[1] This the judicial review of a band council resolution [BCR] passed by four Councillors of the Blueberry River First Nations [BRFN] on September 13, 2024, effective September 17, 2024, removing the Applicant, Judy Desjarlais [Applicant] from the office of Chief [Removal BCR]. The Removal BCR was passed by Councillors Sherry Dominic, Shelley Gauthier, Troy Wolf and Wayne Yahey, the named respondent councillors in this judicial review [Respondent Councillors].

[2] In addition to the Respondent Councillors, the Council of the Blueberry River First Nations is also named as a respondent [Respondent Council] in this judicial review and has filed responding submissions and appeared before me.

Background

[3] BRFN is a band as defined in the Indian Act, RSC 1985, c 1-5.

[4] BRFN adopted the Blueberry River Custom Election By-law, 2017 [By-law], being a custom election code, in 2017. The By-law is a comprehensive 127-page document. Under the By-law, BRFN must be governed by a council consisting of one chief and five family councillors. One councillor must come from each of the five identified family groups (By-law section 8). The chief is, in turn, elected by the family councillors (By-law section 15). The term of office for a council member (which includes the chief, By-law section 2) is four years (By-law section 10). The Respondent Councillors were elected on January 13, 2022, and the Applicant was elected by them thereafter.

[5] In 2021, after a 160-day trial, Yahey v British Columbia, 2021 BCSC 1287 [Yahey] was decided. This was a pivotal decision for BRFN and provides significant context to the matter now before me. In Yahey the British Columbia Supreme Court [BCSC] found that the cumulative impacts from a range of provincially authorized industrial developments within the BRFN claim area infringed BRFN’s Treaty 8 rights and that there were insufficient and appropriate lands in BRFN’s traditional territory to permit the meaningful exercise of those rights. More specifically, that the Province of British Columbia’s [Province] lack of effective regimes or processes for assessing, taking into account, and managing the cumulative effect of development on BRFN’s exercise of its treaty rights breached the Province’s obligations (Yahey at para 1881).

[6] With respect to the disturbance of the land, the BCSC found that:

[1120] Over the last decade or more, Blueberry members have had to exercise their rights over a landscape that is becoming increasingly disturbed from a range of industrial development, including forestry, oil and gas, mining, hydro-electric infrastructure, land clearing, roads and other impacts.

[1121] The “core” of the Blueberry Claim Area has, since the late 1990s, been zoned as an enhanced resource development zone, available for high intensity development. The Province has, accordingly, been encouraging investments and enhancements in resource development in this area. Both forestry and oil and gas development has focussed on this core area.

[1122] By 2016, 73% of the Blueberry Claim Area was within 250 metres of an industrial disturbance. By 2018, disturbance had increased such that 85% of the Blueberry Claim Area was within 250 metres of an industrial disturbance. Disturbance has a direct impact on the sustainability of wildlife and quality of life for Blueberry members. This includes both the loss of habitat and the increasing anthropogenic presence which impacts on Blueberry’s ability to hunt, fish and trap.

[1123] As but one striking example, there is less than 14% intact forest landscape within the Blueberry Claim Area.

[7] Among other things, the BCSC noted that the evidence of the usage of the land included BRFN members testifying about the Dancing Grounds and its cultural significance.

[8] The BCSC ultimately found that BRFN was entitled to the following declarative relief regarding the Province’s actions and inactions as they related to BRFN’s treaty rights and the cumulative effects of industrial development on the exercise of those rights (Yahey at para 1894):

1. In causing and/or permitting the cumulative impacts of industrial development on Blueberry’s treaty rights, the Province has breached its obligation to Blueberry under Treaty 8, including its honourable and fiduciary obligations. The Province’s mechanisms for assessing and taking into account cumulative effects are lacking and have contributed to the breach of its obligations under Treaty 8;

2. The Province has taken up lands to such an extent that there are not sufficient and appropriate lands in the Blueberry Claim Area to allow for Blueberry’s meaningful exercise of their treaty rights. The Province has therefore unjustifiably infringed Blueberry’s treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights in the Blueberry Claim Area;

3. The Province may not continue to authorize activities that breach the promises included in the Treaty, including the Province’s honourable and fiduciary obligations associated with the Treaty, or that unjustifiably infringe Blueberry’s exercise of its treaty rights; and,

4. The parties must act with diligence to consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights, and to ensure these constitutional rights are respected.

[9] As a result of the Yahey decision, BRFN and the Province entered into negotiations which culminated in the signing of the Blueberry River First Nations Implementation Agreement which took effect on January 18, 2023 [Implementation Agreement]. The purpose and goals of the Implementation Agreement include the initiating of a new approach to resource management and the protection of treaty rights in the BRFN claim area through, among other things, permanent collaboratively established measures intended to address the cumulative effects of past and future resources disturbances on BRFN’s exercise of its treaty rights (Article 2.1(a)(ii)).

[10] Among other matters, the Implementation Agreement addresses oil and gas development (Article 7), the identifying of high value areas [HV1 Areas] and, sets out the principles for the limiting of New Disturbances (as defined in the agreement). Article 14 sets out the Rules for Oil and Gas Development, including setting New Disturbance caps. While the Implementation Agreement set limits on New Disturbances, it was open to BRFN to waive development restrictions (Article 14). However, the Implementation Agreement does not identify how such waivers would be considered and granted.

[11] On June 9, 2023, Council, including the Applicant, unanimously passed a BCR effecting a policy for exemptions and amendments that may be sought under the Implementation Agreement with respect to disturbance caps and other matters. This specified, among other things, that any amendment or exemption sought under the Implementation Agreement would only be valid if approved in advance in writing and supported by a BCR, and that a valid BCR approving an exemption or amendment must have at least four Council votes in favour, including a favourable vote from the Family Councillor in whose Family Group's trapline or area of family interest the development was expected to occur [June 9, 2023 BCR].

[12] Subsequent to the passing of the June 9, 2023 BCR, the Applicant attended a meeting with Petronas Energy Canada Inc [Petronas], an oil and gas company. She was not accompanied by other Council members or counsel. By letter dated July 7, 2023, the Applicant wrote to the British Columbia Energy Regulator [BCER] stating that BRFN agreed to waive the provisions of Article 14 of the Implementation Agreement to allow the oil and gas activities referenced in the three listed permit applications made by Petronas, permitting them to proceed before completion of the HV1C development plan process and exempting the associated disturbance from Petronas disturbance cap allocation. The Applicant sent a second letter dated July 25, 2023, similarly advising the BCER that BRFN had agreed to waive the provisions of Article 14 to allow the oil and gas activities referenced in two other Petronas permit applications identified in that letter [collectively, the Petronas Permits, which are also referred to in the record as the East Town Permits]. Neither letter was copied to Council.

[13] The result of these letters was that the BCER approved the Petronas Permits and new industrial disturbance in an HV1 area (more specifically, a sub area identified therein, HV1C), near the Dancing Grounds.

[14] The granting of the Petronas Permits was discovered by Mr. McDade of Ratcliff LLP [Ratcliff], counsel to BRFN with respect to the Implementation Agreement. On August 1, 2023, Mr. McDade wrote to the Applicant and Council, advising that he had accessed the BCER website and discovered that the BCER had granted the Petronas Permits, stating that these were the permits Petronas had sought in Dancing Ground HV1 that had previously been discussed by Council and specifically refused as part of the Implementation Agreement. In an email response, the Applicant purported to fire Mr. McDade.

[15] The Respondent Councillors were of the view that the Applicant falsely advised the BCER that Chief and Council had approved the granting of the exemptions and waivers and that they supported the BCER granting the Petronas Permits. Further, that she had not advised Council that she had granted the waivers, which only came to light when they were discovered by Mr. McDade. They were of the view that this, and other action by the Applicant, amounted to misconduct. Accordingly, they commenced the process which could result in her removal from office.

[16] The grounds for disciplinary action, including removal from office, and the removal process are set out in Part 22 of the By-law. The relevant provisions are set out below as it provides helpful context for the analysis that follows:

PART 22: COUNCIL ACCOUNTABILITY & REMOVAL FROM OFFICE

Grounds for Progressive Disciplinary Action Up to and Including Dismissal

184. A Council member may be subject to disciplinary actions if:

(a) they have breached their Oath of Office or Confidentiality Agreement;

(b) they are absent from three (3) or more Council meetings either consecutively or within any twelve (12) month period without the approval of Council pursuant to section 145.

(c) they have breached or failed to perform their duties or obligations set out in any Blueberry River law, by-law or policy;

(d) they have engaged in conduct at Council meetings, community meetings, or in other public forums or functions which causes substantial harm to Blueberry River's ability to conduct business or deliver programs and services; or

(e) they have engaged in physical violence or any other unwanted or inappropriate conduct directed at any of the following persons, that the person finds offensive and harmful and that a reasonable person would view as unwelcome or offensive:

(i) staff or a contractor of Blueberry River;

(ii) a director, manager or employee of a Blueberry River business entity; or

(iii) any person while present on the Reserve or at the place of business of a Blueberry River business entity; or

185.The Chief may be subject to removal from office if:

(a) they lose the confidence of Blueberry River, as evidenced by a petition that:

(i) is signed by at least sixty per-cent (60%) of Blueberry River electors; and

(ii) sets out each of those elector's full names, membership numbers, phone numbers and either their mailing or email addresses;

(b) a Council member submits a report in accordance with section 187 alleging that the Chief:

(i) has become ineligible under section 41; or

(ii) has engaged in conduct listed in section 184; or

(c) a member of Blueberry River submits a report under section 188 alleging that the Chief:

(i) has become ineligible under section 41; or

(ii) has engaged in conduct listed in section 184.

[17] The process to be followed if a Councillor believes that there may be grounds for disciplinary action are also set out in the By-law:

Mandatory Report by Council Members Regarding Grounds for Disciplinary Action or Eligibility of a Council Member to Hold Office

187. A Council member must make a written report to the Council directly if they have reason to believe that another Council member:

(a) has participated in conduct that is subject to disciplinary action as set out in section 184; or

(b) is no longer eligible to hold office under section 41.

…..

Requirements in Written Report Regarding Grounds for Disciplinary Action or Eligibility to Hold Office

189. A report under section 187 or 188 must set out:

(a) the name of the Council member to whom the allegation or loss of confidence relates;

(b) either:

(i) the specific paragraph in section 184 to which the allegation or loss of confidence relates,

(ii) that they wish to seek the removal of that Council member, or

(iii) the eligibility criteria under section 41 to which the allegation relates;

(c) where relevant, a description of the allegation, including the names of any witnesses to the alleged circumstances; and

(d) where relevant, any supporting documentation such as the original petition signed by electors in accordance with section 185 or 186, respectively.

Addition of Report to Council Meeting Agenda, Notice of Report as an Agenda Item, and Distribution of Report

190. Where a Council member or the chief operating officer receives a written report under section 187 or 188:

(a) they must immediately provide a copy of that report to every Council member and to the chief operating officer, as applicable;

(b) the chief operating officer must immediately after receiving the report:

(i) add a review of that report to the agenda for the next Council meeting, and

(ii) contact the following people to advise them of the date, time and location of the Council meeting at which the report will be considered:

(A) the person who made the report, and

(B) where the report is made in relation to a loss of confidence in the Council member, each person whose signature is set out in the petition; and

(c) the chief operating officer must prepare and post a copy of that report, with the name of the person making the report redacted from it, along with a notice setting out the date, time and location on which the report will be reviewed by Council in a conspicuous place:

(i) on the Blueberry River website, and

(ii) at all public buildings located on a Blueberry River reserve.

……

Review of Report at Council Meeting

192. At the next duly convened Council meeting following the distribution of a report under section 190:

(a) Council must review the report;

(b) where the report relates to a loss of confidence in a Family Councillor, Council must send a copy of the report to each member of the Family Group represented by the Family Councillor at the mailing address or email address listed by their name on the electors’ list;

(c) where the report relates to a loss of confidence in a Council member, Council must contact each person who signed the petition in the manner specified by them under section 191, to confirm their signatures, and that they seek the removal of the Council member from office; and

(d) where the report relates to any other allegation or to a Council member’s eligibility to hold office, the Council member who is the subject of the report must:

(i) provide his or her perspective on the allegation or eligibility criteria; and

(ii) either:

(A) admit in full to the facts set out in the report,

(B) admit to some of the facts set out in the report, specifying which facts are admitted and which facts are denied, or

(C) deny the allegations in the report.

…..

Allegation Partially Admitted or Denied

194. Where a Council member admits in part to, or denies, an allegation in a report, Council must:

(a) consider the report;

(b) determine whether to initiate an investigation into the allegation, taking into consideration whether an investigation is required in the best interests of Blueberry River; and

(c) make a decision by Council resolution on whether to initiate an investigation into the allegation.

Factors to Consider in Ordering an Investigation

195. To determine under section 194 whether an investigation is in the best interest of Blueberry River, Council must consider all relevant factors, including whether:

(a) the alleged conduct is serious in nature;

(b) a finding that the alleged conduct is proven is likely to result in a significant disciplinary action being taken;

(c) considerable harm has been caused by the alleged conduct to Blueberry River, a member or membership at large;

(d) the alleged conduct involves the use, or threatened use, of a weapon or physical violence, harassment or bullying;

(e) the Council member has relevant previous disciplinary actions against them;

(f) the alleged conduct is criminal in nature;

(g) there are grounds for believing that the alleged conduct may be continued or repeated; or

(h) there is a need to protect the integrity of Council as a whole.

Appointment of Investigator

196. If Council orders an investigation under section 195, they must pass a Council resolution appointing an independent investigator.

Obligation to Cooperate and Failure to Cooperate

197. (1) A Council member who is under investigation must cooperate with the investigator and provide the investigator with all details relating to the allegation against him or her.

(2) A Council member who is under investigation and fails to comply with subsection (1) is deemed to be admitting to the allegations against him or her, in which case the Council must make an order section 199 or 200, as applicable.

Investigation Process

198. In conducting an investigation under this Part, the investigator must:

(a) explain to the Council member who is under investigation, the processes that the investigator will follow in their conduct of the investigation;

(b) complete their investigation within twenty-one (21) days from the date that Council appoints them;

(c) be as thorough as necessary in their investigation, given the circumstances;

(d) be fair and impartial in their investigation, providing both the person who made the allegations and the Council member who is under investigation equal treatment in evaluating the allegations;

(e) be sensitive to the interests of all parties involved, and maintain confidentiality;

(f) be focused on finding facts and evidence, including interviews of the person making the allegations, the Council member who is subject of the allegations, and any witnesses; and

(g) when their investigation is concluded, provide the Council with a report setting out whether the investigator has determined that the evidence showed it is more likely than not that the allegations in the report are true, including the reasons for the investigator’s decision.

Disciplinary Action Orders

199. (1) Where a Council member admits to a breach of section 184 or where an investigator’s report concludes that the evidence shows it is more likely than not that grounds for disciplinary action exist under section 184, Council must make one (1) or more of the following orders:

(a) that the Council member be suspended from exercising their specific responsibilities or role within Council for a specified period of time, not exceeding sixty (60) days, without honoraria;

(b) that the Council member be issued a verbal warning;

(c) that the Council member be issued a written warning;

(d) that the Council member be removed from office, the details of which must be provided to the Minister of Indigenous and Northern Affairs Canada; or

(e) that Blueberry River’s legal counsel take legal action against the Council member on behalf of Blueberry River, including the commencement of civil proceedings for breach of fiduciary duty or otherwise.

(2) In making an order under subsection (1), Council must consider the following factors:

(a) the need to ensure the membership’s confidence in the integrity of Council;

(b) the responsibility of Council as a whole to act in the best interests of the membership;

(c) the need to deter the Council member, and all members of current and future Councils, from committing similar actions;

(d) the nature and gravity of the action that has been proven;

(e) the impact upon any specific and direct victims to the Council member’s actions;

(f) whether similar allegations have been proven against the Council member in the past and the number and frequency of such similar proven allegations; and

(g) whether the Council member has acknowledged their actions and taken independent steps to disclose and redress their wrong.

…..

Reasons for Decision

201. Where the Council makes an order under section 193, 199 or 200, they must provide the Council member who is the subject of that order with reasons for their decision.

Notice of Order Made Under this Part

202. Where the Council makes an order under section 193, 199 or 200:

(a) the Council chairperson must ensure that the decision and the reasons for the decision are recorded in the Council minutes; and

(b) the chief operating officer must ensure that a notice setting out the decision and reasons for decision is posted:

(i) in a conspicuous place on the Blueberry River website; and

(ii) at all public buildings located on a Blueberry River Reserve.

[18] The Respondent Councillors sent a “Notice to all Blueberry Band Members of Council Meeting dated December 8, 2023.” The notice advised that, pursuant to section 187 of the By-law, a report had been issued alleging that the Applicant had acted inappropriately and attached a copy of the section 187 report, entitled “Report Under s. 187 of the Blueberry River Custom Election By-Law, 2017,” dated November 21, 2023 [Section 187 Report]. The notice also advised that Council would be having a Band Council meeting on Friday, December 8, 2023, at 10:30 am at the Blueberry Nation Band Office where the Section 187 Report would be reviewed and discussed. Members could attend the meeting in person and a link would also be sent so members could participate virtually.

[19] The Section 187 Report first set out the requirements of sections 187 and 189 of the By-law and then the substance of the report, as follows:

Report

3. Council for the BRFN consists of five elected Councillors (one from each Family Group) and a Chief who is elected by the five Councillors (s. 8, 15). The Chief holds no independent authority to act unilaterally and make decisions which affect the membership on her own.

4. The BRFN Council has been steadfast in their resolve that development should not occur in HV1 (High Value) areas including the Dancing Ground polygon. The Dancing Ground is an area of cultural importance to BRFN and this is well known by the Chief. The Implementation Agreement does not specify how an exemption permit could be granted. To determine clarity on how they might be granted, Council, including Chief Desjarlais, voted unanimously in favour of a Band Council Resolution on June 9, 2023 which specified that an exemption could only be granted by a majority decision of Council. All present at the June 9th meeting stressed the importance of protecting BRFN treaty rights and were in agreement that there would not be an exemption permit granted to Petronas to develop on important cultural areas.

5. Between June 9 and 16, 2023, the Chief met with Petronas and subsequently, acting contrary to the wishes of the majority of Council and without lawful authority, granted Petronas the exemption permits they were seeking to allow them to develop in an HV1 area, the Dancing Ground. The Chief also allowed the Province to approve the PRGT pipeline which will require 100's of new wells every year for the next 40 years. The Chief is well aware that Council has opposed this project since 2014. At the June 16th Council meeting, the Chief stated that she would never grant an exemption without Council approval.

6. On June 21, 2023, the Chief, on her own authority, demanded that Ratcliff LLP "cease and desist on matters regarding the TRL (Treaty Rights Litigation) or implementing new process".

7. On July 7, 2023, Chief Desjarlais, without notice or going back to Council, sent a false letter to the B.C. Energy Regulator granting the 5 exemptions. The letter states:

"Based on consultation PECL (Petronas) has completed with Chief and Council and the BRFN Lands Department we acknowledge the completion of the consultation process performed by PECL.

BRFN agrees to waive the provisions of article 14 of the implementation agreement to allow the oil and gas activities referenced in the above listed applications to proceed before completion of the HV1C development plan process and exempts the associated disturbance from PECL's disturbance cap allocation." [underlining added]

8. The letter was supposedly sent by both John Bueckert, Lands Manager, and Chief Desjarlais but was only signed by the Chief, John Bueckert has advised that the Chief proceeded against his advice and that he refused to sign the letter. More importantly, the statement that Petronas consulted with Chief and Council is absolutely false. There was no consultation with Council and had there been, the majority of Council would have denied the permits.

9. On July 25, 2023, the Chief sent another letter approving Petronas permits in the same high value area with further exemptions from the disturbance caps.

10. Council has further learned that Tourmaline has expressed concern about the "many fees" that the Chief was demanding for the company, 'Top Notch Oilfield Contracting Ltd.' Tourmaline also claims that the Chief will only allow them to contract with her preferred suppliers. Such demands were without Council's knowledge or approval and are a clear conflict of interest.

11. On August 1, 2023, the Chief wrote to the Province and the B.C. Energy Regulator to advise that Ratcliff LLP no longer acts for BRFN. This was untrue. The Chief does not have the authority to terminate the services of the law firm retained to act for Council.

12. On August 16, 2023, a quorum of Council passed two Band Council Resolutions regarding legal representation. The first BCR resolved that "Blueberry River First Nations has terminated any contract for services with Thomas Abrogast K.C., and he is directed to cease holding himself out as representing , or performing any work on behalf of Blueberry River First Nations effective immediately". The second BCR reaffirmed that Ratcliff LLP is continuing legal counsel for the Implementation Agreement and is responsible for negotiations with the Province subject to instructions from a quorum of Council.

13. Despite the explicit resolution of Council to terminate the legal services of Mr. Abrogast, he submitted an invoice on October 4, 2023 for legal services rendered in August and September in the sum of $49,594.00. The invoice was sent to Chief Desjarlais, Yvonne Ned, Band Manager and Arjun Mohan, Finance Manager. No BRFN Councillors were included in the correspondence or otherwise made aware of the invoice at the time. On October 11, 2023, the Chief approved payment of the invoice without consultation with or approval from Council.

14. We consider that the Chiefs conduct as described in paragraphs 5-13 above to be in breach of s.184 (a), (c) and (d) of the By-Laws. More specifically, the above conduct breaches the oath of office in that the Chief is:

a. acting contrary to the best interest of the of Blueberry River;

b. acting without honesty and contrary to Band Council Resolutions;

c. exceeding the authority of her position; and

d. has failed to respect Council's decision-making process in a manner that fosters the implementation of Council decision.

15. In addition, the Chiefs conduct as described in paragraphs 5-13 above is contrary to the requirement of the Oath of office to act with integrity and is also contrary to her duty to take care not to compromise the integrity when dealing with persons outside Blueberry River.

16. The Chiefs conduct as set out in paragraphs 5 - 13 above is also in breach of the Chiefs duties which duties include that she is to act in the best interest of Blueberry River, honestly, impartially and in good faith. She is also in breach of her duty not to act in a conflict of interest and/or in breach of the duty to avoid use of Blueberry assets for personal use.

17. The Chief has also engaged in conduct which will cause substantial harm to Blueberry River's ability to conduct business.

18. As a result of all the above, we seek removal of the Chief from office pursuant to s. 189(b)(ii) of the By-Laws.

[20] The Section 187 Report was on the agenda for the December 8, 2023, meeting.

