Section 20 of the Indian Act does not specify that a formal or written housing policy must be adopted by a band. Corrine led some evidence suggesting that the Band had previously received Government funding to draft a formal housing policy, but that it never followed up on this. However, even if there existed some procedural requirement that a policy be adopted, the Court in Gordon, at para. 30, held that procedural flaws do not detract from the conclusion that the housing allocation decision itself is one that Parliament has, under s. 20 of the Indian Act, expressly entrusted to band councils. Besides, as the Court also noted in the same paragraph, the immunity that s. 67 gives a band council does not depend on whether some aspect of the decision-making process was based on a housing policy.
[24] I therefore find that, pursuant to s. 67, the Band is immune from the allegations in Corrine's human rights complaint of discriminatory practices with respect to housing allocations.
B. Eviction of Corrine's son, Darrell McAdam, from her home [25] As I mentioned earlier, the Band allocated an older house to Corrine in August 2001. It is a detached building located in an area known as the Teacherages, situated adjacent to the reserve's high school (Se-Se-Wa-Hum School). The area consists of buildings that were constructed decades ago to house teachers who worked in the school. Many of the units are no longer occupied by teachers, so the Band has assigned them to Band members. Corrine resides in the unit known as Teacherage #4.
[26] Darrell McAdam (Darrell) is one of Corrine's sons. He lived at her home at Teacherage #4 from 2001 until 2007. On January 20, 2004, the Band's Administrator and Manager, Derek Klein, sent a letter to Darrell. The subject line read, Re Eviction out of teacherage - BRFN [Big River First Nation]. The letter went on to state the following:
Dear Mr. McAdam,
You have been constantly warned about the parties and heavy traffic at your residence, which is disturbing to neighbours. You have not complied with any of these warnings, so this shall serve you as an eviction notice.
You are requested to be out of the teacherage no later than Monday, January 26, 2004.
Respectfully
[sgd]
Derek R. Klein
[27] Darrell was 21 years old at the time. Corrine was not regularly residing at home during this period. Her other son, Francis McAdam (Francis), (who has since passed away) was disabled and was being cared for at a chronic care facility in Saskatoon. His condition had begun to worsen in 2003, so Corrine was spending a lot of time with him in Saskatoon.
[28] Darrell acknowledged in his testimony that he has had a problem with drug and alcohol abuse since he was a teenager. He also agreed that prior to receiving the letter, he had been drinking heavily at the house and that there were a lot of parties being held there. He denied having been visited or warned by Band officials about any disturbances prior to receiving the letter. He testified that he did not show the letter to his mother, nor tell her about it. He decided to just ignore it and continued to reside at the house. He also testified that on January 26, 2004 (just a few days after he received the letter), Mr. Klein entered the home uninvited, along with another community member, and told Darrell that he must leave the house. Darrell did not elaborate any further on the incident in his testimony, but it would appear from the rest of his evidence that he did not accede to Mr. Klein's direction and that he continued to live at Teacherage #4.
[29] On April 8, 2004, Mr. Klein sent another letter to Darrell, requesting that he move out of Corrine's home:
Dear Mr. McAdam,
You have been constantly warned about the parties and heavy traffic at your residence, which is disturbing to your neighbours. You have not complied with any of these warnings, so this shall serve you as an eviction notice. You are to leave the residence immediately. Next week you can contact the R.C.M.P. and Jack Rabbitskin to pick up your belongings.
Respectfully,
[sgd]
Derek R. Klein
Band Administrator
[30] The letter was hand delivered to Darrell at the house by two Band employees (Leo Jack and Harvey Netmaker), who were accompanied by a member of the R.C.M.P. Corrine was in Saskatoon at the time. Mr. Netmaker testified that Darrell did not appear surprised upon receiving the letter and that he was cooperative. On Mr. Jack's instructions, Mr. Netmaker changed the locks to the house. Mr. Jack, who is the Band's housing coordinator, took the new keys. The visitors did not remove any of Darrell's belongings from the house. Darrell left and went to his grandmother Juliette's home.
