Ottawa, Ontario, February 22, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
WINSTON WEEKUSK SR., in his capacity as Chief,
DARRYLE WEEKUSK, in his capacity as Councillor,
HAROLD JIMMY, in his capacity as Councillor,
WILTON ANGUS, in his capacity as Councillor,
ISABELLE HORSE, in her capacity as Councillor,
ABSOLOM STANDINGWATER, in his capacity as Councillor,
LEO PADDY, in his capacity as Councillor, and
MEL THUNDERCHILD, in his capacity as Councillor
and
APPEAL TRIBUNAL OF THE THUNDERCHILD
FIRST NATION
REASONS FOR ORDER AND ORDER
[1] The Court is seized with an application for an interlocutory order pursuant to section 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7 to stay the ruling of the Appeal Tribunal of the Thunderchild First Nation (the respondent, or Appeal Tribunal) quashing the October 16, 2006 elections whereby one of the applicants, Winston Weekusk Sr., was elected as Chief, and the other applicants as Councillors (collectively, the applicants) and ordering a new general election in its place.
[2] The most relevant facts relating to the present matter are as follows.
[3] Thunderchild First Nation is an Indian Band under the Indian Act, R.S.C. 1985 c. I-05 and conducts its elections for Chief and Council under the Band Custom method as contained in the Thunderchild First Nation Constitution (the constitution) and the Thunderchild First Nation Election Act (the Act).
[4] The Appeal Tribunal is the body designated to deal with appeals under the Act and accordingly has specific powers as provided by the Act and the constitution.
[5] Thunderchild First Nation (the Band) held an election on October 16, 2006 pursuant to the Act. Winston Weekusk Sr. was elected Chief and the other applicants were elected as Councillors, all for four-year terms.
[6] Appeals of this October 2006 election were filed with the Appeal Tribunal in mid-November 2006, complaining of irregularities in the conduct of the elections. Among these appeals, it was maintained that the Chief Electoral Officer, Lyndon Linklater, removed ballot boxes from the polling station to another room without the requisite witnesses, and returned with the boxes opened, thus rendering the election void.
[7] The appeal hearing was conducted over two days. On January 16, 2007, the respondent heard from the three individuals who had instigated the appeals, followed by the testimony of the two Deputy Electoral Officers on January 18, 2007. The Chief Electoral Officer, Mr. Linklater, refused to testify regarding the events surrounding the October 16, 2006 election despite having been summoned to do so by the respondent.
[8] At the appeal hearing, one of the Deputy Electoral Officers testified that Mr. Linklater had removed the ballot boxes to another room, out of the presence of the candidates and their representatives, and returned with the boxes opened.
[9] The respondent concluded that Mr. Linklater had violated section 8.01 of the Act regarding vote counting. Consequently, the respondent set aside the October 2006 election, a new election was called for March 26, 2007, and new electoral officials were appointed.
[10] An election notice was posted and sent to electors, and on February 12, 2007 nominations for the March 26, 2007 election were held. With the exception of Winston Weekusk Sr., Darryle Weekusk and Absolom Standingwater, who did not seek nomination, the remainder of the applicants sought and obtained nominations. The Band has demonstrated its support for the new election through its participation in the nomination process.
[11] It is well-recognized that the test to be applied in considering whether an injunction is appropriate is the three-stage test articulated by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 with regard to a serious issue, irreparable harm and a balance of convenience assessment. The failure to establish any one of these three criteria is fatal to the present application. I will deal with the irreparable harm first because it is, in my view, conclusive of the present matter.
Irreparable Harm
[12] The applicants submit that they were duly elected on October 16, 2006, and that as a result of the respondent’s decision which is under attack, they will forfeit their elected positions and may not regain them in the new March 26, 2007 election. In their view, this constitutes an irreparable harm if an injunction is not granted. The applicants also submit that the respondent’s decision tarnishes their honour and reputation, and erodes their mandate to govern the Band.