[21] The Applicant attended that meeting and claims that she asserted at the time that the Respondent Councillors were not adhering to the procedure set out in the By-law, that she denied breaching her Oath of Office or her obligations under the By-law and questioned the independence of Mitha Law Group to conduct the investigation. The recording of the meeting, attached as an exhibit to the Applicant’s affidavit, shows that she did deny breaching her Oath of Office or having done anything subject to disciplinary action under section 184 of the By-law. She also raised concerns with the independence of the investigator. However, the concerns she raised with respect to proper procedure were related to an earlier attempt of the Respondent Councillors to bring an investigation into her conduct. She stated that the Respondent Councillors had now followed the proper process.

[22] At the December 8, 2023 meeting, a BCR entitled “Investigation of Section 187 Report” was passed by a quorum comprised of the Respondent Councillors [December 8, 2023 BCR]. This indicates that on or around December 3, 2023, a section 187 report had been received by Chief and Council and, on the same date, that it was distributed as required by section 190 of the By-law. Council had considered the Section 187 Report and determined that it was in the best interest of BRFN to initiate an investigation into the allegations contained in the report. Given the upcoming holidays, an investigator would be appointed effective January 2, 2024. The December 8, 2023 BCR resolved that BRFN thereby appointed Mitha Law Group effective January 2, 2024, as an independent investigator to conduct an investigation into the conduct of Chief Desjarlais as set out in the Section 187 Report, and that all reasonable legal fees and disbursements associated with the appointment would be paid by BRFN. The December 8, 2023 BCR is signed by the Respondent Councillors.

[23] As will be discussed in more detail below, as a result of an allegation by the Applicant’s counsel that Mitha Law Group was in a conflict of interest, by BCR dated January 10, 2024, the Respondent Councillors instead resolved to appoint Cassels Brock to conduct the investigation. On February 1, 2024, Cassels Brock advised that they had a conflict of interest and could not act. By BCR dated March 12, 2024, the Respondent Councillors resolved to amend the December 8, 2023 BCR and the January 10, 2024 BCR to appoint the firm of Sugden McFee and Roos LLP [SMR] as the investigator. On March 14, 2024, SMR wrote to counsel for the Respondent Councillors and to counsel for the Applicant advising that SMR was prepared to assume the role of investigator but required certain changes to the March 12, 2024 BCR, including that the 21 day investigation period commence on March 18, rather than March 12, 2024, to allow SMR to prepare without loss of investigation time. On May 31, 2024 the Respondent Councillors passed a BCR amending the BCRs passed December 8, 2023, January 10, 2024 and March 12, 2024 and appointing the firm of SMR, effective June 5, 2024, as the independent investigator to conduct the investigation into the conduct of the Applicant as set out in the Section 187 Report.

[24] On June 5, 2024, SMR wrote to then counsel for the Applicant, Mr. van Ert, advising of their appointment as investigators and noting that, pursuant to paragraph 198(b) of the By-law the investigation must be completed within 21 days of that date, being the effective date of their appointment. That is, by June 26, 2024. The letter set out the process that SMR anticipated following in conducting the investigation. This included review of the Section 187 Report, requesting and reviewing relevant documents, interviews of the Applicant, the Respondent Councillors and other individuals who may have evidence material to the investigation, further input from the parties if necessary and practicable, and the preparation of SMR’s report setting out whether the evidence showed that it was more likely than not that the allegations in the Section 187 Report were true, including the reasons for SMR’s decision, as required by paragraph 198(g) of the By-law. The letter states that SMR, in compliance with paragraphs 198(d) and (e) of the By-law, would conduct the investigation in a fair and impartial manner, evaluate the allegations in a manner that treated the Applicant and the Respondent Councillors equally, and be sensitive to the interests of all parties involved and maintain confidentiality.

[25] On August 9, 2024 (the parties’ respective counsel having agreed in discussions with SMR to extend the deadline for submission of SMR’s report to August 9, 2024) SMR completed its report [SMR Investigation Report]. On August 10, 2024, the SMR Investigation Report was provided by SMR to then counsel for the Applicant, Mr. van Ert. Mr. van Ert provided it to the Applicant on the same date.

[26] The SMR Investigation Report is a 73 page, 430 paragraph document and it is comprehensive. It sets out SMR’s mandate as prescribed by section 198 of the By-law, noting that SMR was obliged to be “focused on finding facts and evidence” and its reporting mandate is to set out whether it had “determined that the evidence showed it is more likely than not that the allegations in the report are true, including the reasons for the investigator's decision.” While subsection 199(1) of the By-law also required SMR to state its conclusions regarding whether “the evidence shows that it is more likely than not that grounds for disciplinary action exist under s. 184,” SMR found that determinations or recommendations as to what consequences should lie from its findings, if any, were beyond its mandate.

[27] The SMR Investigation Report sets out the process followed, the standard applied at arriving at its findings and then dealt with each of the allegations contained in the Section 187 Report. The analysis of the Chief’s scope of authority and whether she exceeded it was extensive. In every part of the analysis, SMR addressed the evidence, both supporting and refuting the allegations, and gave clear reasons for its conclusions. It is not possible or necessary to address the SMR Investigation Report in detail here (and many of the findings are discussed in reasons for the removal decision, addressed below). However, it concluded as follows:

429 We have reached the following conclusions on the allegations in the S. 187 Report:

• The interpretation most consistent with the Bylaw is that the Chief cannot make decisions impacting key issues, such as treaty rights, unilaterally.

• A decision to grant the waivers and exemptions sought by Petronas for the Town East Permit could not be made unilaterally by the Chief.

• The June 9 BCR was valid and approved the Exemptions and Amendments Policy specifying that a waiver or exemption to the IA could only be granted by a majority of Council.

• The Chief was aware that a majority of Council opposed granting the waivers and exemptions for the Town East Permits. She nevertheless granted the approvals and waivers sought by Petronas without notification or proper consultation with Council.

• Some mitigation circumstances exist regarding the Chief's decision to approve the Petronas waivers/exemptions, including conflicting legal advice on the validity of the BCR, Mr. Arbogast's broad interpretation of her powers as Chief (although he advised her that Council approval for the waivers/exemptions was required), the pressures the Chief faced from multiple fronts, and her lack of governance experience.

• The allegations regarding the PRGT pipeline are unfounded. The Chief actively opposed the PRGT pipeline and took steps to try to prevent the permit extensions from being granted.

• The Top Notch/Tourmaline allegations are unfounded. The evidence does not establish that the Chief demanded Tourmaline pay fees to Top Notch or that the Chief would only allow Tourmaline to contract with her preferred suppliers.

• The Chief did not have authority to demand that Mr. McDade cease and desist acting for the Nation on June 21, 2023 and she did not have approval from Council in doing so.

• The Chiefs approval of the Arbogast invoice technically contradicted Council's decision to terminate Mr. Arbogast's services "effective immediately" on August 16, 2023.

430 We have concluded grounds for potential disciplinary action have been established under:

1. S. 184(c), for breaching the June 9 BCR.

2. S. 184(c), for exceeding her scope of authority in unilaterally making the waiver and exemption decisions.

3. S. 184 (c), for failing to comply with her obligations under s. 19(a) of the Bylaw to act in the best interests of BRFN honestly, impartially and in good faith in relation to the Town East Permits.

4. S. 184(a), for failure to comply with paragraph 5 of her oath of office when she communicated with BCER on July 7 and 25 regarding the Town East permits.

5. S. 184(d), for avoiding the collective decision-making process in the function of acting as spokesperson for Council with BCER and in a manner that caused substantial harm to Blueberry River's ability to conduct business.

6. S. 184(d), for demanding that Ratcliff cease and desist work on the IA without approval from Council to do so.

[28] Following the receipt of the SMR Investigation Report, the Applicant issued “Chief Desjarlais’ Statement on the S. 187 Investigation Report into Alleged Misconduct” on August 30, 2024. The Responding Councillors issued a “Summary of Investigation Findings Regarding Misconduct by Chief Judy Desjarlais Authorized by Councillors Gauthier, Dominic, Wolf and Yahey” on September 3, 2024, summarizing the SMR Investigation Report conclusions and taking issue with aspects of the Applicant’s August 30, 2024 communication to BRFN members.

[29] By email of September 9, 2024, Mr. Mitha advised Mr. Niles Bond (also then counsel for the Applicant) that the Respondent Councillors would add to the September 10, 2024, meeting agenda the issue of dealing with the outcome of the SMR Investigation Report. Mr. Mitha stated that at the September 11, 2024, meeting the Applicant would be invited to provide her views on the SMR Investigation Report before Council made a decision on the outcome. Once she had done so, Council would deliberate and arrive at a decision. Once a decision was made, written reasons would be provided. Further, that Council would propose to deal with the question of outcome, in camera. As will be addressed in more detail below, discussions between counsel ensued as Mr. Bond did not agree that the determination of the disciplinary action should proceed in camera.

[30] The Applicant prepared a “Statement to be Read By Chief Desjarlais Responding to Motion to Meet in Camera” dated September 10, 2024. She took issue with whether the privileged information contained in the SMR Investigation Report warranted an in camera meeting and suggested that the confidentiality issues were valid, although not yet resolved, but could be at which time the need for an in camera meeting would be overcome. The Applicant acknowledged that, now that SMR had made its report, Council had to decide what discipline to impose, as governed by the By-law. She asserted that the By-law required Council to “decide on discipline based on the findings made, and not made, by the investigator, and considering the factors set out in section 199. But the four Councillors have made up their minds already.” This was premised on the Applicant’s view that the Section 187 Report explicitly stated that she should be removed from her position as Chief. She asserted that all of the By-law factors mitigated against her removal and that “the most serious allegations against my honesty and integrity were not proven.”

[31] The in camera meeting proceeded on September 13, 2024. It appears that the September 11 meeting was moved to September 13, 2024. The Respondent Councillors view this as a continuation of the September 10, 2024, regularly scheduled Council meeting.

[32] By email on September 11, 2024, Mr. Mitha provided Mr. Bond with the following questions for which Council sought the Applicant’s views:

1. Does she stand by the written statements she has made since the Investigation Report including her statements made on August 30, 2024 and September 10, 2024?

2. Has the Chief distributed the Investigators Report to anyone?

3. Does the Chief agree with the findings made in the Investigation Report?

4. Does the Chief consider that she has done anything wrong?

5. Has the Chief taken any steps to address the findings made in the Investigation Report?

6. What does the Chief consider should be the consequences arising from the findings in the Investigation Report in the context of sections 199(1) and (2) of the Bylaws and provide reasons for her views in this regard.

[33] The Applicant provided a responding statement dated September 13, 2024. She confirmed that she stood by her written statements about the investigation report made on August 30 and on September 10. While she questioned the relevance of the question, she also confirmed that she had not distributed the SMR Investigation Report to BRFN members, shared it publicly, or posted it anywhere, other than sharing it with Councillor Chipesia. She wished that “we, or our lawyers,” all would have sat down to address any concerns regarding its confidentiality much earlier.

[34] As to the next three questions, the Applicant stated that the SMR Investigation Report is 73 single-spaced pages, and while she agreed with many of SMR's findings she did not agree with all of them. In particular, its finding that the June 9, 2023 BCR was validly passed. She stated that otherwise, “it would not be appropriate for me to go through, paragraph by paragraph, and confirm which specific findings I agree and disagree with when: (a) I do not understand how my opinion about specific findings is relevant at this point, especially regarding any legal determinations that SMR reached; and (b) as I have said, depending on your decision, I may bring the matter to Federal Court for judicial review.” She generally did not agree with SMR's finding that she committed misconduct or that as Chief she did not have the power to make "big" decisions. The Applicant stated that she could not withdraw her approval of the Town East Permits at that stage, and would not do so even if she could, because BRFN could not afford further conflict or litigation with Petronas but should be working to restore a mutually beneficial relationship under Petronas’ collaboration agreement. As to her firing of Ratcliff, the Applicant stated that the firm is still working for BRFN, thus, there was nothing for her to fix. She maintained her belief that Mr. McDade and Ratcliff are not good for BRFN and stated that “the findings of the investigation have only confirmed that.” However, she confirmed that she would not try to unilaterally fire them again.

[35] As to the final question, the Applicant stated that:

The section 187 report said I should be removed from office as a result of all of the conduct alleged in it. But the SMR report did not uphold all of the allegations. In particular, the allegations of me benefitting personally from decisions I made as Chief were rejected.

The allegations that SMR did uphold have to do with governance issues: whether the June 9th BCR was validly passed, whether I as Chief could make permitting decisions without going through Council, and whether I could dismiss Ratcliff without going through Council.

Uncertainty about those issues—especially given what the Implementation Agreement says and the position the Province is currently taking in court on this same point—is not enough to warrant my removal from office. Removing me from office based on this report, would be unreasonable. It would be an overreaction. The Code’s discipline provisions are not intended to be a way of carrying on political disagreements. They are for serious misconduct.

Removing me from office would undermine BRFN members’ confidence in the integrity of Council. I think you know that the members support me, and that they do not want me to be removed. The members could make their voices heard in this regard -for and against me - if members were permitted to attend this meeting. But you have wrongfully kept them out of this meeting. That is telling.

Removing me would not be in the best interests of the membership. My removal would not help anything, and on the contrary would lead BRFN further from the trajectory and direction it needs to go for economic and social prosperity.

If I am not removed, I will abide by SMR’s report (despite my disagreement with parts of it). Like I said, I want to move forward and work with Council to pass, and then follow, good governance procedures and policies.

Regarding the misconduct itself, as I have noted, I genuinely believed that I had the power to make those decisions, as BRFN’s proper governance requirements were less than certain and the Implementation Agreement identifies the Chief as BRFN representative. I also do not believe that my actions caused damage to anyone. Ratcliff is still working for the band, and the Town East Permits have resulted in much needed payments and economic benefits for the band, including many of your family members.

This was my “first offence” and I think, at most, a warning would be sufficient.

[36] The Applicant also spoke at the September 13, 2024, meeting. She asserts that she began to speak but that she was interrupted by Councillor Dominic who declared that the Applicant had a conflict of interest and, therefore, that Councillor Dominic had to chair the meeting. She asserts that she was speaking to raise a conflict of interest with the Respondent Councillors as they were conspiring to have her removed and she wanted a neutral party to chair the meeting. The Respondent Councillors dispute that the Applicant made this statement but confirm that she did allege that some of the Respondent Councillors were in a conflict because some of their family members were allegedly benefiting from the Petronas Permits. They also confirm that the Applicant referred to wanting BRFN members to be involved, but not because of any conflict of interest of the Respondent Councillors. The Gauthier affidavit states that at the beginning of the meeting a motion was proposed and passed finding that the Applicant was in a conflict of interest because the discipline related to her and, as a result, that she would not be permitted to attend the part of the meeting where the Responding Councillors deliberated the decision.

[37] Ultimately, the Respondent Councillors unanimously passed the September 13, 2024 BCR removing the Applicant from office, effective the date BCR was made public, September 17, 2024 [Removal BCR].

Decision Under Review

[38] The Removal BCR states as follows:

Blueberry River First Nations

Band Council Resolution

September 13, 2024

Decision regarding Chief Desjarlais

WHEREAS on December 8, 2023 the Council passed a Band Council Resolution approving a Report made under section 187 of the Blueberry River Custom Election By-Law 2017 ("Bylaws");

WHEREAS on June 5, 2024, the Council passed a Band Council Resolution under s. 196 of the Bylaws appointing Sugden, Mcfee & Roos LLP ("SMR") to conduct an independent investigation;

WHEREAS on August 9, 2024, SMR released its report of the investigation which it conducted ("Investigation Report");

WHEREAS the Investigation Report concluded that Chief Desjarlais engaged in various conduct that was contrary to the Bylaws;

WHEREAS on September 13, 2024, the Band Council met in an in camera meeting to deliberate on the disciplinary action orders under s. 199 of the Bylaws after hearing from Chief Desjarlais;

THEREFORE IT WAS RESOLVED THAT:

As a result of the findings in the Investigation Report, Chief Desjarlais’ response and statements made after the Investigation Report and taking into consideration the factors set out in s.199 of the Bylaws, Chief Desjarlais be removed from office effective noon on Tuesday September 17, 2024.

137. As a result, Council passed a resolution to remove Chief Desjarlais from office, pursuant to section 199(d) of the Blueberry River Custom Election Bylaws 2017, effective the date these Reasons are made public.

Dated: September 17, 2024

[39] The Respondent Councillors also provided written reasons for their decision entitled “Decision of Family Councillors Gauthier, Dominic, Wolf and Yahey setting out the Reasons for the removal of Chief Desjarlais from Office” [Reasons].

[40] The Removal BCR and the Reasons were provided to the BRFN members as attachments to a Notice to All Members dated September 17, 2024, which Notice also states that it would be posted on the BRFN website. The Removal BCR and the Reasons were provided to Mr. van Ert by Mr. Mitha on the same date. The Applicant asserts that she learned of the decision from others via text message at around 11:45 am while she was in a meeting. The Respondent Councillors assert that it was emailed to the Applicant at 11:36 am, the same time that she was in that meeting.

[41] The Reasons are some 40 pages in length. They provide background information and summarize the SMR Investigation Report, including footnote references to the relevant paragraphs of the SMR Investigation Report, and set out its findings and conclusions.

[42] The Reasons next address the Applicant’s August 30, 2024, and September 10, 2024 responses to the SMR Investigation Report. The Reasons find that despite the findings in the SMR Investigation Report that the Applicant misconducted herself seriously, the Applicant’s summaries sent to BRFN members did not take responsibility and accountability for her misconduct, instead asserting that her actions were in BRFN’s best interests.

[43] The Reasons then address the September 13, 2024 Council Meeting, including that prior to the meeting, the Applicant was asked to respond to the six questions identified above and that at the beginning of the meeting she was given the opportunity to speak and to share with Council her views on the appropriate sanctions against her. The Reasons attach the Applicant’s written statement and describe her oral statement:

77. In her oral statement, the Chief first raised that she considered that there were many conflicts and that this entire process was an attempt by Mr. Wayne Yahey to step in as Chief and stated that Shelley Gauthier's daughter was going to become a Councillor. These allegations are entirely based on rumors and are not true.

78. She made these statements as a suggestion that Council was acting in bad faith and that she did nothing wrong. She wrongly suggests that the entire matter is a conspiracy. This ignores that independent investigators have found that she breached her oath of office and acted contrary to the Bylaws.

79. The Chief set out various names of persons she considered to be in a conflict. Her legal counsel then provided a document which sets out the various persons she considers to be in a conflict. She did not explain why she considered these persons to be in a conflict. We attach as Appendix 2 the documents her legal counsel provided as those persons the Chief says are in a conflict.

80. The Chief then responded to the six questions previously provided to her. She followed the comments at Appendix 1, but also added that she felt she didn't have proper training as to what her duties were and that she was simply trying to work with the strategic plan. On a number of occasions, she stated that she felt she did nothing wrong.

81. She continued to state that she felt that Mr. McDade and Ratcliff are not good for the Nation and that, as a result, she did nothing wrong in terminating their services.

82. Following the Chiefs statement, as required by the BRFN Bylaws Council went in camera (which means that they conducted a private meeting) to consider the appropriate sanction against Chief Desjarlais.

83. As can be seen from Appendix 1 (the Chiefs statement responding to the six questions), she states that she stands by the statements she made on August 30 and September 10, 2024.

84. She does not agree with all of the Investigator's findings but does not state specifically which parts she agrees with and she doesn't agree with. She does state that she does not agree with the conclusion that the investigators reached that the June 9, 2023 BCR was validly passed.

85. She states that she doesn't understand how her opinion on the specific findings in the Investigation Report are relevant at this point. She also states that she may bring the matter to Federal Court for judicial review.

86. She continues to take no responsibility for her misconduct and states on page 2 of her statement (at Appendix 1):

Generally I do not agree with SMR's finding that I committed misconduct.

87. Regarding the finding that the Chief improperly granted the five Petronas Permit Approvals, she states that even now she would not withdraw those permits. She states:

I cannot withdraw my approval of the Town East Permits at this stage and frankly I would not if I could - BRFN cannot afford further conflict or litigation with Petronas, but should be working to restore a mutually beneficial relationship under Petronas' collaboration agreement. [emphasis added]

88. Concerning what the misconduct should be, she says that she should receive simply a warning.

89. It is noteworthy that the Chief has not apologized or acknowledged her wrongdoing that was found in the Investigation Report. She maintains that what she did was in the best interests of BRFN.

90. After the comments from the Chief, Councillor Chipesia stated that, as she was not a Councillor at the time of the Section 187 Report, she felt it was not appropriate for her to be part of the decision on what should be the sanction against the Chief. As a result, she stated that she would excuse herself from the meeting.

91. As a result, the remaining Councillors, Yahey, Gauthier, Dominic and Wolf deliberated and arrived at a decision to remove Chief Desjarlais from office.

[44] The Reasons state that in arriving at their decision to remove the Applicant as Chief, the Respondent Councillors considered paragraph 199(1) of the By-law which states that when an investigator’s report concludes that the evidence shows it is more likely than not that grounds for disciplinary action exist under section 184, then they must make one or more of the listed disciplinary orders taking into consideration the factors listed in paragraph 199(2). The Reasons then set out the basis for finding that the appropriate disciplinary action was to remove the Applicant from office:

94. Giving consideration to all of the above factors, as stated above, Councillors Gauthier, Dominic, Wolf and Yahey ("Council") unanimously voted to remove Chief Desjarlais from office, pursuant to section 199(d) of the BRFN Bylaws.

95. The reasons for the decision of Council are set out below and are organized in order of the factors that Council must consider under section 199 of the Bylaws.

(a) The need to ensure the membership's confidence in the integrity of Council

96. The Investigation Report found that the Chief did not act honestly, impartially or in good faith. These are the cornerstones of integrity. If members of Council, and especially the Chief, do not act honestly, Council will not be seen to be acting with integrity.

97. The Investigation Report found that Chief Desjarlais was dishonest, including in the following instances:

a. The Investigation Report found that the Chief knew that she did not have authority from Council to grant the Petronas Permit Approvals which Petronas was seeking in order to start development in the Dancing Ground HV1 Area. Despite knowing this, the Chief met with Petronas and subsequently sent the July 7 Letter to the BC Energy Regulator granting three of the Petronas Permit Approvals. In this letter the Chief falsely stated that Council had been consulted.

b. The Chief then wrote again to the BC energy Regulator (the July 25 Letter) in which she falsely stated that she was speaking for Council, and that Council had been consulted.

98. In addition to these instances of blatant dishonesty, the Investigation Report also found that, in other instances, Chief Desjarlais was intentionally not forthcoming. For example:

a. The Chief was vocal about the fact that she did not think that the June 9 BCR was valid and binding. However, she did not tell Council that, as a result of her view, she intended to grant the Petronas Permit Approvals without Council's authority.

b. Having sent the July 7 Letter the Chief then sent Council the July 20 Text Messages which were misleading because the Chief said that Petronas is pushing to get five permits approved, but did not disclose that she had already granted three of the five Petronas Permit Approvals, and that the Province had already granted the permits as a result.

