T-1532-04
Ottawa, Ontario, this 13th day of April, 2006
In the presence of the Honourable Justice de Montigny
BETWEEN:
Applicant
and
and
ROSARIO PINETTE, CÉLINE BELLEFLEUR,
GEORGES ERNEST GRÉGOIRE, MARCELLE ST-ONGE,
GILLES JOURDAIN, RONALD FONTAINE AND MAURICE VOLLANT,
appearing in their capacity as members or former members of the Band Council
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, Albert Vollant, has filed two applications for judicial review, in which he asked that two resolutions adopted by the Innu Takuaikan Uashat Mak Mani-Utenam Band Council (I.T.U.M. Council) be set aside. The first of these resolutions bearing number 04-05-64 (resolution 64) on June 23, 2004, was filed under docket number T-1837-04; the second challenged resolution bearing number 04-05-67 (resolution 67) on June 30, 2004, was filed under docket number T‑1532‑04. As both of these applications arise from the same context, raise the same legal issues and were examined at the same time, it seemed to me more convenient to discuss them jointly in these reasons for judgment.
[2] The respondents, in turn, have filed two other applications for judicial review with regard to the legality of two other resolutions adopted on September 13, 2004 by a differently-constituted I.T.U.M. Council, following the elections of July 8, 2004. The two cases, under docket numbers T-1841-04 and T-1842-04, shall be disposed of today in a distinct order; although the parties remain essentially the same (albeit in different roles), the legal issues raised are completely different and need to be ruled upon separately.
BACKGROUND
[3] The current issues reflect deep political divisions within the I.T.U.M. Council. The considerable amount of evidence offered by the parties in the current case, as well as in related cases, reveals a great degree of tension and mistrust between the former and the new band chief and their respective supporters; although the reasons for these divisions are difficult to identify and have undoubtedly multiple causes, there is no doubt that personality conflicts played a major role here, along with the fact that some non-members may have been involved in the governance of the Band.
[4] Under the Indian Act, R.S.C. 1985, c. I-5, the I.T.U.M. Council is the decision-making body empowered to administer the Uashat and Mak Mani-Utenam reserves. This council is composed of a chief and nine councillors, who are all elected by the members of the community ([translation] Electoral Code with respect to elections in the Uashat Mak Mani-Utenam Community, s. 2.1; applicant’s record, at page 29). A Council mandate should not exceed three years (s. 2.5).
[5] Between August 2001 and July 8, 2004, the date of the last elections, the I.T.U.M. Council was represented by Chief Rosario Pinette and councillors Céline Bellefleur, Georges-Ernest Grégoire, Marcelle St-Onge, Gilles Jourdain, Ronald Fontaine, Maurice Vollant, Albert Vollant, Brigitte André and Réjean Ambroise. The latter three councillors formed the opposition.
[6] On August 3, 2001, the I.T.U.M. Council (represented by its chief) signed an employment agreement with Konrad Sioui for the position of principal advisor. This agreement was to start August 24, 2001 and expire on August 31, 2004. The duties, powers and responsibilities pertaining to this position were described as follows in the appendix to the contract:
[translation]
- Assist the chief and/or his elected representative in the performance of his political duties at the local, regional, national and international level;
- Advise the chief and/or his elected representative on any governmental policy or regulation having an impact on the governance of the I.T.U.M;
- Perform the required administrative tasks on behalf of the chief and/or his elected representative; Draft letters, documents and reports as required by the chief and/or his elected representative; Represent, as needed, the chief and/or his elected representative;
- Fulfill special mandates as required by the chief and/or his elected representative.
[7] Due to its relevance in helping to understand the issues raised in this case, it is important to review section 12 of the agreement, which reads as follows:
[translation]
12. RESCISSION, EMPLOYMENT TERMINATION AND DISCHARGE
a) This agreement may be rescinded at any time by the written consent of both parties.
b) In conformity with the preceding section, the employer agrees to the following terms and conditions:
1) Payment of vacation balance
2) Payment of cashable sick leave balance
3) Payment of remaining balance under the employee’s
contract
12. RESCISSION, EMPLOYMENT TERMINATION AND DISCHARGE (CONTINUED)
c) The employer may rescind this agreement if the employee is found guilty of serious offences.
d) It is expressly agreed that repeated and/or excessive tardiness or absences may result in termination of employment prior to the expiration date of this agreement.
e) It is also expressly agreed and fully understood that the consumption of alcohol or illicit drugs on the part of the employee shall not be tolerated by the employer.
