Ottawa, Ontario, September 20 2005
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] The Dene Tha' First Nation (the First Nation) requests: "a permanent injunction restraining the Respondent from holding himself out as, or otherwise attempting to exercise the jurisdiction and powers of the office of, Chief of the Dene Tha' First Nation". This Court, by order dated May 11, 2005, refused a request for interlocutory relief of a similar nature. I have concluded that this application must also be dismissed.
BACKGROUND
[2] The First Nation is a "band" as defined in the Indian Act, R.S.C. 1985, c. I-5 (the Act). It is not a "section 74" band because its Band Council is not selected in accordance with the election procedure set out in section 74 of the Act. Rather, the Chief and Council of the First Nation are chosen in accordance with the custom of the band as permitted by section 2 of the Act. The Dene Tha' First Nation's Chief and Council are chosen by election pursuant to the provisions of the "Dene Tha' First Nation Election Regulations" (the election regulations). The practice has been followed since 1993 and it is common ground that the election regulations constitute a code that regulates all matters pertaining to the election (and disqualification) of the First Nation's Chief and Councillors. Except where specifically provided otherwise, the election regulations dictate a four-year term of office for both the Chief and the Councillors.
[3] The respondent, Mr. Didzena, was elected Chief on October 26, 2001. His term of office was to expire on October 26th of this year. An election for Chief is presently scheduled for
October 19th and an election for Councillors is scheduled for October 26th.
[4] The pertinent facts are summarized here. Unnecessary detail has been omitted intentionally. In early 2003, concerns arose regarding Mr. Didzena's activities as Chief. There were allegations that he was making fraudulent claims with respect to travel and business expenses. At a council meeting on March 10, 2003, a decision was made to suspend Mr. Didzena from office, without pay, until he could explain himself at a meeting scheduled for March 14th. Although Mr. Didzena is said to have been informed of the March 14th meeting, he did not attend. During that meeting, Council voted to appoint an Acting Chief until the earlier of March 30th or the date upon which a resolution regarding Mr. Didzena could be reached.
[5] On March 17, 2003, a meeting of the general community was held and Mr. Didzena attended. The minutes of the meeting indicate that a First Nation member brought a motion to hold a referendum, in April 2003, regarding the removal of Mr. Didzena as Chief. Due to confusion among those in attendance, the vote on the motion was considered a nullity and another vote (on the motion) was scheduled for the following day. There is nothing in the record indicating that the motion was ever passed and it is clear that no referendum was held. Mr. Didzena continued in his role as Chief.
[6] Further concerns arose in 2004. There were additional allegations regarding Mr. Didzena in relation to fraudulent travel and business expense claims as well as allegations regarding unilateral decisions allegedly taken by him with respect to First Nation-owned corporations.
[7] On November 17, 2004, at Mr. Didzena's request, another meeting of the general membership was convened. At that meeting, Mr. Didzena stated that he was resigning as Chief. The details in relation to the "resignation" and the meeting itself are in dispute. Mr. Didzena swears that the members refused to accept his resignation and indicated that they would accept it only if the Councillors also resigned. He claims that he called for a further meeting (scheduled for January 10, 2005) at which time the membership could determine whether the Chief and Council would be called upon to resign. The primary affiant for the applicant swears that he was not aware that all Councillors had to resign and that there was no decision taken at the November 17th meeting that Council had to resign.
[8] In any event, it is not disputed that Council and the First Nation community continued to treat Mr. Didzena as Chief until November 26, 2004. On that day, a special meeting of Council was held at High Level, Alberta. The topic of Mr. Didzena and the allegations against him were discussed during an in camera portion of the meeting. In the public portion of the meeting, a band council resolution (BCR) was signed terminating Mr. Didzena. Six of the eight Councillors signed the BCR and Mr. Didzena's honorarium was terminated. Although Mr. Didzena had called the meeting, he did not attend because of the location where it was held. On December 10th, Council passed a motion appointing an Acting Chief.
[9] Mr. Didzena refused to recognize the BCR purporting to terminate him. He proceeded with the general membership meeting that he had previously scheduled for January 10, 2005. The six Councillors who signed the disputed BCR did not attend. The other two Councillors were present. A memorandum, authored by Mr. Didzena, states that the membership, among other things, voted to stop recognizing the leadership of the six Councillors who signed the BCR. Mr. Didzena and the other two Councillors, however, were to retain their positions.