99. This factor weighs in favour of a serious sanction, up to and including removal, but must be weighed together with the other section 199 factors considered below.

(b) The responsibility of Council as a whole to act in the best interests of the membership

100. Paragraph 5 of the Chief's Oath of Office states that the Chief must commit to "accurately, adequately and only where authorized by Council to do so, communicate decisions made by Council to Blueberry River members and the public...". The Report found that the Chief breached this paragraph of her Oath of Office when she communicated with BC Energy Regulator in the July 7 Letter and the July 25 Letter.

101. More generally, the Investigation Report found that the Chief made big decisions alone and that those decisions were against the consensus of Council. The Investigation Report also found that the Chief's actions caused BRFN "substantial harm". Therefore, it is absolutely clear that the Chief's actions gravely undermined the responsibility of Council as a whole to act in the best interests of the membership.

102. The Investigation Report found that the Chief's actions caused the following harms to BRFN;

a. The Chiefs avoidance of the collective decision-making process in the function of acting as spokesperson for Council when communicating with the BC Energy Regulator caused "substantial harm to Blueberry River's ability to conduct business".

b. By excluding Mr. McDade (BRFN's previous lawyer) from important discussions and then firing him altogether, the Chief "caused substantial harm" to BRFN's ability to adequately conduct the business arising from Implementation Agreement issues and negotiations, including developing the HV1 plans.

103. This factor considered alone weighs in favour of a serious sanction, up to and including removal, but must be weighed together with the other section 199 factors.

(c) The need to deter the Council member, and all members of current and future Councils, from committing similar actions

104. This factor speaks for itself and is directly related to the seriousness of the Chief's misconduct. If the Investigation Report had found that the Chief had made a mistake, then deterrence would not be as important a consideration. However, in this case the Investigation Report found that Chief Desjarla is intentionally mislead Council and dishonestly told the BC Energy Regulator that she had the support of Council for the Petronas Permit Approvals, which led to the issuance of permits to Petronas which Council strongly opposed.

105. We must set a clear example that a Chief of BRFN (or indeed any modern First Nation) cannot get away with breaching her Oath of Office, acting dishonestly and acting against the best interest of the Nation.

106. The Oath of Office is a fundamental part of our values and must be taken seriously. If someone breaches it like the Chief has, at the very least that person must take some accountability for the breach. The Chief has not done so.

107. It is impossible for us to govern ourselves cohesively, collaboratively and prosperously as a Nation if the word of the Chief, our figurehead, cannot be trusted by industry, government, and most importantly of all, by BRFN members.

108. This factor weighs strongly in favour of condemning the Chief's actions by imposing a serious sanction, up to and including removal. As with each section 199 factor, this factor must be weighed together with the other factors.

(d) The nature and gravity of the action that has been proven

109. After considering a large volume of evidence, the Investigation Report made very serious findings of misconduct against Chief Desjarlais and ultimately concluded that she acted contrary to the BRFN Bylaw, breached her Oath of office, did not act in the best interests of BRFN, and did not act honestly, impartially or in good faith.

110. While the Chief says she takes issue with some of the findings in the Investigation Report, she does not set out why the findings in the Investigation Report are incorrect. On a review of the Investigation report, the Investigators considered all the relevant information and arrived at rational conclusions based on the evidence they were presented with. There is no reason to question their findings and conclusions.

111. These are among the most serious of findings against a Chief.

112. These findings are aggravated by the fact that the Chief's misconduct directly relates to, and undermines, the long, expensive and arduous process that BRFN has endured, in order to govern our own lands. Specifically:

a. In the Court Decision, after a 160-day trial the BC Supreme Court found that the Province of British Columbia breached Treaty 8 by allowing extensive industrial development on our lands which breached BRFN's Aboriginal rights. The Court Decision reinforced BRFN's ability to protect our Treaty rights and say no to development.

b. Following the Court Decision, BRFN and the Province entered into the Implementation Agreement. This Agreement provides for a collaborative approach to land, water and resource stewardship within BRFN territory with the objective of ensuring BRFN's members will be able to meaningfully exercise their Treaty Rights.

c. The Implementation Agreement established annual limits on oil and gas activity.

d. The Clause 9.5 Schedule to the Implementation Agreement lists permit applications that the BRFN would not oppose. Petronas wanted some of the permit applications that Chief Desjarlais subsequently approved to be on this list, but BRFN did not agree and they were removed. These permits were removed from the Clause 9.5 Schedule because Petronas was seeking to create new disturbance near the Dancing Grounds and the Nation wanted that area protected because of its cultural importance.

e. In 2017, after a long process, BRFN enacted its Bylaws. We are in our second term operating under these Bylaws. The Bylaws includes clear processes for meetings and decisions of Chief and Council. On June 9, 2023, all members of Council, including the Chief, unanimously passed the June 9 BCR.

f. By granting the Petronas Permit Approvals against the wishes of Council and contrary to the process set out in the June 9 BCR, Chief Desjarlais undermined the long and well-deliberated process emanating from the Court Decision and leading to the Implementation Agreement, as well as BRFN's own laws.

113. As a community we know that the Dancing Grounds are an area of great cultural importance. This truth is reflected in the Court Decision which recounted that Blueberry members spoke about the Dancing Grounds as the place where Dane-zaa would camp and gather in the summer, share stories, sing, dance and hear from their prophets or dreamers.

114. The Chief had no authority to unilaterally grant the Petronas Permit Approvals which allowed for development close to the Dancing Grounds, and the fact that she did so in an area of cultural importance, all in the interests of financial gain, demonstrate a grave lack of understanding of the meaning of collective property, and lawful governance in the interests of BRFN.

115. As a result, this factor weighs very strongly in favour of removal of Chief Desja r la is from office.

(e) The impact upon any specific and direct victims to the Council member's actions

116. BRFN lands, and BRFN's rights, as recognized in the Court Decision, belong to every BRFN member. However, in addition to the collective impact of the Chief's actions, section 199 requires that we consider any specific or direct victims.

117. The Court Decision was significant in that it changed how the Province can impact lands belonging to the BRFN. The Court Decision gave the BRFN a say in how development on its treaty land would take place. The Chief's conduct undermined this victory as she gave the government the impression that there was a governance dispute when there wasn't. The problem was that the Chief was acting contrary to her Oath of Office and contrary to the best interest of the BRFN and contrary to the Bylaws.

118. The Chief's granting of the Petronas Permit Approvals without the proper process undermines the rights of BRFN's future generations to the lands belonging to the BRFN.

119. The Investigation Report considered the specific impact of the Chief's approval of the waivers and exemptions (leading to Petronas's Permit Approvals) on the Yahey family. At page 47 of the Report it says "Councillor Yahey's text responses show concern for protecting the Dancing Grounds buffer. Further, his support for the June 9 BCR, his continuation of traditional practice as discussed by the Court in Yahey 2021, and his particular family connection to the Dancing Grounds".

120. The Chief's failure to recognize the distinct impact of her actions on the Yahey family aggravate her general failure to recognize the impact of her unilateral decision to cause permits to be issued close to the Dancing Grounds, and the corresponding impact on the Treaty Rights of every BRFN member. Considered together, this factor adds to the serious nature of the misconduct.

(f) Whether similar allegations have been proven against the Council member in the past and the number and frequency of such similar proven allegations

121. This Investigation Report is the first time that Chief Desjarlais has been investigated and found to have engaged in misconduct. However, the findings against the Chief in the Investigation Report are numerous and show a consistent pattern of acting unethically and contra ry to our Bylaws to achieve her desired result.

122. An example of this sustained misconduct can be seen in the series of events described at pages 50 - 51 of the Investigation Report which include the following

a. In granting Petronas Permit Approvals, the Chief knew that she was proceeding against Council's wishes and contrary to the June 9 BCR, which required a majority vote.

b. After the Chief stated that she would not meet with Petronas without Council, she did so on June 12 and 22, 2023.

c. After meeting with Petronas, the Chief did not report these meetings to Council or invite them to attend.

d. The Chief made a statement at a Council meeting that no one was "bending the rules", which the Investigation Report found left an impression that required clarification if the Chief decided that she would, in fact, "bend the rules".

e. Having told Council on June 10 and 16 that she had not signed the letter to Petronas (granting their requested waivers and exemptions) she then did so, sending the July 7 letter without notifying Council that she had done so.

f. The Chief did not even notify Council after sending the July 7 Letter.

g. The Chief then sent the July 20 Text Messages to Council which were misleading. When the investigators asked the Chief about this in her interview, she suggested that the July 7 letter may bear the wrong date; however, the Investigation Report found that this was not the case.

h. The Chief did not respond to Councillor Yahey's text inquiry on July 20, 2023, asking whether Mr. McDade (BRFN's lawyer at the time) had been asked for his opinion on the Petronas Permit Approvals. By then demanding that Mr. McDade cease and desist work for BRFN, the Chief prevented Council from receiving Mr. McDade's advice or the advice of another practitioner sufficiently informed in the treaty issues regarding the relevant permits.

i. The Chief sent the July 25 Letter where she falsely stated that she was speaking for Council, and that Council had been consulted. This was false.

(g) Whether the Council member has acknowledged their actions and taken independent steps to disclose and redress their wrong

123. Since the publication of the Investigation Report, the Chief has made three statements: one official statement on August 30, one statement via email to members on September 10 and a statement at the Meeting of Chief and Council on September 13. She has also sent a number of other emails to BRFN members.

124. Chief Desjarla is has failed to acknowledge or apologize for the serious findings against her. Instead she has doubled down on her actions- continuing to attempt to justify them and continuing to assert that they were in the best interests of BRFN, when the Investigation Report found that this was not the case. She has failed to acknowledge that she acted dishonestly and breached her Oath of Office.

125. The Chiefs statement that she still believes that the June 9 BCR was invalid is unbelievable. This was a BCR which she approved of and signed. Her attempt to say that the meeting at which we passed the BCR was invalid has no merit. The Investigation Report dealt with this at length and found that the Chiefs suggestion that the June 9 BCR was not valid has no merit.

126 The Chiefs argument regarding the validity of the June 9 BCR shows a lack of integrity. She voted in favour of the BCR and signed it. Her attempt to state later that it was not valid on some technical grounds, because she breached it, demonstrates a complete lack of honesty and integrity.

127. The Chief's suggestion (in her August 30, September 10 written statements, and again in her oral statements on September 13) that she did not know that she needed Council's approval in important decisions in untrue. The Investigation Report dealt with this at length in paragraph 53.

128. The report made mention of a few mitigating factors, including Chief Desjarlais' lack of governance experience and pressure from Petronas, which the Chief could have raised in tandem with an acknowledgement of wrongdoing and a humble apology. She hasn't done this.

129. Instead, the Chief's statements since the publication of the Investigation Report have actively caused division in the community and have further undermined the confidence of members in the integrity of Council. Specifics of these statements include the following.

130. In the Chief's August 30 Statement she attempted to justify her firing of the law firm Ratcliff, which the report found caused substantial harm to BRFN, by saying that she was trying to "free ourselves from lawyers that do not live and work within our community". This statement echoes the divisive tone with which she has responded to other criticism since the publication of the report. In one instance, a BRFN member who lives off-reserve emailed the Chief regarding her disappointment in the Chief's August 10 statement. In response, the Chief insincerely responded "thanks for sharing your thoughts and biased opinion". She went on to say, "you have never lived here nor have you ever contributed to any community event" and, later in that email "you don't live here and you never engage with our members".

131. In respect of the investigation procedure and Council's procedure since the publication of the Investigation Report, Chief Desjarlais' public statements have included the following:

a. "the councilors decided long ago to remove me, no matter what the investigation might find".

b. (Council is) "pretending that these steps are required by confidentiality concerns when they are not".

c. "I also suspect the Councillors would say that any description I give is false or misleading".

d. "since the Councillors have stopped cooperating with Petronas, they are now withholding millions of dollars from the Nation"

132. These comments are not reflective of a Chief that is able or willing to move on from the Findings of Misconduct in the Investigation Report with newfound respect for BRFN laws. Instead, these comments are demonstrative of the fact that the Chief is blinded by financial considerations and remains steadfast in her view that she has done nothing wrong. Further, the Chief has produced no evidence that the if BRFN doesn't give permits as she did, that the BRFN would suffer the financial consequences which she suggests would occur.

133. The Chief has demonstrated that she has the capacity and the motivation to act dishonestly, in bad faith, without Council's support, and contrary to BRFN laws in order to achieve her own agenda. We as Council have no confidence that this will change. In fact, we can see that more than a month after the Investigation Report has been handed down, the Chief has remained of the view that she has done nothing wrong. Our conclusion that she will not change is justified.

134. In considering this factor, we must consider whether the Chief has acknowledged her actions and taken independent steps to disclose and redress her wrong. Here, the Chief has done exactly the opposite. She does not acknowledge her wrong and she continues to sow division among members.

135. Accordingly, this factor weighs heavily in favour of removal of Chief Desjarlais from office.

Conclusion

136. Council has considered each of the factors listed in section 199 of the Bylaws. As explained above, the following five factors weigh strongly in favour of removal of Chief Desjarlais from office:

a. the need to ensure the membership's confidence in the integrity of Council;

b. the responsibility of Council as a whole to act in the best interests of the membership;

c. the need to deter the Council member, and all members of current and future Councils, from committing similar actions;

d. the nature and gravity of the action that has been proven;

e. whether the Council member has acknowledged their actions and taken independent steps to disclose and redress their wrongs.

(emphasis in original, footnotes omitted)

[45] I note that in her written submissions and her supporting affidavit the Applicant recounts post-decision events. However, they need not be described here as the questions before me are concerned solely with the decision to remove her from office.

Preliminary Observations

[46] The Applicant has a filed an affidavit affirmed on November 26, 2024. This has 231 paragraphs and is 58 pages in length. Attached are 104 exhibits of approximately 1,094 pages of documents. She has also filed affidavits of Arthur Joseph Chipesia, a BRFN member and member of the Dan Apsassin Family Group; Clarence Gabriel Apsassin, a BRFN member, Elder and member of the Edward Apsassin Family Group; Gloria Doris Apsassin, a BRFN member, Elder and member of the Dan Apsassin Family Group; Inez Margaret Apsassin, a BRFN member and member of the Dan Apsassin Family Group; Joseph Michael Apsassin, a BRFN member and member of the Edward Apsassin Family Group; Matthew Alen Lamont, a BRFN member; and Nancy Lynn Chipesia, a BRFN member and Elder of the Dan Apsassin Family Group.

[47] The application record also includes the transcripts of cross-examination of the Applicant, Councillor Gauthier, Councillor Dominic, as well as of Clarence, Inez and Joseph Apsassin, Arthur Chipesia and Matthew Lamont.

[48] The Applicant has also included in her application record the affidavit of Councillor Shelley Gauthier, one of the Respondent Councillors, affirmed on February 7, 2025. This responds to the Applicant’s affidavit and is comprised of 219 paragraphs and 19 exhibits.

[49] The Respondent Councillors have filed the affidavit of Councillor Sherry Dominic, also one of the Respondent Councillors, sworn on February 7, 2025; Ashely Boake, a BRFN member and a member of the Edward Apsassin Family group; and, Maryann Adekat a BRFN member and a member of the Pete Davis Family Group.

[50] I have read and considered all of these materials, as well as all of the submissions, but I will not be mentioning all of them individually in these reasons.

[51] This matter was also case managed. Despite delay caused in large part, but not entirely, by the Applicant, the matter was ultimately set down by Order dated November 28, 2025 (the dates having previously been agreed) to be heard on an expedited basis on December 4 and 5, 2025. The expedited hearing, and time within which this matter must be determined by me, were necessitated by the fact that the next BRFN election of Councillors has been set down to be held on January 12, 2026 with the election of Chief to occur the following day. I note that pursuant to paragraph 41(d) of the By-law, to be eligible for nomination as a candidate, and to be eligible to act as a Council member, a person must not have been removed from a position on Council within five years prior to the date of the nomination meeting for the election in which they seek to run for office.

[52] On November 26, 2025, the Applicant filed a new application for judicial review challenging the decision of four Councillors of the BRFN Council (the Respondent Councillors) setting the date for an election (which had the effect of also setting the date for nominations) (T-4770-25). She also brought a last-minute urgent motion in that matter seeking to stay the December 3, 2025 BRFN nomination meeting until the Court in this matter renders its decision, or until January 2, 2026 or such date as the Court might set. By Order dated December 2, 2025, Justice McVeigh denied the requested injunctive relief as, in the circumstances, it was an abuse of process.

[53] Finally, I note that on November 17, 2025, Apsassin v Yahey, 2025 FC 1830 [Apsassin] was decided by Justice Azmudeh of this Court. That matter concerned an application seeking declaratory relief brought by two BRFN Elders with respect to ongoing decisions by four Councillors that the applicants alleged violated BRFN law and customs. More specifically, that the Councillors failed to hold regularly scheduled Band Council meetings with an agenda at least twice monthly; held in camera or secret meetings in ways not contemplated by “the Laws”; failed to consult BRFN members in accordance with the By-law, including the family group or the elders they represent, in advance of making major decisions on behalf of BRFN; and, challenged the Councillors’ passing of the March 12, 2024 BCR that initiated the investigation into the conduct of the Chief. I note that although the Chief was also a named respondent, she supported the application for judicial review.

[54] Justice Azmudeh granted the requested declaratory relief, in part. In the matter before me, the Applicant relies heavily on Apsassin. However, it is important to note that in that case Justice Azmudeh specifically held that:

[10] However, since the Applicants have agreed that the March 12, 2024 BCR and the issue of Chief Desjarlais’ removal from office are not under review here, I find that I need not deal with the last point.

…

[15] The case involving Chief Desjarlais is not before me. My decision in this case is meant to have no bearing on other cases before the Federal Court.

….

[17] Though the Applicants have raised the issue of the March 12, 2024 BCR’s legality, which initiated the investigation into whether the Chief’s conduct breached the Nation’s By-Law, I conclude that it is not before this court. In their memorandum, the Applicants have not sought a remedy with respect to said BCR. I also stated to the parties during the hearing that I will not interfere with the other matter(s) before this Court.

[18] I will therefore not consider whether said BCR, or the process for passing it, breached the Chief’s procedural fairness rights, or whether passing the BCR was unreasonable. Since the main issue before me concerns the Respondent Councillors’ continuing and ongoing actions surrounding governance, I must only determine whether on a balance of probabilities, the Respondent Councillors’ course of conduct surrounding governance breached the By-Law.

[55] Justice Azmudeh concluded that that the Councillors’ actions surrounding governance on the first allegations were a continuing course of conduct subject to judicial review, and that the continuing course of conduct surrounding governance was unreasonable.

[56] Significantly, however, in Apsassin no CTR was filed. In the result, many of Justice Azmudeh’s finding are based on adverse inferences:

[30] In the case at bar, I analyse the evidence at length when I decide on the merits of the case. In the merits, I find that the Respondent Councillors failed to file a CTR and to fulfill undertakings for discovery requested by the Applicants. In doing so, I draw the adverse inference that the Respondent Councillors did not hold more than 3 meetings that complied with the By-Law during the period under review (see paragraph 90 of these reasons). As a result, the lack of a proper evidentiary record that would underpin a single decision, or a number of related decisions, occurs because the Respondent Councillors failed to comply with the requirement to file a CTR. Failing to file a CTR has obscured the Respondent Councillors’ process regarding whether they have complied with the By-Law for each meeting. Obscuring the process hampers the Applicants’ ability to challenge individual decisions.

(see also paras 62, 82, 83, 85, 89, 90, 95, 96, 97, 99, 120).

[57] This is to be contrasted with the circumstance before me where a CTR and voluminous records have been filed.

Issues and Standard of Review

[58] In their respective submissions, the parties identify various issues in different ways.

[59] The Applicant asserts that the issues are whether the removal decision was made without jurisdiction (i.e. not in compliance with the By-law); that the removal and removal process failed to comply with the principles of natural justice in that she was not provided with a meaningful opportunity to respond to the SMR Investigation Report (among other things), bias and conflict of interest; and, that she did not receive reasons for the removal decision, the decision was unreasonable and the Respondent Councillors fettered their discretion.

[60] The Respondent Councillors are of the view that the Applicant’s memorandum of fact and law makes new arguments and seeks judicial review on new grounds of procedural fairness, including bias and institutional bias, and new grounds of review such as conflict of interest and fettering of discretion. That is, that the approach of Applicant exceeds the proper scope of the application for judicial review and should not be considered. Accordingly, they identify the issues as whether the removal decision was reasonable, in particular, whether it was reasonable to hold the September 13, 2024 discipline meeting in camera and, in the alternative, whether the removal process was procedurally fair (for lack of reasons or reasons that did not consider lesser disciplinary sanctions). In the further alternative, they also briefly address the Applicant’s arguments that they say are not properly within the scope of this judicial review.

[61] The Respondent Council agrees with the issues identified by Respondent Councillors and expands upon them addressing the CTR, deference owed to First Nations decision-makers when making governance decisions and interpreting their own laws, and responds to specific points raised by the Applicant concerning the application of the By-law and whether the removal decision was reasonable and procedurally fair.

[62] In my view, the issues can all be appropriately framed as follows:

Preliminary Issues

i. Applicant’s Rule 312 Motion

ii. Applicant’s identified “preliminary issues”

iii. Scope of the judicial review

a. What is the decision under review?

b. What grounds of review have been properly raised?

Issues on the Merits

i. Was the removal decision reasonable?

ii. Was the removal decision procedurally fair?

[63] The standard of review on the merits of the removal decision is reasonableness. On judicial review the Court “asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 99 [Vavilov]; Gadwa v Kehewin First Nation, 2016 FC 597 at paras 17; Duckworth v Caldwell First Nation, 2021 FC 648 [Duckworth] at para 20; Coutlee v Lower Nicola First Nation, 2024 FC 47 at para 49).

[64] The standard of review for issues of procedural fairness is correctness (see Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35; Wepruk v Canada (Attorney General), 2024 FCA 55 [Wepruk] at para 8; Saulteaux v Carry the Kettle First Nation, 2022 FC 1435 at para 36). Functionally, this requires the Court’s analysis to focus on whether the procedure followed was fair, having regard to all the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54; Duckworth at paras 18-19; Shirt v Saddle Lake Cree Nation, 2022 FC 321 [Shirt] at para 32).

i. Rule 312 Motion

[65] The Applicant has brought a motion under Rule 312 of the Federal Courts Rules, SOR/98-106 [Rules] seeking leave to file a new affidavit of hers, affirmed on October 3, 2025. The Respondent Councillors oppose this motion. The Respondent Council did not make submissions on this motion.

[66] Rule 312 permits a party, with leave of the Court, to file affidavits additional to those provided for in Rules 306 and 307.

[67] This motion was dealt with as a preliminary matter at the hearing before me.