[8] On August 8, 2002, the I.T.U.M. Council decided to extend the contracts of the contract workers until December 31, 2004, in order to ensure a smoother transition following the elections. The Council resolution therefore expressly authorized Chief Rosario Pinette to amend the contract term and remuneration (Resolution 02-03-40; applicant’s record, at page 77).
[9] Accordingly, on August 13, 2002, the I.T.U.M. Council (still represented by its chief) signed a new employment contract with Mr. Sioui. Not only did this new contract extend the term of the agreement until December 31, 2004, but it also adjusted upward Mr. Sioui’s remuneration and annual vacation and assigned to him the additional responsibility of overseeing the Executive Committee as its president. This new contract also included important amendments to the rescission and discharge provisions, including a stipulation that, in the event the employer was to terminate the contract in the year prior to its expiration, the employee would be entitled, not only to a compensation equal to the remaining balance of the employer’s obligations (which was already provided for under the original contract signed in 2001), but also to a compensation equal to one year of salary (s. 11(f) of the contract, set out at page 100 of the applicant’s record). It was furthermore agreed that [translation] “in the event the employee is unable to perform his duties due to exceptional circumstances, such as acts of violence, intimidation, aggression or serious threats in the workplace, the employer shall pay the employee a termination of employment sum corresponding to the remaining balance the employee is owed under this agreement”, with an additional year if these exceptional circumstances were to occur during the last twelve months of the agreement (s. 11(g)).
[10] These provisions, which are unrelated to the question of the extension of the contract until December 31, 2004, reflect the intense atmosphere prevailing at the time. The Council at the time wished not only to take into account the fears expressed by Mr. Sioui for his safety, but also to provide him with a measure of financial protection in the event that a new chief was to be in place following the 2004 elections.
[11] Indeed, the evidence adduced by the parties reflects that other amendments to Mr. Sioui’s contract, at Mr. Sioui’s request, were already contemplated at the end of 2002. The goal was to further ensure Mr. Sioui’s protection by providing, for example, for the payment of a compensation amount equal to one year of salary in the event of non renewal of his contract on its expiration date and the deposit in the hands of a trustee, prior to the elections, of sums that he may be owed pursuant to the terms and conditions of his contract (refer, inter alia, to the March 31, 2003 legal advice from Lucie Gauthier in support of Albert Vollant’s affidavit, (included as exhibit AV-14 in the applicant’s record, at page 114). As the election date was nearing, between May 16 and June 22, 2004, the law firm of Bertrand Poulin was retained to prepare several draft resolutions, letters and contracts, always in view of giving additional protection to Mr. Sioui in the event of a changing of the guard within the Band Council (refer to exhibits AV-15 to AV-18 in support of Mr. Vollant’s affidavit, as well as to paragraphs 48-53 of his affidavit; applicant’s record, at pages 120, 125, 130, 170).
[12] The last regular meeting of the I.T.U.M. Council was held on May 25, 2004, that is, two weeks prior to the start of the electoral campaign on June 8. Following the July 8 elections, Chief Rosario Pinette was replaced by Elie-Jacques Jourdain. Five councillors who supported the former chief were re-elected (Céline Bellefleur Vollant, Georges-Ernest Grégoire, Gilles Jourdain, Ronald Fontaine, Marcelle St-Onge), while four councillors supported the new chief (Marie-Marthe Fontaine, Bernadette Michel, Yves Rock and the applicant, Albert Vollant).
[13] Now, during the electoral campaign, the I.T.U.M. Council secretary distributed to the six councillors supportive of Chief Pinette a resolution (resolution 64) to be signed. There is no dispute as to the fact that no meeting was called to adopt this resolution.
[14] The purpose of this resolution was to pay Mr. Sioui a compensation equivalent to six months of salary by way of an advance and to authorize him to terminate his employment by submitting a written notice within twenty-four hours of the publication of the final results of the elections. It should be noted that one of the whereas clauses of this resolution read as follows: [translation] “Konrad Sioui has already indicated that he would terminate his employment agreement in the event the next Council were to be drastically modified in the wake of the publication of the final results of the elections.” On the other hand, the operative part of the resolution read as follows:
[translation]
- INNU TAKUAIKAN UASHAT MAK MANI-UTENAM shall pay Konrad Sioui, in addition to his regular pay on July 7, 2004 and by way of an advance, all sums he is owed, under his employment contract, for the July 4 2004 to December 31, 2004 period;
- In the event of a significant modification in the composition of the next Council, Konrad Sioui shall have the right to terminate his employment contract by written notice to that effect within 24 hours of the publication of the final results of the elections;
- In the event Konrad Sioui decides to terminate his employment, the sums paid to him by way of an advance shall become a compensation payment or a severance pay, in full and final settlement of all sums owed in capital, interest and expenses under his employment contract.