[31] The evidence led regarding what happened over the ensuing days was unfortunately somewhat disjointed. Juliette testified that Darrell showed her the April 8th eviction letter. She advised him to ignore it and just stay put. For her part, Corrine learned of the incident while she was still in Saskatoon. She called Chief Morin, who informed her that it was only Darrell that had been evicted, and that there would be no problem with Corrine returning home. On April 10th, she returned to the reserve and went back to her home, accompanied by Darrell. It is not clear from the evidence before me whether the home's doors were locked after the band had changed the locks, and if so, how Corrine and Darrell managed to enter.
[32] In any event, shortly after Corrine arrived at the house, an R.C.M.P. officer showed up and told her that she was trespassing and should leave the premises forthwith. A more senior R.C.M.P. officer soon arrived on the scene, however, and apparently decided not to pursue the matter any further. On April 24, 2004, Juliette sent a letter to Mr. Klein advising him that until such time as he brings evidence of Darrell's alleged wrongdoings, Corrine and her children, including Darrell, would continue to reside at the house they are in. Indeed, Darrell apparently ended up continuing to reside there.
[33] On April 27, 2004, the Band's education coordinator, Marlene Morin, sent a letter to Mr. Klein expressing concern about the activities going on at Corrine's house, stating:
I have received numerous concerns about the number of students wandering over to Corrine McAdam's during school breaks and lunch hours. There are a number of complaint's [sic] from our School Administrator's [sic] about students skipping classes and hanging out at the house. We are asking you for the betterment of our school population to please evict Mr. McAdam from his teacherage. There also have been several complaints of loud high school parties on the weekend at his residence.
I look forward to your positive response.
[34] This letter was followed up by another letter dated May 3, 2004, from the school's principal, Doug Nordick, to Mr. Klein, in which he called attention to some activities of a suspicious nature going on at Corrine's residence. He went on to explain that over the previous three months, students had been observed entering the home during the school day when they should have been in class. He had received reports that this location is known for weekend parties and as a place to hang out, adding that he was concerned because there were drugs in the neighbourhood. Mr. Nordick further explained that, on a number of occasions, attempts were made to find out if there was a responsible adult at home during the school day with whom to discuss the situation. However, these efforts at contacting the principal resident were unsuccessful. He ended his letter in the hope that Mr. Klein would be able to contact the principal resident to address these matters.
[35] On May 2, 2004, Corrine returned to the reserve after a visit to Saskatoon. She found her residence locked and no one there. She did not have the keys to enter, as they remained in the Band's possession ever since the locks had been changed on April 8th. She had to spend the evening at her mother's home, where she learned that earlier that day, two Band members (Sidney Morin and Harry Bear) had visited Corrine's house. Her nephew (who lives with her family) was there at the time. The nephew told Corrine that Messrs. Morin and Bear had instructed him to leave the premises. They apparently then locked the house and, according to Corrine, nailed the windows shut, presumably to prevent access into the house from these points of entry. The nephew was not called to testify.
[36] Mr. Bear testified at the hearing. He recalled being asked to visit Corrine's house on the day in question because of a brawl that had taken place the night before. He went to check it out. He does not recall who asked him to go or with whom he went. He said it was easy to see that a brawl had taken place outside Corrine's house: there were bottles strewn about outside. He claimed that everyone knew what had been going on there. He does not recall escorting anyone out of the house or nailing any windows shut.
[37] Corrine called Mr. Klein on May 3, 2004, to complain about the incident. Mr. Klein apparently told her that the Band Council had decided to evict her from the house along with her son. Indeed, Mr. Klein prepared and sent a letter dated May 6, 2004, addressed to Corrine (not to Darrell), which stated:
Dear Ms. McAdam,
You have been constantly warned about your son and friend's partying over at the teacherage. Now that the locks have been changed on that teacherage that teacherage will be allocated to another band member.