[68] The test for the admission of new evidence under Rule 312 is that the applicant must first satisfy two preliminary requirements:

i.The evidence must be admissible in the application for judicial review; and
ii.The evidence must be relevant to an issue that is properly before the reviewing Court.

[69] If these two preliminary requirements are met, then the applicant must convince the Court to exercise its discretion in favour of granting the order. In determining whether to exercise its discretion, i.e. whether it is in the interest of justice to do so, the Court will consider:

Whether the evidence sought to be adduced was available when the party filed its affidavits, or could have been available with the exercise of due diligence;

b. Whether the evidence will assist the Court; and

c. Whether the evidence will cause substantial or serious prejudice to either party.

(Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88 at paras 4-6; Lukács v Canada (Public Safety and Emergency Preparedness), 2023 FCA 55 at para 7).

[70] The Applicant submits that the proposed affidavit seeks to admit new evidence to establish:

the impact on the community and benefits to the Respondents since the Applicant’s last affidavit was filed in November 2024;
the procedural defects (inability to respond to witness statements and/or inequalities in the process, including in legal fees being reimbursed);
relevant to the delay, possible remedies, in terms of the timing of the election, and any award of costs.

Impact on community

[71] The Applicant seeks to submit an undated “statement” shared with BRFN members on her LinkedIn account (proposed Exhibit 1). The statement provides what it describes as a “Legal Update on My Removal: A fight for Justice and Our Nation’s Future.” This asserts that the “process” is heavily stacked against the Applicant and (inaccurately) states that the investigation found no evidence of the misconduct that triggered the Applicant’s removal. It goes on to speak about the cost of the process (the legal fees of the Applicant’s two prior counsel) and that she has now retained new counsel who will represent her pro bono. She states that “lawyers run our Nation. I tried to change that and became a victim of the status quo.” Proposed Exhibit 2 is described as a copy of a text message from BRFN’s most prominent elder, Joe Apsassin, made in response to the Applicant’s above statement. This is undated, does not identify the sender and states “[w]e the elders and our family support you every step of the way.”

[72] The Applicant’s proposed affidavit does not explain why these exhibits are relevant. Rather, in her written submissions she deposes that tensions between BRFN families remain at an all-time high and that the Respondent Councillors are running BRFN without her.

[73] As a general rule, the evidentiary record before a Court on judicial review is restricted to the evidentiary record that was before the decision-maker. Evidence that was not before the decision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible (Association of Universities and Colleges of Canada v Canadian Copyrights Licensing Agency, 2012 FCA 22; Bernard v Canada Revenue Agency, 2015 FCA 263 at paras 13-28). The first exception is an affidavit that provides general background in circumstances where that information might assist the Court in understanding the issues relevant to the judicial review, but care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker. The second exception is evidence that brings to the attention of the reviewing Court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker so that the Court can fulfill its role of reviewing for procedural unfairness. The third exception is evidence that highlights the complete absence of evidence before the administrative decision-maker when it made a particular finding.

[74] Proposed Exhibits 1 and 2 post-date the removal decision. They do not fall within any of the exceptions to the rule that evidence that was not before the decision-maker is not admissible. Thus, this evidence does not meet the first requirement of the Rule 312 test as it is not admissible in the underlying application for judicial review. Nor does it meet the second requirement, as the proposed exhibits are not relevant to the judicial review of the removal decision.

[75] When appearing before me, counsel for the Applicant conceded that proposed Exhibits 1 and 2 post-dated the removal decision and are not admissible.

July 2023 Texts

[76] The proposed new affidavit states that the Applicant received the certified tribunal record [CTR] but that it did not contain the SMR witness interview records, notes and statements and, therefore she has no way to test the evidence that supported the investigation findings which the Respondent Councillors accepted in removing her from office. In particular, that she is unable to see what Thomas Arbogast, former counsel to BRFN, “actually informed the investigators or respond to his evidence.” The Applicant states in her proposed new affidavit that Mr. Arbogast was aware that with the deadline communicated on July 20, 2023 that she had texted all of Council. Further, that Mr. Arbogast also knew that prior to July 20, 2023, she had canvassed all Council members and needed to urgently get a response on July 20, 2023.

[77] She attaches as proposed Exhibit 3 what she describes as the text messages with Mr. Arbogast on this issue that she asserts could have been raised with SMR if she had had an opportunity to respond to his evidence. Proposed Exhibit 4 is described as the related July 20, 2023 text messages that she sent to the other Councillors in what she describes as the pressing circumstances. She states that she understands that Mr. Arbogast did inform the investigators that she understood her obligations and was alive to ensuring that she had the buy in of everyone and was doing what she thought best for BRFN as a whole but that without the interview statements and transcripts, she cannot “confirm or deny” that this evidence was communicated to the investigators, nor assess the accuracy of the facts in the investigation report, which formed the basis of her removal. She submits that this evidence is necessary to demonstrate procedural defects that cannot be found in the evidentiary record.

[78] The Respondent Councillors submit that the sole decision at issue in the judicial review application is the Removal BCR. The Notice of Application demonstrates that the only grounds for review of the Removal BCR are the Respondent Council’s alleged failure to comply with the By-law and breach of the requirements of procedural fairness. However, the Applicant now appears to seek to conduct a review of SMR’s investigation, including by seeking leave to admit the proposed new affidavit, in part, on the basis that the CTR does not include certain SMR investigation materials.

[79] As I discuss below with respect to the scope of this judicial review, I agree with the Respondent Councillors that the decision under review before me is the removal decision (the Removal BCR supported by the Reasons), not the SMR Investigation Report. The Notice of Application specifies that it is the Removal BCR that is being challenged and contains no allegations challenging the SMR Investigation Report, on any basis, or asserting that it was in any way flawed.

[80] Therefore, with respect to the Applicant’s submission that the texts comprising Exhibits 3 and 4 of her proposed new affidavit demonstrate procedural defects not found in the record because she did not have an opportunity to respond to the submissions made to SMR, those texts (and the Applicant’s submission) pertain to the conduct of SMR’s investigation, not to the decision under review before me. Therefore, the texts are not relevant. This is determinative.

[81] Further, both the July 20 and July 27, 2023 texts were available when the Applicant filed her November 26, 2024, affidavit as they are text strings in which she is a correspondent.

[82] The Applicant testified on cross-examination that she provided the proposed Exhibit 3 texts with Mr. Arbogast to SMR during the investigation. It is also apparent from the SMR Investigation Report that evidence from Mr. Arbogast was considered by SMR in its investigation.

[83] As to proposed Exhibit 4, a text message string commencing on July 20, 2023 between the Applicant and the Councillors, the relevant portions are already in the record before me. Councillor Gauthier attached as an exhibit to her affidavit the July 20, 2023 text string of messages, although ending on that date. This is not new evidence. Further, the additional relevant messages included in proposed Exhibit 4 that are not part of that exhibit, are quoted in full in the SMR Investigation Report. Thus, the subject text messages were before SMR and were explicitly dealt with in the SMR Investigation Report. For example, SMR noted (among other things) that the Applicant’s July 20 text message was misleading. One element which informed that conclusion was that the text conspicuously does not disclose that the Applicant had already granted an exemption to the disturbance cap for three of the five permits.

[84] It is also significant to note here that SMR interviewed the Applicant, the Respondent Councillors, former Councillor Ms. Robin Ewakow, Mr. Greg McDade of Ratcliff LLP, Mr. Thomas Arbogast of DG Barristers, Mr. John Bueckert, Ms. Norma Pyle and Mr. Matthew Dodwell, former employees of the BRFN Lands Department, Mr. Scott Kirker, Chief Legal Officer of Tourmaline Oil Corp and Petronas via its legal counsel Ms. Heather Tanaka.

[85] The Applicant’s evidence in this application is that she was interviewed on July 5 and July 10, 2024, on both occasions from 10:00 am to 5:00 pm, that she was provided with a list of follow-up questions on July 22, 2024, and which her counsel responded on July 30, 2024. Her counsel also made in depth, written submissions on July 31, 2024 (44 pages) which she attached as an exhibit to her November 26, 2024, affidavit. SMR provided further follow-up questions on August 2, 2024 which the Applicant’s counsel responded to on August 7, 2024. The Applicant was also accompanied by her counsel during her interviews. The SMR Investigation Report states that SMR received and considered material documents from the witnesses throughout the investigation and that documents that were material to a witness’ evidence were canvassed with the witness during the interview. Further that all records received were reviewed.

[86] My point here is that the Applicant fully participated in the SMR investigative process. She had every opportunity raise the July 27 text from Mr. Arbogast with SMR. In my view, it is not open to her to now attempt to challenge the SMR Investigation Report in this judicial review on the basis that she “cannot confirm or deny” that the subject text was before SMR (or otherwise) - particularly given that she confirmed on cross-examination she did submit it to SMR.

[87] In sum, the text messages were available when the Applicant filed her affidavit affirmed on November 26, 2024. The texts do not assist the Court in determining if the Respondent Councillors’ decision to remove the Applicant from office was conducted in a procedurally fair manner and in accordance with the By-law. They are also not sufficiently probative to affect the removal decision of the Respondent Councillors. Moreover, to admit these two isolated texts would essentially open the door to reviewing the sea of evidence that was before SMR (and which is not before me) and the SMR Investigation Report on its merits. Even if that were a valid endeavour, and I have found that it is not, at this stage in the proceeding this would cause substantial or serious prejudice to the Respondent Councillors.

[88] In her written submissions made in support of this motion, the Applicant also submits that the text messages contained in her proposed new affidavit are necessary to demonstrate a procedural defect in that she “was not provided with an opportunity to respond to the evidence provided by the BRFN Counsel and other Councillors to the Investigation Report” (italic added) and that SMR preferred their evidence over hers in the Investigation Report and that the Respondent Councillors then did so in their removal decision. This is a new argument not advanced in the Notice of Application.

[89] Again, the SMR Investigation Report is not the subject of this judicial review. However, I would observe here that the SMR Investigation Report is thorough, carefully weighs the evidence, takes a balanced approach in its analysis, and clearly sets out the basis for its factual findings and conclusions. SMR faced difficult time constraints, dealt with complex issues and a significant amount of evidence, yet its report is comprehensive. The fact that, in making its factual findings, SMR found other evidence more persuasive or compelling than that submitted by the Applicant does not demonstrate procedural unfairness by SMR. SMR was required to make findings of fact and did so, in part, by weighing the evidence before it. Moreover, as will be discussed further below, the Respondent Councillors were entitled to rely on SMR’s factual findings in determining what disciplinary action should be taken. Their doing so does not demonstrate a procedural defect that cannot be found in the record.

[90] To the extent that the Applicant is asserting that SMR’s investigation file should have been disclosed as part of the CTR, in my view, that is a discrete issue from the issue of whether the proposed Exhibits 3 and 4 are admissible by way of the Rule 312 motion. Further, and as the Respondent Councillors point out, this would also appear to be a new argument.

[91] This matter was case managed. The Respondent Council was required by the Case Management Judge, by order dated September 16, 2025, to file the CTR in the form of a list of records in the affidavits already served and filed as well as their reasons for objecting to including in the CTR certain materials sought by the Applicant in her Rule 317 request. That request was contained in the Notice of Application and sought:

1. Any material that was before the Respondents or that they considered or relied on in in purporting to authorize themselves to make decisions and govern the Nation without the involvement of knowledge of the Chief, and without consulting the members in accordance with the By-law;

2. Any material that was before the Respondents or that they considered or relied on in in purporting to seek the investigation of the Chief, including the December 8, 2023 BCR;

3. Any material that was before the Respondents or that they considered or relied on in in purporting to remove the Chief from office, including the September 14, 2024 BCR and the drafting of the September 17, 2024 “Reasons” for removal.

[92] Counsel for the Respondent Council provided the list and their reasons for objection by letter dated October 1, 2025. This stated that the materials that were before Council when it made its decision recorded in the Removal BCR were listed in Appendix A.

[93] In the October 1, 2025 letter, counsel for the Respondent Council took the position that the Notice of Application seeks judicial review of a single decision recorded in the Removal BCR and removing the Applicant from office. In that regard, the removal decision was the only relevant decision under review. Thus, in counsel’s view, the proper scope of the CTR for the application was all materials that were before Council when it made the removal decision which were not already in the possession of the Applicant (however, that the list of CTR documents in Appendix A included the documents before Council when it made its decision whether or not they were in the Applicant’s possession). The letter also set out the reasons for the Respondent Council’s objections to the first two categories for documents identified in the Applicant’s Rule 317 request.

[94] Rule 317(1) states that a party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party. Here, significantly, the Applicant’s Rule 317 request did not include a request for SMR file materials – either those submitted to SMR by the Respondents and their counsel or at all. Nor is there any evidence before me that, having received the October 1, 2025, letter and appended list of documents that were said to form the CTR and the Respondent Council’s objections (Rule 318) to the Rule 317 request, that the Applicant sought to expand her Rule 317 request or took any further action in that regard. When appearing before me, counsel for the Applicant confirmed that no steps to compel further production were taken. Therefore, in my view, it is not open to the Applicant to now raise a question of the adequacy of the document production of the CTR.

[95] Further, the By-law requires the investigation report to be provided to Council, it does not require the investigators underlying investigation materials to be provided. It does require the investigator “to be sensitive to the interest of all parties involved, and maintain confidentiality” (By-law paragraph 198(e)).

Delay

[96] In addition to the submission that her proposed new affidavit should be admissible because of the delay in providing the CTR, the Applicant submits that it should be admissible because counsel for the Respondent Councillors was ineffective in expediting this judicial review. She submits that the delay will compromise the Applicant’s ability to receive a timely hearing and meaningful remedies (i.e. reinstatement or certiorari before the next election).

[97] However, this judicial review was set down to be heard on an expedited basis with the intent to provide a decision prior to the next election dates set for January 12-13, 2026. Accordingly, the proposed new affidavit evidence is not relevant with respect to delay.

[98] In sum, for the reasons above, and viewing the proposed new affidavit in whole, I am not persuaded that meets the test for admissibility. The motion is therefore dismissed.

ii. Applicant’s identified preliminary issues

[99] The Applicant submits that there are three preliminary issues.

[100] First, to the extent evidence is in the power and control of the Respondents and could have corroborated or undermined the evidence before this Court, the Applicant asks for adverse inferences including: the payment of Mitha Law Group fees by BRFN and with respect to recordings of regular meetings and minutes of Implementation Agreement meetings [IA Meetings]. Second, that this Court should ignore inadmissible hearsay evidence, including emails between band members, and assumptions that the Applicant took documents. Third, Federal Court jurisprudence is clear that the grounds for judicial review are defined by the notice of application and the supporting affidavits. To the extent that the Respondents now argue that the reasonableness and procedural fairness (bias) issues are not before this Court, despite being canvassed in the supporting affidavits and cross-examinations, the Applicant stated in her written submissions that she seeks leave to file an amended notice of application as there is no prejudice to the Respondents.

[101] On the first point, the Respondent Councillors submit that there is no basis for an adverse inference. This is because the materials referenced – payment of Mitha Law Group fees and recordings of regular meetings and minutes of IA Meetings – were not before Council when it made its decision to remove the Applicant and, therefore, are inadmissible on judicial review unless the Applicant can establish an exception applies. Further, the Applicant does not explain the relevance of the documents.

[102] I agree with the Respondent Councillors. The Applicant has not fleshed out her request for adverse inferences. The Applicant does not explain how the payment by BRFN of Mitha Law Group’s fees could possibly corroborate or undermine unspecified evidence in the record before me, and, in any event, she has not established that the payment of Mitha Law Group’s fees is relevant to the removal decision.

[103] I note here in passing that email communications between Mr. Mitha and Mr. van Ert indicate that BRFN was prepared to consider paying the Applicant’s legal fees pertaining to the disciplinary proceeding. By email dated September 10, 2024, Mr. van Ert stated that he was happy to provide redacted copies of his bills. During cross-examination conducted on October 27, 2025, the Applicant was asked to undertake to advise whether her legal counsel had ever provided their legal bills, redacted or otherwise, for consideration by Council for payment. This undertaking is identified as under advisement, there is no evidence before me that the Applicant has responded to same.

[104] Similarly, the Applicant does not explain how recordings of unspecified regular Council meetings and minutes of IA Meetings are relevant to this matter, nor is it apparent from the CTR or otherwise that they were in the record before the Respondent Councillors when the removal decision was made. No adverse inferences shall be made.

[105] Later in her written submissions the Applicant also makes a request for adverse inferences against the Respondents for failing to disclose the transcript or recording of the September 13, 2024, meeting. In her affidavit she states that she has repeatedly asked, through her lawyer, for the recording of that meeting but the Respondent Councillors and their lawyer refused to provide it. The Gauthier affidavit states a copy of the recording was available at the offices of Mitha Law Group. The written submissions of the Respondent Councillors state that they provided a copy of the transcript and the recording to the Applicant and that they will provide a copy of the recording to the Court at the hearing if they are unable to file it electronically. When appearing before me, counsel for the Applicant acknowledged that she had received the recording and a transcript on October 28, 2025, although she has not listened to it in full. She did not seek to submit it as new evidence.

[106] No adverse inference shall be drawn.

[107] On this point, I note that during the hearing the parties confirmed that the recording of the September 13, 2024, meeting is available but has not been provided to the Court. The parties did not oppose it being provided. However, the recording is not included in the CTR, in any party’s affidavit evidence, and no party sought to have it admitted as new evidence. Therefore, it is not in the record before me. Accordingly, I have concluded that it would not be appropriate for me to accept and consider the recording. I do note that the minutes of the meeting are in the record.

[108] With respect to the Applicant’s submission that this Court should ignore inadmissible hearsay evidence, including emails between band members, and assumptions that the Applicant took documents, the Respondent Councillors submit that much of the Applicant’s evidence is inadmissible as it was not before Council when it made the decision to remove her from office and is, in part, argument rather than evidence. They ask the Court to disregard or strike that evidence.

[109] First, the Applicant again makes a broad statement but provides no specifics. For their part, the Respondent Councillors do not provide specific examples of the evidence they say is inadmissible.

[110] In short, I generally agree that affidavit evidence will be inadmissible if it does not comply with Rule 81 and if the subject evidence was not before the decision-makers (and does not fall within one of the recognized exceptions). However, in the absence of specifics and given the volume of evidence filed in this matter, my response to the submissions is equally general in nature, being that all inadmissible evidence will be afforded no weight.

[111] Finally, the Applicant’s third point speaks to the permissible scope of this judicial review. This point is also raised by the Respondents. This is addressed below.

iii. Scope of the judicial review

a. The decision under review

[112] The Respondent Councillors submit that the only decision under review in this judicial review is the Removal BCR. However, that the Applicant now appears to seek to review SMR’s investigation. The Notice of Application makes only fleeting reference to the SMR investigation and does not seek review of it or decisions, if any, made in it. Nor does the Notice of Application allege or plead material facts to support a claim that SMR’s investigation was procedurally unfair or did not follow the By-law because SMR did not provide the Applicant with an opportunity to be heard or that the Applicant did not have the opportunity to review SMR interview notes or statements.

[113] I agree with the Respondent Councillors that the sole decision under review is the removal decision made by the Respondent Councillors, not the SMR Investigation Report. The Notice of Application states that it is the Removal BCR that is being challenged and it contains no allegations challenging the SMR Investigation Report on any basis or asserting that it was in any way flawed.

[114] When appearing before me, counsel for the Applicant argued that the “whole process” has to be fair “from day one” and that what is at issue here is a continuing course of conduct. I note that this latter assertion is an entirely new one, not found in the Notice of Application or in the Applicant’s written submissions. The Applicant has made no arguments that Rule 302 has application in these circumstances. Nor has she sought an order under that Rule permitting her to challenge two or more decisions in a single application for judicial review where those decisions constitute continuing acts or a course of conduct. In any event, the SMR Investigation Report is not a decision of the Respondent Councillors.

[115] Further, the By-law is clear that the independent investigator – in this case SMR – must be focused on finding the facts and evidence. The role of Council, upon receiving an investigator’s report that concludes that the evidence shows it is more likely than not that grounds for disciplinary action exist under section 184, is to make one or more of the orders listed in paragraphs 198 (1)(a)-(e). In this case, the Respondent Councillors made the decision to remove the Applicant from office. That is the decision under review before me.

[116] The By-law makes no provision for a councillor or chief who is subject to an independent investigation to challenge or appeal the factual findings and conclusions of the independent investigator. Whether or not it was open to the Applicant to challenge, in some forum, the SMR Investigation Report on the basis that it was conducted in a procedurally unfair manner or was unreasonable, there is no evidence before me that she attempted to do so.

[117] Indeed, in her September 10, 2024, written statement she acknowledged that, as SMR had made its report, the By-law required Council to “decide on discipline based on the findings made, and not made, by the investigator, and considering the factors set out in section 199.” In her September 13, 2024 statement, she stated that she agreed with some SMR findings, but not others. She identified only one finding that she disagreed with (the finding that the June 9, 2023 BCR was validly passed). She also stated that she did not understand how her opinion about specific findings of SMR were relevant at that stage “especially regarding any legal determinations that SMR reached” although, depending on the disciplinary decision reached by the Responding Councillors, that she might bring the matter forward for judicial review. In her August 30, 2024 statement, the Applicant described the SMR report as “long and thorough.” The Applicant did not raise any concerns about the manner in which the SMR investigation was conducted prior to or at the disciplinary hearing and accepted the respective roles of the investigator and Council in the disciplinary process set out in the By-law. While she disagreed with one finding, she did not identify any factual errors or unreasonable conclusions or assert that the process had been procedurally unfair.

[118] I find that the only decision under review is the removal decision made by the Respondent Councillors.

b. Grounds of review properly raised

[119] In her written submissions, the Applicant submits that the jurisprudence of this Court supports that the grounds for judicial review are defined by the notice of application and the supporting affidavits. She submits that issues of jurisdiction, procedural fairness and a failure to provide reasons were raised in her Notice of Application. Further, that she “elaborated” on those grounds through supporting affidavits. Specifically, by providing evidence of conflicts of interest raised at the discipline meeting and by outlining issues of the reasonableness of the removal as a disciplinary measure. She submits that the Respondents responded to this evidence and that affiants have been cross-examined on these points. She later states that should the Respondents maintain their objection to the raising of the conflict issue (made during cross-examination) then she would seek leave to file a motion to amend to add this more particularized procedural fairness ground.

[120] The Respondent Councillors submit that the Applicant’s written submissions, as found in her memorandum of fact and law, invite the Court to exceed the proper boundaries of its role on judicial review. When the Respondent Councillors received the Applicant’s memorandum and learned of her intention to make new arguments and seek review of new grounds of procedural fairness, including bias and institutional bias, and grounds for review such as conflict of interest and fettering of discretion, the Court had already scheduled the hearing dates on an expedited basis and the parties had long before served their affidavits.

[121] The Respondent Councillors submit that the scope of the judicial review application is limited for a combination of reasons.