- In the event he chooses to maintain his contract with INNU TAKUAIKAN UASHAT MAK MANI-UTENAM, Konrad Sioui shall, within 24 hours of submitting to the Council his written decision to that effect, reimburse INNU TAKUAIKAN UASHAT MAK MANI-UTENAM the compensation sums received, and shall, in addition, so notify the Band within 24 hours of the publication of the final election results.
[15] There is no dispute that the councillors representing the opposition, namely the applicant, along with Brigitte André and Réjean Ambroise, were not contacted by the I.T.U.M. Council secretary to sign resolution 64. In addition, the evidence shows that the councillors who signed resolution 64 were under the impression that the compensation paid to Konrad Sioui was already included in his employment contract. In fact, most of them were unaware that the law firm of Bertrand Poulin had been retained several months before to draft a new employment contract for Konrad Sioui and to prepare resolution 64. They were also unaware of the compensation amount to be paid to Mr. Sioui.
[16] On June 28, 2004, Konrad Sioui accepted the terms of an agreement contained in a letter that chief Rosario Pinette had sent him on June 23, and which reiterated the terms of resolution 64. On July 5, 2004, Mr. Sioui thus received a payment of $58,557.63. The agreement also included the payment of a monthly housing allowance of $600 until the end of his contract.
[17] Following the election of Chief Élie-Jacques Jourdain, Konrad Sioui submitted his resignation by registered mail on July 9, 2004. The declarations that the new chief allegedly made before, during and after the election campaign about his intention to discharge Mr. Sioui as soon as he was elected were recited at length before me. The respondents also allege that Mr. Sioui was subjected to threats and intimidation and that it would have been impossible for him to continue to live on the reserve following the elections. I need not rule on these claims for at least two reasons. First, it is patently obvious that the duties to be performed by Mr. Sioui for the chief required a relationship of trust that simply did not exist with the new chief. Considering the degree of animosity between the two men, it is very difficult to see how Chief Élie-Jacques Jourdain could have made Konrad Sioui his political lieutenant. On the other hand, it is settled law that a public authority body may not refrain from exercising its powers by claiming that it had valid reasons to do so.
[18] The above-mentioned facts appear sufficient to me to determine the scope of the issues raised by the adoption of resolution 64. Some additional information, however, may be useful to fully understand the background against which was adopted resolution 67, the legality of which is also in dispute in these applications for judicial review.
[19] The evidence reveals that the I.T.U.M. Council was undergoing a severe financial crisis in 2001. Indeed, the Department of Indian Affairs had asked the Council to remedy to its financial affairs because its debt load was above eight percent. Accordingly, on August 6, 2001, the Council adopted an economic recovery plan and, by way of a resolution on August 10, 2001, created an Executive Committee to oversee this recovery plan. The committee, presided by Konrad Sioui, was assisted by the PriceWaterhouse Coopers firm, which was appointed co-manager by the Council.
[20] It is important to note here that the resolution that created this Executive Committee was adopted in the same manner as resolution 64, namely with the signature of a majority of the members of the Council and without the holding of a meeting. It appears that the Executive Committee applied the recovery plan with success, as the deficit was brought down to 6.81% for the 2004 fiscal year.
[21] The creation of the Executive Committee, however, did not go smoothly. Indeed, in September 2004, two members of the Uashat Mak Mani-Utenam Community submitted before a public meeting of the Council a petition signed by almost 38% of the Community electors, in which they alleged that there had been an illegal delegation of the I.T.U.M. Council’s powers to an Executive Committee that included non-Innus; the petition also requested the holding of a general meeting. However, as the petition’s instigator failed to do any follow-up, the petition fell through. The respondents, incidentally, expressed doubts regarding the authenticity and validity of this petition.
[22] In any event, on June 30, 2004, the I.T.U.M. Council adopted a resolution (resolution 67) pursuant to which it would approve [translation] “all decisions and actions undertaken by members of the Executive Committee from its inception on August 10, 2001 until the present, in accordance with the orientations and guidelines of Innu Takuaikan Uashat Mak Mani-Utenam”. This resolution was adopted in the same manner as resolution 64, that is with the signature of a majority of the members of the Council and without discussion at a duly convened Council meeting.
