Docket: T-73-12
Citation: 2012 FC 153
Ottawa, Ontario, February 3,
2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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CHIEF
JEFFREY NAPAOKESIK
COUNCILLOR LIBERTY
REDHEAD,
COUNCILLOR ERNIE
REDHEAD,
COUNCILLOR SANDY
MILES AND
COUNCILLOR
HOWARD CANABIE
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Applicants
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and
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SHAMATTAWA
FIRST NATION
MEMBERSHIP
COMMITTEE AS
REPRESENTED BY
ELIE HILL,
SAM MILES,
VERONICA MILES,
CELINE MILES,
MABEL MILES-TAKER, DEANNA REDHEAD, JOHN DOE AND RICHARD ROE
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Respondents
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REASONS FOR ORDER AND ORDER
UPON the
Applicants’ motion for an interim injunction staying the effect of the meeting
of the Shamattawa First Nation Membership Committee which took place on January
9, 2012 and other injunctive remedies including the prohibiting of the holding
of elections for Chief and Councillor and in the alternative the reinstatement
of the Applicants to their position of Chief and Councillors pending the final
determination of the application for judicial review;
AND UPON reviewing the
material filed by and upon hearing submissions of counsel for the Applicants
and counsel fore the Respondents;
AND UPON considering
that the motion for injunctive relief may only succeed if the Applicants meet
the tripartite test set out in RJR-MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311: (i) that there is a serious issue to be tried
(ii) that they would suffer irreparable harm if the relief sought is not
granted; and (iii) that the balance of convenience is in their favour;
AND UPON considering the
following:
[1]
The
chronology of procedural events leading up to this hearing were set out by the
Case Management Judge, Roger R. Lafrenière, Esquire, in his Reasons for Order
and Order issued on January 26, 2012 replicated in the following paragraphs.
[2]
On
January 10, 2012, the Chief and Councillors of the Shamattawa First Nation
(SFN), commenced an application for judicial review of a decision by the
Shamattawa First Nation Membership Committee (SFNMC) dated January 9, 2012
purportedly removing the Applicants from the office of Chief and Council of the
SFN. The Applicants concurrently filed a motion seeking an interim injunction
prohibiting the holding of an election for the offices of Chief and four
Councillors, scheduled to be held on January 18, 2012, an interim injunction
staying the effect of the meeting of the SFNMC which took place on January 9,
2012, or alternatively an order reinstating the Applicants to their position
pending final determination of the application for judicial review. The
Applicants also requested that the motion be heard on an expedited basis.
[3]
By
Order dated January 17, 2012, Mr. Justice Leonard Mandamin declined to fix a
date for the hearing of the motion because the Respondents had not been
provided two clear days to file responding material and no notices of
appearance had been filed by any of the Respondents to the application for
judicial review. Mr. Justice Mandamin ordered that the application continue as
a specially managed proceeding and directed the Applicants could reapply to fix
a date for hearing of the Applicants’ motion upon service of their motion
record on the Respondents, and completion of any requirements arising in case
management.
[4]
The
Notice of Application and the Applicants’ motion record was served on the
Respondents on January 14, 2012. The Respondents filed separate Notices of
Appearance on January 20, 2012.
[5]
A
case management conference was held by teleconference on January 26, 2012. In
attendance were Norman Boudreau, solicitor for the Applicants, and the
Respondents, Eli Hill, Sam Miles, Veronica Miles, Mable Miles-Taker, and Deanna
Redhead. The Respondents agreed that since most of them did not have telephone
or fax number, they could be contacted in the future through Eli Hill at his phone
number (204)-565-2898 or by e-mail at elihill458@hotmail.com.
[6]
On
January 25, 2012, after the close of business, Mr. Hill communicated a request
via voice mail that the case management conference be adjourned. This request
was reiterated during the case management conference as Mr. Hill advised that
the Respondents had consulted with a lawyer with the Public Interest Law Centre
in Winnipeg, but had yet
to retain her services. The request was denied since the Respondents had ample
time to retain counsel and could not provide a sufficient reason to delay the
fixing of hearing date of the Applicants’ motion.
[7]
The
Case Management Judge fixed the date of February 1, 2012 for the hearing of the
Applicants’ Notice of Motion for injunctive relief.
Adjournment Request
[8]
On
January 30, 2012, the Respondents’ counsel wrote advising he had been retained
on January 27, 2012 and requesting an adjournment of the hearing in order to
become acquainted with the issues and documentation and have the opportunity to
meet with the Respondents. I refused the request was refused as the Case
Management Judge had considered and refused a request for an adjournment by the
Respondents on January 26, 2012 and no exceptional or new circumstances had
been advanced justifying an adjournment.
[9]
At
the commencement of the hearing of the Notice of Motion on February 1, 2012,
counsel for the Respondents renewed the request for an adjournment. The
Respondents counsel submitted that as a result of his review of the materials
filed and lengthy discussions with his clients, he is of the view the
Applicants’ material requires an answer. He requested the Notice of Motion be
adjourned to the week of February 14, 2012 to enable him to prepare and file
the Respondents’ material.