[122] First, this Court will generally not hear arguments on judicial review that were not made to the administrative decision-maker. In particular, the Court cannot assess the reasonableness of a decision based on arguments (citing Re: Sound v Pandora Media, LLC, 2025 FCA 201 at para 4, citing, among other authorities, Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 22-23; Turner v Canada (Attorney General), 2025 FC 72 at paras 62-64), or evidence (citing Bellegarde v Carry the Kettle First Nation, 2024 FC 699 [Bellegarde] at para 155) that ought to have been but were not brought before the decision-maker. Even if portions of the record were before the decision-maker, if the applicant did not clearly link specific portions of the record to a live issue during the proceedings, then the decision-maker would not have had the opportunity to assess that evidence properly (citing Efamehule v Canada (Citizenship and Immigration), 2025 FC 1026 at para 44).

[123] Second, issues of procedural fairness must be raised at the first opportunity. Applicants cannot raise an issue of procedural fairness for the first time on judicial review that could have been raised, and addressed, before the decision under review (citing Bastien v Jackson, 2022 FC 591 at para 50, appeal dismissed as moot 2025 FCA 32). By failing to raise the issues of procedural fairness at the September 13, 2024 discipline meeting, including grounds of institutional bias and bias, the Applicant denied the Council the opportunity to respond or to consider amending their procedure.

[124] Third, a party cannot advance an argument that was not raised in its notice of application as a ground for judicial review. Rule 301 requires a precise statement of the relief sought and a complete and concise statement of the grounds intended to be argued (citing Roman v Canada (Attorney General), 2025 FC 1127 at paras 28-29).

[125] The Respondent Councillors also point out that the Applicant has not filed a motion seeking leave to file an amended application. In their written submissions the Respondent Councillors indicated that if the Court permits the Applicant to amend her application to pursue new grounds of review, then they would seek an adjournment.

[126] I would first note that there has been no Rule 75 motion brought before me by the Applicant seeking leave to amend her Notice of Application, although she was on notice of the Respondent Councillors’ concerns about the new grounds being raised in her memorandum.

[127] Second, that Rule 301(e) states that an application shall be commenced by a notice of application in Form 301 and setting out “a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.”

[128] The Federal Court of Appeal explained the requirements for a notice of application and the role of the affidavits in JP Morgan Asset Management (Canada) Inc v Minister of National Revenue, 2013 FCA 250 [JP Morgan]:

[38] In a notice of application for judicial review, an applicant must set out a "precise" statement of the relief sought and a "complete" and "concise" statement of the grounds intended to be argued: Federal Courts Rules, SOR/98-106, Rules 301(d) and (e).

[39] A "complete" statement of grounds means all the legal bases and material facts that, if taken as true, will support granting the relief sought.

[40] A "concise" statement of grounds must include the material facts necessary to show that the Court can and should grant the relief sought. It does not include the evidence by which those facts are to be proved.

[41] The evidence is supplied in the parties' affidavits at a later stage in the proceedings: Rules 306 and 307, subject to restrictions in the case law (see, e.g., Assn. of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22, 428 N.R. 297 (F.C.A.)).

[129] The Court of Appeal in JP Morgan also discussed the grounds to be stated in a notice of application:

[42] While the grounds in a notice of application for judicial review are supposed to be “concise,” they should not be bald. Applicants who have some evidence to support a ground can state the ground with some particularity. Applicants without any evidence, who are just fishing for something, cannot.

[43] Thus, for example, it is not enough to say that an administrative decision-maker “abused her discretion.” The applicant must go further and say what the discretion was and how it was abused. For example, the applicant should plead that “the decision-maker fettered her discretion by blindly following the administrative policy on reconsiderations rather than considering all the circumstances, as section Y of statute X requires her to do.”

[44] The statement of grounds in a notice of application for judicial review is not a list of categories of evidence the applicant hopes to find during the evidentiary stages of the application. Before a party can state a ground, the party must have some evidence to support it.

[130] However, the Applicant submits that the grounds for judicial review are defined by the notice of application and the supporting affidavits, citing Testawich v Duncan’s First Nation Chief and Council, 2014 FC 1052 [Testawich] which states that Rule 301(e) requires that a notice of application set out “a complete and concise statement of the grounds intended to be argued” and that applicants “are not permitted to raise grounds of review which were not disclosed in the notice of application or the supporting affidavits.” Further, that a notice of application is not a pleading and is not to be viewed with the same rigour as a statement of claim (at para 18; also Metis National Council of Women v Canada (Attorney General), 2005 FC 230 [Metis National] at para 45). I note that neither Testawich nor Metis National provide any analysis with respect to the statements that the court will only deal with grounds of review invoked by the applicant in the originating notice of application and in the supporting affidavits.

[131] In JP Morgan, with respect to new grounds being raised by affidavit evidence, the Federal Court of Appeal considered the general rule that affidavits are not admissible in support of motions to strike. In that context, that Court of Appeal held that the starting point is that the facts alleged in the notice of application are taken to be true, thereby obviating the need, in that circumstance, for an affidavit supplying facts. Further, that “an applicant must state ‘complete’ grounds in its notice of application. Both the Court and opposing parties are entitled to assume that the notice of application includes everything substantial that is required to grant the relief sought. An affidavit cannot be admitted to supplement or buttress the notice of application” (JP Morgan at para 52).

[132] Vachon v Canada (Attorney General), 2024 FC 709 [Vachon] considered motions to strike or to amend a notice of application. When addressing the general principles applicable to striking a notice of application and this Court’s jurisdiction to do so, Justice McHaffie held that “the notice of application must set out ‘a complete and concise statement of the grounds intended to be argued,’ and the applicant may not supplement or buttress it by making new allegations in an affidavit (or in written representations): JP Morgan at paras 38–45, 52; Federal Courts Rules, Rule 301(e)” (Vachon at para 28).

[133] With respect to an appeal of a decision refusing to allow amendment of a notice of application, in Farah v Canada (Foreign Affairs), 2025 FC 679 Justice McHaffie held:

[17] Rules 301(d) and (e) of the Federal Courts Rules require that a notice of application set out, respectively, “a precise statement of the relief sought” and “a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.” The Court of Appeal has described the requirement of a “complete and concise” statement of grounds to mean that the notice of application must contain all the legal bases and material facts that, if taken as true, will support granting the relief sought, and all the material facts necessary to show that the Court can and should grant the relief sought, but not the evidence by which those facts are to be proved: JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), 2013 FCA 250 at paras 38–39. While the grounds in a notice of application are to be concise, they must not be bald. In other words, they must go beyond stating a conclusion of law to say how that conclusion is to be reached: JP Morgan at paras 42–43.

[18] As the Court of Appeal has emphasized, Rule 301 is mandatory and its requirements are not merely technical; they ensure among other things that respondents have adequate notice of the case being brought against them so they can meaningfully respond: Canada (Attorney General) v Iris Technologies Inc, 2021 FCA 244 at paras 38, 41; Chad v Canada (National Revenue), 2023 FC 1481 at para 35. A notice of application that fails to provide an adequate complete and concise statement of the grounds intended to be argued is liable to be struck as failing to comply with Rule 301 and/or failing to disclose a reasonable cause of action: JP Morgan at paras 38–48; Nicolas v Canada (Attorney General), 2022 FC 439 at paras 14–17, 21–22, 32; Chad at paras 10–13, 34–35. As a corollary, an amendment that does not satisfy the requirements of Rule 301 should not be permitted, as it fails to meet the threshold issue of yielding a sustainable pleading and/or is not in the interests of justice: Vachon Estate v Canada (Attorney General), 2024 FC 709 at para 9; McCain at para 23.

[19] Rule 302 provides that unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. An amendment that would result in a notice of application that violates Rule 302 should not be permitted, unless the Court concludes that an order otherwise is appropriate in the circumstances: Truehope Nutritional Support Ltd v Canada (Attorney General), 2004 FC 658 at paras 4–9, 18–19; Servier Canada Inc v Canada (Health), 2007 FC 196 at paras 1, 11–20. I will address the principles applicable under Rule 302 further below.

….

[38] The difficulty with the applicants’ argument is that it effectively asks the Court, and ultimately the respondents who are required to respond to the application, to attempt to decipher what the applicants’ alleged section 15 claim is, rather than setting it out in the notice of application. A respondent must be able to understand and rely on the grounds for the application as set out in the notice of application. It is not open to an applicant to set out a bald allegation of Charter infringement and then try to better explain their case in further written submissions. As with particulars and affidavits, an applicant cannot rely on written submissions on an amendment motion to supplement or buttress an inadequate notice of application: Mancuso at para 20; JP Morgan at para 52; Brink at para 58.

[134] In Canada (Attorney General) v Iris Technologies Inc, 2021 FCA 244 the Federal Court of Appeal addressed the interplay between Rules 301 and 317:

[36] This appeal thus turns on the relationship between rule 317 and rule 301. That relationship can be expressed in three propositions. First, a party may use rule 317 to obtain production only of material that is relevant to an application, in that it may affect the Court’s decision on the application. Second, by rule 301, the Court’s decision on an application for judicial review will be limited to the grounds of review and the relief set out in the notice of application. And third, production under rule 317 is therefore not available in relation to grounds and relief the notice of application fails, contrary to rule 301, to set out.

…

[38] The second proposition is also well established. Subject to limited exceptions, rule 301 is a mandatory provision.

[39] In Pathak, for example, this Court went on to state that

[a]s the decision of the Court will deal only with the grounds of review invoked by the respondent [in that case the party seeking judicial review], the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.

(The reference to “the affidavit filed by the respondent” is an artifact of the former Federal Court Rules, C.R.C., c. 663. Under the former rules 1602 and 1603, an application for judicial review was commenced by serving and filing an originating notice of motion, together with “one or more affidavits verifying the facts relied on by the applicant.” Under the current rules, the application is commenced by a notice of application, and by rule 306, the applicant’s supporting affidavits are to be served within 30 days of the issuance of the notice of application.)

[40] Other decisions of this Court since Pathak limiting judicial review to the grounds of review and the relief set out in the notice of application include SC Prodal 94 SRL v. Spirits International B.V., 2009 FCA 88 at paras. 11-12; Republic of Cyprus (Commerce and Industry) v. International Cheese Council of Canada, 2011 FCA 201 at paras. 12-13, leave to appeal refused 34430 (April 12, 2012), citing with approval Astrazeneca AB v. Apotex Inc., 2006 FC 7, affirmed 2007 FCA 327; Apotex Inc. v. Canada (Health), 2019 FCA 97 at paras. 7-9; and Makivik Corporation v. Canada (Attorney General), 2021 FCA 184 at para. 53.

[41] As this Court has recognized, the requirements of rule 301 are not merely technical; they ensure among other things that respondents have adequate notice of the case being brought against them so that they can meaningfully respond. … If an applicant finds its initial description of the grounds and relief claimed in the notice of application too narrow, it may move for leave to amend under rule 75: SC Prodal at para. 15; Astrazeneca at para. 19. In these scenarios, rule 317 will apply in respect of any non-mandamus claim that challenges an administrative decision.

[42] It has been stated in decisions of the Federal Court that “there is some room for discretion [in applying the requirements of rule 301] where, for example, relevant matters have arisen after the notice was filed; the new issues have some merit, are related to those set out in the notice, and are supported by the evidentiary record; the respondent would not be prejudiced, and no undue delay would result”: see, for instance, Tl 'azt'en Nation v. Sam, 2013 FC 226 at paras. 6-7. But this Court has resisted expanding the availability of an exception beyond cases in which the notice of application contains a “basket clause,” and the applicant seeks declaratory relief that is necessarily ancillary to the relief expressly requested: SC Prodal at paras. 11-12.

(emphasis added)

[135] What I take from these cases is that Rule 301 is mandatory and its requirements are not merely technical; a notice of application must clearly and concisely set out every ground that an applicant intends to rely upon, and must identify all the legal bases and supporting material facts that, if proven, would demonstrate that the relief sought can and should be granted. While the matter before me does not involve a notice to strike, the jurisprudence on that issue serves to demonstrate the importance of a notice of application being able to stand on its own – without the need for affidavit evidence to shore up baldly stated (or unstated) grounds of review. Additional grounds raised in a supporting affidavit or in written submissions are generally not properly in issue.

[136] In this matter the Notice of Application filed by the Applicant states that:

This is an application for judicial review of a band council resolution passed by four councillors (the "Group of Four") of the Council of Blueberry River First Nations ('"'BRFN") on September 13, 2024, made effective September 17, 2024, purporting to remove Chief Judy Desjarlais ("Chief Desjarlais") from office (the "Removal BCR"). This removal was taken without regard to the requirements of the Blueberry River Custom Election By-law, 2017 (the "By-Laws") and in breach of the requirements of procedural fairness, making the Removal BCR void ab initio and requiring that it be quashed.

(emphasis in original)

[137] The Applicant seeks a declaration that the Removal BCR is void ab initio and of no force and effect; a declaration that the process leading to, and the passage of, the Removal BCR failed to comply with the requirements of the By-law and related principles of procedural fairness; an Order in the nature of certiorari quashing the Removal BCR; costs of the application on a substantial indemnity basis given that it raises important community questions of BRFN governance; an Order expediting the hearing of the Application; and, such other relief as counsel may advise and the Court deems just.

[138] The grounds for the application include, under the heading “Flawed actions taken by the Group of Four” that the Section 187 Report was not immediately provided to the Applicant as required by paragraph 190(a) of the By-law; that the Respondent Councillors “in secret” passed the Removal BCR at an in camera meeting that the Applicant was not permitted to attend; and, the Respondent Councillors did not personally notify the Applicant or provide her with the Removal BCR and accompanying reasons.

[139] Under the heading “The Group of Four’s actions failed to comply with the By-Laws and breached principles of fairness” the grounds are identified as: that the Section 187 Report omitted the names of witnesses and did not include all supporting documents. Section 192 of the By-law states that the Councillor who is subject to a section 187 report must provide his or her perspective on the allegation or eligibility requirements at the next duly convened Council meeting following the distribution of the report but this did not happen. The Section 187 Report was not addressed in a properly constituted and administered open Council meeting with proper and due notice to the Chief who was therefore not provided with a full and fair opportunity to respond in an appropriate open forum. The Removal BCR and Section 187 Report fail to demonstrate that they considered the factors required by section 195 of the By-law. The June 5, 2024 BCR appointing SMR as investigator did not comply with section 196 of the By-law as it was not on a meeting agenda and was passed “without proper discussion.” The disciplinary options set out in section 199 of the By-law were not duly considered and no reasons were given why none of the lesser actions would not be sufficient in the circumstances which was a failure to give sufficient reasons and also a breach of procedural fairness. The September 13, 2024 meeting was held in camera for reasons that do not fall within section 162 of the By-law; and, the Applicant was not provided with the Removal Order contrary to section 201 of the By-law.

[140] Considering the Notice of Application and the jurisprudence, my findings on the scope of the judicial review are as follows:

Reasonableness

[141] While the Applicant did not explicitly state in the Notice of Application that the removal decision was unreasonable, in effect, many of the grounds asserting that the Respondent Councillors failed to comply with the requirements of the By-law are an assertion that the Respondent Councillors decision was unreasonable (although framed by the Applicant in her written submissions as an issue of jurisdiction). This would appear to be acknowledged by the Respondent Councillors as, in their memorandum, they identify the grounds for review as including whether: “the Decision was reasonable; [and] Council’s interpretation of the By-law that it could hold the Removal Meeting in camera was reasonable.”

[142] Accordingly, the reasonableness of the removal decision itself (as opposed to the reasonableness of other decisions which are not the subject of this judicial review) is not a new issue and falls within the scope of this judicial review.

[143] The Applicant also alleges in her written submissions that the Respondent Councillors unreasonably fettered their discretion. This was not included in her Notice of Application and is therefore not within the scope of this judicial review.

[144] Further, the Applicant raises some provisions of the By-law in her written submissions that are not identified in the Notice of Application. I will address these in the analysis below.

Procedural Fairness

[145] In her Notice of Application, the Applicant’s allegations of procedural unfairness are stated as generalities and are all tied to her allegation that there was non-compliance with specified provisions of the By-law. The Notice of Application does not specifically raise conflict of interest, bias or institutional bias as grounds for review. Yet these submissions are the focus of the procedural fairness arguments made in her memorandum of fact and law.

[146] In my view, the general mention of procedural fairness is not sufficient to meet the requirements of Rule 301. Accordingly, the issues of bias and institutional bias are not grounds for review that are properly before this Court. While the Applicant alleges that there was notice of the conflict and bias issues throughout the discipline meeting and in both parties supporting affidavits, putting aside that affidavit evidence will not serve to provide a ground of review, she provides no specific reference to bias being raised before the decision-maker in her supporting affidavits.

[147] The issue of bias was not raised in the Notice of Application. However, the issue of pre-determination (closed mind) was raised by the Applicant in her September 10, 2024, statement where she alleged “and yet it seems clear that the four Councilors are determined to remove me. The section 187 report that started this whole process explicitly states that I should be removed – before any of the allegations and evidence had been considered by the investigator. The Councillors decided long ago to remove me, no matter what the investigation might find.” This allegation was addressed by the Respondent Councillors in the Reasons. While that issue is not properly before me as a ground of review, I will address it below.

[148] Similarly, the issue of conflict of interest was also not raised in the Notice of Application. Conflict of interest was raised by the Applicant at the September 13, 2024 discipline meeting as reflected by the meeting minutes and the Reasons. This topic is also addressed in the Applicant’s affidavit and in the responding affidavit of Councillor Gauthier and was canvassed on cross-examination. While it is not properly before me as a ground of review, the issue of procedural fairness was raised before the decision-maker and there is evidence before this Court concerning it. I will therefore address below.

[149] First, however, there is a dispute between the parties as to the nature of any conflict of interest raised by the Applicant in the disciplinary proceeding.

[150] The Applicant did raise conflict of interest in her affidavit, asserting that at the September 13, 2024, discipline meeting she started to speak but was interrupted by Councillor Dominic who declared that the Applicant had a conflict and, therefore, Councillor Dominic had to chair the meeting. The Applicant deposes that she was speaking to raise a conflict of interest with the Responding Councillors “because they were the ones that were conspiring to have me removed and I wanted a neutral party to chair the meeting.” She states that she also proposed that a community vote should have been held (about her removal) in accordance with section 155 of the By-law (which states that where all members of Council are in conflict of interest with regard to a decision that must be made, it must be referred to a community vote). She does not identify what that she considered that conflict to be.

[151] In her affidavit, Councillor Gauthier states that the Applicant did not say at the meeting that the Respondent Councillors were “conspiring to have her removed and [she] wanted a neutral party to chair the meeting.” She did, however, allege that the Respondent Councillors were in a conflict of interest because some of their family members were allegedly benefiting from the Petronas Permits. The Applicant also referred to wanting BRFN members to be involved, however, not because of any conflict of interest of the Respondent Councillors. Councillor Gauthier added “[i]n response to paragraph 198 of the Applicant’s Affidavit, the Applicant did not identify any conflict of interest that had any realistic basis.”

[152] The Applicant’s written statements to Council dated September 10, 2024 and September 13, 2024 do not mention conflict of interest. However, the minutes of the September 13, 2024, discipline meeting state that the Applicant made comments at the meeting, which included that “[t]here are conflicts of interest concerning counsellor [sic] Yahey which need to be raised.”

[153] The Reasons also provide a summary of the September 13, 2024, meeting and, with respect to conflicts, state:

77. In her oral statement, the Chief first raised that she considered that there were many conflicts and that this entire process was an attempt by Mr. Wayne Yahey to step in as Chief and stated that Shelley Gauthier's daughter was going to become a Councillor. These allegations are entirely based on rumors and are not true.

78. She made these statements as a suggestion that Council was acting in bad faith and that she did nothing wrong. She wrongly suggests that the entire matter is a conspiracy. This ignores that independent investigators have found that she breached her oath of office and acted contrary to the Bylaws.

79. The Chief set out various names of persons she considered to be in a conflict. Her legal counsel then provided a document which sets out the various persons she considers to be in a conflict. She did not explain why she considered these persons to be in a conflict. We attach as Appendix 2 the documents her legal counsel provided as those persons the Chief says are in a conflict.

[154] Appendix 2 is a list entitled “BRFN Suppliers Used by PETROAS Canada on Town East Projects.” It is a list of BRFN suppliers and BRFN subcontractors used by Petronas on Town East Projects. These are mostly corporate entities. One subcontractor is identified as G. Yahey Contracting and Yahey Brothers Ent. LTD. However, the Appendix makes no link between those entities and the Respondent Councillors, nor does it identify any specific conflict of interest.

[155] During cross-examination of Councillor Gauthier, she acknowledged that at the September 13, 2024 meeting the Applicant raised a conflict pertaining to Councillor Gauthier’s common law partner, Cloud Apsassin, concerning Petronas work and Councillor Gauthier stated that he did not get contracts or work from Petronas. Counsel for the Respondent Councillors objected to the questioning on conflict of interest and stated “[n]owhere in the notice of application, other than using the words generally ‘procedural fairness’, has the applicant raised specifically the issue that there is -- that there's been a conflict of interest and that constitutes somehow a ground upon which the decision should be overturned.” He added that he did not think the questioning was admissible because he did not believe that there was a basis for it in the application.

[156] During cross-examination of both Councillor Gauthier and Councillor Dominic, counsel for the Applicant asked if the Respondent Councillors had considered whether it would be a conflict for them to consider their own complaints and an investigation into their own complaints to which they were “witnesses.” Councillor Gauthier responded that there was no conflict. Councillor Dominic asked why she would be in conflict when the investigation was not about her, that she did not believe that she was in a conflict and that she did not recall that the Applicant raised this at that meeting.

[157] However, in her written submissions the Applicant asserts that at the September 13, 2024 meeting she “expressed the conflict of interest of the [Respondent Councillors] in their possible financial benefit and alleged that they had already made up their mind”; that they could not make a proper assessment to determine if an investigation was necessary and could not do so “as they were all in a conflict tof [sic] interest being the complainants.” Similarly, in oral submissions, the focus of the Applicant’s submission was that the Respondent Councillors were all in a conflict because they were both the complainants and also the decision-makers.

[158] In my view, the evidence establishes that the conflicts raised by the Applicant at the September 13, 2024, meeting were conflicts of interest concerning Councillor Yahey and an allegation of conflict directed to Councillor Gauthier’s common-law partner and others said to arise from them benefitting from the Petronas Permits the Applicant caused to be approved without authority. Both of these issues were addressed in the Reasons. The cross-examination of Councillor Gauthier and Councillor Dominic indicates that it was suggested to them by counsel for the Applicant that there may have been a conflict because of their dual roles as complainants and decision-makers. However, both confirmed that this had not been raised by the Applicant. This is supported by the minutes and the Reasons, both made contemporaneously with the removal decision, which identify the two above described conflicts but make no mention of the allegation that the Applicant raises for the first time in her written submissions – being a conflict because their dual roles as complainant and decision-maker.