[23] In addition, according to the evidence, some of the councillors seem to have been told that the purpose of this resolution was to thank the Executive Committee for the work it had performed during its term of office. The applicant further alleged that the signatories of this resolution were unaware of the overall decisions and actions undertaken by the Executive Committee during its term of office, that the members of the I.T.U.M. Council were not convened at meetings of the Executive Committee and that they did not even receive agendas or minutes of these meetings. The respondents, however, claim that the Chief was the direct link between the Council and the Executive Committee, that the Executive Committee meetings were open to the councillors, and that the Executive Committee reported directly to the I.T.U.M. Council on the progress and application of the recovery plan. After a careful review of the affidavits and examinations, I lend more credibility to the respondents’ testimony on this, to the extent that it has any relevance to the legal issues raised.
ISSUES
[24] The applicant and the respondents raised before this Court several issues in relation to this case. After having reviewed the record as well as the written and oral arguments of the parties, I came to the conclusion that I needed to address the following points in order to dispose of these applications for judicial review:
- What is the applicable standard of review?
- Were resolutions 64 and 67 validly adopted? More specifically, could these resolutions be adopted without a Council meeting, by distributing them to the members until a majority was reached? Is this the kind of procedure that evolved as a custom within the I.T.U.M. Council?
- Even assuming that these customs were not validly adopted, should this Court refuse to intervene on the grounds that the community did not suffer any damage?
ANALYSIS
Preliminary Questions
[25] It is now settled law that decisions taken by a band council, when it exercises, or is deemed to exercise, its power to govern the band may be judicially reviewed by the Federal Court. The case law is replete with decisions holding that a band council is, for purposes of section 18 of the Federal Courts Act, “a federal board, commission or other tribunal:” see, inter alia, Rider v. Ear (1979), 103 D.L.R.(3d) 168 (Alta. S.C.); Canatonquin v. Gabriel, [1980] 2 F.C. 792 (F.C.A.) (QL); Coalition To Save Northern Flood v. Canada (1995), 102 Man R. (2d) 223 (Man. C.A.). This is true not only when a council exercises the power it was explicitly granted by a federal statute, but also when the contested decision is based on a custom; this is so simply because it is the Indian Act itself, more specifically subsection 2(1) of the Act, that recognizes the legal character of the custom: see Francis v. Mohawk Council of Kanesatake, [2003] 4 F.C. 1133 (QL), at paragraphs 13-17 (F.C.); Conatonquin v. Gabriel, supra; Frank v. Bottle, [1993] F.C.J. No. 670 (QL); Scrimbitt v. Sakimay Indian Band Council (T.D.), [2000] 1 F.C. 513. Therefore, resolutions of a band council are considered decisions under the Federal Courts Act and may be subject to judicial review.
[26] The respondents submitted that the remedy sought against resolution 67 was simply a roundabout way of attacking the creation of the Executive Committee, almost three years after it came into existence. It is true that a review of the evidence offered by both parties and of the applicant’s brief clearly shows that the applicant and the deponents who supported his application never accepted the creation of the Executive Committee and questioned the legitimacy of this body as well as the way it makes decisions. But I do not think that this is sufficient to call into question what is really at stake in this litigation.
[27] It rather appears to me that the applicant wanted to establish that some of the decisions made by the Executive Committee may be illegal and that it is therefore necessary to question the legality of resolution 67 that would result in the retroactive validation of all the decisions made by the Executive Committee. If resolution 67 were to be declared null and void, the decisions made by the Executive Committee would not be necessarily invalidated. As the applicant submitted, invalidating resolution 67 would only entail challenging the Executive Committee’s decisions one by one.
[28] In any case, the application for judicial review of resolution 67 does not appear to me tardy, inasmuch as the thirty-day time limit provided for by section 18.1(2) applies only to judicial or quasi‑judicial decisions emanating from administrative tribunals under federal jurisdiction. Although the French version refers to an “office fédéral,” the English version is much more explicit and provides that the thirty-day time limit applies to decisions or orders of a “federal board, commission or other tribunal:” see Federal Courts Practice, by B. Saunders, M. Kinnear, D.J. Rennie and G. Garton, Thomson Carswell, 2006, at page 110.
The Standard of Review
[29] The powers granted to band councils under the Indian Act more closely resemble the powers of municipal councils than those possessed by the board of directors of a business corporation: Canadian Pacific Ltd. v. Matsqui Indian Band (C.A.), [2000] 1 F.C. 325 (QL); Francis v. Mohawk Council of Kanesatake, [2003] 4 F.C. 1133 (QL); Leonard v. Gottfriedson (1980), 21 B.C.L.R. 326 (S.C. B.C.); Isolation Sept-Iles v. La Bande des Montagnais de Sept-Iles et Maliotenam (1989), 2 C.N.L.R. 49 (Sup. Ct .Q.). In this perspective, it might appear that the determination of the explicit or implicit limits of the discretionary power possessed by a band council is judicially reviewable according to the ultra vires doctrine: Leonard v. Gottfriedson, supra.
