The $40,000 in security will present ‘a significant barrier to me accessing justice,’ says activist Cherry Smiley, a member of the Niaka’pamux Nation in B.C.
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The Trudeau Foundation and former Northwest Territories premier Stephen Kakfwi are seeking more than $37,000 in surety from an Indigenous activist suing the foundation and Kakfwi for $2.25 million over alleged sexual harassment.
In a document filed in Quebec Superior Court on Aug. 14, lawyers for the defendants request that Cherry Smiley provide “suretyship for security for the legal costs that the Court could award in favour of the Foundation.”
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In essence, the two defendants have added up their respective legal costs and want the money that Smiley, 40, may have to pay, should she lose her court battle, set aside to ensure that the defendants, should they win, will be paid.
Kakfwi, 71, is seeking $18,527.20 in suretyship. The Pierre Elliott Trudeau Foundation is seeking $19,195.57. Lawyers for the two defendants say in the respective motions that the money would cover court fees, stenographer and transcript fees and legal and expert fees.
The parties will be in a Montreal court to debate the matter on Tuesday.
Smiley’s lawyer, Kathryn Marshall, says there have been a number of procedural and jurisdictional barriers thrown up over the course of the case, in addition to the latest request for suretyship. Smiley will be represented in court Tuesday by Quebec lawyer Jérémie John Martin.
“I truly believe their objective, the Trudeau Foundation’s objective, is to completely kill her spirit and demoralize her,” Marshall said in an interview Monday. “I have never experienced a defendant bringing a security for cost motion in a sexual harassment case. I think it’s highly unusual for defendants to do that in cases like this, because optically, it doesn’t look good to do that, to victimize (the) plaintiff.”
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In an affidavit, Smiley, a member of the Niaka’pamux Nation in B.C., told the court that she cannot afford to leave nearly $40,000 with the court.
“I am the victim of sexual assault that (has) already been prejudiced in my ability to seek justice —$40,000 in security will present a significant barrier to me accessing justice,” her affidavit says.
Lawyers for Kakfwi, a Dene elder who lives in Yellowknife, and the Trudeau Foundation did not respond to National Post’s request for comment by press time.
The Pierre Elliott Trudeau Foundation is a charity that awards scholarships and connects student academics with various mentors. Prime Minister Justin Trudeau is not involved with the board of directors, nor is he a foundation member, the group that selects the board. His brother, Alexandre Trudeau, is a foundation member.
In 2021, Smiley sued the foundation, alleging that when she was a scholarship student with the foundation in 2018, she was sexually harassed by Kakfwi, whom the Trudeau Foundation had assigned as her mentor. Her lawsuit alleges that Smiley and Kakfwi had dinner together in St. John’s, N.L., during a three-day event and shared a taxi back to the hotel afterwards. In the lobby, Smiley’s claim alleges that Kakfwi “suddenly moved his body extremely close to hers, grabbed her upper arm close to her breasts and proceeded to massage and rub her arm for an extended period,” according to a summary from a Newfoundland court decision.
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Smiley alleges that the Trudeau Foundation pressured her to sign a non-disclosure agreement, which Smiley refused to do, according to her statement of claim. She later withdrew from the foundation’s events and the mentorship program, saying she no longer felt safe because of the foundation’s response to her complaint.
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None of the allegations has been proven in court. In a statement of defence, Kakfwi “denies grabbing the Plaintiff’s arm, rubbing, and massaging it for a prolonged period. He specifically denies that there was any contact between he and the Plaintiff, which could be construed as being sexual in nature.”
The Trudeau Foundation has not filed a statement of defence.
The lawsuit has been mired in fighting over jurisdiction. Smiley, who lives in British Columbia, had originally filed it in a B.C. court, but then moved the case to Newfoundland and Labrador, where the alleged harassment occurred.
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However, the Trudeau Foundation fought to have the case moved to Quebec, where it is based. Justice Peter Browne with the Newfoundland and Labrador Superior Court determined that Quebec was the appropriate jurisdiction. Both Smiley and Kakfwi had opposed the motion and Smiley has launched an appeal of that decision.
In the meantime, in February 2024, Smiley refiled her lawsuit in Quebec.
“Just defend it on the merits,” Marshall said. “Instead of throwing out as many hurdles and procedural barriers, just defend it on the merits.”
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