Date: 20120516
Docket: T-1356-11
Citation: 2012
FC 590
Ottawa, Ontario, May 16, 2012
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
|
|
ANDREW ORR
|
|
|
|
Applicant
|
|
and
|
|
|
CHIEF JAMES ALOOK AND PEERLESS TROUT
FIRST NATION
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of the Peerless Trout
First Nation Council (the Council) not to remove Chief James Alook from office
for conflict of interest, pursuant to section 20.1 of the Customary Election
Regulations of the Peerless Trout First Nation, 2010 (Election Bylaws), or
alternatively, the Council’s failure to make a decision regarding Chief Alook’s
removal. The Applicant seeks an order declaring that the Council has refused
to exercise its jurisdiction, and an order removing Chief Alook from office.
Facts
[2]
The
Applicant was the interim Chief of Peerless Trout First Nation (PTFN) until
July 10, 2010. He is also a Director of both the Fifth Meridian Development
Association (FMDA) and Fifth Meridian Enterprises Ltd. (FME). These two
entities were incorporated as non-profit corporations to carry out functions
and programs for the community until PTFN was recognized as a First Nation in
2010. On June 30, 2010, PTFN held its first election and James Alook, one of
the Respondents, was elected Chief. Two unsuccessful candidates, Norman Okemow
and Norman Gladue, launched election appeals which were dismissed in July 2010.
[3]
The
Applicant states that Chief Alook is the President of FMDA, and was the Vice
President of FME until he was removed on July 18, 2011. The Applicant also
alleges that after he was elected, Chief Alook continued to operate FME as a
business, thus violating the conflict of interest provisions of the Election
Bylaws.
[4]
The
Applicant states that Chief Alook was a Director and shareholder of Amber
Oilfield Contracting Ltd. with his wife, until March 9, 2011 when his wife
became the sole shareholder. The Applicant further alleges that after being
elected, Chief Alook continued to direct that work be performed by Amber
Oilfield Contracting Ltd., which was also in breach of the conflict of interest
provisions of the Election Bylaws.
[5]
The
Applicant also alleges that Chief Alook is holding cheques from Athabasca Oil Sands
Corporation and Coastal Resources Limited and he will not release these
cheques.
[6]
Mr.
Okemow made the initial complaint to the Council regarding Chief Alook’s
alleged conflict of interest, and requested that Chief Alook be removed as
Chief. A public meeting was held in March 2011, to address the allegations.
The Council sought further information from members regarding the issue. The
Council also commissioned two legal opinions on the issue, one from its legal
counsel and one from outside counsel.
[7]
The
Council received further information from Mr. Okemow, and also received a
response to the allegations from Chief Alook.
[8]
Another
public meeting was held on June 2, 2011, to consider the allegations. Brian
Pitcairn, the Band Manager, attests in his affidavit that Mr. Okemow did not
speak at the meeting. Other members, including the Applicant, did speak to the
allegations at the meeting. The two legal opinions were also presented, both
of which concluded that there was no evidence to support the allegations of
conflict of interest.
[9]
At
the meeting, the Council announced it would wait a further two weeks before
making its decision, and during that time it would accept any other evidence to
support the allegations.
[10]
Mr.
Pitcairn attests by affidavit that the Council did not receive any further
evidence during that two-week period, nor has it received any further evidence
since that time. Mr. Pitcairn states that the Council has not yet made any
decision in response to Mr. Okemow’s allegation.
[11]
In
his Memorandum of Fact and Law, the Applicant states that further evidence was
submitted to the Council; specifically, the Council was served with his first
application for judicial review (T-959-11), and two supporting affidavits.
However, the Applicant does not attest to this in his affidavit. Mr. Pitcairn
acknowledges that the Notice of Application was received, as well as an
affidavit of the Applicant. He notes that the Council received a Notice of
Discontinuance regarding the T-959-11 application on June 9, 2011.
[12]
The
Applicant states in his Memorandum that the initial application for judicial
review was withdrawn because it had been commenced before the end of the
two-week period for receipt of further information. The Applicant commenced
the current application once that period had elapsed.