Respectfully,
[sgd]
Derek R. Klein
Band Administrator
[38] Chief Morin testified that Corrine telephoned him to complain as well. He told her that the Band Council was, in fact, only seeking to evict Darrell, not her.
[39] Few details are in evidence about what exactly transpired regarding Darrell's eviction after these calls were made in early May 2004. Darrell testified that after Chief Morin informed Corrine during their telephone call that she was not being evicted, she acquired from the Band the keys to the house's new locks. She has continued to reside in Teacherage #4 to this day. Darrell also continued to live there until he moved out voluntarily in 2007.
[40] Has Corrine established a prima facie case of discrimination on the basis of family status in regard to the eviction notices?
[41] Corrine alleges that she and her son, Darrell, were singled out and targeted because they are members of the McAdam family. She claims that the Band never tried to evict other persons who were engaged in activities similar to Darrell's alleged activities, but who were not McAdams. Aside from this assertion in her testimony, what evidence did she lead which, if believed, would be sufficient to support a finding of discrimination?
[42] Corrine filed photos taken at a nearby house in the Teacherages in April 2008 (i.e. around the time of the present hearing). The house is occupied by someone whose last name is McAdam, but who is a relative of Chief Morin. It is not clear if the occupant is also a relative of Corrine. The scenes depicted in the photos consist of several smiling people in a very messy house, drinking beer and smoking. Corrine said that the photos were taken during a party that ended at 5:30 AM. She said that similar parties had been ongoing over several days. A guest at one of these parties came to her door one night with a bleeding hand wrapped up in a towel. She argued that despite this activity, the Band Council had not evicted the occupant from the house.
[43] Darrell testified that he knows of several Band members who deal in drugs but who, to his knowledge, have never been evicted. A number of Corrine's other witnesses testified in some way with regard to this issue as well. Leonard Lachance, a Band councillor, said that he had never been involved in an eviction of someone with a drug or alcohol problem. Tom Bear, who is also a Band councillor, stated that to his knowledge, no Band member has ever been evicted from their home due to drug or alcohol usage.
[44] Corrine also called Chief Morin to testify. He stated that he had never participated in the eviction of anyone from the Teacherages because of that person's drug or alcohol use. However, Chief Morin also stated that in 2001, the Band Council received a report that a certain individual (whom I will refer to as Mr. A) had been selling drugs from his residence across the road from the Teacherages area. The Council met and passed a resolution to evict him. Mr. A was living in the home of a Band member at the time, but he was neither First Nation nor a Band member.
[45] I note that Darrell not only acknowledged that he was using drugs, he also admitted that he sold some drugs, though he claimed that he sold just one ounce of weed...from that house. He said that he did not want to be known as a drug dealer. Darrell acknowledged in his evidence that at the time when the house's locks were changed, he was abusing drugs and alcohol, and that when he is in this state, his ability to remember is affected. He also stated that around the time of the eviction, his mother was frequently away in Saskatoon, and that drinking and parties were going on at the house while she was away.
[46] Darrell also agreed with the proposition that had he ceased his drinking and partying practices at the house, he would not have been evicted. He also conceded that as of May 6, 2004, when Mr. Klein sent Corrine the eviction letter, nothing had changed with regard to his partying activities, as the letter had alleged.
[47] Taking all of the circumstances into account, I am not persuaded that Corrine has demonstrated prima facie that the Band discriminated against her (or her son, Darrell, for that matter), in respect of eviction attempts. In order to establish a prima facie case, a complainant cannot just put forward her abstract beliefs or suspicions that she is a victim of discrimination, without presenting some concrete observations or independent information to support or confirm that belief (see Filgueira v. Garfield Container Transport Inc., 2006 FC 785 at paras. 30-31). Corrine was unable to support her allegation that other non-McAdam residents engaging in activities similar to Darrell's had not been evicted. In fact, the evidence suggests that in 2001, the Band decided to evict Mr. A, who was not a McAdam, and who was also thought to have sold drugs from his residence, which was adjacent to the Teacherages area where Darrell lived. Corrine tried to distinguish that decision on the basis that Mr. A was not a First Nation Band member. She failed, however, to demonstrate any evidentiary basis for treating the two individuals differently, such as the existence of any by-laws or policies that establish different entitlements based on First Nation status. What is noteworthy is that, just like Mr. A., Darrell was not the registered occupant of the Teacherage house that he was required to leave.