[159] Therefore, I find that this alleged conflict of interest pertaining to the dual role of the Councillors as “complainants” or “witnesses” and also as the decision-makers is not properly before me on judicial review. Although not raised in the Notice of Application and therefore not properly before me, as I stated above, because it was raised before the decision-maker and there is evidence before this Court concerning it, I will address the conflicts of interest that were raised at the September 13, 2024 meeting below.

[160 ] In sum, the issue of bias, institutional bias and conflict of interest as it pertains to the dual role of the Respondent Councillors are not properly before me. As noted above, the references to procedural fairness in the Notice of Application are generalized and are related to the allegations of non-conformity with specified sections of the By-law.

Issues on the Merits

[161] The Applicant submits that there are three determinative reasons why the removal decision should be quashed.

[162] First, that the Respondent Councillors failed to comply with the removal process set out in the By-law and, therefore, exceeded their jurisdiction. Second, that the removal process failed to comply with the principles of natural justice. Third, that the Respondent Councillors unreasonably accepted the SMR Investigation Report and, in making their decision, unreasonably applied the most severe sanction. I will address these below in terms of reasonableness and procedural fairness.

The Removal Decision Was Reasonable

i. Failure to comply with the By-law removal process

[163] The Applicant submits that several critical steps in the removal process were not complied with or ignored and that the cumulative effect of this is that her removal was made without authority under the By-law. The Applicant then lists the sections of the By-law that she says were not complied with. In my view, this argument is really a question of whether the removal decision was reasonable. The Applicant bears the onus of establishing the removal decision was unreasonable (Vavilov at paras 100, 291; Bellegarde at para 28).

a. Section 190(a) – Where a Council member or the chief operating officer receives a written report under section 187 or 188 (a) they must immediately provide a copy of that report to every Council member and to the chief operating officer, as applicable.

[164] This allegation is raised in the Notice of Application, being that the “s. 187 report had not been ‘immediately’ provided in November 2023 to Chief Desjarlais as required by By-law section 190(a),” without further particulars.

[165] Referring to her affidavit evidence, the Applicant submits that the Section 187 Report was not provided to her “immediately” as required under paragraph 190(a). She deposes that it was not emailed to her until December 3, 2023, and only after it was posted to the band website and other social media platforms. She claims that she first learned of the Section 187 Report from a band member, not from Council.

[166] The Gauthier affidavit states that the Section 187 Report was not submitted to Council on November 21, 2023. Although there had been a Council meeting scheduled for that date, the meeting was cancelled. The Gauthier affidavit points to the December 8, 2023, BCR entitled “Investigation of the Section 187 Report.” The recitals therein indicate that the Section 187 Report was received by all Council members and the Chief on December 3, 2023, and was distributed on that date in accordance with section 190 of the By-law.

[167] There is no evidence that any action was taken with respect to the Section 187 Report until December 3, 2023. While the Applicant deposes that she did not receive the report on November 21, 2023, and “other than hearing comments about the report from BRFN members” she was unaware of its content at that time, she does not identify who these BRFN members were nor is there any evidence before me that the Section 187 Report was distributed prior to December 3, 2023.

[168] The Dominic affidavit states that Councillor Dominic took the notice of the December 8, 2023, meeting and the Section 187 Report to the BRFN office and also to the BRFN store on the BRFN reserve – which are the only public buildings on the reserve – to be posted and that the notice was also posted on the BRFN website.

[169] I note that the Applicant’s affidavit states that on the morning of December 3, 2023, the Section 187 Report was published over various social media platforms (she does not say what platforms or by whom) and on BRFN’s website. Also on December 3, 2023, the Respondent Councillors circulated by email and posted on social media a “Notice to all Blueberry Band Members of Council Meeting dated December 8, 2023,” advising of the Section 187 Report and attaching a copy of the same. This notice and the report are found as an exhibit to the Applicant’s affidavit. She also states that she saw the notice posted in the main building office, but was unsure if it was posted at all public buildings. The Applicant also deposes that at around 5:20 pm on that same date she received an email from Councillor Wolf attaching the Section 187 Report. That email is also found as an exhibit to the Applicant’s affidavit.

[170] Further, on cross-examination she confirmed that she had received the Section 187 Report from Councillor Wolf, that she had seen it on the BRFN website and that it was posted at various places on the reserve. She confirmed that she had received and was aware of the Section 187 Report.

[171] In this case, the Respondent Councillors generated the Section 187 Report and, in that sense, were in receipt of it prior to December 3, 2023. However, I am satisfied that when the decision was made by the Respondent Councillors to act on the Section 187 Report, by way of the December 8, 2023, meeting, the Applicant was immediately provided with a copy of the same. There was compliance with paragraph 190(a) of the By-law.

[172] When appearing before me counsel for the Applicant acknowledged that notice of the December 8, 2023 meeting had been given but submitted that her point was that there was no evidence that the Applicant had received it. This is not what the Applicant argued in her written submissions (nor does it reflect her cross-examination testimony). Rather, her argument was with respect to the immediacy of the notice. In any event, based on the evidence above, including the Applicant’s own evidence, I am satisfied that the Applicant did receive notice of the meeting.

b. Section 190(b) – the chief operating officer must immediately after receiving the report: (i) add a review of that report to the agenda for the next Council meeting.

[173] The Notice of Application refers to section 190 of the By-law and asserts that its provisions were either not complied with or that the Applicant has not been provided with evidence of compliance.

[174] In her written submissions, the Applicant submits that the Section 187 Report was not added to the agenda for the next Council meeting. She asserts that the December 8, 2023, meeting was not duly convened and that none of her “witnesses” recalled seeing the notice of the meeting.

[175] However, the Applicant’s own affidavit confirms that the Section 187 Report “was on the agenda” for the December 8, 2023 meeting. In that regard, she deposes that on the morning of December 8, 2023, Councillor Dominic emailed Chief and Counsel noting that the agenda (circulated by the Applicant) had not included the Section 187 Report which was to be added to the agenda as part of the By-law removal process. The Applicant responded stating that “[i]t’s on there and I also added it as an attachment.”

[176] Additionally, as discussed above, notice of the December 8, 2023, was given to BRFN members including the Applicant.

[177] The December 8, 2023 BCR is signed by the Respondent Councillors and is found as an exhibit to the Applicant’s affidavit. The Respondent Councillors comprised a quorum of Council, which the By-law defines as meaning a majority of the whole Council.

[178] In her memorandum, the Applicant does not state why, in her view, the December 8, 2023 meeting was not duly convened.

[179] Nor does the By-law define what a “duly convened” Council meeting is However, jurisprudence suggests that a council meeting will be duly if the meeting is called at the request of a majority of Councillors; advanced notice is given of the meeting; and, the meeting is attended by a quorum of Council (Qualicum First Nation v Recalma-Clutesi, 2006 FC 854 at para 38; Martselos v Salt River First Nation 195, 2008 FC 8 at paras 22-23 aff’d 2008 FCA 221; and, Peguis First Nation v Bear, 2017 FC 179 at para 47).

[180] Applying this definition, the December 8, 2023, meeting was duly convened. The notice of the meeting states that it was sent by Councillors Wolf, Gauthier, Dominic and Yahey. This represents a majority of Councillors. There was also a quorum of Council at the meeting. And, as discussed above, notice of the meeting was given on December 3, 2023.

[181] The Applicant has not established that there was non-compliance with paragraph 190(b) of the By-law.

c. Section 192(d) – At the next duly convened Council meeting following the distribution of a report under section 190: (d) where the report relates to any other allegation or to a Council member's eligibility to hold office, the Council member who is the subject of the report must: (i) provide his or her perspective on the allegation or eligibility criteria.

[182] The Notice of Application states that section 192 of the By-law requires that a Councillor who is subject to a section 187 report must provide his or her perspective on the allegation of eligibility criteria and that this must occur at the next duly convened Council meeting following the distribution of the report under section 190 but that “[t]his did not occur.”

[183] In her written submissions the Applicant also submits that she was not provided with an opportunity to provide her perspective on the Section 187 Report at the next duly convened meeting.

[184] However, the Applicant’s affidavit states that at the December 8, 2023 meeting she made statements about how the Respondent Councillors were not following proper procedure under the By-law; that she was worried that her procedural fairness rights were at risk; she denied breaching her oath as Chief or her obligations under the By-law; asserted that the Respondent Councillors were taking out personal disagreements by trying to open an investigation and stressed the importance of having an independent investigator which was not Mitha Law Group. I also note that the December 8, 2023, BCR recital states that the Section 187 Report was reviewed at that meeting and that the Chief was provided with an opportunity to provide her perspective on the allegations contained in the Section 187 Report.

[185] The record also contains a recording of that meeting. This indicates that, following some general discussion, the meeting moved to considering the Section 187 Report. Councillor Dominic began the discussion and states that Chief Desjarlais would now have the opportunity to provide her response to the report. The Applicant then provided her response to the report, including what appears to be prepared remarks. Subsequently, Councillor Dominic read the proposed BCR, the Councillors stated their positions and voted (Councillor Chipesia abstained because she had not read the report). Councillor Dominic then stated it has passed.

[186] The evidence before me does not support that the Applicant was not provided with an opportunity to give her perspective on the Section 187 Report allegations.

[187] The Applicant has not established that there has been non-compliance with paragraph 192(d) of the By-law.

d. Section 194 – Where a Council member admits in part to, or denies, an allegation in a report, Council must (a) consider the report; (b) determine whether to initiate an investigation into the allegation, taking into consideration whether an investigation is required in the best interests of Blueberry River; and (c) make a decision by Council resolution on whether to initiate an investigation into the allegation.

[188] The Notice of Application does not raise a failure to comply with section 194 of the By-law. Accordingly, it is not properly before me.

[189] I would observe, however, that in her written submissions, the Applicant submits that the Respondent Councillors did not make a proper assessment to determine whether an investigation was necessary. Further, that they could not do so as they were all in a conflict of interest being the complainants and also having excluded Councillor Chipesia, who the Applicant alleges was not in a conflict of interest. The Applicant does not elaborate on the allegation of a failure to make a proper assessment and, therefore, it cannot succeed. Further, the December 8, 2023 BCR states that “WHEREAS in accordance with sections 194 and 195 of the Bylaw, Council has considered the report and determined that it is in the best interests of Blueberry River to initiate an investigation into the allegations in the Report.” As to the alleged conflict because the Respondent Councillors are also the complainants, as discussed above, this issue is not properly before me.

[190] Even if I am wrong in that conclusion, paragraph 187(a) of the By-law specifically states that a Council member must make a written report to the Council directly if they have reason to believe that another Council member has participated in conduct that is subject to disciplinary action as set out in section 184. Thus, the procedure adopted by the BRFN members by way of the By-law contemplates the circumstance where a councillor would make a complaint and does not provide, in that circumstance, that the councillor cannot participate in the section 194 assessment.

[191] In this instance, all of the Respondent Councillors became aware at the same time and in the same circumstances that the Applicant had acted without their knowledge and approval in granting the exemptions and waivers to the Petronas Permits and in purporting to fire Ratcliff. Thus, they collectively caused the Section 187 Report to be generated. I am not persuaded that this was a secret and nefarious endeavour as the Applicant suggests. The Applicant’s actions impacted the interests of BRFN members in whole, not just the Respondent Councillors. This was not a personal dispute. While the Applicant makes every effort to frame her removal as a “conspiracy” and a “takeover” and, in her written submissions ignores or misstates the SMR Investigation Report findings, the reality is that the Respondent Councillors’ basis for seeking removal is clearly set out in the Section 187 Report. These include that the Applicant acted without authority in granting the waivers and exemptions for the Petronas Permits and in firing Ratcliff. Those allegations were found to be valid by SMR which concluded that grounds for potential disciplinary action had been established.

[192] In my view, the evidence does not establish that the concerns raised by the Respondent Councillors were aimed at personal or political advantage.

[193] Finally, Councillor Chipesia was elected by acclamation on December 4, 2023 following the resignation of Councillor Robin Ewaskow. As seen from the Reasons, after the Applicant made her submissions at the September 13, 2024 discipline meeting, Councillor Chipesia stated that as she was not a councillor at the time of the Section 187 Report, she felt it was not appropriate for her to be part of the decision on the disciplinary sanction against the Chief and excused herself from the meeting. The fact that Councillor Chipesia may have previously expressed support for the Applicant is not relevant to the reasonableness or fairness of the removal decision. Councillor Chipesia elected not to participate in that decision.

[194] The Applicant has not established that section 194 of the By-law was not complied with.

e. Section 195 – To determine under section 194 whether an investigation is in the best interest of Blueberry River, Council must consider all relevant factors, including whether: (a) the alleged conduct is serious in nature; (b) a finding that the alleged conduct is proven is likely to result in a significant disciplinary action being taken; (c) considerable harm has been caused by the alleged conduct to Blueberry River, a member or membership at large; (d) the alleged conduct involves the use, or threatened use, of a weapon or physical violence, harassment or bullying; (e) the Council member has relevant previous disciplinary actions against them; (f) the alleged conduct is criminal in nature; (g) there are grounds for believing that the alleged conduct may be continued or repeated; or (h) there is a need to protect the integrity of Council as a whole.

[195] The Notice of Application refers to section 195 of the By-law and asserts that the Section 187 Report and the December 8, 2023 BCR fail to demonstrate that the Respondent Councillors considered all of the required factors before acting to remove the Applicant from office.

[196] In her written submissions, the Applicant submits that the Respondent Councillors did not properly initiate an investigation, as they were acting in a conflict. They did not explain why an investigation was necessary in consideration of the relevant factors including “allegation that is criminal in nature” and whether there is “use of a weapon or physical violence.” And, if they did make such a decision, it was not done on notice to the Applicant, and the reasons were not disclosed.

[197] I have addressed the alleged conflict above.

[198] While I agree that Council had to consider the section 195 listed factors, there is no requirement in the By-law to provide reasons setting out those considerations. This is unlike decisions to take disciplinary action (section 199) in which event the By-law requires Council to provide reasons for their decision (section 201). Moreover, Council was only required to consider all relevant factors, in this case this would exclude, for instance, conduct that involved the use or threatened use of use of a weapon or physical violence as no such allegation arose. Moreover, the December 8, 2023 BCR states that “WHEREAS in accordance with sections 194 and 195 of the Bylaw, Council has considered the report and determined that it is in the best interests of Blueberry River to initiate an investigation into the allegations in the Report.”

[199] The Applicant has not met her onus of establishing non-compliance with section 195 of the By-law.

f. Section 196 – If Council orders an investigation under section 195, they must pass a Council resolution appointing an independent investigator.

[200] The Notice of Application asserts, with respect to section 196, that the June 5, 2024, resolution appointing SMR as the investigator did not comply with the By-law. It was passed without being on the meeting agenda and without proper Council discussion.

[201] In her written submissions the Applicant takes a broader approach and submits that section 196 “was repeatedly breached by failing to appoint an independent investigator, first attempting to appoint Mitha Law Group, and then Cassels Brock LLP. When the BCR was passed, on June 5, 2024, it was not done at a regular meeting with notice to all of Council. The Section 196 investigation finally began with SMR on June 5, 2024, and ended on August 9, 2024, taking well more than 21 days.”

[202] As set out above, after the December 8, 2023 BCR appointing Mitha Law Group effective January 2, 2024 as an investigator was passed, then counsel for the Applicant alleged that Mr. Mitha was in a conflict of interest. In response, Council sought to instead appoint Cassels Brock and passed a new BCR on January 10, 2024, in that regard. Although counsel for the Applicant then took issue with the validity of that BCR, Cassels Brock subsequently advised that they could not act due to a conflict of interest. Ultimately, a draft BCR was added to the agenda of a Council meeting held on March 12, 2024, and was passed on that date by the Respondent Councillors. That BCR set out the history of the efforts to appoint an investigator and resolved to amend the December 8, 2023 and January 10, 2024 BCRs and to appoint SMR. A copy of the March 12, 2024, BCR is attached as an exhibit to the Applicant’s affidavit. The Applicant’s reference to a June 5, 2024 BCR appears to be in error.

[203] SMR requested amendment of the March 12, 2024 BCR including that the 21 day investigation period commence on March 18, rather than March 12, 2024. This was discussed between counsel. Counsel for the Applicant did not oppose the suggestion.

[204] At a May 31, 2024, Council meeting a motion was brought to amend the March 12, 2024 BCR to accommodate SMR’s request along with other motions. The Applicant attended virtually, some BRFN members attended that meeting in person, some virtually. The Respondent Councillors attended in person. The Applicant asserted in a statement she prepared immediately after that meeting that the agenda was not adopted because of “the disruptive behaviour and Councillor Troy Wolf’s disrespect towards elders, who were trying to raise concerns and ask questions.” However, in her subsequent affidavit, the Applicant deposes that she ended the meeting because she was concerned about escalating disagreement and risk of violence and “announced that the Chief and Council meeting was over because of the attempt by [the Respondent Councillors] to add new motions and documents ‘by surprise.’” The Applicant deposes that she ended the meeting but that the Respondent Councillors re-convened it in her absence.

[205] The Gauthier affidavit disputes the Applicant’s affidavit version of events. Councillor Gauthier deposes that nothing in the By-law prevents adding items to the agenda under new business and that Council does this as part of its normal meeting process. She therefore disagrees that adding the motion concerning the proposed BCR relating to the investigation was a surprise motion. She deposes that Councillor Wolf did have a somewhat heated discussion with Clarence Apsassin when attempting to respond to the latter’s interjections. However, when attempting to pre-emptively end the meeting, the Applicant did not say – as she does in her affidavit – that she was concerned with escalating disagreement or risk of violence. Rather, after speaking with her lawyer, she announced that she was “calling” the meeting because the Respondent Councillors were “bringing in stuff that does not go against the Implementation” [sic] and that she would “see you guys in court.”

[206] The Gauthier Affidavit deposes that she understood the Applicant to be ending the meeting because the Respondent Councillors wanted to pass a BCR to investigate her conduct. Further, that while the Applicant attempted to pre-emptively end the meeting and hung up, and while some BRFN members left the meeting, the Respondent Councillors and other members remained and the meeting continued with a quorum of Councillors in attendance. Contrary to the Applicant’s assertion, the meeting did not go in camera.

[207] The Dominic Affidavit states that at the May 31, 2024 Council meeting, during discussion of approval of the agenda for the meeting, Councillor Troy Wolf stated he wished to add a BCR relating to the investigation to the agenda. The Applicant declined to add a different BCR to the agenda. However, she did not object to adding the BCR relating to the investigation to the agenda, and Councillor Wolf added it. After discussion of adding other agenda items, the Applicant attempted to end the meeting and ultimately hung up.

[208] There is a video of the May 31, 2024, Council meeting in the record before me. This demonstrates that at the start of the meeting the Applicant requested the meeting agenda be adopted. Councillor Wolf then requested that the BCR concerning the investigation of the Section 187 Report be added to the agenda (amending the previous BCRs to appoint SMR effective June 5, 2024) the Applicant did not oppose this, although she did object to a different BCR being added to the agenda. Some time later and after other discussions the Applicant says “sorry give me one second,” there is silence for two minutes then Applicant returns and says she just got a call from her lawyer and she is calling the meeting because the Councillors are “bringing stuff that does not go against the implementation” and ends with “I’ll see you guys in Court, so meeting adjourned.” Councillor Troy says there is still a quorum, so they are moving forward with the meeting. Councillor Chipesia raises concerns and then states that she is going to sign off because the meeting was called off by the chairperson, the Chief. Councillor Gauthier makes a motion to accept the agenda, which passes. Councillor Dominic then addresses the BCR concerning the Section 187 Report. Councillor Dominic moves a motion to accept the BCR and it is passed. After this a BRFN member states “I just want to state here that at 11:35 the chair logged off and called the meeting to an end due to the fact that four councillors brought a new BCR information that was not disclosed to her or shared with the community and its members, as of now all Council is on notice for illegal meeting continuation without the chair.” The Respondent Councillors respond that there is a chair and continue with the meeting.

[209] Ultimately, SMR conducted its investigation pursuant to the May 31, 2024 BCR which appointed SMR as investigator effective June 5, 2024.

[210] It is significant to note here that the Applicant did not seek judicial review of the May 31, 2024 BCR. This is in contrast to a judicial review brought on October 19, 2023, by the Applicant challenging a September 22, 2023 BCR. There she asserted that the September 22, 2023, meeting was not duly convened, that she had not received adequate notice of the meeting, that the process set out in the By-law had not been followed, and that Mitha Law Group was not an independent investigator. Ultimately, an investigation did not proceed under the September 22, 2023 BCR. A similar challenge was not brought by the Applicant with respect to the May 31, 2024 BCR.

[211] Further, the Applicant subsequently fully participated in the SMR investigation.

[212] She also did not raise this concern as to the validity of the May 31, 2024 BCR at the September 13, 2024, meeting held to determine what disciplinary action was to be taken in light of the SMR Investigation Report. The validity of the May 31, 2024 BCR was raised for the first time in the Notice of Application.

[213] Section 196 requires that a Council resolution must be passed appointing an independent investigator. In my view, section 196 was not “repeatedly breached” as the Applicant submits. The evidence in the record explains why amendments to the BCR appointing the investigator were required.

[214] More significantly, the validity of the May 31, 2024 BCR is not the subject of this judicial review, which challenges only the Removal BCR. Further, its validity was not raised as a concern at any time during the removal process, including at the September 13, 2024 discipline meeting. Given this, as well as the passage of time and the events that have followed the BCR’s passage including the Applicant’s full participation in the SMR investigation, it is not appropriate for me now to assess the validity of the BCR in this judicial review. Further, even if the May 31, 2024 was not validly passed – and I make no finding in that regard – it is now too late to attempt to quash the removal decision based on the unchallenged May 31, 2024 BCR.

[215] The timing of the completion of the SMR Investigation Report is addressed below together with the Applicant’s assertion concerning paragraph 198(b) of the By-law.

g. Section 198(b) – In conducting an investigation under this Part, the investigator must (b) complete their investigation within twenty-one (21) days from the date that Council appoints them.

[216] The Applicant does not raise paragraph 198(b) in her Notice of Application. Accordingly, it is not properly before me. That said, it is addressed in the Applicant’s affidavit where she asserts that under section 198(b) the investigation was required to be concluded within 21 days after the December 8, 2023 BCR was passed, or by December 29, 2023 but that this did not happen. She makes the same assertion in her written submissions. This issue is also addressed by the Respondent Councillors, in the alternative who submit that they reasonably continued with the removal process when the investigation was not completed within 21 days because the parties agreed to several extensions to the investigation. During the hearing, counsel for the Respondent Councillors took the Court through the documents in the record that are relevant to this issue.

