ST. JOHN'S, N.L. — A lawyer is accusing the Pierre Elliott Trudeau Foundation of trying to delay and ultimately quash a sexual harassment lawsuit by attempting to move the proceedings from Newfoundland and Labrador to Quebec.
Kathryn Marshall, with the Toronto law firm Levitt Sheikh, argued in Newfoundland and Labrador Supreme Court Tuesday that the alleged misconduct took place in Newfoundland and Labrador, so the case should be heard there. Marshall represents Cherry Smiley, who alleges she was sexually harassed by former Northwest Territories premier Stephen Kakfwi in St. John’s, N.L., in 2018.
Kakfwi was Smiley's appointed mentor through a scholarship program offered by the Trudeau Foundation.
Marshall called it “very unusual" for the court's jurisdiction to be challenged, especially when the misconduct is alleged to have occurred in the province. “I believe in this case, it is a tactic on the Trudeau Foundation’s part to delay and cause Cherry Smiley to just give up,” she said in an interview during a break in the hearing.
Colm St. Roch Seviour, a lawyer for the Montreal-based foundation, pointed to the text of the lawsuit itself, which includes the claim that the foundation failed in its obligation to protect her from the alleged sexual misconduct. That obligation arose from the foundation's agreements and contracts with Smiley and with Kakfwi, all of which are governed by Quebec law, St. Roch Seviour argued.
"In this case, the sexual battery flows from the relationship created by the contract," he told the courtroom.
Marshall argued that the alleged sexual misconduct is at the centre of the case, not the scholarship or its contracts.
She said her client would likely have to drop her lawsuit if a judge determined the trial should be moved to Quebec, noting that Smiley would have to hire a French-speaking lawyer who understands Quebec's unique Civil Code, and pay for translation services.
"Her ability ... to hire a Quebec lawyer to team up with me, that ability does not exist," Marshall told the court. Smiley is a student and the Trudeau Foundation is a high-profile organization with ample resources, she added.
"I think we cannot ignore the massive inequality between the parties when it comes to access to financial resources," Marshall said.
Marshall also said that it would be difficult for Smiley to find a lawyer in Quebec to take on her case, given her limited financial resources and the lawsuit's sensitive nature.
Koren Thomson, who also represents the Trudeau Foundation, disagreed.
"Your choice of counsel is subject to reasonable limitations," she said. "I appreciate that there is difficulty, but it’s not a barrier."
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. Lawyers from the Trudeau Foundation opposed the jurisdiction and said it should be argued in Quebec. Marshall agreed to withdraw the case from the B.C. courts but filed it with the Supreme Court of Newfoundland and Labrador in March 2022.
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."
Newfoundland and Labrador Supreme Court Justice Peter Browne said he needs time to consider all the arguments and that he will issue a written decision at a later date.
This report by The Canadian Press was first published June 6, 2023.
Sarah Smellie, The Canadian Press