[30] This classic approach seems, however, to have given way to the pragmatic and functional approach, which a majority of the Supreme Court now seems to favour in determining the standard of review applicable to decisions made by administrative bodies as well as those adopted by local authorities. Such is the result of the evolution of case law, which is revealed by the following judgments of the Supreme Court of Canada: Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342; Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710. In her book entitled Vers la primauté de l’approche pragmatique et fonctionnelle (Éd. Yvon Blais, Cowansville, 2003, at pages 107-125), Professor Suzanne Comtois did a very thorough and clear analysis of this evolution.
[31] In this case, I do not think that the pragmatic and functional approach dictates a standard of review that is different from the one pertaining to the ultra vires doctrine. Firstly, I note that the Indian Act does not immunize decisions made by a band council through a privative clause. Secondly, I do not think that the Band Council was in a better position than this Court to determine if it was authorized by the Indian Act to act as it did. It is true that the I.T.U.M. Council was required to understand the situation at hand in order to make a decision that would be in the Band’s best interest, and the Court should fully defer to the Council on this level. However, the issue before us is not whether the Council was right in acting the way it did, but whether it was empowered to do so. Its expertise in this regard is certainly not superior to that of the Court. The third factor in this pragmatic and functional analysis, namely the legislator’s objective in granting the governance of the Band to the Council, is of particular importance. Parliament granted a high level of autonomy to the authority elected by the band members in administering their affairs, and this objective should be fully respected by the courts. However, as with municipal councils, it remains that the decisions must be made within the parameters set by the law; this will ensure that the will of the members is respected and that their best interests are taken into consideration. Finally, the issue whether the Council had the power to follow the chosen procedure in adopting resolutions 64 and 67 is undeniably a legal issue. On the basis of these four factors, I have come to the conclusion that these decisions should be reviewed according to the standard of the correctness. It follows that I am not called upon to exercise great restraint.
Were resolutions 64 and 67 validly adopted?
[32] The applicant emphasized the duty of the I.T.U.M. Council to follow paragraph 2(3)(b) of the Indian Act in exercising the powers it is granted under this law. The provision reads as follows:
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(3) Unless the context otherwise requires or this Act otherwise provides,
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(3) Sauf indication contraire du contexte ou disposition expresse de la présente loi :
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(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and
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a) un pouvoir conféré à une bande est censé ne pas être exercé, à moins de l’être en vertu du consentement donné par une majorité des électeurs de la bande;
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(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.
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b) un pouvoir conféré au conseil d’une bande est censé ne pas être exercé à moins de l’être en vertu du consentement donné par une majorité des conseillers de la bande présents à une réunion du conseil dûment convoquée |
[33] Now, it was alleged that two violations of that provision occurred when resolutions 64 and 67 were adopted because all the councillors were not convened and secondly, because no meeting was held. Such violations are said to invalidate the resolutions. No argument of custom may be cited to alter the requirements imposed by this provision of the Indian Act. And, even assuming that the respondents were to claim the existence of a custom overriding the legislation, it is alleged that no such custom has been proven because the conditions recognized by the case law requirements have not been met. Finally, the applicant submitted that the custom invoked by the respondents was inapplicable in this case, as the three underlying conditions for its implementation have not been met.
[34] The respondents, on the other hand, argued that adopting a resolution by distributing it in order to obtain the consent of the majority of councillors is a well-established practice which was, indeed, recognized several times by the applicant. They also submitted that the deponents who testified in support of the existence of such a custom are more credible than the testimonies of those who support the applicant’s position. Finally, the respondents did not deny that the customary mechanism of what is now called a “flying resolution” is subject to certain prerequisites: (1) it is impossible to convene a meeting; (2) a decision must be urgently made; and (3) a majority of the available councillors support the resolution. All these conditions are said to have been met when resolutions 64 and 67 were adopted.
[35] As to this point, it appears to me that the applicant should prevail. Paragraph 2(3)b) is drafted in mandatory terms; the legislator’s objective was clearly to create a rule that could not be dispensed with; see, regarding this type of statutory language, R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed., Butterworths, at pages 71-72. And this was exactly what the Supreme Court of British Columbia held in Leonard and the Kamloops Indian Band et al. v. Gottfriedson, [1982] 1 C.N.L.R. 60; [1980] B.C.J. No. 551 (QL), at paragraphs 43 to 45:
I have been directed to no statutory or similar authority authorizing the exercise of power by the band council by individual consent to a resolution in writing.
