Time can run out on your right to sue

Page 19

PRO BONO

Dear Tuma:

I heard that band councils have to pay welfare to non-band members. Is this true 'cause my son is a non-band member, but since his divorce is living back with me but does not have a job or any income. The band told me that since he is not a band member he does not qualify for welfare and should go to the provincial system.

Can't Afford To Feed Another Hungry Mouth

Dear Can't Afford:

The band may have to pay if your son is living with you on the reserve. There have been several decisions of the Canadian Human Rights Tribunal regarding social assistance on reserves. These decisions have found that when a band denies social assistance to non-status or non-band members, it may be in violation of the Canadian Human Rights Act.

Your son should reapply for social assistance and if he is denied on the basis that he is a non-band member, then he can make a complaint under the Canadian Human Rights Act. The tribunal can order the band to provide social assistance and special damages of up to $20,000 if the band was willful and deliberate in its conduct.

Dear Tuma:

I was a ward of the Children's Aid Society from 1970 to 1984. While in care I suffered from an injury that left my right hand disfigured. It happened when I was about 11 years old. My foster parents hinted it was a deformity. The school authorities wanted to know about it and as a result I was sent to see my "family" doctor. He said it was a baseball injury even though I never played baseball. At that age I was too embarrassed and scared to let the world know that somehow I had become a freak. When I was 17 I went to see a doctor and had an operation to repair the damage. The operation was unsuccessful from the start and nothing became of it. In my twenties while incarcerated I heard of medical malpractice suits and attempted to sue my doctor (the one who brought me into this world). I was told nothing could be done due to the statute of limitations. Is there any thing I can do legally to justify this wrongdoing?

Someone Ought to Pay

Dear Someone:

The problem is with the time period. Each province has specific limitations or time periods in which you have to sue. Usually, the time periods are between one and six years (one year is usually for wrongful death, two years for torts and six years for negligence). You should check what the limitation period is for your province.

In regards to children, the time does not start until the child reaches the age of majority (18 or 19) and then the time limits start.

You can try to go to court and make the argument that the limitation period should be extended, but the chance of success is slim unless you can show extraordinary reasons why you were not able to sue in the time period.

Dear Tuma:

I'm just wondering if this was still the practice. I'm not sure if you watched North of 60, but in case you did... Remember when Albert came in as chief? He fired the staff or a clean sweep as you call it. And then rehired other people. What I'm wondering is if newly elected band councils still have the powers to do that?

Brand New Chief

Dear Brand New:

Newly-elected or current chiefs and councils do have not the power to fire anyone without just cause. If they do then they may be liable for lawsuits for wrongful dismissal or employees may launch complaints under the Canada Labour Code. In the past, folks may or may have not exerted their legal rights, but if the same thing were to happen today, the employees should run, not walk, to an employment lawyer.

Newly elected chiefs and councils have a fiduciary obligation to all band members and need to make decisions that are fiscally responsible and fair to all members. If a chief or council decides to fire staff without just cause, they may be held personally liable, especially if they knew they did not have just cause but went ahead and did it anyway.

Dear Tuma:

How do you appeal a band council election?

Defeated Chief

Dear Defeated:

Section 12 of te Indian Band Elections Regulations concerns election appeals. You need to have the proper grounds for appeal, such as corrupt practice in the election, a violation of the Indian Act, or the person running was not eligible. You can send a registered letter to the Minister of Indian Affairs along with an affidavit outlining the reason for the appeal. This has to be done within 45 days of the election. This appeal request will be sent to all candidates in the election and they can respond within 14 days of receiving the appeal request.

The minister may appoint someone to look into the allegations and if the findings support the allegations, then the election results may be overturned or a new election ordered. If there has been corrupt practice, then the minister may disqualify a candidate from running in future elections for up to six years.

This column is not intended to provide legal advice, but rather highlight situations where you should consult with a lawyer. Tuma Young is currently studing for a Ph.D in law at the University of British Columbia, and questions should be sent to puoin@telus.net.