[10] In February 2005, a public notice appeared in a local newspaper stating that the First Nation would no longer be liable for any decisions of the six Councillors who were purportedly dismissed as of January 10, 2005. Also in February, Mr. Didzena sent a letter to the First Nation's legal counsel informing counsel's firm that it was no longer retained. Mr. Didzena (as a Chief) attended a meeting of the Treaty 8 First Nations of Alberta and, along with the Chiefs of the other Treaty 8 First Nations, signed a letter addressed to Premier Ralph Klein. In May, he took part in a conference where he was identified on the program as Chief of the Dene Tha' First Nation. He has not participated in the day-to-day governance of the First Nation and he has not received an honorarium since his purported termination on November 26, 2004.
[11] On April 1, 2005, the First Nation filed this application. It is clear from the records that the membership of the First Nation community is in a state of confusion as to who can do what. It is equally clear, despite the confusion, that the daily affairs of the First Nation are being tended by the six Councillors who signed the contested BCR under the leadership of an Acting Chief appointed from that body.
ISSUES
[12] There are two principal issues to be determined. The first question is whether the respondent was properly removed from the office of Chief of the First Nation. If the answer to that question is yes, the second question is whether the applicant is entitled to the injunction it has requested with respect to the respondent.
PRELIMINARY MATTERS
[13] In the respondent's record, under the same court file number as the First Nation's application, Mr. Didzena submitted an application for judicial review of the BCR and requested a "writ of certiorari quashing the BCR, a declaration that Stephen Didzena is the Chief of the Dene Tha' Nation and costs". While such a procedure does not comply with a number of the rules in Part 5 of the Federal Courts Rules, in the present circumstances, it was specifically authorized by the Court's order of May 11, 2005. After hearing the parties, Mr. Justice Rouleau identified the validity of the BCR as the primary issue.
[14] Justice Rouleau granted leave to the respondent to challenge the BCR, permitted further amendment and perfection of the records and set a schedule for cross-examinations and the service and filing of the records. The First Nation filed a reply. Thus, it is clear and is not disputed by the parties that the validity of the BCR is an issue in this proceeding.
ANALYSIS
[15] Before dealing with the crux of the proceeding, there are two additional matters worthy of mention. Given my ultimate conclusion, nothing turns on either matter. However, at the hearing, significant time was devoted to discussion in relation to each of them and for that reason I address them here.
[16] First, it is not clear from the record that the six Councillors who have been overseeing the affairs of the First Nation were authorized to initiate this particular proceeding on its behalf. The applicant took the position that a previous BCR was broad enough to encompass this proceeding and also produced a BCR dated September 7, 2005, which ratified all acts made, done and taken by Council with respect to this proceeding. Taken together, the earlier BCR and the one of
September 7, 2005, leave little doubt that a majority of the Council authorized the initiation of this application. Since the six Councillors were properly elected as members of Council in 2001 and (rightly or wrongly) have continued to govern the affairs of the First Nation, I accept that the notice of application is before the Court at the behest of the First Nation.
[17] Second is the matter of jurisdiction. In the "speaking" portion of the order dated May 11, 2005, the Court stated as follows:
One of the issues the Court felt compelled to address was that of jurisdiction. This Court may grant injunctive relief against a federal board, such as the Council; but, it is with some reluctance that I can be convinced that the respondent is a federal board. He is no longer Chief, as of his alleged resignation and the Council's Resolution, suggest that is he is not part of a Band Council, which has been determined to be a federal board, under s. 18.1 of the Federal Courts Act, R.S.C. 1985 c. F-7.
The applicant argues that a federal board, under s. 2(1) of the Federal Courts Act is defined to include, inter alia, a person purporting to exercise the jurisdiction or powers conferred under an Act of Parliament. The applicant argues that the respondent is purporting to be Chief, and a member of the Council, which is, in turn, a federal board. This argument is not compelling. Can a Chief be considered a federal board? The respondent is Chief; it is yet to be determined if he has resigned, and was legally removed from the position by the Band Council Resolution.
The applicant claims that the respondent and his supporters have taken steps to undermine the Council's authority, have interfered with existing contractual relationships between the Band and others, and have generally acted to prohibit the Council from exercising its authority in the best interest of the entire Dene Tha' First Nation. The Council itself, in making the statement, admits that the respondent is not a member of the Council, and is therefore not a federal board.