[217] While this issue was not properly before me it has been canvassed thoroughly by the parties and the record addresses it. Prejudice and surprise are not significant concerns. For that reason, and for the sake of completeness, I will address it here.

[218] For the reasons discussed above, the May 31, 2024 BCR appointed SMR to conduct the investigation effective June 5, 2024. Thus, the 21-day period began to run from June 5, 2024, not December 8, 2023 as the Applicant asserts. This meant that the investigation report was due on June 26, 2024.

[219] The record before me includes a June 12 - July 2, 2024 exchange of emails between SMR, Mr. Mitha, counsel for the Respondent Councillors, and Mr. van Ert (then) counsel for the Applicant. Mr. van Ert wrote on June 13, 2024, that “[t]he mad scramble we are all experiencing here is the direct result of the 21-day timeline-an artificial constraint that the parties could easily consent out of. Given the seriousness of the allegations made against our client (I remind you that the s. 187 report expressly seeks her removal as Chief) and the difficulties we are all facing despite the best efforts of the investigators and our client, I invite Mr. Mitha to consent to a more reasonable timeline. Even a modest move from 21 to 35 days would ease some of the pressure and enable a more orderly and fair proceeding.” Mr. Mitha replied on the same day stating that he agreed with Mr. van Ert. Following further discussions, an extension of the time frame to 35 days was proposed. Mr. Bond (also counsel for the Applicant) stated in an email dated June 17, 2024 that he was content to proceed “extending the timeline to 35 days as a starting point but subject to further extension as the parties may agree is appropriate /necessary.”

[220] The record before me also includes a July 25, 2024 email from SMR to counsel for the Applicant and counsel for the Respondent Councillors setting out a proposed timeline for them to provide answers to its inquiries, to make written submissions (by July 31, 2024), for SMR follow-up questions, if any, and responses from counsel and, proposing to provide the SMR final report by August 9, 2024. SMR states that it appreciated that these were significant changes in the timeline but that it was endeavouring to provide the quick yet fair process contemplated by the By-law. After follow-up by SMR, counsel for the Respondent Councillors replied on July 29 and confirmed agreement with the August 9, 2024 date. Also on July 29, 2024, counsel for the Applicant stated that “[w]e consent to August 9 as well.”

[221] When cross-examined on her affidavit, the Applicant was asked if she was aware that she and her counsel had consented to various extensions of the 21 days. Her response was that her counsel advised her to accept the extensions. She denied recalling that she had told BRFN members that she consented to the extensions. She was then referred to her September 10, 2024 statement in which she states that the By-law requires the investigation to be done in 21 days, the Respondent Councillors made their allegations in November 2023, the investigation began early in June “and did not complete until over two months later. I agreed to this extension when I did not have to, so that the investigators would have enough time to complete their interviews and review.” Faced with this, the Applicant then confirmed that she had agreed to an extension but denied that she agreed to more than one extension.

[222] In my view, the evidence establishes that the Applicant through her counsel agreed to both an extension of the 21-day investigation time frame to 35 days and to the August 9, 2024, completion date for the SMR Investigation Report which her counsel, counsel for the Respondent Councillors and SMR all agreed was necessary to enable SMR to produce a fair and complete investigation report. The By-law does not prohibit an extension of the 21-day time frame and contemplates the investigation being as thorough as necessary in the circumstances (paragraph 198(c)).

[223] I am not persuaded that paragraph 198(b) was breached in these circumstances.

h. Section 148 and section 162

148. Blueberry River members have a right to attend all Council meetings, except those portions of a Council meeting that are held in camera.

162. Council may approve a motion to order that a portion of, or whole, Council meeting be held in camera if Council is satisfied that either:

(a) the order is necessary to address a conflict of interest of a Council member;

….

(d) the order is necessary to protect the confidentiality of information relating to a civil or criminal proceeding, or information that is subject to solicitor-client privilege; or…

[224] The Notice of Application raises section 162 of the By-law and asserts that the September 13, 2024, meeting was improper because it was held in camera and improperly shielded the actions of the Respondent Councillors from community scrutiny.

[225] In her written submissions, the Applicant submits that the discipline meeting was held in camera contrary to section 162 of the By-law and that the Respondent Councillors improperly relied on solicitor-client privilege to shield themselves from accountability from the membership and relied on a “conflict” to avoid an opportunity for the Applicant to respond directly to the allegations. She submits that this is demonstrated by the meeting minutes which do not reflect that such privilege was claimed. She also submits that the BRFN membership was not consulted prior to the removal and were not provided with the SMR Investigation Report at all, or at least not until after the removal.

[226] More generally, she argues the holding of the September 13, 2024 meeting in camera was fatal (and that the crux of one of the disputes between the Applicant and the Respondent Councillors was the failure to pass the June 9, 2023 BCR before members – although I note that the SMR Investigation Report found that the June 9, 2023 BCR was validly passed and enforceable, further that this was not determinative of whether the Applicant inappropriately granted the waiver and exemptions including because under the By-law the Chief did not have the authority to make that decision unilaterally. Nor is that BCR the subject of the judicial review before me which challenges only the Removal BCR). She asserts that the ability to respond to the Section 187 Report in an open forum was essential, as the transparency for BRFN members was essential for the democratic accountability of the Respondent Councillors, especially in the removal of a chief.

[227] The Respondent Councillors submit that the discipline meeting was held in camera because it was necessary to discuss the SMR Investigation Report. The Applicant’s legal counsel at the time had first raised the issue of privileged and confidential information in the Report. The Respondent Councillors submit that counsel for the Applicant and for the Respondent Councillors had not then had an opportunity to resolve the issue of redactions to the SMR Investigation Report. Once they had, Council released a redacted version to BRFN members. In the interim, and before the discipline meeting, Council released a summary of the SMR Investigation Report to BRFN members.

[228] The Respondent Councillors also argue that section 162 of the By-law provides Council with the authority to hold a Council meeting in camera to address a conflict of interest of a Council member. They submit it was reasonable to interpret the By-law as permitting them to hold the meeting in camera to the Applicant because she was in a conflict of interest as the matter involved her personal interests.

[229] As discussed in paragraph 29 above, by email of September 9, 2024, counsel for the Respondent Councillors, Mr. Mitha, advised counsel for the Applicant, Mr. Bond, that the Respondent Councillors would add the issue of dealing with the outcome of the SMR Investigation Report to the agenda for the September 10, 2024 meeting. Further, that they would propose to deal with the question of outcome, in camera, on September 11, 2024. The reason for considering this in camera was stated as being that there was confidential and privileged information in the SMR Investigation Report and that the Respondent Councillors would be seeking legal advice as they considered the options. The email also states that at the September 11, 2024, meeting the Applicant would be invited to provide her views on the SMR Investigation Report before Council made a decision on the outcome. Once she had done so, Council would deliberate and arrive at a decision. When a decision was made, written reasons would be provided. Mr. Mitha noted that it was the current intention of the Respondent Councillors to provide the entire SMR Investigation Report as a schedule to their written reasons and that he would provide his views on what confidential and privileged portions of the SMR Investigation Report should be redacted before it was provided to all members. He asked, if Mr. Bond had any views on parts that he considered should be redacted, that he please so advise.

[230] Mr. Bond responded by email of September 10, 2024. He objected to the SMR Investigation Report being dealt with in camera and asserted that the By-law did not provide for this on the basis asserted by Mr. Mitha. That email also reiterated Mr. Bond’s view that the SMR Investigation Report could not be released without redactions given Petronas’ concerns (financial information) and because portions of the SMR Investigation Report rely on confidential (settlement privilege) aspects of the Implementation Agreement. Mr. Bond stated that if BRFN disclosed settlement privileged information this could further jeopardize the relationship with the Province. He went on to state that any redactions needed to protect BRFN’s relations with Petronas, the Province, and other third parties, could have been resolved by that time and that he mentioned this as Mr. Mitha had previously accused the Applicant and her counsel of delaying matters.

[231] Mr. Mitha responded on the same date pointing out that Mr. Bond had noted in his email that parts of the SMR Investigation Report contains privileged information. He also noted that paragraph 162(d) of the By-law expressly provides that Council can approve an in camera meeting to protect information that is subject to privilege. Thus, in his view, it was acceptable for Council to consider the SMR Investigation Report, and the possible outcomes from the SMR Investigation Report’s findings, in camera. Mr. Mitha also indicated that on August 21, 2024, he had written to the investigator and counsel for the Applicant asking what parts of the SMR Investigation Report were considered to be confidential and that various email discussions had followed. And, importantly, if counsel for the Applicant had definite views on what should be redacted, they should provide them as soon as possible. The only input received from counsel for the Applicant at that time was general warnings that there should be redactions. Mr. Mitha stated that there had been no delay from his side and that he was not suggesting delay on the Applicant’s side concerning this issue.

[232] As noted above, the Applicant prepared a “Statement to be Read By Chief Desjarlais Responding to Motion to Meet in Camera” dated September 10, 2024. Among other things, she took issue with whether the privileged information warranted an in camera meeting and suggested that the confidentiality issues were valid, but not yet resolved. When they were, the need for an in camera meeting would be overcome.

[233] In my view, the evidence establishes that at the time of the September 13, 2024, Council meeting at which the disciplinary action to be taken as a result of the SMR Investigation Report was to be determined, it was acknowledged by all counsel that there were unresolved concerns about privileged information contained in the SMR Investigation Report. Further, that it was in the best interest of BFRN that the SMR Investigation Report not be made publicly available without appropriate redactions having been made.

[234] The Applicant and her counsel did attend the first portion of the September 13, 2024, meeting and the Applicant submitted written and made oral statements. It was open to the Applicant to discuss any aspect of the SMR Investigation Report at that time. And, when cross-examined on her affidavit, the Applicant confirmed that at the September 13, 2024, meeting she had the opportunity to respond to the SMR Investigation Report and to make whatever statements that she wanted to make. Thus, I do not agree with her assertion that at the meeting the Respondent Councillors relied on a conflict to avoid affording her the opportunity to respond directly to the allegations against her.

[235] Nor was the September 13, 2024 meeting a surprise or secret event. BRFN members were informed of the meeting by way of the September 3, 2024 “Summary of Investigation Findings Regarding Misconduct by Chief Judy Desjarlais Authorized by Councillors Gauthier, Dominic, Wolf and Yahey” a summary of the Section 187 Report posted on the BRFN website and sent by email to members. That summary, under “next steps,” indicates that under section 199 of the By-law, the next step was for Council to meet and decide what should be the consequences of the fact that the Applicant had engaged in serious wrongdoing. Once Council had made a decision, it must then provide reasons for the decision to the Applicant and make the reasons available to members on the BRFN website and posted on public buildings located on the reserve. As a result, to comply with the By-law, after the Band Council meeting on September 10, 2024, Council would meet in camera on September 11, 2024 and make a decision on the consequences for the misconduct by the Applicant as described in the Section 187 Report. Council would then provide detailed written reasons and make them available as required.

[236] I acknowledge that the protecting of the privileged information in the SMR Investigation Report does not fit squarely into section 162. However, given the agreement of all counsel that there was confidential information contained in the SMR Investigation Report, in my view it was not unreasonable for the Respondent Councillors to conclude that the consideration of the report fell under section 162(b) of the By-law, in order to protect the confidentiality of information subject to solicitor-client privilege and/or settlement privilege. Further, deference is owed to First Nations regarding decisions by band councils (Bellegarde at para 96; Lavallee v Ferguson, 2016 FCA 11 at para 30; Way v Nunatsiavut Government, 2024 FC 886 [Way] at para 24).

[237] That said, when appearing before me counsel for the Respondent Councillors submitted, in response to my question as to why the meeting could not have been held after redactions to the SMR Investigation Report had been agreed, that there was urgency in moving the matter forward given the delays already incurred. However, there is no evidence on that point in the record before me. While there are communications in the record between counsel addressing whether privilege properly applied to permit the meeting to proceed in camera, there are no communications between counsel discussing the possibility of holding the meeting after the redactions were agreed or indicating that counsel for the Applicant opposed proceeding on September 11, 2024 for this reason.

[238] Additionally, while the Applicant, rightly, emphasises the importance of Council meetings being open to all BRFN members to ensure transparency in the process, it is to be recalled that the process in this instance was determined by the By-law. Specifically, that once the independent investigator’s report concluded that the evidence showed that it was more likely than not that grounds for disciplinary action exits under section 184, Council was required to make one or more of the orders listed in subsection 199(1), taking into consideration the factors listed in subsection 199(2). When Council makes such an order it must provide the Council member who is the subject of the order with reasons for their decision (section 201) and ensure that a notice setting out the decision and reasons for decision is posted on the BRFN website and in all public buildings located on a BRFN reserve (section 202(b)).

[239] That is to say, once Council was in receipt of the SMR Investigation Report, the process does not contemplate direct involvement of BRFN members who instead are to be provided with notice of Council’s decision after it is rendered. Thus, even if that portion of the meeting where the Applicant was afforded the opportunity to make submissions as to the SMR Investigation Report and as to what disciplinary action she felt was appropriate in the circumstances had been conducted at an open meeting, BRFN members would have been observers. I disagree with the submission made before me by counsel for the Applicant that BRFN members should have had input at the meeting. That is not the process contemplated by the By-law. Nor do I agree that holding the meeting in camera had the effect of shielding the actions of the Respondent Councillors from community scrutiny.

[240] When appearing before me, counsel for the Applicant also argued that the Applicant should have been afforded the opportunity participate in and respond to the deliberations of the Respondent Councillors. I do not agree. At that stage, the Applicant had already had the opportunity to and did make written and oral submissions. The deliberative portion of the in camera meeting reasonably excluded her because she was the subject of the disciplinary action and, therefore, in a conflict of interest. Further, those deliberations were undertaken with the assistance and advice of counsel and, as such, would be subject to solicitor-client privilege.

[241] I find that it was reasonable for Council to hold the September 13, 2024, meeting in camera, in these particular circumstances, and that this was not a breach of sections 148 and 162 of the By-law. That is, in these particular circumstances, it was not unreasonable for Council to so interpret the By-law and hold the meeting in camera.

[242] Although the Applicant argues that it was a breach of procedural fairness to hold the meeting in camera based on reasons that do not fall within the ambit of section 162, to my mind, failure to comply with section 162 (or any provision of the By-law) is a question of whether the Respondent Councillors acted reasonably. In any event, holding the meeting in camera did not, in these circumstances, have the effect of depriving the Applicant of procedural fairness. The Applicant had notice of the meeting and knew that the meeting was being held pursuant to section 199 of the By-law. She had been provided with the SMR Investigation Report, as well as questions that Council requested that she address. She was represented by counsel, and she made two written statements and also made oral submissions at the meeting. That is, she knew the case to be met and was afforded an opportunity to respond (Wepruk at para 8; Shirt at para 32). And even if BRFN members has been permitted to attend, they would have done so as observers, not participants.

i. Section 201 – Where the Council makes an order under section 193, 199 or 200, they must provide the Council member who is the subject of that order with reasons for their decision.

[243] In the Notice of Application, the Applicant refers to section 201 and asserts that she was not provided with reasons for the decision and only became aware of a document posted on the BRFN website, entitled “Decision Regarding Chief Desjarlais,” four days after the passage of the Removal BCR. In her written submissions she submits that she was not provided with the reasons for the removal decision.

[244] There is no merit to this allegation. I would first note that the Removal BCR is dated September 13, 2024 and states that and that the BCR would be effective “on the date these reasons are made public”. That happened by way of the “A Notice to All Members” dated September 17, 2024 attaching the Removal BCR and the Reasons and which states that the notice would be posted on the BRFN website. The notice is an exhibit to the Applicant’s affidavit.

[245] Second, Councillor Dominic deposes in her affidavit that “[o]n September 17, 2024, I emailed Council's Reasons for Decision to the Applicant. I used the copier in the BRFN office, which sends emails directly from the copier.” She attaches as an exhibit an email sent on September 17, 2024, at 11:36 am from “blueberrycopier@gmail.com” to the Applicant and Councillors Chipesia, Gauthier, Wolf, Yahey and Dominic and attaching the Notice to All Members, the Removal BCR and the Reasons.

[246] The Applicant, in her affidavit, states that while she was in a meeting she received a text at 11:45 am from a BRFN member alerting her to the posted Notice. She states that she “had barely begun to read the purported reasons from the website when my band email was cut off without notice to me at around 12:00.” Even if that is so, the Removal BCR and Reasons were sent to her by email and, even before her email was cut off, she had accessed them on the website. Additionally, by letter dated September 17, 2024 sent via email from Mr. Mitha to Mr. van Ert, Mr. Mitha stated that “[w]e write this letter to notify Chief Desjarlais that a quorum of Council resolved on September 13, 2024 to remove her from office effective at 12:00 pm on Tuesday, September 17, 2024” and attaching the Removal BCR and Reasons. That letter is an attachment to the Applicant’s affidavit.

[247] Given this evidence, I find that the Applicant was provided with the Removal BCR and the Reasons on September 17, 2024. The Applicant has not established non-compliance with section 201 of the By-law.

[248] In conclusion, I do not agree with the Applicant there was non-compliance with all of the above provisions of the By-law. Therefore, I also do not agree that all of the alleged incidents of non-compliance have the cumulative effect of the removal decision being made without authority or that it was unreasonable.

ii. Applicant’s other reasonableness arguments

[249] In addition to the Applicant’s submission that critical steps in the removal process were not complied with, the Applicant also asserts that the removal decision was unreasonable because she never received reasons from the decision-makers; because the Respondent Councillors blindly accepted the findings of the SMR Investigation Report; and, unreasonably imposed removal as a sanction.

[250] On the first point, as indicated above, the Applicant did receive the Removal BCR and the Reasons from Council.

[251] On the second point, the Applicant asserts that the Respondent Councillors rubber stamped the SMR Investigation Report and did not consider whether or not they would wholly accept the report (the Applicant takes issue with its finding that she was dishonest). Accordingly, that the Respondent Councillors fettered their discretion. As I have found above, the issue of fettering of discretion was not raised by the Applicant in her Notice or Application (nor was it raised in her affidavit) and therefore is not properly before me.

[252] Further, as addressed above, nothing in the removal procedure provisions in the By-law supports that Council has the option of considering whether or not to accept the independent investigator’s findings and conclusions. Indeed, this would defeat the purpose of appointing an independent investigator to make factual findings and conclusion as to the allegations of misconduct. This would also necessarily require Council to reconsider all of the evidence before the investigator and its conclusions to make a determination of whether or not they agreed with the same. This is not the role for Council as set out by the By-law.

[253] In my view, under the By-law, Council’s discretion is limited to determining, having received the independent investigator’s report, which of the specified disciplinary orders is to be issued.

[254] I also agree with the Respondent Councillors that by submitting that this is not a case where she “went rogue,” and by providing her own version of events and conduct, the Applicant invites the Court to reweigh and re-assess the evidence that was before SMR (most of which is not before me), its findings, and to substitute the Court’s decision for that of the Respondent Councillors. However, that is not the role of this Court on judicial review (Vavilov at para 125).

[255] Finally, as to sanction, the Applicant submits that it was grossly disproportionate to remove her from office. She submits that section 195 of the By-law contemplates criminal and violent conduct for an investigation to be warranted. But that there is no evidence of such serious conduct here, as noted by Councillor Chipesia, and therefore it is unreasonable to conclude that the allegations substantiated in the SMR Investigation Report justify removal. In this regard, the Applicant revisits aspects of the SMR Investigation Report and again submits that the removal sanction was unreasonable because the Respondent Councillors blindly accepted those findings rather than the arguments that she now makes (but I note were not made by the Applicant at the September 13, 2024 discipline meeting). For example, the Applicant submits that it was unreasonable to remove her for wanting to follow the By-law in passing the June 9, 2023 BCR and that she had explained why she changed her mind about following that BCR; that it was unreasonable to remove her because of her payment to Mr. Arbogast for his invoices; and, that it was unreasonable to remove her over disagreements and unsuccessful attempts to fire Ratcliff.

[256] Again, however, the conclusions of the SMR Investigation Report are not the subject of this judicial review. Nor is it the Court’s role on judicial review to reweigh the evidence.

[257] Further, as discussed above, subsection 199(1) of the By-law states that where an investigator’s report concludes that the evidence shows that it is more likely than not that grounds for disciplinary action exist under section 184, the Council must make one or more of the listed orders. These are suspension, verbal warning, written warning, removal from office or legal action on behalf of BRFN. Subsection 199(2) lists the factors that must be considered in making a disciplinary order, these include considerations such as the nature and gravity of the action, victim impact, past proven allegations, and the number and frequency of proven allegations. Thus, while the By-law does not identify proportionality as a factor that must be considered as such, in my view this comes into play indirectly by the application of section 199. The Respondent Councillors did not err in failing to address proportionality as a discrete factor.

[258] The Respondent Councillors provided lengthy reasons for their decision which include consideration of all seven factors listed in subsection 199(2) of the By-law. I have set the Reasons out above.

[259] In summary, on the first factor (ensure membership’s confidence in the integrity of Council), they discuss the SMR Investigation Report’s finding that the Applicant was dishonest and intentionally not forthcoming. They conclude that this weighs in favour of a serious sanction.

[260] On the second factor (responsibility of Council to act in the best interests of the membership), they note that the SMR Investigation Report found that the Applicant breached her oath of office when she communicated with the BCER in her July 7 and 25, 2023, letters. Additionally, the SMR Investigation Report found that the applicant’s decisions caused BRFN substantial harm. The Respondent Councillors conclude that this demonstrates the Applicant’s actions undermined the responsibility of Council to act in the best interests of the membership. They also point to the SMR Investigation Report’s findings that the Applicant’s actions caused harms to BRFN. They conclude that this factor weighs in favour of a serious sanction, up to and including removal.

[261] On the third factor (the need to deter similar actions), the Respondent Councillors note that the SMR Investigation Report found that the Applicant intentionally misled Council and dishonestly told the BCER that she had support from Council. They also state “[w]e must set a clear example that a Chief of BRFN (or indeed any modern First Nation) cannot get away with breaching her Oath of Office, acting dishonestly and acting against the best interest of the Nation.” They conclude that this factor weighs strongly in favour of “condemning the Chief’s actions by imposing serious sanction, up to and including removal.”

[262] On the fourth factor (nature and gravity of the action), the Respondent Councillors state that the SMR Investigation Report made very serious findings of misconduct against the Applicant and concluded that she “acted contrary to the BRFN Bylaw, breached her Oath of office, did not act in the best interests of BRFN, and did not act honestly, impartially or in good faith.” They state that these findings are aggravated by the fact that her misconduct relates directly to and undermines the long, expensive and arduous process that BRFN endured to govern their lands. As a result, they conclude that this factor weighs very strongly in favour of removal.

