Date: 20031016
Docket: T-1909-03
Citation: 2003 FC 1213
Vancouver, British Columbia, Thursday, the 16th day of October, 2003
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
CAROL BEAUSEJOUR, DARRYL JOSEPH
and MATTHEW JOSEPH
Applicants
- and -
ALFRED JOSEPH SR., HOWARD VINCENT,
DARCY JOSEPH (acting together as the
"YEKOOCHE FIRST NATION APPEAL BOARD"),
ALLAN JOSEPH, CURTIS JOSEPH,
ANDREW JOSEPH, LINDA BASIL and the
YEKOOCHE FIRST NATION INDIAN BAND
Respondents
REASONS FOR ORDER AND ORDER
[1] Carol Beausejour, Darryl Joseph and Matthew Joseph (the "Applicants") have commenced an application for judicial review and seek an order quashing the decision of the Appeal Board of the Yekooche First Nation (the "Respondent"). That decision, undated, was apparently made on or about October 2, 2003. The decision purported to vacate the results of an election held on August 25, 2003, to fill the positions of Chief and Council of the Yekooche First Nation. The Applicant Carol Beausejour was elected Chief and the Applicants Darryl Joseph and Matthew Joseph were elected as two, out of three, Councillors, following the August 25, 2003 election.
[2] The Applicants now bring a motion on an urgent basis seeking the issuance of an interlocutory injunction against the holding of an election, scheduled for October 17, 2003.
[3] In allowing the appeal, the Appeal Board made the following decision:
The decision of the Appeal Board is to uphold the appeal and call for a re-voting for the positions of Chief and Council as soon as possible.
[4] The Applicants allege that the decision of the Appeal Board is flawed because the Appeal Board failed to follow the proper appeal procedures as set out in the Yekooche First Nation Election Code dated July 15, 1999, as subsequently amended, particularly in relation to section 7.5. Although the provisions require verification of the details of a notice of appeal by affidavit, no such affidavits were submitted to the Appeal Board in this case.
[5] As well, the Applicants allege that the Appeal Board breached the principles of natural justice by failing to accept submissions from elders concerning the Appeal. Third, the Applicants say that the Appeal Board improperly included in its composition an employee of the Yekochee First Nation, a Mr. Howard Vincent. As an employee, he would have an interest in the outcome of the appeal process.
[6] The Applicants initially requested the Court to entertain their motion for an interlocutory injunction on an ex parte basis. The request was denied and the Applicants subsequently served, by facsimile, Chief Allan Joseph, the Respondents Curtis Joseph, Andrew Joseph, Linda Basil and the Respondent Yekooche First Indian Nation Band. The Applicants also served the legal counsel for the Yekooche First Nation Indian Band, by facsimile. The Appeal Board was not served, due to time constraints.
[7] The Applicants prepared, served and filed a motion record. No motion record was served and filed on behalf of the Respondent who had been served by counsel who appeared on behalf of the Yekooche First Nation and relied on his letter dated October 15, 2003, as well as oral submissions made in the course of the hearing.
[8] The Applicants acknowledge that in order to obtain an interlocutory injunction, they must meet the tri-partite test according to the principles set out in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. They must show that the underlying application for judicial review raises a serious issue, that irreparable harm will result if the relief sought is denied and that the balance of convenience lies in their favour.
[9] I am satisfied that the Applicants have met the first part of the test. In my opinion, the underlying application for judicial review raises a serious issue. The application challenges the Appeal Board's compliance with the appeal process set out in the Yekooche First Nation's Election Code.
[10] However, I am not persuaded that the Applicants have established that they will suffer irreparable harm if the injunction is denied. The irreparable harm in question must be personal to the Applicants and not some generalized harm to the community at large. In this regard, I refer to Eli Lilly and Co. v. Novopharm Ltd. (1996), 69 C.P.R. (3d) 455 (F.C.A.), relied on in Dodge v. Caldwell First Nation of Point Pelee, [2003] F.C.J. No. 45 at paragraph 23:
In the present case, the Applicant has failed to show that he personally will suffer irreparable harm if the election proceeds as scheduled on February 1, 2003. According to the transcripts of the cross-examination conducted of the Respondent Chief, the Applicant is a candidate for election to Council in the pending election. The Respondent Chief is one of two candidates for the position of the Band Chief. According to these cross-examinations, both the Applicant and the Respondent Chief recognize that either of them may be unsuccessful in the pending election. The possibility of losing the election does not constitute irreparable harm.
[11] In this case, the Applicants argue that the election scheduled for October 17, 2003, should not take place. They say that holding this election will destroy the legitimacy of the election held on August 25, 2003, and reduce it to nothing more than an event of historical significance. This argument has some appeal, especially since the Applicants have raised serious questions about the process by which the election results of August 25, 2003, were set aside. However, the Applicants have not produced evidence that they themselves will suffer irreparable harm if the October 17 election proceeds.
[12] For that reason, this motion for an interlocutory injunction must be dismissed.
[13] It is not necessary to address the issue of balance of convenience. There will be no order as to costs.
ORDER
The Applicants' motion for an interlocutory injunction is dismissed. No order as to costs.
(Sgd.) "Elizabeth Heneghan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1909-03
STYLE OF CAUSE: CAROL BEAUSEJOUR et al.
v. ALFRED JOSEPH SR. et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 16, 2003
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: October 16, 2003
APPEARANCES:
Mr. Scott Nicoll FOR APPLICANTS
Mr. Terrance Matte FOR RESPONDENTS
SOLICITORS OF RECORD:
Hamilton Duncan Armstrong & Stewart FOR APPLICANTS
Hope Heinrich FOR RESPONDENTS
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