Date: 20100702
Docket: T-2003-09
Citation: 2010
FC 722
OTTAWA, Ontario,
July 2, 2010
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
JOHN
M. LABOUCAN
Applicant
and
LITTLE RED RIVER CREE
NATION #447
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Laboucan is asking the Court to set aside the decision of the Little Red River Cree Nation #447
(LRRCN) Chief and Council removing him from his position of Councillor of the
LRRCN.
[2]
For the reasons that
follow, this application for judicial review is allowed.
Background
[8]
In April 2008, the
applicant agreed to take a temporary and voluntary leave of absence with pay
until the charges were dealt with. Once on voluntary leave, Mr. Laboucan was no
longer provided with notice of the date and place of Council meetings and he
did not attend any such meetings.
[9]
Mr. Laboucan alleges
that, on September 2, 2008, the charge against him was withdrawn and that he
entered into a peace bond which required him not to have any contact with Mark
Adams. In its memorandum, the respondent appears to dispute that the charge was
withdrawn saying that the applicant received an alternative sentence for the
criminal charge with a restraining order against John Laboucan. However, in his
affidavit, Chief Loonskin categorically states that the charges laid against
the applicant had been withdrawn (para. 7).
[10]
The applicant then
contacted the LRRCN Band office. He advised them that he wanted to return to Council
as the charge had been withdrawn and requested information regarding the next
Council meeting. As he received no response, he later contacted the LRRCN
Administrator and asked to be invited to a Council meeting. He also talked to
four of his fellow Councillors (the Four Councillors) about the withdrawal of
the criminal charge and asked them to speak to the Chief and the other
Councillors about his return. All of his efforts remained unsuccessful.
[11]
In November 2008, the applicant wrote a
letter to Council regarding the fact that he was not being informed of Council
meetings.
He also expressed concerns regarding the fact that he was not involved in the
affairs of the band as an elected member of Council ought to be.
[12]
On December 1, 2008,
Chief Loonskin responded to the applicant’s letter. He wrote:
In your memo, you
claim there is concern that you have not been fulfilling your duties and
responsibilities as an elected member of Council. There is nothing to be
concerned about, you have no duties and responsibilities; you are still on
voluntary leave of absence (another term of SUSPENSION), with pay, due to
criminal charge you received under the Criminal Code of Canada.
[Emphasis added]
The
letter also stated that, as the Council still considered the matter not to be
resolved, the applicant had to provide information to the Council with respect
to the status of his criminal charge. While it further directed the applicant
to request in writing a meeting with Council in order to brief them on
the latter issue, it did not provide any explanation regarding the applicant’s
prior unanswered requests. Concerns regarding the fact that the applicant was
now living in John D’Or Prairie were also expressed in the letter which stated
that the issue related to the residency requirement was to be settled by the
Nation members.
[13]
Thereafter, the
applicant continued to make verbal requests to band staff and to the Four
Councillors, without success.
[14]
On October 19, 2009,
Chief Loonskin called a Council meeting in Edmonton
in order to “review, discuss and decide on the matters related to Councillor
John Laboucan’s non-compliance with terms and conditions related to his absence
from Council”.
The applicant and the Four Councillors were not notified of this meeting. At
that time, Chief Loonskin and the other five Councillors agreed to remove Mr.
Laboucan from his Portfolio and from Council. Chief Loonskin who had apparently
sought legal advice in this respect told the five Councillors present that a
formal resolution of the Council was not necessary to effect such removal.
[15]
Despite the fact that
the Chief then met with the Band’s legal counsel after the meeting to draft the
removal letter, he did not send the said letter to Mr. Laboucan until October
30, 2009. It stated simply:
Over
one year ago, you agreed with Chief and Council to take steps to remedy issues
surrounding your attendance at and participation on the Council for Little Red
River Cree Nation. On December 1, 2008, I responded to a memo from you dated
November 27, 2008. Since that time, you have failed to participate in or attend
any Council Meetings.
Pursuant to section J.1 of Portfolio Officers and Governance
Policy Guidelines
you are removed from office for failure to attend any Council Meetings in 2009.
