Date: 20061005
Docket: T-1649-06
Citation: 2006 FC 1187
Ottawa, Ontario, October 5,
2006
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
IRVIN McIVOR, DENNIS McIVOR,
and HERMAN RICHARD
Applicants
and
THE ATTORNEY GENERAL OF CANADA
and THE MINISTER OF INDIAN AFFAIRS (CANADA)
Respondents
REASONS FOR
ORDER
Introduction
[1]
This
proceeding is for a motion for an interlocutory injunction to stop an election
for the Sandy Bay Band Council (“Band”) to be held on October 11, 2006: for an
injunction to stay the effect of an order in council which set aside the
election of the Applicants as Band councillors at an election held on September
8, 2005, or in the alternative an order reinstating them as councillors; and an
interlocutory injunction staying the appointment of a Third Party Manager for
the Band. I heard the motion on September 29, 2006 and later that day
dismissed it for reasons which were to follow. These are those reasons.
Facts
[2]
A
Band election was held on September 8, 2005 at which time Irvin McIvor one of
the Applicants was elected Chief, and the other Applicants, Denis McIvor and
Herman Richard, together with two other members were elected councillors. As
authorized under paragraph 79(a) of the Indian Act (“Act”), R.S., 1985,
c. I-5, and sections 12-14 of the Indian Band Election Regulations,
C.R.C. 1978, c. 952, an appeal was submitted on October 6, 2005, by an unsuccessful
candidate at the elections, complaining of irregularities in the conduct of the
elections, principally arguing that certain Band members had received payments
for their votes. As required by subsection 12(2) of the Regulations, copies of
the appeal and supporting documents were sent to each of the candidates and
they had an opportunity to respond. Subsequently, the Minister of Indian
Affairs (“Minister”) appointed an investigator who was required by law to
submit a detailed report of the investigation to the Minister. Subsequently,
the Minister recommended to the Governor in Council that the September 8, 2005 election
be set aside because of corrupt practices, such action being authorized by
paragraph 79(a) of the Act. On August 29, 2006, the Governor in Council
adopted an order in council setting aside the election. Shortly thereafter the
Applicants filed an application for judicial review of the order in council and
this motion for injunctions to stop the holding of the new election etc. until
the judicial review is heard and determined.
[3]
Further
relevant facts will be referred to in the analysis.
Analysis
[4]
I
have applied the established criteria for the issue of such injunctions: namely,
I have to determine:
a.
whether
there is a serious issue to be determined in the judicial review;
b.
whether
the grant of, or refusal to grant, the injunctions will cause irreparable harm
to one side or the other; and
c.
does
the balance of convenience favour the grant or refusal of the injunctions
Serious Issue
[5]
I
have concluded that in the circumstances I must go further in the analysis of
the issue then simply decide whether it is vexatious or frivolous. In this case,
one order requested would have the effect of reinstating the Applicants as
Chief and Councillors for an indefinite period, which is the remedy they seek
in the judicial review. I think this aspect of the case falls within the
exemption made by the House of Lords in NWL Ltd. v. Woods, [1979] 1 WLR
1294 and I must give some consideration to the merits of the judicial review
application.
[6]
There
are important challenges to the grant of the remedies sought in the judicial
review. There is a possible obstacle to the Applicants obtaining an injunction
against the Minister. To do so would require that he be shown to have done
something beyond his powers: see, for example, Saugeen Band of Indians v. Canada (Minister of
Fisheries and Oceans), [1992] 3 FC 576 (FCTD) at paras. 29-35. It is
not clear to me that the Applicants are alleging that the Minister acted in
excess of his powers. Another fundamental problem for the Applicants will be
that their principle complaint is that the order in council was passed by the
Governor in Council without according them adequate fairness in procedure. In
fact, they were given notice of the appeal of the election and copies of all
documents filed in support of the appeal, and they had an opportunity to
respond in writing before the Governor in Council considered the matter.
However, they complain that they should have been made aware of the
investigator’s findings and of other evidence beyond the material provided to
them in the form of the complaints and supporting documents. To attack the
decisions of the Governor in Council on procedural grounds could be very
difficult: see, for example, Canada v. Inuit Tapirisat [1980] 2 F.C.R.