[263] On the fifth factor (impact on victims), the Respondent Councillors state the “Chief's failure to recognize the distinct impact of her actions on the Yahey family aggravate her general failure to recognize the impact of her unilateral decision to cause permits to be issued close to the Dancing Grounds, and the corresponding impact on the Treaty Rights of every BRFN member.” As a result, they find this factor adds to the serious nature of the misconduct.

[264] On the sixth factor (similar allegations proven in the past and number/frequency of proven allegations), they acknowledge that the SMR Investigation Report is the first time that the Applicant has been investigated and found to have engaged in misconduct. However, they also note that the findings are numerous and “show a consistent pattern of acting unethically and contrary to our Bylaws to achieve her desired result.”

[265] On the final factor (acknowledge actions and take independent steps to disclose/redress their wrong), the Respondent Councillors state that the Applicant has failed to acknowledge or apologize for the serious findings against her and instead has doubled down on her actions. She failed to acknowledge that she acted dishonestly and breached her oath of office. They state that after over a month since the SMR Investigation Report came out, the Applicant has remained of the view that she has done nothing wrong. Therefore, their conclusion that she will not change is justified. As a result, they find that this factor weighs heavily in favour of removal.

[266] The Applicant does not address the Reasons or directly address any of these findings. It is also apparent from her submissions both to Council at the September 13, 2024 disciplinary meeting and in this matter that the Applicant fails to appreciate or refuses to acknowledge the gravity of her misconduct, the impact of which affects all BRFN members. Instead, she continues to misrepresent the SMR Investigation Report findings and takes no responsibility and makes no apology for her conduct. This afforded the Respondent Councillors no comfort that the Applicant would not continue to act unilaterally, without authority and thereby potentially causing further harms to BRFN if she were afforded a lesser sanction than removal from office.

[267] In conclusion, the Respondent Councillors provided detailed reasons for their decision that the Applicant’s conduct warranted the most serious sanction, removal from office. Given this, and bearing in mind that significant deference that is owed to First Nations governance matters (Waquan v Mikisew Cree First Nation, 2021 FC 1063 at paras 12-13; Bellegarde at paras 92-93; Shotclose v Stoney First Nation, 2011 FC 750 [Shotclose] at paras 58-59; Way at para 24) and that it is not the Court’s role to reweigh evidence (Vavilov at para 125), the Respondent Councillors’ choice of removal, among the available disciplinary actions, was reasonable.

The Removal Decision was Procedurally Fair

[268] The Applicant submits that the Respondent Councillors breached their duty of procedural fairness because; she was denied a meaningful opportunity to know and respond to the case to be met; and, the removal was done through a biased process with partial decision-makers incapable of persuasion.

i. Opportunity to know the case and respond

[269] The Applicant submits that although her written submissions to SMR were in the CTR, they were not considered by the Respondent Councillors prior to accepting the SMR Investigation Report and removing her from office. In my view, there is no merit to this submission.

[270] As discussed above, the role of SMR was to conduct an impartial investigation and then provide Council with a report. The role of Council, when an investigator’s report concludes that it is more likely than not that grounds for disciplinary action exist under section 184, is to make one or more of the orders set out in section 199 of the By-law. Council was not required to revisit and consider the evidence that was before the investigator, SMR. Nothing in the removal provisions in the By-law supports that Council has the option to consider whether or not to accept the independent investigation report findings.

[271] I also note that this is an unusual circumstance in that the parties had exchanged affidavits before the CTR was filed. The Respondent Council submits that in the October 1, 2025, CTR letter, Appendix A identified documents already in the parties’ records that form the CTR. However, this does not mean that all of the listed documents were in the possession of Council when they made the removal decision. For example, the Applicant’s written submissions to SMR were an exhibit to her affidavit. As such, they were included in the CTR. However, they were not materials actually in possession of Council and relied upon in its deliberations.

[272] The Applicant next submits that she had no opportunity to respond to the Respondent Councillors arguments on September 13, 2024 “as they were parties to the controversy.” And, after she made her submissions, the Respondent Councillors communicated their views to one another in camera. The Applicant submits that she did not have the opportunity to respond to their discussions.

[273] This is also addressed above. I have found that the record establishes that the Applicant knew the case to be met and was afforded a full and fair opportunity to respond (see Okemow v Lucky Man Cree Nation, 2017 FC 46 at para 29; Morin v Enoch Cree First Nation, 2020 FC 696 at para 34). Further, she was not entitled to participate in or respond to Council’s deliberations that followed. There was no breach of procedural fairness.

[274] The Applicant next argues that the duty of fairness required the disclosure of submissions, documents and evidence from the complainants – the Respondent Councillors. She describes this as “extrinsic evidence.” She asserts that the Respondent Councillors disclosed only the Section 187 Report and not their submissions to SMR or those of Ratcliff. For the reasons above, I again do not agree. Contrary to the Applicant’s argument, the Respondent Councillors were not required in this judicial review to produce their or Ratcliff’s submissions to the investigator, or any other materials submitted to SMR. In my view, there is no breach of procedural fairness in the Respondent Councillors failure to provide the Applicant with their or their counsel’s submissions to SMR.

[275] The Applicant submits that the Respondent Councillors denied her procedural fairness “in creating and enforcing a conspicuously unbalanced process more suitable to an employee’s terminations.” However, the process was not created by the Respondent Councillors. It is set out by the By-law which was adopted by the members of BRFN. The Applicant has not challenged the validity of the By-law. The Applicant asserts that the imbalance is demonstrated, in part, by the fact that section 187 contemplates only one complainant. This appears to be another iteration of her allegation that the Respondent Councillors were in conflict because they were the complainants. However, paragraph 187(a) of the By-law states that a council member must make a written report to Council if they have reason to believe that another Council member has participated in conduct that is subject to disciplinary action as set out in section 184. It does not exclude a circumstance where, when more than one Council member holds that same belief, that those Council members can individually or together submit a section 187 report. And, significantly, while this can create a situation where the complainants are also the decision-makers, the independent investigation report of SMR is where factual determinations and conclusions on misconduct are reached. Here, SMR concluded based on its independent investigation that the evidence showed that it was more likely than not that some of the allegations in the Section 187 Report concerning the Applicant’s conduct were true. The Respondent Councillors were deciding only what the resultant, required disciplinary order would be (which determination I have found to be reasonable). The procedure set out in the By-law was followed and I am not persuaded that there was a breach of the duty of procedural fairness in this circumstance.

[276] The Applicant also submits that her procedural fairness rights were breached “by the manner in which this investigation was conducted, which was manifestly unfair, and then the inability to remedy this unfairness through a de novo process.” Again, the process is set by the By-law which reflects the intent of the members of BRFN. It does not include a de novo review by Council or another party. I also note that the Applicant did not raise the concerns she now raises about the manner in which the SMR investigation was conducted prior to filing her affidavit in this judicial review. While she stated in her September 13, 2024, submissions that she did not agree with some of the findings (presumably those that found that the misconduct allegations were well founded as opposed to those that were not) she did not previously assert that the SMR investigation was unfair. In any event and as discussed above, the SMR Investigation Report is not the subject of this judicial review.

[277] In sum, I do not agree that the Applicant was not afforded a meaningful opportunity to know and to respond to the case against her and, therefore, was denied procedural fairness.

ii. Lack of Impartial Decision-Maker/Bias

[278] The Applicant submits that there are three ways that bias arises in this case: conflict of interest, institutional bias and a closed mind that is incapable of persuasion. As I found above, these issues were not included in the Notice of Application and are therefore not properly before me.

[279] However, again for the sake of completeness, I will finish my above discussion on conflict of interest and will address one aspect of the bias allegation.

[280] The test for establishing bias is well established, being set out initially in Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC) at pages 394-395:

….the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude….

a. Conflict of interest

[281] As discussed in paragraphs 148-159 above, the Applicant did raise conflicts of interest at the September 13, 2024 meeting. However, this pertained to the assertion that Councillor Yahey and Councillor Gauthier’s common-law spouse stood to gain financially from the Petronas Permits that were granted by the BCER (because of the Applicant’s misconduct) and that the Respondent Councillors were conspiring against her and were attempting to have Councillor Wayne Yahey step in as Chief and Councillor Shelley Gauthier's daughter become a Councillor. The Applicant did not raise the allegation now made in her written submissions pertaining to plurality of roles/institutional bias and I have found above that those issues are not properly before me on judicial review.

[282] Additionally, contrary to the Applicant’s written submissions, the Reasons deal with the allegations of conflict raised by the Applicant at the September 13, 2024 disciplinary meeting. The Reasons state that in her oral statement, the Applicant first raised that she considered that there were many conflicts and that the entire process was an attempt by Councillor Wayne Yahey to step in as Chief and stated that Councillor Shelley Gauthier's daughter was going to become a Councillor. The Reasons find that these allegations were entirely based on rumors and were not true. Further, that the Applicant made these statements as a suggestion that Council was acting in bad faith and that she did nothing wrong. The Reasons find that the Applicant wrongly suggested that the entire matter is a conspiracy. This ignored that independent investigators had found that she breached her oath of office and acted contrary to the By-law. The Reasons also state that the Applicant set out various names of persons she considered to be in a conflict. Her legal counsel then provided a document which set out those names. She did not explain why she considered these persons to be in a conflict. The Reasons attached as Appendix 2 the document provided by her legal counsel.

[283] The By-law defines conflict of interest as follows:

“conflict of interest” means a situation where a Council member:

(a) performs a Council duty and at the same time knows or ought reasonably to know that in the performance of the Council duty there is an opportunity to benefit their private interests, or

(b) participates in any personal or business activities outside their role on Council that may interfere with the fulfillment or performance of their Council duties, or conflict with the interests of Blueberry River;

(italic added)

[284] Private interests is defined as:

“private interests” include all of a person’s personal and business interests and include the personal and business interests of:

(a) their immediate family;

(b) a person under the age of eighteen (18) years in respect of whom they or their spouse is acting as parent or guardian;

(c) a dependent adult in respect of whom they or their spouse is acting as a guardian or caregiver;

(d) a person, other than themselves, who is financially dependent upon them or their spouse or on whom the Council member is financially dependent; and

(e) any entity in which the Council member has a controlling interest;

[285] The duties of Family Councillors under section 20 of the By-law include the duty to:

(g) avoid a conflict of interest in any situation where a Family Councillor, immediate family member or Family Group member has a personal or business interest in a transaction or business matter under consideration by Council;

(italic added)

[286] Given these definitions and the limited evidence in the record, I am not convinced that in these circumstances the Respondent Councillors fall within the definition of conflict of interest set out in the By-law.

[287] This is because the Applicant has not established how the Respondent Councillors (or their immediate families) have an opportunity to benefit their private interests, as that term is defined in the By-law. With respect to Councillors Yahey and Gauthier, I agree with the Respondent Councillors that they do not fall within the definition of a conflict because a decision to remove Applicant as Chief or to otherwise discipline her (the disciplinary order decision they were making) would not impact the Petronas Permits approvals (which allegedly could impact Councillor Yahey and Gauthier’s personal financial interests). The subject permits were already approved. Ironically, because of the Applicant’s misconduct.

[288] The Applicant cites three cases in support of her conflict of interest argument: Heron v Salt River First Nation No 195, 2024 FC 413 [Heron] at para 65; Shotclose at para 96; and Labelle v Chiniki First Nation, 2022 FC 456 at para 100. In my view, these cases are distinguishable.

[289] Thus, even if this issue of conflict had been properly before me, or if I have erred in finding that it was not, I do not agree with the Applicant that any of the Councillors were in a conflict of interest.

b. Plurality of Roles/Institution Bias

[290] For the reasons above, I have found that these issues are not properly before me.

[291] I would observe, however, that with respect to institutional bias, the Applicant alleges that there was a legislated alternative to the institutional bias which she asserts arises from the plurality of roles of the Respondent Councillors as the complainants in the Section 187 Report and the decision-makers as to the discipline order. That alternative being the community vote under section 155:

155. Where all Council members are in a conflict of interest with regard to a decision that must be made, they must refer that decision to a community vote which must be conducted in accordance with Part 21.

[292] However, having found above that the Respondent Councillors were not in a conflict of interest as that term is defined in the By-law, it follows that a community vote was not required.

[293] To the extent that the Applicant submitted in oral argument that a community vote was an option, based on BRFN custom preceding the enactment of the By-law, in my view, the By-law now “covers the field” (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732 at para 55; McKenzie v Mikisew Cree First Nation, 2020 FC 1184 at paras 69, 79-82; Apsassin v Blueberry River First Nations, 2022 FC 17 at para 6).

c. Closed mind

[294] For the reasons above, I have found that the issue of bias is not properly before me.

[295] However, the Applicant argues that the allegation of bias on the part of Councillor Dominic was only discovered during cross-examination and, therefore, could not have been raised as a ground of review in her Notice of Application.

[296] For that reason, I will address that issue here. The Applicant submits that bias can arise where one or all of the decision-makers do not have an open mind (citing Vento Motorcycles, Inc. v Mexico, 2025 ONCA 82 at para 3) and that bias arises where the decision-maker has pre-judged the issued so much so that they cannot be capable of persuasion (citing Save Richmond Farmland Society v Richmond (Township), 1990 CanLII 1132 (SCC)). She submits that Councillor Dominic did not have an open mind and should have been disqualified. The Applicant bases this argument on the cross-examination testimony of Councillor Dominic.

[297] As the Applicant notes, the minutes of the September 13, 2024, meeting include the deliberations of each of the Respondent Councillors. Councillor Dominic referred to the Applicant’s September 10, 2024 statement stating that this included allegations against Council. She stated that the Applicant “said that we had already decided to remove her as Chief no matter what the investigation report said. This is not true. We know our duties under our By-laws and we are considering the section 199 factors today. No decision has been made until we deliberate today.” That is, in the minutes Councillor Dominic rejected the Applicant’s prior allegation of a predetermined decision of removal.

[298] However, the Applicant relies on the cross-examination of Councillor Dominic, asserting that the Councillor “confirmed the inference available on cross-examination.”

[299] The exchange at issue is as follows:

COUNSEL O. O'KELLY: Okay. Madam court reporter, can you repeat my question, please.

THE STENOGRAPHER: "Question: Okay. So we just went through that section 187 is -- you were one of the complainants and that that was your position and that the report mostly confirmed your position. And so I can put the question another way, that you would have liked the chief -- or you would have had to have seen the chief agree with the report for you to be able to move forward with her in a positive way? Let's put it that way."

A So you want me to answer if -- if she would have admitted to the findings, whatever, and then saying, yes, okay, then we'll carry on in a positive way? Is that what you're telling me?

Q COUNSEL O. O'KELLY: I'm not telling you anything. I'm asking you that question.

A Well, that's what -- well, I'm trying to get this -- where you're telling me -- okay. We got the report. We went through it. And then from -- based on the findings, like, the misconduct had happened. So that's why we made the decision to remove her. But now you're asking me something else. I -- what if or something -- I don't know. Like, that's just not...

Q Well, you said here the chief -- so do you have an answer to my question or no?

A She still believes her actions were in the best interest, and at the time I don't believe that was.

Q Okay.

A But I can't -- you know, everyone has their own opinions. My opinion, though, is it was not.

Q Your opinion that it was not, did you say?

A Yes.

Q Not what?

A That what she -- what Judy was saying is not correct.

Q Okay. So you disagreed with her?

A Yes.

Q And is there anything that -- basically you decided here -- it says she said -- she said that what -- we had already decided to remove her as chief no matter what the investigation report said. Do you see that?

A Yeah.

Q Okay. And you said: (As read) This is not true ... No decision has been made until we deliberate today. Do you see that?

A Yes.

Q Okay. So is there anything that could have changed your mind from your position communicated in the section 187 report?

A No.

(emphasis added)

[300] A later exchange about the Applicant’s decisions (other than the Petronas Permits decision) that informed Councillor Dominic’s decision making was as follows:

Q Okay. And so -- but were they, in your mind - in the back of your mind when you made a decision to remove the chief?

A They were back of my mind, but that didn't -- that's not what made me make that decision

Q Okay. So --

A I know about them.

Q Yes.

A But that's -- that didn't make me made my up about the removal.

Q Okay. So is there anything that could have changed your mind that would have allowed to move forward with the chief as – or Judy Desjarlais as the chief?

A At the time, no.

COUNSEL N. MITHA: Sorry. What time frame are you talking about? Before she made the decisions or after?

COUNSEL O. O'KELLY: I'm talking about the decision. Like, her decision.

Q COUNSEL O. O'KELLY: Is there any

COUNSEL N. MITHA: On September 13th?

COUNSEL O. O'KELLY: Yes. I can't ask her about what she thought after.

[301] I agree that, viewed in isolation, the latter part of the first of these two cross-examination extracts would be problematic. However, at the beginning of the extract Councillor Dominic states that the Respondent Councillors had received the SMR Investigation Report, went through it and, based on its misconduct findings, decided on removal from office as the appropriate disciplinary action. She then denies having made a decision until the September 13, 2024 deliberations. She responded “no” to the question of whether there was anything that could have changed her mind “from [her] position communicated in the section 187 report”? This would appear to be contradictory to her immediately prior evidence. In the second extract the time frame contemplated by the question was clarified to be September 13, 2024 and could well be after the Applicant had made her submissions at the September 13, 2024 discipline meeting and as a result of the deliberative process that followed.

[302] However, I also agree with the Respondent Councillors that some further context is required. The minutes state that the meeting agenda is to consider what the consequences should be arising from the SMR Investigation Report. The minutes then set out the process followed at the meeting starting from hearing from the Applicant (the minutes record that she largely submitted what was in her written statement but also listing her additional comments), followed by deliberations to determine the outcome considering the SMR Investigation Report and section 199 of the By-law. The individual deliberations of each Councillor are then summarized, including Councillor Dominic’s objection to the Applicant’s assertion that a decision had already been made to remove her from office. Moreover, the Reasons set out in detail the basis for the decision to remove the Applicant from office.

[303] The contemporaneous evidence does not support that Councillor Dominic had pre-determined the issue and had a closed mind. Rather, it supports that the decision was based on the SMR Investigation Report, the Applicant’s submissions and the section 199 factors. As do the Reasons. Given this, and the conflicting cross-examination evidence of Councillor Dominic set out above, I am not persuaded that the Applicant has met the high bar necessary to establish bias by Councillor Dominic.

[304] The Applicant also asserts that Councillor Gauthier agreed that the investigation report “was her confirmation bias: the investigation report (regarding ‘PETRONAS, June 9th BCR, Ratcliff and Arbogast’) confirmed her ‘version of the facts’, i.e. the Subgroup [Respondent Councillors] Allegations.” There is no merit to this assertion. The SMR Investigation Report was independent and comprehensive. It made its findings and conclusions based on its assessment of the evidence before it. That it ultimately found that the allegations of misconduct (in two of the five) matters raised in the Section 187 Report were well founded does not amount to “confirmation bias.”

[305] Before leaving this point, I would observe that in her September 10, 2024, statement the Applicant acknowledged that as the SMR Investigation Report had been made, Council had to decide what discipline to impose and that this process is governed by the By-law. She stated that Council had options as to what measures to impose, it could do nothing, give a verbal or written warning, temporarily suspend or remove her from office. She asserted that all of the By-law factors were against removing her from office as, in her view, the most serious allegations against her honesty and integrity were not proven “and yet it seems clear that the four Councillors are determined to remove me. The section 187 report that started this whole process explicitly said that I should be removed – before any of the allegations and evidence had been considered by the investigator. The Councillors decided long ago to remove me, no matter what the investigation may find.”

[306] When appearing before me, counsel for the Applicant asserted that the fact that the Section 187 Report generated by the Respondent Councillors under sections 187 and 189 of the By-law and initiating the investigation, states, after setting out the grounds of the complaint, that “we seek removal of the Chief from office pursuant to s. 189(b)(ii) of the By-Laws,” demonstrates a predetermination of outcome by the Respondent Councillors.

[307] However, paragraph 189(b) states that a report under section 187 must set out either (i) the specific paragraph in section 184 to which the allegation of loss of confidence relates (the Section 187 Report identified sections 184(a),(c), and (d)) or “(ii) that they wish to seek removal of that Council member.” The fact that the Section 187 Report addresses both paragraphs 184(b)(i) and (ii) does not, in my view, establish a predetermination of outcome.

[308] The onus is on the Applicant to establish bias and the threshold for finding bias is high (Heron at para 63). Viewing the evidence in whole, in my view, the Applicant has not met the test to establish bias.

Conclusion

[309] For all of the above reasons, I have concluded that the September 13, 2024 decision by the Respondent Councillors to remove the Applicant from the office of Chief was reasonable and procedurally fair. Accordingly, this judicial review will be dismissed.

Costs

[310] At the hearing the parties requested to make post-hearing written submissions as to costs. I agreed that submissions not exceeding three pages in length could be submitted by December 10, 2025. An order determining costs will be issued separately.

JUDGMENT IN T-2700-24

THIS COURT’S JUDGMENT is that:

The application for judicial review is dismissed, and
There will be a separate order as to costs

"Cecily Y. Strickland"

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-2700-24
STYLE OF CAUSE:	CHIEF JUDY DESJARLAIS v COUNCILLOR WAYNE YAHEY, COUNCILLOR SHELLEY GAUTHIER, COUNCILLOR TROY WOLF, COUNCILLOR SHERRY DOMINIC, AS COUNCIL, REPRESENTTIVES OF BLUEBERRY RIVER FIRST NATIONS, AND COUNCIL OF THE BLUEBERRY RIVER FIRST NATIONS
PLACE OF HEARING:	Vancouver, British Columbia
DATE OF HEARING:	December 4, 2025, December 5, 2025
JUDGMENT AND REASONS:	STRICKLAND J.
DATED:	december 18, 2025

APPEARANCES:

Orlagh J. O’Kelly

For The Applicant

Nazeer T. Mitha

Pam Murray

FOR THE RESPONDENTS

(COUNCILLOR WAYNE YAHEY, COUNCILLOR SHELLEY GAUTHIER, COUNCILLOR TROY WOLF, COUNCILLOR SHERRY DOMINIC)

Joseph Ensom

Tessa Latowsky

For The Respondents

(COUNCIL OF BLUEBERRY RIVER FIRST NATIONS)

SOLICITORS OF RECORD:

O'Kelly Law

Edmonton, Alberta

For The Applicant

Mitha Law Group

Vancouver, British Columbia

FOR THE RESPONDENTS

(COUNCILLOR WAYNE YAHEY, COUNCILLOR SHELLEY GAUTHIER, COUNCILLOR TROY WOLF, COUNCILLOR SHERRY DOMINIC)

Poulus Ensom Smith LLP

Vancouver, British Columbia

For The Respondents

(COUNCIL OF BLUEBERRY RIVER FIRST NATIONS)

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Desjarlais v. Yahey, 2025 FC 1992

Citations2025 FC 1992

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iii. Scope of the judicial review

Citations
2025 FC 1992