Issues
[13]
As
a preliminary issue, the Respondents challenged the introduction into the
evidence of the Affidavit of Andrew Orr filed in discontinued application
T-959-11, since it had not been properly introduced in the current application
before the Court.
[14]
As
for the substantive issues, they can be framed as follows:
(a) Does the
Court have jurisdiction to order that Chief Alook be removed?
(b) Are the
requirements met for the Court to order that the Council consider whether to
remove Chief Alook?
Analysis
[15]
Technically
speaking, the Respondents are correct that the Affidavit of Andrew Orr that was
sworn in discontinued application T-959-11, was not sworn in the within
application and should therefore be disregarded. Rule 306 of the Federal
Courts Rules, SOR/98-106, prescribes the manner in which evidence is to be
submitted on an application, and states:
Within 30 days after issuance of a notice
of application, an applicant shall serve its supporting affidavits and documentary
exhibits and file proof of service.
[16]
The
rationale behind the rule that evidence be put before the Court by means of
affidavits, is that it must be open to cross examination by the opposing
party. For that reason, evidence submitted in one application cannot be
flipped over to another application, even if the same parties are involved (see
Kahnapace v Canada (Attorney General), 2010 FCA 70, 402 NR 61; Tekyi
v Canada (Minister of Citizenship and Immigration) (1995), 90 FTR 300 at
para 13, 53 ACWS (3d) 836; Central Trust Co v 103702 Canada, [1981] AJ
no 1328 (ABQB) (QL)).
[17]
In
any event, counsel for the Applicant indicated at the hearing that this
affidavit was incorporated in the Applicant’s Record for the sole purpose of
showing that it was served on Chief Alook and the Council, and that the
information contained therein was received during the two-week period set by
the Council, for submitting any further information relating to the allegations
made by Mr. Okemow. The Court is therefore prepared to consider this affidavit
for that limited purpose, and not for the truth of what is alleged.
(a) Does the
Court have jurisdiction to order that Chief Alook be removed?
[18]
Counsel
for the Respondents submit that this Court has no jurisdiction to order the removal
of Chief Alook from his elected office, part-way through his term of office, as
requested by the Applicant. It is at the Council’s discretion, pursuant to s.
20 of its Election Bylaws, to decide whether removal of one of its members or
of the Chief is warranted.
[19]
The
relevant portion of section 20 of the Election Bylaws states:
The removal of a Chief or Councillor from
office shall be determined by the Council on the following grounds:
…
(e) They breach the Conflict
of Interest Guidelines for Chief and Council as set out in Schedule “C”
[20]
As
for Schedule “C”, it states in part:
Council must not directly or indirectly
engage in any personal or business activity which competes or conflicts with
the interests of the Peerless Trout First Nation (hereinafter “the Nation”) or
compromises their ability to serve the interests of the Nation. These
activities include, but are not limited to, the following:
…
2. PERSONAL BENEFITS
The Council will not make decisions or
use their office or powers to provide extraordinary benefits for themselves
personally or for their immediate family members.
…
4. OUTSIDE BUSINESS
a) Council must promptly divulge, in
writing, the nature and extent of their outside employment and business
interests to the Council.
b) Each Chief and Councillor must not
deprive the Nation of their best efforts in performing their duties as a Chief
and/or Councillor and if they do it is considered a conflict of interest unless
it is deemed necessary for health, personal or family reasons.
c) Each member of Council is expected to
devote full time to his or her duties on Council and shall not participate in
any outside business while they are an elected member of Council.
d) LOANS, GIFTS, AND ENTERTAINMENT
e) The Council must be beyond challenge
or reproach in every business transaction. They must not allow themselves to
be put into a position where their judgments may appear to be unduly influenced
by personal considerations.
f) The Council shall not accept any
extraordinary gifts, personal loans, or other special considerations from any
Members or an individual, business or organization doing business with the
Nation.
g) Any member of Council who is offered
or receives payments or gifts of more than a nominal value shall refuse it or
return it to the giver in a tactful and dignified manner, advising the giver of
this policy prohibiting its acceptance.
h) Members of the Council are not
eligible to receive loans from the Nation or any of its entities while in
office.
