Date: 20020517
Docket: T-2212-01
Neutral Citation: 2002 FCT 581
Ottawa, Ontario, this 17th day of May, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
DORA DUNCAN and JENNIFER DUNCAN
Applicants
- and -
THE BAND COUNCIL OF BEHDZI AHDA FIRST NATION,
THE SETTLEMENT CORPORATION OF COLVILLE LAKE,
SHARON TUTCHO J.B. GULLY,
ROLAND CODZI and SARAH KOCHON
Respondents
REASONS FOR ORDER AND ORDER
a. By this motion the applicants seek the following relief:
(1) an interlocutory injunction enjoining the Behdzi Ahda First Nation Band Council (the "Band Council") from holding a by-election scheduled on Tuesday, May 21, 2002;
(2) an interlocutory injunction enjoining the Band Council from holding by-elections for the positions of Chief and Band Councillor until the application for judicial review is resolved by Court order;
(3) such further and other relief as to this Honourable Court may seem just; and
(4) costs of this motion on a solicitor and client basis.
Background Facts
b. The Band Council announced a by-election for the positions of Chief and Band Councillor which by-election is schedule to occur on Tuesday, May 21, 2002. The by-election was caused by the removal of the applicants pursuant to Band Council Resolution 1119011 (the "resolution").
c. On August 8, 2001, the applicants were elected to the Band Council. The applicant Dora Duncan was elected Band Council Chief and the applicant Jennifer Duncan was elected as a Band Councillor.
d. On November 19, 2001, the Band Council passed a resolution to remove Chief Dora Duncan and Councillor Jennifer Duncan from the Band Council. The resolution was passed as a result of the applicants in their respective positions allegedly missing more than three "properly constituted" Band meetings as provided for in the Settlements Act, RSNWT 1988, c. S-9.
e. The applicants allege that the Band councillors that attended the November 19, 2001 meeting of Council were relatives of former band Chief Richard Kochon, the person Chief Duncan defeated on August 8, 2001.The applicants contend that the resolution is a nullity since neither applicant received advance notice of the November 19, 2001 meeting, nor were they advised that their removal from their elected positions would be discussed at the November 19, 2001 meeting. The applicants further contend that they did not miss three consecutive "properly constituted" Band Council meetings for which they had notice.
f. The applicants filed an application for judicial review on December 14, 2001, concerning the legality of the resolution on the grounds that the Band Council failed to provide the applicants with proper notice of the proposed resolution to remove them from office and failed to provide the applicants a hearing on the merits of the resolution.
g. The applicants, in their application for judicial review, contend that the Band Council violated the rules of natural justice, procedural fairness, the Settlements Act, and the Indian Act R.S.C. 1985, c. I-5.
h. In order to succeed on their motion, the applicants must establish that their attack on the resolution raises a serious issue, that the balance of convenience operates in favour of postponing the election, and that irreparable harm would result if the by-election was held prior to a determination being made as to the legality of the resolution removing the applicants from elected office.
Serious issue
i. There is in my view a live and serious issue in the underlying application. That is the issue of whether the Band Council failed to provide the applicants with proper notice of the proposed resolution and failed to provide the applicants a hearing on the merits of the resolution to remove them from elected office.
j. There is conflicting evidence on the issue of notice. The applicants deny receiving notice of certain meetings and argue that, in the case of the applicant Jennifer Duncan, a cellular phone number was left with the Band Council and despite this she was not notified of the Band Council meetings she is alleged to have missed. The applicants further contend that they were never informed of the nature of the proposed resolution and were not afforded a hearing on the merits.
k. The respondents contend that the notice of the Board Council meetings were provided by posting and, in the case of the applicant Chief Dora Duncan, by communicating directly with her. Despite being notified, the respondents contend that the applicant Chief Dora Duncan chose not to attend the meetings. The respondents further contend that, since notice was given, the applicants did have an opportunity to present their case.
l. It is obvious that the adequacy of notice is a live issue in the underlying application and this was conceded, at the hearing of this matter, by counsel for the respondents. I am satisfied on the evidence before me, and for the purpose of this motion, that a serious issue arises in the underlying application for judicial review.
