Date: 20020527
Docket: T-626-02
Neutral Citation: 2002 FCT 602
Ottawa, Ontario, this 27th day of May, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
PRESTON SOUND
Applicant
- and -
SWAN RIVER FIRST NATION, ALBERTA LEE TWINN,
CHARLIE CHALIFOUX, JOHN GIROUX,
GERALD DAVIS, LEON CHALIFOUX,
COUNCILLORS OF THE SWAN RIVER FIRST NATION
ROBERT SOUND
RAY DUPRES, ELECTORAL OFFICER
Respondents
REASONS FOR ORDER AND ORDER
[1] The applicant, Preston Sound, brings this motion for an interlocutory injunction prohibiting the by-election for the position of Band Councillor for the Swan River First Nation from proceeding on May 30th, 2002, pending the application for judicial review filed on April 18, 2002.
Background Facts
[2] Elections for the Swan River First Nation are governed by the Customary Election Regulations (the "Regulations") of the Swan River First Nation. These Regulations, intended to reflect the customary election practices of the First Nation, provide for a system of Family Group "wards" each electing one council member. The constitutionality of this system is currently being challenged before the Alberta Court of Queen's Bench by Chief Richard Davis on behalf of a number of band members.
[3] The Regulations were amended from time to time and now provide for off-reserve members to vote. This amendment passed by Band Council Resolution on February 5, 2002, allegedly with the intention of making the Regulations comply with the Corbiere decision of the Supreme Court of Canada.
[4] An election was called for March 8, 2002 to elect the Band Council for the Swan River First Nation for the next three year term. The applicant and the respondent, Robert Sound, both ran for the position of Band Councillor for the Sound family. The applicant, Preston Sound, was elected by a margin of 27 votes to 25 votes. The respondent, Robert Sound, lost to the applicant for a third consecutive election.
[5] Appeals against the election of the applicant were made by the respondents, Leon Chalifoux and Robert Sound.
[6] Appeals of election results are governed by the Regulations and are administered by the Election Appeal Committee (the "Committee") which is made up of those councillors on the Band Council except for that member whose election is being appealed.
[7] The respondent Leon Chalifoux sat as a member of the Committee on March 21st, 2002, when the respondent Robert Sound's appeal against the applicant was heard. The respondent Leon Chalifoux withdrew his appeal against the applicant since the Regulations provide that appeals can only be made from within the family group. Since Leon Chalifoux was not a member of the Sound family, he could not appeal Preston Sound's election.
[8] At the hearing of the appeal, the applicant was not permitted to be present in the hearing room during the respondent Robert Sound's arguments, and was therefore unable to hear the evidence against him.
[9] The applicant was permitted entry to the hearing room after the respondent Robert Sound had completed his testimony and was then heard by the Committee. The applicant objected to Leon Chalifoux sitting on the Committee since he had also appealed against the applicant's election. The applicant argued that Leon Chalifoux was bias and should not sit on the Committee and further argued that since he had not heard the case made against him by the respondent Robert Sound, he could not defend himself.
[10] The Committee refused to exclude the respondent Leon Chalifoux, and by letter dated March 26, 2002, advised the applicant that the respondent Robert Sound's appeal against his election was upheld pursuant to those provisions of the Regulations dealing with "corrupt election practices" and that a by-election was to be called by the Band Council.
[11] The applicant has not been given reasons for the decision of the Committee.
[12] The applicant filed an application for judicial review of the Committee's decision on April 18, 2002.
[13] The Band Council for the Swan River First Nation has directed that a by-election for the position of Band Councillor for the Sound family Group be held on May 30,2002. Pursuant to the Regulations, the applicant is not eligible to be a candidate in the election, since it was his removal from office that prompted the holding of the election.
[14] The business of the Swan River First Nation can proceed with the Band Council as it is presently constituted. A quorum of four Councillors is required to carry on business and there are five remaining Councillors.
[15] A Chief cannot be elected until this matter is resolved. The Chief is elected from one of the members of Council and this election cannot be called until all council seats are filled. The applicant's contention is that a Councillor can be designated as acting Chief for the purpose of representing the First Nation for outside business and indeed the applicant contends that he had on one occasion filled such a role.
[16] The applicant's judicial review application is founded on a denial of the requirements of natural justice and sets forth the following grounds:
(i) the applicant was unable to hear the allegations against him and respond in kind;
(ii) there was a reasonable apprehension of bias in one of the decision makers, Leon Chalifoux, who had appealed against the applicant's election and had remained a member of the Election Appeal Committee for the hearing of the applicant's appeal;
(iii) the Election Appeal Committee failed to give reasons for their decision;
(iv) the finding of the Election Appeal Committee was not supported by the evidence and was therefore incorrect or, alternatively, patently unreasonable.