[21]
I
agree with the Respondents that it is not for this Court to usurp the role of
the Council. Paragraph 20(1) of the Election Bylaws makes it clear that it is
up to the Council to determine whether the Chief or one of its members has
breached the Conflict of Interest Guidelines. Moreover, paragraph 20(2)
entrusts to the elected Council the unqualified, absolute and unfettered
discretion to decide whether or not to remove a member of Council even if the
events or misdeeds that may justify removal are confirmed. It states unequivocally
that, “[u]pon confirmation of the grounds for removal, the Council by
Resolution may remove the Chief or Councillor from their Office”
(emphasis added). It would be quite inappropriate to step into the shoes of
Council and to rule on the removal of the Chief even before Council makes its
own decision (see, by analogy, Bruno v Samson Cree Nation, 2006 FCA 249
at para 23, 149 ACWS (3d) 810)).
[22]
The
same is true with respect to this Court’s jurisdiction to grant a writ of quo
warranto pursuant to subsection 18(1)(a) of the Federal Courts Act,
RSC 1985, c F-7. First of all, there is some authority in support of the
proposition that quo warranto does not extend to cases of alleged
conflict of interest committed by an elected official in connection with the
performance of his functions after he has taken office (see, for ex., Re
Bruce et al and Reynatt et al, [1979] 2 FC 697 at para 14, 104 DLR (3d) 11
(FCTD); Bird v Salt River First Nation, 2009 FC 25 at para 13, 93 Admin
LR (4th) 90).
[23]
Further,
Chief Alook’s election was challenged in two election appeals filed in
accordance with the Election Bylaws, and both election appeals were dismissed
in July 2010. There is no allegation before this Court that Chief Alook was
not eligible to run as a candidate for Chief in the June 2010 election, nor is
there any evidence before this Court to support such an allegation.
[24]
More
importantly, it is well established that quo warranto is not available
to contest an election where the law provides another remedy, as it does under
the Election Bylaws (see Jock v Canada (Minister of
Indian & Northern Affairs), [1991] 2 FC 355 at paras 63-66 (FCTD)
(QL)).
[25]
Finally,
the Court also agrees with the Respondents that the Court cannot, by issuing a
writ of mandamus (assuming the requirements for such a writ have been
met, which shall be discussed in the next section), dictate the result of the
Council’s discretionary decision (Kahlon v Canada (Minister of Employment
and Immigration), [1986] 3 FC 386 at para 3 (FCA) (QL); St. Brieux (Town)
v Canada (Minister of Fisheries and Oceans), 2010 FC 427 at para 57, 370
FTR 8). The Court finds that, pursuant to section 20 of the Election Bylaws,
the Council’s decision whether to remove Chief Alook remains within its
discretion, even if it accepts the allegations of conflict of interest. Thus,
even if the facts alleged by the Applicant were true and were found to amount
to a conflict of interest, the remedy sought by the Applicant is not available
from this Court.
(b) Are the
requirements met for the Court to order that the Council consider whether to
remove Chief Alook?
[26]
Mandamus is an
extraordinary, discretionary remedy and the Federal Court of Appeal has laid
down the requirements that must be satisfied before the Court may issue a writ
of mandamus, saying:
1. There must be a
public legal duty to act: …
2. The duty must be
owed to the applicant: …
3. There
is a clear right to performance of that duty, in particular:
(a) the
applicant has satisfied all conditions precedent giving rise to the duty; …
(b) there
was (i) a prior demand for performance of the duty; (ii) a reasonable time to
comply with the demand unless refused outright; and (iii) a subsequent refusal
which can be either expressed or implied, e.g. unreasonable delay; …
4. Where
the duty sought to be enforced is discretionary, the following rules apply:
(a) in
exercising a discretion, the decision-maker must not act in a manner which can
be characterized as “unfair”, “oppressive” or demonstrate “flagrant
impropriety” or “bad faith”;
(b) mandamus
is unavailable if the decision-maker’s discretion is characterized as being
“unqualified”, “absolute”, “permissive” or “unfettered”;
(c) in the
exercise of a “fettered” discretion, the decision-maker must act upon
“relevant”, as opposed to “irrelevant”, considerations;
(d) mandamus
is unavailable to compel the exercise of a “fettered discretion” in a
particular way; and
(e) mandamus
is only available when the decision-maker’s discretion is “spent”, i.e., the
applicant has a vested right to the performance of the duty. …
5. No other adequate
remedy is available to the applicant: …
6. The order sought
will be of some practical value or effect: …
7. The
Court in the exercise of its discretion finds no equitable bar to the relief
sought: …
8. On a
“balance of convenience” an order in the nature of mandamus should (or
should not) issue.
