Date:
20120731
Docket:
T-1964-11
Citation:
2012 FC 949
Ottawa, Ontario, July 31, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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CHIEF VICTOR YORK
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Applicant
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and
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THE LOWER NICOLA INDIAN BAND
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Chief Victor York (the Applicant) in
respect of a Lower Nicola Indian Band (LNIB) Council Resolution (the
Resolution) passed on November 1, 2011 removing him from office.
[2]
The
Court is being asked to set aside the decision and restore the Applicant to his
position as Chief because the Council’s meeting to pass that Resolution was not
duly convened under the Policy and Guidelines for Chief and Councillors
(the Policy and Guidelines) and there was not a quorum of Council members in
good standing. The Applicant also contends that he was denied procedural
fairness.
[3]
As
the Respondent, the LNIB maintains that the Council has the discretionary power
to remove a “member of Council”, including the Chief. It could convene a valid
meeting to pass the Resolution that was justified given the Chief’s absence in
the conduct of the affairs of the LNIB. He was provided notice of the
Council’s concerns and chose not to respond.
[4]
The
submissions of both parties reveal the deep divisions that have plagued this
small community for some time. They present completely different pictures of
what occurred prior to and during the Council meeting that ultimately removed
the Applicant from office. There is conflicting evidence as to the conduct of
the Chief and Councillors as well as the applicable LNIB laws and customs. In
this context, any disposition risks being perceived as accepting one side’s version
of events over the other.
[5]
As
ably summarized by my colleague, Justice François Lemieux, in his interlocutory
order regarding this matter, the application is also the latest in a series of
disputes regarding the governance of the LNIB to have come before this Court
(see Lower Nicola Indian Band v Toodlican, 2012 FC 103, [2012] FCJ no
109). Most recently, Justice John O’Keefe found there was a reasonable
apprehension of bias regarding an Elders’ Council decision that three
Councillors were ineligible to run in the October 2010 election. He referred
the election appeal back to a new Elders’ Council for reconsideration (Lower
Nicola Indian Band v Joe, 2011 FC 1220, [2011] FCJ no 1498). This Elders’
Council has yet to be constituted and the status of these three Councillors
remains an issue in the current dispute.
[6]
A
vicious circle has emerged whereby an ongoing power struggle leads to paralysis
and conflict. The Court’s intervention is sought to address these conflicts,
but they ultimately remain unresolved. While the Court is prepared to allow
this application for the reasons set out below, it does so reluctantly -
knowing that much more will need to be done in the future apart from legal
proceedings to foster a cooperative governance structure within the LNIB to the
benefit of all concerned parties.
I. Relevant
Facts
[7]
The
Applicant was elected to a three year term as the Chief of the LNIB on October
2, 2010. Also elected as Councillors on that same date were Harold Joe, Mary
June Coutlee, Joanne Lafferty, Lucinda Seward, Molly Toodlican, Stuart Jackson
and Robert Sterling Jr.
[8]
Two
appeals were filed regarding the election of certain Councillors under the Custom
Election Rules (CER) by another candidate, Charlene Joe. An Elders’
Council subsequently made the decision on December 1, 2010 to remove
Councillors Mary June Coutlee, Stuart Jackson and Robert Sterling Jr for
ineligibility. This decision was, however, overturned by Justice O’Keefe as
referred to above. Thereafter, these three Councillors continued to exercise
their functions in the LNIB Council without any decision from a new Elders’
Council.
[9]
The
Applicant’s role in the governance of the LNIB following his election is
contested by the parties. For example, the Respondent presents evidence that
the Applicant refused to call, attend or participate in Council meetings after
December 2010 with the exception of a meeting on February 22, 2011 and moved
out of his office at the LNIB Administrative Building. By contrast, the
Applicant insists he was driven from his office as part of a vicious campaign
and his email service and monthly salary were cut during this period despite
his continued conduct of business meetings representing the LNIB.
[10]
In
any event, the Applicant was informed by way of a letter from Council on March 9,
2011 that an investigation was being launched into his actions as a result of
concerns raised at a recent Band General Meeting.