[48] The remaining evidence adduced by Corrine on this matter is not directly relevant to the issue. It suggests that no other persons had been evicted due to their drug or alcohol use. The assertion made against Darrell, however, was not only that he was using these substances but that he was selling drugs (a claim that was admitted by Darrell if only to a very limited extent) and that he was attracting students from the nearby school to his house to also use these substances, as well as hosting disruptive parties. Darrell himself admitted that had he not engaged in the drinking and partying practices, he would not have been evicted.
[49] The evidence adduced by Corrine, even if believed, fails to demonstrate that the Band tolerated the occupancy of non-McAdams in situations comparable to Corrine's and Darrell's. Nor, for that matter, does the remaining evidence support her assertion that their status as McAdams was a factor in the eviction decision. The evidence, even if believed, is not complete and sufficient to justify a verdict in favour of Corrine.
[50] However, even if the evidence adduced by Corrine were sufficient to establish a prima facie case of discrimination, I am satisfied that the Band has provided a reasonable explanation.
[51] Chief Morin testified that the school's administrators had been making numerous requests to the Band Council that something be done about the activities at Teacherage #4. They were particularly concerned about the sale of drugs going on in such proximity to the school. Chief Morin pointed out that this concern set Darrell's case apart from other situations where loud parties and heavy drinking had been reported to Council. Consequently, the Band Council had no choice but to intervene.
[52] Mr. Nordick, the high school's principal, has over 40 years' experience in education. He testified that his staff had reported observing many students circulating back and forth between Teacherage #4 and the school grounds. This was a matter of concern for the school's administration, principally as a question of safety, but also because parents had an expectation that their children would stay in class and not wander off the school grounds. Mr. Nordick and his staff were also suspicious that if students were leaving school grounds to frequent a nearby dwelling, questionable activities, including drug usage, were likely to have been going on.
[53] As a result, Mr. Nordick tried to contact the adult person who was responsible for Teacherage #4 to discuss the matter. The principal was informed that the house had been assigned to Corrine. He made numerous telephone calls to the house, but was repeatedly told that she was out of town. He and his vice-principal then decided to walk over to the house and hopefully meet up with Corrine at a time when she was home. They made two such attempts in April 2004, but there was no answer at the front door.
[54] Mr. Nordick testified that given the difficulty he had in reaching Corrine, he spoke to Mr. Klein about his ongoing concerns. Mr. Klein advised him to put his concerns in writing, so Mr. Nordick wrote his May 3, 2004, letter to Mr. Klein, which I excerpted earlier. The Band's education coordinator, Marlene Morin, had sent a similar letter a few days earlier. Of note, Ms. Morin is Darrell's first cousin on his father's side.
[55] The school was not alone in making complaints about Darrell's activities at the house. Mr. Klein testified that the Band Council had also received complaints from Leon McGilvery who, along with his family, had moved in to the house next to Corrine's in December 2003. Mr. McGilvery testified that Teacherage #4 had non-stop traffic at all hours of the day. There were young people going in and out, and he would often see 15 to 30 youths hanging around outside the house, many of them drunk. He saw old furniture, broken bottles and other garbage strewn around outside. He recalls that Corrine was rarely home in the months after he moved in. On one occasion, Mr. McGilvery saw two police paddy wagons parked near his house. He was told by the police to go straight home and stay inside because a lot of action was going on in Teacherage #4. Mr. McGilvery testified that now that Darrell no longer resides at Corrine's house, things are quiet. Mr. McGilvery pointed out that his grandmother is Juliette's sister. He is thus related to Corrine.