[17] In order to succeed on his motion the applicant must establish that there is a serious issue to be tried in the underlying application for judicial review, that the balance of convenience operates in favour of postponing the by-election, and that irreparable harm would result to the applicant if the by-election were held prior to the determination of the underlying application for judicial review.
Serious Issue
[18] I am satisfied that there is a serious issue to be decided in the underlying application for judicial review. The evidence that the applicant was not permitted to be in the hearing room and hear the case against him, is undisputed. Given the seriousness of the matter before the Committee, and which process ultimately led to the applicant being removed from elected office, it would appear to me that the applicant has raised a serious issue to be tried by arguing that the Committee denied him natural justice and procedural fairness by preventing him from being in the hearing room when the case against him was being made. It is not for me, on this motion, to decide the matter. I am, however, satisfied that the applicant has met the threshold of establishing a serious issue.
[19] The respondent argues that the granting of this injunction would, in essence, provide the applicant with the relief he seeks in the underlying application and that this would be inappropriate since the matter would be decided on an interlocutory application without a complete hearing of the merits. I do not accept this argument. In his underlying application, the applicant is asking the Court to quash the Committee's decision to remove him from office. The requested injunction, if granted will not determine the applicant's status as a Band Councillor, nor will it address the appropriateness of the Committee's decision to remove him from elected office. The injunction, if granted, will serve to preserve the status quo and will not grant the relief the applicant seeks in his judicial review application. [Gould v. Canada (A.G.) 13 D.L.R. (4th) 485 (C.A.).]
Irreparable Harm
[20] "At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the results of the interlocutory application." [RJR MacDonald Inc. v.Canada (Attorney General), [1994] 1 S.C.R. 213.]
[21] I am satisfied that by allowing a by-election to proceed for the position of Band Councillor in which the applicant is an ineligible candidate would constitute irreparable harm to the applicant. For a period of time, another individual could potentially hold the office the applicant was elected to on March 8, 2002. Should the applicant be successful in his judicial review application, I am of the view that the applicant's interest will be adversely affected in a manner that cannot otherwise be remedied. In the circumstances of this case I am satisfied that irreparable harm has been established for the purposes of this motion.
Balance of Convenience
[22] In assessing the balance of convenience, consideration must be given to the public interest which, in this instance, must be assessed with regard to the needs and best interest of the Swan River First Nation. By granting the injunction and prohibiting the holding of the by-election until the applicant's status is determined in the underlying application, I would, from the respondents' perspective, temporarily suspend the holding of a validly called by-election and also postpone the election of a Chief. From the appellant's perspective I would, by granting the injunction, be preserving the status quo until the legality of the appellant's removal from office is determined. Further, the business of the Swan River First Nation can be carried on by the Band Council as it is currently constituted. I do not believe that it would be in the best interest of the Swan River First Nation to have the by-election proceed. The election of a new Councillor, who may have to step aside should the applicant be successful in his judicial review application would, in my view, be far more disruptive and inconvenient to the community than preserving the status quo.
[23] I am satisfied that the applicant has met the tripartite test set out in RJR MacDonald Inc., supra, for the granting of an interlocutory injunction.
[24] For the above reasons the motion will be granted.
ORDER
THIS COURT ORDERS that:
1. An interlocutory injunction is granted enjoining the Swan River First Nation from proceeding with the by-election for the position of Band Councillor for the Swan River First Nation on May 30, 2002, pending the application for judicial review filed in Federal Court on April 18, 2002.
2. The applicant shall have his costs on this motion.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-626-02
STYLE OF CAUSE: Preston Sound v. Swan River First Nation, Alberta et al.
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: May 21, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: May 27, 2002
APPEARANCES:
Anne de Villars, Q.C. FOR PLAINTIFF / APPLICANT
Priscilla Kennedy FOR DEFENDANT/ RESPONDENT
Twinn, Davis, Chalifoux
SOLICITORS OF RECORD:
de VILLARS JONES FOR PLAINTIFF/APPLICANT
300 8540 - 109 Street
Edmonton, Alberta T6G 3E1
PARLEE McLAWS, LLP FOR DEFENDANT/RESPONDENT
1500 10180 - 101 Street Twinn, Davis, Chalifoux
Edmonton, Alberta T5J 4K1