[11]
Council
passed a resolution suspending the Applicant from office for 30 days on
September 28,
2011. He was informed of this decision by way of a letter posted the next day.
Councillor Harold Joe was similarly suspended at this time.
[12]
An
additional letter was sent on October 18, 2011. This time the Applicant was
informed that LNIB Council would meet on October 25, 2011 to discuss the
allegations against him. He was also expected to “attend this meeting to
respond to these purported yet evidenced violations.” The Applicant did not
attend this meeting, although he claims to have been prevented from doing so as
a result of undergoing heart surgery. The Respondent suggests that it is not
clear when exactly the Applicant was in hospital.
[13]
A
subsequent meeting was held on November 1, 2011. The Applicant did not attend,
but similarly disputed Councillor Harold Joe attempted to do so. Meeting
minutes indicate that his presence was “queried upon.” He was unable to stay
for the in-camera portion of the meeting that decided his fate as well as that
of the Applicant.
[14]
A
Resolution was passed by Council to remove the Applicant from office. It was
signed by the six Councillors present; including Mary June Coutlee, Stuart
Jackson and Robert Sterling Jr., still awaiting a determination by a new
Elders’ Council as to their eligibility in the October 2010 election. The Resolution
stated:
In the correspondence
we requested you attend a special duly convened meeting on October 25, 2011 to
address/respond to the breaches and transgressions listed therein.
Since then and to date, you have not communicated
with the Council members to address the seriousness of the contents contained
in the October 28, 2011 correspondence. Nor did you attend the specially
convened meeting scheduled on October 25, 2011, to address valid and legitimate
allegations contained in the October 18, 2011 correspondence.
Therefore based on the evidence in the October 18,
2011 correspondence and deliberations resulting from meetings held on October
25, October 28, and on November 1, 2011, the Council members found that you
have repeatedly violated:
i) Your sworn Oath of Office, you signed on October
25, 2010,
ii) Your fiduciary duty to the Lower Nicola Indian
Band,
iii) Lower Nicola Indian Band’s Custom Election
Rules – 1998,
iv) LNIB Chief & Council Policy and Guidelines
– December 2010,
v) Lower Nicola Band of Indians 1987 By-Law #1
vi) And your role as Trustee of Naik Development
Corporation; and
vii) The interim Court Order of the Honourable
Justice Noël – February 8, 2011.
[…]
II. Issues
[15]
The
application raises various issues that can be addressed as follows:
(a) Did
the LNIB Council have jurisdiction to remove the Applicant from office on
November 1, 2011?
(b) Did the Council afford
the Applicant procedural fairness?
(c) Was the Council’s
Resolution reasonable?
III. Standard
of Review
[16]
The
Council’s jurisdiction in this matter in so far as it requires the
interpretation of LNIB’s laws must be reviewed based on correctness. Once the
interpretation is found correct in law, its application to the facts and the
exercise of its discretion by the Council warrant the deference afforded by the
reasonableness standard (Martselos v Salt River First Nation #195, 2008
FCA 221, [2008] FCJ no 1053 at para 32).
[17]
Matters
of procedural fairness always necessitate review according to correctness (see Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
1 SCR 339 at para 42).
IV. Analysis
A. Jurisdiction
[18]
Council
has discretion, based on Article 34 of the CER, to remove a “Member of Council”
by way of a resolution for having failed to fulfill his responsibilities for a
period of more than 30 days after receiving a written notice to that
effect. Since the Council is to be comprised of the Chief and Councillors as
identified in section 1, the Chief can appropriately be considered a “Member of
Council” subject to this removal provision.
[19]
As
for whether the Chief or Council can convene a meeting to bring a resolution
for such a removal from office, the issue is somewhat more ambiguous. The
Chief argues that he has the sole authority to duly convene a meeting of the
LNIB Council. This is one of the responsibilities assigned to him under the
Policy and Guidelines. By contrast, the Respondent relies on a different 2010
version of the Policy and Guidelines that it claims were recently updated that
assign concurrent responsibility to Chief and Council for many aspects that
were previously assigned solely to the Chief.