Apotex v Canada (Attorney General), [1994] 1 FC 742 at para 45
(FCA) (QL) [Apotex]
[27]
The
Respondents concede that the Council has a duty to consider whether to exercise
its discretion and remove a Chief or Council member, if a member has formally
submitted a request for such consideration.
[28]
In
their factum, the Respondents submitted that the duty is not owed to the
Applicant in this case, but rather to Mr. Okemow, who submitted the initial
complaint about the alleged conflict of interest. At the hearing, however,
counsel relented somewhat on that position, and in my view, appropriately so.
[29]
There
is no formal requirement in the Election Bylaws with respect to the decision
sought from the Council, and the Respondents have not submitted any evidence of
any formal procedural requirements. Furthermore, Mr. Pitcairn acknowledged in
his affidavit that members other than Mr. Okemow, including the Applicant, made
submissions regarding the conflict of interest allegations at the June 2, 2011
meeting. As a result, the Court does not accept the argument that the
Council’s duty is not owed to the Applicant. Not only is he a member of PTFN,
but he was also an interested party who participated in the process.
[30]
As
for the third requirement, counsel for the Respondents submit that it is only
in his Memorandum of Fact and Law dated September 28, 2011 that Mr. Orr says,
for the first time, that his affidavit filed in the now discontinued
application T-959-11 is his further information, as requested by Council at its
June 2, 2011 meeting. Furthermore, counsel argues that even if the Applicant’s
Memorandum of Fact and Law may be considered Mr. Orr’s prior demand of Council
to perform its duty, such demand had not been made when he commenced the within
application on August 22, 2011. As a result, it cannot be said that there is
an unreasonable delay on the part of the Council.
[31]
I
find this argument without merit. According to the affidavit of Mr. Pitcairn,
the Council announced at the end of the meeting held on June 2, 2011 that it
would wait two more weeks before making its decision, and that in those two
weeks, it would accept any other evidence in support of the allegations of
conflict of interest. There was therefore no need for a further request that
Council exercise its duty to come to a decision with respect to the allegation
made against Chief Alook. The Applicant and all other members of PTFN were
entitled to a decision, and therefore the only issue is whether a reasonable
time was allowed to comply with the demand.
[32]
It
may be that when the application was commenced on August 22, 2011, there had
not yet been any unreasonable delay on the part of the Council. It is now
almost a year since the Council committed to determine whether Chief Alook
breached the Conflict of Interest Guidelines and, if so, whether he should be
removed. No decision has yet been made, to the Court’s knowledge. In those
circumstances, an order of mandamus is clearly warranted. Indeed,
counsel for the Respondents readily admitted at the hearing that there is no
discretion for the Council to come to a decision, whatever that decision may
be.
[33]
Being
of the view that all the other requirements set out in Apotex, above,
are met, an order in the nature of mandamus requiring the Council to
come to a decision with respect to the allegations of conflict of interest that
have been made against Chief Alook is warranted. The Council shall make a decision
on the removal of James Alook from the office of Chief of PTFN no later than
one month following the release of this Judgment. Costs are granted to the
Applicant.
JUDGMENT
THIS COURT’S
JUDGMENT is that Council shall make a decision on
the removal of James Alook from the office of Chief of PTFN no later than one
month following the release of this Judgment. Costs are granted to the
Applicant.
"Yves
de Montigny"
Email this Content