Date: 20050518
Docket: T-572-05
Citation: 2005 FC 721
Vancouver, British Columbia, Wednesday, the 18th day of May, 2005
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
RICHARD WATTS
Applicant
- and -
COUNCIL OF THE
TSESHAHT FIRST NATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Council of the Tseshaht First Nation Band (the "Council") to hold a by-election on May 17, 2005, to fill the position of Richard Watts (the "applicant") whose resignation they deem to be valid and binding, even though the applicant has since then retracted his resignation.
RELEVANT FACTS
[2] The applicant is a member of the Tseshaht First Nation Indian Band (the "Band") as well as Chief Negotiator for the Band. On May 13, 2004, he was elected to a position on the Council for a four-year term.
[3] The applicant disagreed with many of the decisions taken by the Council and in a letter addressed to his supporters dated September 15, 2004, he indicated that he was resigning from the Council. At an open Band meeting on September 15, 2004, the applicant stated orally that he was indeed resigning from the Council.
[4] On September 20, 2004, Stephen Conway, the Chief Executive Officer for the Band, wrote a letter to the applicant stating that the Council regretted the fact that he had resigned, and for reasons of protocol, asked the applicant to submit written confirmation of his resignation.
[5] However, on September 27, 2004, the applicant changed his mind and retracted his resignation in a letter addressed to his supporters and to other Council members (the "Resignation Letter").
[6] At a Council meeting on September 30, 2004, Les Sam, the Council Chief, stated that the applicant's resignation was accepted, and that no further written notices needed to be made by the applicant. The applicant however reiterated the fact that he wanted to continue in the capacity of Council member and that his resignation was not valid as it did not meet the requirements of the Election Code as pointed out to him earlier by the Chief Executive Officer for the Band.
[7] At a Council meeting on November 30, 2004, a motion to reject the decision to remove the applicant from the Council was carried. Nonetheless, at a December 6, 2004 Council meeting, the Council Chief handed out a legal opinion and after consultation with the other Council members, he indicated that the applicant was no longer a Councillor.
[8] Since that meeting, the Council has passed a Band Council Resolution to hold a by-election on May 17, 2005, to fill the applicant's position on Council.
ISSUES
[9] 1. Is Richard Watts' oral resignation from Council valid?
2. Did Richard Watts properly resign from his position as Councillor for the Tseshaht Band, in accordance with the Tseshaht First Nation Custom Election Code?
ANALYSIS
1. Is Richard Watts' oral resignation from Council valid?
[10] Seeing as to how the Tseshaht Band is not designated by ministerial order, the Band council is not governed by the election and tenure provisions contained in the Indian Act ( R.S. 1985, c. I-5 ) and the Indian Band Election Regulations (C.R.C., c. 952), but rather by the Tseshaht First Nation Custom Election Code (the "Election Code") which the Band adopted through referendum on March 25, 2004.
[11] The Election Code was introduced to replace the Band's previous customary election system, and is based on a model code as modified by a committee created specifically to review and propose revisions which would provide for the election, formulation, term in office and other issues relevant to the Tseshaht First Nation elected Council.
[12] Section 12 of the Election Code reads as follows:
12. A vacancy of office shall result if;
(a) a person dies;
(b) resigns, in writing, to the Tseshaht Council;
(c) has a Criminal Conviction, either prior to or while in office;
(d) that without just cause is absent from three consecutive duly convened council meetings;
(e) the person holding office has, by petition of fifty-one percent (51%) of the electors, been presented for recall;
(f) the person holding office becomes incapacitated of fulfilling the duties of office beyond one (1) year, and,
(g) the person holding office is appointed a position in the Tseshaht First Nation Administration.
[13] I would firstly point out that although the word "and" has been used at the end of paragraph 12(f), I read it to mean "or" as it would be nonsensical to read the criteria conjunctively since it would be impossible for someone to be dead and meet either of the other criteria.
[14] Read in a disjunctive manner, paragraph 12(b) states that a vacancy of office shall result if a [Councillor] resigns in writing to the Tseshaht Council. The Band may have chosen this wording to avoid Councillors accidentally resigning by orally stating so in the heat of frustration, or to ensure that a Councillor does not escape liability by alleging that he had previously resigned although no one on the Council had been aware of this.
[15] In contrast, paragraph 78(2)(ii) of the Indian Act simply states that a Councillor position becomes vacant when the person who holds that office dies or resigns his office. In such a case, resignation could be completed either orally or in writing. To interpret paragraph 12(b) of the Election Code in any manner other than requiring a written resignation to the Council, would be to relax the interpretation of the Election Code to the point of setting it aside and using the Indian Act requirements in derogation.