[20]
Despite
the dispute as to which set of Policy and Guidelines apply, there appears to be
at least some concurrency between the Chief’s ability to “convene all meetings
in accordance with established procedures” under subsection 23(a) and that of
Council more broadly to schedule meetings at least 12 times per fiscal year
based on section 26. There is nothing in the Policy and Guidelines to expressly
preclude the Council from involvement in convening meetings as customarily
scheduled, even if it is a main responsibility of the Chief.
[21]
The
Applicant also contends that the Council could not pass the Resolution to
remove him from office at the meeting because the three Councillors currently
subject to an appeal could not form part of the quorum. A quorum is to be five
members and, according to the Applicant, those members must also be in “good
standing.” He insists that by virtue of the election appeal there is a cloud
of uncertainty over the three disputed Councillors and they should not be able
to participate in Council duties despite the efforts of family and supporters to
keep them in their position.
[22]
The
CER does provide for an election appeal process. There is nothing to suggest
that Councillors are not in good standing or cannot constitute quorum until
their status is resolved. There are practical reasons for allowing those
individuals to remain in office to ensure the day-to-day administration of the
LNIB Council continues and to reflect that the corrupt election practices
alleged have not formally been established.
[23]
The
potential problem in this case is the length of time it has taken to resolve
this matter, particularly since Justice O’Keefe ordered that a new Elders’
Council be convened for reconsideration. The Councillors at issue cannot be
allowed to remain in their positions solely to avoid the matter being resolved
by a new Elders’ Council or make adjustments to the laws that govern such matters.
This issue is, however, more appropriately dealt with as a question of
procedural fairness and with respect to the reasonableness of the Resolution.
[24]
Despite
the submissions of both parties regarding the eligibility of the three
Councillors based on the existence or non-existence of Article 3(d) relating to
indebtedness to the Band in the CER, that matter must be resolved by the newly
convened Elders’ Council as opposed to a pronouncement in this application for
judicial review.
[25]
Recognizing
some of the uncertainties as to the application of relevant LNIB laws, the
Court is prepared to accept that the Council has jurisdiction to schedule a
meeting and pass resolutions to remove a Member of Council, including the
Chief, from office. Nevertheless, there are still concerns regarding how that
jurisdiction was exercised in the present case that will be addressed
throughout the remainder of the analysis.
B. Procedural
Fairness
[26]
In
terms of the notices sent to the Applicant regarding Council’s intentions as to
his suspension and removal, he would appear to have been afforded procedural
fairness. The Applicant suggests at one point that he did not receive these
notices but did acknowledge in cross-examination that he received the letter of
October 18, 2011 making him aware of the allegations and the October 25,
2011 meeting.
[27]
The
Applicant argues that he was prevented from attending that meeting because he
was undergoing heart surgery in Kelowna, British Columbia. There is, however,
no reason why the Applicant could not have done more to respond in this
instance to the charges against him or at least make the Council aware that he
would be unavailable at that time. The Applicant’s only response in these
matters was to initiate applications for judicial review, in response to the
initial suspension and his subsequent removal. As the Respondent argues, the
refusal not to attend should not allow an argument that procedural fairness was
not respected (see Martselos v Salt River Nation #195, 2008 FC 8,
[2008] FCJ no 13 at para 23).
[28]
Regardless,
this does not imply that there were no procedural fairness concerns raised by
the Council’s conduct. For example, the nature of the original investigation
into the Applicant’s conduct remains unclear. Also, the attempt by similarly
targeted Councillor Harold Joe to attend the subsequent November 1, 2011
meeting was merely “queried upon” as though he was not supposed to be there,
despite the measures being taken to remove him from his position. Under
cross-examination, Councillor Toodlican was not certain whether the Applicant
would have been treated differently or been allowed to attend the critical
in-camera portion of the meeting. This raises doubts as to whether the
Applicant would truly have been afforded the opportunity to respond to the
allegations against him.
