Housing corporation need highlighted by Fort Albany case

Deputy Grand Chief Les Louttit says a recent mould remediation court case is an example why a Nishnawbe Aski Nation-wide housing and infrastructure strategy is needed.
Superior Court Justice R.D. Gordon ruled on Jan. 3 that Fort Albany must pay an additional $1.2 million to Mould Clean Laboratories Ltd. for mould remediation work on 12 housing units in the James Bay community. Fort Albany had already paid Mould Clean $405,778 for the work on the 12 houses as well as $1.4 million for work on 14 other houses.
Mould Clean had previously obtained a judgement in 2010 against Fort Albany for $1,605,778, based on the consent of former Fort Albany chief Andrew Solomon. Fort Albany then paid $405,778 on account of four of the five invoices included in the judgement.
Gordon’s ruling stated that Mould Clean took no steps to enforce the balance of the judgement until August 2012, when it had a notice of garnishment issued to certain of Fort Albany’s debtors.
“The Defendant claims that this was its first notification of the existence of the Judgment and seeks an order staying its enforcement, setting it aside and granting leave to file a Statement of Defence,” Gordon stated in his judgement.
Fort Albany had argued that “the (2010) judgement amounts to fraud,” adding there was no contract relative to the 12 units and no work had been done on the 12 additional houses, but Gordon ruled against the First Nation.
Gordon concluded in his judgement that: “The defendant (Fort Albany) has failed to establish fraud on a balance of probabilities and accordingly, its motion is dismissed.”
But the judge also noted that he was troubled by the 24 percent rate of interest charged by the company to the First Nation, and the fact that Mould Clean accumulated “almost half a million dollars in interest.”
Gordon’s decision stated that Fort Albany was to pay the monies, which were being held in trust pending the decision, within 45 days of the decision.
Louttit believes the Fort Albany case is a good example of how individual communities are struggling to deal with housing issues on their own.
“These are the very issues in NAN First Nation communities that need to be addressed collectively through a regional mould remediation strategy which will leverage increased resources to correct these situations that exist every NAN community,” Louttit said. “That is why NAN will be setting up the for-profit NAN Regional Housing and Infrastructure entity that can assist First Nations and provide them with good advice, whether it’s legal, whether it’s technical or whether it’s financial, to make sure that their projects are undertaken with due diligence throughout.”
Louttit said many First Nation communities currently rely on their tribal councils to do inspections and assessments to verify that the work has been properly done within the timeline and within the budget.
“Normally the tribal council affiliated with the First Nation would provide the inspection as the work progressed but the Mushkegowuk Tribal Council had not been engaged by the First Nation to provide the required inspection services for that project as confirmed by its Technical Services Unit,” Louttit said. “There are certain stages of inspection before the contractor gets paid for that amount and then they continue on to the next stage.”
Louttit discussed the need for the NAN housing and infrastructure for-profit corporation during the November 2012 NAN Special Chiefs Assembly.
“Once we get the (NAN housing and infrastructure for-profit corporation) start up rolling, then we are going to engage some professional planners and engineers and architects to determine the exact requirements for the capacity of each community to build,” Louttit said.
Louttit said there is a need to upgrade all the standards, to do proper construction methods, to have good project management and to have good planning while maintaining project transparency and financial accountability through to completions and commissioning.
“A lot of communities in northern Canada have really nice homes, and that’s possible in the NAN territory,” Louttit said. “I’m looking forward to that challenge.”
Louttit said there is currently an estimated backlog of 5,000 homes needed across NAN territory based on Aboriginal Affairs and Northern Development Canada website data.
The Mould Clean v Fort Albany, 2013 ONSC 66 (CanLII) court decision is available on the Canadian Legal Information Institute website.