Date: 20050411
Docket: T-612-05
Citation: 2005 FC 481
Ottawa, Ontario, the 11th day of April 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
GARY GOPHER
Applicant
- and -
SAULTEAUX FIRST NATION
and CELINA MOCCASIN
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant, Mr. Gary Gopher, moves for an injunction preventing the Saulteaux First Nation election from being held on April 12, 2005, and for a declaratory order pertaining to the nominations of certain other candidates.
[2] More specifically, the Applicant seeks to obtain the following:
1) an injunction pursuant to sections 18, 18.1(3), and 44 of the Federal Court Act, R.S.C. 1985, c. F-7, preventing the nominations and the election scheduled to take place April 12, 2005, or alternatively, an injunction providing that Gary Gopher's nomination be accepted and the nominations of Gary J. Moccasin, Ernie Gopher, Stella Gopher, Grant Moccasin, and Mervin Night be disallowed;
2) A declaratory Order under section 18 of the Federal Court Act and Rule 64 of the Federal Court Rules, that the Applicant Gary Gopher be allowed to run in the upcoming Saulteaux First Nation election;
3) A declaratory Order under Section 18 of the Federal Court Act and Rule 64 of the Federal Court Rules, that the nominations of Gary ;J. Moccasin, Ernie Gopher, Stella Gopher, Grant Moccasin, and Mervin Night be disallowed;
4) Such other relief as the Court may find just and counsel may submit.
FACTUAL BACKGROUND
[3] The Saulteaux First Nation's elections are governed by the internal rules set out in the Saulteaux First Nation Band Custom Elections Act (the "Act").
[4] A nomination meeting for the Saulteaux First Nation was held on March 29, 2005. The Applicant was present at the meeting, as he was seeking nomination. His nomination as a candidate in the upcoming election was not accepted by the returning officer, Celina Moccasin. She did not allow the Applicant to run based on the following section the Act:
Term of office for Chief and Councillors will be two years. Elected Band Council shall only serve two (2) consecutive terms of office and cannot proceed to a third consecutive term of office, but the former Band Council Member has the right to run for election following the third term.
[5] According to his affidavit, the Applicant served on the Band Council, acted as Chief from March 2001 to March 2003, and served again on the Band Council from March 2003 to March 2005. The returning officer, therefore disqualified the Applicant's nomination.
[6] On April 7, 2005, the Applicant filed a notice of application for judicial review with this Court to contest the nomination process and its results.
ISSUES
[7] The issues to be resolved on this motion may be framed as follows:
1) Whether the test for an interlocutory injunction has been met?
2) Whether this Court should grant the declaratory relief sought by the Applicant?
ANALYSIS
1) Whether the test for an interlocutory injunction has been met?
[8] The Applicant presents the motion for an injunction pursuant to section 18, subsection 18.1(3) and section 44 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended S.C. 2002, c. 8. The motion for declaratory order is also based on section 18 of the Federal Courts Act.
[9] Injunctive relief is discretionary and extraordinary relief which is granted by the Court in limited cases to maintain the existing state of affairs in order to allow for the adjudication of a party's assertion to some right: McAllister v. Horse Lake First Nation, [2001] F.C.J. No. 88, online: QL at paragraph 3.
[10] The test for obtaining an interlocutory or interim injunction is set out by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. For a party to obtain such an order, it must demonstrate :
a) that it has raised a serious issue to be tried;
b) that it would suffer irreparable harm if no order was granted; and
c) that the balance of convenience, considering the total situation of both parties, favours the order.
[11] The Applicant seeks an injunction preventing the election from being held until the issues raised in the underlying judicial review application are dealt with.
a) Serious issue
[12] In considering whether a serious issue has been established, the Supreme Court of Canada in RJR-Macdonald, supra, stated that the "threshold is a low one" and that the motions judge must conduct only a preliminary assessment of the case.
What then are the indicators of a "serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. (...) Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination on the merits is generally neither necessary nor desirable.
[13] The Supreme Court identified two exceptions to this rule. The first arises when the result of the interlocutory motion will effectively amount to a final determination of the proceeding. The second arises when a question of constitutionality presents itself as a pure question of law. I am satisfied that, in the present case, these exceptions find no application.