As is well known in the field of company law, for example, it has been fairly common practice to make provision in the articles of a company for the exercise by directors of their powers by written resolution signed by all the directors, the same being as effective as if passed at a meeting of directors duly called and properly constituted. (…)
It appears to me also that the position under the Indian Act is analogous to the exercise of powers of a municipal corporation. Such powers are, speaking generally, to be exercised in close conformity with the provisions of the incorporating statute. The rationale for such limitations with respect to the exercise of powers is that they are being exercised in the interests of the welfare of the inhabitants who are thus to be protected . . .
See also: MacMillan v. Augustine, [2004] N.B.J. No. 161
(N.B. Q.B.); Woodward J., Native Law Thomson Carswell, 2002, at page 182.
[36] It seems to me that there are good reasons why decisions that affect the entire band may only be made in the course of a public meeting duly convened with the participation of all the elected members. In a democracy, ideas expressed within the framework of a forum where all viewpoints are welcome provide the best assurance that everyone’s rights are respected and that the interests of the community are protected. This objective may be at times set aside in the interest of expeditiousness and efficiency in the business world, but this should never be the case when the welfare of members of a public body is at stake. The risks are too great to allow the slightest deviation from this rule.
[37] Citing the preliminary statement of subsection 2(3): “Unless the context otherwise requires or this Act otherwise provides”, the respondents argued that the context could allow a deviation from the rule under paragraph 2(3)(b). However, I have great difficulty in interpreting those words as referring to a custom and even greater difficulty in reading therein, on the basis of this custom, an implicit authorization to deviate from the clear language of the above-stated provision. It appears to me that, if it had wanted to authorize the application of a custom to set aside the provisions of paragraph 2(3)(b), Parliament would have said so much more directly, as was the case when it allowed the election of a band council through custom rather than pursuant to the requirements of section 74.
[38] In any event, the respondents have failed to convince me that there actually exists a custom authorizing the I.T.U.M. Council to adopt a resolution by distributing it to its members until it has been approved by a majority of them. And it is settled law that the party who relies on a custom has the burden of proving its existence: McArthur v. Canada (Department of Indian Affairs and Northern Development) (1992), 91 D.L.R. (4th) 666 (Sask. Q.B.); Francis v. Mohawk Council of Kanesatake, supra.
[39] In order to prove the existence of a custom, two elements must be established: the first one, an objective one, requires that there be a certain number of occurrences (which, under some circumstances, may be replaced by an isolated act such as the adoption of a general rule or of an electoral code). An accumulation of occurrences is, however, insufficient; a subjective element must be added thereto: compliance of the persons affected by this practice. After a thorough review of the relevant case law, Mr. Justice Martineau gave a good summary of the applicable rules at paragraph 36 of Francis v. Mohawk Council of Kanesatake, supra:
For a rule to become custom, the practice pertaining to a particular issue or situation contemplated by that rule must be firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a “broad consensus” as to its applicability. This would exclude sporadic behaviours which may tentatively arise to remedy certain exceptional difficulties of implementation at a particular moment in time as well as other practices which are clearly understood within the community as being followed on a trial basis. If present, such a “broad consensus” will evidence the will of the community at a given time not to consider the adopted electoral code as having an exhaustive and exclusive character. Its effect will be to exclude from the equation an insignificant number of band members who persistently objected to the adoption of a particular rule governing band elections as a customary one.
[40] In this instance, the respondents’ evidence does not allow me to rule with certainty as to the existence of the custom relied upon. It seems that a certain number of resolutions were, indeed, adopted in the past by distributing them amongst the members of the I.T.U.M. Council; it would even appear that the applicant himself signed some of them. However, in addition to the fact that this type of procedure was not often followed (given the exceptional nature thereof, that is not surprising), nothing in the evidence adduced leads me to believe that this so-called custom was generally accepted by the community and a broad consensus of the Band members was present.
[41] Moreover, were I even willing to accept the existence of such a custom, the requirements governing its application do not appear to me to have been met. Firstly, the evidence reveals that the Secretary of the I.T.U.M Council failed to check whether dissident councillors Albert Vollant and Brigitte André were available to attend a Council meeting. Furthermore, I am somewhat suspicious of the urgency to act in the midst of an electoral campaign, considering that the issue of the compensation to be paid to Konrad Sioui in the event of a changing of the guard following the July 2004 elections had been debated since at least March 2003. This is an issue that could have undoubtedly been debated during the last regular meeting of the I.T.U.M. Council; the decision to proceed by way of a “flying resolution” instead was perhaps made in order to divert attention from the planned contractual amendments and to avoid paying the political price for it, as the applicant claims.