Balance of convenience
m. In assessing the balance of convenience, the Court must take into account the public interest which in this instance must be assessed by considering the needs and best interest of the Behdzi Ahda First Nation. In so doing I am guided by the decision of Noël J. (as he then was) in the case of Francis v. Mohawks of Akwesasne Band of Indians, [1993] F.C.J. No. 369, online: QL. The facts in that case are somewhat similar to the case before me. The Court had to consider a motion for an interim order prohibiting the Mohawk Council of Akwesasne from holding an election. The underlying application attacked the decision of Council to hold the by-election.
n. The Court in the Francis case granted the motion, and prevented the holding of the election until its legality was confirmed. In his decision Noël J. explained why he thought it important to preserve the status quo, he wrote at page 3 of his reasons:
...The Council charged with the responsibility of governing that community is already in an uncertain and somewhat chaotic state which, in my view, must not be further exacerbated.
By granting an interim order prohibiting the holding of the by-election until the matter of its legality is resolved, I would, from the respondents' point of view, temporarily suspend the holding of validly called elections. On the other hand, by granting the interim order, I would preserve the status quo until the issue of the propriety of the by-election is determined. It seems to me that while the present state of affairs is obviously less than desirable, the one which would result if elections were held and were subsequently declared invalid, would be immeasurably worse.
The further disruption which would result in the Akwesasne community if elections, otherwise validly and democratically held, were voided because of an absence of proper authority to hold them could be substantial. Those elected in accordance with the perceived will of the people would be forced to abandon their seats on the Council in favour of members who no longer hold the trust of the community. This would add considerable difficulty to an already difficult situation.
In contrast, preventing the holding of the election until its legality is confirmed would prevent the immediate resolution of the impasse without, however, adding any more fuel to the fire.
o. I believe that the reasoning of Noël J. in Francis, supra, is applicable to the present case. I am satisfied that to allow the by-election to proceed would lead to a circumstance that would be far less desirable than to delay the by-election until the legality of the resolution can be determined.
p. Should the by-election proceed as scheduled on Tuesday, May 21, 2002, and the applicants be successful in their application for judicial review of the legality of the resolution, the community would be faced with a situation where individuals elected in this by-election, with the confidence of the people, would be forced to abandon their seats on Council in favour of the applicants. In my view, such a circumstance would be far less desirable than the status quo and would result in exacerbating an already difficult situation. The status quo would allow the legality of the resolution to be determined and an eventual election to be re-scheduled and held if necessary. The community would not have to cope with a potential development that could see duly elected individuals having to vacate their positions. I am of the view that the public interest and the interest of the Behdzi Ahda First Nation would be better served by postponing the by-election. The balance of convenience therefore favours this option.
Irreparable Harm
q. Given the questions that arise in this matter, I am satisfied that the relevant considerations underlying an assessment of the balance of convenience are equally applicable to irreparable harm.
r. I am satisfied, on the facts of this case, that the applicants and the Behdzi Ahda First Nation would suffer irreparable harm should the interlocutory injunction not be granted. The trust and confidence that Band members risk losing in their system of government and their leaders cannot be otherwise compensated. I am of the view that such risk is real if the by-election is held and the elected individuals must subsequently vacate their positions should the applicants be successful in their application. The community's expectation that the results of otherwise validly and democratically held elections be upheld would, in my view, be at risk.
s. For the above reasons the motion will be granted.
ORDER
THIS COURT ORDERS that:
1. An interlocutory injunction enjoining the Behdzi Ahda First Nation Band Council from holding a by-election scheduled on Tuesday, May 21, 2002;
2. An interlocutory injunction enjoining the Band Council from holding by-elections for the positions of Chief and Band Councillor until the application for judicial review is resolved by Court order;
3. The applicants shall have their costs on this motion.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2212-01
STYLE OF CAUSE: Dora Duncan and Jennifer Duncan
Applicants
- and -
The Band Council of Behdzi Ahda First Nation,
The Settlement Corporation of Colville Lake, Sharon Tutcho J.B. Gully, Roland Codzi and Sarah Kochon
Respondents
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 17, 2002 by teleconference call
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: May 17, 2002
APPEARANCES:
Mr. Craig S. Haynes FOR PLAINTIFF / APPLICANT
Mr. Jack Williams FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Gullberg Wiest Macpherson & Kay FOR PLAINTIFF/APPLICANT
P.O. Box 818, 4908 - 49th Street
Yellowknife, NT X1A 2N6
Field Atkinson Perraton FOR DEFENDANT/RESPONDENT
Suite 203 Scotia Centre
203 - 5102 Franklin Avenue
Yellowknife, NT X1A 3S8