There is no doubt that the Applicant may come to the Federal Court but I was not of this juncture satisfied that under the definition under section 2(1) of the Federal Courts Act, the Respondent was a "Federal Board, Commission or other tribunal".
There was no evidence led that his activities were such that one could be convinced that he qualified under the definition; he was not performing Band duties, nor incurring obligations for which the Band Council could be held responsible. He was, as counsel for the applicant suggests, causing mischief by saying he was still the Chief of the Band even though a resolution had been passed dispossessing him from office. As (sic) the Court suggested that the Band Council should simply choose to ignore his actions and allegations. The fact that someone alleges that they (sic) are the Chief of a Band without conducting any official business on its behalf, cannot be said to be exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament. Even though the respondent in his brief suggests that this Court has jurisdiction, this admission of itself does not confer the authority of this Court to grant the relief being sought without further debate.
[18] The applicant originally argued that Mr. Didzena removed himself from the office of Chief when he "resigned" at the general meeting on November 17, 2004. However, the First Nation now takes the position that it does not rely on the purported resignation "in light of the conflicting evidence on this issue". Both parties argued their respective positions on the basis that there was no resignation.
[19] Nonetheless and notwithstanding the comments of the Court on May 11, 2005, neither party squarely addressed the matter of jurisdiction. When I questioned counsel in this respect, I was met with the initial response that the parties had not raised it. I reminded counsel that it was not possible to confer jurisdiction on consent.
[20] The applicant relies on the wording contained in section 2 and subsection 18(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. It submits that an injunction is available against a federal board, commission or other tribunal pursuant to subsection 18(1). A Band Council falls within the meaning of section 2 because it has been determined to be such a body and the definition of "federal board, commission or other tribunal" provides not only for exercising jurisdiction or powers, but also for "purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament". From there, the applicant identifies the issue as "whether the Respondent has been holding himself out or otherwise attempting to exercise the jurisdiction and powers of the office of Chief...". The submissions do not address the question of whether the activities of Mr. Didzena were (as stated in the order of May 11, 2005) "such that one could be convinced that he qualified under the definition" or were merely "mischief". The respondent makes no submissions in this regard.
[21] In Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998) the Saskatchewan case Whitefish v. Saskatchewan (Ministry of Indian Affairs and Northern Development) (1985), 41 Sask. R. 257 (Sask. Q.B.) is cited in support of the following comment at paragraph 2:4324:
While Indian Bands have been held not to be 'federal boards,' the courts have consistently said that when exercising or purporting to exercise powers conferred by or under federal legislation, an Indian Band council is a federal board. As well, when exercising jurisdiction and powers conferred by the Indian Act, an Indian Band chief has been held to be a federal board, as have appeal tribunals and individual members of a Band Council. [emphasis added]
[22] In the absence of a developed argument in relation to Mr. Didzena's actions, I am reluctant to characterize his activities as a purported exercise of jurisdiction or powers that are conferred by or under an Act of Parliament. In any event, as I stated earlier, in view of my conclusion and the analysis that follows in support of it, I need not determine whether Mr. Didzena has purported to exercise jurisdiction and powers conferred by or under the Act.
[23] The First Nation contends that Mr. Didzena's removal from office at the November 26th meeting was proper pursuant to section 9 of the election regulations. That section is reproduced below and is the lone reference - in the detailed and comprehensive election regulations - dealing with termination.
Section 9
TERMINATION PROVISION
1. PROVISIONS FOR RECALL - A Chief or Councillor may be disqualified from holding office, if while in office:
(A) As a result of an appeal or other investigation, he/she is shown to be guilty of a corrupt election practice;
(B) He/she acts in a manner which is detrimental to the office of Chief or Councillor or which is detrimental to the Dene Tha' First Nation, where Council has established policies for the conduct of the Chief and Councillors.
2. DEALING WITH VIOLATION - If a violation of Section 9 Clause 1 occurs, a motion must be presented at a duly convened Council Meeting, calling for the termination of the person in violation. Thereafter, a First Nation Council Resolution outlining the infraction and calling for the disqualification, must be signed by a quorum of the Council. In any case the Chief or Councillor will be disqualified until after the next general election.
3. CODES OF CONDUCT - Other items establishing specifics codes of conduct for elected representatives of the Dene Tha' First Nation may be established from time to time by the First Nation Council by official resolution or by-law.