[42] Finally, I cannot help but wonder about the extent of the support resolutions 64 and 67 really received, as the evidence reveals that the Council members who signed them did not seem to fully understand the meaning and actual scope of these resolutions. The cross-examination of the signatory members of these resolutions, indeed, shows that there was considerable confusion relating to these resolutions: some believed that the compensation to Mr. Sioui that was voted on within the framework of resolution 64 was already provided for in his employment contract, and that resolution 67 was nothing more, in fact, than an expression of gratitude to the Executive Committee for the work it had done during its mandate.
[43] This ambiguous situation reveals the inherent dangers of this manner of adopting resolutions. Carried to its limits, such a procedure could justify the worst excesses: it could, indeed, be tempting to have controversial decisions adopted in great secrecy, by controlling the information disseminated and by contacting only the members assumed to be favourable to the resolution. Thus, by not allowing elected representatives to speak and debate on issues that affect all members, the very basis of democracy would be imperilled.
Should the Court intervene?
[44] The respondents attempted to show that rescinding resolutions 64 and 67 would have no legal effect because they were not necessary to start with. More specifically, with respect to resolution 64, they claimed that the Chief had the authority to modify Mr. Sioui’s employment conditions and that this was solely an administrative procedure that did not require the Council’s intervention. I disagree. As with municipalities and schools, the formal procedures set out in the Indian Act are a sine qua non condition of a contract’s validity, and the notion of apparent authority cannot be applied herein as where a governmental authority is involved. As Madam Justice Tourigny wrote in Isolation Sept-Iles Inc. v. Montagnais de Sept-Iles et Maliotenan Indian Band, [1989] 2 C.N.L.R. 49 (Sup. Ct Que.), at page 57:
Moreover, courts have unanimously held that non‑compliance with formal requirements in municipal and school cases has adverse consequences because they are powers which the Assembly has delegated for the benefit and in the interest of citizens, and such delegated powers can only be exercised within the strict framework the law imposes on them.
All Indian band councils derive their powers from the same source. Those powers, and the terms and conditions within which they must be exercised, are delegated by the Indian Act.
Subsection 2(3) of the Act clearly requires the consent of a majority of councillors of a band present at a duly convened meeting of the council members, failing which “a power conferred on the council of a band shall be deemed not to be exercised.” [translation] In addition, the authorization by the Minister of Indian Affairs and Northern Development, provided for under sections 64 and 66 for the expenditure of moneys is also a required formality.
Also see : Leonard and the Kamloops Indian Band et al. v. Gottfriedson, supra; Conseil de bande des Abénakis de Wôlinak v. Bernard, [1999] 2 C.N.L.R. 52 (F.C.); Heron Seismic Services Ltd. v. Muscowpetung Indian Band, [1991] 2 C.N.L.R. 52 (Sask. Q.B.); Gilbert v. Abbey, [1992] 4 C.N.L.R. 21 (S.C. B.C.); Raine v. Bande Louis Bull (conseil), [2000] F.C.J. no 1372 (QL).
[45] The hiring of a special consultant does not appear to me to be part of the Band’s day-to-day administrative activities: the terms and conditions of the contract, the nature of the duties described and the level of remuneration do not evince a standard type contract. Moreover, the amendments to Mr. Sioui’s contract provided in resolution 64 cannot be said to have been authorized by the August 8, 2002 resolution which authorized the Chief to extend the term of all the contract workers’ employment contracts until December 31, 2004 in order to ensure a smooth transition after the elections. The amendment to Mr. Sioui’s contract, which provides for the payment to him of a $58,557.63 compensation in the event of his resignation, goes well beyond the letter and spirit of this resolution.
[46] Claiming that rescinding resolution 67 would have no impact, the respondents also asked the Court to dismiss the application for judicial review in the T-1532-04 case. Indeed, they claim that, if the applicant wishes to challenge the decisions of the Executive Committee, he should challenge the decisions and not the resolution that ratified these decisions.
[47] It is true that rescinding resolution 67 would not invalidate the decisions made by the Executive Committee, and this is not, in fact, what the applicant is seeking. While he still objects to the creation of this Committee, the issue before me is not whether the Committee was properly constituted. The sole impact of rescinding resolution 67 would be to make it possible to challenge a decision made by the Committee on the ground that it acted outside the purview of the powers granted to it by the I.T.U.M. Council and thus did not give the respondents the possibility of pleading an ex post facto ratification of this decision. For this reason, I therefore disagree with the respondents that the rescission of resolution 67 would have no legal impact.