[Emphasis
added; underlined in the original]
[16]
Section
J.1 of the Policy reads as follows:
J. Discipline and Removal of Portfolio
Officers
1. Absence without leave
A Portfolio Officer must attend to the regular duties
associated with the Portfolio. He must also attend all council meetings, unless
excused by Chief and Council in writing. Absence from two Council meetings or
two Portfolio meetings in a row, without leave, may result
in revocation of the Portfolio Officer’s authority and any associated
compensation or benefits. He or she will remain a Councillor (unless such
authority is also removed), but will no longer have the duties, privileges
or responsibilities of a Portfolio Officer.
[Emphasis added]
[17]
His honorarium was
stopped on the day he received the letter.
[18]
On November 30, 2009,
the applicant filed a Notice of Application for judicial review of Council’s
decision.
Issues
[19]
The
issues raised by Mr. Laboucan can be summarized as follows:
1.
Did the LRRCN Chief
and Council have jurisdiction to remove the Applicant from his position on
Council?
2.
Did the LRRCN Chief
and Council breach the rules of natural justice and procedural fairness?
3.
If the Court
concludes that there was no breach of the rules of natural justice and the
decision was within the jurisdiction of the Council, was the decision
reasonable?
Analysis
[20]
The standards of review applicable here have already been
established by this Court, therefore, as was stated in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 57 (Dunsmuir),
there is no need in the present case to engage in a full standard of review
analysis.
[21]
The applicable standard of review
to the issue of jurisdiction of Council is that of correctness: Martselos v. Salt River Nation #195, 2008 FCA 221, 168 A.C.W.S. (3d) 224 at paras. 28-32
(Martselos); Jackson v. Piikani Nation, 2008 FC 130, 164 A.C.W.S.
(3d) 549 at para. 17. In fact, such question relates to the interpretation
of the Code by the Chief and Council of LRRCN. This is a question of law for
which no deference is owed.
[22]
As for the issue of
the breach of procedural fairness, it is now well settled that it is reviewable
using the correctness standard of review: Dunsmuir, at para. 50.
[23]
If the
Court concludes that Council had jurisdiction to make the impugned decision and
that there was no breach of procedural fairness, the decision to remove the
applicant from his position of Councillor would be reviewable against the
standard of reasonableness: Prince
v. Sucker Creek First Nation #150A,
2008 FC 1268, 303 D.L.R. (4th) 438 at para. 22 (Prince) conf. 2009 FCA
40, 387 N.R. 173; Martselos, at paras. 28-32.
Did the LRRCN
Chief and Council have jurisdiction to remove the Applicant from his position
on Council?
[24]
Mr.
Laboucan argues that the Policy only grants authority to the Council to
discipline and remove Portfolio Officers, and not Councillors. Also, the Code provides no such authority and
no accepted Band custom was established by the respondent. In fact, he argues
that the only evidence with respect to LRRCN customs concerning removal of
Councillor is that a majority vote of the LRRCN membership is required. Such a vote
never took place.
[25]
The
respondent relies on section J.1 of the Policy particularly the mention in brackets
which, according to it, is an implicit grant of authority or at least
recognition of the power of the Chief and Council to remove a Councillor. At
the hearing, counsel for the respondent pleaded that at common law, municipal
councils have the right to remove members of the councils and that this applies
to Band Councils which have often been said to have powers akin to those of
municipal councils. In its memorandum, the respondent deals with the issue of
jurisdiction in a single paragraph which refers to the decision Kamloops Indian Band v. Gottfriedson, [1982] 1 C.N.L.R. 60, 21 B.C.L.R. 326 (B.C.S.C.).
[26]
When pressed by the
Court to explain this position and provide some more relevant authorities, it
quickly became apparent (especially when reviewing the doctrine allegedly
supporting this view after the hearing) that this position was totally flawed. In fact, it is quite clear
that even municipal council have such jurisdiction only when a relevant statute
gives them express authority to do so.
[27]
In fact,
the removal of a Councillor between elections does not seem to be consistent
with the Code which provides that the term of office should not exceed four
years, unless otherwise stated in the Code (section 5).
[28]
The Code provides a
complex procedure for amendments. In fact, pursuant to section 23, an amendment
is initiated by a written request to Council and if Council decides to consider
such amendment, it must then submit the proposed amendment to the members of
the Band during a public amendment meeting. Notice of the amendment meeting
shall also comply with the requirements of this provision. The Code will be
added, repealed or amended if the change is approved by consensus by the
members in attendance or, in the absence of consensus, by a majority vote (51 %
of eligible voters) held by secret ballot.
