Date: 20051216
Docket: T-1846-05
Citation: 2005 FC 1703
Ottawa,
Ontario, December 16,
2005
PRESENT:
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
SIMON AWASHISH and
CHANTAL AWASHISH and HUBERT CLARY
Applicants
and
OPITCIWAN ATIKAMEKW BAND COUNCIL
and JEAN-PIERRE MATAWAW and MARTIN
AWASHISH and
MARIA CHACHAI and RÉGINA CHACHAI and
PAUL AWASHISH and FERNAND DENIS-DAMÉE and
BONIFACE AWASHISH
Respondents
and
THE ATTORNEY GENERAL OF CANADA
Third Party
REASONS FOR ORDER AND ORDER
TREMBLAY-LAMER
J.
[1]
This
is a motion for an order of interlocutory injunction brought under section 18.2
of the Federal Courts Act, R.S.C., (1985) c. F-7 and sections 359 et
seq. of the Federal Court Rules, 1998 SOR/98-106.
[2]
The
applicant Simon Awashish had been elected as Chief of the Band Council of the
Opitciwan Atikamekw (the “Band Council”) on February 13, 2003. However, as a result of the
elections on July 18 and 19, 2005, in which the applicant ran for re-election,
the following respondents were elected: Jean-Pierre Matawaw, as Chief, Martin
Awashish, as Vice-Chief, and Maria Chachai, Régina Chachai, Paul Awashish,
Fernand-Denis Damée and Boniface Awashish, as councillors.
[3]
Following
this election, five complaints were filed before the Appeal Committee under the
Band Council Electoral Code. On September 15, 2005, the Appeal Committee
cancelled the elections held on July 18 and 19, 2005. It ordered new elections
and decreed that the status quo be maintained in the meantime by reinstating of
the former members of the Band Council.
[4]
Following
this decision, the Band Council Elections Committee held a general meeting on September 21, 2005, at which time it rejected
the decision rendered by the Appeal Committee and declared valid the elections
held on July 18 and 19, 2005.
[5]
First of
all, the respondents invoked the matter of the jurisdiction of this Court. The
respondents claimed that the application for judicial review concerned the
decision made on September 21, 2005 by the assembly of Band members and not the
decision rendered by the Band Council. In effect, the decision rendered on September 21, 2005 was made by the assembly of
Band members. Sections 74 et seq. of the Indian Act, R.S.C.
(1985), c. I-5 concerning elections of the Chief and Band Council do not
apply to the Opticiwan Atikamekw Band. On September 21, 2005, the assembly
acted within its inherent authority in compliance with custom. When acting
according to custom, the assembly has all powers. It is not a “federal board”
within the meaning of section 2 of the Federal Courts Act.
[6]
I do not
accept this argument. The general assembly was convened by the Band Council
Elections Committee, which had been appointed under paragraph 16.2 of the
Electoral Code. Contrary to what the respondents allege, there is strong
evidence showing that the Electoral Code represents the custom of the
Band.
[7]
The
applicable custom when a Band Council is to be chosen in cases not governed by
section 74 of the Indian Act, ibid., “must include practices for the choice
of a council generally acceptable to members of the band upon which there is a
broad consensus”: Bigstone v. Big Eagle (1992), 52 F.T.R. 109; Bone
v. Indian Band No. 290 of Sioux Valley (1996), 107 F.T.R. 133. In this
case, the Electoral Code was validly adopted by resolution following
consultations with the community on May 31, 2005.
[8]
I also
underline the fact that in Sparvier v. Cowesses Indian Band, [1993] 3
F.C. 142 (T.D.), it was decided that an Indian Band Council elected in
compliance with custom is subject to the jurisdiction of the Federal Court,
just like an election held under the Indian Act, supra. Accordingly, the
Federal Court has jurisdiction to hear this matter.
[9]
As regards
the merits of this motion, it is settled law that the test to be applied when
deciding to grant an injunction is the three-stage test described by the
Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311. The applicants must show that (1) there is a serious issue
to be tried; (2) irreparable harm will be caused if the injunction is not
granted; and (3) the balance of convenience is clearly in their favour. The
three elements of the test must be proven by the applicants for relief to be
granted.
[10]
I am
satisfied there is strong prima facie evidence of the illegality of the
decision made on September
21, 2005.
Although paragraph 19.12 of the Electoral Code specifies that the
decision rendered by the Appeal Committee is final, the Election Committee
convened a general assembly, which reversed the Appeal Committee’s decision,
contrary to the procedure under the Electoral Code. As I wrote in Gabriel v.
Mohawk Council of Kanesatake, [2002] F.C.J. No. 635 (T.D.), at
paragraph 21: “Any electoral process that does not respect the Code does not
appear to represent the generally-accepted practice and should not be viewed as
the custom of the Band”.
[11]
As
far as irreparable harm is concerned, in Gabriel v. Mohawk Council of
Kanesatake, ibid., I was of the opinion that the prestige that comes with
the office of Chief could not be compensated by an award of damages and that,
for this reason, the loss of this position constituted irreparable harm:
[26] . . . The jurisprudence makes it
clear that the office of Chief is political and that the law concerning
wrongful dismissal does not provide for remedies for loss of elective office.
