N.L. judge upholds Trudeau Foundation bid to have sex harassment suit heard in Quebec

The Supreme Court of Newfoundland and Labrador says a sexual harassment case involving the Pierre Elliott Trudeau Foundation and a former Northwest Territories premier should be heard in the foundation's home province. Kathryn Marshall, Smiley's lawyer, argued that if the trial had to play out in Quebec, it could sink the case. Marshall poses for a photo at the Newfoundland and Labrador Supreme Court, in St. John's, Tuesday, June 6, 2023. (Courtesy: THE CANADIAN PRESS/Sarah Smellie)

The Newfoundland and Labrador Supreme Court has sided with the Pierre Elliott Trudeau Foundation in its bid to have a sexual harassment case heard in Quebec.

In a ruling released Thursday, Justice Peter Browne wrote that the case will face fewer procedural barriers in Quebec than in Newfoundland and Labrador.

"None of the parties has a substantial connection to Newfoundland and Labrador," Browne said. "The only connecting factor is that the parties were participants in a meeting held here in the summer of 2018."

Cherry Smiley alleges she was sexually harassed in June 2018 in St. John's by former Northwest Territories premier Stephen Kakfwi. Kakfwi was her appointed mentor at the time through a Trudeau Foundation scholarship program, and the harassment allegedly occurred at a multi-day foundation event.

Kathryn Marshall, Smiley's lawyer, filed the statement of claim with Newfoundland and Labrador's Supreme Court, but lawyers for the Montreal-based foundation argued that it should be heard in Quebec.

A hearing about the jurisdictional dispute was held in Newfoundland and Labrador Supreme Court on June 6. During the hearing, Marshall argued that the claim should be heard in Newfoundland and Labrador since that's where the incidents allegedly occurred.

She said the case could be sunk if it was ordered to play out in Quebec. Smiley is a graduate student, and it's unlikely she could afford the cost of translating documents into French or find a new, French-speaking lawyer, she argued.

Browne disagreed. "It may lead to some additional costs and inefficiencies initially but the litigation is still in its early stages," he wrote.

In an interview, Marshall said she was disappointed with Browne's decision, adding that she was still concerned his ruling would prompt her client to end her case. But her misgivings and criticisms are with the Trudeau foundation and the court system, not with Browne, she said.

"The Trudeau foundation has refused to do the right thing from Day 1," Marshall said. "This is their responsibility. They failed my client."

The suit was originally filed in 2021 with the Supreme Court of British Columbia, where Smiley is a member of the Nlaka'pamux Nation and of the Dine' Nation, according to court documents. But Lawyers from the Trudeau foundation opposed that jurisdiction, and Marshall agreed to withdraw the case from the B.C. courts. She filed in Newfoundland and Labrador instead.

The case has now been tied up in the courts in two provinces over several years, which has re-traumatized Smiley, she said. If Smiley continues, "she's going to have to completely restart her case in Quebec, a province where she is not proficient in the language. She's going to have to find a brand-new lawyer, she's going to have to start from scratch. It's just not right."

She said the Canadian justice system needs to do more work to recognize the "unique experience" of sexual assault and harassment survivors, and to more deeply consider that experience in its proceedings.

The lawsuit names Kakfwi and the Trudeau foundation as defendants. It says that during a three-day Trudeau foundation event in St. John's, Kakfwi twice pulled Smiley close to his body and "grabbed her upper arm near her breast." It says he then squeezed and massaged her arm "for an extended period." He also repeatedly invited her to his home in Yellowknife, once while holding her upper arm, according to the statement of claim.

The document also alleges some foundation officials accused her of "blowing things out of proportion," pressured her to sign a non-disclosure agreement, and defamed her.

In a statement of defence, Kakfwi has denied any contact with Smiley that "could be construed as being sexual in nature."

This report by The Canadian Press was first published July 20, 2023.