[29]
As mentioned, in the
absence of an express provision in the Code, the respondent had the burden of
establishing the existence of an accepted Band custom which could modify or
complete the Code: Samson Indian Band v. Samson Indian Band (Election Appeal
Board), 2006 FCA 249, 352 N.R. 119.
[30]
The respondent filed
no evidence in this respect. In fact, the only relevant evidence is contained
in the affidavits of the applicant and of Floyd Auger which both state that
they are not aware that any Councillor has ever been removed or disciplined because
he or she faced criminal charges or did not reside in the Community he or she
represented.
They also declare that they are not aware of any LRRCN custom that would allow
the Chief and Council to remove a Councillor from office.
[31]
In these
circumstances, it is evident that the Policy adopted solely by Council cannot
provide any legal basis supporting the Council’s authority to remove a Councillor
from anything other than his or her Portfolio.
[32]
Moreover, this is
confirmed in the Policy itself. In effect, section A.1 of the Policy provides
that “[…] [n]othing in this policy is intended to limit a Council member’s
ability to carry out the usual responsibilities as an elected representative of
the Council on behalf of his or her members in accordance with custom and
conventions of the Little Red River Cree Nation”. Thus, it may be useful here
to repeat the analogy used during the hearing. Portfolio officers are somewhat
like the members of Cabinet of a parliamentary government who are appointed as
Ministers by the Prime Minister (here the Chief) while a similar analogy can be
drawn between the Councillors and Members of Parliament. Evidently, a duly
elected Member of Parliament cannot be removed from his seat by the Prime
Minister or the Cabinet unless expressly authorized by statute.
[33]
There was much
discussion about the right to even remove Mr. Laboucan from his Portfolio in
this case. For reasons given under procedural fairness, the Court agrees with
the applicant that this was also improperly done.
Did
the LRRCN Chief and Council breach the rules of natural justice and procedural
fairness?
[34]
The
applicant submits that the Chief and Council breached the rules of procedural
fairness and natural justice by failing to notify him of the meeting and to
provide him with a meaningful opportunity to respond. These rights are the most
basic requirements which, even without performing the full analysis developed
in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817, 174 D.L.R. (4th) 193 (Baker), would be included in the duty of
fairness owed by Council. In any event, he argues that a contextual analysis
using the Baker factors further confirms that the Chief and Council were
in fact subject to “an extremely high standard of fairness”.
[35]
The
Respondent’s argument is twofold:
a. The letter dated December 1, 2008 was a
sufficient and proper notice to Mr. Laboucan regarding the information he
needed to provide to return to Council. It allowed him to make representations
(see para. 23 of the respondent’s memorandum).
b. Mr. Laboucan could and should
have known of the date and place of the Council meetings (see para. 8 of the
respondent’s memorandum).
[36]
It is now settled law
that Band Councils must act according to the rule of law. This implies that Council
must act in accordance with the duty of procedural fairness when taking
decisions which may affect the legal rights or interests of a band member. In Sparvier
v. Cowessess Indian Band, [1993] 3 F.C. 142, 63 F.T.R. 242 at paras. 47-48,
Justice Marshall Rothstein (as he then was) wrote :
While I accept the importance of an autonomous process for
electing band governments, in my opinion, minimum standards of natural justice
or procedural fairness must be met. I fully recognize that the political
movement of Aboriginal People taking more control over their lives should not
be quickly interfered with by the courts. However, members of bands are
individuals who, in my opinion, are entitled to due process and procedural
fairness in procedures of tribunals that affect them. To the extent that this
Court has jurisdiction, the principles of natural justice and procedural
fairness are to be applied.
In deciding what "principles" should apply to the matter
at bar, I have had regard to the Supreme Court of Canada decision in Lakeside
Colony of Hutterian Brethren v. Hofer, S.C.C. File # 22382, October 29, 1992,
where at page 33 of the decision, Gonthier J., for the majority, states:
The content of the principles of natural justice is flexible and
depends upon the circumstances in which the question arises. However, the
most basic requirements are that of notice, opportunity to make
representations, and an unbiased tribunal.