[10]
The
Applicant opposed the request for an adjournment noting the Case Management
Judge heard and refused the Respondents’ request for an adjournment on January
26, 2012 and set the hearing of this motion for February 1, 2012. The
Applicants’ counsel submits his clients have been pressing for a hearing of
this injunction for some time submitting there is a need to stabilize
governance of the SFN.
[11]
In
reply, Respondents’ counsel submits he was not in receipt of a supplementary
affidavit sworn and filed January 27, 2012. However, that affidavit was served
on the Respondents on January 27, 2012 by email to the Respondent Eli Hill
pursuant to the Case Management Judge’s January 26, 2012 Order.
[12]
I
refused the Respondents’ request for an adjournment and directed the notice of
motion hearing to proceed. My reasons for doing so are:
a. The
Applicants’ request for an expedited hearing of the Notice of Motion was twice
refused in order to provide the Respondents with the full notice period and the
opportunity to respond. The Respondents were served and have had the benefit
of notice since January 14, 2012. The Respondents were involved in the events
leading to the Applicants’ application for Judicial Review and this Motion for
injunctive relief and are fully acquainted with the facts.
b. The Respondents’
request for an adjournment was heard and refused by the Case Management Judge
on January 26, 2012 and the Respondents were on notice to be ready
to proceed with the hearing on February 1, 2012. No exceptional circumstances
have arisen nor any new developments in the situation except those of the
Respondents own making, namely the holding of an election not withstanding to
the Applicant’s challenge to the decision of the SFNMC to remove the Chief and
Council and hold new elections.
c. The
Respondents’ retained counsel on January 27, 2012 four days before the hearing
date for this Notice of Motion. Although the Respondents were served with the
supplementary affidavit of Chief Napaokesik on January 26, 2012, they did not
provide that document to their own counsel notwithstanding they had time to do
so.
d. The
uncertainty created by the SFNMC decision to remove the Chief and Council and
hold an election of a new Chief and Councillors jeopardizes the stability of
the SFN governance and is a matter that ought to be heard in a timely fashion.
[13]
I
turn now to the Applicants’ Notice of Motion for injunctive relief.
Request for Interim
Injunction
[14]
Briefly,
the events in Shamattawa leading to the application for judicial review are set
out in the following paragraphs.
[15]
Mr.
Jeffrey Napoakesik was elected Chief of SFN on August 10, 2010 for a two year
term which ends in August 2012.
[16]
The
Respondents, who describe themselves as concerned band citizens and are
described here as the Shamattawa First Nation Membership Committee, called a
membership meeting on January 2, 2012 to address concerns of certain SFN
members.
[17]
According
to Mr. Napoakesik, neither he nor any member of Council were invited to the
meeting. Although he did not attend the meeting on January 9, 2012, Mr.
Napoakesik listened to the proceedings which were broadcast over the local
radio airwaves.
[18]
During
the meeting, the members in attendance were told that the Chief and Councillors
had failed to stop the consumption of alcohol on reserve, failed to provide a
recreation centre for the youth on reserve, failed to ensure construction of
housing on reserve, created a debt in the community, and each gave $1,700.00 to
their wives. According to Mr. Napoakesik, the allegations made against his
administration during the meeting were false. He was not provided an
opportunity to defend himself and his reputation against the allegations that
were made against his leadership.
[19]
A
vote was held resulting in the removal of the Applicants from their offices as
Chief and Council. After the vote was taken, the Respondent, Mr. Eli Hill,
announced that there would be a nomination meeting for the positions of Chief
and four Councillors. On January 11, 2012, the nomination meeting took place.
According to the Applicants, they were not allowed to attend the nomination
meeting. In addition, they were precluded from running in the election.
[20]
On
January 20, 2012, Mr. William Miles, was elected in the election that was held
for the position of Chief of SFN. It is unclear whether the Chief-elect will be
assuming the position of Chief while the present proceedings are outstanding.
An election for the positions of the four Councillors had been scheduled to be
held on January 27, 2012.
[21]
Chief
Napaokesik reported in his supplementary affidavit on January 26, 2012, that Mr.
William Miles called for a public meeting in Shamattawa. The meeting was
attended by 48 members of the SFN. At the onset of the meeting Mr. Miles
proposed that that the Shamattawa Election Custom Code be put in writing, that consultation
with the membership take place, that the drafted Custom Election Code be
reviewed by legal counsel and ratified by the membership. The Election Custom
Code would provide that all band members including the Applicants could run in
the election. In exchange the Applicants would withdraw the application in
Federal Court. Mr. Miles further proposed that Daniel Redhead be the Electoral
Officer in charge of following through with the above process.
[22]
Chief
Napaokesik reported that the general consensus of the meeting was that the
motion was accepted except for four band members, two of whom are Respondents
in this matter, Eli Hill and Celine Miles. Two other members, Eugene Moose and
Valerie Miles, also voted against the motion. Chief Napaokesik stated it was
unclear to him if two other Respondents, Veronica Miles and Deanna who were
present at the meeting, voted for or against the motion. Notwithstanding the
acceptance of the motion, Chief Napaokesik stated the Respondent Eli Hill
intended to proceed with the nomination and election of four councillors.