This was recognized by my colleague MacKay J. in Frank v. Bottle et al
(1993), 65 F.T.R. 89 at paras. 27-28 where he said:
In my view the law
concerning wrongful dismissal, and damage awards for that, deals with
situations of employer-employee relations and it does not provide for remedies
for loss of elective office. The Chief is not an employee of Council nor in my
view can he be considered an employee of the Tribe. The office of Chief is
political, filled by valid election, with attendant responsibilities that
transcend any concept that he is an employee of the Tribe, just as is the
office of council member.
. . . Without
determining the issues which are not before the Court, in my view, he would
have no claim in damages for wrongful dismissal and probably no realistic
monetary claim for loss of reputation.
See also Jock v. Canada , [1991] 2 F.C. 355 at para. 51
(T.D.) where Teitelbaum J. explained that as elected officials, the grand chief
and chiefs are not deputies or servants and thus cannot be dismissed at the
will of someone else.
[27] Therefore, if I did
not grant an injunction and the applicant subsequently succeeded with his
application for judicial review, he would not be entitled to the relief
normally available to employees who have been dismissed. This, in my view,
constitutes irreparable harm.
[28] Further, the
position of Grand Chief is a prestigious one. In the words of MacKay J. “[t]he
position of Chief is one of great honour within the Tribe . . . ." (Frank
v. Bottle et al, supra, at para.26).
[29] The Grand Chief
acts as a spokesperson for the Council and the community. This is a very
important role, as he can speak out on various policies and issues affecting
the community and have a considerable impact on public opinion. Loss of
prestige cannot be compensated in damages.
[12]
This
reasoning also applies in this case, because the role of Chief confers a
certain prestige to the incumbent, as the Chief is something of a
representative of the Band Council and the community.
[13]
In Attorney
General of Canada v. Gould, [1984] 1 F.C.1133 (C.A.), Mahoney J.A.
mentioned that, in deciding a motion for an interlocutory injunction, the
balance of convenience requires that the status quo be preserved or restored
pending final decision on judicial review (Gould, ibid., at page 1140).
[14]
Likewise,
in this case, I am of the opinion that the balance of convenience warrants
maintaining in office the persons who validly held elected positions at the
time the elections were called, until the Federal Court renders a decision on
the application for judicial review. This is, moreover, the solution suggested
by the appeal committee.
[15]
Contrary
to the respondents’ claims, I do not feel that the withdrawal of the incumbents
from the positions of Chief and councillors of the Band council will result in
much unrest within the community. First of all, the respondent Jean-Pierre
Matawaw is facing a criminal charge of sexual assault under subsection 271(2)
of the Criminal Code. Paragraph 14.7 of the Electoral Code automatically
suspends a chief charged with an offence under the Criminal Code.
Therefore, he presently cannot hold office and, in my opinion, this may cause
more instability than a return to the previous status quo. Simon Awashish, as
well as a sufficient number of elected councillors, affirmed in their
affidavits to be willing to hold office until new elections are held, so as to
ensure proper management and administration of the Band Council.
[16]
For these
reasons, I conclude that the applicants have met the requirements of the test
for the issue of an interlocutory injunction.
[17]
Following
the presentation of the motion last December 6, the parties jointly requested
that the Court suspend its decision for one week to allow them to try to reach
an agreement. Unfortunately, no agreement was reached.
[18]
In
conclusion, it is not up to the Court to determine if it is preferable for a
general election to be immediately called to elect a new Band Council. However,
it is important to stress how important it is for everyone to work together to
attain the community’s goals. No injunction or application for judicial review
can replace cooperation between Band members.
ORDER
THE COURT ORDERS:
[1]
The motion
for an interlocutory injunction is allowed. The status quo existing prior to
the decision made on September 21, 2005 is restored.
[2]
The
following respondents are removed from their functions within the Opticiwan
Atikamekw Band Council (the “Band Council”): Jean-Pierre Matawaw, Martin
Awashish, Maria Chachai, Régina Chachai, Paul Awashish, Fernand Denis-Damée and
Boniface Awashish, who were illegally declared elected as a result of the
elections held on July 18 and 19, 2005.
[3]
The
applicant Simon Awashish is reinstated to his functions as Chief of the Band
Council, and Maria Chachai, Fernand Denis-Damée, Marc Awashish, Hubert Clary,
Denis Clary, Pete Chachai, Louis-Michel Dubé, Johny Chachai and Charles
Jean-Pierre are reinstated to their functions as councillors of the Band
Council until the Court renders a decision on the application for judicial
review.
[4]
The
respondents Jean-Pierre Matawaw, Martin Awashish, Maria Chachai, Régina
Chachai, Paul Awashish, Fernand Denis-Damée and Boniface Awashish will render
account to the applicants in their capacity as Chief and councillors of the
Band Council of the complete administration of the Band Council on July 19, 2005, specifically to:
a. Disclose and produce within
seven days of this order the originals of all decisions made, resolutions
adopted or acts performed in the alleged exercise of their authority within the
Band Council, including all related documents;
b. Within seven days of this
order, give an accounting of all funds, advantages and amounts of money received
or paid in the exercise of their powers in their own name or in the name of the
Band Council;
c. Disclose and produce within
seven days of this order all the documents in the respondents’ possession or
control concerning the administration of the Band Council;
[5]
With costs
against the respondents.
“Danièle
Tremblay-Lamer”
Certified
true translation
Michael
Palles
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