[16] The respondent argues that the September 15, 2004, oral resignation of the applicant is valid, as it demonstrated a clear intention of his will. The respondent relies on Huron-Wendat Nation (Council) v. Laveau, [1987] 3 F.C. 647, [1987] F.C.J. No. 368 to support this argument; however, that case dealt with a resignation pursuant to the Indian Act, which did not indicate what formalities needed to be followed in order to validly resign. In the present case, the oral resignation did not meet the requirements of the Election Code and therefore, cannot be considered as valid. In cases where no mode of resignation is indicated, then that resignation could be made orally, or in writing. However, when a specific mode is indicated in the applicable rules, regulations, by-laws or any other binding source, then that mode must be respected:
As mentioned above, the Indian Act provides no procedure for the resignation of a Chief or a Councillor. If the legislator had intended to specify a procedure, as for example by requiring that the resignation be in writing, he would have said so.
In the above case of Corp. of County of Pontiac v. Pontiac Pacific Junction Railway Co. (1888), 11 L.N. 370 (S.C. Aylmer (Dist. of Ottawa)), the Superior Court discussed at first instance the fact that the Code provided no procedure for resignation. It accordingly fell back on the common law, which simply required that such a resignation be made in any fit manner (at pages 372-373):
... The code mentions no mode by which the resignation of a mayor or of a warden should be made. We must therefore refer to the common law; and under its provisions a resignation, unless a special mode is indicated, can be made in any fit manner. Dillon, in his work on municipal corporations, vol 1, No. 224, says: "If the charter prescribes the mode in which the resignation is to be made, that mode should of course be complied with ... . If no particular mode is prescribed, neither the resignation nor acceptance thereof need be in writing or in any form of words." [...] [my emphasis]
Huron-Wendat Nation (Council) v. Laveau, (supra), at paragraph 17
[17] I therefore find that the oral resignation, in and of itself, is not valid as it does not meet the requirements set out in paragraph 12(b) of the Election Code.
2. Did Richard Watts properly resign from his position as Councillor for the Tseshaht Band, in accordance with the Tseshaht first Nation Custom Election Code?
[18] Seeing as to how the Election Code applies in derogation of the Common Law, the mode provided by it must be followed. The evidence shows that the applicant did resign in writing, but addressed his resignation letter to his "supporters" and not specifically to the Tseshaht Council. In support of his argument that the letter he wrote was not addressed to the Council, the applicant submits the letter written to him by the Chief Executive Officer for the Band, requesting written confirmation from the applicant that he was indeed resigning.
[19] The traditional method of resignation envisaged in paragraph 12(b) of the Election Code is for a Councillor to present a letter to Council stating that he or she is resigning. As I have previously stated, this method may have been employed to prevent fraudulent or accidental resignations. In those cases, it is the intent of the Councillor to truly resign as well as the timing of their resignation which the requirements of paragraph 12(b) of the Election Code could seek to avoid.
[20] Pursuant to the evidence provided, the applicant delivered the Resignation Letter personally to Caledonia Fred's brother, Joshua Derrick Fred, at Ms. Fred's residence. Joshua Derrick Fred provided this Resignation Letter to Caledonia Fred, who is a Council member, on that same day. Ms. Fred received the Resignation Letter, added it to her Council file and discussed the same at the Council meeting on September 13, 2004.
[21] The applicant also personally distributed a copy of his Resignation Letter to his nephew Grant Watts, who was working for the Council at the time. Grant Watts then took the Resignation Letter to John Jepson, Chief Financial Officer of the Council and sought to have the Resignation Letter posted on the Tseshaht First Nation's website. However, his nephew was unable to post it. Nevertheless, it is evident that the applicant was aware of that and agreed to it.
[22] In my view, the applicant's argument is difficult to follow. He spent two weeks distributing the Resignation Letter to members of the community, knowing that there was a Band meeting coming up on the 15th or 16th of September. He was aware and expected that the Resignation Letter, already in the hands of one-third of the Band, would eventually end up in the Chief and Council's hands.
[23] The applicant's intentions and motives became clear. He admitted that if Darlene Watts could pass a motion to reject his resignation, he would consider that a vote of confidence and would stay on Council. He then participated at the Band meeting, asked for time on the agenda, presented his letter of resignation and gave verbal reasons. Other copies of the letter were available at the Band meeting.
[24] In my view, the applicant wanted to use his Resignation Letter as a bargaining chip, as he is the Band's chief negotiator. He explained, when cross-examined, that his decision was not made lightly (Q 174, p. 34 of the Cross-Examination of the applicant, May 10, 2005), but after serious consideration.
[25] The applicant is well aware of the consequences of his actions. It would be totally irrational to agree with his suggestion that, after distributing his Resignation Letter, door to door, knowing that Council members would eventually get it, and after making a 20-minute speech presenting and explaining his reasons for his Resignation Letter with the secret hope or expectation that the Band members would insist that he should retract his resignation, he could easily resume his position as a Councillor as if nothing had happened.