[14] The serious issues involved in the present case, as argued by the Applicant, essentially relate to the refusal to accept his nomination as candidate in the election, the flawed application of the nomination process set out in the Act and the nominations made in violation of the Act.
[15] The Applicant submits that he should have been allowed to run in the election. He suggests that the returning officer misinterpreted the rule pertaining to term limits. The Applicant contends that the wording of the rule suggests that the elected Band Council, as a whole, shall only serve two consecutive terms; if one member of the Council changed, the limitation would not apply. He also argues the fact that he served as Chief during his second term should not count as time served in the position of Council member.
[16] The Applicant also contests the nomination process, arguing that it was tainted by other breaches of the Act, namely that the nomination meeting did not remain open for the required amount of time, that the returning officer did not follow traditional procedures, that she did not respect the rules to close the nominations. The affidavit evidence adduced alleges that the meeting was ordered closed by Chief Brian Moccasin. The Applicant argues that the nominations were actually only opened for one hour rather than the two hours required by the Act. The Respondent Celina Moccasin contests these allegations, attesting that the meeting lasted from 1:00 to 4:00 p.m.
[17] The Applicant further contends that one candidate, Mr. Kenny Moccasin's nomination, was denied because he failed to request a leave of absence at least 30 days prior to the election, as required by the Act. However, other candidates, namely Gary J. Mocassin, Grant Mocassin, Stella Gopher and Ernie Gopher, who also failed to comply with this rule, were allowed to run even though they are employed by the Band. In consequence, the Applicant argues that the election should be postponed until an order preventing these candidates from running is obtained. The Respondent challenges the Applicant's assertion that these other candidates are employees of the Band for the purposes of the Act.
[18] The Applicant also contests the nomination of Mr. Mervin Night, who allegedly is facing fraud charges. This, according to the Applicant is a clear violation of the Act which provides:
That any elected official that is charged with an indictable offence while in office, shall immediately notify the Band and resign from office voluntarily, that person can be removed at a Band Custom Meeting.
The Applicant argues that, if Mr. Night was ever elected, he would immediately be required to resign due to the fact that he is charged with an indictable offence. The Applicant suggests that Mr. Night may not, therefore, seek office. The Respondent argues that Mr. Knight is presumed innocent until proven guilty and should be permitted to be nominated for election.
[19] I am satisfied that, in light of the low threshold to be met, the underlying application for judicial review raises a serious issue relating to non compliance with the nomination process set out in the Act.
b) Irreparable harm
[20] "Irreparable" refers to the nature of the harm rather than its magnitude; it is harm that cannot either be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other: RJR-Macdonald, supra, at page 341.
[21] At this stage of the test, the issue to be decided by the motions judge is to determine whether a refusal to grant the relief sought could so adversely affect the Applicant's own interests that the harm could not be remedied if the eventual decision on the merits is not in keeping with the result of the interlocutory proceeding: RJR-Macdonald, supra at page 341.
[22] Evidence of irreparable harm must be clear and not speculative: Lake St Martin First Nation, v. Woodford, [2000] F.C.J. No. 1242, online: QL at paragraph 6. The Federal Court of Appeal pointed out in Eli Lilly and Co. v. Novopharm Ltd. (1996), 69 C.P.R. (3d) 455, at page 457, that the burden of establishing irreparable harm was not an easy one, for this is an extraordinary remedy which is not granted unless the moving party convinces the Court, inter alia, that damages at common law would not provide an adequate remedy if the Court did not grant the injunction.
[23] I am aware that interlocutory injunctions were in the past granted to postpone elections. However, such relief was granted, in a majority of those cases, in situations where the moving party sought to postpone by-elections held to fill a position which became available after individuals were removed from the positions to which they were elected. The evidence of irreparable harm in those circumstances was clear and convincing: Sound v. Swan River First Nation, 2002 FCT 602; Duncan v. Behdzi Ahda First Nation Band (Council), 2002 FCT 581; Gopher v. Saulteaux First Nation Band, 2004 FC 1750.