[24] Mr. Didzena maintains that he was not properly removed from office. He submits that there are at least four mandatory prerequisites set out in section 9, all of which must be satisfied, before the councillors can validly sign the BCR. None of them, according to Mr. Didzena, were met. He focuses primarily on the fourth prerequisite - that a motion calling for his termination must have been presented and passed at the meeting - to challenge the BCR and I will do likewise. His contention is that the BCR is void.
[25] The applicant responds that Mr. Didzena is arguing semantics. The evidence of its two affiants is to the effect that the BCR was presented to the Councillors in attendance at the November 26th Council meeting. The fact that it had been reduced to writing and placed before the Councillors means that there could be no ambiguity about what they (the Councillors) were being asked to consider. In substance, says the applicant, the BCR is a motion.
[26] With respect, I reject the applicant's argument. There is nothing in the record indicating that a motion for the removal of Mr. Didzena from office was presented and passed by Council at the November 26th meeting. Rather, all indicia lead to the opposite conclusion. First, the minutes do not reflect the presenting or passing of any such motion. Second, the recording secretary at the meeting, on cross examination, stated that Council did not pass a motion with respect to the BCR. She acknowledged that Council "[j]ust signed the BCR" without first passing a motion. Third, there is no suggestion that a motion was passed during the in camera session. Indeed, one of the Councillors, on cross-examination, specifically stated that Council does not have the power to pass binding motions when it is in camera.
[27] I disagree with the applicant that the absence of a formal motion is essentially just "semantics". The election regulations clearly set out the procedural steps required to disqualify a Chief or a Councillor from holding office. The motion calling for termination is a condition precedent and it must be fulfilled. Failure to do so cannot be characterized as "semantics". The First Nation was cautious, in drafting its election regulations, to explicitly set out the procedure to be followed. The procedure is not ambiguous and it is not complicated.
[28] There exist good reasons for requiring that a motion be presented and passed. A motion allows those members of the community attending the meeting to be informed of what is happening. In the absence of a motion, observers are not able to discern what business their Council is conducting. Further, the removal of an individual from office is a serious matter. It has a profound impact on the individual. Here, the negative consequences for the First Nation community are indisputable. It is appropriate, where such a serious step is to be taken, that the safeguards articulated in the governing regulations be followed to the letter. For Council to simply place a BCR before its members and proceed to have a majority of them affix their signatures to it does not pass muster.
[29] In sum, Council did not adhere to the procedure for termination as specifically set out in section 9 of the election regulations. Adherence to that procedure is mandatory. It follows that the BCR purporting to terminate Mr. Didzena as Chief is of no force and effect. It is a nullity.
[30] Since the BCR purporting to terminate Mr. Didzena is a nullity, it also follows that an injunction against him cannot issue. This is so even if his activities can be described as actions falling within the definition of "federal board, commission or other tribunal" in section 2 of the Federal Courts Act.
[31] It is fortuitous that the dilemma for the First Nation community will soon be resolved. Because the elections are so close at hand, the members of the First Nation, in short order, will determine their fate and will decide who they wish to elect to the offices of Chief and Councillor.
COSTS
[32] Mr. Didzena requests costs and he is entitled to them. However, he is not entitled to costs that will fully indemnify him in the amount of $35,000. Solicitor-and-client costs are generally awarded only in circumstances where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.); Apotex Inc. v. Canada (Minister of National Health and Welfare) (2000), 265 N.R. 90 (F.C.A.); Amway Corp. v. Canada, [1986] 2 CTC 339 (F.C.A.). I am not satisfied that such circumstances have been demonstrated in this matter. I agree with the First Nation that, if successful, Mr. Didzena should have costs in the ordinary course and not on any special scale. Accordingly, I fix costs in the all inclusive amount of $10,000.
ORDER
THIS COURT DECLARES THAT the Band Council Resolution dated November 26, 2004, is a nullity and orders that the application for an injunction is dismissed with costs to the respondent, to be paid forthwith by the applicant, in the all inclusive amount of $10,000.
"Carolyn Layden-Stevenson"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-592-05
STYLE OF CAUSE: DENE THA' FIRST NATION
v.
STEPHEN DIDZENA
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: September 6, 2005
REASONS FOR ORDER
AND ORDER BY : LAYDEN-STEVENSON J.
APPEARANCES:
MR. THOMAS MARRIOTT FOR APPLICANT
SOLICITORS OF RECORD:
Brownlee LLP FOR APPLICANT
Edmonton, AB
Edmonton, AB