[Emphasis added]
[37]
In Desnomie v. Peepeekisis First Nation, 2007 FC 426, 157 A.C.W.S (3d) 231,
Justice Pierre Blais (as he then was) confirmed that even when a decision to
remove a Chief or Councillor from office would “per se” be reasonable (para.
34) and the behaviour of the removed member of the Council (in this case, the
Chief) was clearly reprehensible, the decision must be set aside if procedural
fairness was not observed. In that case, the Court made it clear that, at a
minimum, there was an obligation to provide adequate notice and an opportunity
to respond (para 33).
[38]
Similarly,
in Prince, Justice Kelen held that the suspension
of Band Councillors, which occurred at a secret meeting held three and a half
hours away from the community, without due notice to the concerned councillors
and without providing them any opportunity to respond to the allegations raised
against them, was “entirely lacking procedural fairness” (para 42).
[39]
In Balfour v.
Norway House Cree Nation, 2006 FC 213, [2006] 4 F.C.R. 404, a Band
councillor’s honorarium was changed from $60,000 to $5,000 annually and his
responsibilities as a Band councillor were reduced without prior notice. The
Court held that the band had breached its duties of procedural fairness as it
did not provide valid notice and reasons for the modification in the
applicant’s honorarium and responsibilities and did not provide him with an
opportunity to respond to the actions taken against him.
[40]
That said, did the
December 1 letter provide Mr. Laboucan with such an opportunity and ought he have
known of the meeting held on October 19, 2009?
[41]
The meeting of
October 19 was a “secret meeting” – as mentioned, not only was Mr. Laboucan
not notified, the Four Councillors were not advised of it either. It is
disingenuous to even argue that Councillors (including Mr. Laboucan) ought to
inquire as to when and where meetings of the Council will take place like any
member of the public.
[42]
Moreover, there is no
evidence that the public was actually invited to such meetings or that an
advance schedule or notice of those meetings was posted. This is especially so
when one is dealing with a “special meeting” with only one item on the agenda –
the removal of Mr. Laboucan. One also wonders why this meeting was held 10
hours away from the community so that in order to attend one would have to know
well in advance of its location.
Also, it is not even clear when the date of the October meeting was set by
Chief Loonskin.
[43]
Also, the December 1,
2008 letter appears to be in direct contradiction with what happened on October
19 and the reasons for removal found in the October 30 letter. Mr. Laboucan was
removed because he “failed to participate in or attend any Council Meetings”.
In his December 1, 2008 letter, Chief Loonskin in fact reassured the applicant
that he did not need to worry about the fact that he could not attend Council
meetings or fulfill his duties because he was still on voluntary leave
(suspension).
There was no deadline fixed for settling the issue of the criminal charge.
[44]
The respondent
focused on the fact that Mr. Laboucan failed to properly clarify the outcome of
the charges with Council for 10 months. There is no need for the Court to
decide whether Council could insist that representations in that respect be
made in writing especially considering that, in his affidavit, the Chief
confirmed that he was well-aware that the charges laid against the applicant
had been withdrawn. This was not the basis for the removal and regardless of
whether there was a good basis to remove the applicant from his Portfolio, he
was still entitled to procedural fairness. There was an egregious breach of Mr.
Laboucan’s right.
[45]
Before concluding, it
is worth mentioning that the Policy on which the respondent relies for its
authority to remove the applicant as Councillor and Portfolio officer is
unequivocal as to the need to respect principles of procedural fairness.
[46]
In section B.2 of the
Policy, Portfolio officers are said to hold offices “at the pleasure of Chief
and Council” and “may be removed from office, assigned to another Portfolio or
subject to other disciplinary measures, all at the discretion of Chief and
Council acting in good faith according to traditional teaching and having
first adhered to the rules of natural justice and procedural fairness”
[Emphasis added].
[47]
Similarly, when a
Portfolio officer is to be disciplined or removed from office, such duties must
also be observed. Section J.2 of the Policy provides:
Breach
of any part of this Policy is cause for revocation of a Portfolio Officer’s
authority, at the absolute discretion of Chief and Council. Remember: Portfolio
Officers are not employees, and are removable at the discretion of Chief and
Council upon notice in accordance with the traditional teachings of
procedural fairness and rules of natural justice.