[56] Mr. Klein, in his testimony, acknowledged that Darrell is not the only person on the reserve with a substance abuse problem. The specific concern in Darrell's case, however, was that he had allowed Corrine's home, in her absence, to become a hangout that was also situated next to the school. Mr. Klein recalled that no other location on the reserve was the scene of daily problems like her home. Based on the complaints that the Band Council received about Darrell's activities at the house, the Council instructed Mr. Klein to send Darrell an eviction notice. He pointed out that Corrine was constantly away from the reserve, so the Band had no option but to take action directly against her son. Mr. Klein also testified that after Corrine began staying at home, the Band Council ceased getting complaints about Teacherage #4, even though Darrell was still living there.
[57] I am satisfied that the Band's explanation is reasonable. Faced with the complaints it had received and the nature of Darrell's activities, it was within reason for it to react by requiring Darrell to leave. I have not been persuaded that his membership in the McAdam family was a factor in the Band's decision.
[58] Corrine appeared to suggest, in some of the questions that she asked Darrell during his testimony, that the Band's second attempt at evicting him, in April-May 2004, came about in reaction or even retaliation to her human rights complaint. While the Commission's complaint summary indicates that the complaint was received on May 11, 2004, Corrine's actual complaint form is dated March 19, 2004. No explanation was given in the evidence for this discrepancy. More importantly, I have no evidence to suggest that the Band had any knowledge of the human rights complaint's existence or of its content, prior to May 11, 2004. The Band's eviction measures all occurred prior to this date. The Band sent its reply or defence regarding the complaint to the Commission investigator on February 25, 2005. Consequently, the evidence does not support the contention that the Band's actions against Darrell, ostensibly brought about due to the excessive and undesirable activity taking place at Corrine's house, were in fact a pretext to strike back at Corrine for having filed a complaint. Furthermore, she never made any request to amend her complaint to include an allegation of retaliation pursuant to s. 14.1 of the Act.
[59] On a balance of probabilities, I therefore find that Corrine's allegation that the Band committed a discriminatory practice in attempting to evict Darrell has not been substantiated.
C. Denial of education funding [60] Corrine alleged in her complaint that the Band denied her funding for some of her post-secondary education. In 1998, she commenced studies at the Saskatchewan Indian Institute of Technology (SIIT) in Saskatoon. Her tuition was being paid by the Band under its Post Secondary Student Support Program. She was unfortunately involved in a car accident in July 1999, which left her with painful injuries that temporarily prevented her from continuing her studies. Corrine testified that she therefore spoke to Bev Morin (Bev), who was the Band's education coordinator at the time, and asked if the Band would continue paying her tuition and a living allowance when she would be healthy enough to return to her studies. According to Corrine, Bev said the funding would remain available.
[61] Corrine testified that she did not feel ready to return to regular classes until 2003. She was accepted into a program at Yellowhead Tribal College in Edmonton, for the 2003-2004 academic year. She therefore contacted Bev to request financial support for her studies. Bev informed Corrine in writing, on July 30, 2003, that her application for post-secondary funding had been placed on a wait list. She was the 12th ranking person on the list. Consequently, she would not be getting any funding at that time.
[62] Corrine testified that she then applied for entry into another educational institution called ATS (also known as Viatech Solutions). According to Corrine, Bev informed her that in this instance, no funding for tuition would be made available because ATS was a private institution that is not recognized. I note that the Band's handbook regarding its post-secondary student support program, which Corrine filed in evidence during her cross-examination of a Band councillor, sets out the priority ranking for funding in three categories of post-secondary education candidates. The group with the lowest priority (i.e. the last group to be considered for funding approval) includes students attending private institutions. Corrine testified that Bev advised her to speak to Mr. Klein, presumably to appeal this funding decision. Corrine claims that after speaking to Mr. Klein, she was bounced around but was ultimately told she would not receive the