[24] Evidence of irreparable harm is essential in a motion for interlocutory injunction to postpone an election. Failing to provide clear evidence of the second element of the test proved to be fatal in most cases: McAllister v. Horse Lake First Nation, [2001] F.C.J. No. 88, online: QL; Isnana v. Canada (Minister of Indian and Northern Affairs), [1999] F.C.J. No. 730, online: QL; Cimon v. Canada (Minister of Indian Affairs and Northern Development), [1999] F.C.J. No. 1736, online: QL; Dodge v. Caldwell First Nation of Point Pelee, 2003 FCT 36; Beauséjour v. Yekooche First Nation, 2003 FC 1213.
[25] While the Applicant has established a serious issue to be decided in the underlying application, he has failed to establish that he would suffer irreparable harm should the order sought not be granted.
[26] Counsel for the Applicant argues that he "is suffering irreparable harm and will continue to suffer further irreparable harm. If the election goes ahead, the [Applicant] will have lost his right to run in the election." This argument is not supported by the evidence. While the Applicant's status is debatable, in respect to his eligibility for nomination, it does not necessarily lead to a conclusion of irreparable harm. Should the election be deemed unlawful and be set aside, and the Applicant is successful in obtaining relief in the underlying judicial review application, in that he is found eligible for nomination, he may then run in a new election. In the circumstances, the Applicant has failed to establish irreparable harm should the injunction not be granted.
c) Balance of convenience
[27] The Supreme Court's decision in RJR-Macdonald, supra clearly establishes that the factors to be considered at the third stage of the test are numerous and vary with each case. The Supreme Court, however, pointed out that cases involving claims for interlocutory relief between private litigants differ considerably from cases where the public has an interest at stake.
[28] I am of the view that, although no constitutional issues are raised in the present case and the validity of legislation is not at stake, this case has a strong public interest component. The community of Saulteaux First Nation, as a whole, is affected by the election. Furthermore, the Applicant, in seeking this injunction is advancing his own interest and not advocating the public interest.
[29] The Applicant submits that less prejudice will occur if the election is postponed, pending this Court's decision on the application for judicial review, than if it goes ahead. The election can always take place at a later date. However, the Applicant contends that if the election is held he will have lost his right to run and other parties will have been nominated while ineligible.
[30] The purpose of an interlocutory injunction is to preserve or restore the status quo until trial, not to give the plaintiff his remedy: Gould v. Canada (A.G.), [1984] F.C. 1133. I acknowledge that in Francis v. Mohawk Council of Akwesasne (1993), 62 F.T.R. 314 the balance of convenience favoured the issuance of an injunction postponing a band council election. Preserving the status quo pending determination of the validity of the election was preferable to the disruption that would result if the election were held and subsequently found to be void. In Francis, supra, the Court was satisfied that there was evidence indicating that it would be "immeasurably worse" for an election to be held and subsequently declared invalid than to postpone it. The Court was also satisfied that there was evidence showing that the Band Council was already in a state of uncertainty and chaos, which would only be exacerbated if an election were later declared void.
[31] In the present circumstances, I am unable to determine if such an eventuality exists due to the paucity of evidence supporting the Applicant's submissions. In the circumstance, the balance of convenience favours the community's interest in having the election of its governing body held.
2) Whether this Court should grant the declaratory relief sought by the Applicant ?
[32] I am of the view that the decision of Justice Heneghan in Dodge, supra, applies in the circumstances of this case to dismiss the motion for declaratory relief. As was the case in Dodge, supra, the Moving Party was seeking, by way of motion, the same relief as in his application for judicial review. I agree with the reasons of Justice Heneghan in that, if it is subsequently determined that the process leading up to the election was improper or illegal, a remedy lies in the underlying judicial review.
CONCLUSION
[33] The Applicant has failed to satisfy the tri-partite test set out in RJR-MacDonald, supra. The Applicant has failed to establish that the injunctive relief sought is warranted in the circumstances. The request for declaratory relief is best left for the judge hearing the judicial review application.
[34] For the above reasons, the motion is dismissed with costs to the Respondent.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-612-05
STYLE OF CAUSE: Gary Gopher v. Saulteaux First Nation and Celina Moccasin
PLACE OF HEARING: Ottawa by teleconference
DATE OF HEARING: April 11, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: April 11, 2005
APPEARANCES BY:
J. D. Roberts For the Applicant
John Kwok For the Respondent
SOLICITORS OF RECORD:
Anthony Merchant For the Applicant
Regina
John Kwok For the Respondent
Saskatoon