[48] In the alternative, the respondents asked the Court to exercise its discretion pursuant to subsection 18.1(5) of the Federal Courts Act and dismiss the application for judicial review on the ground that the technical irregularities surrounding the adoption of resolutions 64 and 67 caused no substantial wrong to the Band members. They asserted, for instance, that the new Chief’s animosity towards Mr. Sioui and his electoral promise that, if elected, he would discharge him clearly revealed what would have occurred if Mr. Sioui had not resigned: he would have undoubtedly been discharged, which would have entailed even more expenses for the I.T.U.M. Council. Indeed, the evidence reveals that, on the day following his election, the new Chief told a journalist that Mr. Sioui “will have to find another job”. However, pursuant to the terms and conditions of the contract between Mr. Sioui and the Council, it was agreed that Mr. Sioui would receive a severance pay corresponding to the remaining balance of the employer’s obligations as well as an additional year of salary in the event his contract were to be rescinded by the employer within its last twelve months (see paragraph 9, supra).
[49] The respondents also referred to paragraph 11(g) of his employment contract, which provided for the same severance pay in the event Mr. Sioui became “unable to perform his duties due to exceptional circumstances, such as acts of violence, intimidation, aggression or serious threats in the workplace”. Recalling the atmosphere of violence that had prevailed during the previous elections and the aggressions that are said to have been perpetrated against Mr. Sioui in the past, the respondents claimed that Mr. Sioui could have also based his claim on this clause of the contract.
[50] The respondents allege, on this basis, that the purpose of resolution 64 was simply to ensure that Mr. Sioui would receive the money he was owed in the event of a change in leadership after the election of a new Council, and was also meant to reduce by one year of salary the compensation he would have otherwise been entitled to. Although apparently persuasive, this argument does not persuade me.
[51] At the outset, it must be said that, by this argument, the respondents are just speculating. It is quite possible that, without the compensation he was entitled to pursuant to resolution 64, Mr. Sioui would not have resigned. It is also possible that the new Chief would not have let him remain in his position as special consultant. Finally, it is entirely conceivable that Mr. Sioui felt physically threatened following the elections. That being said, one cannot conclude with certainty that he could have invoked the clause in his contract providing for severance pay in the event of a rescission of his contract or of his inability to perform his duties.
[52] Furthermore, whatever reasons, albeit legitimate, prompted the Council to adopt resolution 64 did not grant it a licence to depart from the clear language of the Indian Act, particularly of paragraph 2(3)(b) of the Act. In order to ensure that the decisions of a band council are made in the best interest of the community members, the legislator set out a mandatory decision-making process. It would be very risky to authorize a council to ignore these rules every time it feels it is making a desirable decision.
[53] Finally, all the arguments raised by the respondents to convince me of the merits of resolution 64 were already known at the time of, and even prior to, the last public meeting of the I.T.U.M. Council. If they felt it was in the Band’s best interest to adopt this resolution, they should have submitted it and opened it up for discussion at a duly convened meeting.
[54] As for resolution 67, it may well be that setting it aside would have no immediate impact. I am not prepared, however, to say that the application for judicial review is futile and has no practical effect. If this were the case, it seems to me that it would not have been adopted as it was in an extraordinary manner in the midst of the political campaign. The newly elected officials will, in any event, have the task of determining if some of the Executive Committee’s acts may be challenged and whether it is worthwhile to do so in light of the advantages and disadvantages of lawsuits before a Court of law.
[55] For all the foregoing reasons, I therefore rule that both applications for judicial review in cases T-1532-04 and T-1837-04 should be allowed and that, consequently, resolutions 64 and 67 should be set aside.
JUDGMENT
THE COURT ORDERS that:
Both applications for judicial review in cases T-1532-04 and T-1837-04 be allowed, and that, accordingly, resolutions 64 and 67 be set aside.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1837-04
T-1532-04
STYLE OF CAUSE: ALBERT VOLLANT
v.
KONRAD SIOUI and ROSARIO PINETTE, CÉLINE BELLEFLEUR, GEORGES ERNEST GRÉGOIRE, MARCELLE ST-ONGE, GILLES JOURDAIN, RONALD FONTAINE and MAURICE VOLLANT appearing in their capacity as members or former members of the Band Council
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 13, 2005
REASONS FOR JUDGMENT
AND JUDGMENT: The Honourable Mr. Justice de Montigny
APPEARANCES:
Claudine Lagacé/Caroline Biron FOR THE APPLICANT
Claude Dallaire/Antoine Aylwin FOR THE RESPONDENTS
SOLICITORS OF RECORD:
WOODS & ASSOCIÉS FOR THE APPLICANT
Montréal, Quebec
FASKEN MARTINEAU DU MOULIN FOR THE RESPONDENTS
Montréal, Quebec