[13] The applicants rely on the decision of this Court in Gabriel v. Mohawk Council of Kanesatake, [2002] F.C.J. No. 635 (QL), 2002 FCT 483, that the office of Chief is political and that a loss of such a position cannot be quantified monetarily, due to its prestige and the fact that the law of wrongful dismissal does not provide remedies for loss of elective office (Gabriel, above, at paras. 26, 28 citing Frank v. Bottle et al (1993), 65 F.T.R. 89).
[14] The circumstances of this case distinguish it from those in Gabriel, above. In that matter, the Chief had already been in office for six months of a two-year term, when he was extraordinarily removed from office, in a manner that directly affected his honour and reputation. Furthermore, Mr. Gabriel had been Grand Chief for over five years, and had been so elected three times. In the present case, the applicants were newly elected for a four-year term, and were essentially removed through a disqualification of the electoral process. This is an essential distinction between the two matters.
[15] I am persuaded by McIvor v. Canada (Attorney General), [2006] F.C.J. No. 1484 (QL), 2006 FC 1187 at paragraph 9, where my colleague Justice Barry Strayer held that a proceeding nullifying an election due to irregularities in the election process is based on the protection of the integrity of the election system, and does not particularly affect the reputations of those elected in that process. Other jurisprudence of this Court dealing with similar circumstances has held that loss of office does not in itself constitute irreparable harm (see Weatherill v. Canada (Attorney-General) (1998), 143 F.T.R. 302; Cimon v. Canada (Minister of Indian Affairs and Northern Development), [1999] F.C.J. No. 1736 (QL)).
[16] In the present case the appeal under attack dealt with the election process itself and not the applicants per se, and does not particularly effect the applicants’ reputations or any potential future mandate for governance. I am not convinced of irreparable harm in this regard.
[17] In this case, as in McIvor, the new election is scheduled soon after the date this order will issue. Also similarly to McIvor, the evidence is that in the meantime a nomination meeting has been held for candidates for these elections, and several of the applicants have been so nominated. It is significant to note that all the applicants had the opportunity to do so. Mr. Weekusk and two of the other applicants chose not to seek nominations in the new elections, and bear the consequences accordingly.
[18] I am of the view that given the proximity of the new elections, and the possibility for all of the applicants to have sought nomination for the March 2007 election, they all had the opportunity to assume office again if they continued to enjoy the support of the Band members.
[19] The applicants submit that irreparable harm will ensue if the injunction is not granted as some of them will, and others may, forfeit their elected positions. However, in my view the reverse is equally true. I agree with Justice Max Teitelbaum’s holding in Cimon, above, at paragraph 9 that “[i]f the Judicial Review was denied, the First Nation would have been led by an illegal Chief & Council …”.
[20] In consideration of all of the circumstances, I am not convinced that the applicants would suffer irreparable harm if the present injunction is not granted.
[21] Furthermore, I note that significant preparations have been completed with regard to the March 26, 2007 election and the evidence suggests that Band members have demonstrated support for it. The election has been initiated, the electoral process is underway and it involves the entire community. In my estimation, the balance of convenience favours allowing the electoral proceedings to run their course in the circumstances of this matter.
[22] For these reasons, I dismiss the motion for an interim stay of the Appeal Tribunal decision, with costs.
ORDER
THIS COURT ORDERS that
The motion for an interim stay of the Appeal Tribunal decision is dismissed with costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-209-07
STYLE OF CAUSE: WINSTON WEEKUSK SR. ET AL. v. APPEAL TRIBUNAL OF THE THUNDERCHILD FIRST NATION
PLACE OF HEARING: Ottawa (via teleconference)
DATE OF HEARING: February 21, 2007
REASONS FOR ORDER: Tremblay-Lamer J.
APPEARANCES:
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Michael L. Colwell Rangi G. Jeerakathil
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John R. Lojek
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SOLICITORS OF RECORD:
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MacPherson Leslie & Tyerman LLP Saskatoon, Saskatchewan
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John R. Lojek Barrister & Solicitor Calgary, Alberta |