[26] This scenario is good from a negotiation or bargaining point of view. But, from a legal point of view, it does not meet the criteria set by the law and the jurisprudence. Common sense would say "you cannot have your cake and eat it too."
[27] In the present case, I find that the applicant had validly resigned as his intentions as well as the timing of his resignation are evident, and he did meet the written notice requirement of paragraph 12(b). The wording of the Election Code indicates that a resignation must be made in writing, to the Tseshaht Council. Although the written notice was not addressed specifically to the Council, I find that his public letter, in combination with his oral statement at an open Band meeting that he was indeed resigning, satisfy these requirements.
[28] Once a Councillor has created a written notice of resignation and orally addressed to Council the fact that he is resigning, it would be irrational to force him to continue his role as a Councillor until he re-printed his resignation letter and changed the first line to read "To Council" rather than "To my Supporters". As my colleague Justice Tremblay-Lamer stated at paragraph 15 of Agawa v. Batchewana Band, [1998] F.C.J. No. 1498:
In my opinion, the corollary of the Sault decision, where Council does not have the authority to declare a Councillor's position vacant for conduct it finds unacceptable, is that neither does Council have the authority to force a Councillor to stay in his or her position, once he or she has tendered a resignation. To find otherwise would be tantamount to forcing someone to perform a duty or service against his or her will, something I am very reluctant to accept. [my emphasis]
[29] The fact that in his retraction letter, the applicant states "I am retracting my resignation from Council" implies that he intended and in his mind, had properly resigned from his position on Council. Furthermore, the cross-examination on affidavit of the applicant demonstrates that his intention was indeed to resign as Councillor and that his resignation would be known by the Council:
Q 162: Okay. But you were distributing this resignation to households you didn't know who live there?
A: Um-hum.
Q 163: So this was intended for sort of general distribution?
A: Yes.
Q 164: And you knew it was going to come into the hands of the chief and council?
A: Pretty well figured that out.
Q 165: You'd agree with that?
A: Yes.
(Qs 162-165 of the Cross-Examination of the applicant, May 10, 2005)
[30] Although he did not deliver the written resignation personally to all the Council members, his original intention was to distribute the letter to all 150 households on the reserve, therefore directly handing it to them. He did end up distributing copies of his letter to 50-55 households, some of which found their way to Council members.
[31] Furthermore, although the applicant has addressed his letter "To my Supporters", the evidence is that the actual recipients seem to have been everyone he came in contact with, as he handed them out to customers who came to buy fish from him, and also distributed them to random households on the reserve:
Q 142: Okay. So you were distributing - you'd just come to a street and distribute all - to each of the homes on that street a resignation, irrespective of who lived there; is that correct?
A: Yes.
(Q142 of the Cross-Examination of the applicant, May 10, 2005)
[32] The intention of the applicant, combined with the written resignation as well as the oral confirmation at a meeting on September 15, 2004, in which all members of the Band were invited to attend including Council members, and where he presented his letter, meet the requirements of the Election Code and are a valid tender of his resignation as of that date.
[33] As for the applicant's reliance on the letter of the Chief Executive Officer of the Band, I find that the request that a letter of resignation specifically addressed to Council be produced by the applicant does not negate the fact that he had indeed resigned. It was simply a protocol issue in order to follow the standard method laid out in paragraph 12(b) of the Election Code. The fact that the applicant used an atypical approach to submit his written intentions to Council did not invalidate his resignation.
[34] Furthermore, I find that the letter dated September 27, 2004, in which the applicant wrote "I am retracting my resignation from Council, effective immediately" is not a valid reinstatement. Just as the Election Code sets out requirements for a Councillor to withdraw from Office, it sets out requirements to be elected to it. A retraction letter from an ex-Councillor is not a proper means, and therefore, cannot be considered as being a valid method for the applicant to regain his position. For that same reason, a Council motion to reject the decision to remove the applicant from Council once the applicant had validly resigned can also not be viewed as valid.
[35] For the above stated reasons, I find that the applicant did validly tender his resignation as of September 15, 2004, and therefore, is not a member of the Tseshaht First Nation Council.
ORDER
THIS COURT ORDERS that:
The application for judicial review be dismissed.
(Sgd.) "Pierre Blais"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-572-05
STYLE OF CAUSE: RICHARD WATTS
- and -
COUNCIL OF THE TSESHAHT FIRST NATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: May 16, 2005
REASONS FOR ORDER AND ORDER: BLAIS J.
DATED: May 18, 2005
APPEARANCES:
Ms. Dominique Nouvet FOR APPLICANT
Mr. Karim Ramji FOR RESPONDENT
SOLICITORS OF RECORD:
Cook Roberts FOR APPLICANT
Victoria, BC
Donovan & Company FOR RESPONDENT
Vancouver, BC