735. The Applicants placed a great deal of reliance on a decision of this
Court in Gull Bay First Nation v. Canada (Attorney General), [2005]
F.C.J. No. 1332, a decision rendered by Justice François Lemieux on August 10,
2005 in which he granted an interlocutory injunction in somewhat similar
circumstances, halting an election and reinstating nine of twelve councillors
who had been disqualified by the fact that their last election had been set
aside by order in council. I think that there are several grounds upon which
that case can be distinguished. It involved an appeal under paragraph 79(c) of
the Act against the last election on the alleged grounds that six of the twelve
councillors elected were not residents on the reserve. It was concluded that
only three councillors were disqualified but the Governor in Council nevertheless
set aside the election of all twelve councillors. In the present case the
appeal which brought about the order in council was made under paragraph 79(a)
of the Act and was an attack, not on the eligibility of certain councillors,
but on the validity of the election process itself. Justice Lemieux in his
remedies only reinstated the nine councillors who were not challenged as to
eligibility. In that case a Charter issue was also being raised as to the
residency requirement, which of itself involved a serious issue given the state
of recent jurisprudence on this matter. In that case the Crown did not
seriously challenge the facts alleged by the applicants. There was an assumption
that an unfair procedure had been involved because the Applicants had not been
notified of the contents of the investigation. The issue of the jurisprudence
in the Inuit Tapirisat case, above, was apparently not raised.
[7]
While
I need not and do not attempt to decide the merits of the judicial review and have
not denied the motion for an injunction on this basis, to the extent that I was
obliged to inquire deeper into the merits than would normally be the case, I
find them highly debatable.
Irreparable
Harm
[8]
I
am not satisfied that the Applicants will suffer irreparable harm if the order
in council continues to operate pending the judicial review. Although the
Applicants filed evidence indicating serious disruption of Band business and
financial affairs if the order in council remains in effect, such evidence was
of a very general nature and some of it probably inadmissible as opinion
evidence or hearsay without identification of its source. Subsequently, the
Respondent filed several affidavits from staff of the Department of Indian
Affairs (“Department”) which detailed the steps that have been taken jointly by
the Department and the Third Party Manager which is in place to take care of
virtually all of the problems foreseen in the affidavits filed by the
Applicants. Further, although the Applicants when they filed the materials
were not certain as to when the election would take place, it has now been
confirmed for October 11, 2006, some twelve days after the date of my order
dismissing the motion. The evidence also is that in the meantime a nomination meeting
has been held for candidates for these elections and the three Applicants in
this proceeding have all been nominated as candidates. They will have their
opportunity to once again assume office if they enjoy the continuing support of
Band members.
[9]
The
Applicants in their affidavits and submissions speak of the harm that has been
done to their reputations by the order in council and its continuation. As I
noted above, this proceeding which was taken under paragraph 79(a) of the Act
is based on the protection of the integrity of the election system free of
corrupt practices. Nothing in the order in council setting aside that election
identifies in any way these particular Applicants. To the extent that any of
them have been named in the appeal process by other members of the Band, the
effects of those allegations will not be undone by an interlocutory injunction
stopping the operation of the order in council. In rather similar
circumstances, Justice Max Teitelbaum in Simon v. Canada (Minister of
Indian Affairs), [1999] F.C.J. No 1736, refused an injunction because he was
satisfied that the applicants had not shown any irreparable harm if new
elections took place. He pointed out that on the other hand if he were to stop
the new elections, and keep the applicants in office as councillors until the
judicial review is determined, and if the judicial review were dismissed, he
would then have kept in office councillors disqualified by order in council. I
have also kept this consideration in mind.
[10]
I
therefore found the lack of insufficient evidence of irreparable harm in the
present case to be the most important factor in my decision to dismiss the
motion.
Balance of
Convenience
[11]
I
concluded that the most important principle here, as enunciated by the Supreme
Court in Manitoba v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R.
110, paragraphs 36-90 is that in balancing the interests of private individuals
versus the public interest in allowing public authorities to carry out public
policy, preference must be given to the public interests. In this case,
Parliament has provided the Governor in Council with a power of oversight of
certain Band elections. It is no doubt a power to be used sparingly. Nor is
it necessarily the wisest or fairest method of oversight. But no one has
suggested it is unconstitutional and while the law remains as it is I felt more
importance should be attached to the exercise of this public authority than to
the private interests of Band councillors.
Conclusion
[12]
For
these reasons, I dismissed the motion for the injunctions or reinstatement,
with costs.
"B.
L. Strayer"
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