[29]
Similarly,
the involvement of the three Councillors, whose status is outstanding in the
election appeal, is also questionable. The Applicant raises a reasonable
apprehension of bias argument in this case that the Councillors participated in
meetings and signed the Resolution removing him from office, along with
previous motions that would change the CER or Policy and Guidelines to their
benefit. According to the Applicant, this is particularly disconcerting where
there are express LNIB laws governing conflict of interest.
[30]
While
the Councillors at issue may well be cleared by the Elders’ Council in the
future, unless that matter is resolved their involvement in Council and
participation in the removal of the Applicant from office requires greater
scrutiny. Using their positions in any way to improve the outcome of the
appeal or avoid a final determination would undermine the legitimacy of the
Council as a whole. In these situations where parties are in such conflict, it
underlines that where a “Band Council fails to respect the results of an
election, or attempts to circumvent the outcome of an election, then democracy
is at risk” (Balfour v Norway House Cree Nation, 2006 FC 213,
[2006] FCJ no 269 at para 9).
[31]
Given
the notices provided, the Applicant was afforded procedural fairness in a
formal sense. In other respects, the Court has some lingering concerns at the
speed with which the Council moved to remove the Applicant from office and
whether he would have been given an opportunity to properly respond to their
allegations.
C. Reasonableness
of Decision
[32]
By
far the most significant issue that emerges for this Court is the
reasonableness of the Council’s decision. It simply does not demonstrate the
existence of justification, transparency and intelligibility (see Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[33]
The
Respondent submits that the Applicant was provided clear communications as to
the allegations raised against him and the evidence on which it was based. However,
it is not clear that this was the case.
[34]
The
Resolution itself merely lists the violations committed by the Applicant
including of his oath of office, fiduciary duty, the CER and so on. It never
indicates on what basis the Applicant supposedly committed these violations.
[35]
The
Respondent insists that the October 18, 2011 letter provided the evidentiary
basis for Council’s decision because it consisted of 24 appendices. That
letter does not address the critical issue. It again recites the violations
committed by the Applicant but this time guides him to the appendices.
[36]
These
appendices consist of various communications issued by the Applicant. It is
unclear why these communications in and of themselves demonstrate that the
Applicant somehow committed the violations. Indeed, the communications show he
was attempting to represent the LNIB as Chief during this period. It is
understandable that members of the Council may not agree with some of those
communications, but it does not mean that they automatically support the
conclusion that he committed serious violations. That is a matter of
interpretation and requires further explanation.
[37]
It
is acknowledged that the evidence as to the Applicant’s lack of attendance at
meetings would be a concern to the Council. This is not, however, what was put
forward in the decision removing him from office. He was instead provided with
a list of charges without full explanation. It remains unclear what the
investigation uncovered and why communications referred to support the
conclusion that the Applicant committed the plethora of violations cited.
[38]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para 16, the Supreme
Court recently stated “if the reasons allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.” In this case, it is not clear on what basis the Council
made its decision. The Court is left merely with a list of charges and series
of communications. Without more information, the Court is only left to
speculate and the decision cannot be reasonable.
V. Conclusion
[39]
Given
some lingering procedural concerns identified and that the Resolution is
unreasonable for failing to address the basis on which the charges were brought
against the Chief, this application for judicial review is allowed. The
Resolution is quashed and the Chief is restored to his position to continue his
term in office.
[40]
As
a final note, the Court urges the LNIB to convene a new Elders’ Council to
resolve the appeal regarding the three Councillors at issue and work towards
identifying the current CER and Policy and Guidelines that apply to its
governance as per the previous orders of this Court by Justices Noël and Justice
O’Keefe. Failure to do so will continue to generate uncertainty for the
members of the LNIB. It will also perpetuate the ongoing power struggle and
further disputes. For the sake of its future, the LNIB should aim to put past
differences aside and give those elected the opportunity to appropriately
fulfill their responsibilities in office according to clearly agreed upon
standards.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is allowed. The Resolution is quashed and the
Chief is restored to his position to continue his term in office.
“
D. G. Near ”
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