[Emphasis
added]
[48]
Procedural fairness
is a term defined as follows in the Policy:
“Procedural
Fairness”: Whenever significant consequences may flow from a decision and which
consequences may impact those whose livelihood, reputation, health and future
are subject to the process. Rules of Procedural Fairness must be met which
includes consideration or attention to: […]
(5)
Rules of natural justice
a)
Duty to act fairly
b)
Duty to hear the other side
(6)
Right of notice and hearing
The
expression “Rules of natural justice” is in turn defined as including, among
other things, the following rights and duties: duty to act fairly, duty to hear
the other side, right to notice and hearing, right of knowing the case to be
met, right of hearing before the decision-maker and providing reasons for the
decision.
[49]
There is absolutely
no doubt that the duty of the Chief and Council to act fairly was breached even
in respect of the removal of Mr. Laboucan’s Portfolio.
Reasonableness
of the decision
[50]
As noted
earlier, the respondent’s argument focused, in its memorandum, on the
reasonableness of the decision to remove Mr. Laboucan from his functions.
[51]
While
there is no need to discuss the reasonableness of the Council’s decision
considering the conclusions reached in respect of the first and second issues,
it is useful to make a few comments. First, the Court agrees with the applicant
that the December 1, 2008 letter could be construed as a confirmation in
writing that the Chief authorized (granted leave) the applicant not to attend
meetings (J.1 of the Policy).
[52]
Second,
most of the grounds mentioned by the respondent are not invoked in the removal
letter sent to the applicant on October 30, 2009.
[53]
Finally, in the
absence of a proven accepted Band custom, the Code does not appear to provide
that a Councillor can be removed if he moves after his election. Pursuant to
section 6 of the Code, to be eligible for office (Councillor or Chief), one
only needs to be an “elector”, not disqualified and to be nominated by a person
eligible to nominate. The term “elector” is in turn defined as “a person who is
registered on the Little Red River Cree Nation membership list and is the full
age of eighteen (18) years” (section 1). As mentioned, the Code can only be
amended in accordance with the procedure set out in section 23.
[54]
In light
of the foregoing, the decision of the LRRCN dated October 19, 2009 is declared
null and of no effect whatsoever. The Court has no jurisdiction to award
damages. Having discussed the matter during the hearing, the Court is satisfied
that the respondent understands that as the decision is quashed, the applicant
should be put in the same position he would have been back in October 2009.
Costs
[55]
The
applicant sought solicitor client costs or alternatively a lump sum of $10,000.
This amount has been granted in similar proceedings: Prince at para. 63
and in Dene Tha' First Nation v. Didzena, 2005 FC 1292, 142 A.C.W.S. (3d) 709
at para. 32 (Dene Tha' First Nation).
[56]
In Prince,
the Court had expressed in its reasons its surprise that the Nation band
pursued litigation which was clearly without merit and where the impugned
decision of the band was obviously contrary to the Custom Election Code (paras.
3-4, 58, 62). These same comments would apply here. Counsel for the respondent,
who was also acting for one of the respondents in Prince, noted that, in
that case, there were two applications heard at the same time. However, she
acknowledged that in Dene Tha' First Nation, which dealt with a
single application, the same amount was granted.
[57]
Having
considered all the circumstances, the Court is satisfied that, although this
lump sum will clearly not compensate fully the applicant for his legal costs,
it is sufficient and appropriate here.
ORDER
THIS COURT ORDERS THAT:
1. The decision is
quashed; and
2.
The
applicant is entitled to costs fixed at a lump sum of $10,000 (all inclusive).
“Johanne Gauthier”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2003-09
STYLE OF CAUSE: JOHN
M. LABOUCAN v.
LITTLE
RED RIVER CREE NATION #447
PLACE OF HEARING: Edmonton,
Alberta
DATE OF HEARING: May 17, 2010
REASONS FOR JUDGMENT: GAUTHIER
J.
DATED: July 2, 2010
APPEARANCES:
|
Janet L. Hutchison
|
FOR THE APPLICANT
|
|
Priscilla Kennedy
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Chamberlain Hutchison
Edmonton, Alberta
|
FOR THE APPLICANT
|
|
Davis LLP
Edmonton, Alberta
|
FOR THE RESPONDENT
|
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