Serious Issue
[23]
The
threshold for a serious issue is not high. In RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311 the Supreme Court of Canada set out
that an applicant must show that there is an issue to be adjudicated and that
the issue is not “frivolous and vexatious”.
[24]
The
Applicants say their dismissal from the positions of Chief and Councillors
because of allegations of misconduct without an opportunity to answer those
allegations raises a serious issue about a breach of procedural fairness.
Counsel for the Respondent does concede there is a serious issue to be tried.
[25]
I
agree there is a serious issue to be tried which is not frivolous or
vexatious. Procedural fairness requires that a person who would be affected by
a decision should have notice and an opportunity to make representation. Orr et al v
Fort McKay First Nation et al 2011 FC 37
Irreparable Harm
[26]
The
Applicants must establish that they would suffer irreparable harm if the relief
sought is not granted. The irreparable harm which would occur is neither
speculative of hypothetical. Canada (Attorney General) v. Canada Information
Commissioner) 2001 FCA 25. Irreparable harm refers to the nature of the
harm rather than its magnitude. RJR-MacDonald at para 59
[27]
The
Applicants say they were not allowed to attend the SFCMC meeting and defend
themselves against the allegations raised. They say their reputations would be
harmed if the SFNMC decision stands.
[28]
In
my view, the irreparable harm relates to the removal of the Applicants from
office. The Applicants were elected to their respective positions of Chief and
Councillor by the SFN membership. They are responsible for the governance of
the SFN. Their removal from office jeopardizes the exercise of that
responsibility. Aside from the allegations raised, there is no evidence before
me that would justify interference with the Applicant’s exercise of their
governance responsibilities for which they were elected.
[29]
I
conclude that the Applicants have established irreparable harm.
Balance of Convenience
[30]
Finally,
the Applicants must show the balance of convenience is in their favour.
[31]
The
Applicants were elected for a two year term that expires in August 2012. The
Chief provided affidavit evidence that the SFN has moved out of third party
management to co-management, in other words the SFN has assumed greater
responsibility for administering their own affairs. He states the SFN has
achieved a surplus of $100,000 this fiscal year. The Applicants submit the SFN
governance will be harmed if there are two completing Chiefs and Councils.
[32]
I
find that the balance of convenience favours the Applicants. First, the
Applicants were elected for a two year term. Their continuing in office pending
the judicial review of the SFNMC decision maintains the status quo and they will
continue to discharge the responsibilities they assumed upon being elected to
office.
[33]
On
the other hand, the Respondents, are on notice that the basis for their actions,
the SFNMC decision, is being challenged in Court. The person elected Chief
after that election appears to have acknowledged the uncertainty about the
validity of his election and proposed an internal means of resolving the
conflict.
[34]
More
importantly, public interest considerations favours the status quo pending the
hearing to the judicial review of the SFNMC decision. Government agencies,
federal and provincial, would have certainty in their dealings with the SFN in
the interim. Businesses and individuals would be able to continue dealing with
the SFN with a measure of predictability. SFN electors would continue to know
that when they elect their leadership, it is for a definite term of office.
[35]
I
find that balance of convenience favours the Applicants and maintenance of the
status quo while the application for the judicial review is pending.
Community Dispute
Resolution
[36]
Having
come to my decision that it is appropriate to grant injunctive relief, I want
to acknowledge that there appears to be a capacity among the membership of the
SFN to find a way to resolve the dispute themselves. Accordingly, my order
will provide that reasonable measures to resolving the dispute undertaken by
SFN members should be encouraged. In that respect I will remain seized of this
matter and prepared to hear and give effect to measures that will resolve the
controversy that are lawful and fair to all.
[37]
The
application for injunctive relief is granted on terms set out in my following
order.
ORDER
THIS COURT HEREBY
ORDERS that:
1.
the
January 9, 2012 decision of the Respondent Shamattawa First Nation Membership
committee purporting to remove the Applicants from office is hereby stayed
pending further order of this Court;
2.
the
Applicants continue to be lawful elected Chief and council of Shamattawa First
Nations pending the final determination of the Applicant’s Notice of
Application for Judicial Review filed on January 10, 2012 or the completion of
their term of office;
3.
an
interlocutory injunction, expiring upon the final determination of the
Applicants’ Motion for Judicial Review, preventing any person, save and except
the Applicants, from holding themselves out as Chief or as a Councillor of the
Shamattawa First Nation is granted; and
4.
costs
of this motion shall be in the cause.
As
the Judge who heard the Notice of Motion for interlocutory relief, I remain
seized of this matter and therefore further DIRECT that:
5.
that
this Order may be varied upon application to myself to accommodate any process
required or reasonably requested to be undertaken by any person with a view of
assisting the Shamattawa First Nation to internally resolve the within dispute
and any conflict to its governance.
"Leonard
S. Mandamin"
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